Renewables in UK Law

The RO scheme provides financial incentives for the creation of generation capacity from renewable sources. It does this in the form of Renewables Obligation Certificates ("ROC"). These are certificates issued to operators of accredited renewable generating stations in respect of the eligible renewable electricity that they generate.

To be eligible within the RO scheme electricity must be generated by a station that has been accredited by Ofgem as capable of generating renewable electricity in respect of which ROCs may be issued. The RO scheme is hence a demand led scheme with all generation satisfying the relevant conditions being accredited. For solar PV it is a relevant condition that the generating station must exceed 50 kilowatts in size.

That conclusion seems to me crucial to resolution of this appeal. Modification of the FIT Payment Rate, in respect of installations becoming eligible prior to the modification, would have a retrospective effect. Because the Scheme fixes a rate by reference to the year the installation becomes eligible, reduction of that rate (apart from fluctuations in RPI) would have a retrospective effect.

The Inspector had before him the written and oral evidence of the respondents' experts and the written submissions of CCW. As the respondents recognised, the central question for the Inspector was whether the particular harm, or risk of harm, associated with the development was sufficient to justify refusal. They accept that the Inspector needed to ascertain the degree of harm the project would cause, taking into account the proposed mitigation measures.

That conclusion has, of course, to be read against the detailed findings that, apart from All Angels, insofar as there was any harm at all, it was "minimal" or "minor". The impact on the one building was less than substantial, and even if special weight were attached to that impact, the overall negative effects were limited and could not outweigh the benefits of the development.

In my judgment, in order to give effect to the statutory duty under section 66(1), a decision-maker should accord considerable importance and weight to the "desirability of preserving … the setting" of listed buildings when weighing this factor in the balance with other 'material considerations' which have not been given this special statutory status.

The final ingredient is the question of prejudice to good administration. As Richards J observed in Gavin it is perhaps of secondary significance to the issues, for instance, of hardship or prejudice to the interested parties. He also, correctly, observed that the interests of good administration cut both ways. In this case, on the one hand, there is the obvious need for certainty and reliability in decision making.