The dispute concerned the sharing of third-party income from the county’s Greatmoor Energy-from-Waste (EfW) plant.
In a judgment handed down on 18 July, the Court of Appeal upheld most of the High Court’s findings that the council was entitled to a strict reading of the contract’s rules on “Third Party Income” and the costs FCCB can deduct before sharing revenue.
The court also confirmed that income from a long-standing Luton Borough Council waste contract must be included in the revenue pool.
However, the court did overturn part of the High Court’s earlier ruling by allowing FCCB to deduct haulage costs – a point that had been contested by Buckinghamshire Council.
On the decision, FCC told letsrecycle.com: “FCC Environment acknowledges receipt of the judgment of this complex case, the business is currently processing same and therefore can make no further comment at this time.”
Buckinghamshire Council said: “Buckinghamshire Council attended a Court of Appeal hearing in London to clarify further its interpretation of the 30-year contract with FCC Environment to run the Greatmoor Energy from Waste Facility.
“The Council believes its interpretation of the contract is correct and that it is therefore due additional income generated from third party waste.”
The dispute
The legal dispute began in 2020 when the council sought a court ruling on the scope of “Third Party Income” and what costs could be deducted.
A 2021 ruling by Mrs Justice O’Farrell – in a judgement not appealed – confirmed that the definition included income earned by FCCB’s affiliates for waste ultimately processed at Greatmoor, even if handled under separate contracts or at remote sites.
In August 2022, Buckinghamshire Council initiated further proceedings on the basis that it had not been paid its full share of Third Party Income by FCCB.
When the case returned to court in 2024, the High Court ruled that most categories of cost claimed by FCCB – such as manpower, site overheads and corporate charges – could not be deducted, but allowed haulage.
It also found the Luton Borough Council income should be shared.
Both sides went to the Court of Appeal after the High Court’s June 2024 decision.
FCCB argued that the judge had misinterpreted “costs directly incurred” and taken an overly narrow a view of what could be deducted.
The company also challenged the inclusion of the Luton Borough Council “unitary charge” in the shared income, claiming it was outside the scope of the project.
The council, meanwhile, appealed against the High Court’s allowance of haulage cost deductions, arguing these breached the contract’s provisos and amounted to “double recovery.”
Discussing the decision to go to court, Buckinghamshire Council told letsrecycle.com: “Whilst the Council does not enter legal disputes lightly, it will take action to clarify and protect its rights to historic and future income to help reduce the costs of services to local taxpayers.”
The contract
FCC 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 have been engaged in a dispute over how income from the plant is split.
The plant has an annual capacity of 300,000 tonnes of residual waste per year.
The council must provide 100,000 tonnes of waste to the plant every year as part of the original deal.
Buckinghamshire Council added: “Both parties continue to focus on maintaining the positive relationship they have always enjoyed and delivering community benefit from the Greatmoor facility.”
