Javelin Park – Tim's Blog

A dirty cloud hangs over Javelin Park as auditors fail to establish legality of £600m contract

In what I think is now the longest running series of posts on this blog, I’m back reviewing documents relating to Gloucestershire’s Javelin Park Incinerator saga (see here). This is a long and particularly wonky post, put together quickly ahead of tomorrow’s Audit Committee Meeting. I’ll try and draw out some of these ad-hoc observations into something more accessible soon.

A brief history

To put the latest developments in context:

In June 2017, Grant Thornton, the County Councillors auditors, accepted an objection to the Council’s accounts (under schedule 7 of the Local Audit and Accountability Act 2014) made by Community R4C.
In December 2018, GCC dropped an appeal to the Information Tribunal to keep the details of a revised 2016 contract secret, leading to the revelation of over £150m cost increase in the contract.
In early 2019, over 350 signed an open letter calling for an independent inquiryinto the project. This was rejected, in part on the grounds of an ongoing audit process and legal proceedings (see below).
In January 2019, Community R4C issued legal proceedings based on the new information: calling for a renegotiation of the contract and nominal damages. Preliminary hearings for the case concluded in July 2020, with the judgement that CR4C did not have ‘standing’ to bring the case (i.e. as only ‘economic operators’ affected by a failing of procurement law can bring a case, the predominantly public-interest case brought by CR4C was ineligible.). CR4C appealed, but that appeal was rejected asked to appeal, but were denied permission to, [Correction: 29/09/21] in November 2020.
In parallel to the legal route, Cllr Rachel Smith (Green), secured a discussion of the new information at the Overview & Scrutiny Management Committee in March 2019, in which the Chief Executive admitted the council had been in a weak negotiating position for the contract revisions.
The audit report from Grant Thornton has been persistently delayed, in part due to a lack of information provision by the local authority and restrictions on sharing that information with the objectors, and since 2019, to allow conclusion of the court case.
The report was further delayed (without clear explanation) from it’s expected publication just before the most recent local elections, causing the Chair of Audit Committee to issue a storngly worded statement accusing the authority of supressing reporting for political reasons.
A final response to the audit challenge is coming before the Audit and Governance Committee next week.

The Auditors response stops short of issuing a ‘Report in the Public Interest’, and triggering the associated public meetings. This appears to be at odds with the outcome that the objectors, Community R4C had expected based on their access to earlier drafts of the report from the auditor which concluded that a Public Interest Report was required [Addition: 29/09/21].

This post is my notes from reading the auditors letter and report.

What does the report find?

In short, the auditors conclude that they cannot draw a definitive conclusion with respect to audit objections:

Because of the length of time passed since the contract was signed;
Because of the complexity of the contacts financial model, and the assumed cost of assessing whether it’s renegotiation in 2016 shifted the economic balance in favour of the operator (UBB);
Because other Energy from Waste contracts are not transparent, making comparison to other authority contracts difficult.

They write that:

” our main objective is to explain why we have not reached a definitive conclusion, rather than to express such a conclusion,”

although then then state that:

“we do not consider that anything further by way of public reporting and consideration by a Committee of the Council is required”

with perhaps an implicit suggestion it seems that the council wanted to avoid public reporting of this at all?

However, on the substantive matters, the report finds (page 12):

The council conclusively did not consider whether the 2016 renegotiation shifted the economic balance in favour of UBB
The auditors consider it would have been appropriate to conduct such an assessment and to keep records of it;
The auditor does not agree with the council’s legal opinion that it was not required to produce such an assessment, but accepts that the council was acting on its own legal advice.

They go on to say:

“From an audit perspective, a decision making process followed by a council which accorded with its legal view at the time is not in itself necessarily a cause for concern simply because that legal view may have been erroneous. Such a process does not necessarily indicate that the council lacks appropriate internal procedures for ensuring the sound management of its resources.”

So, whilst the council relying upon faulty legal advice for a 25-year contract appears not to be grounds for a negative independent audit conclusion – it should surely be a significant matter of serious concern for the Audit and Governance Committee.

Put another way, the auditors conclude that:

“Our view, in line with the advice we have received from independent Counsel, is that the material we have so far considered is insufficient to enable us to reach a firm conclusion as to the lawfulness under procurement law of the modifications.”

Which, although it appears nothing can now be done to exit the Javelin Park contract, leaves at 25-year, £600m commitments by Gloucestershire Taxpayers under a significant cloud.

Establishing the legality of their actions is surely the least we should expect from our local authorities, let alone establishing that they operate in the best-interests of local residents and the wider environment.

