QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF HOMESUN HOLDINGS LIMITED, FRIENDS OF THE EARTH LIMITED AND SOLAR CENTURY HOLDINGS LIMITED||Claimant|
|SECRETARY OF STATE FOR ENERGY AND CLIMATE CHANGE||Defendant|
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
Mr N Pleming QC and Mr D Sinclair (instructed by ? ) appeared on behalf of Friends of the Earth Limited
Mr E Robb (instructed by Prospect Law) appeared on behalf of Solar Century Holdings Limited
Me P Nicholls and Mr J Cornwell (instructed by treasury Solicitors) appeared on behalf of the Defendant
Crown Copyright ©
"41. Power to amend licence conditions etc: feed-in tariffs
(1) The Secretary of State may modify ...
(b) the standard conditions incorporated in licences under those provisions by virtue of section 8A of that Act~...
(2) The Secretary of State may exercise the power in subsection (1) for the purpose only of—
(a) establishing, or making arrangements for the administration of, a scheme of financial incentives to encourage small-scale low-carbon generation of electricity~...
(3) Modifications made by virtue of subsection (1) may include—
(a)provision requiring the holder of a supply licence to make a payment to a small-scale low-carbon generator, or to the Authority for onward payment to such a generator, in specified circumstances;
(b)provision specifying how a payment under paragraph (a) is to be calculated;
(c)provision for the level of payment under paragraph (a) to decrease year by year in accordance with a formula published, or to be published, by the Secretary of State;
(d)provision about the circumstances in which no payment, or a reduced payment, may be made to a small-scale low-carbon generator ...
(4) In this section- ...
'small-scale low-carbon generation' means the use, for the generation of electricity, of any plant—
(a) which, in generating electricity, relies wholly or mainly on a source of energy or a technology mentioned in subsection (5), and
(b) the capacity of which to generate electricity does not exceed the specified maximum capacity.
'small-scale low-carbon generator' means an owner of plant used or intended to be used for small-scale low-carbon generation, whether or not the person is also operating or intending to operate the plant ...
(5) The sources of energy and technologies are— ...
(d) photovoltaics ...
(6) The Secretary of State may by order modify the list of sources of energy and technologies for the time being listed in subsection (5) ...
42. Power to amend licence conditions etc: procedure.
(1) Before making a modification, the Secretary of State must consult—
(a)the holder of any licence being modified.
(b)the Gas and Electricity Markets Authority, and
(c)such other persons as the Secretary of State considers appropriate.
(2) Subsection (1) may be satisfied by consultation before, as well as by consultation after, the passing of this Act.
(3) Before making modifications, the Secretary of State must lay a draft of the modifications before Parliament."
"(5) If no such resolution is made within that period, the Secretary of State may make the modifications in the form of the draft.
43. Feed-in tariffs: supplemental
(1)A modification under section 41 of part of a standard condition of a licence does not prevent any other part of the condition from continuing to be regarded as a standard condition for the purposes of Part 1 of the Electricity Act 1989.
(2) Where the Secretary of State makes modifications under section 41(1)(b) of the standard conditions of a licence of any type, the Gas and Electricity Markets Authority ('the Authority') must—
(a) make the same modification of those standard conditions for the purposes of their incorporation in licences of that type granted after that time, and
(b) publish the modification.
(3)The Secretary of State may by order—
(a)make provision conferring functions on the Authority or the Secretary of State (or both) in connection with the administration of any scheme established by virtue of section 41 ... "
" ... the later of the date:
(ii) of receipt by [an electricity supplier] of [an owner's] request for ... Registration ...
(b) on which the Eligible Installation is
"On or before 1st March immediately before the beginning of each FIT year (except FIT year 1), the Authority must publish ... in accordance with clause 3.3 of Part 1 of Schedule A to Standard Licence Condition 33 [the FIT payment rate table which is to apply for that FIT year subject to the Secretary of State substituting a new FIT payment rate table in Schedule A to standard licence condition 33]."
"A consultation on the comprehensive review will be launched this summer with intention that resulting changes to the scheme take effect from 1st April 2012, unless the review itself reveals a need for greater urgency. As with the fast-track review, the Coalition Government will not act retrospectively and any changes to generation tariffs resulting from the comprehensive review will only affect new entrants into the FITs scheme from that date. Installations which are already accredited for FITs at the time the changes come into force will not be affected."
"44. Because of the urgency of the budgetary concerns, and the aim of ensuring that the FIT scheme continues to be available to households and others, we are proposing that, subject to the outcome of the consultation and the Parliamentary scrutiny required by the Energy Act 2008, the new tariffs will come into force from 1 April 2012 but will apply from that date to all new PV installations with an eligibility date of on or after 12 December 2011 (the 'reference date'). Existing generators with an eligibility date before the reference date will not be affected by the proposed change in tariffs.
45. The effect of this is that, depending on the result of the consultation, installations with an eligibility date that falls between the reference date and 31 March 2012 will receive the current tariff for that period only, and will then move to the new tariff from 1 April 2012. Those installations with an eligibility date on or after 1 April 2012 will start immediately on the new tariff."
The first issue
"32. Judicial review, generally, is concerned with actions or other events which have, or will have, substantive legal consequences: for example, by conferring new legal rights or powers, or by restricting existing legal rights or interests. Typically there is a process of initiation, consultation, and review, culminating in the formal action or event ('the substantive event') which creates the new legal right or restriction. For example, the substantive event may be the grant of a planning permission, following a formal process of application, consultation and resolution by the determining authority. Although each step in the process may be subject to specific legal requirements, it is only at the stage of the formal grant of planning permission that a new legal right is created.
33. Judicial review proceedings may come after the substantive event, with a view to having it set aside or 'quashed'; or in advance, when it is threatened or in preparation, with a view to having it stayed or 'prohibited'. In the latter case, the immediate challenge may be directed at decisions or action which are no more than steps on the way to the substantive event."
The second issue
"Establishing, or making arrangements for the administration of, a scheme of financial incentives to encourage small-scale low-carbon generation of electricity."
"Subsection (1) gives the Secretary of State the power to modify electricity supply and distribution licences (as well as standard conditions incorporated in licences, documents maintained in accordance with the condition of licences or agreements that give effect to those documents) to introduce a scheme (that will be known as 'feed-in tariffs') to encourage small-scale low-carbon generation of electricity."
"Subsection (2)(a) states that the modifications in subsection (1) may be made for establishing feed-in tariffs for small-scale low-carbon electricity generation, or for making arrangements for the administration of such a scheme."
The third issue
"(1) Where the appellant seeks permission from the appeal court it must be requested in the appellant's notice. [That is obvious].
(2) The appellant must file the appellant's notice at the appeal court within –
(a) such period as may be directed by the lower court [That is this court] (which may be longer or shorter than the period referred to in sub-paragraph (b)); or
(b) where the court makes no such direction, 21 days after the date of the decision of the lower court that the appellant wishes to appeal."
"A, R (on the application of) v East Sussex County Council  EWHC 585 (Admin). No indication of the circumstances in which this order was deemed appropriate. It would be in the circumstances appropriate -- fair, just and appropriate -- to depart from the typical starting point and to award the claimants two sets of costs."