Gravis Solar 1 Ltd & Anor, R (On the Application Of) v Gas And Electricity Markets Authority

Withdrawal of renewable-energy accreditation may be proportionate where accreditation was obtained through materially inaccurate information, including deliberate misrepresentation, even though the station has later been acquired by an innocent purchaser.

The court must apply the structured proportionality assessment under Article 1 of Protocol 1, while giving considerable weight to the regulator’s assessment of the scheme’s integrity, consumer interests and the deterrence of fraud. A grace-period accreditation is not a less intrusive measure if it would preserve the benefit of a dishonest application and undermine those objectives. Corporate personality and the distinction between a company and its shareholder remain relevant to victim status.

The claimants challenged Ofgem’s withdrawal of accreditation for Kelly Green, a 4.9 MW solar generating station operated by AMP GM011 Ltd. Accreditation had been granted on the basis that the station was commissioned on 15 March 2016, before the closure of the relevant subsidy scheme to small solar stations. Subsequent auditing and evidence suggested that the station was incomplete and had not undergone the necessary commissioning tests by that date.

Gravis Solar 1 Ltd acquired the corporate group owning AMP in 2018 and asserted that it was an innocent purchaser. The claim alleged breach of Article 1 of Protocol 1, failure to consider material matters, failure to make proper enquiries and unlawful closure of Ofgem’s mind to a grace-period accreditation.

1. Proportionality. The withdrawal was lawful and proportionate under Article 1 of Protocol 1. The four-stage proportionality approach in Bank Mellat v HM Treasury (No.2) [2014] AC 700 was applied, with particular emphasis on the extent to which the measure contributed to its objective.
2. The withdrawal pursued legitimate aims: protecting the integrity of the Renewables Obligation Scheme, protecting electricity consumers who funded the subsidy, and deterring fraud. It was rationally connected to those aims because accreditation obtained through materially inaccurate information could otherwise retain public subsidy that the station was not entitled to receive.
3. Ofgem had considered the impact on the purchasers, their good faith, the passage of time, reliance, possible grace-period accreditation and other less intrusive measures. The court was not confined to the wording of the decision letter and could consider elaborating material explaining the decision: R (Friends of Antique Cultural Treasures Ltd) v Secretary of State for the Environment [2020] EWCA Civ 649.
4. An innocent purchaser did not acquire an entitlement to retain accreditation obtained by fraud. Granting a grace-period accreditation or equivalent conditions would not achieve the same regulatory objective, because it would preserve the benefit of the dishonest application and weaken incentives for due diligence, warranties and honest applications. The unchanged corporate identity of AMP was also significant.
5. The challenges based on failure to consider material matters and closed-mindedness failed. Ofgem was not required to investigate every matter raised by the claimants, nor to obtain information that the claimants themselves needed to provide in support of a grace-period case. The claim was dismissed.

This was a first-instance judicial review claim in the Administrative Court. The judgment does not state a prior appellate decision in the same proceedings.