R De Whalley v Norfolk County Council

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
Judgment Date08 Dec 2011
Neutral Citation[2011] EWHC 3739 (Admin)
Docket NumberCO/5252/2011

[2011] EWHC 3739 (Admin)




Royal Courts of Justice


London WC2A 2LL


Mr Justice Nicol


The Queen on the Application of De Whalley
Norfolk County Council

Mr T Leader (instructed by Richard Buxton) appeared on behalf of the Claimant

Mr N Giffin (instructed by NP Law) appeared on behalf of the Defendant

Mr West (instructed by Nabarro) appeared on behalf of the Interested Party


: This is an application for permission to apply for judicial review of two decisions of the Defendant, Norfolk County Council. Both relate to a proposed project to build a waste incinerator at Saddlebow, King's Lynn, Norfolk, by entering into a contract with two joint venturers.


The first decision under challenge is that of the Defendant's Cabinet which was taken on 7th March 2011. The decision was as follows:

"The Cabinet voted in favour of the recommendations (set out in the Cabinet report) with one Member abstaining.

It was therefore RESOLVED -

1) To approve the award of the waste PFI contract to Cory Wheelabrator on the basis set out in the Final Tender and subject to confirmation by Defra that the bid remains in line with its requirements for the PFI process and therefore secures PFI credits.

2) To delegate to the Director of Environment, Transport and Development in consultation with the Leader and Cabinet Member for Sustainable Development the conducting of final clarification, confirmation of commitments and due diligence with Cory Wheelabrator in accordance with the Public Contracts Regulations.

3) To delegate to the Director of Environment, Transport and Development in consultation with the Leader and Cabinet Member for Sustainable Development, the approval and entering of the Private Finance Initiative contract with Cory Wheelabrator and all associated documents together with any additional acts and instruments required to give effect to the project including, without limitation, direct agreements with funders.

4) To authorise the provision of an indemnity to the Practice Directorate or Head of Finance or another appropriate officer who will sign the Local Government (Contract) Act 1997 certificate as to the County Council's vires to enter into the contract.

5) To the lease the site at Willows Business Park to Cory Wheelabrator for the duration of the Contract.

6) To confirm affordability with suitable allowance for fluctuations in the cost such that when the contract is entered the overall cost to the County Council is no greater than the equivalent of 1% increase in interest rates or a 10% worsening of relevant exchange rate from those assumed in the Final Tenders.

7) To make provision in the County Council's Financial Plan for the funding of the PFI contract and the resources required to manage the contract.

8) To authorise the Director of Environment, Transport and Development, in consultation with the Leader and Cabinet Member for Sustainable Development to pursue the possibility of further enhancing the environmental benefits by pursuing the possibility of making combined heat and power part of the Energy From Waste facility.

Reasons for Decision

Procurement of the contract would enable the County Council to adopt a proven, and value for money solution to managing it's waste, which would help prevent more waste going into landfill, helping to meet the requirements of the Landfill Directive and, in the process, recycle more, generate energy, and save carbon omissions."


Cory Wheelabrator is the name of a joint venture between Cory Environmental Management Limited ('Cory') and Wheelabrator Technologies Inc. Cory was named as an interested party. Wheelabrator was not. It should have been. However, Cory has been able to advance the views of both parties to the joint venture and this procedural flaw has not caused any identifiable prejudice.


The claimant lives in a village near King's Lynn. He is a member of a local action group that strongly opposes the project.


The Defendant's constitution allows councillors to call in decisions of the Cabinet for review by the Cabinet's Scrutiny Committee. A number of councillors did so in relation to the Cabinet's decision of 7th March 2011. On 19th April 2011 the Cabinet Scrutiny Committee resolved not to refer the Cabinet's decision to the full council or remit the matter back to Cabinet for further consideration. That is the second decision under challenge.


