C51C62C47C48 Part I ELECTRICITY SUPPLY
Pt. I modified (S.) (30.11.2005) by The Electricity from Non-Fossil Fuel Sources (Scotland) Saving Arrangements Order 2005 (S.S.I. 2005/549), arts. 1(1), 9
Pt. I (ss. 1-64) applied (1.10.2001) by S.I. 2001/3264, regs. 4(2), 5(2)
Pt. I (ss. 1-64) amended (E.W.) (27.10.2000) by S.I. 2000/2727, art. 10
Pt. I (ss. 1-64) amended (7.11.2000) by 2000 c. 27, s. 105(1)(a); S.I. 2000/2974, art. 2, Sch. (subject to transitional provisions in arts. 3-12)
Pt. I (ss. 1-64) amended (E.W.) (1.10.2001) by S.I. 2000/2727, art. 10 (as substituted (1.10.2001) by S.I. 2001/3268, art. 2(13))
Introductory
F11. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F22. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F33 General duties of Secretary of State and Director.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C52C59C67C703AF4 The principal objective and general duties of the Secretary of State and the Authority.
1
The principal objective of the Secretary of State and the Gas and Electricity Markets Authority (in this Act referred to as “the Authority”) in carrying out their respective functions under this Part is to protect the interests of F326existing and future consumers in relation to electricity conveyed by distribution systems F286or transmission systems, wherever appropriate by promoting effective competition between persons engaged in, or in commercial activities connected with, the generation, transmission, distribution or supply of electricity F263or the provision or use of electricity interconnectors.
2
The Secretary of State and the Authority shall carry out those functions in the manner which he or it considers is best calculated to further the principal objective, having regard to—
a
the need to secure that all reasonable demands for electricity are met; and
b
c
the need to contribute to the achievement of sustainable development.
3
In performing that duty, the Secretary of State or the Authority shall have regard to the interests of—
a
individuals who are disabled or chronically sick;
b
individuals of pensionable age;
c
individuals with low incomes; and
d
individuals residing in rural areas;
but that is not to be taken as implying that regard may not be had to the interests of other descriptions of consumer.
4
The Secretary of State and the Authority may, in carrying out any function under this Part, have regard to—
a
the interests of consumers in relation to gas conveyed through pipes (within the meaning of the M1Gas Act 1986); and
5
Subject to subsection (2), the Secretary of State and the Authority shall carry out their respective functions under this Part in the manner which he or it considers is best calculated—
a
to promote efficiency and economy on the part of persons authorised by licences or exemptions to F221distribute, supply or participate in the transmission of electricity F264or to participate in the operation of electricity interconnectors and the efficient use of electricity conveyed by distribution systems F287or transmission systems;
b
to protect the public from dangers arising from the generation, transmission, distribution or supply of electricity;
F328ba
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
c
to secure a diverse and viable long-term energy supply,
F249and (so far as not otherwise required to do so by this subsection) shall, in carrying out those functions, have regard to the effect on the environment of activities connected with the generation, transmission, distribution or supply of electricity.
F2505A
In carrying out their respective functions under this Part in accordance with the preceding provisions of this section the Secretary of State and the Authority must each have regard to—
a
the principles under which regulatory activities should be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed; and
b
any other principles appearing to him or, as the case may be, it to represent the best regulatory practice.
6
In F329subsections (3) and (4) references to consumers include both existing and future consumers.
7
In this section and sections 3B and 3C, references to functions of the Secretary of State or the Authority under this Part include a reference to functions under the Utilities Act 2000 which relate to electricity conveyed by distribution systems F288or transmission systems.
8
In this Part, unless the context otherwise requires—
“exemption” means an exemption granted under section 5;
“licence” means a licence under section 6 and “licence holder” shall be construed accordingly.
C52C67C70F53B Guidance on social and environmental matters.
1
The Secretary of State shall from time to time issue guidance about the making by the Authority of a contribution towards the attainment of any social or environmental policies set out or referred to in the guidance.
2
The Authority shall, in carrying out its functions under this Part, have regard to any guidance issued under this section.
3
Before issuing guidance under this section the Secretary of State shall consult—
a
the Authority;
F316b
the Council;
c
licence holders; and
d
such other persons as the Secretary of State considers it appropriate to consult in relation to the guidance.
4
A draft of any guidance proposed to be issued under this section shall be laid before each House of Parliament.
5
Guidance shall not be issued under this section until after the period of forty days beginning with—
a
the day on which the draft is laid before each House of Parliament; or
b
if the draft is laid before the House of Lords on one day and the House of Commons on another, the later of those two days.
6
If, before the end of that period, either House resolves that the guidance should not be issued, the Secretary of State must not issue it.
7
In reckoning any period of forty days for the purposes of subsection (5) or (6), no account shall be taken of any time during which—
a
Parliament is dissolved or prorogued; or
b
both Houses are adjourned for more than four days.
8
The Secretary of State shall arrange for any guidance issued under this section to be published in such manner as he considers appropriate.
C52C67C70F63C Health and safety.
1
The Secretary of State and the Authority shall consult F313the Health and Safety Executive about all electricity safety issues which may be relevant to the carrying out of any of their respective functions under this Part.
2
The Secretary of State may require the Authority also to consult him about electricity safety issues of particular descriptions.
3
The Secretary of State and the Authority shall, in carrying out their respective functions under this Part, take into account any advice given by F313the Health and Safety Executive about any electricity safety issue (whether or not in response to consultation under subsection (1)).
4
The Authority shall, in carrying out its functions under this Part, take into account any advice given by the Secretary of State about any electricity safety issue (whether or not in response to consultation under subsection (2)).
5
For the purposes of this section an electricity safety issue is anything concerning the generation, transmission, distribution or supply of electricity which may affect the health and safety of—
a
members of the public; or
b
persons employed in connection with any of those activities.
C52C67C70F73D Exceptions from sections 3A to 3C.
1
Section 3A does not apply in relation to the issuing by the Secretary of State of guidance under section 3B.
2
Sections 3A to 3C do not apply in relation to functions of the Secretary of State under F274sections 36 to 37.
3
Sections 3A to 3C do not apply in relation to anything done by the Authority—
a
in the exercise of functions relating to the determination of disputes;
b
in the exercise of functions under section 43(3).
C14
The Authority may nevertheless, when exercising any function under section 43(3), have regard to any matter in respect of which a duty is imposed by sections 3A to 3C (“a general matter”), if it is a matter to which F182the Office of Fair Trading could have regard when exercising that function (but that is not to be taken as implying that, in relation to functions mentioned in subsection (2), regard may not be had to any general matter).
5
The duties imposed by sections 3A to 3C do not affect the obligation of the Authority or the Secretary of State to perform or comply with any other duty or requirement (whether arising under this Act or another enactment, by virtue of any Community obligation or otherwise).
Licensing of supply etc.
4 Prohibition on unlicensed supply etc.
1
A person who—
C2C3a
generates electricity for the purpose of giving a supply to any premises or enabling a supply to be so given;
F218b
participates in the transmission of electricity for that purpose;
d
participates in the operation of an electricity interconnector,
shall be guilty of an offence unless he is authorised to do so by a licence F9... .
2
A person guilty of an offence under this section shall be liable—
a
on summary conviction, to a fine not exceeding the statutory maximum;
b
on conviction on indictment, to a fine.
3
No proceedings shall be instituted in England and Wales in respect of an offence under this section except by or on behalf of the Secretary of State or the Director.
F2193A
In subsection (1)(b) above, the reference to a person who participates in the transmission of electricity is to a person who—
a
co-ordinates, and directs, the flow of electricity onto and over a transmission system by means of which the transmission of electricity takes place, or
b
makes available for use for the purposes of such a transmission system anything which forms part of it.
3B
For the purposes of subsection (3A)(b), a person shall not be regarded as making something available just because he consents to its being made available by another.
F2653C
A reference in this Part to participating in the operation of an electricity interconnector is a reference to—
a
co-ordinating and directing the flow of electricity into or through an electricity interconnector; or
b
making such an interconnector available for use for the conveyance of electricity;
and a person is not to be regarded as participating in the transmission of electricity by reason only of activities constituting participation in the operation of an electricity interconnector.
3D
For the purposes of subsection (3C)(b), a person shall not be regarded as making something available just because he consents to its being made available by another.
3E
In this Part “electricity interconnector” means so much of an electric line or other electrical plant as—
a
is situated at a place within the jurisdiction of Great Britain; and
b
subsists wholly or primarily for the purposes of the conveyance of electricity (whether in both directions or in only one) between Great Britain and a place within the jurisdiction of another country or territory.
3F
For the purposes of this section—
a
a place is within the jurisdiction of Great Britain if it is in Great Britain, in the territorial sea adjacent to Great Britain or in an area designated under section 1(7) of the Continental Shelf Act 1964; and
b
a place is within the jurisdiction of another country or territory if it is in that country or territory or in waters in relation to which authorities of that country or territory exercise jurisdiction.
4
In this Part, unless the context otherwise requires—
F10“distribute”, in relation to electricity, means distribute by means of a distribution system, that is to say, a system which consists (wholly or mainly) of low voltage lines and electrical plant and is used for conveying electricity to any premises or to any other distribution system;
F276“generate”, in relation to electricity, means generate at a relevant place;
F289“supply”, in relation to electricity, means its supply to premises in cases where—
- a
it is conveyed to the premises wholly or partly by means of a distribution system, or
- b
(without being so conveyed) it is supplied to the premises from a substation to which it has been conveyed by means of a transmission system,
but does not include its supply to premises occupied by a licence holder for the purpose of carrying on activities which he is authorised by his licence to carry on;
- a
F220“transmission”, in relation to electricity, means transmission by means of a transmission system;
“transmission system” means a system which—
- a
consists (wholly or mainly) of high voltage lines and electrical plant, and
- b
is used for conveying electricity from a generating station to a substation, from one generating station to another or from one substation to another.
- a
F2755
In this section—
“relevant place” means a place in Great Britain, in the territorial sea adjacent to Great Britain or in a Renewable Energy Zone; and
“system” means a system the whole or a part of which is at a relevant place;
and references in this section to premises are references to premises situated at a relevant place, or at a place that is not in a Renewable Energy Zone but is in an area designated under section 1(7) of the Continental Shelf Act 1964.
C6F115 Exemptions from prohibition.
1
The Secretary of State may by order grant exemption from paragraph (a), (b), (bb)F293, (c) or (d) of section 4(1)—
a
either to a person or to persons of a class;
b
either generally or to such extent as may be specified in the order; and
c
either unconditionally or subject to such conditions as may be so specified.
2
Before making an order under subsection (1) the Secretary of State shall give notice—
a
stating that he proposes to make such an order and setting out the terms of the proposed order;
b
stating the reasons why he proposes to make the order in the terms proposed; and
c
specifying the time (not being less than 28 days from the date of publication of the notice) within which representations with respect to the proposals may be made,
and shall consider any representations which are duly made in respect of the proposals and not withdrawn.
3
The notice required by subsection (2) shall be given—
a
by serving a copy of it on the Authority and the Council; and
b
by publishing it in such manner as the Secretary of State considers appropriate for bringing it to the attention of those likely to be affected by the proposed order.
4
Notice of an exemption granted to a person shall be given—
a
by serving a copy of the exemption on him; and
b
by publishing the exemption in such manner as the Secretary of State considers appropriate for bringing it to the attention of other persons who may be affected by it.
5
Notice of an exemption granted to persons of a class shall be given by publishing the exemption in such manner as the Secretary of State considers appropriate for bringing it to the attention of—
a
persons of that class; and
b
other persons who may be affected by it.
6
An exemption may be granted—
a
indefinitely; or
b
for a period specified in, or determined by or under, the exemption.
7
Conditions subject to which an exemption is granted may (in particular) require any person carrying on any activity in pursuance of the exemption—
a
to comply with any direction given by the Secretary of State or the Authority as to such matters as are specified in the exemption or are of a description so specified;
b
except in so far as the Secretary of State or the Authority consents to his doing or not doing them, not to do or to do such things as are specified in the exemption or are of a description so specified; and
c
to refer for determination by the Secretary of State or the Authority such questions arising under the exemption as are specified in the exemption or are of a description so specified.
8
The Secretary of State may by order revoke an order by which an exemption was granted to a person or vary an order by which more than one exemption was so granted so as to terminate any of the exemptions—
a
at the person’s request;
b
in accordance with any provision of the order by which the exemption was granted; or
c
if it appears to the Secretary of State inappropriate that the exemption should continue to have effect.
9
The Secretary of State may by order revoke an order by which an exemption was granted to persons of a class or vary an order by which more than one exemption was so granted so as to terminate any of the exemptions—
a
in accordance with any provision of the order by which the exemption was granted; or
b
if it appears to the Secretary of State inappropriate that the exemption should continue to have effect.
10
The Secretary of State may by direction withdraw an exemption granted to persons of a class from any person of that class—
a
at the person’s request;
b
in accordance with any provision of the order by which the exemption was granted; or
c
if it appears to the Secretary of State inappropriate that the exemption should continue to have effect in the case of the person.
11
Before—
a
making an order under subsection (8)(b) or (c) or (9); or
b
giving a direction under subsection (10)(b) or (c),
the Secretary of State shall consult the Authority and give notice of his proposal to do so (with reasons) and of a period within which representations may be made to him.
12
The notice under subsection (11) shall be given—
a
where the Secretary of State is proposing to make an order under subsection (8)(b) or (c), by serving a copy of it on the person to whom the exemption was granted;
b
where he is proposing to make an order under subsection (9), by publishing it in such manner as the Secretary of State considers appropriate for bringing it to the attention of persons of the class of persons to whom the exemption was granted; and
c
where he is proposing to give a direction under subsection (10)(b) or (c), by serving a copy of it on the person from whom he proposes to withdraw the exemption.
C7C55F126 Licences authorising supply, etc.
C81
The Authority may grant any of the following licences—
a
a licence authorising a person to generate electricity for the purpose of giving a supply to any premises or enabling a supply to be so given (“a generation licence”);
F222b
a licence authorising a person to participate in the transmission of electricity for that purpose (“a transmission licence”);
c
a licence authorising a person to distribute electricity for that purpose (“a distribution licence”); F270...
d
a licence authorising a person to supply electricity to premises (“a supply licence”) F269or
e
a licence authorising a person to participate in the operation of an electricity interconnector (“an interconnector licence”).
2
The same person may not be the holder of both a distribution licence and a supply licence.
F2672A
The same person may not be the holder of an interconnector licence and the holder of a licence falling within any of paragraphs (a) to (d) of subsection (1).
3
A supply licence may authorise the holder to supply electricity—
a
to any premises;
b
only to premises specified in the licence, or to premises of a description so specified; or
c
only to any premises situated in a specified area, or to premises of a specified description which are so situated.
4
The Authority may, with the consent of the holder of a supply licence, modify terms included in the licence in pursuance of subsection (3) so as to extend or restrict the premises to which the licence holder may give a supply of electricity.
5
A distribution licence may authorise the holder to distribute electricity in any area, or only in an area specified in the licence.
6
The Authority may, with the consent of the holder of a distribution licence, modify terms included in the licence in pursuance of subsection (5) so as to extend or restrict the area within which the licence holder may distribute electricity.
F2236A
A transmission licence may authorise the holder to participate in the transmission of electricity in any area, or only in an area specified in the licence.
6B
The Authority may, with the consent of the holder of a transmission licence, modify terms included in the licence in pursuance of subsection (6A) above.
F2686C
An interconnector licence authorising participation in the operation of an electricity interconnector—
a
must specify the interconnector or interconnectors in relation to which participation is authorised; and
b
may limit the forms of participation in the operation of an interconnector which are authorised by the licence.
F2247
A licence, and any modification of a licence under subsection (4), (6) or (6B), shall be in writing.
8
A licence shall, unless previously revoked in accordance with any term of the licence, continue in force for such period as may be specified in or determined by or under the licence.
9
In this Part—
F225. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“electricity distributor” means any person who is authorised by a distribution licence to distribute electricity except where he is acting otherwise than for purposes connected with the carrying on of activities authorised by the licence;
F330“electricity generator” means any person who is authorised by a generation licence to generate electricity except where that person is acting otherwise than for purposes connected with the carrying on of activities authorised by the licence;
“electricity supplier” means any person who is authorised by a supply licence to supply electricity except where he is acting otherwise than for purposes connected with the carrying on of activities authorised by the licence.
F27710
In this section “premises” has the same meaning as in section 4.
F136A Procedure for licence applications.
1
This section applies to any application—
a
for a licence; or
F226b
for the modification of a licence under section 6(4), (6) or (6B).
2
The application shall be made in such form and manner, and shall contain, or be accompanied by, such information and documents and such fee (if any), as may be prescribed.
3
Within the prescribed period after the making of the application the applicant shall publish a notice of the application in the prescribed manner.
4
Where the Authority proposes to refuse the application, it shall give to the applicant a notice—
a
stating that it proposes to refuse the application;
b
stating the reasons why it proposes to refuse the application; and
c
specifying the time within which representations with respect to the proposed refusal may be made,
and shall consider any representations which are duly made and not withdrawn.
C565
Where the Authority grants the licence, extension or restriction applied for, it shall as soon as practicable thereafter send a notice of the grant to any person who holds a licence and whose interests may, in the opinion of the Authority, be affected by the grant.
6
In this section “prescribed” means prescribed in regulations made by the Authority.
7
Any sums received by the Authority under this section shall be paid into the Consolidated Fund.
F146B Applications for transmission licences.
1
This section applies to applications for a transmission licence (in addition to the requirements of section 6A).
F2272
The applicant shall give notice of the application to any person who holds a transmission licence and whose interests may be affected if the licence applied for is granted.
3
Before granting the transmission licence applied for, the Authority shall give notice—
a
stating that it proposes to grant the licence;
b
stating the reasons why it proposes to grant the licence; and
c
specifying the time (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed licence may be made,
and shall consider any representations or objections which are duly made and not withdrawn.
4
A notice under subsection (3) shall be given by publication in such manner as the Authority considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by them.
5
The Authority shall send a copy of a notice under subsection (3) to—
a
the applicant;
b
the Secretary of State; and
c
any person who holds a transmission licence and whose F228interests may be affected by the grant of the licence to which the application relates.
C9C577 Conditions of licences: general.
1
A licence may include—
a
b
conditions requiring the rendering to the F15Authority of a payment on the grant of the licence, or payments during the currency of the licence, or both, of such amount or amounts as may be determined by or under the licence.
2
Without prejudice to the generality of paragraph (a) of subsection (1) above, conditions included in F17a transmission licence or distribution licence by virtue of that paragraph—
a
may require the licence holder to enter into agreements with other persons for the use of any electric lines and electrical plant of his (wherever situated and whether or not used for the purpose of carrying on the activities authorised by the licence) for such purposes as may be specified in the conditions; and
b
may include provision for determining the terms on which such agreements are to be entered into.
F2292A
Without prejudice to the generality of paragraph (a) of subsection (1), conditions included in a transmission licence by virtue of that paragraph may—
a
require the licence holder not to carry on an activity which he would otherwise be authorised by the licence to carry on, or
b
restrict where he may carry on an activity which he is authorised by the licence to carry on.
3
F18Without prejudice to the generality of paragraph (a) of subsection (1), conditions included in a licence by virtue of that paragraph may require the licence holder—
a
to comply with any direction given by the F19Authority or Secretary of State as to such matters as are specified in the licence or are of a description so specified;
b
except in so far as the F19Authority or Secretary of State consents to his doing or not doing them, not to do or to do such things as are specified in the licence or are of a description so specified;
c
d
to refer for approval by the F19Authority or Secretary of State such things falling to be done under the licence, and such contracts or agreements made before the grant of the licence, as are specified in the licence or are of a description so specified.
F213A
Conditions included in a transmission licence or a distribution licence by virtue of subsection (1)(a) may require the holder, in such circumstances as are specified in the licence—
a
so to increase his charges for the transmission or distribution of electricity as to raise such amounts as may be determined by or under the conditions; and
b
to pay the amounts so raised to such licence holders as may be so determined.
4
Conditions included in a licence by virtue of subsection (1)(a) above may—
a
instead of specifying or describing any contracts or agreements to which they apply, refer to contracts or agreements designated (whether before or after the imposition of the conditions) by the Secretary of State or the Director; and
b
instead of containing any provisions which fall to be made, refer to provisions set out in documents so designated and direct that those provisions shall have such effect as may be specified in the conditions.
F225
Conditions included in a licence may contain provision for the conditions—
a
to have effect or cease to have effect at such times and in such circumstances as may be determined by or under the conditions; or
b
to be modified in such manner as may be specified in the conditions at such times and in such circumstances as may be so determined.
6
Any provision included by virtue of subsection (5) above in a licence shall have effect in addition to the provision made by this Part with respect to the modification of the conditions of a licence.
