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

The parties’ positions

Mr Mort pointed out that proviso (c) refers to “the costs of handling or processing … Third Party Waste” in general terms, with the result, he said, that, giving the words their natural and ordinary meaning, they apply to such handling or processing wherever it takes place, not merely if it is undertaken at a Facility. FCCB’s case, Mr Mort argued, amounts to reading the proviso as if “at the Facilities only” were inserted after “Third Party Waste” when the parties did not in fact choose to include that qualification. Mr Mort further submitted that the interpretation of proviso (c) which he espoused is consistent with, and supported by, O’Farrell J’s judgment of 26 October 2021.

Mr Mort further argued that his construction makes sense because the Council would otherwise be paying for haulage to Greatmoor twice. In this connection, he told us by reference to the “ImportPer” and “O&M” worksheets in the Base Case that costs totalling £58,686,000 were assumed for “TLS O&M Variable Haulage” over the course of the Project, with sums approaching £500,000 a month from July 2016 onwards. In fact, as Mr Mort noted, an even higher figure, £99,428,000, is to be found for “TLS O&M Variable Haulage” in the “O&M” worksheet. Mr Mort further pointed out that Mr Dickson explained that “TLS O&M Variable Haulage” referred to “the costs of getting the waste from the transfer stations to the plant”. It can also be seen from Mr Dickson’s witness statement that the calculations reflected anticipated volumes of both Contract Waste and Third Party Waste. Since the Unitary Charge which the Council pays FCCB takes account of these presumed costs, Mr Mort said, FCCB is already being paid to transfer Third Party Waste from High Heavens WTS to Greatmoor. If the FCC group instead chooses to transport Third Party Waste from elsewhere, without incurring the costs of haulage from High Heavens WTS, there is nothing unfair in FCCB being unable to deduct the costs of haulage, Mr Mort maintained. On FCCB’s case, Mr Mort submitted, it only incurs the cost of hauling the waste from a waste transfer station to Greatmoor once, but it is compensated for that haulage cost twice: (a) once as a result of the allowance in the Base Case for the costs of hauling Third Party Waste from High Heavens WTS to Greatmoor and (b) once as a cost which it can deduct pursuant to the definition of “Third Party Income”.

Mr Mort argued that the Judge was mistaken in thinking that no significant costs would be saved if Third Party Waste were delivered to Greatmoor otherwise than via High Heavens WTS. To the contrary, Mr Mort said, the costs of haulage from High Heavens WTS no longer had to be incurred and so there were very large savings.

Ms Parkin, on the other hand, supported the Judge’s decision. FCCB, she said, does not receive haulage income twice. It receives a “Monthly Base Payment” for accepting Contract Waste at the Facilities and it accounts for haulage income received by FCCWS from Hertfordshire CC and LondonWaste in accordance with the separate regime for sharing Third Party Income. The Council’s case, Ms Parkin said, erroneously elides the two. FCCB would not be entitled to any additional payment from the Council if it transpired that the costs of hauling Contract Waste from High Heavens WTS to Greatmoor were higher than the Base Case allowed for. Equally, the Council has no right to pay less if FCCB does not in the event incur the costs of transporting Third Party Waste from High Heavens WTS to Greatmoor which had been assumed.