Energy Update: REFIT Deadlines – Key Points for a Successful Extension Application
28 August 2019
In our previous update, we discussed the Minister’s refusal to grant an industry wide extension of the Second Connection Date that would, if granted, have accommodated the connection of REFIT 2 projects by the end of 2020, rather than March 2020.
The refusal of an industry-wide extension does not, of course, close the door on the possibility of project specific extension. Accordingly, we now consider the application process for individual project–specific extensions which will be considered on a case by case basis.
Earlier this year, the Minister made it clear that despite his refusal to grant an industry-wide extension, individual applications for extension to the REFIT 2 support scheme would be considered on a case by case basis.
The Department of Communications, Climate Action and Environment in June 2019 published a guidance note setting out the conditions which applicants must satisfy in submitting an application for an extension.
The 5 conditions
Condition 9.6 of the REFIT 2 Terms and Conditions lists the five conditions which need to be met for an extension application to be considered. An application for an extension must detail each of these conditions, and submit relevant supporting documentation for each condition:
- The circumstances for the delay must “have occurred”
- The reasons for the delay must be outside the applicant’s control
- The delay must not have been as a result of the fault or neglect of the applicant, its servants or agents
- The request for an extension must be “reasonable”
- Completion of the project must “be reasonably shown to be achievable” by the requested extended date
The Department has made it clear that in order to satisfy the fifth condition, full planning permission for the project, the grid connection and associated works must be granted and remain valid for the duration of the extension which is being sought.
Applicants must submit documentation detailing how the requested extension will enable the project to be realised within the extended time period. The application must also confirm ESB Networks (ESBN) has included the project on their Connection Programme and the project holds a confirmed expected connection date with ESBN.
In addition, the project must demonstrate that it will meet the required conditions for ‘connected’ by the requested extension date.
Only projects that meet all of the above listed conditions, in their applications for extensions, will be considered. Each application is considered on a case by case basis and even where these conditions are met, the Department’s position remains that the decision to grant an extension is at the sole discretion of the Minister. However, any decision by the Minister to not grant an extension in circumstances where the applicant has complied with the conditions should be considered in detail and legal advice should be sought.
The announcement that the Department would consider individual applications was a welcomed development in light of the previous industry wide refusal and the correct decision having regard to the REFIT 2 Terms and Conditions. New figures from the Department however show that just one of eight applications seeking additional time beyond the end-March 2020 cut-off has been granted.
The refusal to grant the majority of requests has received criticism from the Irish Wind Industry with commentators saying that it represents an “inexplicable contradiction” in the policy of the government when considered in the context of the 2020 targets.
While the Department appears to be hesitant to grant extensions to the REFIT 2 connection dates, projects which may be at risk of missing the deadline need to carefully consider the basis for their application for an extension.
In addition to the detail provided in the guidance note, the Department appears to give significant weight to the requirement that the delay must actually have occurred and are unwilling to provide extensions in order merely to give projects an additional “buffer period” between the expected completion date and the deadline thereby creating difficulties for projects obtaining finance.
Any wind farm project stakeholders considering submitting an application for a REFIT 2 extension, or that have received a negative decision, should obtain expert legal advice. Our Energy & Utilities team is available to assist in the application process.
The content of this article is provided for information purposes only and does not constitute legal or other advice.