F236A
Conditions included in a licence may provide for references in the conditions to any document to operate as references to that document as revised or re-issued from time to time.
7
Any sums received by the F24Authority in consequence of the provisions of any condition of a licence shall be paid into the Consolidated Fund.
7AF32 Transfer of licences.
1
A licence—
a
is capable of being transferred by the licence holder, with the consent of the Authority, in accordance with this section but subject to any term as to transfer contained in the licence;
b
may include conditions which must be complied with before the licence can be transferred.
2
A transfer may relate to the whole or any part of the licence.
3
The reference in subsection (2) to part of a licence is a reference to a part of the activities authorised by the licence (whether described by reference to activities being carried on by the licence holder or to activities which he is authorised by the licence to carry on).
4
Such consent may be given subject to compliance with such modification or other conditions as the Authority considers appropriate.
5
In the case of a partial transfer, conditions imposed under subsection (4) may make as respects so much of the licence as is proposed to be retained by the transferor provision different from that made as respects so much of the licence as is proposed to be transferred.
6
In deciding whether to give its consent to a proposed transfer, the Authority shall apply the same criteria as it would apply if the Authority were deciding whether—
a
in the case of a general transfer, to grant a corresponding licence to the transferee; or
b
in the case of a partial transfer—
i
to grant to the transferee a licence corresponding to so much of the licence as is proposed to be transferred; and
ii
to grant to the transferor a licence corresponding to so much of the licence as is proposed to be retained.
7
The Authority shall give the Secretary of State not less than 28 days’ notice of any proposal to impose a modification condition.
8
If, before the expiry of the time specified in a notice under subsection (7), the Secretary of State directs the Authority not to impose the condition, the Authority shall comply with the direction.
9
Before giving consent to the transfer of a licence, the Authority shall give notice—
a
stating that it proposes to grant consent to the transfer;
b
stating the reasons why it proposes to give consent; and
c
specifying the time from the date of publication of the notice (not being less than two months) within which representations or objections with respect to the transfer may be made,
and shall consider any representations or objections that are duly made and not withdrawn.
10
A notice under subsection (9) shall be given by publishing the notice in such manner as the Authority considers appropriate for bringing it to the attention of persons likely to be affected by the transfer.
11
A purported transfer of a licence shall be void—
a
if the licence is not capable of transfer or the Authority has not given its consent;
b
if the purported transfer is in breach of a condition of the licence; or
c
if there has, before the purported transfer, been a contravention of a condition subject to compliance with which the Authority’s consent is given.
12
In this section—
“transfer” includes any form of transfer or assignment or, in Scotland, assignation;
“modification condition” means a condition requiring or otherwise providing for the making of modifications to the conditions of a licence.
F337B Uniform prices etc. in certain areas of Scotland.
1
The Secretary of State may, by an order made under this section, require the holder of—
a
a transmission licence; or
b
a distribution licence,
to apply in respect of the use of the transmission or, as the case may be, distribution system, or any part of the system, in a specified area charges which do not distinguish (whether directly or indirectly) between users in different parts of the area.
2
The Secretary of State may, by such an order, require the holder of a supply licence—
a
to charge prices; or
b
to offer conditions of contract,
in respect of a comparable supply of electricity in a specified area which do not distinguish (whether directly or indirectly) between consumers in different parts of the area.
3
The Secretary of State shall not specify in such an order any particular or maximum charge or price or any particular condition of contract.
4
Such an order may make different provision for different cases or descriptions of case.
5
For the purposes of this section—
a
a specified area is an area of Scotland specified in such an order; and
b
supplies of electricity are comparable if they are—
i
at the same or similar voltages; and
ii
are in accordance with the same or similar demand characteristics.
8 Conditions for funding certain companies engaged in nuclear generation in Scotland.
1
Without prejudice to section 7(1)(a) above, it may be a condition of a licence granted to a company (“the licence holder”) that it shall from time to time provide any company to which subsection (2) below applies, comes to apply or has at any time applied with such funds as may be determined by or under the condition in respect of such of that company’s liabilities as may be so determined.
2
This subsection applies to any company engaging in the operation of a nuclear generating station in Scotland while—
a
deemed for the purposes of the M3Companies Act 1985 to be a subsidiary of the licence holder; or
b
a related company of the licence holder (as defined in paragraph 92 of Schedule 4 to that Act).
3
Subsection (3) of section 7 above applies in respect of a condition included in a licence by virtue of this section as it applies in respect of a condition so included by virtue of subsection (1)(a) of that section.
C588AF34 Standard conditions of licences.
1
Subject to subsection (2), each condition which by virtue of section 33(1) of the Utilities Act 2000 is a standard condition for the purposes of any of the types of licence mentioned in F230section 6(1)(a), (c) or (d) (that is to say, generation licences, distribution licences or supply licences) shall be incorporated by reference in each licence of that type granted after the commencement of this section.
F2311A
Subject to subsection (2), each condition which by virtue of section 137(3) of the Energy Act 2004 is a standard condition for the purposes of transmission licences shall be incorporated by reference in each transmission licence granted on or after the day on which section 137(6) of that Act comes into force.
F2791B
Subject to subsection (2), each condition which by virtue of section 146 of the Energy Act 2004 is a standard condition for the purposes of interconnector licences shall be incorporated, by reference, in each interconnector licence granted on or after the commencement of subsection (6) of that section.
2
Subject to the following provisions of this section, the Authority may, in granting a licence of any type, modify any of the standard conditions for licences of that type in its application to the licence to such extent as it considers requisite to meet the circumstances of the particular case.
3
Before making any modifications under subsection (2), the Authority shall give notice—
a
stating that it proposes to make the modifications and setting out their effect;
b
stating the reasons why it proposes to make the modifications; and
c
specifying the time (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed modifications may be made,
and shall consider any representations or objections which are duly made and not withdrawn.
4
A notice under subsection (3) shall be given—
a
by publishing the notice in such manner as the Authority considers appropriate for the purpose of bringing the notice to the attention of persons likely to be affected by the making of the modifications; and
b
by sending a copy of the notice to the Secretary of State and the Council.
5
If, within the time specified in the notice under subsection (3), the Secretary of State directs the Authority not to make any modification, the Authority shall comply with the direction.
6
The Authority shall not under subsection (2) make any modifications of a condition of a licence of any type unless it is of the opinion that the modifications are such that—
a
the licence holder would not be unduly disadvantaged in competing with other holders of licences of that type; and
b
no other holder of a licence of the same type would be unduly disadvantaged in competing with other holders of such licences (including the holder of the licence being modified).
7
The modification under subsection (2) of part of a condition of a licence shall not prevent any other part of the condition which is not so modified being regarded as a standard condition for the purposes of this Part.
8
In this section “modify” includes fail to incorporate and “modification” shall be construed accordingly.
9 General duties of licence holders.
F251
It shall be the duty of an electricity distributor—
a
to develop and maintain an efficient, co-ordinated and economical system of electricity distribution;
C10b
to facilitate competition in the supply and generation of electricity.
2
It shall be the duty of the holder of a licence authorising him to F232participate in the transmission of electricity—
a
to develop and maintain an efficient, co-ordinated and economical system of electricity transmission; and
b
F26. . ., to facilitate competition in the supply and generation of electricity.
F2332A
Subsection (2)(a) shall not have effect to require the holder of a transmission licence which is subject to a condition of the kind mentioned in section 7(2A)(a) to carry on an activity which he would be authorised by the licence to carry on apart from the condition.
F273
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F274
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
10 Powers etc. of licence holders.
1
Subject to subsection (2) below, Schedule 3 to this Act (which provides for the compulsory acquisition of land) and Schedule 4 to this Act (which confers other powers and makes other provision) shall have effect—
b
to the extent that his licence so provides, in relation to F29an electricity distributor or any other licence holder;
and references in those Schedules to a licence holder shall be construed accordingly.
C112
Where any provision of either of the Schedules mentioned in subsection (1) above is applied to a licence holder by his licence, it shall have effect subject to such restrictions, exceptions and conditions as may be included in the licence for the purpose of qualifying that provision as so applied or any power or right conferred by or under it.
3
F30A generation licence may provide that Schedule 4 to this Act shall have effect in relation to the licence holder as if—
a
any reference to any purpose connected with the carrying on of the activities which he is authorised by his licence to carry on included a reference to any purpose connected with the supply to any premises of heat produced in association with electricity and steam produced from and air and water heated by such heat; and
b
any reference to electric lines or electrical plant included a reference to pipes and associated works used or intended to be used for conveying heat so produced, and steam produced from and air and water heated by such heat;
and in this subsection “associated works”, in relation to pipes, means any of the following connected with the pipes, namely, any valve, filter, stopcock, pump, meter, inspection chamber and manhole and such other works as may be prescribed.
F313A
Subsection (3) applies in relation to any purpose connected with the supply to any premises of any gas or liquid subjected to a cooling effect produced in association with electricity as it applies to a purpose mentioned in that subsection.
F2354
A transmission licence may provide that, where the licence is modified under section 6(6B), 11 or 11A above so as to reduce in any respect the area in which the licence holder may carry on activities, Schedule 4 to this Act shall have effect in relation to him as if any reference to the activities which he is authorised by his licence to carry on included a reference to the activities which he was previously so authorised to carry on.
5
The provisions of Schedule 5 to this Act (which provide for the acquisition of water rights for hydro-electric stations in Scotland) shall have effect.
Modification of licences
11 Modification by agreement.
F351
Subject to the following provisions of this section, the Authority may modify the conditions of a particular licence.
1A
The Authority may not make any modifications under this section unless the licence holder has consented to the modifications and, in the case of standard conditions of the licence, the Authority is of the opinion that the modifications—
a
are requisite to meet the circumstances of the particular case; and
b
are such that—
i
the licence holder would not be unduly disadvantaged in competing with other holders of licences of that type; and
ii
no other holder of a licence of the same type would be unduly disadvantaged in competing with other holders of such licences (including the holder of the licence being modified).
2
Before making modifications under this section, the Director shall give notice—
a
stating that he proposes to make the modifications and setting out their effect;
b
stating the reasons why he proposes to make the modifications; and
c
specifying the period (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed modifications may be made,
and shall consider any representations or objections which are duly made and not withdrawn.
3
A notice under subsection (2) above shall be given—
a
by publishing the notice in such manner as the Director considers appropriate for the purpose of bringing the notice to the attention of persons likely to be affected by the making of the modifications; and
b
by serving a copy of the notice on the holder of the licence.
4
The Director shall also send a copy of a notice under subsection (2) above to the Secretary of State; and if, within the period specified in the notice, the Secretary of State directs the Director not to make any modifications, the Director shall comply with the direction.
F365
The modification under this section of part of a standard condition of a licence shall not prevent any other part of the condition from continuing to be regarded as a standard condition for the purposes of this Part.
F3711A Modification of standard conditions of licences.
1
Subject to the following provisions of this section, the Authority may modify the standard conditions of licences of any type mentioned in section 6(1).
2
Where at any time the Authority modifies the standard conditions of licences of any type under this section the Authority may make such incidental or consequential modifications as it considers necessary or expedient of any conditions of any licence of that type.
3
Before making any modifications under this section, the Authority shall give notice—
a
stating that it proposes to make the modifications and setting out their effect;
b
stating the reasons why it proposes to make the modifications; and
c
specifying the time (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed modifications may be made;
and shall consider any representations or objections which are duly made and not withdrawn.
4
A notice under subsection (3) shall be given—
a
by publishing the notice in such manner as the Authority considers appropriate for the purpose of bringing the notice to the attention of persons likely to be affected by the making of the modifications; and
b
by sending a copy of the notice to each relevant licence holder, to the Secretary of State and to the Council.
5
If, within the time specified in the notice under subsection (3), the Secretary of State directs the Authority not to make any modification, the Authority shall comply with the direction.
6
The Authority may not under this section make any modifications of the standard conditions of licences of any type unless—
a
no notice of objection to those modifications is given to the Authority within the time specified in the notice under subsection (3) by any relevant licence holder;
b
if one or more relevant licence holders give notice of objection to the Authority within that time—
i
the proportion (expressed as a percentage) of the relevant licence holders who have given notice of objection is less than such percentage as may be prescribed; and
ii
the percentage given by subsection (7) is less than such percentage as may be prescribed; or
c
subsection (8) applies to the case.
7
The percentage given by this subsection is the proportion (expressed as a percentage) of the relevant licence holders who have given notice of objection, weighted according to their market share in such manner as may be prescribed.
8
This subsection applies where the Authority is satisfied that—
a
the effect of the standard conditions is such as to impose a burden affecting relevant licence holders in the carrying on of activities to which the modifications relate;
b
the modifications would remove or reduce the burden without removing any necessary protection; and
c
the modifications are such that no holder of a licence of the type in question would be unduly disadvantaged in competing with other holders of such licences.
9
Where the Authority modifies the standard conditions of licences of any type—
a
the Authority shall also make (as nearly as may be) the same modifications of those conditions for the purposes of their incorporation in licences of that type granted after that time; and
b
the Authority shall publish the modifications in such manner as it considers appropriate.
10
In this section—
“prescribed” means prescribed in an order made by the Secretary of State; and
“relevant licence holder”, in relation to proposed modifications of standard conditions of licences of any type, means the holder of a licence of that type—
- a
which is to be modified under the proposals by the inclusion of any new standard condition; or
- b
which includes any standard conditions to which the proposals relate, other than standard conditions which are not in effect F236... at the time specified in the notice under subsection (3).
- a
11
A statutory instrument containing an order under this section shall not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.
C1212 Modification references to Monopolies Commission.
F381
The Authority may make to the Competition Commission a reference which is so framed as to require the Commission to investigate and report on the questions—
a
whether any matters which relate to the carrying on of activities authorised or regulated by a particular licence and which are specified in the reference operate, or may be expected to operate, against the public interest; and
b
if so, whether the effects adverse to the public interest which those matters have or may be expected to have could be remedied or prevented by modifications of the conditions of the licence.
1A
The Authority may make to the Competition Commission a reference which is so framed as to require the Commission to investigate and report on the questions—
a
whether any matters which relate to the carrying on of activities authorised or regulated by licences of any type mentioned in section 6(1), and which are specified in the reference operate, or may be expected to operate, against the public interest; and
b
if so, whether the effects adverse to the public interest which those matters have or may be expected to have could be remedied or prevented by modifications of the standard conditions of licences of that type.
2
The Director may, at any time, by notice given to the F39Competition Commission vary a reference under this section by adding to the matters specified in the reference or by excluding from the reference some F40... of the matters so specified; and on receipt of any such notice the Commission shall give effect to the variation.
3
The Director may specify in a reference under this section, or a variation of such a reference, for the purpose of assisting the F39Competition Commission in carrying out the investigation on the reference—
a
any effects adverse to the public interest which, in his opinion, the matters specified in the reference or variation have or may be expected to have; and
b
any modifications of the F41relevant conditions by which, in his opinion, those effects could be remedied or prevented.
4
As soon as practicable after making a reference under this section or a variation of such a reference, the Director—
a
shall serve a copy of the reference or variation on the holder of the licence F42or, as the case may be, the relevant licence holders and the Council; and
b
shall publish particulars of the reference or variation in such manner as he considers appropriate for the purpose of bringing the reference or variation to the attention of persons likely to be affected by it.
5
The Director shall also send a copy of a reference under F43subsection (1A), or a variation of such a reference, to the Secretary of State; and if, before the end of the period of 28 days beginning with the day on which the Secretary of State receives the copy of the reference or variation, the Secretary of State directs the F39Competition Commission not to proceed with the reference or, as the case may require, not to give effect to the variation, the Commission shall comply with the direction.
6
It shall be the duty of the Director, for the purpose of assisting the F39Competition Commission in carrying out an investigation on a reference under this section F44or in carrying out functions under section 14A, to give to the Commission—
a
any information in his possession which relates to matters falling within the scope of the investigation F44or the carrying out of those functions and—
i
is requested by the Commission for that purpose; or
ii
is information which, in his opinion, it would be appropriate for that purpose to give to the Commission without any such request; and
b
any other assistance which the Commission may require, and which it is within his power to give, in relation to any such matters;
and the Commission, for the purpose of carrying out any such investigation F44or such functions, shall take account of any information given to them for that purpose under this subsection.
F456A
In this section and sections F19112A, 13, 14 and 14A—
“relevant conditions”—
- a
in relation to a reference under subsection (1), means the conditions of the licence to which the reference relates; and
- b
in relation to a reference under subsection (1A), means the standard conditions of the licences to which the reference relates; and
- a
“relevant licence holder” means the holder of a licence to which a reference under subsection (1A) relates.
7
In determining for the purposes of this section whether any particular matter operates, or may be expected to operate, against the public interest, the F39Competition Commission shall have regard to the matters as respects which duties are imposed on the Secretary of State and the Director by section F463A to 3C.
F1928
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1928A
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F479
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F479A
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
12AF189References under section 12: time limits
1
Every reference under section 12 above shall specify a period (not longer than six months beginning with the date of the reference) within which a report on the reference is to be made.
2
A report of the Competition Commission on a reference under section 12 above shall not have effect (and no action shall be taken in relation to it under section 14 below) unless the report is made before the end of the period specified in the reference or such further period (if any) as may be allowed by the Authority under subsection (3) below.
3
The Authority may, if it has received representations on the subject from the Competition Commission and is satisfied that there are special reasons why the report cannot be made within the period specified in the reference, extend that period by no more than six months.
4
No more than one extension is possible under subsection (3) above in relation to the same reference.
5
The Authority shall, in the case of an extension made by it under subsection (3) above—
a
publish that extension in such manner as it considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by it; and
b
send a copy of what has been published by it under paragraph (a) above to the holder of the licence or, as the case may be, the relevant licence holders.
12B References under section 12: powers of investigation
1
The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in subsections (2) and (3) below, for the purposes of references under section 12 above as they apply for the purposes of references under that Part—
a
section 109 (attendance of witnesses and production of documents etc.);
b
section 110 (enforcement of powers under section 109: general);
c
section 111 (penalties);
d
section 112 (penalties: main procedural requirements);
e
section 113 (payments and interest by instalments);
f
section 114 (appeals in relation to penalties);
g
section 115 (recovery of penalties); and
h
section 116 (statement of policy).
2
Section 110 shall, in its application by virtue of subsection (1) above, have effect as if—
a
subsection (2) were omitted; and
b
in subsection (9) the words from “or section” to “section 65(3))” were omitted.
3
Section 111(5)(b)(ii) shall, in its application by virtue of subsection (1) above, have effect as if—
a
for the words “published (or, in the case of a report under section 50 or 65, given)” there were substituted “made”;
b
for the words “published (or given)”, in both places where they appear, there were substituted “made”; and
c
the words “by this Part” were omitted.
4
Provisions of Part 3 of the Enterprise Act 2002 which have effect for the purposes of sections 109 to 116 of that Act (including, in particular, provisions relating to offences and the making of orders) shall, for the purposes of the application of those sections by virtue of subsection (1) above, have effect in relation to those sections as applied by virtue of that subsection.
5
Accordingly, corresponding provisions of this Act shall not have effect in relation to those sections as applied by virtue of that subsection.
13 Reports on modification references.
1
In making a report on a reference under section 12 above, the F48Competition Commission—
a
shall include in the report definite conclusions on the questions comprised in the reference together with such an account of their reasons for those conclusions as in their opinion is expedient for facilitating a proper understanding of those questions and of their conclusions;
b
where they conclude that any of the matters specified in the reference operate, or may be expected to operate, against the public interest, shall specify in the report the effects adverse to the public interest which those matters have or may be expected to have; and
c
where they conclude that any adverse effects so specified could be remedied or prevented by modifications of the F49relevant conditions, shall specify in the report modifications by which those effects could be remedied or prevented.
F1931A
For the purposes of sections 14 and 14A below, a conclusion contained in a report of the Competition Commission is to be disregarded if the conclusion is not that of at least two-thirds of the members of the group constituted in connection with the reference concerned in pursuance of paragraph 15 of Schedule 7 to the Competition Act 1998.
1B
If a member of a group so constituted disagrees with any conclusions contained in a report made on a reference under section 12 above as the conclusions of the Competition Commission, the report shall, if the member so wishes, include a statement of his disagreement and of his reasons for disagreeing.
F502
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1943
For the purposes of the law relating to defamation, absolute privilege attaches to any report made by the Competition Commission on a reference under section 12 above.
3A
In making any report on a reference under section 12 above the Competition Commission must have regard to the following considerations before disclosing any information.
3B
The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the Competition Commission thinks is contrary to the public interest.
3C
The second consideration is the need to exclude from disclosure (so far as practicable)—
a
commercial information whose disclosure the Competition Commission thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or
b
information relating to the private affairs of an individual whose disclosure the Competition Commission thinks might significantly harm the individual’s interests.
