Challenge to Renewables Obligation Order dismissed

03/06/11

The Court of Appeal today dismissed a challenge by Tate & Lyle, the sugar manufacturer, to the level of subsidy allocated to 'co-firing with combined heat and power' (CoCHP) in the Renewables Obligation Order. The Government had initially made a calculation error in determining CoCHP's allocation. Correcting the error in an 'early review', the Government had been entitled to re-assess the appropriate level of subsidy using up-to-date cost and revenue data, even though other technologies continued to be subsidised on the basis of historical data, which may have been more favourable to them. The Court, dismissing Tate & Lyle's appeal against the decision of Lord Justice Moses at first instance, accepted that a decision-maker reconsidering a flawed decision was in general entitled to take into account the facts obtaining at the time of the reconsidered decision. The only exceptions were cases where the unfairness amounted to an abuse of power. The error in the present case did not amount to an abuse of power as that term had been explained in the authorities.

The judgment is here.