The Renewable Heat Association Northern Ireland and Another's Application
| Jurisdiction | Northern Ireland |
| Judge | Colton J |
| Judgment Date | 21 December 2017 |
| Neutral Citation | [2017] NIQB 122 |
| Court | Queen's Bench Division (Northern Ireland) |
| Date | 21 December 2017 |
1
Neutral Citation No: [2017] NIQB 122
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: COL10477
Delivered: 21/12/2017
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
________
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
________
2017 No. 11901/01
IN THE MATTER OF AN APPLICATION BY THE RENEWABLE HEAT
ASSOCIATION NORTHERN IRELAND LIMITED AND ANOTHER
FOR JUDICIAL REVIEW
AND IN RE THE RENEWABLE HEAT INCENTIVE SCHEME (AMENDMENT)
REGULATIONS (NORTHERN IRELAND) 2017 MADE ON 24 JANUARY 2017
BY THE DEPARTMENT FOR THE ECONOMY
_________
Counsel for the Applicants: Mr Gerald Simpson QC
Mr Richard Shields
Counsel for the Respondent: Mr McGleenan QC
Mr Paul McLaughlin
INDEX
Paragraphs
A. INTRODUCTION 1-6
B. BACKGROUND CHRONOLOGY
(i) The Directive 7-9
(ii) The Consultants (CEPA) Report 10-16
(iii) Consultation 17-21
(iv) The Energy Act 22-24
(v) Notification for State Aid 25-34
(vi) CEPA Addendum Report 35-36
(vii) Business case 37-49
(viii) State Aid approval 50-51
(ix) The 2012 Regulations 52-57
C. THE OPERATION OF THE SCHEME 58-78
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D. THE COMPTROLLER AND AUDITOR
GENERAL (CAG) REPORT 79-85
E. THE DETI INTERNAL AUDIT REPORT 86-90
F. THE PWC REPORT 91-97
G. THE DETI RESPONSE AND THE PATH TO THE
2017 REGULATIONS 98-144
H. THE APPLICANT’S CHALLENGE
(i) Introduction 145
(ii) The vires issue 146-209
(iii) Article 1 Protocol 1 210-222
(iv) Substantive legitimate expectation 223-234
(v) Procedural legitimate expectation 235-247
(vi) Breach of Standing Order 43 248-257
I. THE RESPONDENT’S JUSTIFICATION
(i) Introduction 258-275
(ii) The financial evidence 276-368
(iii) State Aid approval 369-408
J. CONCLUSION 409-445
____________
COLTON J
INTRODUCTION
[1] On 22 October 2012 the Department of Enterprise, Trade and Investment
made The Renewable Heat Incentive Scheme Regulations (Northern Ireland) 2012 in
exercise of the powers conferred on it by Section 113 of the Energy Act 2011.
[2] The Regulations provided for the payment of a set tariff for a fixed period of
20 years to participants in what was known as the Renewable Heat Incentive Scheme
(“RHI”) in respect of installations which had been accredited under the Regulations.
The purpose of the scheme was to encourage the use of renewable energy
consumption. Participants were provided with a financial incentive to convert from
the use of heating installations which used fossil fuels to ones which use biomass
fuels. The Regulations applied to non-domestic use.
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[3] On 1 April 2017 the Department for the Economy made the Renewable Heat
Incentive Scheme (Amendment) Regulations 2017 which amended the 2012
Regulations and were again made in exercise of the powers conferred on the
Department by Section 113 of the Energy Act 2011. The effect of the 2017
Regulations was to change the way in which tariffs would be calculated by
providing for “tiering” which resulted in a lesser rate being paid after a defined
usage and by the introduction of a “cap” on the amount of heat usage eligible for
payment under the scheme. This resulted in a reduction in the amount of tariff
payable to the second applicant and for the majority of those accredited under the
2012 Regulations.
[4] The first applicant is an organisation which represents owners of accredited
installations under the 2012 Regulations. The second applicant (DA) is an individual
who owns four medium sized biomass boilers (99kWh) which were accredited under
the 2012 Regulations. They challenge the legality of the Department’s decision to
make the 2017 Regulations on numerous grounds.
[5] Before considering each of the grounds of challenge it is necessary to set out
the background to the introduction of the 2017 Regulations. I do not propose to set
out a comprehensive critique of the history of the Renewable Heat Incentive Scheme.
That is the task of a different inquiry. Rather I set out the background so that the
context of the dispute can be understood and to highlight those matters which
ultimately inform the court’s determination of the issues in this judicial review.
[6] I would like to place on record my appreciation to counsel and solicitors
involved in this case for the manner in which it was prepared and presented. Mr
Gerald Simpson QC appeared with Mr Richard Shields for the applicants. Mr Tony
McGleenan QC appeared with Mr Paul McLaughlin for the respondent. The court
was presented with excellent written and oral submissions. The respective parties
were well served by their lawyers.
BACKGROUND/CHRONOLOGY
THE DIRECTIVE
[7] The genesis of the scheme lies in the Renewable Energy Directive 2009/28/EC
which imposed legally binding obligations upon Member States to ensure that by
2020 they achieved targets for the total amount of energy consumption derived from
renewable sources. The methods permitted by the Directive for Member States to
achieve the target include the use of financial incentives (Article 3(3)).
[8] Within the United Kingdom each of the devolved administrations agreed a
separate target taking account of the renewable energy consumption levels within
each area and the potential for change. In Northern Ireland a target of producing
10% of its heat from renewable sources by 2020 was included within the strategic
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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
...rights challenge based on A1P1 of the ECHR. [3] Colton J dismissed the first challenge in a judgment delivered on 21 December 2017 ([2017] 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]......
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Forgrave's (Thomas) Application for Judicial Review and in the matter of the Northern Ireland (Regional Rates and Energy) Act 2019
...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 wh......