Community Group Sues Council over £600m incinerator contract
A community group is taking Gloucestershire County Council to court over the award of a £600m incinerator contract. Community R4C, a non-profit mutual society which has had support from celebrities including Jeremy Irons, Jonathon Porritt, Hugh Fearnley Whittingstall and Kevin McCloud, claims the contract was unlawfully awarded, resulting in a massive rise in costs to taxpayers and a breach of procurement law. They filed a lawsuit with the High Court on Friday.
Campaigners have been opposing the waste incinerator at Javelin Park for years, saying the project wasted taxpayers money, was bad for health and the environment and that there were cheaper and better alternatives. Requests to see the contract, the largest the county has ever entered into, were consistently refused until a tribunal forced its disclosure in 2017, by which time a revised contract had been signed. This was only released on 20th December 2018.
“It was a very difficult decision to take this course of action when so much taxpayer money has already been spent on legal battles”, says Patricia Watson, a waste consultant and volunteer director of the group. “The underhand behaviour of the council and contractor has led to a far higher price than anywhere else in the country for the lowest possible environmental benefit.”
Board member Sue Oppenheimer says: “The contract has increased by a staggering £150m making it 30% more expensive. By law, it should have been retendered. Instead Gloucestershire County Council has spent around half a million pounds keeping this information secret. With the support of the community, we had been working on a much cheaper waste processing plant and would have bid for the contract. Our plant would have increased recycling, reduced pollution and would have been a better deal for the environment and the taxpayer.”
Tom Jarman, another board member says: “There is a strict 30 days limit to bringing this sort of claim and it seems to us that the council timed the disclosure of the relevant information strategically, just before Christmas, so to make it almost impossible for anyone to bring legal action in time. Keeping a 30% increase in cost secret from the public and its own audit committee is not the way we expect a public authority to conduct itself.”
Notes for Editors
There has been widespread and consistent objection to the building of an incinerator on the Javelin Park site in Gloucestershire, alongside an area of outstanding natural beauty. Well over 4000 people wrote to object and the Council’s own planning committee unanimously rejected the plans, yet still the plans for the incinerator have been pushed ahead, and the plant is now in an advanced state of build.
Documents available on the Community R4C website show the planned incinerator is very inefficient and expensive. The lack of heat use (combined heat and power) means that almost 80% of the energy available is wasted, and the plant is a harmful emitter of greenhouse gasses, and harmful dioxins. Two thirds of the electricity comes from inefficiently burning plastic, a fossil fuel, and this is even more harmful to the environment than landfill. It burns all material received, yet well over 50% of this material is recyclable.
The gate fee £190 per tonne of waste (for the first 108,000 tonnes, Council guaranteed minimum) almost twice the cost of alternatives.
The Council has been consistently secretive, refusing to release contract details despite numerous FOI requests.
In 2015 a local group decided not just to campaign against something, but to work towards a better solution which would serve the community and protect the environment. This harnesses the commitment of the local community to preserve resources while minimising cost so that other local services could be protected.
Community R4C Ltd
Community R4C is a Community Benefit Society based in Stroud, Gloucestershire registered with the Financial Conduct Authority.
In 2016 Community R4C raised almost £100,000 in a groundbreaking Community Share Scheme to facilitate its aims and the building of an alternative waste resource recovery plant – the R4C plant – in co-operation with investors and partners.
Community R4C has widespread support, both within and outside Gloucestershire including from well known campaigners for sustainability – among them Jeremy Irons, Jonathon Porritt, Hugh Fearnley Whittingstall, Kevin McCloud
This was filed on Friday 18th January, and served on the council today.
A claim for compensation is the only remedy available to us. We want to invest the proceeds back into the local community, just as we would have done with the profits from our own plant.
Current Aims of Community R4C
- Contract to revert to previous terms, saving the Council £150M over the life of the contract
- Remove the three tier pricing mechanism that gives contractual incentives to recycle less and waste more. Ensure that gate fees offered are no less than that paid by the Council, taxpayers should not be subsiding the private sector!
- Ensure the payments made to waste collection authorities (the district councils) for waste collected and recycled (recycling credits) are set at a minimum level which is no less than £25 pt below the gate fee above, encouraging greater recycling. Also implement schemes to subsidise waste avoidance schemes on the same principle.