It is also notable that, had the authority not fought against disclosure of contract details until late 2018, more contemporary examination of the case may have been possible, lessening the auditors objection that too much time has passed to allow them to conduct a proper investigation. The auditor however studiously avoids this point by stating:

“It is not our function to ‘regulate’ the Council in terms of whether it is sufficiently committed to transparency, or whether it has unjustifiably refused to release information in response to Freedom of Information Act requests.”

Yet, transparency is a central part of our public governance arrangements (not least in supporting meaningful public engagement with audit objections), and for it to fall entirely outside the scope of auditors comments about whether processes were robust is notable.

Observations to explore further

As I’ve read through, a few different things have struck me – often in connection with past documents I’ve reviewed. I’ve made brief notes on each of these below.

Wider procurement issues

Page 12 of the letter states “We have not seen evidence that suggests that there may be a pattern of non-compliance with procurement law by the Council.”but does not detail whether any evidence was sought, or what steps were taken to be satisfied as to this conclusion. Notably, public news reports covering the periods 2015 – 2019 highlight other governance failings related to procurement (though not necessarily procurement law), and at least from a public perspective raise some red flags about whether appropriate controls and oversight have been in place at GCC.

Recycling incentives

On page 19, considering the impact of the contract on incentives to recycle states that:

“While the average cost per tonne does clearly reduce as the level of waste increases, which may be as a result of lower recycling rates, the Council does not have direct influence over recycling rates.”

This appears at odds with the fact the authority provide Waste Incentive Payments to Waste Collection Authorities designed to influence recycling rates, and that these rates have been altered since the Incinerator became operational.

What’s a fair comparison?

A considerable part of the case the Council rely upon to prove Value for Money of the incinerator is the report produced by EY that compares the cost of the renegotiated 2016 contract with the cost of terminating the contract and relying on landfill for the next 25 years.

The auditors note that:

“the Council was professionally advised during the negotiation process, including by EY on the VfM of the RPP in comparison to terminating the contract and relying on landfill.”

However, the scope of the EY report, which compares to the “Council’s internal Landfill Comparator” (see covering letter) was set not on the expert advice of EY, but at the instruction of the Council’s procurement lead, Ian Mawdsley. As I established in a 2019 FOI, when I asked for:

the written instructions (as Terms of Reference, e-mail confirmation or other documentary evidence) of the work that was requested from Ernst and Young. Depending on the process of commissioning this work, I would anticipate it would form a written document, part of a work order, or an e-mail from GCC to E&Y.

and the council replied:

“We have completed our investigation into the points you raise and can confirm that the council do not hold any separate written terms of reference as these were initially verbal and recorded in the document itself.

It seems reasonable to me that an expert advisor, given scope to properly consider alternatives, may have been able to, for example, compare termination against short-term landfill, followed by re-procurement. This should have been informed by the outcome of the Residual Waste Working Group Fallback Strategy that considered alternatives in 2013, but appears to have been entirely ignored by the Council administration.

If the council is to rely on ‘expert advice’ to establish that it, in good faith, sought to secure value for money on the project – then the processes to commission that advice, and the extent to which consultants were given a brief that allowed them to properly consider alternatives, should surely be considered?

Cancellation costs are a range: where are the error bars?

The auditor briefly considers whether councillors were given accurate information when, in meetings in 2015, they were debating contract cancellation costs of £60m – £100m.

My reading of the EY report, is that, on the very last page, it gives a range of possible termination costs for force majeure planning permission-related termination, with the lowest being £35.4m (against a high of £69.8m). Higher up, it reports a single figure of £59.8m. The figure of £100m is quoted as relating to ‘Authority Voluntary Termination’ by EY note they have not calculated this figure in detail. It therefore seems surprising to me for the auditors to conclude that, a meeting in 2015 considering contract cancellation, that was not provided with an officer report explaining either figure, but being told that cancellation costs were in the range £60m to £100m was:

“not distorted by inaccurate information.”

As surely the accurate information that should have been presented would have simply been:

EY have produced estimated costs in a range from £35.4m – £69.8m if we cancel due to passing the planning long-stop date. Their best estimate for a single figure in this range of £59.8m
EY have produced a rough estimate (but no calculations) of a cost of £100m if the authority cancels for other reasons outside the panning delay.
The council estimates that sticking with landfill for a period of time, and carrying out another procurement exercise could add up to X to the cost.

Eversheds advice

Re-reading the EY report, I note that it refers to separate advice provided by Eversheds on the issues of State Aid, Documentation Changes and Procurement risks including risks of challenge.

