The Department of Energy and Climate Change (DECC) has lost its latest appeal in a case brought to the High Court by solar companies seeking damages from changes to renewable energy subsidies.
On 28th April, the Court of Appeal published a judgement which backed the position of 19 solar PV businesses affected by cuts to the feed-in tariff (FITs) regime. The case is based around DECC’s proposal in October 2011 to halve solar FITs for domestic projects from up to 43.3p per kWh to up to 21p per kWh. The High Court and Court of Appeal ruled the proposals in October 2011 ‘legally flawed’ following a judicial review brought by a group of 19 solar companies.
The group of companies received backing from green group Friends of the Earth over the legal challenge. DECC’s appeal to the Supreme Court was rejected and it subsequently postponed the reduction of the tariff by three months. However, the solar companies argued that by the time this proposal was ruled unlawful many of the installations that would otherwise have been completed by 1st April were abandoned. This caused the companies to suffer “substantial losses” for which they are seeking damages against DECC, on the grounds that the department interfered with their right to peaceful enjoyment of their possessions under article 1 of the first protocol of the European Convention on Human Rights.
The claimants include Breyer Group, Free Power for Schools, Touch Solar and Homesun Holdings. Collectively the 19 companies are claiming damages of approximately £195 million, with individual claims ranging from £233,000 to more than £27 million. A trial will now proceed, following the Court of Appeal’s decision, which will establish how much compensation exactly the companies will receive.
There is still an opportunity for DECC to file an appeal to the Supreme Court. A spokesperson for DECC said: “We will now consider the judgment in full. As the legal case is ongoing it would be inappropriate to comment further”. In a separate case heard in November 2014, the High Court dismissed a judicial review of DECC’s decision to close its Renewables Obligation scheme to large solar installations from April 2015, two years earlier than expected.