This update contains brief details of Government and EU publications, legislation, cases and other policy developments in England and Wales relevant to those interested in energy, renewables, energy efficiency and the alternative energy sector, which have been published in the past month.

Items are set out by subject, with a link to where the full document can be found on the internet. All links are correct at the date of publication.

If you have been forwarded this update by a colleague and would like to receive it direct please email Claire Booth.

The following topics are covered in this update:

   Climate Change    Feed in Tariff
   Energy Efficiency    Fuel Poverty
   Energy Policy    Renewable Energy

Climate Change

Climate Change Levy (General) (Amendment) Regulations 2015 (SI 2015/947): these regulations, which come into force on 1 April 2015, amend SI 2001/838 by inserting a new formula to determine the quantity of carbon price support (CPS) rate commodities that are liable to the CPS rates of CCL which are consumed in good quality CHP) stations and referable to the production of electricity (other than electricity that is either self-supplied or supplied under an exemption from the requirement for an electricity supplier licence). (27 March 2015)

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Energy Efficiency

DECC: CRC Energy Efficiency scheme – Appeals guidance: outlines the appeals process under the CRC Energy Efficiency Scheme Order (SI 2010/768) and the CRC Energy Efficiency Scheme Order (SI 2013/1119). (24 April 2015)

Ofgem: Energy Company Obligation 2015-17 (ECO2) guidance: the Energy Company Obligation (ECO) is an energy efficiency scheme that places legal obligations on larger energy suppliers to deliver energy efficiency measures to domestic premises. Ofgem has published guidance on how it administers the ECO scheme in line with the requirements of the Electricity and Gas (Energy Company Obligation) Order 2014 (SI 2014/3219) (the ECO2 Order), for the new obligation period that runs from 1 April 2015 to 31 March 2017 (ECO2). The guidance is in two parts: 

  • Administration: describes the processes that suppliers and Ofgem follow to meet the requirements of the ECO2 Order; and 
  • Delivery: describes how to deliver measures that are eligible to contribute towards the ECO targets.

 (1 April 2015)

Ofgem: Energy Company Obligation (ECO) – Appropriate guarantees: information regarding ‘appropriate guarantees’ for ECO insulation measures. Cavity, solid wall and mobile home insulation systems have respective standard lifetimes of 42, 36 and 30 years where an installation is accompanied by an 'appropriate guarantee'. This document lists the guarantees that Ofgem considers meet the criteria for an appropriate guarantee. (1 April 2015) 

DECC: SME guide to energy efficiency: sets out low-cost measures and steps that small and medium sized business can take to start saving energy and money on their bills. (26 March 2015)

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Energy Policy

Election 2015: Prime Minister and ministerial appointments: the new Secretary of State for Energy and Climate Change is Amber Rudd. This announcement lists all the ministerial appointments in the new government. (12 May 2015)

IPPR: The political climate: Where do each of the parties stand on energy and climate change?:  this report looks beyond the apparent cross-party consensus on tackling climate change, and finds that there are significant differences between the parties in terms of their approach to energy and climate issues. Focusing on the commitments made in the manifestos, this short briefing paper compares each party's stance on international climate negotiations, carbon targets, energy efficiency, renewables, generation capacity and the energy markets. (22 April 2015)

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Feed in Tariff

Ofgem: Feed-in Tariff (FIT) – Guidance for community energy and school installations: specific guidance on how to benefit from provisions available to community organisations and schools under the FIT scheme. (30 March 2015) 

DECC: Guidance on community ownership models under the Feed-in Tariffs scheme: summarises the scheme’s new community provisions from 1 April 2015, and an assessment of how they apply to the main types of community and shared ownership models. It also signposts other guidance on partnership working between commercial and community organisations relevant to applying for support under the FITs scheme. (27 March 2015) 

