Further Information wrongly disregarded in Renewable Heat Incentive accreditation contrary to statutory guidance

The Northern Ireland Court of Appeal has allowed an appeal by a woodchip manufacturer against the refusal to accredit their facility for the Renewable Heat Incentive.

To encourage renewable heat generation subsidies had been introduced for heating space, liquids or processes using renewable sources.  Green Belt (NI) Limited had applied to Ofgem for accreditation for 10 boilers to dry woodchips.  An issue arose as to whether the woodchips would be sold, and so used productively rather than as a means of generating subsidies.

The statutory guidance made under the Renewable Heat Incentive Scheme Regulations (Northern Ireland) 2012 provided for an original decision and then a 'formal review', both by Ofgem.  An applicant who was dissatisfied after the formal review could ask the Department for the Economy for a statutory review.  The guidance said that the applicant could provide further information in the formal review.

The initial application having been refused, Green Belt (NI) submitted further information that woodchip sales were underway, but their formal and statutory reviews were refused.  Judicial review proceedings were dismissed by the High Court but the challenge has been allowed by the Court of Appeal and the decision of the Department, following the statutory review undertaken by Ofgem, quashed: [2019] NICA 47.

The Court held that Ofgem and the Department were required to consider any further information which had been submitted at the formal review stage.  Stephens LJ and Morgan LCJ held that the Department had been wrongly advised not to take the further information into account and consequently had acted unlawfully in not doing so.  This was found to render the decision at statutory review stage Wednesbury unreasonable, making it unnecessary to make a finding on breach of procedural expectation.  Sir Donnell Deeny dissented, concluding that the information had been considered.

Richard Harwood OBE QC, who is also a member of the Bar Library, appeared for Green Belt (NI), with Duncan Sinclair also acting for them at the early stages.  They were instructed by Andrew Ryan of TLT NI LLP.