Jason Coppel QC and Tom Cross win in legitimate expectation challenge to Renewable Heat Incentive scheme


The Divisional Court (Flaux LJ and Holgate J) has today dismissed a claim for judicial review of the Renewable Heat Incentive Scheme (Amendment) (No 2) Regulations 2016, which altered the way in which a tariff payable to certain combined heat and power plants using biomass as fuel is calculated.

It was argued that the circumstances prior to the introduction of the Regulations gave rise to a “secondary case” of procedural legitimate expectation, as discussed by Laws LJ in R on the application of Bhatt Murphy v Independent Assessor [2008] EWCA Civ 755. The Court rejected that argument on the facts. It held further that the claim was academic because the claimant had no entitlement to tariff support until the accreditation of its plants, which had not yet occurred, and did not have a “vested right” to such support: see Chief Adjudication Officer v Maguire [1999] 1 WLR 1778 and Secretary of State for Energy and Climate Change v Friends of the Earth [2012] EWCA Civ 28; [2012] Env. L.R. 25.

You can read the judgment here.

Jason Coppel Q.C. and Tom Cross acted for the Secretary of State for Business, Energy and Industrial Strategy