On Monday 22nd and 23rd February , SAS team member, Dr Rachel Connor and her counsel will be pitted in an information Tribunal Hearing. against the might of three London legal teams and their barristers. (Representing the Information Commissioner’s Office (ICO), the Low Carbon Contracts Company (LCCC) and Sneddon Law Community Wind Company Ltd (SLCWC), a subsidiary of Community Windpower Holdings (CWP))
SAS hopes to publish video links to the ‘public’ Court proceedings on Monday, if these become available.
Rachel has put together a very brief summary of the case so that you can understand what this is about. It has the hallmarks of a landmark case.
Sneddon Law windfarm (15 x 130m) turbines was initially consented in 2012 by only four East Ayrshire Councillors at a specially convened planning meeting in the summer recess.
In 2015, Sneddon Law Windfarm /SLCWC was awarded a UK Contract for Difference (CFD). This CFD guarantees that for 15 years, any electricity produced would get a lucrative enhanced rate for electricity (the strike price) of £79.99 per MWh. (That figure has now increased in line with CPI to £89.99 per MWh., even though no electricity has yet been produced) By way of comparison, the average day ahead, wholesale price of electricity over that period is approximately £40 per MWh, so SLCWC would generally receive double the going rate. The CFD is designed so that if wholesale electricity prices rise above the strike price, then the generator has to ‘pay back’ any difference they earn to the LCCC and the consumer. That ‘pay back’ hasn’t yet happened in any of the first round 2014 CFDs because the strike prices were so high to begin with and because of an increase in the CFD in line with the CPI (which always includes the electricity price!).
The CFD is a public subsidy, administered by the publicly funded LCCC. Both LCCC and the CFD are paid for by a levy on electricity consumers, regardless of their income. (The Scottish Government recognise that 25% of Scottish households are in fuel poverty. Many low income households are ‘all electric’).
The CFD is an environmental state aid designed to facilitate a reduction in carbon emissions, but in this case, it will also be facilitating adverse environmental impacts to many Private Water Supplies.
The Environmental Statement for Sneddon Law did not have a private water supply risk assessment when it was consented. After multiple iterations, external and suitably qualified consultants finally produced an acceptable PWS risk assessment (PWS RA) for an appeal by CWP in 2016. That PWS RA identified 22 PWS at major and moderate risk from the windfarm, both in the short term and long term. The Reporter therefore set ‘pre-start’ planning conditions to provide for those PWS, before construction could commence. There are currently live Enforcement and Stop Notices in place for this windfarm as the developer commenced construction in 2017 without complying with those conditions.
CWP/SLCWC are now on their eighth appeal for this windfarm and at present are trying to remove the planning conditions for PWS altogether, so that they can start to build the windfarm.
Being unable to start construction meant that SLCWC has been unable to comply with the contracted terms of its CFD; it has failed to deliver electricity to the grid within the dates stated in its contract.
In the meantime, Rachel submitted an FOI request to the LCCC in 2018, and again in 2019 under the EIR regulations, asking for information about the reasons that SLCWC had been allowed to continue with its publicly funded CFD, despite the recognised major risks to PWS (environmental impacts) that building this windfarm will cause and despite exceeding CFD contractual time limits.
As a public contract the CFD’s terms are publicly available, as is other CFD information, all on the LCCC website: CFD Register | Low Carbon Contracts Company ). Of 15 onshore windfarms awarded a CFD in the 2014 first bidding round CFD allocation, Sneddon Law windfarm is the only one that is not now producing electricity.
Now here’s the thing. There are only two valid reasons a CFD contract can be extended when contractual obligations to deliver power are broken. This has been confirmed by the Secretary of State for Business, Energy and Industrial Strategy. The first reason is that there have been unavoidable grid connection delays. This is not a valid reason here, as CWP themselves terminated grid connection works in 2017. The second reason is called Force Majeure – which broadly translates as unforeseeable or unpredictable reasons for contractual delays.
It’s arguable, of course, whether CWP’s failure to risk assess and then make provision for PWS could be considered ‘unforeseen’, but that is what this Information Request is all about.
By now, the case has a history.
In response to Rachel’s request for information in 2018 and 2019, the LCCC refused to provide any information at all as to why SLCWC/CWP had been allowed to continue with their CFD, in breach of the contractual dates.
Any Request for Information under the Environmental Information Regulations starts with a presumption in favour of the Requestor for disclosure. But there are of course exceptions, and it is upon these exceptions that the LCCC relied.
The LCCC decision to refuse information was appealed to the Information Commissioner (IC) in 2019, but the IC upheld LCCC’s position, mostly on the basis that as she saw it, the public interest requires the protection of commercial confidentiality for private companies. This is despite the fact that LCCC is a company owned by the Secretary of State, and entirely funded by electricity consumers.
Because all the requested information has been withheld from Rachel, the Tribunal has ruled that it should still be withheld for now, since to disclose it would defeat the purpose of the appeal Hearing. Much of the Tribunal Hearing discussing the withheld information will be closed to Rachel, her team and to the public. Rachel’s counsel will thus be having to argue ‘blind’ before the judge in the open session why all the requested information should be released.
Rachel and her professional (accountant) witness have given their evidence in writing. The opponents do not want to cross examine them and so they have been excluded from giving any oral evidence. A large part of the Hearing will be completely inaccessible to Rachel, her team and the public, as the Tribunal considers the “close” evidence. Whatever is said or submitted in the closed session cannot be ‘tested’ and will not be open to cross examination by Rachel’s counsel. This feels like a one-sided process, and not perhaps what we think of as a ‘fair hearing’. But we’ll see.
The open session is on Monday begins with a short introductory address, and then the cross examination of Sneddon Law’s witness. The outcome of this Hearing won’t determine whether or not the windfarm can be built, but it will hopefully make the LCCC more accountable as it spends billions of our pounds and it may begin explain why Sneddon Law’s CFD has been treated so favourably by LCCC. It may give us a chance to protect our water supplies.
Graham Lang, Chairman of Scotland against Spin says: We hope Rachel’s hard work and determination pays off. This is an absolute scandal and needs to be exposed.