4 August 2020 by James Langley

Challenge planned over Javelin Park ruling

Gloucestershire-based community group Community R4C intends to challenge a recent High Court ruling relating to the Javelin Park energy from waste (EfW) contract.

In a ruling handed down on 17 July, Justice Jonathon Russon said that while information about a contract signed with Urbaser Balfour Beatty in 2016 was withheld from the group by Gloucestershire county council, its claim that it too would have bid for the contract was dismissed (see letsrecycle.com story).

Javelin Park entered full operation in 2019 after a protracted planning process

Community R4C will apply for permission from the Court of Appeal to bring an appeal by Friday 7 August 2020, the group says.

Sue Oppenheimer, co-chair of Community R4C, said: “We are applying to the Court of Appeal on the basis there has been a critical error of law in the approach taken by the High Court. The effect of this is ultimately to deprive potential bidders, Community R4C in this case, of proper access to legal remedy in the event of breaches of procurement law by directly awarding contracts without open, competitive tender.

“If our appeal is eventually upheld, the impact will be nationwide. It would establish new legal precedent which will ensure more open government tenders. Councils will no longer be able to dismiss community-supported, environment-protecting solutions simply to favour big business.”

Community R4C believes that if it is proven in court at full trial that Gloucestershire county council breached procurement law, legal challenges by the council itself could recover £150 million in “illegal state aid” from Urbaser Balfour Beatty.

History

Community R4C brought the case against Gloucestershire council in 2019, seeking £350,000 in damages (see letsrecycle.com story). The group it said it would have bid for the contract – to treat between 130,000 to 160,000 tonnes per annum of residual waste and first awarded in 2013 – had it been re-procured.

Justice Jonathon Russon handed down his ruling on 17 July

The group claimed the increased costs of the new contract, which was reissued after planning delays, did not deliver the best value for the council.

The council said the new £600 million deal signed in 2016 was an amendment to the initial contract, awarded after a “competitive tender process”.

Justice Jonathon Russon said that R4C was not an economic operator which would have pre-qualified to bid for the tender process and threw out the case.

Challenge

Community R4C says it brought its legal case because there was no competitive tender for the 2016 contract, despite a price rise of more than 30%, and therefore, it claims, Gloucestershire county council broke procurement law.

It asserts that, had there been a proper tender process, a recycling-focused solution such as its own could have been successful and would have created a much cheaper and environmentally beneficial solution.

Representation

The environmental group says it will continue to be represented by Shakespeare Martineau solicitors and specialist procurement law barrister Duncan Sunclair from 39 Essex Chambers in London. The team will be bolstered by the addition of Parishil Patel QC, Community R4C says.

Community R4C says TV chef Hugh Fearnley-Whittingstall is among those to support its cause (picture: Shutterstock)

The group says the barristers have agreed to work on the case pro bono due to the importance they attach to the outcome and because a successful appeal would have national as well as local impact.

Community R4C says it plans to launch a Crowdfunder campaign to raise funds to meet necessary legal expenses. A previous campaign raised more than £100,000 online from supporters locally and nationally, including actor Jeremy Irons, TV chef and anti-waste campaigner Hugh Fearnley-Whittingstall and environmentalist Jonathon Porritt CBE.

Support

Ms Oppenheimer said: “A meeting of our members expressed unanimous approval for our appeal and our legal team is very strong and continues to be fantastically supportive.

“Both Duncan Sinclair and Parishil Patel QC are procurement law experts and the latter has been involved with other precedent-setting cases. They will be ably supported by specialist solicitors from Shakespeare Martineau.

“We believe it is right to continue to fight on behalf of the community for the environment and to demand transparency and value for money from the county council.”

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