Milton Keynes    see also FOI Material 2005

 Legal Dispute   From Lexology.Com   Reproduced in Full http://www.lexology.com/library/detail.aspx?g=b36529b1-67bb-4796-a0a9-fd5ca368523f

Milton Keynes Council v Leisure Connection Ltd

 Reynolds Porter Chamberlain LLP
Gavin Reese, Paul Lowe and Adrian Sargent

United Kingdom September 10 2009      [2009] EWHC 1541 (Admin)   

Milton Keynes Council has successfully appealed a magistrates’ court decision that a leisure centre business had no case to answer following a prosecution under section 34(1)(b) of the Environmental Protection Act 1990 (the EPA).

An environmental officer for the Council discovered a large amount of rubbish around the defendant’s rubbish compactor. The Council unsuccessfully pursued a prosecution in the magistrates’ court alleging the defendant had breached its duty under the EPA to prevent the escape of waste from its control. The Council appealed to the High Court where it was found that the defendant had not taken all reasonable measures open to it to prevent the escape of waste. On its own the presence of the compactor did not discharge the defendant’s duty under the EPA. The matter was sent back to the magistrates’ court to be heard again.

The case is a reminder to all businesses of the importance of controlling waste that they produce. The existence of waste disposal facilities will not on their own be sufficient. Organisations should ensure should they provide and subsequently manage and monitor their waste disposal systems.

TRADING LAW BULLETIN ISSUE NO. 61JUNE 2009 reported the same case. http://www.goughsq.co.uk/documents/tlb61.pdf 

CONTROLLED WASTE

 A Magistrates’ Court upheld a submission of no case to answer in a prosecution against a leisure centre
operator. There was no dispute that the rubbish had been produced by the defendant and the Magistrates said that
there was no evidence it had undertaken any underlying measures to prevent the escape of the controlled waste but
no reasonable Tribunal could infer a failure to comply with the statutory obligations. The Divisional Court held that the
only reasonable inference open was that the local authority had established a prima facie case in that the defendant had
failed to take all reasonable steps to prevent the escape 

(Milton Keynes Council v. Leisure Connection Limited, 5thJune 2009).

From Milton Keynes Council Cabinet Minutes 21 Jul 2009 http://cmis.milton-keynes.gov.uk/CmisWebPublic/Binary.ashx?Document=27600 

Termination of the Leisure Connection Contract

The existing management contract with Leisure Connection is due to expire in
2011. Legal Services has confirmed that there is a termination clause in the
contract that allows the Council to terminate the contract with four months’
written notice. Compensation will not arise out of the termination except to the
extent that Leisure Connection can prove it has made a capital investment in
Bletchley Leisure Centre, which has not yet been repaid by the Council. In this
event, the Council may be required to fairly and reasonably repay any
undepreciated investment which it owes to Leisure Connection.

Contract Commencement

The new management contract is due to start on 1st September 2009 with the
direct management of the community centres and sports grounds as the first
phase so that the season for the sports grounds and regular autumn bookings
can be managed as one. The new Bletchley Leisure Centre, once completed
will be handed over to the management operator in Mid November 2009,
however there will be a significant mobilisation plan implemented particularly
as regards the new leisure centres operations, marketing and general setting
up for public access and use.

Despite having leisure contracts with several organisations Milton Keynes Council has skimped on the oversight of leisure centre contracts. This might explain why the 2005 FOI requests about the performance of LC in Milton Keynes learned more from an Environmental Health report than anything else sent. It appears no council committee receives even an annual report on the performance of leisure contracts.

As well as the worrying  Environmental Health report there are other indications that all has not been sweetness and light in local leisure services. An internal audit report on "Leisure Community Properties" published in July 2005 said:

" It is noted that a key member of the team was absent due to long term sickness which did impact upon the consistent monitoring of Leisure Centres. Furthermore, Managers at one particular Leisure Centre have not been fully co-operative with Leisure Services and Audit acknowledge the new approach adopted in ensuring that this Leisure Centre is meeting the needs of residents."

There is no reason to assume the company in question is LC and I am happy to confirm this if either the Council or LC write or email a denial. Similarly, if the other managements let me know it was not them, I will include this information. 

It seems very unfair that those who co-operated come under suspicion in order to protect the name of the guilty. This happens again in another part of the report.

"Benchmarking is yet to be completed due to certain Leisure Centres questioning the process. There are expectations that this will be completed by the third quarter of 2005."

The report also says "Leisure Centres have not been challenged to ensure that actual expenditure of the grant awarded matched the original intentions of both parties." 

The anonymity in  the audit report might have something to do with what featured in the December 2005  "Medium Term Service Plan" for Internal Audit. "The Freedom of Information Act will play a large role in altering the culture of the service and its relationship with clients. Reports that must be published will place greater importance on maintaining good relationships with clients to avoid Audit being perceived as an 'enemy'."

While the reference to clients presumably means the council and its departments, the scope would seem to have been extended, at least in the leisure audit, to sparing the blushes of a contractor. While this might make for easier relationships in Milton Keynes, it does nothing to alert other councils to the issues they might face with a potential contractor. Is such concealment in the spirit of the FOI Act?

The wider public interest would be better served by a policy that says those contractors found not to have done what is expected of them will be named. 

Paul Burns