The judgement

[TedM]

Posting in here as I am starting to get more than a little paranoid about DECC (but GCHQ can probably read this anyway!)

Having spent a couple of hours reading the judgement here are my thoughts.

Firstly, Moses J has made a few mistakes in his ruling. They are pretty minor technical issues and I don't think they change anything of substance in his findings.

1. At 24 he says:

The eligibility date is identified. For example, it may be the date when tests to demonstrate capability of the installation were completed, or, if later, when a FIT licensee received a written request from a FIT generator for a Microgeneration (MCS) Certificate.

Well, we know that isn't right. The FIT licensee receives a written request for a FIT contract not an MCS certificate. That's issued by the installer via Gemserv. But not a big issue.

2. At 39 (iv) he says:

It is of note that the rate introduced by the modification of 21 July 2011 increased the rate payable in respect of solar PV installation at a capacity of 4 kW or less, in line with inflation;

No they didn't. The change he is referring to was the last amendment by DECC that changed rates for >50kW PV. The changes he should be referring to here would have been dated back in March 2011. Or if he does mean these then the sub 4kW rates did not change.

3. At 47 he says:

The consultation ended on 31 October 2011.

No, that's when it started. He perhaps meant to say 23rd December 2011.


4. The entire judgement ignores the DECC release of Plan B on 19th January. This is perhaps normal as it would not have been presented to the court (sitting on the 13th January) for their consideration.


I had hinted before that Moses J has some form in giving the government a hard time for mistakes and he seems to have gone to town on this one. But he has used the changes that DECC lawfully made last summer, to cut tariffs to > 50kW PV, to act as a something of a precedent for how all changes should proceed. This may be the angle that DECC will attack in their appeal to the Supreme Court.

Reading between the lines of what DECC seem to be trying to achieve - the big problem is if today's judgement is overturned in the Supreme Court then all bets are off. Even last year's installs at 43.3p guaranteed for 25 years may not be able to stand. The floodgates will be opened for any retrospective changes that DECC dream up. I'm not saying they would do this, but the path would have been laid for them to do it.

Also queues are forming of disgruntled projects that cancelled last November to sue DECC for losses. This could cost the government £--- millions. This might be the main reason why DECC now feel they have to fight to the bitter end.

One small point I have to disagree with Bruce's earlier comments on is regarding the effect this judgement has on the 3rd March deadline.

At 45 Moses says:

Nonetheless, anyone choosing to achieve eligibility in relation to installation between 12 December 2011 and 1 April 2012 gains a right to a fixed rate by reference to FIT Year 2 for 25 years.

That does suggest that once a FIT rate has been set for a specific FIT year that it then cannot be changed. But, as I said, I don't think that Plan B forms any part of the judges view here.

But he then somewhat contradicts this when he says later, at 50:

I should re-emphasise that there is plainly power by modification of the original modification to vary fixed rates in respect of installations which become eligible only after any modification comes into effect.

This should make DECC's proposed 3rd March change lawful - assuming Parliament does not throw it out.

Judgement is here http://www.foe.co.uk/resource/briefing_notes/fits_appeal_court_ruling.pdf

 

[SolarCity]

Thanks for you take on it, Ted.

"Also queues are forming of disgruntled projects that cancelled last November to sue DECC for losses. This could cost the government £--- millions. This might be the main reason why DECC now feel they have to fight to the bitter end."

I had been thinking the same thing. The determination of Barker and co. appears irrational to me.

 

[MorganPVI]

I think the goverment also want to keep ploughing on to reduce the window in which 43p is available, keeping the number of new installs to a minimum.

Complete dogs dinner imo.

 

[SRE]

I've just had an email from solar essence offering me 43p for the 148 installation spaces they have left before 3/3. How on earth can they offer that? I've forwarded it to REAL .....

 

[BruceB]

No-one else in comments that I have seen has picked up on the 3 Mar point and although I am not 100% on it, I have read the relevant parts of the judgement again and I think my reasoning stands if, as I understand it the government is proposing after the 3 Mar 12 to initially give 43.3, but then reduce it to 21p after 1 Apr. If they do that then they fall foul of the retrospective application reasoning in the judgement in my view. But I do find the wording in the judgement that Ted highlighted a bit contradictory and confusing. I'll read it a bit more

 

[Markc]

We're no better off now than we were before the appeal statement in my opinion. 21p is set and I say that's all you can state.

I think I will say on all my up coming surveys that they would probably be better off putting X Thousands on the lottery probably better odds currently.

And after now looking online seems the panic buying is back as well. Now I've got the added problem of getting stock again, joy! How many weeks left? and weather etc? No not this time I'm not playing.

 

[TedM]

Bruce, my interpretation is this - re-phrasing what Moses says at 50:

DECC do have the power to alter rates for installations which have an eligibility date that is after the Standard Conditions have been passed by Parliament.

So, assuming Plan B gets passed on 2nd March, the revised rates would apply lawfully from the 3rd March.

 

[BruceB]

I understand where you are coming from. However in the context of the other points he makes, my current take on this sentence:

"I should re-emphasise that there is plainly power by modification of the original modification to vary fixed rates in respect of installations which become eligible only after any modification comes into effect."

is that as the modification (ie 21p) does not come into effect until 1 Apr for the 3 Mar change, then an installation between 3 Mar and 1 Apr has already established its right to the previous 43.3p tariff and subsequent rpi adjustments.

 

[TedM]

OK, there are certainly two ways to read it. It comes down to the exact interpretation of "after any modification comes into effect".

I'm reading that as 'when the new Standard Conditions are passed' and you are taking it as 'when the new Standard Conditions apply'.

Pending any decision on the Supreme Court front we should find out more when the next set of revised Standard Conditions are put before Parliament, which should be by 20th February. And OFGEM also have to publish this information by 1st March at the latest.