A Relevant Construction Event (RCE) is defined in Condition 1 and means a Construction Event:
(A) of which no Generator acting in accordance with a Reasonable and Prudent Standard and having made all due and careful enquiries would have been aware, and of which the Generator was not aware, at the FiT CFD Application Date; and
(B) which renders the development, completion, construction, conversion, installation or commissioning of the Facility to meet the Installed Capacity Estimate uneconomic.
Under Condition 5.1, a Generator may, if it considers that a Relevant Construction Event has occurred, give a notice to LCCC (an “RCE Notice”). An RCE Notice must be given to LCCC no later than three (3) months prior to the Longstop Date (the “”). In accordance with Condition 5.1(C), the RCE Notice shall include such Supporting Information as the Generator considers to be relevant to evidence, among other things, the basis for the Generator having concluded that the Construction Event constitutes a Relevant Construction Event (RCE).
The burden of proof is therefore in the first instance on the Generator to satisfy LCCC that the RCE event has occurred and fulfils the “uneconomic” test in the relevant circumstances. Whether or not a Construction Event has rendered the development, completion, construction, conversion, installation or Commissioning of the Facility to meet the Installed Capacity Estimate uneconomic will need to be assessed by LCCC on a case by case basis.