Agenda item

Decisions regarding Residual Waste Project

The Chief Executive has received notification that 5 members wish to call in the decisions made by the Cabinet on 11 November 2015 regarding the Residual Waste Project.


The signatories to the call-in are:

1. Cllr Bernie Fisher

2. Cllr Jeremy Hilton

3. Cllr David Brown

4. Cllr Simon Wheeler

5. Cllr Chris Coleman


A copy of the call-in notice is attached. A report responding to the call-in and setting out the matters to be considered by the committee will follow.


If the committee wish to discuss exempt information, consideration should first be given to whether the public should be excluded from the meeting by passing the following resolution:


That in accordance with Section 100 A (4) of the Local Government Act 1972 the public be excluded from the meeting for the business specified in item no. 4 because it is likely that if members of the public were present there would be disclosure to them of exempt information as defined in paragraph 3 of Part 1 of Schedule 12 A to the Act and the public interest in withholding the information outweighs the public interest in disclosing the information to the public.


55.1                A report responding to the call-in and setting out the matters to be considered by the committee had been circulated before the meeting. The decision called-in had been taken by the Cabinet on 11 November 2015 and related to the Residual Waste Project:


I.        Approval of a £17 million one-off financial contribution to the residual waste project, funded from revenue reserves to mitigate the cost of delay in the annual revenue budget for the project over 25 years.

II.        Authorises the Director of Communities and infrastructure to agree and sign the deed of variation restatement of the residual waste contract.


The signatories to call-in were


1.         Cllr Bernie Fisher

2.         Cllr Jeremy Hilton

3.         Cllr David Brown

4.         Cllr Simon Wheeler

5.         Cllr Chris Coleman




Outline of the Process


55.2                The Chairman invited the Monitoring Officer to set out the process for the committee to consider the call-in. By way of background it was outlined that the procedure rules were set out in detail in the constitution. In summary, any Cabinet decision could be called in within a prescribed timescale. Call-in should only be used in exceptional circumstances and be invoked only when there was evidence to suggest one or more of the prescribed grounds had been satisfied.


55.3                The Chief Executive, the Monitoring Officer and Acting Head of Legal Services had reviewed the call-in notice. The first ground for the call-in as identified within the notice that a ‘relevant matter(s) [had] not been taken into account by Cabinet’ had been identified as not being factually correct (as detailed on page 11 of the supplementary agenda pack). The Director would not sign the deed of variation until negotiations had been completed. It was established practice for directors to sign-off contracts once the detailed arrangements had been made. Therefore the ground outlined at ‘3’ in the call-in notice lacked validity. This had been accepted by the lead signatory to the call-in.


55.4                The committee was advised that members were to consider the ground at ‘4’ in the call-in notice which contained four aspects marked A, B, C and D. This ground was ‘7.02.3 – They should take proper consultation with others’.


55.5                The first stage was for the committee to decide whether they agreed wholly or partially with the ground for call-in. If they did agree with the ground, then there were four possible options for the committee to decide:


·    Support the Cabinet’s decision without comment

·    Make adverse comment about the way they reached their decision, but no adverse view on the decision itself

·    Propose changes to the decision – modifications or an alternative to achieve the same effect.

·    In exceptional circumstances, which the committee must determine, arrange for full council to review or scrutinise the decision.


Initially the lead signatory would be asked to speak followed by the Cabinet Member in response.


Consideration of the Call-in


55.6                Cllr Jeremy Hilton, as lead signatory of the call-in, outlined that the decision had been called in as he believed the Cabinet had not taken proper consultation with others.


Ø  He drew members attention to the points raised in the call-in notice and explained that he had long been concerned about the non-disclosure of the entire contract and had requested information on the detailed costs.

Ø  He stated that it was impossible for members to judge if the project provided good value for money without seeing that detail.


Ø  He asked to see details of the changing gate fees and the negotiations to revise these.

Ø  He expressed concern about how the arrangements were moving the project away from being a ‘design and build’ with revenue support to a project requiring £30m upfront of capital injection. This £30m included the initial £13m and the £17m relating to the Cabinet decision on 11 November 2015.

Ø  He suggested that the proposed long term savings as a result of the upfront £17m were not significantly high enough to justify the spend.

Ø  He raised questions as to how the £17m was to be financed and suggested that given the budget pressures this was would have wider implications.

Ø  He suggested that according to advice that he had received, there had been external borrowing to fund the project and so council policy had been ignored.


