However, the council was successful in its other claims that third party contracts at the plant are subject to profit sharing agreements, and FCC must provide it with information on this.
The decision was handed down by Mrs Justice O’Farrell, last week (26 October) after a hearing in the Queen’s Bench construction division of the High Court.
The judge ruled any payments should be indexed by the retail price index rather than inflation, so FCC was entitled to £504,533 plus interest, which equates to £812,633.
Justice O’Farrell also ruled that any profits from third party contracts and incinerator bottom ash (IBA) metals at the plant were subject to profit sharing agreements, and FCC must now provide documentation on this.
In a joint statement, the two said the ruling is now being considered.
Contract
FCC Buckinghamshire and Buckinghamshire council entered into a 30-year partnership in 2013 to deliver residual waste treatment and transfer infrastructure.
At the heart of the contract is the Greatmoor EfW facility, which became operational in 2016, located nine miles south of Buckingham.
The council met 85% of the costs of construction and the two parties were disputing the terms of how income from the plant is split.
The plant allows up to 300,000 tonnes of non-recyclable waste per year to be diverted from landfill and instead enter a treatment process to generate power, the council must provide 100,000 tonnes of waste to the plant every year as part of the deal.
Dispute
The dispute, first brought forward in March this year (see letsrecycle.com story) surrounds how income is distributed from the Greatmoor EfW plant in Buckinghamshire from payments by ‘third parties’, who send waste for incineration at the plant.
The council had claimed that income received from affiliate companies of FCC at the plant is subject to profit sharing agreements under the contract. It also said IBA metals should be subject to the same conditions.
However, FCC’s claim that the third-party income is not liable to sharing. The waste company says it is “limited to earnings from gate fees” and “does not extend to income received by its affiliates in respect of waste from other parties, located away from the main facility.”
The company also said it pays a third party to recycle IBA metals so this shouldn’t be included.
Buckinghamshire had also asked the court to order FCC to provide “further information and documentation in respect of income received from third parties”.
The final dispute was whether the agreement provides that the guaranteed threshold levels, above which income from electricity outputs and Third Party Waste is shared, should be indexed by reference to actual indices or increased by a fixed 2.5% per annum.
Buckinghamshire was successful in all of its claims except for the final one, which is why FCC was entitled to the money.
The court has granted Buckinghamshire council the decision that it was seeking – FCC and Buckinghamshire council joint statement
‘Consider’
A joint statement from Buckinghamshire council and FCC, said: “Buckinghamshire council and FCC Buckinghamshire are parties to a waste management contract which started on 17 April 2013. In March 2021, Buckinghamshire council and FCC Buckinghamshire each brought proceedings under the contract, seeking decisions from the court about how the contract should be interpreted. Judgment has now been delivered by the High Court.
“The court has granted Buckinghamshire council the decision that it was seeking, which relates to the interpretation of third party waste and third party income. The court has also granted FCC Buckinghamshire the declaration that it was seeking, which relates to the how the sums should be indexed.
“Both parties will now consider the ruling and any next steps. Meanwhile both parties continue to focus on maintaining the positive relationship they have always enjoyed and delivering community benefit from the Greatmoor facility”.
__________________________________________________________________________________
RDF Conference | 25 November | Congress Centre, London
Now in its eighth year, the RDF Conference has established itself as one of the key must-attend conferences for all those operating in the RDF, SRF and Energy from Waste sectors.
Subscribe for free