To my knowledge this advice has never been put in the public domain. It may be notable however, that the auditor does not reference this advice in their reply on the objectors allegation that the contract could have constituted illegal state aid.

Perhaps another FOI request if someone else wants to pick up the baton on that?

We should have recorded meetings!

I was present at the March 2019 meeting when the chief executive admitted that the council were in a poor negotiating position in relation the contract. My partner, Cllr Smith, raised the failure of the minutes to include this point at the subsequent meeting but it appears the administration were already attempting to remove this admission from the record.

Whilst the auditor states:

“In our view, even assuming that such a statement was made by the Chief Executive (and we make no finding as to whether it was: we note that the Council does not accept that your record of the meeting is accurate), it would not in itself justify our making a finding that the contract modifications shifted the balance of the contract in UBB’s favour.”

That this point is addressed, and that the Council administration have attempted to keep admissions in a public meeting of their weak negotiation position from the record, is of note.

With hindsight, given the Council chose to hold this meeting in a room that was not webcast, we should have arranged independent citizen led recording of the meeting.

A problem with facts?

The final line of the auditors letter, in their reasons for not seeking to make an application to the court for a declaration that council acts may have been against the law is rather curious:

“the issues underlying these matters are very fact specific such that there would be limited wider public interest in a court declaration.”

An argument for or against Open Contracting?

The report appears to make a strong case for wholesale Open Contracting when it comes to large EfW projects. They state:

“We accept that the comparisons included in the WRAP report do have significant limitations, mainly because they are, as the Council notes, quoted at a point in time and in isolation from the underlying contractual terms such as length of contract, risk share etc. Without access to such information on the contracts in place elsewhere, it is impossible to do a conclusive comparison, and even with full information on the various contracts, there would still be a good many judgements and assumptions involved in making a comparison because of, for example, variations in the ‘values’ associated with particular risks.”

In other words – the lack of transparency in Energy from Waste projects makes it nearly impossible to verify that the waste ‘market’ (which, because of geographical constraints and other factors is a relatively inflexible market in any case), has generated value for money for the public.

I’m also not sure why ‘values’ gets scare quotes in the extract above…

However, it appears to me that, rather than calling for greater publication of contracts, the auditors want to go the other way, and argue that contracting transparency could be bad for local authorities:

“Procurement law pursues objectives that are wider than promoting the efficient use of public resources. In particular, procurement law, as applicable at the relevant time, sought to pursue EU internal market objectives and to ensure the compliance of EU member states with obligations under the World Trade Organisation Global Procurement Agreement, by ensuring that contract opportunities were opened up to competition and that public procurement procedures were non-discriminatory and transparent. In some circumstances, public procurement law could potentially operate to preclude an authority from selecting an approach which could reasonably be regarded by the authority as the most economically efficient option available to it in the circumstances.”

This critique of the laws ‘as applicable at the relevant time’ (i.e. during EU membership) also raises a potential red flag about arguments post-Brexit Britain may increasingly see.

Is Local Audit Independent and Effective?

I recall hearing some critique of Grant Thornton’s audit quality – and struck by some of my concerns about how this objection letter reads, did a brief bit of digging into the regulators opinion.

In 2019/20, the Financial Reporting Council reviewed six local audits by Grant Thornton. None were fully accepted, with the regulator concluding that:

Thee audit quality results for our inspection of the six audits are unacceptable, with five audits assessed as requiring improvement, although no audits were assessed as requiring significant improvement.

going on to note that:

“At least two key findings were identified on all audits requiring improvement and therefore areas of focus are the audit of property valuation, assessment and subsequent testing of fraud risks, audit procedures over the completeness and accuracy of expenditure and EQC review procedures.”

Whilst this does not cover assessment of the quality of reports in relation to audit objections, it is notable that in their response to the report Grant Thornton state:

“We consider that VfM audit is at the centre of local audit. We take VfM work seriously, invest time and resources in getting it right, and give difficult messages where warranted. In the last year, we have issued a Report in the Public Interest at a major audit, Statutory Recommendations and Adverse VfM Conclusions.”

Yet, in the Gloucestershire case, the auditors failed have studiously avoided asking any substantive Value for Money questions about the largest ever contract for the local authority, either at the time the contract was negotiated, or following concerns raised by objectors.

In their response to objectors, Grant Thornton rely a number of times on the time elapsed since the contract was signed as a reason that they cannot conduct any VfM analysis. Yet, they were the auditors at the time significant multi-million capital sums were committed the project: which surely should have triggered contemporary VfM questions?

