On 11 October 2024, Mr Justice Chamberlain handed down judgment in R (Farmiloe) v Gas and Electricity Markets Authority [2024] EWHC 2584 (Admin), dismissing a challenge to Ofgem’s exercise of its site inspection powers under reg.18(2) of the Domestic Renewable Heat Incentive Scheme Regulations 2014.
Daniel Farmiloe, the claimant, lives with his family in a large, stone-built property in Oxfordshire. On 14 September 2017, he applied for accreditation of a ground source heat pump system under the Domestic Renewable Heat Incentive Scheme (“the Scheme”). Applications for accreditation under the Scheme had to be accompanied by an Energy Performance Certificate (“EPC”). The EPC contains, among other things, an estimate of the annual heat demand for the property, in kilowatt hours.
Accreditation was a necessary step in claiming a subsidy under the Scheme. The subsidy scheme involved spending potentially large sums of taxpayers’ money to support the installation of more efficient and responsive heating systems. The Scheme fell to be construed in the context of a prohibition on state aid (which applied as a matter of EU law at the time of the relevant application). The annual heat demand stated on a relevant EPC is an important determinant of the amount of subsidy.
In August 2018, following an assessment at his property, Ofgem requested Mr Farmiloe to provide a further EPC for his property. He challenged that decision. That aspect of his claim was dismissed by Lang J on 7 November 2019: R (Farmiloe) v Secretary of State for Business, Energy and Industrial Strategy [2019] EWHC 2981 (Admin). Ofgem was successfully represented by Jason Coppel KC and Stephen Kosmin on that occasion.
The further EPC was eventually provided by Mr Farmiloe on 27 January 2022. Surprisingly, the annual heat demand stated in the second EPC was higher than that stated in the original EPC, despite the installation of a ground source heat pump at his property. On 10 February 2022, Ofgem sent the claimant a letter saying that it wished to arrange another site inspection of his property, pursuant to regulation 18(2) of the Domestic Renewable Heat Incentive Scheme Regulations 2014. Mr Farmiloe challenged that decision, alleging that (i) Ofgem’s power to require a site inspection under reg. 18(2) may only be exercised for the purpose specified in that paragraph, namely “to satisfy itself that the plant should be given accreditation”, and (ii) Ofgem was bound to grant accreditation.
The claim was dismissed. As well as providing a detailed analysis of the pre-accreditation powers of Ofgem under the Domestic Renewable Heat Incentive Scheme Regulations 2014, Mr Justice Chamberlain also held that the claimant was bound by Lang J’s judgment, which, as a final decision in proceedings between the same parties, gave rise to an issue estoppel. He went on to consider the effect of R v HM Coroner for Greater Manchester ex p. Tal [1985] QB 67.
A copy of the judgment can be accessed here. Stephen Kosmin successfully acted for Ofgem.
