Case Nos: CA-2024-002136 - [2025] EWCA Civ 921

Contracts with third parties

The Luton contract

In 2004, FCCR entered into a contract with Luton Borough Council (“Luton BC”) under which it undertook to provide waste management services and related construction works in the Borough of Luton. Payment was to be made by way of a unitary charge. By a deed of variation dated 20 March 2015, the 2004 contract was extended to continue until at least 31 March 2019 and also varied to provide for the first time for waste to go to Greatmoor. The unitary charge was renegotiated and reduced. In so far as waste went to Greatmoor, however, a new “Diversion Notional Payment” was to be paid to FCCR. The Diversion Notional Payment was specified as £73.42 per tonne in 2013 prices, subject to indexation from 1 April 2014. The Judge noted in paragraph 284 of the Judgment that the Diversion Notional Payment was “set at the same level as the current guaranteed gate fee for [Third Party Waste] under the [Project Agreement]”.

The contract was extended several times, ultimately to 1 April 2024. However, no Luton BC waste has been sent to Greatmoor since 31 March 2023.