It’s notable that local electors are being asked to trust that Grant Thornton have very robust processes in place to protect against conflict of interest, not only because a finding that VfM was not secured would surely call into question the comprehensiveness of Grant Thornton’s past audit work (none of which is referenced in the report) and because, as we learnt from the £1m Ernst and Young Report relied upon to assert that the council had sought suitable independent advice, the financial models of Incinerator operator UBB were written by, none other than, Grant Thornton.

(Oh, and today’s news on Grant Thornton doesn’t add to public confidence either.)

Effective objection, and the need for dialogue

One thing that has come across in years of reading the documents on this process, from Information Tribunal rulings, Court rulings and the Auditors letter, is the ‘frustration’ of the authorities (e.g. Judges, Auditors) being asked to ‘adjudicate’ in this case with one or other of the parties. At times, the Council has come in for thinly veiled or outright criticism for lack of co-operation, and Community R4C appear to have at times undermined their case by making what the auditors view as excessive or out-of-scope objections.

A few takeaways from this:

There is a high bar for citizen-objectors to clear in making effective objections, and little support for this. Community R4C have drawn on extensive pro-bono legal advice, crowd-funding and other resources – and yet their core case, that the project is neither Value for Money, nor in-line with the waste hierarchy, has never been properly heard: always ruled out of consideration on ‘technicalities’.
Objection processes need to be made more user-friendly: and at the same time, objectors need to be supported with advice and even intermediaries who can help support filtered and strategic use of public scrutiny powers.
The lack of openness from Gloucestershire County Council to dialogue has been perhaps the biggest cause of this saga running on: leading to frustrating, irritable and costly interactions through courts and auditors – rather than public discussion of constructive ways forward for waste management in the County.

Where next?

I’ll be interested to see the outcome of tomorrow’s meeting of the audit committee, where, even though there were only a few hours between the report and question deadline, I understand there will be a substantial number of public questions asked.

My sense is there still remains a strong case for an independent process to learn lessons from, what remains to my mind, a likely significant set of governance failures at Gloucestershire County Council, and to ensure future waste management is properly in line with the goal of increased recycling and waste reduction.

Javelin Park Episode 5: Return of the ICO

[Summary: The Information Commissioner’s Office has upheld an appeal against continued redaction of key financial information about the Javelin Park Incinerator Public Private Partnership (PPP) project in Gloucestershire]

The Story So Far

I’ve written before about controversy over the contract for Javelin Park, a waste incinerator project worth at least £0.5bn and being constructed just outside Stroud as part of a 25-year Public Private Partnership deal. There’s a short history at the bottom of this article, which breaks off in 2015 when the Information Commissioners’ Office last ruled against Gloucestershire County Council (GCC) and told them to release an unredacted copy of the PPP contract. GCC appealed that decision, but were finally told by the Information Tribunal in 2017 to publish the contract: which they did. Sort of. Because in the papers released, we found out about a 2015 renegotiation that had taken place, meaning that we still don’t know how much local taxpayers are on the hook for, nor how the charging model affects potential recycling rates, or incentives to burn plastics.

In June last year, through FOI, I got a heavily redacted copy of a report considering the value for money of this renegotiated contract, but blacking out all the key figures. This week the Information Commissioner upheld my appeal against the redactions, ruling that GCC have 35 days to provide un-redacted information. They may still make their own appeal against this, but the ICO decision makes very clear that the reasoning from the 2017 Information Tribunal ruling holds firm when it comes to the public interest in knowing salient details of original and renegotiated contracts.

The Story Right Now

For the last two weeks, Gloucestershire resident Sid Saunders has been on hunger strike outside the county’s Shire Hall to call for the release of the full revised contract between Gloucestershire County Council and Urbaser Balfour Beatty. This is, to my knowledge, unprecedented. It demonstrates the strength of feeling over the project, and the crucial importance of transparency around contracts in securing public accountability.

GCC are already weeks overdue responding to the most recent FOI/EIR request for the latest contract text, and continue to stonewall requests for even basic details, repeating discredited soundbites about potential savings that rely on outdated assumptions about comparisons and high waste flows.

On Wednesday, Sid and other local activists staged a dignified silent protest at the meeting of GCC Cabinet, where public and councillor questions on an air quality agenda item had unconstitutionally been excluded.

Tomorrow we’ll be heading to Gloucester in support of Sid’s continued campaign for information, and for action to bring accountability to this mega-project.

It’s against this backdrop that I wanted to draw out some of the key elements of the ICO’s decision notice, and observations on GCC responses to FOI and EIR requests.

Unpacking the decision notice

The decision notice has not yet been published on the ICO website, but I’ve posted a copy here and will update the link once the ICO version is online.

