The 25-year contract, which was awareded in March 2011, will see some landfill waste recycled while energy is generated from the incineration of the rest.
But local campaigner Michael de Whalley, a member of the King’s Lynn Without Incineration group, came to High Court this week with a barrage of arguments as to why the council’s decision was “unlawful” (see letsrecycle.com story).
Top judge Mr Justice Nicol today (December 8) rejected all of those claims, refusing the Grimston resident permission for a full judicial review of the decision and ordering him to pay costs.
Support
The court heard earlier that the March cabinet meeting was preceded by a Conservative group meeting of councillors, at which the party showed its “in principle support” for incineration.
Mr de Whalley claimed the Tory get together meant the subsequent public meeting was “a sham” and “a stage pantomine”. He argued the cabinet ignored a poll showing local objections and passed a “predeterined” decision.
But the judge ruled this claim “unarguable”, finding Mr de Whalley had not shown that the councillors “fettered their discretion” or that their decision was one which “no reasonable authority could make”.
He said: “It would be surprising if councillors who inevitably would have to face re-election at some point would be oblivious to a poll showing opposition.”
Rejected
He also rejected a claim that the cabinet wrongly considered a mistaken assertion that the council could incur up to 20m costs by refusing the contract.
The judge said the figure came as just a “passing remark” by a council officer, not part of the full report into the issue, and would have been treated appropriately by cabinet members.
The cabinet’s decision was followed by a Cabinet Scrutiny meeting in April, at which a wider group of councillors chose not to refer the issue back to cabinet or to full council.
Mr de Whalley claimed that decision was also unlawful, arguing that a party “whip” was employed, forcing Tory councillors to support the cabinet’s decision.
But Mr Justice Nicol also rejected that claim, ruling: “Two members of the party voted for or abstained from the motions and there is no evidence that there were sanctions imposed by the party.”
He concluded: “For all these reasons I consider that none of the challenges made by the claimant to the decisions of March 2011 and April 2011 are arguable and, for these reasons, I would refuse permission for judicial review.”
Costs
The council said it had incurred more than 15,000 in costs fighting the legal battle, and Cory said it had spent more than 68,000.
Lawyers for Mr de Whalley told the court there was only 6,000 in his group’s coffers, and it should not be liable for the council’s or the company’s costs.
Mr Justice Nicol ruled that Mr de Whalley should pay 15,000 to the council, but was not liable for Cory costs. A spokesman for Cory declined to comment on the outcome outside of court.
Mike Knights, vice chair of King’s Lynn Without Incineration, said later: “I am sure there will be many people in Norfolk deeply troubled by today’s refusal.
“Without a judicial review I am concerned highly questionable conduct at the top of Norfolk County Council will not be scrutinised.”
Council
Commenting on the decision,Bill Borrett, cabinet member for environment and waste at Norfolk county council, said: “Mr Justice Nicol has today refused to allow the claimant (Mr de Whalley) to challenge the county council’s decision to award a waste contract to Cory Wheelabrator and has firmly rejected arguments that Norfolk county council did not follow the proper processes throughout.
“With this hearing out of the way we must now move forward rather than dwell on the past and we are very keen to rebuild relationships in our county. We are already working with the Borough to help them maximise recycling rates and this cooperative approach is the right way to tackle our waste management challenges in Norfolk.
“In terms of this proposal, there are still a number of important hurdles to overcome, but to get an early decision in this way is very pleasing. We remain in dialogue with DEFRA regarding the final release of Norfolk’s PFI credits.”
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