On 8 October 2015, the UK Government’s Department of Energy and Climate Change (DECC) set out its detailed proposals for mitigating the impact of the proposed early closure of the Renewables Obligation (RO) to new onshore wind projects from 1 April 2016. The provisions now set out in a series of proposed amendments to the relevant part of the Energy Bill, which are to be debated by the House of Lords on 14 October 2015, go a little beyond what DECC first put forward at the start of its period of “engagement” with the industry at the start of July 2015.

The original grace period proposal was relatively simple, and based on the “significant investment grace period” for >5MW solar PV projects. An onshore project would be able to achieve RO accreditation if it commissioned and applied for accreditation after 31 March 2016 but before 1 April in 2017, provided that, as at 18 June 2015 (the date of DECC’s announcement about the proposed early closure) it had planning permission, an accepted offer of connection to the transmission or distribution network, and sufficient rights over the land where it was to be situated – e.g. in the form of a lease, option, agreement for lease or exclusivity agreement.

The proposals set out in the 8 October amendments are more generous, but also more complex. They consist primarily of the insertion of a new run of sections in the RO provisions of the Electricity Act 1989 and their effect is summarised in the table below.

Click here to view table.

It seems likely that the Government’s proposed amendments will be adopted. It remains to be seen whether subsequent debates as the Energy Bill passes through the remaining stages of its passage through the House of Lords, or through the House of Commons, will result in the addition of any further grace period criteria or the tweaking of those already covered. For now, the following points may be noted:

  • The grace period criteria based around a combination of planning, grid and land rights proposed in July have been broadened as regards planning permission.  In particular, what is now called the “approved development condition” allows grace period status to be claimed not just by projects that had obtained planning permission by 18 June 2015, but also by those who had their planning applications refused on or before that date, but have managed to obtain planning permission through an appeal or judicial review process subsequently.  The value of a further extension, relating to cases which local authorities have failed to handle according to statutory timetables, may be more limited, because as currently drafted it appears only to benefit cases that have not been referred to Ministers for determination.
  • The introduction of provisions acknowledging that some projects may be delayed because lenders are unwilling to commit to finance them before the legislation has received Royal Assent is clearly a welcome addition to the package of mitigation for early closure.  However, note that the “investment freezing condition” in which this is set out does not function as an independent justification for not commissioning by 31 March 2016.  Rather, it allows those projects that can already justify an extension of the period within which they can achieve accreditation under the approved development condition to extend for an additional 9 months.
  • In July 2015 DECC had already indicated that projects which benefited from planning, grid and land rights on 18 June 2015 could bring themselves within the scope of the existing grace period provisions on grid and radar delay – thereby potentially enabling them to apply for accreditation as late as 31 March 2018 where such delay had occurred.  The proposed amendments to the Energy Bill disapply the grace period provisions of the Renewables Obligation Closure Order 2014 from onshore wind projects, but reproduce the effect of its provisions on grid and radar delay as part of their own suite of grace period criteria.
  • The revised impact assessment produced alongside the proposed amendments does not appear to suggest that any more capacity will be accredited as a result of the expansion of the grace period criteria (the numbers in all the key tables are the same as in the version of the impact assessment published in September, apparently on the basis of the original proposals).  However, the accompanying DECC press release states that “around 2.9 GW” of onshore wind capacity could be eligible for the grace periods.

The package of mitigation proposed by the amendments is appreciably more generous than what was suggested by DECC in July, but there are limits to that generosity.  For example, the amendments have not simply followed the model established by the >5MW solar PV RO grace period and allowed the planning criterion within the approved development criterion to be satisfied by any project that had applied for planning permission by 18 July 2015.  However, it is noticeable that the DECC policy paper of 8 October 2015 invites “onshore wind developers to tell us about any of their projects affected by our proposals. In particular, we are interested in hearing from developers with projects that are currently in the planning system, but which have not yet secured planning consent, and to receive information and evidence relating to:

  • the stage that such projects have reached in the planning process, anticipated final planning decision dates, and expenditure incurred on projects as at the date of the Secretary of State’s announcement
  • project timetables and anticipated dates for securing a grid connection offer and acceptance; and
  • the prospects of such projects being in a position to accredit under the RO by 31 March 2017 and expected final investment decision dates.”

It is therefore possible that Government is leaving the door open (or, at least, slightly ajar) to a revised ‘approved development condition’ that more closely resembles the model established by the >5MW solar PV RO grace period (and is more favourable to the industry than that currently tabled in the Energy Bill).

Conversely, it will be interesting to see whether some of the new concepts introduced by the proposed ‘grace period’ conditions for onshore wind, such as the investment freezing condition, will find any place in DECC’s eagerly awaited response to its consultation on the proposed early closure of the RO to ≤5MW solar PV projects.