The proposed changes to the support for UK large-scale solar farms could immediately result in a legal challenge, Solar Power Portal understands.
A number of industry sources have already indicated that the unscheduled review would be challenged all the way. A similar stand taken against changes to the rooftop feed-in tariff (FiT) saw the supreme court rule the cuts to be unlawful while the department was sued for £132 million in damages.
Edmund Robb is a barrister and director of Prospect Law, the firm representing the claimants in that case. He told Solar Power Portal that while the two cases are different, there are valuable lessons to take from the challenge on retrospective changes to FiTs.
“DECC has a track record of introducing changes which are susceptible to challenge in the courts. The decision on this review of ROCs needs to be examined very closely,” he said.
“If the decision is open to challenge, the most effective way forward, as proved with our challenge on FiTs, is an application to judicially review the decision. If the decision is either unlawful, in that it’s not in accordance with any statutory regime, or has been introduce by some procedurally flawed method or is unreasonably made, in the legal sense, then it is open to a high court judge to quash the decision,” Robb said.
The FiT case is partly based on Article 1 of the First Protocol of the European Convention on Human Rights – that every person is entitled to peaceful enjoyment of his possessions.
The allocation of the FiT to a particular install could be considered a possession. Ofgem lost a case after a company that had its RO accreditation of biogas generators removed claimed loss of its possessions under the human rights act.
Confirmation of the review of the RO had been expected before the end of this week but is now anticipated to take place after the bank holiday weekend. Climate change minister Greg Barker is scheduled to take part in a UN climate conference in Abu Dhabi on Sunday.
Speaking at the sidelines of the Large Scale Solar UK Conference, one industry source said that the industry was bracing itself for a “severe cut”.
New EU state aid guidelines call on member states to force onshore wind and large-scale solar to compete for support. Onshore wind currently receives 0.9 ROCs. Large-scale solar will receive 1.4 until April 2015 and a 0.1 reduction for each of the final two years of the scheme.