The delays can’t stay

It is notable that every request for information relating to Javelin Park has been met with very delayed replies, exceeding the statutory limits set down in the Freedom of Information Act (FOIA), and the stricter Environmental Information Regulations (EIR).

The decision notice states that the “council failed to comply with the requirements of Regulation 5(2) and Regulation 14(2)” which set strict time limits on the provision of information, and the grounds for which an authority can take extra time to respond.

Yet, we’re seeing in the latest requests, that GCC suggest that they will need until the end of June (which falls, curiously, just days after the next full meeting of the County Council) to work out what they can release. I suspect consistent breaches of the regulations on timeliness are not likely to be looked on favourably by the ICO in any future appeals.

The information tribunal principles stand

The Commissioners decision notice draws heavily on the earlier Information Tribunal ruling that noted that, whilst there are commercial interests of the Authority, and UBB at play, there are significant public interests in transparency, and:

“In the end it is the electorate which must hold the Council as a whole to account and the electorate are more able to do that properly if relevant information is available to all”

The decision note makes clear that the reasoning applies to revisions to the contract:

Even with the disclosures ordered by the Tribunal from the contract the Commissioner considers that it is impossible for the public to be fully aware of the overall value for money of the project in the long term if it is unable to analyse the full figures regarding costs and price estimates which the council was working from at the time of the revised project plan.

going on to say:

The report therefore provides more current, relevant figures which the council used to evaluate and inform its decisions regarding the contract and it will presumably be used as a basis for its future negotiations over pricing and costs. Currently these figures are not publicly available, and therefore the public as a whole cannot create an overall picture as to whether the EfW development provides value for money under the revised agreement.

As the World Bank PPP Disclosure Framework makes clear, amendment and revisions to a contract are as important as the contract itself, and should be proactively published. Not laboriously dragged out of an authority through repeated trips to information tribunals.

Prices come from markets, not from secrets

A consistent theme in the GCCs case for keeping heavy redactions in the contract is that disclosure of information might affect the price they get for selling electricity generated at the plant. However, the decision notice puts the point succinctly:

Whilst she [the Commissioner] also accepts that if these figures are published third parties might take account of them during negotiations, the main issue will be the market value of electricity at the time that negotiations are taking place.

As I recall from first year economics lectures (or perhaps even GCSE business studies…): markets function better with more perfect information. The energy market is competitive, and there is no reason to think that selective secrecy will distort the market or secure the authority a better deal.

(It is worth noting that the same reasoning, hiding information to ‘get a better deal’ seems to be driving the non-disclosure of details of the £53m of land the authority plan to dispose of – again raising major questions about exactly whose interests are being served by a culture of secrecy?).

Not everything is open

The ICO decision notice is nuanced. It does find some areas where, with the commercial interest of the private party invoked, public interest is not strong enough to lead to disclosure. The Commissioner states:

These include issues such as interest and debt rates and operating costs of UBB which do not directly affect the overall value for money to the public, but which are commercially sensitive to UBB.

This makes some sense. As this decision notice relates to a consultants report on Value for Money, rather than the contract with the public authority, it is possible for there to be figures that do not warrant wider disclosure. However, following the precedent set by the Information Tribunal, the same reasoning would only apply to parts of a contract if they had been agreed in advance to be commercially confidential. As Judge Shanks found, only a limited part of the agreement between UBB and GCC was covered by such terms. Any redactions GCC now want to apply to a revised agreement should start only from consulting contract Schedule 23 on agreed commercial confidential information.

Where next?

GCC have either 28 days to appeal the decision notice, or 35 days to provide the requested information. The document in question is only a 29 page report, with a small number of redactions to remove, so it certainly should not take that long.

Last time GCC appealed to a Tribunal in the case of the 2013 Javelin Park Contract they spent upwards of £400,000 of taxpayers money on lawyers*, only to be told to release the majority of the text. Given the ICO Decision Notice makes clear it is relying on the reasoning of the Tribunal, a new appeal to the tribunal would seem unlikely to succeed.

However, we do now have to wait and see what GCC do, and whether we’ll get to know what the renegotiated contract prices were in 2015. Of course, this doesn’t tell us whether or not there has been further renegotiation, and for that we have to continue to push for proactive transparency and a clear open contracting policy at GCC that will make transparency the norm, rather than something committed local citizens have to fight for through self-sacrificing direct action.

*Based on public spending data payments from Residential Waste Project to Eversheds.

The ongoing secrecy saga of Javelin Park: Ernst and Young Value for Money Analysis

[Summary: the latest in Gloucestershire County Council’s Javelin Park secrecy saga (read up on recent episodes here, here and here)]

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.

Where next?

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.