3D
The third consideration is the extent to which the disclosure of the information mentioned in subsection (3C)(a) or (b) above is necessary for the purposes of the report.
4
A report of the F48Competition Commission on a reference under section 12 above shall be made to the Director.
5
Subject to subsection (6) below, the Director—
a
shall, on receiving F51a report on a reference under section 12(1), send a copy of it to the licence holder and to the Secretary of State; and
b
shall, not less than 14 days after that copy is received by the Secretary of State, F52send another copy to the Council and publish that other copy in such manner as he considers appropriate for bringing the report to the attention of persons likely to be affected by it.
F535A
Subject to subsection (6), the Authority shall—
a
on receiving a report on a reference under section 12(1A), send a copy of it to the Secretary of State; and
b
not less than 14 days after that copy is received by the Sectretary of State—
i
send another copy to the Council and to each relevant licence holder; and
ii
not less than 24 hours after complying with sub-paragraph (i) above, publish the copy sent to the Council in such manner as it considers appropriate for bringing the report to the attention of persons likely to be affected by it.
6
If it appears to the Secretary of State that the publication of any matter in such a report would be against the public interest or the commercial interests of any person, he may, before the end of the period of 14 days mentioned in F54subsection (5) or (5A), direct the Authority to exclude that matter from the copy of the report, or (as the case may be) each copy of the report, to be sent and published as mentioned in paragraph (b) of that subsection
14 Modification following report.
1
Where a report of the F55Competition Commission on a reference under section 12 above—
a
includes conclusions to the effect that any of the matters specified in the reference operate, or may be expected to operate, against the public interest;
b
specifies effects adverse to the public interest which those matters have or may be expected to have;
c
includes conclusions to the effect that those effects could be remedied or prevented by modifications of F56the relevant conditions; and
d
specifies modifications by which those effects could be remedied or prevented,
the Director shall, subject to the following provisions of this section, make such modifications of F56the relevant conditions as appear to him requisite for the purpose of remedying or preventing the adverse effects specified in the report.
F571A
Where at any time it modifies under subsection (1) the standard conditions of licences of any type in consequence of a reference under section 12(1A), the Authority may make such incidental and consequential modifications as it considers necessary or expedient of any conditions of licences of that type granted before that time.
2
Before making modifications under this section, the Director shall have regard to the modifications specified in the report.
3
Before making modifications under this section, the Director shall give notice—
a
stating that he proposes to make the modifications and setting out their effect;
b
stating the reasons why he proposes to make the modifications; and
c
specifying the period (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed modifications may be made,
and shall consider any representations or objections which are duly made and not withdrawn.
4
A notice under subsection (3) above shall be given—
a
by publishing the notice in such manner as the Director considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by the making of the modifications; and
b
by serving a copy of the notice on the holder of the licence F58or, as the case may be, the relevant licence holders.
F595
After considering any representations or objections made in response to proposals set out in a notice under subsection (3), the Authority shall give notice to the Competition Commission—
a
setting out the modifications it proposes to make to remedy or prevent the adverse effects specified in the report; and
b
stating the reasons for making the modifications.
6
The Authority shall include with the notice under subsection (5) a copy of any representations or objections received in relation to the notice under subsection (3).
7
If the period of four weeks from the date on which the notice under subsection (5) is given elapses without a direction under section 14A(1)(a) having been given to it, the Authority shall—
a
make the modifications set out in the notice; or
b
if a direction under section 14A(1)(b) has been given, make the modifications which are not specified in the direction.
8
The modification under subsection (1) of part of a standard condition of a particular licence in consequence of a reference under section 12(1) shall not prevent any other part of the condition from continuing to be regarded as a standard condition for the purposes of this Part.
9
Where the Authority modifies the standard conditions of licences of any type as mentioned in subsection (1A), the Authority—
a
shall also make (as nearly as may be) the same modifications of those conditions for the purposes of their incorporation in licences of that type granted after that time; and
b
shall publish the modifications made for those purposes in such manner as it considers appropriate.
F6014A Competition Commission’s power to veto modifications following report.
1
The Competition Commission (in this section referred to as “the Commission”) may, within the period of four weeks after the date on which it is given a notice under section 14(5), direct the Authority—
a
not to make the modifications set out in that notice; or
b
not to make such of the modifications as may be specified in the direction;
and the Authority shall comply with any such direction.
2
The Secretary of State may, within the period of four weeks after the date on which the Commission is given a notice under section 14(5) and on the application of the Commission, direct that the period for giving a direction under subsection (1) (and, accordingly, the period mentioned in section 14(7)) shall be extended by 14 days.
3
The power to give a direction under subsection (1) may only be exercised in respect of such of the modifications set out in the notice under section 14(5)(a) as appear to the Commission not to be the modifications which are requisite for the purpose of remedying or preventing all or any of the adverse effects specified in the report as effects which could be remedied or prevented by modifications.
4
If the Commission gives a direction under subsection (1), the Commission—
a
shall give notice setting out the modifications proposed by the Authority, the terms of the direction and the reasons for giving it; and
b
shall itself make such modifications of the relevant conditions as appear to it to be requisite for the purpose of remedying or preventing—
i
if the direction was given under subsection (1)(a), the adverse effects specified in the report as effects which could be remedied or prevented by modifications;
ii
if the direction was given under subsection (1)(b), such of those adverse effects as are not remedied or prevented by the modifications made by the Authority under section 14(7)(b).
5
In exercising its function under subsection (4)(b) the Commission shall have regard to the matters to which the Authority is required to have regard when determining the conditions of a licence.
6
Before making modifications under subsection (4)(b) the Commission shall give notice—
a
stating that it proposes to make the modifications and setting them out;
b
stating the reason why it proposes to make them;
c
specifying the period (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed modifications may be made,
and shall consider any representations or objections which are duly made and not withdrawn.
7
A notice under subsection (4)(a) or (6) shall be given—
a
by publishing the notice in such manner as the Commission considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by the making of the modifications; and
b
by serving a copy on the Authority and the holder of the licence in question or, as the case may be, the relevant licence holders.
8
After making modifications under this section the Commission shall publish a notice stating that the modifications have been made and setting them out, with the reasons for making them.
9
Where, in consequence of a reference under section 12(1A), the Commission modifies under subsection (4)(b) the standard conditions of licences of any type, the Authority may make such incidental and consequential modifications as it considers necessary or expedient of any conditions of licences of that type granted before that time.
10
Where the Commission modifies the standard conditions of licences of any type as mentioned in subsection (9), the Authority—
a
shall make (as nearly as may be) the same modifications of those conditions for the purposes of their incorporation in licences of that type granted after that time; and
b
shall publish the modifications made for those purposes in such manner as it considers appropriate.
11
The modification under this section of part of a standard condition of a particular licence in consequence of a reference under section 12(1) shall not prevent any other part of the condition from continuing to be regarded as a standard condition for the purposes of this Part.
F19511A
For the purposes of the law relating to defamation, absolute privilege attaches to any notice under subsection (4)(a), (6) or (8).
11B
In giving any notice under subsection (4)(a) or (6), or publishing any notice under subsection (8), the Commission must have regard to the following considerations before disclosing any information.
11C
The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the Commission thinks is contrary to the public interest.
11D
The second consideration is the need to exclude from disclosure (so far as practicable)—
a
commercial information whose disclosure the Commission thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or
b
information relating to the private affairs of an individual whose disclosure the Commission thinks might significantly harm the individual’s interests.
11E
The third consideration is the extent to which the disclosure of the information mentioned in subsection (11D)(a) or (b) is necessary for the purposes of the notice.
11F
The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in subsections (11G) and (11H), for the purposes of any investigation by the Commission for the purposes of the exercise of its functions under this section, as they apply for the purposes of any investigation on references under that Part—
a
section 109 (attendance of witnesses and production of documents etc.);
b
section 110 (enforcement of powers under section 109: general);
c
section 111 (penalties);
d
section 112 (penalties: main procedural requirements);
e
section 113 (payments and interest by instalments);
f
section 114 (appeals in relation to penalties);
g
section 115 (recovery of penalties); and
h
section 116 (statement of policy).
11G
Section 110 shall, in its application by virtue of subsection (11F), have effect as if—
a
subsection (2) were omitted;
b
in subsection (4), for the words “the publication of the report of the Commission on the reference concerned” there were substituted “the publication by the Commission of a notice under section 14A(8) of the Electricity Act 1989 in connection with the reference concerned or, if no direction has been given by the Commission under section 14A(1) of that Act in connection with the reference concerned and within the period permitted for that purpose, the latest day on which it was possible to give such a direction within the permitted period;“ and
c
in subsection (9) the words from “or section” to “section 65(3))” were omitted.
11H
Section 111(5)(b) shall, in its application by virtue of subsection (11F), have effect as if for sub-paragraph (ii) there were substituted—
ii
if earlier, the day on which a notice is published by the Commission under section 14A(8) of the Electricity Act 1989 in connection with the reference concerned or, if no direction is given by the Commission under section 14A(1) of that Act in connection with the reference concerned and within the period permitted for that purpose, the latest day on which such a direction may be given within the permitted period.
11I
Provisions of Part 3 of the Enterprise Act 2002 which have effect for the purposes of sections 109 to 116 of that Act (including, in particular, provisions relating to offences and the making of orders) shall, for the purposes of the application of those sections by virtue of subsection (11F) above, have effect in relation to those sections as applied by virtue of that subsection.
11J
Accordingly, corresponding provisions of this Act shall not have effect in relation to those sections as applied by virtue of that subsection.
F19612
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F19613
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
14
This section does not apply to the modification of a licence following a report of the Commission made before the commencement of section 39 of the Utilities Act 2000.
15 Modification by order under other enactments.
C13F1971
Where the Office of Fair Trading, the Competition Commission or (as the case may be) the Secretary of State (in this section “the relevant authority”) makes a relevant order, the order may also provide for the modification of the conditions of a particular licence, or the standard conditions of licences of any type mentioned in section 6(1), to such extent as may appear to the relevant authority to be requisite or expedient for the purpose of giving effect to, or taking account of, any provision made by the order.
F1972
In subsection (1) above “relevant order” means—
a
an order under section 75, 83 or 84 of, or paragraph 5, 10 or 11 of Schedule 7 to, the Enterprise Act 2002 where—
i
one or more than one of the enterprises which have, or may have, ceased to be distinct enterprises was engaged in the carrying on of activities authorised or regulated by a licence; or
ii
one or more than one of the enterprises which will or may cease to be distinct enterprises is engaged in the carrying on of activities authorised or regulated by a licence; or
b
an order under section 160 or 161 of that Act where the feature, or combination of features, of the market in the United Kingdom for goods or services which prevents, restricts or distorts competition relates to the generation, transmission, distribution or supply of electricity.
F612A
The modification under subsection (1) of part of a standard condition of a particular licence shall not prevent any other part of the condition from continuing to be regarded as a standard condition for the purposes of this Part.
F1982B
Where the relevant authority modifies under subsection (1) the standard conditions of licences of any type, the relevant authority—
a
shall also make (as nearly as may be) the same modifications of those conditions for the purposes of their incorporation in licences of that type granted after that time; and
b
may, after consultation with the Authority, make such incidental or consequential modifications as the relevant authority considers necessary or expedient of any conditions of any licence of that type granted before that time.
2C
Where at any time the F199relevant authority modifies standard conditions under subsection (2B)(a) for the purposes of their incorporation in licences granted after that time, F200the relevant authority shall publish those modifications in such manner as F200the relevant authority considers appropriate.
F2013
Expressions used in subsection (2) above and in Part 3 or (as the case may be) Part 4 of the Enterprise Act 2002 have the same meanings in that subsection as in that Part.
F6215A Licence modifications relating to new electricity trading arrangements.
1
The Secretary of State may, in accordance with this section, modify—
a
the conditions of a particular licence; or
b
the standard conditions of licences of any type mentioned in section 6(1),
where he considers it necessary or expedient to do so for the purpose of implementing, or facilitating the operation of, new arrangements relating to the trading of electricity.
2
The power to modify licence conditions under paragraph (a) or (b) of subsection (1) includes power—
a
to make modifications relating to the operation of transmission systems and distribution systems; and
b
to make incidental or consequential, or transitional, modifications.
3
Before making modifications under this section the Secretary of State shall consult the holder of any licence being modified and such other persons as he considers appropriate.
4
Any consultation undertaken by the Secretary of State before the commencement of this section shall be as effective, for the purposes of subsection (3), as if undertaken after that commencement.
5
Any modification of part of a standard condition of a licence under subsection (1)(a) shall not prevent any other part of the condition from continuing to be regarded as a standard condition for the purposes of this Part.
6
Where the standard conditions of licences of any type are modified under subsection (1)(b), the Secretary of State shall make (as nearly as may be) the same modifications of the standard conditions for the purposes of their incorporation in licences of that type granted after that time.
7
The Secretary of State shall publish any modifications under this section in such manner as he considers appropriate.
8
The power of the Secretary of State under this section may not be exercised after the end of the period of two years beginning with the passing of the Utilities Act 2000.
F80Duties of electricity distributors
Ss. 16, 16A, 17 and cross-heading substituted for ss. 16, 17 (1.10.2001) by 2000 c. 27, s. 44; S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)
F63C1416 Duty to connect on request.
1
An electricity distributor is under a duty—
a
to make a connection between a distribution system of his and any premises, when required to do so by—
i
the owner or occupier of the premises; or
ii
an authorised supplier acting with the consent of the owner or occupier of the premises,
for the purpose of enabling electricity to be conveyed to or from the premises;
b
to make a connection between a distribution system of his and any distribution system of another authorised distributor, when required to do so by that authorised distributor for the purpose of enabling electricity to be conveyed to or from that other system.
2
Any duty under subsection (1) includes a duty to provide such electric lines or electrical plant as may be necessary to enable the connection to be used for the purpose for which it is required.
3
The duties under this section shall be performed subject to such terms as may be agreed under section 16A for so long as the connection is required.
4
In this section and sections 16A to 23—
a
any reference to making a connection includes a reference to maintaining the connection (and continuing to provide the necessary electric lines or electrical plant);
b
any reference to requiring a connection includes a reference to requiring the connection to be maintained (and the continued provision of the necessary electric lines and electrical plant); and
c
any reference to the provision of any electric line or electrical plant is a reference to the provision of such a line or an item of electrical plant either by the installation of a new one or by the modification of an existing one.
5
The duties under this section are subject to the following provisions of this Part and any regulations made under those provisions.
F6416A Procedure for requiring a connection.
1
Where a person requires a connection to be made by an electricity distributor in pursuance of section 16(1), he shall give the distributor a notice requiring him to offer terms for making the connection.
2
That notice must specify—
a
the premises or distribution system to which a connection to the distributor’s system is required;
b
the date on or by which the connection is to be made; and
c
the maximum power at which electricity may be required to be conveyed through the connection.
3
The person requiring a connection shall also give the distributor such other information in relation to the required connection as the distributor may reasonably request.
4
A request under subsection (3) shall be made as soon as practicable after the notice under subsection (1) is given (if not made before that time).
F3314A
The Secretary of State may, after consulting the Authority, make provision by regulations for the purpose of entitling an electricity distributor to require a person requiring a connection in pursuance of section 16(1) to pay connection offer expenses to such extent as is reasonable in all the circumstances.
4B
In this section “connection offer expenses” means expenses which—
a
are of a kind specified by the regulations, and
b
have been reasonably incurred by the electricity distributor.
4C
Regulations under subsection (4A) may specify—
a
circumstances in which an electricity distributor may not require the payment of connection offer expenses by virtue of the regulations;
b
the manner in which expenses reasonably incurred by an electricity distributor are to be calculated for the purposes of subsection (4B)(b).
5
As soon as practicable after receiving the notice under subsection (1)F332, any information requested under subsection (3) and any amount payable by virtue of subsection (4A) to the distributor by the person requiring the connection, the distributor shall give to that person a notice—
a
stating the extent (if any) to which his proposals are acceptable to the distributor and specifying any counter proposals made by him;
b
specifying any payment which that person will be required to make under section 19(1) or regulations under section 19(2);
c
specifying any security which that person will be required to give under section 20; and
d
stating any other terms which that person will be required to accept under section 21.
6
A notice under subsection (5) shall also contain a statement of the effect of section 23.
F6517 Exceptions from duty to connect.
1
Nothing in section 16(1) requires an electricity distributor to make a connection if and to the extent that—
a
he is prevented from doing so by circumstances not within his control;
b
circumstances exist by reason of which his doing so would or might involve his being in breach of regulations under section 29, and he has taken all such steps as it was reasonable to take both to prevent the circumstances from occurring and to prevent them from having that effect; or
c
it is not reasonable in all the circumstances for him to be required to do so.
2
Without prejudice to the generality of subsection (1) an electricity distributor is not required to make a connection if—
a
making the connection involves the distributor doing something which, without the consent of another person, would require the exercise of a power conferred by any provision of Schedule 3 or 4;
b
the distributor’s licence does not provide for that provision to have effect in relation to him; and
c
any necessary consent has not, at the time the request is made, been given.
3
Subsection (1)(c) does not permit an electricity distributor to disconnect any premises or distribution system to which a connection is being maintained by him unless the distributor gives—
a
where the connection is to premises, to the occupier or to the owner if the premises are not occupied;
b
where the connection is to another distribution system, to the person who is authorised by a licence or exemption to run that system,
not less than seven working days’ notice of his intention to disconnect the premises or distribution system.
F6618. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
19 Power to recover expenditure.
1
Where any electric line or electrical plant is provided by F67an electricity distributor in pursuance of section 16(1) above, the F67distributor may require any expenses reasonably incurred in providing it to be defrayed by the person requiring the F67connection to such extent as is reasonable in all the circumstances.
F682
The Secretary of State may, after consultation with the Authority, make provision by regulations for entitling an electricity distributor to require a person requiring a connection in pursuance of section 16(1) to pay to the distributor, in respect of any expenses reasonably incurred in providing any electric line or electrical plant used for the purpose of making the connection, such amount as may be reasonable in all the circumstances if—
a
the connection is required within the prescribed period after the provision of the line or plant; and
b
a person (“the initial contributor”) has made a payment to the distributor in respect of those expenses, the line or plant having been provided for the purpose of making a connection to any premises or distribution system as required by that person.
3
Regulations under subsection (2) above may require F69an electricity distributor who, in pursuance of this section or the regulations, has recovered any amount in respect of expenses reasonably incurred in providing any electric line or electrical plant—
a
to exercise his rights under the regulations in respect of those expenses; and
b
to apply any payments received by him in the exercise of those rights in making such payments as may be appropriate towards reimbursing the initial contributor and any persons previously required to make payments under the regulations.
4
Any reference in this section to any expenses reasonably incurred in providing an electric line or electrical plant includes a reference to the capitalised value of any expenses likely to be so incurred in F70continuing to provide it
20 Power to require security.
F711
Subject to the following provisions of this section, an electricity distributor may require any person who requires a connection in pursuance of section 16(1) to give him reasonable security for the payment to him under section 19 in respect of the provision of any electric line or electrical plant.
1A
If a person fails to give any security required under subsection (1), or the security given has become invalid or insufficient, and he fails to provide alternative or additional security, the electricity distributor may if he thinks fit—
a
if the connection has not been made, refuse to provide the line or plant for so long as the failure continues; or
b
if the connection is being maintained, disconnect the premises or distribution system in question.
F722
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3
Where any money is deposited with F73an electricity distributor by way of security in pursuance of this section, the F73distributor shall pay interest, at such rate as may from time to time be fixed by the F73distributor with the approval of the Director, on every sum of 50p so deposited for every three months during which it remains in the hands of the F73distributor.
F724
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F7421 Additional terms of connection.
An electricity distributor may require any person who requires a connection in pursuance of section 16(1) above to accept in respect of the making of the connection—
a
any restrictions which must be imposed for the purpose of enabling the distributor to comply with regulations under section 29;
b
any terms which it is reasonable in all the circumstances for that person to be required to accept; and
c
without prejudice to the generality of paragraph (b), any terms restricting any liability of the distributor for economic loss resulting from negligence which it is reasonable in all the circumstances for that person to be required to accept.
C15F7522 Special agreements with respect to connection.
1
Notwithstanding anything in sections 16 to 21, a person who requires a connection in pursuance of section 16(1) may enter into an agreement with the electricity distributor (referred to in this Part as a “special connection agreement”) for the making of the connection on such terms as may be agreed by the parties.
2
So long as a special connection agreement is effective, the rights and liabilities of the parties shall be those arising under the agreement and not those provided for by sections 16 to 21.
3
Nothing in subsection (2) prevents the giving of a notice under section 16A(1) requiring a connection to be made as from the time when a special connection agreement ceases to be effective.
C16C1723 Determination of disputes.
F761
This section applies (in addition to any disputes to which it applies by virtue of any other provision of this Act) to any dispute arising under sections 16 to 21 between an electricity distributor and a person requiring a connection.
