Summary of Judgment - In re Thomas Forgrave (RHI Scheme)
| Jurisdiction | Northern Ireland |
| Neutral Citation | Summary of Judgment - In re Thomas Forgrave (RHI Scheme) |
| Court | Court of Judicature (NI) |
| Date | 14 October 2021 |
Judicial Communications Office
1
14 October 2021
COURT REJECTS CHALLENGE TO RHI SCHEME
LEGISLATION
Summary of Judgment
Mr Justice Humphreys today dismissed a judicial review brought by a poultry farmer who had
signed up to the RHI Scheme in 2014 and was challenging the changes to tariffs introduced in 2019.
The Renewable Heat Incentive Scheme (“RHI Scheme”) was introduced with the primary objective
of environmental protection and contribution to towards achieving the UK’s renewable energy
target. The EU Commission granted approval for State Aid in June 2012 and the scheme was
introduced on 1 November 2012 by the RHI Scheme Regulations (NI) 2012 (“the 2012 Regulations”).
The regulations provided that periodic support payments would be payable for 20 years and that the
tariff would be fixed when the installation was accredited.
Thomas Forgrave (“the applicant”), became an accredited member of the RHI Scheme in March 2014.
The tariffs payable to the applicant were reduced by the RHI Scheme (Amendment) Regulations (NI)
2017 (“the 2017 Regulations”) which introduced the concepts of “tiering” and “capping” into the
payments received by scheme members. Further changes to the tariffs were introduced by the
Northern Ireland (Regional Rates and Energy) Act 2019 (“the 2019 Act”) which came into force on 1
April 2019. The applicant invested £508,000 in biomass boilers, boiler houses, installation works
and associated costs and funded these through bank loans. There was some dispute between the
applicant and the respondent about his outgoings and projected incomes but the court outlined that
under the terms of the 2012 Regulations the applicant was entitled to an annual payment of £26,000
per boiler before tax which reduced under the 2019 Act to £2,200 per boiler. The applicant contented
that this gave rise to a risk of insolvency for his business.
The Applicant’s case
The applicant sought a declaration that the operative parts of the 2019 Act (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 case was made that the
entitlement to payment of the tariff in the 2012 Regulations was a possession within the meaning of
A1P1 of ECHR and that the 2019 Act interfered with, or deprived, the applicant of this possession in
a manner which was not in the general interest and not proportionate.
The court held that the payment of the tariff under the 2012 Regulations for the 20 year period
referred to in that legislation would “fall squarely within the definition of “possession” in A1P1”.
The court then considered whether the State’s interference with this possession could be justified in
accordance with the four stage test of proportionality:
Is the legislative objective (legitimate aim) sufficiently important to justify limiting a
fundamental right;
Are the measures which have been designed to meet it rationally connected to it;
Are they no more than are necessary to accomplish it; and
To continue reading
Request your trial