(a)

whilst withdrawing from the Joint Working Agreement (JWA) and the Project Contract was theoretically possible, it would be prohibitively expensive and the levels of compensation (potentially to be claimed by MVV Umwelt or one of the other partner authorities or the loss of PFI credits) could exceed £400 million

(b)

one of the local authorities withdrawing from the contractual arrangements would risk one or more of the other parties seeking to challenge by way of judicial review

(c)

a decision to withdraw would need to be proportionate, robust and based on the “Wednesbury principles”

(d)

withdrawal from the JWA and/or the Project Contract would not necessarily stop the construction of the facility at North Yard

(e)

the Council would lose its membership of the South West Devon Waste Partnership and, therefore, lose any input regarding operational or other matters

(f)

the Council would need to seek other arrangements for the disposal of the city’s waste

(g)

theWednesbury principles were a matter of public law and provided that local authorities decisions must be rational and take financial consequences into account.  In this case, the potential for incurring compensation of over £400 million with no reason for withdrawal would make a decision to withdraw irrational or unreasonable.

(h)

regarding health impact and the future introduction of more rigorous standards:

·         prior to the contract being finalised, advice had been sought from the Primary Care Trust and the Health Protection Agency and the committee report had advised the adoption of a cautionary approach.  In the S106 agreement, the Council’s officers asked MVV to provide air monitoring stations so that air quality could be monitored independently and MVV had to agree an air management plan with the authority before operations could commence.

·         if more rigorous environmental regulations were imposed in the future, the contract included provision for the nature of the change to be appraised and the SW Devon Waste Partnership would work through the cost and implementation with MVV.

(i)

it wasn’t possible to detail the potential losses of over £400 but they would include £177 million of PFI grant, the MOD’s loss of discounted energy supplies; and additional costs to be borne by the other partners including local authorities and MVV.

(j)

the Council’s net revenue budget was £200 million so the potential consequence would be that the Council would stop providing services for a period of two years.  The Council had set aside the sum of £11 million for unprecedented events which would be insufficient or it could approach the government for assistance.  Failing that, it would have to seek to borrow the appropriate sum.

(k)

Cabinet made the decision to approve the final business case in February 2011 and the decision was made by the then Leader, Councillor Mrs Pengelly and Councillors Fry, Ian Bowyer, Brookshaw, Jordan, Mike and Sam Leaves, Monahan and Mrs Watkins.  They considered a final business case (redacted) and the report from the joint scrutiny committee.  The approval of the unredacted version of the business case was delegated to this Council’s Chief Executive in consultation with the relevant officers from the other two local authorities.

(l)

the business case had been drafted according to a very prescriptive DEFRA template and included much more detailed information than would normally be considered by the Cabinet

(m)

the information considered by the Cabinet was sufficient to allow them to agree that the decision was within the affordability criteria.

(n)

redacted meant not complete; that certain, commercially sensitive elements had been removed.

(o)

each authority’s executive had agreed to make the decision in public and delegate the final business case decision, including the private, commercially sensitive information to the Chief Executive.