Forgrave's (Thomas) Application for Judicial Review and in the matter of the Northern Ireland (Regional Rates and Energy) Act 2019
| Jurisdiction | Northern Ireland |
| Neutral Citation | [2021] NIQB 92 |
| Date | 14 October 2021 |
| Court | Queen's Bench Division (Northern Ireland) |
1
Neutral Citation No: [2021] NIQB 92
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: HUM11634
Delivered: 14/10/2021
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
___________
QUEEN’S BENCH DIVISION
(JUDICIAL REVIEW)
___________
IN THE MATTER OF AN APPLICATION BY THOMAS FORGRAVE FOR
LEAVE TO APPLY FOR JUDICIAL REVIEW
AND IN THE MATTER OF THE NORTHERN IRELAND (REGIONAL RATES
AND ENERGY) ACT 2019
___________
Gerald Simpson QC and Richard Shields (instructed by A&L Goodbody) for the
Applicant
Tony McGleenan QC and Paul McLaughlin QC (instructed by the Departmental
Solicitor’s Office) for the Respondent
___________
HUMPHREYS J
Introduction
[1] The ramifications of the ill-fated Renewable Heat Incentive (‘RHI’) Scheme,
introduced in Northern Ireland in 2012, continue to be felt. The Scheme sought, as
its name suggests, to incentivise the use of renewable energy to produce heat, but
instead has become a watchword for ineptitude in public administration. The fallout
from the creation and operation of the Scheme was at least partially responsible for
the collapse of the devolved institutions in January 2017.
[2] Shortly thereafter an independent public inquiry, chaired by
Sir Patrick Coghlin, was announced which was to examine the design, governance,
implementation and operation of the RHI Scheme. The inquiry reported in March
2020 and made a series of detailed findings and recommendations.
[3] In February 2017 the Department for the Economy made the Renewable Heat
Incentive Scheme (Amendment) (Northern Ireland) Regulations 2017 which
amended the 2012 Regulations, introducing the concepts of ‘tiering’ and ‘capping’
into the payments received by scheme members.
2
[4] The 2017 Regulations were the subject of an application for judicial review
brought by the Renewable Heat Association Northern Ireland Limited, an
organisation representing scheme members and DA, one such member. The judicial
review challenge concerned the legality of these Regulations. Judgment was handed
down by Colton J in December 2017 (Re RHANI [2017] NIQB 122), to which I will
refer in due course, dismissing the application on all grounds. This is the subject of
an appeal to the Court of Appeal which has been adjourned pending the outcome of
the instant judicial review proceedings.
[5] Like Colton J, I commend the industry and quality of the counsel and
solicitors on both sides for the manner in which this case was presented.
Background
[6] On 26 March 2019, with the Northern Ireland institutions still suspended, the
Westminster Parliament passed the Northern Ireland (Regional Rates and Energy)
Act 2019 (‘the 2019 Act’).
[7] The applicant seeks a declaration from the court, pursuant to section 4 of the
Human Rights Act 1998, that the operative parts of the 2019 Act, namely section 3
and the Schedule, are incompatible with the rights which he enjoys pursuant to
Article 1 of Protocol 1 (‘A1P1’) of the European Convention on Human Rights
(‘ECHR’). The application was dealt with by way of a ‘rolled-up’ hearing.
[8] The applicant is an award-winning poultry farmer who has carried on
business in County Antrim for some 30 years. His farm produces in the region of
one million chickens per year. He became an accredited member of the RHI Scheme
on 9 March 2014 and thereafter was entitled to periodic support payments in
accordance with the tariff set out in the 2012 Regulations. This involved a payment
of 5.9 pence per kilowatt hour (‘kWh’) in respect of each 99 kWh biomass boiler for a
tariff lifetime of 20 years from the date of accreditation.
[9] The tariffs provided for in the 2012 Regulations were reduced, in turn, by the
2017 Amendment Regulations (the subject matter of Re RHANI) and the
Northern Ireland (Regional Rates and Energy) Act 2018 (‘the 2018 Act’). These
pieces of legislation led to a Tier 1 rate of 6.5 pence per kWh and a Tier 2 rate of 1.5
pence per kWh.
The Grounds for Judicial Review
[10] The 2019 Act effects further changes to the tariffs payable under the Scheme.
Tier 1 is payable at the rate of 1.7 pence per kWh for the first 1314 hours and
thereafter, Tier 2, is payable at the rate of 0 pence per kWh.
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The Renewable Heat Association and Another Application for Judicial Review and in the matter of an application for leave to apply for Judicial Review by Thomas Forgrave
...NIQB 122). Humphreys J granted leave but dismissed the second judicial review challenge in a judgment delivered on 14 October 2021 ([2021] NIQB 92). [4] The history of this case is comprehensively examined in the decision of each judge at first instance and so we need not repeat it here. Th......