NI poultry farmer facing losses of £200k a year granted leave to challenge huge cuts to RHI payments
A Co Antrim poultry farmer facing potential losses of up to £200,000 a year should be allowed to challenge huge cuts to Renewable Heat Incentive payments before his case “withers on the vine”, a court heard on Tuesday.
Counsel for Tom Forgrave argued that it was wrong to put his bid to judicially review a Stormont Department on hold pending public consultation on the scheme’s potential shutdown.
Senior judges allowed his appeal and will give full reasons for their decision next week.
Lawyers for Mr Forgrave are now expected to press for his action to be dealt with before the summer.
Proceedings centre on legislation introduced in 2019 which meant annual subsidies for those on the green energy initiative could be cut from £13,000 to £2,000.
Boiler owners signed up to the RHI scheme claim it was a further unlawful step against operators given a 20-year guaranteed rate of return on their investments.
Set up to encourage businesses and other non-domestic users to switch to wood pellet burning systems, the initiative was plunged into controversy after the potential cost to taxpayers emerged.
Operators were able to legitimately burn more fuel to earn more money, prompting fears of an overspend of up to £700m.
The debacle, which became known as the “cash-for-ash” scandal, led to the fall of Stormont’s power-sharing administration in 2017.
A public inquiry identified a series of failings but found there had been no illegality surrounding the scheme.
Members of the Renewable Heat Association NI Ltd are also appealing a previous ruling that the Department of the Economy was legally entitled to impose an earlier cut on tariff rates.
Mr Forgrave’s legal action was initially listed for a hearing at the High Court this week.
The Department secured an adjournment amid consultation which could result in closure and the payment of compensation.
The preferred option in the process, which has just closed, is to shut the scheme and pay out a total of £64m.
Challenging that decision in the Court of Appeal today, Mr Forgrave’s barrister argued that the consultation was based on the 2019 regulations being lawful - an issue still to be judicially determined.
Gerald Simpson QC insisted that if the reduced tariff was declared unlawful the process could have to be re-run.
“There’s a real possibility that the applicant’s judicial review simply withers on the vine,” he said.
It was stressed in court that Mr Forgrave has never been criticised for his boiler use.
But due to the slashed tariff rates he is now facing total cuts of up to £200,000 a year.
“He has had to restructure his bank loans because of the huge reductions,” Mr Simpson added.
“He is entitled to the chance to make a challenge at a time when it might (produce) an effective remedy, as opposed to a time when it comes far too late.”
Tony McGleenan QC, for the Department, urged the court not to “salami slice” the cases.
He also stressed all five parties in the Stormont Executive had backed the consultation process.
“A court cannot make an informed judgment about whether there’s interference (with Mr Forgrave’s rights) until it sees the whole picture,” Mr McGleenan contended.
Following submissions, however, Lord Justice Treacy granted leave and allowed the appeal.
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