- Provide subsidy to community groups doing likewise on a similar basis
- Monitoring of emissions to include small particulates to ensure emissions of these most harmful substances stay below legal maximums
- Implement a pre-sort of waste received at the incinerator (manual or auto) to remove recyclable material
- Pre-sort to be enhanced annually to reduce waste being incinerated
- Heat produced by the incinerator to be available on highly attractive terms and encourage suitable industry
- Commitment to work closely with CR4C and other community groups to further the principles of the circular economy and ensure that Gloucestershire is a leading light in this field
- Decommission / re-purpose the Incinerator as soon as it is economic to do so, with specific objectives to reduce the burden on the public purse, reduce visual impact
Cabinet approves the Residual Waste Procurement Plan for diversion of residual waste from landfill and the Outline Business Case for submission to DEFRA in order to obtain PFI credits for a long term waste contract.
Gloucestershire County Council (GCC) buys land at Javelin Park, paying more than double what the previous owners had paid just the year before.
By going for a ‘technology neutral’ procurement process, GCC shuts down any public debate on waste options. The process remains secretive throughout.
Defra withdraws PFI funding “on the basis that, on reasonable assumptions (the project) will no longer be needed in order to meet the 2020 landfill diversion targets set by the European Union” GCC decides to continue with the residual waste procurement process.
The Council’s Cabinet agrees to contract with UBB for an Energy from Waste plant at Javelin Park.
The Waste Core Strategy – the planning document against which the planning application for the Javelin Park incinerator would be judged – is adopted in November.
The contract is signed in February 2013, less than 4 weeks before consideration of the application at Planning Committee. GCC’s own Planning Committee unanimously rejects the application on 21st March 2013. The matter is ‘called in’ by the Secretary of State.
A 6-week planning inquiry is held between November 2013 – January 2014.
In January, the Secretary of State, Eric Pickles, reverses the decision of GCCs planning Committee and grants planning permission.
In February a petition signed by 7,600 people asking GCC to terminate the contract is submitted. At an Emergency meeting, the Council debates a motion to do just that with immediate effect, but the motion is lost by 24 for and 27 against – a closely split vote. During the debate, Cllr Theodoulou tells councillors that the choice is between “The energy from waste solution (which) would provide £150 million worth of savings and the motion before members, which would incur cancellation costs up to £100 million”, but provides no data to substantiate these claims. They are questioned at the time, and later by the judge at the Information Tribunal. The recently released contract indicates that the claims were incorrect.
In March campaigners submit a Freedom of Information request for the full contract. GCC subsequently releases a heavily redacted version in May and campaigners appeal to the Information Commissioner’s Office for full disclosure.
The ICO decision notice on 8th October 2015 requires GCC to “Disclose the withheld information to the complainant.” GCC appeals this decision and the case goes before a Tribunal.
The contract, even though signed, is renegotiated outside of any competitive pressure. In November 2015 the Council’s Cabinet agrees a “£17 million one-off financial contribution”.
That same month members of the council’s oversight and scrutiny management committee attempt to call in the matter but the vote is defeated by the chair, who mysteriously votes for the motion as a member of the committee but against it in his role of chair with casting vote.
The renegotiated contract is signed but once again kept secret from councillors and the public on the same previously defeated grounds as before.
Chief Executive of Gloucestershire County Council, Peter Bungard becomes highest paid public sector worker in the South West after receiving a large discretionary award into his pension fund and reducing his working hours.
Work on the incinerator starts in November.
The Information Tribunal’s decision on 10th March 2017 requires that nearly all the redacted information be released because public interest overrides commercial interest in virtually every aspect of the contract. Judge Shanks expresses “some incredulity that it could possibly cost £100 million to cancel a contract worth some £500 million over 25 years at a stage when construction had not even started.” He further states that “at the time of the requests in January to March 2015 the controversy was particularly intense and there was a danger that the whole Contract would have to be terminated at a cost, according to the Council, of up to £100 million. At that stage, in our view, the Council’s obligation to act transparently was particularly strong as was the public interest in full disclosure”.
Community R4C submits a complaint to the Competition and Markets Authority on the basis that the pricing structure in the contract, involving huge fixed costs for 25 years and unfair market pricing, has the effect of foreclosing all competition and preventing technological innovation.
As local residents, Community R4C directors submit formal complaint to the councils auditors, Grant Thornton, on Value for Money grounds.
The council prepares evidence for another information tribunal hearing, then withdraws its appeal at the last minute and discloses crucial information about the new contract on 20th December.
On 14th January Community R4C serves a letter before action on Gloucestershire County Council alleging a breach of procurement law. A claim is filed with the High Court five days later.
Following a three day trial on preliminary issue at Bristol High Court, the judge finds for CR4C on one and against on the other technical objection made by GCC. This would mean the full trial never happens but CR4C decide to appeal.