(1)The Secretary of State may not give a notice under section 105(2)(b) to a body corporate associated with a person (“the responsible person”) within section 105(1)(a), (b) or (c) unless the Secretary of State—
(a)has given a notice to the responsible person under section 105(2)(a), and
(b)is not satisfied that adequate arrangements (including financial arrangements) have been made by the responsible person to ensure that a satisfactory decommissioning programme will be carried out.
(2)Subsection (1) does not apply if—
(a)there has been a failure to comply with a notice under section 105(2), or
(b)the Secretary of State has rejected a programme submitted in compliance with such a notice.
(3)For the purposes of this section and section 105, one body corporate is associated with another if one of them controls the other or a third body corporate controls both of them, and subsections (4) to (8) set out the circumstances in which one body corporate (“A”) controls another (“B”).
(4)Where B is a company, A controls B if A possesses or is entitled to acquire—
(a)one half or more of the issued share capital of B,
(b)such rights as would entitle A to exercise one half or more of the votes exercisable in general meetings of B,
(c)such part of the issued share capital of B as would entitle A to one half or more of the amount distributed if the whole of the income of B were in fact distributed among the shareholders, or
(d)such rights as would, in the event of the winding up of B or in any other circumstances, entitle it to receive one half or more of the assets of B which would then be available for distribution among the shareholders.
(5)Where B is a limited liability partnership, A controls B if A—
(a)holds a majority of the voting rights in B,
(b)is a member of B and has a right to appoint or remove a majority of other members, or
(c)is a member of B and controls alone, or pursuant to an agreement with other members, a majority of the voting rights in B.
(6)In subsection (5)(a) and (c) the references to “voting rights” are to the rights conferred on members in respect of their interest in a limited liability partnership to vote on those matters which are to be decided on by a vote of the members of the limited liability partnership.
(7)In any case, A controls B if A has the power, directly or indirectly, to secure that the affairs of B are conducted in accordance with A's wishes.
(8)In determining whether, by virtue of subsections (4) to (7), A controls B, A is to be taken to possess—
(a)any rights and powers possessed by a person as nominee for it, and
(b)any rights and powers possessed by a body corporate which it controls (including rights and powers which such a body corporate would be taken to possess by virtue of this paragraph).]
Textual Amendments
F1S. 105A inserted (6.4.2009) by Energy Act 2008 (c. 32), ss. 69(4), 110(2); S.I. 2009/45, art. 4(b)(ii)