1A
A dispute to which this section applies—
a
may be referred to the Authority by either party, or with the agreement of either party, by the Council; and
b
on such a reference, shall be determined by order made either by the Authority or, if the Authority thinks fit, by an arbitrator (or in Scotland an arbiter) appointed by the Authority.
1B
The practice and procedure to be followed in connection with any such determination shall be such as the Authority may consider appropriate. .
1C
No dispute arising under sections 16 to 21 which relates to the making of a connection between any premises and a distribution system may be referred to the Authority after the end of the period of 12 months beginning with the time when the connection is made..
2
Where a dispute arising under sections 16 to 21 between an electricity distributor and a person requiring a connection falls to be determined under this section, the Authority may give directions as to the circumstances in which, and the terms on which, the distributor is to make or (as the case may be) to maintain a connection pending the determination of the dispute.
3
Where any dispute arising under section 20(1) above falls to be determined under this section, the Director may give directions as to the security (if any) to be given pending the determination of the dispute.
4
Directions under subsection (2) or (3) above may apply either in cases of particular descriptions or in particular cases.
F774A
A person making an order under this section shall include in the order his reasons for reaching his decision with respect to the dispute.
5
An order under this section—
a
may include such incidental, supplemental and consequential provision (including provision requiring either party to pay a sum in respect of the costs or expenses incurred by the person making the order) as that person considers appropriate; and
b
shall be final and—
i
in England and Wales, shall be enforceable, in so far as it includes such provision as to costs or expenses, as if it were a judgment of the county court;
ii
in Scotland, shall be enforceable as if it were an extract registered decree arbitral bearing a warrant for execution issued by the sheriff.
6
In including in an order under this section any such provision as to costs or expenses as is mentioned in subsection (5) above, the person making the order shall have regard to the conduct and means of the parties and any other relevant circumstances.
F787
Section 16(4)(a) does not apply to the references in this section to making a connection.
24 The public electricity supply code.
The provisions of Schedule 6 to this Act (which relate to the F79distribution and supply of electricity) shall have effect.
Enforcement of preceding provisions
C60C64C6825 Orders for securing compliance.
1
Subject to subsections (2)F81, (5) and (5A) and section 26 below, where the Director is satisfied that a licence holder is contravening, or is likely to contravene, any relevant condition or requirement, he shall by a final order make such provision as is requisite for the purpose of securing compliance with that condition or requirement.
2
Subject to F82subsections (5) and (5A) below, where it appears to the Director—
a
that a licence holder is contravening, or is likely to contravene, any relevant condition or requirement; and
b
that it is requisite that a provisional order be made,
he shall (instead of taking steps towards the making of a final order) by a provisional order make such provision as appears to him requisite for the purpose of securing compliance with that condition or requirement.
3
In determining for the purposes of subsection (2)(b) above whether it is requisite that a provisional order be made, the Director shall have regard, in particular—
a
to the extent to which any person is likely to sustain loss or damage in consequence of anything which, in contravention of the relevant condition or requirement, is likely to be done, or omitted to be done, before a final order may be made; and
b
to the fact that the effect of the provisions of this section and section 27 below is to exclude the availability of any remedy (apart from under those provisions or for negligence) in respect of any contravention of a relevant condition or requirement.
4
Subject to F82subsections (5) and (5A) and section 26 below, the Director shall confirm a provisional order, with or without modifications, if—
a
he is satisfied that the licence holder to whom the order relates is contravening, or is likely to contravene, any relevant condition or requirement; and
b
the provision made by the order (with any modifications) is requisite for the purpose of securing compliance with that condition or requirement.
5
The Director shall not make a final order or make or confirm a provisional order in relation to a licence holder if he is satisfied—
a
that the duties imposed on him by section F833A to 3C preclude the making or, as the case may be, the confirmation of the order;
F84b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F84c
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
d
that the most appropriate way of proceeding is under the Competition Act 1998.
F855A
The Authority is not required to make a final order or make or confirm a provisional order if it is satisfied—
a
that the licence holder has agreed to take and is taking all such steps as it appears to the Authority for the time being to be appropriate for the licence holder to take for the purpose of securing or facilitating compliance with the condition or requirement in question; or
b
that the contraventions were or the apprehended contraventions are of a trivial nature.
6
a
serve notice that he is so satisfied on the licence holder; and
b
publish the notice in such manner as he considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by them.
7
A final or provisional order—
a
shall require the licence holder to whom it relates (according to the circumstances of the case) to do, or not to do, such things as are specified in the order or are of a description so specified;
b
shall take effect at such time, being the earliest practicable time, as is determined by or under the order; and
c
may be revoked at any time by the Director.
8
In this Part—
“final order” means an order under this section other than a provisional order;
“provisional order” means an order under this section which, if not previously confirmed in accordance with subsection (4) above, will cease to have effect at the end of such period (not exceeding three months) as is determined by or under the order;
“relevant condition”, in relation to a licence holder, means any condition of his licence;
“relevant requirement”, in relation to a licence holder, means any duty or other requirement imposed on him by or under section 9 or sections 16 to 23 aboveF86, or F354sections 32 to 32M, section 40, 40A, 42, 42A F320, 42AB , 42C, 43A or 43B below F319or section 25(5) of the Consumers, Estate Agents and Redress Act 2007 (directions to comply with requirements under section 24 of that Act)F318, or section 43, 46 or 47 of that Act (complaints).
C60C64C6826 Procedural requirements.
1
Before he makes a final order or confirms a provisional order, the Director shall give notice—
a
stating that he proposes to make or confirm the order and setting out its effect;
b
setting out—
i
the relevant condition or requirement for the purpose of securing compliance with which the order is to be made or confirmed;
ii
the acts or omissions which, in his opinion, constitute or would constitute contraventions of that condition or requirement; and
iii
the other facts which, in his opinion, justify the making or confirmation of the order; and
c
specifying the period (not being less than F8721 days from the date of publication of the notice) within which representations or objections with respect to the proposed order or proposed confirmation may be made,
and shall consider any representations or objections which are duly made and not withdrawn.
2
A notice under subsection (1) above shall be given—
a
by publishing the notice in such manner as the Director considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by them; and
b
by serving a copy of the notice, and a copy of the proposed order or of the order proposed to be confirmed, on the licence holder to whom the order relates.
3
The Director shall not make a final order with modifications, or confirm a provisional order with modifications, except—
a
with the consent to the modifications of the licence holder to whom the order relates; or
b
after complying with the requirements of subsection (4) below.
4
The requirements mentioned in subsection (3) above are that the Director shall—
a
serve on the licence holder to whom the order relates such notice as appears to him requisite of his proposal to make or confirm the order with modifications;
b
in that notice specify the period (not being less than F8721 days from the date of the service of the notice) within which representations or objections with respect to the proposed modifications may be made; and
c
consider any representations or objections which are duly made and not withdrawn.
5
As soon as practicable after making a final order or making or confirming a provisional order, the Director shall—
a
serve a copy of the order on the licence holder to whom the order relates; and
b
publish the order in such manner as he considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by it.
6
Before revoking a final order or a provisional order which has been confirmed, the Director shall give notice—
a
stating that he proposes to revoke the order and setting out its effect; and
b
specifying the period (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed revocation may be made,
and shall consider any representations or objections which are duly made and not withdrawn.
7
If, after giving a notice under subsection (6) above, the Director decides not to revoke the order to which the notice relates, he shall give notice of his decision.
8
A notice under subsection (6) or (7) above shall be given—
a
by publishing the notice in such manner as the Director considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by them; and
b
by serving a copy of the notice on the licence holder to whom the order relates.
C60C64C6827 Validity and effect of orders.
1
If the licence holder to whom a final or provisional order relates is aggrieved by the order and desires to question its validity on the ground—
a
that its making or confirmation was not within the powers of section 25 above; or
b
that any of the requirements of section 26 above have not been complied with in relation to it,
he may, within 42 days from the date of service on him of a copy of the order, make an application to the court under this section.
2
On any such application the court may, if satisfied that the making or confirmation of the order was not within those powers or that the interests of the licence holder have been substantially prejudiced by a failure to comply with those requirements, quash the order or any provision of the order.
3
Except as provided by this section, the validity of a final or provisional order shall not be questioned by any legal proceedings whatever.
4
The obligation to comply with a final or provisional order shall be a duty owed to any person who may be affected by a contravention of the order.
5
Where a duty is owed by virtue of subsection (4) above to any person, any breach of the duty which causes that person to sustain loss or damage shall be actionable at the suit or instance of that person.
6
In any proceedings brought against a licence holder in pursuance of subsection (5) above, it shall be a defence for him to prove that he took all reasonable steps and exercised all due diligence to avoid contravening the order.
7
Without prejudice to any right which any person may have by virtue of subsection (5) above to bring civil proceedings in respect of any contravention or apprehended contravention of a final or provisional order, compliance with any such order shall be enforceable by civil proceedings by the Director for an injunction or for interdict or for any other appropriate relief.
8
In this section and section 28 below “the court” means the High Court in relation to England and Wales and the Court of Session in relation to Scotland.
C60C64C68F8827A Penalties.
1
Where the Authority is satisfied that a licence holder—
a
has contravened or is contravening any relevant condition or requirement; or
b
has failed or is failing to achieve any standard of performance prescribed under section 39 or 39A,
the Authority may, subject to section 27C, impose on the licence holder a penalty of such amount as is reasonable in all the circumstances of the case.
2
The Authority shall not impose a penalty on a licence holder under subsection (1) where it is satisfied that the most appropriate way of proceeding is under the M4Competition Act 1998.
3
Before imposing a penalty on a licence holder under subsection (1) the Authority shall give notice—
a
stating that it proposes to impose a penalty and the amount of the penalty proposed to be imposed;
b
setting out the relevant condition or requirement or the standard of performance in question;
c
specifying the acts or omissions which, in the opinion of the Authority, constitute the contravention or failure in question and the other facts which, in the opinion of the Authority, justify the imposition of a penalty and the amount of the penalty proposed; and
d
specifying the period (not being less than 21 days from the date of publication of the notice) within which representations or objections with respect to the proposed penalty may be made,
and shall consider any representations or objections which are duly made and not withdrawn.
4
Before varying any proposal stated in a notice under subsection (3)(a) the Authority shall give notice—
a
setting out the proposed variation and the reasons for it; and
b
specifying the period (not being less than 21 days from the date of publication of the notice) within which representations or objections with respect to the proposed variation may be made,
and shall consider any representations or objections which are duly made and not withdrawn.
5
As soon as practicable after imposing a penalty, the Authority shall give notice—
a
stating that it has imposed a penalty on the licence holder and its amount;
b
setting out the relevant condition or requirement or the standard of performance in question;
c
specifying the acts or omissions which, in the opinion of the Authority, constitute the contravention or failure in question and the other facts which, in the opinion of the Authority, justify the imposition of the penalty and its amount; and
d
specifying a date, no earlier than the end of the period of 42 days from the date of service of the notice on the licence holder, by which the penalty is required to be paid.
6
The licence holder may, within 21 days of the date of service on him of a notice under subsection (5), make an application to the Authority for it to specify different dates by which different portions of the penalty are to be paid.
7
Any notice required to be given under this section shall be given—
a
by publishing the notice in such manner as the Authority considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by them;
b
by serving a copy of the notice on the licence holder; and
c
by serving a copy of the notice on the Council.
8
No penalty imposed by the Authority under this section may exceed 10 per cent. of the turnover of the licence holder (determined in accordance with provisions specified in an order made by the Secretary of State).
9
An order under subsection (8) shall not be made unless a draft of the instrument containing it has been laid before and approved by a resolution of each House of Parliament.
10
Any sums received by the Authority by way of penalty under this section shall be paid into the Consolidated Fund.
11
The power of the Authority under subsection (1) is not exercisable in respect of any contravention or failure before the commencement of section 59 of the Utilities Act 2000.
C60C64C68F8927BStatement of policy with respect to penalties.
1
The Authority shall prepare and publish a statement of policy with respect to the imposition of penalties and the determination of their amount.
2
In deciding whether to impose a penalty, and in determining the amount of any penalty, in respect of a contravention or failure the Authority shall have regard to its statement of policy most recently published at the time when the contravention or failure occurred.
3
The Authority may revise its statement of policy and where it does so shall publish the revised statement.
4
Publication under this section shall be in such manner as the Authority considers appropriate for the purpose of bringing the matters contained in the statement of policy to the attention of persons likely to be affected by them.
5
The Authority shall undertake such consultation as it considers appropriate when preparing or revising its statement of policy.
C60C64C68F9027C Time limits on the imposition of financial penalties.
1
Where no final or provisional order has been made in relation to a contravention or failure, the Authority may not impose a penalty in respect of the contravention or failure later than the end of the period of 12 months from the time of the contravention or failure, unless before the end of that period—
a
the notice under section 27A(3) relating to the penalty is served on the licence holder under section 27A(7), or
b
a notice relating to the contravention or failure is served on the licence holder under section 28(2).
2
Where a final or provisional order has been made in relation to a contravention or failure, the Authority may not impose a penalty in respect of the contravention or failure unless the notice relating to the penalty under section 27A(3) was served on the licence holder under section 27A(7)—
a
within three months from the confirmation of the provisional order or the making of the final order, or
b
where the provisional order is not confirmed, within six months from the making of the provisional order.
C60C64C68F9127D Interest and payment of instalments.
1
If the whole or any part of a penalty is not paid by the date by which it is required to be paid, the unpaid balance from time to time shall carry interest at the rate for the time being specified in section 17 of the M5Judgments Act 1838.
2
If an application is made under subsection (6) of section 27A in relation to a penalty, the penalty is not required to be paid until the application has been determined.
3
If the Authority grants an application under that subsection in relation to a penalty but any portion of the penalty is not paid by the date specified in relation to it by the Authority under that subsection, the Authority may where it considers it appropriate require so much of the penalty as has not already been paid to be paid immediately.
C60C64C68F9227E Appeals.
1
If the licence holder on whom a penalty is imposed is aggrieved by—
a
the imposition of the penalty;
b
the amount of the penalty; or
c
the date by which the penalty is required to be paid, or the different dates by which different portions of the penalty are required to be paid,
the licence holder may make an application to the court under this section.
2
An application under subsection (1) must be made—
a
within 42 days from the date of service on the licence holder of a notice under section 27A(5), or
b
where the application relates to a decision of the Authority on an application by the licence holder under section 27A(6), within 42 days from the date the licence holder is notified of the decision.
3
On any such application, where the court considers it appropriate to do so in all the circumstances of the case and is satisfied of one or more of the grounds falling within subsection (4), the court—
a
may quash the penalty;
b
may substitute a penalty of such lesser amount as the court considers appropriate in all the circumstances of the case; or
c
in the case of an application under subsection (1)(c), may substitute for the date or dates imposed by the Authority an alternative date or dates.
4
The grounds falling within this subsection are—
a
that the imposition of the penalty was not within the power of the Authority under section 27A;
b
that any of the requirements of subsections (3) to (5) or (7) of section 27A have not been complied with in relation to the imposition of the penalty and the interests of the licence holder have been substantially prejudiced by the non-compliance; or
c
that it was unreasonable of the Authority to require the penalty imposed, or any portion of it, to be paid by the date or dates by which it was required to be paid.
5
If an application is made under this section in relation to a penalty, the penalty is not required to be paid until the application has been determined.
6
Where the court substitutes a penalty of a lesser amount it may require the payment of interest on the substituted penalty at such rate, and from such date, as it considers just and equitable.
7
Where the court specifies as a date by which the penalty, or a portion of the penalty, is to be paid a date before the determination of the application under this section it may require the payment of interest on the penalty, or portion, from that date at such rate as it considers just and equitable.
8
Except as provided by this section, the validity of a penalty shall not be questioned by any legal proceedings whatever.
9
In this section “the court” means—
a
in relation to England and Wales, the High Court; and
b
in relation to Scotland, the Court of Session.
C60C64C68F9327F Recovery of penalties.
Where a penalty imposed under section 27A(1), or any portion of it, has not been paid by the date on which it is required to be paid and—
a
no application relating to the penalty has been made under section 27E during the period within which such an application can be made, or
b
an application has been made under that section and determined,
the Authority may recover from the licence holder, as a civil debt due to it, any of the penalty and any interest which has not been paid.
C60C64C6828 Power to require information etc.
1
Where it appears to F94the Authority that a licence holder—
a
may be contravening, or may have contravened, any relevant condition or requirement; or
b
may be failing, or may have failed, to achieve any standard of performance prescribed under section 39 or 39A,
the Authority may, for any purpose connected with such of its functions under section 25 or 27A to 27F as are exercisable in relation to that matter, serve a notice under subsection (2) below on any person.
2
A notice under this subsection is a notice signed by the Director and—
a
requiring the person on whom it is served to produce, at a time and place specified in the notice, to the Director or to any person appointed by the Director for the purpose, any documents which are specified or described in the notice and are in that person’s custody or under his control; or
b
requiring that person, if he is carrying on a business, to furnish, at a time and place and in the form and manner specified in the notice, to the Director such information as may be specified or described in the notice.
F952A
Where a licence has been or is to be revoked or suspended, or has expired or is about to expire by effluxion of time, and it appears to the Authority, having regard to the duties imposed by section 3A, 3B or 3C, to be requisite or expedient to do so for any purpose connected with the revocation, suspension or expiry, the Authority may, with the consent of the Secretary of State, by notice in writing—
a
require the licence holder to produce, at a time and place specified in the notice, to the Authority, or to any person so specified, any records which are specified or described in the notice and are in the licence holder’s custody or under his control; or
b
require the licence holder to furnish to the Authority, or to any person specified in the notice, such information as may be specified or described in the notice, and specify the time, the manner and the form in which any such information is to be furnished.
3
No person shall be required under this section to produce any documents F96or records which he could not be compelled to produce in civil proceedings in the court or, in complying with any requirement for the furnishing of information, to give any information which he could not be compelled to give in evidence in any such proceedings.
4
A person who without reasonable excuse fails to do anything required of him by notice under subsection (2) F97or (2A) above shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.
5
A person who intentionally alters, suppresses or destroys any document F98or record which he has been required by any notice under subsection (2) F99or (2A) above to produce shall be liable—
a
on summary conviction, to a fine not exceeding the statutory maximum;
b
on conviction on indictment, to a fine.
6
If a person makes default in complying with a notice under subsection (2) F100or (2A) above, the court may, on the application of the Director, make such order as the court thinks fit for requiring the default to be made good; and any such order may provide that all the costs or expenses of and incidental to the application shall be borne by the person in default or by any officers of a company or other association who are responsible for its default.
Provisions with respect to supply generally
29 Regulations relating to supply and safety.
1
The Secretary of State may make such regulations as he thinks fit for the purpose of—
a
securing that supplies of electricity are regular and efficient;
b
c
without prejudice to the generality of paragraph (b) above, eliminating or reducing the risks of personal injury, or damage to property or interference with its use, arising as mentioned in that paragraph.
F2511A
Regulations under this section may include provision for securing the purposes mentioned in subsection (1) in relation to the territorial sea adjacent to Great Britain or any Renewable Energy Zone.
2
Without prejudice to the generality of subsection (1) above, regulations under this section may—
a
prohibit the F102distribution or transmission of electricity except by means of a system approved by the Secretary of State;
b
c
make provision as to the keeping, by persons authorised by a licence or exemption to F104distribute or F237participate in the transmission of electricity F261or to participate in the operation of an electricity interconnector, of maps, plans and sections and as to their production (on payment, if so required, of a reasonable fee) for inspection or copying;
d
make provision for relieving F105electricity distributors from any duty under section 16 or authorising them to disconnect any premises or distribution system in such cases as may be prescribed;
e
make provision requiring compliance with notices given by the Secretary of State specifying action to be taken in relation to any electric line or electrical plant, or any electrical appliance under the control of a consumer, for the purpose of—
i
preventing or ending a breach of regulations under this section; or
ii
eliminating or reducing a risk of personal injury or damage to property or interference with its use;
f
provide for particular requirements of the regulations to be deemed to be complied with in the case of any electric line or electrical plant complying with specified standards or requirements;
g
provide for the granting of exemptions from any requirement of the regulations for such periods as may be determined by or under the regulations.
3
Regulations under this section may provide that any person—
a
who contravenes any specified provision of the regulations; or
b
who does so in specified circumstances,
shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale; but nothing in this subsection shall affect any liability of any such person to pay compensation in respect of any damage or injury which may have been caused by the contravention.
4
No proceedings shall be instituted in England and Wales in respect of an offence under this section except by or on behalf of the Secretary of State or the Director of Public Prosecutions.
30 Electrical inspectors.
1
The Secretary of State may appoint competent and impartial persons to be electrical inspectors under this Part.