Department for Energy and Climate Change v Breyer Group Plc [2015] EWCA Civ 408 (CA): BG and 18 other small scale solar PV generation companies sought damages for breach of their rights to peaceful enjoyment of their possessions under Protocol 1 Art.1 ECHR. The action resulted from DECC's proposal to bring forward from 1 April 2012 to 12 December 2011 the date by which installations had to be commissioned / registered in order to qualify for the original FIT rates for the life of the installation. The proposal was never implemented as the CA ruled that it was ultra vires. BG contended that by the time the courts ruled that the proposal was unlawful, many of the installations that would otherwise have been completed by 1 April 2012 were abandoned as a direct result of the making of the proposal. This caused them to suffer substantial losses in respect of which they sought damages. The judge ruled that BG had "possessions" in so far as they had entered into contracts and/or they had marketable goodwill constituted by or referable to those contracts; the proposal interfered with their possessions and caused them to suffer loss; and the interference was unlawful and / or it was disproportionate. BG were entitled in principle to an award of damages assessed by reference to the loss of profits caused by the interference with their possessions.
The court held, dismissing DECC's appeal, that "possessions" was an autonomous Convention concept. Case law showed that the goodwill of a business, if it had a marketable value, might count as a possession but the right to a future income stream did not. The distinction between goodwill and loss of future income was not always easy to apply but the judge was right to see a clear line separating possible future contracts and existing enforceable contracts. The proposal as a matter of fact did in a real and practical sense interfere with BG's businesses and so interfered with their rights, but that interference was not unlawful. There was a fundamental difference between consulting on a proposal and implementing it, and it would be odd if a public authority could not lawfully consult on a proposal just because some or all of what was proposed could not lawfully be implemented. The judge was right to hold that the proposal did not strike a fair balance between the public interest and the interests of the investors in the scheme, especially as DECC appeared to give very little consideration to the impact that the proposal would have on existing businesses. The question of whether DECC's conduct did indeed render BG's businesses unviable was a question of fact which would need to be determined on the evidence at trial. The judge was right to reject DECC's argument that every claim must fail because the losses were caused by BG's commercial decisions. It would all depend on the facts. (28 April 2015)

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Fuel Poverty

Ofgem: Warm Home Discount – Guidance for licensed electricity suppliers and licensed gas suppliers (Version 4): updated guidance for licensed electricity and gas suppliers on their obligations under the Warm Home Discount Regulations 2011 (SI 2011/1033) to provide support to customers in fuel poverty. This version provides clarity on the administration of the WHD scheme in light of Ofgem's and suppliers' experience of the scheme so far. It also reflects changes brought in by the Warm Home Discount (Miscellaneous Amendments) Regulations 2015 (SI 2015/652).
See also ECO2 Affordable Warmth Group guidance note that assists suppliers and the supply chain in evidencing Affordable Warmth Group (AWG) eligibility, and addresses some concerns around eligibility claims. (30 March 2015)

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Renewable Energy

Ofgem: Renewables Obligation – Guidance for generators: provides an overview of the generating technologies that might be eligible under the Renewables Obligation scheme, explains how generators become accredited and sets out the information that Ofgem requires from generators in order to issue ROCs. (13 April 2015)

Ofgem: Essential guide – Confirming commissioning of generating stations: helps establish the date that a generating station was or will be commissioned in line with the definition provided in RO legislation. It is intended for those considering applying for the RO scheme. (13 April 2015)

Ofgem: Renewables Obligation (RO) – Guidance on the closure of the scheme to large-scale solar PV: guidance for operators of solar PV generating stations affected by the closure of the RO scheme to large-scale solar PV on 1 April 2015. The closure applies to new generating stations with a total installed capacity (TIC) greater than 5MW and any additional capacity added to existing stations that have, or would have, a TIC greater than 5MW. Operators of large-scale generating stations that meet certain criteria may be eligible for one of the three grace periods that are available, meaning that they can apply for accreditation for 12 months after the closure date, i.e. from 1 April 2015 until 31 March 2016. (13 April 2015)

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