The Claim Form was issued on 6th June 2011. It can be seen that this was one day short of the 3 months following the Cabinet decision. In the claim form that was the only decision identified as being the subject of challenge. The Claim Form set out only two of the grounds of challenge now made and the facts were stated in an extremely abbreviated form. The Claim Form was not accompanied by the documents, required by Practice Direction 54A to the Civil Procedure Rules Part 54, paragraphs 5.7, nor was there any explanation for why it had not been possible to include these with the Claim Form, contrary to paragraph 5.8 of the Practice Direction. A detailed statement of facts and grounds were not filed until 8th July 2011 and the necessary documents were not lodged with the court until 26th July 2011.


Mr Giffin QC, on behalf of the defendant, and Mr West on behalf of Cory, submit that the Claim Form did not substantially comply with the rules until 26th July 2011 and therefore the application was not issued, as required by rule 54.5(1) (b), within 3 months of when the grounds to make the claim first arose. Alternatively, they submit, the application was not, in any event, made promptly as required by rule 54.5(1) (a). They resist any application on behalf of the Claimant for an extension of time.


I will return to the issue of delay in due course, but first I will turn to the Claimant's case on the substantive merits of the application for judicial review. I bear in mind that this is just an application for permission and therefore I am concerned with whether there is an arguable error of law in either of the Defendant's decisions.


First, the Claimant alleges that the members of the Cabinet fettered their discretion because of decisions taken by the Conservative group on the Council at a meeting three days before (so on 4th March 2011). The minutes of that meeting record a discussion as to the Incinerator Project as follows:

"Waste PFI contract. Henry Bellingham was invited to address the group on his alternative proposals to the Waste PFI contract. It was agreed that Henry would have 15 minutes in which to address the group followed by a Q and A session. Henry informed the group that he considered recycling to be the alternative to incineration and he asked that the group postpone any decision on the PFI contract pending the conclusion of the waste review. All members were then invited to ask questions of Henry on his alternative proposals following which Henry left the meeting.

The issue of the Waste PFI contract was then debated by the group at length following which a show of hands fully indicated that the group was in principle in favour of waste to energy incineration. The deputy leader then provided the group with a detailed briefing on the potential implications and commercial risks both positive and negative for three of the possible outcomes of this issue (proceeding with a vote at Cabinet on Monday, deferring any decision until after the local elections and abandoning the proposals in their entirety). It was noted that the briefing was produced in conjunction with the heads of law, finance and procurement in addition to Sharpe Pritchard. Following the briefing the group confirmed they felt the risk of not proceeding are balanced far greater than those of proceeding with a decision at Monday's Cabinet meeting. Councillor Dobson formally proposed that any decision be deferred until after May's elections. This proposal was seconded by Councillor Long and when taken to the vote was lost. It was agreed by the group that Cabinet Members local to West Norfolk could, if they wished, abstain any vote on this matter at the Cabinet meeting due to a conflict of interests ie the best interests of their division verses the best interest of Norfolk as a whole."


The legality of the exertion of party discipline and sanctions on councillors who belong to that party was considered by the Court of Appeal in R v Waltham Forest London Borough Council ex parte Baxter [1988] QB 419 . In that case the party group of councillors voted by a majority to support a resolution in the council to increase the rate by between 56.6 and 62%. In the earlier party caucus, several members had voted against giving support to the resolution, but nevertheless did vote in support of the resolution at the council meeting. The applicant ratepayers alleged that these councillors had surrendered their decision making to the group and accordingly had acted contrary to their legal duty.


The Divisional Court and Court of Appeal dismissed the claim. It was accepted that the party did exert discipline and councillors who did not tow the party line could be reprimanded, removed from the chairmanship of committees and, in last resort, have the party whip withdrawn. Nonetheless the Court said that political parties were a common feature of local (and indeed national) government. The private determination of a group policy in this context did not undermine statutory safeguards. As Sir John Donaldson MR said at page 424:

"So long as...

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