2
The duties of an electrical inspector under this Part shall be as follows—
a
b
to examine, periodically and in special cases, the generation, transmissionF106, distribution or supply of electricity by such persons;
c
to inspect and test, if and when required by any consumer, any such lines and plant on the consumer’s premises, for the purpose of determining whether any requirement imposed by or under this Part in respect of the lines or plant or the F107conveyance of electricity through them has been complied with; and
d
such other duties as may be imposed by regulations under this section or as the Secretary of State may determine.
3
The Secretary of State may by regulations—
a
prescribe the manner in which and the times at which any duties are to be performed by electrical inspectors;
b
require persons authorised by a licence or exemption to F108carry on licensable activities—
i
to furnish electrical inspectors with records or other information; and
ii
to allow such inspectors access to premises and the use of electrical plant and other facilities;
c
make provision for relieving F109electricity distributors from any duty under section 16 or authorising them to disconnect any premises or distribution system in such cases as may be prescribed; and
d
prescribe the amount of the fees which are to be payable to such inspectors.
F2523A
The regulations that may be made under this section include regulations—
a
imposing duties on electrical inspectors in relation to anything in the territorial sea adjacent to Great Britain or a Renewable Energy Zone; or
b
making any other provision authorised by this section in relation to activities carried on there.
4
Any fees received by electrical inspectors shall be paid to the Secretary of State; and any sums received by him under this subsection shall be paid into the Consolidated Fund.
31 Use etc. of meters.
The provisions of Schedule 7 to this Act (which relate to the use, certification, testing and maintenance of electricity meters) shall have effect.
Protection of public interest
32F353 The renewables obligation
1
The relevant minister may make a renewables obligation order.
2
“The relevant minister” means—
a
in the case of Scotland, the Scottish Ministers,
b
in any other case, the Secretary of State.
3
In subsection (2) “Scotland” includes—
a
so much of the internal waters and territorial sea of the United Kingdom as are adjacent to Scotland, and
b
a Renewable Energy Zone, or any part of such a Zone, which is designated by order under section 84(5) of the Energy Act 2004 (areas in relation to which Scottish Ministers have functions).
4
A renewables obligation order is an order which imposes the renewables obligation on each electricity supplier falling within a specified description (a “designated electricity supplier”).
5
The descriptions of electricity supplier upon which a renewables obligation order may impose the renewables obligation are those supplying electricity to customers in the relevant part of Great Britain, excluding such categories of supplier (if any) as are specified.
6
The renewables obligation is that the designated electricity supplier must, by each specified day, have produced to the Authority the required number of renewables obligation certificates in respect of the amount of electricity supplied by it during a specified period to customers in the relevant part of Great Britain.
7
Subsection (6) is subject to sections 32A to 32M.
32AFurther provision about the renewables obligation
1
A renewables obligation order may make provision generally in relation to the renewables obligation.
2
A renewables obligation order may, in particular, specify—
a
how the number of renewables obligation certificates required to be produced by an electricity supplier in respect of the amount of electricity supplied by it to customers in the relevant part of Great Britain during a specified period is to be calculated;
b
different obligations for successive periods of time;
c
that renewables obligation certificates issued in respect of electricity generated—
i
using specified descriptions of renewable sources,
ii
by specified descriptions of generating stations,
iii
in specified ways, or
iv
in other specified cases or circumstances,
are to count towards discharging an electricity supplier's obligation only up to a specified number, or a specified proportion, of the certificates required to be produced to discharge the obligation;
d
that a specified number, or a specified proportion, of the renewables obligation certificates produced by an electricity supplier when discharging its renewables obligation must be certificates in respect of electricity generated—
i
using specified descriptions of renewable sources,
ii
by specified descriptions of generating station,
iii
in specified ways, or
iv
in other specified cases or circumstances;
e
how the amount of electricity supplied by an electricity supplier to customers in the relevant part of Great Britain during a specified period is to be calculated;
f
that specified information, or information of a specified nature, is to be given to the Authority;
g
the form in which such information is to be given and the time by which it is to be given.
3
A renewables obligation certificate may count once only towards the discharge of the renewables obligation.
4
Except as provided by a renewables obligation order, a renewables obligation certificate counts towards discharging the renewables obligation regardless of whether the order under which it is issued is made by the Secretary of State or the Scottish Ministers.
5
A renewables obligation order may specify that the only renewables obligation certificates which count towards discharging the renewables obligation are certificates which are issued—
a
in respect of electricity supplied to customers in the relevant part of Great Britain, or
b
in respect of electricity used in a permitted way (within the meaning of section 32B(9) and (10)) in that part of Great Britain.
6
A renewables obligation order may, in relation to any specified period (“the current period”)—
a
provide that renewables obligation certificates in respect of electricity supplied in a later period may, when available, be counted towards discharging the renewables obligation for the current period;
b
provide that renewables obligation certificates in respect of electricity supplied in the current period may, in a later period, be counted towards discharging the renewables obligation for that period;
c
specify how much later the later period referred to in paragraph (a) or (b) may be;
d
specify a maximum proportion of the renewables obligation for any period which may be discharged as mentioned in paragraph (a) or (b);
e
specify a maximum proportion, or maximum number of, the renewables obligation certificates issued in respect of electricity supplied in any period which may be counted towards discharging the renewables obligation for a different period.
7
For the purposes of subsection (6) a certificate which certifies that electricity has been used in a permitted way (within the meaning of section 32B(9) and (10)) in a particular period is to be treated as if it were a certificate which certifies that electricity has been supplied in that period.
32BRenewables obligation certificates
1
A renewables obligation order may provide for the Authority to issue from time to time, in accordance with such criteria (if any) as are specified in the order, a certificate (“a renewables obligation certificate”) to—
a
the operator of a generating station,
b
an electricity supplier or a Northern Ireland supplier, or
c
if the order so provides, a person of any other description specified in the order.
2
A renewables obligation certificate is to certify—
a
the matters within subsection (3) or (4), or
b
if the order provides that a certificate may certify the matters within subsection (5), (6), (7) or (8), the matters within that subsection.
3
The matters within this subsection are—
a
that the generating station, or, in the case of a certificate issued otherwise than to the operator of a generating station, a generating station specified in the certificate, has generated from renewable sources the amount of electricity stated in the certificate, and
b
that it has been supplied by an electricity supplier to customers in Great Britain (or the part of Great Britain stated in the certificate).
4
The matters within this subsection are—
a
that the generating station, or, in the case of a certificate issued otherwise than to the operator of a generating station, a generating station specified in the certificate, has generated from renewable sources the amount of electricity stated in the certificate,
b
that the generating station in question is not a generating station mentioned in Article 54(1) of the Energy (Northern Ireland) Order 2003, and
c
that the electricity has been supplied by a Northern Ireland supplier to customers in Northern Ireland.
5
The matters within this subsection are—
a
that two or more generating stations have, between them, generated from renewable sources the amount of electricity stated in the certificate, and
b
that it has been supplied by an electricity supplier to customers in Great Britain (or the part of Great Britain stated in the certificate).
6
The matters within this subsection are—
a
that two or more generating stations have, between them, generated from renewable sources the amount of electricity stated in the certificate,
b
that none of them is a generating station mentioned in Article 54(1) of the Energy (Northern Ireland) Order 2003, and
c
that the electricity has been supplied by a Northern Ireland supplier to customers in Northern Ireland.
7
The matters within this subsection are—
a
that the generating station, or, in the case of a certificate issued otherwise than to the operator of a generating station, a generating station specified in the certificate, has generated from renewable sources the amount of electricity stated in the certificate, and
b
that the electricity has been used in a permitted way.
8
The matters within this subsection are—
a
that two or more generating stations have, between them, generated from renewable sources the amount of electricity stated in the certificate, and
b
that the electricity has been used in a permitted way.
9
For the purposes of subsections (7) and (8), electricity generated by a generating station, or generating stations, of any description is used in a permitted way if—
a
it is used in one of the ways mentioned in subsection (10), and
b
that way is specified in the order as a permitted way—
i
in relation to all generating stations, or
ii
in relation to generating stations of that description.
10
Those ways are—
a
being consumed by the operator of the generating station or generating stations by which it was generated;
b
being supplied to customers in Great Britain through a private wire network;
c
being provided to a distribution system or a transmission system in circumstances in which its supply to customers cannot be demonstrated;
d
being used, as respects part, as mentioned in one of paragraph (a), (b) or (c) and as respects the remainder—
i
as mentioned in one of the other paragraphs, or
ii
as respects part, as mentioned in one of the other paragraphs and as respects the remainder as mentioned in the other;
e
being used, as respects part, as mentioned in paragraph (a), (b), (c) or (d) and as respects the remainder by being supplied by an electricity supplier to customers in Great Britain or by a Northern Ireland supplier to customers in Northern Ireland, or both.
11
For the purposes of subsection (10)(b) electricity is supplied through a private wire network if it is conveyed to premises by a system which is used for conveying electricity from a generating station in circumstances where—
a
the operator of the generating station is exempt from section 4(1)(c) and does not hold a supply licence, and
b
the electricity is supplied to one or more customers—
i
by the operator directly, or
ii
by a person to whom the operator supplies the electricity, being a person who is exempt from section 4(1)(c) and does not hold a supply licence.
12
In this section “generating station”—
a
in the case of an order made by the Scottish Ministers, means a generating station which is situated in Scotland;
b
in the case of an order made by the Secretary of State, means a generating station which is not situated in Scotland.
13
For this purpose “Scotland” is to be construed in accordance with section 32(3).
32CSection 32B: supplemental provision
1
A renewables obligation order may provide—
a
that no renewables obligation certificates are to be issued in respect of electricity generated in specified cases or circumstances, or
b
that renewables obligation certificates are to be issued in respect of a proportion only of the electricity generated in specified cases or circumstances.
2
In particular, provision made by virtue of subsection (1) may specify—
a
electricity generated using specified descriptions of renewable sources,
b
electricity generated by specified descriptions of generating station, or
c
electricity generated in specified ways.
3
Provision made by virtue of subsection (1)(b) may include—
a
provision about how the proportion is to be determined;
b
provision about what, subject to such exceptions as may be specified, constitutes sufficient evidence of any matter required to be established for the purpose of determining that proportion;
c
provision authorising the Authority, in specified circumstances, to require an operator of a generating station to arrange—
i
for samples of any fuel used (or to be used) in the generating station, or of any gas or other substance produced as a result of the use of such fuel, to be taken by a person, and analysed in a manner, approved by the Authority, and
ii
for the results of that analysis to be made available to the Authority.
4
In the case of electricity generated by a generating station fuelled or driven—
a
partly by renewable sources, and
b
partly by fossil fuel (other than waste which constitutes a renewable source),
only the proportion attributable to the renewable sources is to be regarded as generated from such sources.
5
A renewables obligation order may specify—
a
how the proportion referred to in subsection (4) is to be determined, and
b
the consequences for the issuing of renewables obligation certificates if a generating station of the type mentioned in that subsection uses more than a specified proportion of fossil fuel during a specified period.
6
Those consequences may include the consequence that no certificates are to be issued in respect of any of the electricity generated by that generating station during that period.
7
A renewables obligation order may specify circumstances in which the Authority may revoke a renewables obligation certificate before its production for the purposes of the renewables obligation.
8
A renewables obligation order must—
a
prohibit the issue of a renewables obligation certificate certifying matters within section 32B(4) or (6) where the Northern Ireland authority has notified the Authority that it is not satisfied that the electricity in question has been supplied to customers in Northern Ireland, and
b
require the revocation of such a certificate if the Northern Ireland authority so notifies the Authority at a time between the issue of the certificate and its production for the purposes of the renewables obligation.
9
References in section 32B and this section to the supply of electricity to customers in Northern Ireland are to be construed in accordance with the definition of “supply” in Article 3 of the Electricity (Northern Ireland) Order 1992.
32DAmounts of electricity specified in certificates
1
A renewables obligation order may specify the amount of electricity to be stated in each renewables obligation certificate, and different amounts may be specified in relation to different cases or circumstances.
2
In particular, different amounts may be specified in relation to—
a
electricity generated from different renewable sources;
b
electricity generated by different descriptions of generating station;
c
electricity generated in different ways.
3
In this section “banding provision” means provision made in a renewables obligation order by virtue of subsection (1).
4
Before making any banding provision, the relevant minister must have regard to the following matters—
a
the costs (including capital costs) associated with generating electricity from each of the renewable sources or with transmitting or distributing electricity so generated;
b
the income of operators of generating stations in respect of electricity generated from each of those sources or associated with the generation of such electricity;
c
the effect of paragraph 19 of Schedule 6 to the Finance Act 2000 (c. 17) (supplies of electricity from renewable sources exempted from climate change levy) in relation to electricity generated from each of those sources;
d
the desirability of securing the long term growth, and economic viability, of the industries associated with the generation of electricity from renewable sources;
e
the likely effect of the proposed banding provision on the number of renewables obligation certificates issued by the Authority, and the impact this will have on the market for such certificates and on consumers;
f
the potential contribution of electricity generated from each renewable source to the attainment of any target which relates to the generation of electricity or the production of energy and is imposed by, or results from or arises out of, a Community obligation.
5
For the purposes of subsection (4)(a), the costs associated with generating electricity from a renewable source include any costs associated with the production or supply of heat produced in connection with that generation.
6
For the purposes of subsection (4)(b), an operator's income associated with the generation of electricity from a renewable source includes any income connected with—
a
the acquisition of the renewable source;
b
the supply of heat produced in connection with the generation;
c
the disposal of any by-product of the generation process.
7
After the first order containing banding provision is made by the relevant minister, no subsequent order containing such provision may be made by that minister except following a review held by virtue of subsection (8).
8
A renewables obligation order—
a
may authorise the relevant minister to review the banding provision at such intervals as are specified in or determined in accordance with the order, and
b
may authorise the relevant minister to review the whole or any part of the banding provision at any time when that minister is satisfied that one or more of the specified conditions is satisfied.
32ESection 32D: transitional provision and savings
1
This section applies where a renewables obligation order contains banding provision.
2
The order may provide for the effect of any banding provision made in an earlier order, or of any provision of a pre-commencement order, to continue, in such circumstances as may be specified, in relation to—
a
the electricity generated by generating stations of such a description as may be specified, or
b
so much of that electricity as may be determined in accordance with the order.
3
For the purposes of subsection (2) “pre-commencement order” means an order made under section 32 before the coming into force of this section.
4
Subsection (6) applies to a generating station in respect of which a statutory grant has been awarded if—
a
the generating station is of a specified description, or
b
the circumstances of the case meet specified requirements.
5
The requirements specified under subsection (4)(b) may relate to the time when the grant was awarded (whether a time before or after the coming into force of this section).
6
A renewables obligation order which contains banding provision may provide for the operation of that provision in relation to electricity generated by a generating station to which this subsection applies to be conditional upon the operator of the station agreeing—
a
if the grant or any part of it has been paid, to repay to the Secretary of State the whole or a specified part of the grant or part before the repayment date,
b
to pay to the Secretary of State interest on an amount repayable under paragraph (a) for such period, and at such rate, as may be determined by the Secretary of State, and
c
if the grant or any part of it has not yet been paid, to consent to the cancellation of the award of the grant or part.
7
If the grant in respect of which an amount falls to be paid under paragraph (a) or (b) of subsection (6) was paid by the Scottish Ministers, the references in those paragraphs to the Secretary of State are to be read as references to those Ministers.
8
For the purposes of subsection (6)—
a
“the repayment date” means the date specified in or determined in accordance with the order, and
b
the period for which interest is payable must not begin before the grant was paid or, if the repayment relates to an instalment of the grant, before the instalment was paid;
and, for the purposes of provision made under that subsection, a renewables obligation order may make provision about the cancellation of an award of a statutory grant or an instalment of such a grant.
9
In this section “statutory grant” means—
a
a grant awarded under section 5(1) of the Science and Technology Act 1965 (grants to carry on or support scientific research), or
b
any other grant which is payable out of public funds and awarded under or by virtue of an Act.
10
This section is without prejudice to section 32K(1)(b) (power for renewables obligation order to include transitional provision and savings).
32FUse of renewables obligation certificates issued in Northern Ireland
1
A renewables obligation order may provide that—
a
in such cases as may be specified in the order, and
b
subject to such conditions as may be so specified,
an electricity supplier may (to the extent provided for in accordance with the order) discharge its renewables obligation (or its obligation in relation to a particular period) by the production to the Authority of a Northern Ireland certificate.
2
In this section “Northern Ireland certificate” means a certificate issued by the Northern Ireland authority in accordance with provision included, by virtue of F355Articles 54 to 54D of the Energy (Northern Ireland) Order 2003, in an order under Article 52 of that Order (renewables obligations for Northern Ireland suppliers).
32GPayment as alternative to complying with renewables obligation order
1
A renewables obligation order may provide—
a
that an electricity supplier may (in whole or in part) discharge its renewables obligation by making a payment to the Authority before the last discharge day, and
b
that an electricity supplier's renewables obligation that was not discharged in whole or in part before the last discharge day is to be treated as having been discharged to the extent specified in the order where the payment for which the order provides is made to the Authority before the end of the late payment period.
2
The order may make provision—
a
as to the sum which for the purposes of subsection (1) is to correspond to a renewables obligation certificate,
b
for the sums that must be paid in order for an obligation to be treated as having been discharged to increase at a rate specified in the order for each day after the last discharge day;
c
for different sums or rates falling within paragraph (a) or (b) in relation to different periods;
d
for different such sums or rates in relation to electricity generated in different cases or circumstances specified in the order (including those of a kind referred to in section 32A(2)(c));
e
for any such sum or rate to be adjusted from time to time for inflation by a method specified in the order.
3
The method specified under subsection (2)(e) may, in particular, refer to a specified scale or index (as it may have effect from time to time) or to other specified data of any description.
4
A renewables obligation order may provide that, where—
a
a renewables obligation is one in relation to which provision made by virtue of subsection (1)(b) applies in the case of the electricity supplier who is subject to the obligation, and
b
the period ending with such day (after the last discharge day) as may be specified in or determined under the order has not expired,
the taking of steps under section 27A in respect of a contravention by that supplier of that obligation is prohibited or otherwise restricted to the extent specified in the order.
5
A renewables obligation order may provide that, in a case in which the amount received by the Authority, or by the Northern Ireland authority, by way of discharge payments for a period falls short of the amount due in respect of that period, every person who—
a
was subject to a renewables obligation for the relevant period or for a subsequent period specified in or determined under the order, and
b
is of a description so specified or determined,
must by the time and in the circumstances so specified or determined make a payment (or further payment) to the Authority of an amount calculated in the manner so specified or determined.
6
A renewables obligation order may not by virtue of subsection (5) confer an entitlement on the Authority to receive a payment in respect of the shortfall for any period—
a
in the case of a shortfall in the amount received by the Authority, if the receipt of the payment is to be while a prohibition or restriction by virtue of subsection (4) applies, in one or more cases, to the taking of steps in relation to contraventions of renewables obligations for that period, or
b
in the case of a shortfall in the amount received by the Northern Ireland authority, if the receipt of the payment is to be while a prohibition or restriction by virtue of a corresponding provision having effect in Northern Ireland applies, in one or more cases, to the taking of steps in relation to contraventions of Northern Ireland obligations for that period.
7
The provision that may be made by virtue of subsection (5) includes—
a
provision for the making of adjustments and repayments at times after a requirement to make payments in respect of a shortfall for a period has already arisen, and
b
provision that sections 25 to 28 are to apply in relation to a requirement imposed by virtue of that subsection on a person who is not a licence holder as if the person were a licence holder.
8
References in this section to an electricity supplier's renewables obligation include references to its renewables obligation in relation to a particular period.
9
For the purposes of this section, the amount received by the Authority by way of discharge payments for a period falls short of the amount due in respect of that period if, and to the extent that, the Authority would have received more by way of discharge payments if every renewables obligation for that period, so far as it was not otherwise discharged, had been discharged by payment.
10
For the purposes of this section the amount received by the Northern Ireland authority by way of discharge payments for a period falls short of the amount due in respect of that period if, and to the extent that, that authority would have received more by way of discharge payments if every Northern Ireland obligation for that period, so far as not otherwise discharged, had been discharged by payment.
11
In this section—
“discharge payment”, in relation to a period, means—
- a
a payment by virtue of subsection (1)(a) for discharging (in whole or in part) an electricity supplier's renewables obligation for that period,
- b
so much of a payment by virtue of subsection (1)(b) for securing that such an obligation is treated as discharged to any extent as does not exceed the payment that would have discharged that obligation to the same extent if it had been made before the last discharge day, or
- c
so much of any payment to the Northern Ireland authority as corresponds in relation to a Northern Ireland obligation for that period, to anything falling within paragraph (a) or (b) above;
- a
“last discharge day” means the day specified as the day by which renewables obligation certificates must be produced for the purposes of section 32(6);
“late payment period” means such period beginning with the last discharge day as may be specified;
“Northern Ireland obligation” means a renewables obligation of a Northern Ireland supplier under Article 52 of the Energy (Northern Ireland) Order 2003;
“the relevant period”—
- a
in relation to a shortfall in amounts received by the Authority by way of discharge payments for a period, means that period, and
- b
in relation to a shortfall in amounts received by the Northern Ireland authority by way of discharge payments for a period, means any period that includes the whole or a part of that period.
- a
32HAllocation of amounts to electricity suppliers
1
The amounts received by the Authority by virtue of section 32G must be paid by it to electricity suppliers in accordance with a system of allocation specified in a renewables obligation order.
2
Subsection (1) does not apply to those amounts to the extent that they are used by the Authority under section 32I.
3
The system of allocation specified in the order may provide for payments to specified categories of electricity supplier only.
4
That system may also provide for the postponement of a requirement to make payments to electricity suppliers of amounts received by the Authority under section 32G(1)(b) if, at the time the payments would otherwise fall to be made, the aggregate of the amounts so received (and not used under section 32I or already paid under subsection (1)) is less than an amount specified in the order.
5
The references in this section to electricity suppliers include references to Northern Ireland suppliers.
32ICosts of the Authority and the Northern Ireland authority
1
A renewables obligation order may provide for amounts received by the Authority by virtue of section 32G to be used by the Authority—
a
to make payments into the Consolidated Fund in respect of costs (or a proportion of costs) which have been or are expected to be incurred by the Authority in connection with the performance of its functions conferred by or under sections 32 to 32M, or
b
to make payments to the Northern Ireland authority in respect of costs (or a proportion of costs) which have been or are expected to be incurred by that authority in connection with the performance of its functions conferred by or under Articles 52 to F35655F of the Energy (Northern Ireland) Order 2003.
2
A renewables obligation order—
a
may exclude amounts of a specified description from being used as mentioned in subsection (1);
b
may prevent the Authority using amounts to make payments in respect of costs of a specified description.
32JInformation
1
A renewables obligation order may provide for the Authority to require—
a
an electricity supplier to provide the Authority with information, or with information of a particular kind, which in the Authority's opinion is relevant to the question whether the supplier is discharging, or has discharged, its renewables obligation;
b
a person to provide the Authority with information, or with information of a particular kind, which in the Authority's opinion is relevant to the question whether a renewables obligation certificate is, or was or will in future be, required to be issued to the person.
2
That information must be given to the Authority in whatever form it requires.
3
A renewables obligation order may—
a
require operators of generating stations generating electricity (wholly or partly) from biomass to give specified information, or information of a specified kind, to the Authority;
b
specify what, for this purpose, constitutes “biomass”;
c
require the information to be given in a specified form and within a specified period;
d
authorise or require the Authority to postpone the issue of certificates under section 32B to the operator of a generating station who fails to comply with a requirement imposed by virtue of paragraph (a) or (c) until such time as the failure is remedied;
e
authorise or require the Authority to refuse to issue certificates to such a person or to refuse to issue them unless the failure is remedied within a prescribed period.
4
The Authority may publish information obtained by virtue of subsection (3).
5
No person is required by virtue of this section to provide any information which the person could not be compelled to give in evidence in civil proceedings in the High Court or, in Scotland, the Court of Session.
32KRenewables obligation order: general provision
1
A renewables obligation order may—
a
make further provision as to the functions of the Authority in relation to the matters dealt with by the order;
b
make transitional provision and savings;
c
provide for anything falling to be calculated or otherwise determined under the order to be calculated or determined by such persons, in accordance with such procedure and by reference to such matters and to the opinion of such persons, as may be specified in the order;
d
make different provision for different cases or circumstances.
2
Provision made by virtue of subsection (1)(b) may, in particular, include provision about the treatment of certificates issued under section 32B before the substitution of that section by section 37 of the Energy Act 2008 F357or certificates referred to in section 38(2)(b) of the Energy Act 2008 (Northern Ireland certificates issued under the Energy (Northern Ireland) Order 2003 before 1st April 2009).
3
Provision made by virtue of subsection (1)(d) may, in particular, make—
a
different provision in relation to different suppliers;
b
different provision in relation to generating stations of different descriptions;
c
different provision in relation to different localities.
4
In subsection (3) “supplier” means an electricity supplier or a Northern Ireland supplier.
32LRenewables obligation orders: procedure
1
Before making a renewables obligation order, the relevant minister must consult—
a
the Authority,
b
the Council,
c
the electricity suppliers to whom the proposed order would apply,
d
such generators of electricity from renewable sources as the relevant minister considers appropriate, and
e
such other persons, if any, as the relevant minister considers appropriate.
2
A renewables obligation order is not to be made by the Secretary of State unless a draft of the instrument containing it has been laid before and approved by a resolution of each House of Parliament.
3
A renewables obligation order is not to be made by the Scottish Ministers unless a draft of the instrument containing it has been laid before and approved by a resolution of the Scottish Parliament.
32MInterpretation of sections 32 to 32M
1
In this section and sections 32 to 32L—
“banding provision” is to be construed in accordance with section 32D(3);
“fossil fuel” means—
- a
coal,
- b
lignite,
- c
natural gas (within the meaning of the Energy Act 1976),
- d
crude liquid petroleum,
- e
petroleum products (within the meaning of that Act), or
- f
any substance produced directly or indirectly from a substance mentioned in paragraphs (a) to (e);
- a
“generated” means generated at any place whether situated in the United Kingdom or elsewhere, and cognate expressions are to be construed accordingly;
“Northern Ireland authority” means the Northern Ireland Authority for Utility Regulation;
“Northern Ireland supplier” means an electricity supplier within the meaning of Part 7 of the Energy (Northern Ireland) Order 2003;
“the relevant minister” has the meaning given by section 32;
“the relevant part of Great Britain” means—
- a
in the case of a renewables obligation order made by the Secretary of State, England and Wales (including so much of the internal waters and territorial sea of the United Kingdom as are adjacent to England or Wales);
- b
in the case of a renewables obligation order made by the Scottish Ministers, Scotland (including so much of the internal waters and territorial sea of the United Kingdom as are adjacent to Scotland);
- a
“the renewables obligation” is to be construed in accordance with section 32(4);
“renewables obligation certificate” is to be construed in accordance with section 32B;
“renewables obligation order” is to be construed in accordance with section 32;
“renewable sources” means sources of energy other than fossil fuel or nuclear fuel, but includes waste of which not more than a specified proportion is waste which is, or is derived from, fossil fuel;
“specified”, in relation to a renewables obligation order, means specified in the order.
2
For the purposes of the definition of “renewable sources”, a renewables obligation order may make provision—
a
about what constitutes “waste”;
b
about how the proportion of waste which is, or is derived from, fossil fuel is to be determined;
c
about what, subject to such exceptions as may be specified, constitutes sufficient evidence of that proportion in any particular case;
d
authorising the Authority, in specified circumstances, to require an operator of a generating station to arrange—
i
for samples of any fuel used (or to be used) in the generating station, or of any gas or other substance produced as a result of the use of such fuel, to be taken by a person, and analysed in a manner, approved by the Authority, and
ii
for the results of that analysis to be made available to the Authority.
3
For the purposes of the definition of “the relevant part of Great Britain”, the territorial sea adjacent to England is the territorial sea adjacent to the United Kingdom, other than the territorial sea adjacent to Scotland, Wales or Northern Ireland.
4
An Order in Council under section 126(2) of the Scotland Act 1998 (c. 46) (apportionment of sea areas) has effect for the purposes of this section and sections 32 to 32L if, or to the extent that, the Order is expressed to apply—
a
by virtue of this subsection, for those purposes, or
b
if no provision has been made by virtue of paragraph (a), for the general or residual purposes of that Act.
5
An order or Order in Council made under or by virtue of section 158(3) or (4) of the Government of Wales Act 2006 (apportionment of sea areas) has effect for the purposes of this section if, or to the extent that, the order or Order in Council is expressed to apply—
a
by virtue of this subsection, for those purposes, or
b
if no provision has been made by virtue of paragraph (a), for the general or residual purposes of that Act.
6
An Order in Council under section 98(8) of the Northern Ireland Act 1998 (c. 46) (apportionment of sea areas) has effect for the purposes of this section if, or to the extent that, the Order is expressed to apply—
a
by virtue of this subsection, for those purposes, or
b
if no provision has been made by virtue of paragraph (a), for the general or residual purposes of that Act.
7
A renewables obligation order may make provision, for the purposes of sections 32 to 32L, about the circumstances in which electricity is to be regarded as having been supplied—
a
to customers in Great Britain;
b
to customers in the relevant part of Great Britain;
c
to customers in Northern Ireland.
F110C18C19C6333. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C2034 Fuel stocks etc. at generating stations.
C211
This section applies to any generating station which—
a
is of a capacity not less than 50 megawatts; and
b
is fuelled otherwise than by waste or manufactured gases;
and in this subsection “waste” has the same meaning as in the M6Control of Pollution Act 1974.
2
The Secretary of State may by order provide that subsection (1) above shall have effect as if for the capacity mentioned in paragraph (a) there were substituted such other capacity (not exceeding 100 megawatts) as may be specified in the order.
3
In respect of any generating station to which this section applies, the Secretary of State may give a direction requiring the person who operates it—
a
to make such arrangements with respect to stocks of fuel and other materials held at or near that generating station for the purposes of its operation as will—
i
enable those stocks to be brought within a specified time to, and thereafter maintained at, a specified level; and
ii
ensure that they do not fall below that level, except as may be permitted by the terms of the direction or by a direction under subsection (4) below;
b
to create such stocks and make such arrangements with respect to them;
and the amount of any stocks may be specified by reference to the period for which it would enable the generating station to be maintained in operation.
4
In respect of any generating station to which this section applies, the Secretary of State may give a direction—
a
authorising or requiring the person who operates it to make such use as may be specified of any stocks held at or near that generating station; and
b
requiring that person to operate, or not to operate, that generating station for specified periods, at specified levels of capacity or using specified fuels.
5
In subsections (3) and (4) above “specified” means specified by or under the Secretary of State’s direction; and a direction may—
a
specify the cases and circumstances in which any stocks are to be treated as held at or near any generating station;
b
specify the extent to which the direction may be treated as complied with where, under arrangements made or approved by the Secretary of State, access can be had to stocks held for the use of a number of consumers;
c
specify the manner in which any period mentioned in subsection (3) or (4) above is to be determined;
d
require anything falling to be specified under the direction to be specified by such persons and by reference to such matters as may be specified.
6
A direction under subsection (3) or (4) above which confers on any person the function of specifying anything falling to be specified under the direction may require that person to exercise that function in such manner as may be specified by the direction.
C2235 Provisions supplementary to section 34.
1
The Secretary of State may give a direction requiring F239the holder of a transmission licence to give to the Secretary of State, after consultation with specified persons, any information or advice which the Secretary of State may reasonably require for purposes connected with the exercise of his functions under section 34 above.
F2402
The Secretary of State may give a direction requiring any person who is authorised by a licence to participate in the transmission of electricity to carry on the activities which the licence authorises (or any of them), at any time when a direction under section 34(4) above is in force, either in a specified manner or with a view to achieving specified objectives.
3
In subsections (1) and (2) above “specified” means specified by or under the Secretary of State’s direction; F241and a person subject to a direction under subsection (2) above shall give effect to it notwithstanding any other duty imposed on him by or under this Part.
4
The Secretary of State shall lay before each House of Parliament a copy of every direction given under section 34 above or this section unless he is of the opinion that disclosure of the direction is against the interests of national security or the commercial interests of any person.
5
A person who, without reasonable excuse, contravenes or fails to comply with a direction of the Secretary of State under section 34 above or this section shall be liable—
a
on summary conviction, to a fine not exceeding the statutory maximum;
b
on conviction on indictment, to a fine.
6
No proceedings shall be instituted in England and Wales in respect of an offence under this section except by or on behalf of the Secretary of State.
7
Paragraphs 1 to 4, 7 and 8 of Schedule 2 to the M7Energy Act 1976 (administration of Act and other matters) shall have effect as if—
a
section 34 above were contained in that Act;
b
the powers of paragraph 1 were exercisable for any purpose connected with securing compliance with a direction under that section;
c
information obtained by virtue of that paragraph could lawfully be disclosed to any person by whom anything falls to be specified under such a direction; and
d
the powers conferred by sub-paragraph (1)(c) of that paragraph included power to direct that information and forecasts be furnished to any such person.
C23C24C25C49C50C53C65C6636 Consent required for construction etc. of generating stations.
1
Subject to subsections (2) and (4) below, a generating station shall not be constructed F272at a relevant place (within the meaning of section 4), and a generating station at such a place shall not be, extended or operated except in accordance with a consent granted by the Secretary of State.
C26C27C282
Subsection (1) above shall not apply to a generating station whose capacity—
a
does not exceed the permitted capacity, that is to say, 50 megawatts; and
b
in the case of a generating station which is to be constructed or extended, will not exceed the permitted capacity when it is constructed or extended;
and an order under this subsection may make different provision for generating stations of different classes or descriptions.
3
The Secretary of State may by order provide that subsection (2) above shall have effect as if for the permitted capacity mentioned in paragraph (a) there were substituted such other capacity as may be specified in the order.
4
The Secretary of State may by order direct that subsection (1) above shall not apply to generating stations of a particular class or description, either generally or for such purposes as may be specified in the order.
5
F285Subject to subsections (5A) and (5B), A consent under this section—
a
may include such conditions (including conditions as to the ownership or operation of the station) as appear to the Secretary of State to be appropriate; and
b
shall continue in force for such period as may be specified in or determined by or under the consent.
F2845A
In the case of a generating station in respect of which a controlled activity, within the meaning of the Water Environment (Controlled Activities) (Scotland) Regulations 2005, will be carried on, the Secretary of State shall, before granting a consent under subsection (1), obtain and have regard to the advice of the Scottish Environment Protection Agency on matters relating to the protection of the water environment and have regard to the purposes of Part 1 of the Water Environment and Water Services (Scotland) Act 2003.
5B
In the event that the conditions of a consent granted under subsection (1) on matters relating to the protection of the water environment, and the conditions of an authorisation granted under the Water Environment (Controlled Activities) (Scotland) Regulations 2005 differ, and cannot reasonably be reconciled, the relevant conditions of that consent shall be treated as modified to the extent necessary to be consistent with the conditions of that authorisation.
6
Any person who without reasonable excuse contravenes the provisions of this section shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.
7
No proceedings shall be instituted in England and Wales in respect of an offence under this section except by or on behalf of the Secretary of State.
8
The provisions of Schedule 8 to this Act (which relate to consents under this section and section 37 below) shall have effect.
9
In this Part “extension”, in relation to a generating station, includes the use by the person operating the station of any land F273or area of waters (wherever situated) for a purpose directly related to the generation of electricity by that station and “extend” shall be construed accordingly.
36AF280Declarations extinguishing etc. public rights of navigation
1
Where a consent is granted by the Secretary of State or the Scottish Ministers in relation to—
a
the construction or operation of a generating station that comprises or is to comprise (in whole or in part) renewable energy installations situated at places in relevant waters, or
b
an extension of a generating station that is to comprise (in whole or in part) renewable energy installations situated at places in relevant waters or an extension of such an installation,
he or (as the case may be) they may, at the same time, make a declaration under this section as respects rights of navigation so far as they pass through some or all of those places.
2
The Secretary of State or the Scottish Ministers may make such a declaration only if the applicant for the consent made an application for such a declaration when making his application for the consent.
3
A declaration under this section is one declaring that the rights of navigation specified or described in it—
a
are extinguished;
b
are suspended for the period that is specified in the declaration;
c
are suspended until such time as may be determined in accordance with provision contained in the declaration; or
d
are to be exercisable subject to such restrictions or conditions, or both, as are set out in the declaration.
C614
A declaration under this section—
a
has effect, in relation to the rights specified or described in it, from the time at which it comes into force; and
b
continues in force for such period as may be specified in the declaration or as may be determined in accordance with provision contained in it.
C615
A declaration under this section—
a
must identify the renewable energy installations, or proposed renewable energy installations, by reference to which it is made;
b
must specify the date on which it is to come into force, or the means by which that date is to be determined;
c
may modify or revoke a previous such declaration, or a declaration under section 100 of the Energy Act 2004; and
d
may make different provision in relation to different means of exercising a right of navigation.
C616
Where a declaration is made under this section by the Secretary of State or the Scottish Ministers, or a determination is made by him or them for the purposes of a provision contained in such a declaration, he or (as the case may be) they must either—
a
publish the declaration or determination in such manner as appears to him or them to be appropriate for bringing it, as soon as is reasonably practicable, to the attention of persons likely to be affected by it; or
b
secure that it is published in that manner by the applicant for the declaration.
7
In this section—
“consent” means a consent under section 36 above;
“extension”, in relation to a renewable energy installation, has the same meaning as in Chapter 2 of Part 2 of the Energy Act 2004;
“relevant waters” means waters in or adjacent to Great Britain which are between the mean low water mark and the seaward limits of the territorial sea.
36BDuties in relation to navigation
1
Neither the Secretary of State nor the Scottish Ministers may grant a consent in relation to any particular offshore generating activities if he considers, or (as the case may be) they consider, that interference with the use of recognised sea lanes essential to international navigation—
a
is likely to be caused by the carrying on of those activities; or
b
is likely to result from their having been carried on.
2
It shall be the duty both of the Secretary of State and of the Scottish Ministers, in determining—
a
whether to give a consent for any particular offshore generating activities, and
b
what conditions to include in such a consent,
to have regard to the extent and nature of any obstruction of or danger to navigation which (without amounting to interference with the use of such sea lanes) is likely to be caused by the carrying on of the activities, or is likely to result from their having been carried on.
3
In determining for the purposes of this section what interference, obstruction or danger is likely and its extent and nature, the Secretary of State or (as the case may be) the Scottish Ministers must have regard to the likely overall effect (both while being carried on and subsequently) of—
a
the activities in question; and
b
such other offshore generating activities as are either already the subject of consents or are activities in respect of which it appears likely that consents will be granted.
4
For the purposes of this section the effects of offshore generating activities include—
a
how, in relation to those activities, the Secretary of State and the Scottish Ministers have exercised or will exercise their powers under section 36A above and section 100 of the Energy Act 2004 (extinguishment of public rights of navigation); and
b
how, in relation to those activities, the Secretary of State has exercised or will exercise his powers under sections 95 and 96 and Chapter 3 of Part 2 of that Act (safety zones and decommissioning).
5
If the person who has granted a consent in relation to any offshore generating activities thinks it appropriate to do so in the interests of the safety of navigation, he may at any time vary conditions of the consent so as to modify in relation to any of the following matters the obligations imposed by those conditions—
a
the provision of aids to navigation (including, in particular, lights and signals);
b
the stationing of guard ships in the vicinity of the place where the activities are being or are to be carried on; or
c
the taking of other measures for the purposes of, or in connection with, the control of the movement of vessels in that vicinity.
6
A modification in exercise of the power under subsection (5) must be set out in a notice given by the person who granted the consent to the person whose obligations are modified.
7
In this section—
“consent” means a consent under section 36 above;
“offshore generating activities” means—
- a
the construction or operation of a generating station that is to comprise or comprises (in whole or in part) renewable energy installations; or
- b
an extension of a generating station that is to comprise (in whole or in part) renewable energy installations or an extension of such an installation;
- a
“the use of recognised sea lanes essential to international navigation” means—
- a
anything that constitutes the use of such a sea lane for the purposes of Article 60(7) of the United Nations Convention on the Law of the Sea 1982 (Cmnd 8941); or
- b
any use of waters in the territorial sea adjacent to Great Britain that would fall within paragraph (a) if the waters were in a Renewable Energy Zone.
- a
8
In subsection (7) “extension”, in relation to a renewable energy installation, has the same meaning as in Chapter 2 of Part 2 of the Energy Act 2004.
C30C31C32C5437C29 Consent required for overhead lines.
C33C34C69C711
Subject to subsection (2) below, an electric line shall not be installed or kept installed above ground except in accordance with a consent granted by the Secretary of State.
2
Subsection (1) above shall not apply—
a
in relation to an electric line which has a nominal voltage not exceeding 20 kilovolts and is used or intended to be used for supplying a single consumer;
b
in relation to so much of an electric line as is or will be within premises in the occupation or control of the person responsible for its installation; or
c
in such other cases as may be prescribed.
3
A consent under this section—
a
may include such conditions (including conditions as to the ownership and operation of the line) as appear to the Secretary of State to be appropriate;
b
may be varied or revoked by the Secretary of State at any time after the end of such period as may be specified in the consent; and
c
subject to paragraph (b) above, shall continue in force for such period as may be specified in or determined by or under the consent.
4
Any person who without reasonable excuse contravenes the provisions of this section shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.
5
No proceedings shall be instituted in England and Wales in respect of an offence under this section except by or on behalf of the Secretary of State.
38 Preservation of amenity and fisheries.
The provisions of Schedule 9 to this Act (which relate to the preservation of amenity and fisheries) shall have effect.
Consumer protection: standards of performance
39 Electricity supply: performance in individual cases.
F1111
The Authority may, with the consent of the Secretary of State, make regulations prescribing such standards of performance in connection with the activities of electricity suppliers, so far as affecting customers or potential customers of theirs, as in the Authority’s opinion ought to be achieved in individual cases.
2
Regulations under this section may—
a
b
prescribe such standards of Performance in relation to any duty arising under paragraph (a) above as, in the Director’s opinion, ought to be achieved in all cases; and
c
prescribe circumstances in which F112electricity suppliers are to be exempted from any requirements of the regulations or this section,
F114and, if the Authority is of the opinion that the differences are such that no electricity supplier would be unduly disadvantaged in competing with other electricity suppliers, may make different provision for different electricity suppliers.
3
If F115an electricity supplier fails to meet a prescribed standard, he shall make to any person who is affected by the failure and is of a prescribed description such compensation as may be determined by or under the regulations.
4
The making of compensation under this section in respect of any failure by F115an electricity supplier to meet a prescribed standard shall not prejudice any other remedy which may be available in respect of the act or omission which constituted that failure.
F1165
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1165A
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1166
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7
In this section “prescribed” means prescribed by regulations under this section.
F11739A Standards of performance in individual cases: electricity distributors.
1
The Authority may with the consent of the Secretary of State make regulations prescribing such standards of performance in connection with the activities of electricity distributors, so far as affecting customers or potential customers of electricity suppliers, as in the Authority’s opinion ought to be achieved in individual cases.
2
If an electricity distributor fails to meet a prescribed standard, he shall make to any person who is affected by the failure and is of a prescribed description such compensation as may be determined by or under the regulations.
3
The regulations may—
a
prescribe circumstances in which electricity distributors are to inform customers or potential customers of electricity suppliers of their rights under this section;
b
prescribe such standards of performance in relation to any duty arising under paragraph (a) as, in the Authority’s opinion, ought to be achieved in all cases;
c
make provision as to the manner in which compensation under this section is to be made;
d
prescribe circumstances in which electricity distributors are to be exempted from any requirements of the regulations or this section; and
e
if the Authority is of the opinion that the differences are such that no electricity distributor would be unduly disadvantaged in competing with other electricity distributors, make different provision with respect to different electricity distributors.
4
Provision made under subsection (3)(c) may—
a
require or permit compensation to be made on behalf of electricity distributors by electricity suppliers to customers or potential customers; and
b
require electricity suppliers to provide services to electricity distributors in connection with the making of compensation under this section.
5
The making of compensation under this section in respect of any failure to meet a prescribed standard shall not prejudice any other remedy which may be available in respect of the act or omission which constituted that failure.
6
In this section “prescribed” means prescribed by regulations under this section.
F11839B Standards of performance in individual cases: disputes.
1
Any dispute arising under section 39 or 39A or regulations made under either of those sections—
a
may be referred to the Authority by either party or, with the agreement of either party, by the Council; and
b
on such a reference, shall be determined by order made by the Authority or, if it thinks fit, by such person (other than the Council) as may be prescribed.
2
A person making an order under subsection (1) shall include in the order his reasons for reaching his decision with respect to the dispute.
3
The practice and procedure to be followed in connection with any such determination shall be such as may be prescribed.
4
An order under subsection (1) shall be final and shall be enforceable—
a
in England and Wales, as if it were a judgment of a county court; and
b
in Scotland, as if it were an extract registered decree arbitral bearing a warrant for execution issued by the sheriff.
5
In this section “prescribed” means prescribed by regulations made by the Authority with the consent of the Secretary of State.
40 Electricity supply: overall performance.
1
The Director may, F119. . . from time to time—
a
determine such standards of overall performance in connection with the provision of electricity supply services as, in his opinion, ought to be achieved by F120electricity suppliers; and
b
arrange for the publication, in such form and in such manner as he considers appropriate, of the standards so determined.
F1211A
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2
F1243
It shall be the duty of every F125electricity supplier to conduct his business in such a way as can reasonably be expected to lead to his achieving the standards set under this section.
40AF138 Overall standards of performance: electricity distributors.
1
The Authority may from time to time—
a
determine such standards of overall performance in connection with the activities of electricity distributors as, in its opinion, ought to be achieved by them; and
b
arrange for the publication, in such form and in such manner as it considers appropriate, of the standards so determined.
2
Different standards may be determined for different electricity distributors if the Authority is of the opinion that the differences are such that no electricity distributor would be unduly disadvantaged in competing with other electricity distributors.
3
It shall be the duty of every electricity distributor to conduct his business in such a way as can reasonably be expected to lead to his achieving the standards set under this section.
F13940B Procedures for prescribing or determining standards of performance.
1
Before prescribing standards of performance in regulations under section 39 or 39A, or determining standards of performance under section 40 or 40A, the Authority shall—
a
arrange for such research as the Authority considers appropriate with a view to discovering the views of a representative sample of persons likely to be affected and consider the results;
b
publish a notice of its proposals in accordance with subsections (2) and (3) and consider any representations which are duly made in respect of those proposals; and
c
consult the Council and other persons or bodies mentioned in subsection (4).
2
The notice required by subsection (1)(b) is a notice—
a
stating that the Authority proposes to prescribe or determine standards of performance and setting out the standards of performance proposed;
b
stating the reasons why it proposes to prescribe or determine those standards of performance; and
c
specifying the time (not being less than 28 days from the date of publication of the notice) within which representations with respect to the proposals may be made.
3
A notice required by subsection (1)(b) shall be published in such manner as the Authority considers appropriate for the purpose of bringing it to the attention of those likely to be affected by the proposals.
4
The persons or bodies to be consulted by the Authority under subsection (1)(c) are—
a
electricity suppliers (in the case of standards of performance under section 39 or 40) or electricity distributors and electricity suppliers (in the case of standards of performance under section 39A or 40A); and
b
persons or bodies appearing to the Authority to be representative of persons likely to be affected by the regulations or determination.
5
The Authority shall make arrangements for securing that notices under subsection (1)(b), regulations under section 39 or 39A and determinations under section 40 or 40A are made available to the public by whatever means it considers appropriate.
F25641AF296Promotion of reductions in carbon emissions: F325electricity generators, electricity distributors and electricity suppliers
1
The Secretary of State may by order impose—
F339za
on each electricity generator (or each electricity generator of a specified description);
a
on each electricity distributor (or each electricity distributor of a specified description); and
b
on each electricity supplier (or each electricity supplier of a specified description),
an obligation to achieve, within a specified period and in accordance with the order, the F298carbon emissions reduction target to be determined by the Authority under the order for that F338generator, distributor or supplier (and that obligation is referred to in this section as F299a “carbon emissions reduction obligation”).
F3401A
The power to make orders under this section may be exercised so as to impose more than one carbon emissions reduction obligation on a person in relation to the same period or to periods that overlap to any extent.
C35F3082
In this section “carbon emissions reduction target” means a target for the promotion of any of the following—
a
measures for improving energy efficiency, that is to say, efficiency in the use by consumers of electricity, gas conveyed through pipes or any other source of energy which is specified in the order;
b
if the order so provides—
i
measures for increasing the amount of electricity generated, or heat produced, by microgeneration;
ii
any other measures of a description specified in the order for increasing the amount of electricity generated, or heat produced, using low-emissions sources or technologies;
iii
measures for reducing the consumption of such energy as is mentioned in paragraph (a).
3
4
The Secretary of State and the Authority shall carry out their respective functions under this section in the manner he or it considers is best calculated to ensure that F342—
a
no electricity generator is unduly disadvantaged in competing with other electricity generators,
b
no electricity distributor is unduly disadvantaged in competing with other electricity distributors, and
c
no electricity supplier is unduly disadvantaged in competing with other electricity suppliers.
5
The order may make provision generally in relation to the F301carbon emissions reduction obligations which it imposes, including in particular provision—
a
as to the treatment of persons who become F343electricity generators, electricity distributors or electricity suppliers after the beginning of the period to which the order relates;
b
as to the action which qualifies for the purpose of meeting the whole or any part of F309a carbon emissions reduction target;
F344ba
requiring the whole or any part of a carbon emissions reductions target to be met by action relating to—
i
persons of a specified description,
ii
specified areas or areas of a specified description, or
iii
persons of a specified description in specified areas or areas of a specified description;
c
as to the method by which improvements in energy efficiencyF302, increases in the amount of electricity generated, or heat produced, by microgeneration or otherwise using low-emissions sources or technologies or reductions in energy consumption attributable to any qualifying action are to be assessed;
d
e
requiring the Authority to determine—
i
whether any proposed action qualifies for the purpose of achieving the whole or any part of a person’s F310carbon emissions reduction target; and
ii
if so, what improvement in energy efficiencyF304, increase in the amount of electricity generated, or heat produced, by microgeneration or otherwise using low-emissions sources or technologies or reduction in energy consumption is to be attributed for that purpose to the proposed action or to any result of that action specified in the determination; and
6
The order may make provision authorising the Authority to require a F347generator, distributor or supplier to provide it with specified information, or information of a specified nature, relating to—
a
his proposals for complying with his F306carbon emissions reduction obligation; or
b
the question whether he has complied with that obligation.
7
The order may make provision as to circumstances in which—
a
a person’s F311carbon emissions reduction target may be altered during the period to which the order relates;
b
the whole or any part of a person’s F311carbon emissions reduction target may be treated as having been achieved by action taken otherwise than by or on behalf of that person;
c
any action taken before the period to which the order relates may be treated as qualifying action taken during that period;
d
e
a person may carry forward the whole or any part of his F307carbon emissions reduction target for the period to which the order relates to a subsequent period.
8
The order may—
a
provide for exceptions from any requirement of the order;
b
provide that any specified requirement contained in it is to be treated as a relevant requirement for the purposes of this Part;
c
make supplementary, incidental and transitional provision; and
d
subject to subsection (4), make different provision for different cases (including different provision in relation to different F349generators, distributors or suppliers).
9
The order may include provision for treating the promotion of the supply to premises of—
a
electricity generated by a generating station which is operated for the purposes of producing heat, or a cooling effect, in association with electricity;
b
heat produced in association with electricity or steam produced from (or air or water heated by) such heat;
c
any gas or liquid subjected to a cooling effect produced in association with electricity,
as promotion of energy efficiency.
10
No person shall be required by virtue of this section to provide any information which he could not be compelled to give in evidence in civil proceedings in the High Court or, in Scotland, the Court of Session.
F29510A
An order under this section shall not include provision made by virtue of subsection (2)(b) which would be within the legislative competence of the Scottish Parliament if it were contained in an Act of that Parliament.
11
Before making an order under this section the Secretary of State shall consult the Authority, the Council, F350electricity generators, electricity distributors and electricity suppliers and such other persons as he considers appropriate.
12
An order under this section shall not be made unless a draft of the instrument containing it has been laid before, and approved by a resolution of, each House of Parliament.
F29713
In this section—
“microgeneration” has the same meaning as in the Climate Change and Sustainable Energy Act 2006;
“plant” includes any equipment, apparatus or appliance.
F351“specified” means specified in the order.
14
For the purposes of subsection (2)(b)(ii), electricity is generated, or heat is produced, using low-emissions sources or technologies if it is generated, or produced, by plant which relies wholly or mainly on a source of energy or a technology mentioned in section 26(2) of the Climate Change and Sustainable Energy Act 2006.
C3642 Information with respect to levels of performance.
1
The Director shall from time to time collect information with respect to—
a
the compensation made by F126electricity suppliers under section 39 above;
b
the levels of overall performance achieved by such suppliers in connection with the provision of electricity supply services; F127. . .
c
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1281A
The Authority shall from time to time collect information with respect to—
a
the compensation made by electricity distributors under section 39A above;
b
the levels of overall performance achieved by electricity distributors.
2
F129At such times as may be specified in a direction given by the Director, each F130electricity supplier shall furnish to the Director the following information, namely—
a
as repects each standard prescribed by regulations under section 39 above, the number of cases in which compensation was made and the aggregate amount or value of that compensation; and
b
as repects each standard determined under section 40 F131. . ., such information with respect to the level of performance achieved by the supplier as may be so specified.
F1322A
At such times as may be specified in a direction given by the Authority, each electricity distributor shall furnish to the Authority the following information, namely—
a
as respects each standard prescribed by regulations under section 39A, the number of cases in which compensation was made and the aggregate amount or value of that compensation; and
b
as respects each standard determined under section 40A, such information with respect to the level of performance achieved by the distributor as may be so specified.
F2573
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1334
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1335
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C37F13442A Information to be given to customers about overall performance.
1
The Authority may make regulations requiring such information as may be specified or described in the regulations about—
a
the standards of overall performance determined under section 40 or 40A; and
b
the levels of performance achieved as respects those standards,
to be given by electricity suppliers or electricity distributors to customers or potential customers of electricity suppliers.
2
Regulations under this section may include provision—
a
specifying the form and manner in which and the frequency with which information is to be given; and
b
requiring information about the matters mentioned in subsection (1)(a) or (b) and relating to electricity distributors to be given by electricity distributors to electricity suppliers and by electricity suppliers to their customers or potential customers.
42AAF140 Publication of statistical information about standards of performance.
1
It shall be the duty of the Council to publish, in such form and manner and with such frequency as it thinks appropriate, such statistical information as it considers appropriate relating to—
a
the levels of performance achieved by F333electricity generators, electricity suppliers and electricity distributors in respect of—
i
standards of performance prescribed or determined under sections 39, 39A, 40 and 40A; and
ii
F312carbon emissions reduction obligations imposed by order under section 41A; and
b
complaints made by consumers about any matter relating to the activities of such F334generators, suppliers or distributors and the handling of such complaints.
2
In subsection (1)(b) “complaints” includes complaints made directly to F335electricity generators, electricity suppliers and electricity distributors (or anyone carrying on activities on their behalf) and complaints to the Authority or the Council.
42ABF315Information relating to complaints handling standards
1
This section applies in relation to standards prescribed by the Authority by regulations under section 43 of the Consumers, Estate Agents and Redress Act 2007 (standards for complaints handling) in relation to licence holders (or some of them).
2
The Authority must from time to time collect information with respect to the levels of compliance with the standards which those licence holders have achieved.
3
At such times as the Authority may direct, each of those licence holders must give the Authority such information as the Authority may direct with respect to the levels of compliance with the standards which the licence holder has achieved.
F136F13542B Procedures for dealing with complaints.
1
Each public electricity supplier shall establish a procedure for dealing with complaints made by his customers or potential customers in connection with the provision of electricity supply services.
2
No such procedure shall be established, and no modification of such a procedure shall be made, unless—
F137a
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
b
the proposed procedure or modification has been approved by the Director.
3
The supplier shall—
a
publicise the procedure in such manner as may be approved by the Director; and
b
send a description of the procedure, free of charge, to any person who asks for one.
4
The Director may give a direction to any public electricity supplier requiring the supplier to review his procedure or the manner in which it operates.
5
A direction under subsection (4) above—
a
may specify the manner in which the review is to be conducted; and
b
shall require a written report of the review to be made to the Director.
6
Where the Director receives a report under subsection (5)(b) above, he may, after consulting the supplier, direct him to make such modifications of—
a
the procedure; or
b
the manner in which the procedure operates,
as may be specified in the direction.
7
Subsection (2) above does not apply to any modification made in compliance with a direction under subsection (6) above.
42CF141 Remuneration and service standards.
1
This section applies to any company which is authorised by a licence to carry on activities subject to price regulation.
2
As soon as reasonably practicable after the end of each financial year of the company it must make a statement to the Authority—
a
disclosing whether or not remuneration has been paid or become due during that financial year to the directors of the company as a result of arrangements falling within subsection (3); and
b
where such remuneration has been paid or become due, describing the arrangements and the remuneration.
3
Arrangements fall within this subsection if they are arrangements for linking the remuneration of the directors of the company to levels of performance as respects service standards in connection with activities subject to price regulation.
4
A description under subsection (2)(b) must include in particular—
a
a statement of when the arrangements were made;
b
a description of the service standards in question;
c
an explanation of the means by which the levels of performance as respects those service standards are assessed; and
d
an explanation of how the remuneration was calculated.
5
The statement required by subsection (2) must also state—
a
whether or not there are in force in respect of the financial year during which the statement is made arrangements falling within subsection (3); or
b
if not, whether the company intends that such arrangements will be in force at some time during that financial year,
and if there are, or it is intended that there will be, such arrangements in force the statement must describe those arrangements.
6
A description under subsection (5) must—
a
include in particular the matters listed in subsection (4)(a), (b) and (c); and
b
where the arrangements described are different from any arrangements described under subsection (2)(b), state the likely effect of those differences on the remuneration of each director of the company.
7
The statement required by subsection (2) must be made to the Authority in such manner as may be required by the Authority.
8
The statement required by subsection (2)—
a
must be published by the company making the statement in such manner as it reasonably considers will secure adequate publicity for it; and
b
may be published by the Authority in such manner as it may consider appropriate.
9
The duty of a company under this section applies in respect of any person who has at any time been a director of the company.
10
In this section—
“activities subject to price regulation”, in relation to any company, are activities for which—
- a
a maximum price which may be charged by the company, or a method for calculating such a maximum price; or
- b
a maximum revenue which may be received by the company, or a method for calculating such a maximum revenue,
is determined by or under the licence granted under this Part;
- a
“company” means a company within the meaning of the M9Companies Act 1985 which is limited by shares;
“remuneration” in relation to a director of a company—
- a
means any form of payment, consideration or other benefit (including pension benefit), paid or due to or in respect of the director; and
- b
includes remuneration in respect of any of his services while a director of the company;
- a
“service standards” in relation to any company, means standards relating to the quality of service received by customers or potential customers of the company, including any such standards which are—
- a
set by or under any conditions included in a licence granted under this Part;
- b
prescribed by the Authority in regulations made under section 39 or 39A;
- c
determined by the Authority under section 40 or 40A; or
- d
set or agreed to by the company.
- a
Consumer protection: miscellaneous
43 Functions with respect to competition.
F1831
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C38F2022
The functions to which subsection (2A) below applies shall be concurrent functions of the Authority and the Office of Fair Trading.
2A
This subsection applies to the functions of the Office of Fair Trading under Part 4 of the Enterprise Act 2002 (other than sections 166 and 171) so far as relating to commercial activities connected with the generation, transmission or supply of electricity F292or the use of electricity interconnectors.
2B
So far as necessary for the purposes of, or in connection with, subsections (2) and (2A) above, references in Part 4 of the Act of 2002 to the Office of Fair Trading (including references in provisions of that Act applied by that Part) shall be construed as including references to the Authority (except in sections 166 and 171 of that Act and in any other provision of that Act where the context otherwise requires).
C39F2153
The Authority shall be entitled to exercise, concurrently with the Office of Fair Trading, the functions of the Office of Fair Trading under the provisions of Part 1 of the Competition Act 1998 (other than sections 31D(1) to (6), 38(1) to (6) and 51), so far as relating to—
a
agreements, decisions or concerted practices of the kind mentioned in section 2(1) of that Act,
b
conduct of the kind mentioned in section 18(1) of that Act,
c
agreements, decisions or concerted practices of the kind mentioned in Article 81(1) of the treaty establishing the European Community, or
d
conduct which amounts to abuse of the kind mentioned in Article 82 of the treaty establishing the European Community,
which relate to commercial activities connected with the generation, transmission or supply of electricity F292or the use of electricity interconnectors.
F1423A
So far as necessary for the purposes of, or in connection with, the provisions of subsection (3) above, references in Part I of the Competition Act 1998 to F184the Office of Fair Trading are to be read as including a reference to the Director (F216except in sections 31D(1) to (6), 38(1) to (6), 51, 52(6) and (8) and 54 of that Act and in any other provision of that Act where the context otherwise requires).
F2034
Before the Office of Fair Trading or the Authority first exercises in relation to any matter functions which are exercisable concurrently by virtue of subsection (2) above, it shall consult the other.
4A
Neither the Office of Fair Trading nor the Authority shall exercise in relation to any matter functions which are exercisable concurrently by virtue of subsection (2) above if functions which are so exercisable have been exercised in relation to that matter by the other.
5
It shall be the duty of the Director, for the purpose of assisting the F143Competition Commission in carrying out an investigation on a reference made to them by the Director by virtue of subsection (2) F144... above, to give to the Commission—
a
any information which is in his possession and which relates to matters falling within the scope of the investigation and—
i
is requested by the Commission for that purpose; or
ii
is information which in his opinion it would be appropriate for that purpose to give to the Commission without any such request; and
b
any other assistance which the Commission may require and which it is within his power to give, in relation to any such matters,
and the Commission shall, for the purposes of carrying out any such investigation, take into account any information given to them for that purpose under this subsection.
