In the Information Tribunal ruling EA/2015/0254-6 (which led to the provision of a mostly unredacted copy of the 2013 UBB Javelin Park Incinerator Contract), paragraph 27 contains a reference to reports produced for Cabinet by Ernst and Young that provide the basis for the high estimated cancellation cost of the Javelin Park Incinerator.
I requested a copy of these documents from Gloucestershire County Council (GCC) in an FOI request, and following a long review process, have been provided with a heavily redacted copy of the Ernst and Young report has been provided under the Environment Information Regulations (EIRs).
What can we learn from the redacted copy?
The report provides updated Value for Money and Affordability analysis for the Javelin Park Incinerator contract. It was provided to the Council on 5th November 2015, ahead of the Cabinet approving a second ‘Financial Close’ of the Javelin Park Public Private Partnership project at their meeting of 11th November 2015.
This updates many of the figures given in the 2012 Annex 4 ‘Resource Implications’ that was provided in a fully unredacted form following the Information Tribunal ruling. It also provides a number of insights into the actions of the council to inject additional funding into the project.
Whilst the redactions mean there is litle new financial information here on which to update an understanding of the project Value for Money, I did take note of the following:
Due to the planning delays, a ‘Revised Project Planning’ (RPP) process was triggered. This allows for various costs and figures in the contract to be updated (See the 2013 contract §3.3). §5.5 of the report indicates that there are updated tonnage prices in force under the Revised Project Plan, with the prose suggesting these have increased. The prose also suggests that anticipated third-party waste revenues have decreased.
The report calculates the cost of a Force Majeure Planning Failure Termination. In November 2015 planning approval was fully in place, so this would have been on the basis of GCC excercising their right to turn down the Revised Project Plan (RPP) from UBB.
The report does not calculate the cost of a ‘Voluntary Authority Termination’ (the council choosing not to proceed with construction), but instead states that it “would anticipate a sum in excess of £100m”.
§4 of the Ernst and Young report states that: “any decision to terminate and pursue a landfill alternative would require a termination payment to UBB to meet costs already incurred. This cost, amounting to c£60m (as set out in Appendix A) has been added to the cost of the Landfill Alternative.” Appendix A is heavily redacted, so it is not possible to identify the basis for this figure, or why this figure of £60m is lower than the sum ‘anticipated in excess of £100m’. However, this could be the source of the £60m – £100m cancellation cost estimates cited by Cabinet members.
In the ‘Force Majeure Cancellation Costs’ calculations in Appendix 1, under sub-contractor breakage and redundancy costs, Ernst and Young note that no evidence is held on the actual costs expended by UBB to date, nor the sub-contract breakage costs that would actually be incurred.
As of November 2015, Eversheds had produced legal advice to the council on Procurement risks including risk of challenge (p. 3)
The affordability analysis (§1.2) “identifies that without the capital contribution [£17m] the Project is in breach of the Council’s affordability limit until 2024 but there after falls inside the affordability limit” and introducing the £17m capital contribution moves affordability to 2022.
At the November 2015 Cabinet meeting the Cabinet claimed savings from the project of £153m, based on the difference between a Landfill base scenario of £522m and project cost of £399m (once a £13m financial contribution from the council had been made). This assumes a waste flow of 60% recycling. The savings substantially erode (a c. 60% decrease in Net Present Value) with lower waste flow from higher recycling rates.
What is still redacted?
The vast majority of financial sums are redacted from the document, with with the authority invoking ‘regulation 12(5)(e)’ of the Enviromental Information Regulations (EIRs).
There are also a number of redacted sentences, where the nature of the sentence and the goal of redaction is unclear.
Are these redactions justified?
It is notable that in the contract FOI request Information Tribunal Ruling, for similar information in Annexe 4, the Tribunal stated (§77):
“No particular case is made as to how the redacted information in Annex 4 comes within regulation 12(5)(e) but, even assuming it did, we are satisfied the Commissioner’s assessment on the public interest is correct.”
However, they do ground some of this reasoning in the length of time between the information and the present day, stating:
Given that by April 2015 the Contract had long since been signed and there was controversy surrounding it we consider that there was a strong public interest in disclosure of all this detail. The Council’s Checklist says that release would have harmed its negotiating position, presumably in relation to a new procurement. We have commented on that scenario in general terms. Any information about the Council’s general financial position reflected in Annex 4 ought we think to have been in the public domain in any event.
This same reasoning would appear to apply in 2017 to figures from 2015.
The redactions in this report also cover ‘key changes in UBB proposal compared to the position at financial close’, including updated tonnage costs.
The World Bank Framework for Public Private Partnership disclosure calls for publication of tariff information, and revisions to tariff information: suggesting international best practice is for this information to be in the public domain, not kept confidential.
Campaigners and County Councillors from a number of parties continue to oppose the incinerator. A complaint has been lodged with the Competition and Markets Authority and local residents have filed formal complaints with the Council’s monitoring officer over the conduct of Cabinet members reporting figures, largely it would seem based on the Ernst and Young report. There will undoubtedly be further updates in local press.