55.7                In response to questions raised as a result of Cllr Hilton’s statement, officers clarified a number of points clarifying factual inaccuracies:


Ø  While not going into private session to discuss the exempt papers that accompanied the cabinet decision, officers stated that the long term savings resulting from the upfront expenditure of £17m were significantly higher than the figures suggested by Cllr Hilton, referencing both the 2012 and 2015 reports.

Ø  It was stated that no borrowing had taken place and that this was shown clearly in the Statement of Accounts which had been audited and confirmed by the Audit and Governance Committee.

Ø  It was explained that Capital Receipts had been used to help fund the capital programme in 2014/15 not the Capital Fund, which was within the consultation and delegated powers. 


55.8                Cllr Ray Theodoulou, Deputy Leader of Council, addressed the committee in response to the call-in notice. He introduced his response outlined within the paper and emphasised the following key points:


Ø  He reminded members that the process of call-in was not to challenge whether the decision was right or wrong, but to consider whether the proper process had been followed.

Ø  While he would not spend time outlining the benefits of the decision, he did explain that the decision would lead to savings over the long term that could help relieve pressure in other areas such as vulnerable adults and children.

Ø  He referred to the advice from the Chief Executive outlined in the report regarding the lack of validity for the first ground raised in the call-in notice.

Ø  He explained that the call-in notice stated the constitution incorrectly. The notice stated ‘7.02.3 – They should take proper consultation with others’. The Cabinet Member explained that the constitution actually stated: ‘7.02.03- They should take proper account of consultation with others’.


Ø  He further explained that the obligation on the Cabinet was to consider and take account of any consultation which had been undertaken in making its decision. As no consultation in respect of the decision was required by law, and no consultation had taken place, there cannot have been any failure to take account of such consultation. He suggested then that as a result of this the remaining ground for call-in was not valid.

Ø  Addressing the concerns raised in the call-in notice, he explained that none of the points were grounds for call-in. The decision was not about whether the project went ahead or not, it was about finding ‘a cheaper way to pay’ the additional project costs which had arisen as a result of the delays and the revised project plan.


55.9                In response to questions raised as a result of Cllr Theodoulou’ s statement, officers clarified a number of points:


ØLegal clarification was sought and it was confirmed that there was no duty for Cabinet to consult on the decision.

ØThe principles of decision making within the constitution outlined that where consultation was undertaken, the decision maker should take proper account of that consultation.


55.10              The first stage of the process was for the committee to decide whether they agreed wholly or partially with the ground for call-in. The Chairman invited members to make comments before putting this question to them.


55.11  Cllr Hodgkinson formally proposed that the committee should ask full Council to review or scrutinise the decision. He suggested that the exceptional grounds to justify this were set out in sections 4A -4D in the agenda grounds. Furthermore, the significant reductions in local government funding over the coming years; asking the Council to spend another £17m was an exceptional ask. He stated that there had not been full disclosure of the detail around the funding and that he was still seeking assurances. He also explained that the Information Commissioner had stated that information should be released and that this had still not been done as the Council was appealing the decision. Finally, he outlined the importance of consideration of the political makeup of the Council and that account should have been taken of the considerations of all members across all parties.


55.12  Cllr Joe Harris stated that he would second the proposal on the basis that there should have been consultation with all members. In response, it was clarified that the first stage of the process was for the committee to decide whether it agreed with the ground for call-in before considering what options to follow. For that reason, members noted the comments raised and continued with the discussion.


55.13  During the discussion some members expressed concern that they did not feel that the lead signatory had provided any evidence to support the grounds for call-in. They argued that the concerns raised were in relation to the merits of the decision and did not demonstrate a flaw in the decision making process.


55.14  Some members suggested that given the large figure of £17m, Cabinet should have undertaken consultation. They reiterated the importance of full disclosure of the contract and felt that there needed to be the opportunity for full Council to offer challenge and ensure the confidence of the public.


55.15  There was some discussion around the financial impact of the decision with some members explaining that further delay could lead to increased costs.


55.16  Following the discussion, the committee was asked to vote on whether they agreed wholly or partially with the ground for call-in as set out in the call-in notice: ‘The matter contravened is 7.02.3 – They should take proper consultation with others (for reasons outlined at A, B, C, D).


On being put to the vote, the ground for call-in was not accepted on the Chairman’s casting vote. Therefore it was


RESOLVED to support the Cabinet decision. The decision could therefore be implemented immediately without being considered again by the Cabinet, the Leader of the Council or Cabinet Member.


Supporting documents: