Judge rules council should receive “substantial” sum as waste management dispute rumbles on

The High Court has concluded that Buckinghamshire Council is entitled to a “substantial” sum in the latest ruling in a long-running dispute over a waste management project agreement, although the exact amount will need to be resolved.

The project agreement at the centre of Buckinghamshire Council v FCC Buckinghamshire Ltd [2024] EWHC 1552 (TCC) was entered into by Buckinghamshire, in its role as a waste disposal authority, and the defendant, a special purpose vehicle created for the purposes of the project agreement, in April 2013. The agreement is intended to run until 2046.

HHJ Stephen Davies, sitting as a judge of the High Court, said the parties were in dispute in relation to the proper interpretation of, and other matters arising from, their entry into the project agreement.

Previous litigation between the same parties in relation to the project agreement resulted in determinations by O'Farrell J in 2021 as to: (a) the council’s entitlement in principle to share in certain categories of third party income (TPI); and (b) the council’s entitlement to be provided with information and documents in relation to such TPI.

HHJ Stephen Davies said the project agreement provides – in summary – for the following matters:

1. The construction and operation of an energy from waste (EfW) thermal treatment plant at Lower Greatmoor Farm, Buckinghamshire (Greatmoor) and two waste transfer stations (WTSs) at High Heavens and Amersham. "In the end, as envisaged as a possibility in the project agreement, the Amersham WTS was not built."
2. The treatment of the council’s waste (i.e. domestic and other waste for which it was responsible – referred to in the project agreement as contract waste) at Greatmoor, "in circumstances where treatment by such means was an important part of its strategy for meeting various statutory targets for diverting biodegradable municipal waste from landfill".
3. The treatment of waste originating from third parties, including other local authorities (referred to as Third Party Waste - TPW for short);
4. The sharing of TPI derived from TPW, from electricity outputs, from recyclate outputs and from various other sources.

The construction of the main facility was completed and it became operational in June 2016.

The defendant, FCCB, provided information and documentation pursuant to O’Farrell J’s determination and, in consequence, made substantial payments to the council in respect of TPI for the accounting years 2015-16 onwards.

However, in these proceedings the council contended that the payment made did not properly reflect its full contractual entitlement.

HHJ Stephen Davies said: “It became clear that there were a number of disputes between the parties which required determination and which will, potentially, have substantial long term ramifications for the parties.

“This judgment will, subject to any need for further working out, resolve the issues in dispute insofar as they are the subject of and to be determined at this trial. Unless the parties are able to resolve their remaining differences out of court (which is surely in their best interests) it seems inevitable that there will be further proceedings.”

Summarising the outcome, HHJ Stephen Davies said: “This is not a case where I can with complete confidence identify the precise sum to which [Buckinghamshire Council] is entitled as a result of this judgment. It will be substantial but the precise amount will need to be ascertained once my findings are translated into figures. Further, there are already certain issues which have been hived off for a further trial and, in the course of this judgment, I have identified a number of further issues which may most conveniently be determined at the same time. There are also number of issues which I have had to determine which do not readily translate into immediate money terms.”

Buckinghamshire Council has been approached for comment.

A spokesperson for FFC said: "FCC Environment acknowledge receipt of the judgment of this complex case which was handed down on 21 June 2024."