6
If any question arises F145in any particular case as to the jurisdiction of the Director under any of the provisions mentioned in subsection F204(2A) or (3) above F205... F258... , that question shall be referred to and determined by the Secretary of State; and no objection shall be taken to anything done under—
a
F206Part 4 of the Enterprise Act 2002; or
F146b
Part I of the Competition Act 1998 (F217other than sections 31D(1) to (6), 38(1) to (6) and 51),
by or in relation to the Director on the ground that it should have been done by or in relation to F185the Office of Fair Trading.
F2076A
Section 117 of the Enterprise Act 2002 (offences of supplying false or misleading information) as applied by section 180 of that Act shall have effect so far as relating to functions exercisable by the Authority by virtue of subsection (2) above as if the references in section 117(1)(a) and (2) to the Office of Fair Trading included references to the Authority.
F2087
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F14743A Adjustment of charges to help disadvantaged groups of customers.
1
If the Secretary of State considers that members of any group (a “disadvantaged group”) of customers of authorised suppliers are treated less favourably than other customers of theirs as respects charges for electricity, he may make an order containing a scheme for the adjustment of charges for electricity with a view to eliminating or reducing the less favourable treatment.
2
The scheme may include—
a
provision for the adjustment of charges by authorised distributors or authorised transmitters (as well as by suppliers);
b
in relation to charges payable to suppliers, provision for the adjustment of charges payable by customers who are not members of the disadvantaged group (as well as by persons who are).
3
The scheme shall—
a
describe the disadvantaged group;
b
specify the persons whose charges are covered by the scheme; and
c
set out the basis of the adjustment of the charges.
4
If the scheme does not relate to the whole of Great Britain, it shall specify the area or areas to which it relates.
5
The scheme may—
a
require authorised suppliers, authorised distributors or authorised transmitters to supply information of any specified description, in any specified form, to any other such persons; and
b
provide for the modification of the conditions of licences,
for the purpose of facilitating the implementation of the scheme.
6
An order shall not be made under this section unless a draft of the statutory instrument containing it has been laid before, and approved by a resolution of, each House of Parliament.
F14843B Orders: supplementary.
1
Before making an order under section 43A, the Secretary of State shall give notice—
a
stating that he proposes to make an order and setting out its effect;
b
stating the reasons why he proposes to make the order; and
c
specifying the time (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed order may be made,
and shall consider any representations or objections which are duly made and not withdrawn.
2
The notice shall be given—
a
by serving a copy of it on the persons whose charges are covered by the proposed order; and
b
by publishing it in such manner as the Secretary of State considers appropriate for bringing the proposed order to the attention of other persons likely to be affected by it.
3
An order under section 43A shall continue in force for such period not exceeding three years as is specified in the order; but that does not prevent the making of another order to come into force at the end of that period.
4
The Secretary of State may by order require authorised suppliers, authorised distributors or authorised transmitters to supply information of any specified description, in any specified form, to any other such persons for the purpose of enabling the making of an order under section 43A.
5
The Authority—
a
shall monitor the effect of orders under section 43A and report its findings to the Secretary of State whenever he directs it to do so; and
b
may require authorised suppliers, authorised distributors or authorised transmitters to supply to the Authority, in any specified form, such information as it requires for carrying out that duty.
6
In section 43A references to customers do not include customers of a description excluded by an order made by the Secretary of State.
7
In this section and section 43A “authorised transmitter” means a person authorised by a licence or exemption to F242participate in the transmission of electricity.
F14944 Maximum prices for reselling electricity.
C401
The Authority may from time to time direct that the maximum prices at which electricity supplied by authorised suppliers may be resold—
a
shall be such as may be specified in the direction; or
b
shall be calculated by such method and by reference to such matters as may be so specified;
and shall publish directions under this section in such manner as in its opinion will secure adequate publicity for them.
2
A direction under this section may—
a
require any person who resells electricity supplied by an authorised supplier to furnish the purchaser with such information as may be specified or described in the direction; and
C40b
provide that, in the event of his failing to do so, the maximum price applicable to the resale shall be such as may be specified in the direction, or shall be reduced by such amount or such percentage as may be so specified.
3
Different directions may be given under this section as respects different classes of cases, which may be defined by reference to areas or any other relevant circumstances.
4
If any person resells electricity supplied by an authorised supplier at a price exceeding the maximum price determined by or under a direction under this section and applicable to the resale—
a
the amount of the excess; and
b
if the direction so provides, interest on that amount at a rate specified or described in the direction,
shall be recoverable by the person to whom the electricity was resold.
Investigation of complaints
F15045. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F32146 Consumer complaints.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F32246A Power of Council to investigate other matters.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Other functions of Director
47 General functions.
1
It shall be the duty of the Director, so far as it appears to him practicable from time to time to do so—
a
to keep under review the carrying on both in Great Britain and elsewhere of activities to which this subsection applies; and
b
to collect information with respect to those activities, and the persons by whom they are carried on, with a view to facilitating the exercise of his functions under this Part;
and this subsection applies to any activities connected with the generation, transmission and supply of electricity, including in particular activities connected with the supply to any premises of heat produced in association with electricity and steam produced from and air and water heated by such heat.
F2941A
The activities to which subsection (1) applies also include, in particular, activities connected with the generation of electricity by microgeneration F336or small-scale low-carbon generation or with the transmission and supply of electricity so generated.
F3371B
In subsection (1A)—
“microgeneration” has the same meaning as in the Climate Change and Sustainable Energy Act 2006;
“small-scale low-carbon generation” has the same meaning as in section 41 of the Energy Act 2008.
2
The Secretary of State may give general directions indicating—
a
considerations to which the Director should have particular regard in determining the order of priority in which matters are to be brought under review in performing his duty under subsection (1)(a) or (b) above; and
b
considerations to which, in cases where it appears to the Director that any of his functions under this Part are exercisable, he should have particular regard in determining whether to exercise those functions.
3
It shall be the duty of the Director, where either he considers it expedient or he is requested by the Secretary of State or F186the Office of Fair Trading to do so, to give information, advice and assistance to the Secretary of State or F187the Office of Fair Trading with respect to any matter in respect of which any function of the Director under this Part is exercisable.
F1514
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
48 Publication of information and advice.
F1521
If it appears to the Authority that the publication of any advice and information would promote the interests of consumers in relation to electricity conveyed by distribution systems F290or transmission systems, the Authority may publish that advice or information in such manner as it thinks fit.
2
In publishing advice or information under this section the Authority shall have regard to the need for excluding, so far as that is practicable, any matter which relates to the affairs of a particular individual or body of persons (corporate or unincorporate), where publication of that matter would or might, in the opinion of the Authority, seriously and prejudicially affect the interests of that individual or body.
2A
Before deciding to publish under this section any advice or information relating to a particular individual or body of persons the Authority shall consult that individual or body.
3
F1534
In this section “consumers” includes both existing and future consumers.
49 Keeping of register.
1
The Director shall, at such premises and in such form as he may determine, maintain a register for the purposes of this Part.
2
Subject to subsection (3) and to any direction given under subsection (4) below, the Director shall cause to be entered in the register the provisions of—
a
every licence and every exemption granted to a particular person;
b
every modification or revocation of a licence;
c
every direction or consent given or determination made under a licence; F154. . .
d
every final or provisional order, every revocation of such an order and every notice under section 25(6) above F155; and
e
every penalty imposed under section 27A(1) and every notice under section 27A(5).
F2533
The Authority may enter the provisions of anything in the register in a manner that excludes, so far as practicable, so much of the details of those provisions as it considers it appropriate to exclude for the purpose of maintaining the confidentiality of—
a
matters relating to the affairs of an individual the publication of which would or might, in its opinion, seriously and prejudicially affect the interests of that individual; and
b
matters relating specifically to the affairs of a particular body of persons the publication of which would or might, in the Authority’s opinion, seriously and prejudicially affect the interests of that body.
4
If it appears to the Secretary of State that the entry of any provision in the register would be against the public interest or the commercial interests of any person, he may direct the Director not to enter that provision in the register.
5
The contents of the register shall be available for inspection by the public during such hours and subject to the payment of such fee as may be specified in an order made by the Secretary of State.
6
Any person may, on the payment of such fee as may be specified in an order so made, require the Director to supply him with a copy of, or extract from, any part of the register, being a copy or extract which is certified by the Director to be a true copy or extract.
7
Any sums received by the Director under this section shall be paid into the Consolidated Fund.
49AF157 Reasons for decisions.
1
This section applies to the following decisions of the Authority or the Secretary of State, namely—
a
the revocation of a licence;
b
the modification of the conditions of a licence;
c
the giving of any directions or consent in pursuance of a condition included in a licence by virtue of section 7(3)(a) or (b);
d
the determination of a question referred in pursuance of a condition included in a licence by virtue of section 7(3)(c);
e
the determination of a dispute referred under section 23(1);
f
the making of a final order, the making or confirmation of a provisional order or the revocation of a final order or of a provisional order which has been confirmed.
2
As soon as reasonably practicable after making such a decision the Authority or the Secretary of State shall publish a notice stating the reasons for the decision in such manner as it or he considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be interested.
3
The Authority shall send a copy of a notice published in respect of a decision mentioned in paragraph (a), (b), (c), (d) or (f) of subsection (1) to the licence holder to whose licence, or to whom, the decision relates.
4
In preparing a notice under subsection (2) the Authority or the Secretary of State shall have regard to the need for excluding, so far as that is practicable, any matter which relates to the affairs of a particular individual or body of persons (corporate or unincorporate), where it or he considers that publication of that matter would or might seriously and prejudicially affect the interests of that individual or body.
5
This section does not apply to a decision resulting in any provision which the Secretary of State has under section 49(4) directed the Authority not to enter in the register required to be kept under that section.
F15650. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Provisions with respect to committees
F15851. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F15952. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F16053. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Provisions with respect to Consumers’ etc. Councils
F16154. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F16255. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
56 Continuity of employment of officers of abolished Councils.
1
This section applies to any person who—
a
immediately before the date on which section 54 above comes into force is an officer of one of the Councils ceasing to exist by virtue of that section (in this section referred to as his “former employer”); and
b
within four weeks after that date, is employed by one of the successor companies or the Director (in this section referred to as his “new employer”) in pursuance of an offer made before that date;
and in this subsection “successor company” has the same meaning as in Part II.
F1632
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3
F164Chapter I of Part XIV of the Employment Rights Act 1996 (computation of period of employment) shall have effect in relation to a person to whom this section applies as if it included the following provisions, that is to say—
a
the period of his employment with his former employer shall count as a period of employment with his new employer; and
b
the change of employer shall not break the continuity of the period of employment.
4
Where this section applies to a person, the period of his employment with his former employer shall count as a period of employment with his new employer for the purposes of any provision of his contract of employment with his new employer which depends on his length of service with that employer.
F165 Alteration of activities requiring licence
Ss. 56A-56F and cross-heading inserted (1.10.2001) by 2000 c. 27, s. 43; S.I. 2001/3266, art. 2, Sch. (subject to transitional provisions in arts. 3-20)
56A Power to alter activities requiring licence.
1
The Secretary of State may by order provide—
a
that specified activities are to become licensable activities; or
b
that specified activities are to cease to be licensable activities.
2
For the purposes of this Part activities are licensable activities if undertaking them without the authority of a licence or exemption constitutes an offence under section 4(1).
3
An order under this section may make consequential, transitional, incidental or supplementary provision including—
a
amendments (or repeals) in any provision of this Act or any other enactment; and
b
provision modifying any standard conditions of licences or (in the case of an order under subsection (1)(a)) provision determining the conditions which are to be standard conditions for the purposes of licences authorising the undertaking of activities which are to become licensable activities.
4
An order under this section may only provide for activities to become licensable activities if they are activities connected with the generation, transmission, distribution or supply of electricity.
5
An order under this section providing for activities to become licensable activities may only be made on the application of the Authority made in accordance with section 56B.
6
An order under this section providing for activities to cease to be licensable activities may be made either—
a
on the application of the Authority made in accordance with section 56E; or
b
following consultation by the Secretary of State in accordance with section 56F.
7
An order under this section may provide that it is to remain in force only for a period specified in the order.
8
An order shall not be made under this section unless a draft of the statutory instrument containing it has been laid before, and approved by a resolution of, each House of Parliament.
56B Application by Authority for order including new activities.
1
If the Authority proposes to make an application for an order providing for activities to become licensable activities, it shall give notice—
a
stating that it proposes to make an application for an order providing for the activities to become licensable activities;
b
setting out the conditions which it would expect such an order to determine to be standard conditions for the purposes of licences authorising the undertaking of the activities and any other conditions which it would expect to be included in such licences; and
c
specifying a reasonable period (not being less than 28 days from the date of publication of the notice) within which representations or objections may be made with respect to the proposal,
and shall consider any representations or objections which are duly made and not withdrawn.
2
The notice shall be given by serving a copy on the Council and by publishing it in such manner as the Authority considers appropriate for bringing it to the attention of—
a
persons appearing to it to be carrying on, or be intending to carry on, the activities; and
b
any other persons appearing to it to be likely to be affected by an order providing for the activities to become licensable activities.
3
If an objection has been duly made (and not withdrawn) by a person who is carrying on or intends to carry on the activities, the Authority shall make a reference to the Competition Commission under section 56C before making the application.
4
In any other case where the Authority considers it appropriate to make a reference to the Commission under section 56C before making the application, the Authority may make such a reference.
5
If a reference is made to the Commission, the application shall not be made unless the Commission has reported on the reference that the fact that the activities to which the application relates are not licensable activities operates, or may be expected to operate, against the public interest.
6
The application shall set out—
a
the activities which the Authority considers should become licensable activities; and
b
the conditions which the Authority would expect to be determined to be standard conditions for the purposes of licences authorising the undertaking of the activities in question and any other conditions which it would expect to be included in such licences.
C4156C References to Competition Commission.
1
A reference to the Competition Commission under this section shall require the Commission to investigate and report on whether the fact that the activities specified in the reference are not licensable activities operates, or may be expected to operate, against the public interest.
2
The Authority may, at any time, by notice given to the Commission vary the reference by adding to the activities specified in the reference or by excluding from the reference some of the activities so specified; and on receipt of such notice the Commission shall give effect to the variation.
3
The Authority shall specify in the reference, or a variation of the reference, for the purpose of assisting the Commission in carrying out the investigation on the reference—
a
the conditions which the Authority would expect to be determined to be standard conditions for the purposes of licences authorising the undertaking of the activities specified in the reference and any other conditions which it would expect to be included in such licences; and
b
any effects adverse to the public interest which, in its opinion, the fact that the activities so specified are not licensable activities has or may be expected to have.
4
As soon as practicable after making the reference, or a variation of the reference, the Authority shall serve a copy of it on the Council and publish particulars of it in such manner as the Authority considers appropriate for bringing it to the attention of—
a
persons appearing to the Authority to be carrying on, or be intending to carry on, the activities specified in it; and
b
any other persons appearing to the Authority to be likely to be affected by it.
5
The Authority shall, for the purpose of assisting the Commission in carrying out the investigation on the reference, give to the Commission—
a
any information which is in its possession and which relates to matters falling within the scope of the investigation, and which is either requested by the Commission for that purpose or is information which in its opinion it would be appropriate for that purpose to give to the Commission without any such request; and
b
any other assistance which the Commission may require, and which it is within its power to give, in relation to any such matters,
and the Commission shall take account of the information for the purpose of carrying out the investigation.
6
In determining for the purposes of this section whether the fact that particular activities are not licensable activities operates, or may be expected to operate, against the public interest, the Commission shall have regard to—
a
the matters referred to in section 3A;
b
any social or environmental policies set out or referred to in guidance issued under section 3B; and
c
any advice given by F314the Health and Safety Executive or the Secretary of State under section 3C (advice about health and safety in relation to electricity).
F2107
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F2108
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
56CAF190References under section 56C: time limits
1
Every reference under section 56C above shall specify a period (not longer than six months beginning with the date of the reference) within which a report on the reference is to be made.
2
A report of the Competition Commission on a reference under section 56C above shall not have effect (in particular for the purposes of section 56B(5) above) unless the report is made before the end of the period specified in the reference or such further period (if any) as may be allowed by the Authority under subsection (3) below.
3
The Authority may, if it has received representations on the subject from the Competition Commission and is satisfied that there are special reasons why the report cannot be made within the period specified in the reference, extend that period by no more than six months.
4
No more than one extension is possible under subsection (3) above in relation to the same reference.
5
The Authority shall publish an extension under subsection (3) above in such manner as it considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by it.
56CB References under section 56C: application of Enterprise Act 2002
1
The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in subsections (2) and (3) below, for the purposes of references under section 56C above as they apply for the purposes of references under that Part—
a
section 109 (attendance of witnesses and production of documents etc.);
b
section 110 (enforcement of powers under section 109: general);
c
section 111 (penalties);
d
section 112 (penalties: main procedural requirements);
e
section 113 (payments and interest by instalments);
f
section 114 (appeals in relation to penalties);
g
section 115 (recovery of penalties); and
h
section 116 (statement of policy).
2
Section 110 shall, in its application by virtue of subsection (1) above, have effect as if—
a
subsection (2) were omitted; and
b
in subsection (9) the words from “or section” to “section 65(3))” were omitted.
3
Section 111(5)(b)(ii) shall, in its application by virtue of subsection (1) above, have effect as if—
a
for the words “published (or, in the case of a report under section 50 or 65, given)” there were substituted “made”;
b
for the words “published (or given)”, in both places where they appear, there were substituted “made”; and
c
the words “by this Part” were omitted.
4
Section 117 of the Enterprise Act 2002 (false or misleading information) shall apply in relation to functions of the Competition Commission in connection with references under section 56C above as it applies in relation to its functions under Part 3 of that Act but as if, in subsections (1)(a) and (2), the words F214“the OFT, OFCOM,” and “or the Secretary of State” were omitted.
5
Provisions of Part 3 of the Enterprise Act 2002 which have effect for the purposes of sections 109 to 117 of that Act (including, in particular, provisions relating to offences and the making of orders) shall, for the purposes of the application of those sections by virtue of subsection (1) or (4) above, have effect in relation to those sections as applied by virtue of those subsections.
6
Accordingly, corresponding provisions of this Act shall not have effect in relation to those sections as applied by virtue of those subsections.
56DF165 Reports on references.
1
In making a report on a reference under section 56C, the Competition Commission shall include in the report definite conclusions on whether the fact that the activities specified in the reference (or the reference as varied) are not licensable activities operates, or may be expected to operate, against the public interest.
2
The Commission shall also include in the report such an account of its reasons for those conclusions as in its opinion is expedient for facilitating proper understanding of the questions raised by the reference and of its conclusions.
3
Where the Commission concludes that the fact that particular activities are not licensable activities operates, or may be expected to operate, against the public interest, it shall specify in the report—
a
the effects adverse to the public interest which that fact has or may be expected to have; and
b
any modifications to the conditions specified in the reference in accordance with section 56C(3)(a) which they consider appropriate.
F2113A
For the purposes of section 56B(5), a conclusion contained in a report of the Competition Commission is to be disregarded if the conclusion is not that of at least two-thirds of the members of the group constituted in connection with the reference concerned in pursuance of paragraph 15 of Schedule 7 to the Competition Act 1998.
3B
If a member of a group so constituted disagrees with any conclusions contained in a report made on a reference under section 56C as the conclusions of the Competition Commission, the report shall, if the member so wishes, include a statement of his disagreement and of his reasons for disagreeing.
F2124
For the purposes of the law relating to defamation, absolute privilege attaches to any report made by the Competition Commission on a reference under section 56C.
4A
In making any report on a reference under section 56C the Competition Commission must have regard to the following considerations before disclosing any information.
4B
The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the Competition Commission thinks is contrary to the public interest.
4C
The second consideration is the need to exclude from disclosure (so far as practicable)—
a
commercial information whose disclosure the Competition Commission thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or
b
information relating to the private affairs of an individual whose disclosure the Competition Commission thinks might significantly harm the individual’s interests.
4D
The third consideration is the extent to which the disclosure of the information mentioned in subsection (4C)(a) or (b) is necessary for the purposes of the report.
5
A report of the Commission on a reference under section 56C shall be made to the Authority.
6
On receiving the report, the Authority shall send a copy of it to the Secretary of State.
7
Subject to subsection (8), the Authority shall, not less than 14 days after the copy is received by the Secretary of State, send another copy to the Council and publish that other copy in such manner as the Authority considers appropriate for bringing the report to the attention of persons likely to be affected by it.
8
If it appears to the Secretary of State that the publication of any matter in the report would be against the public interest or the commercial interests of any person, he may, before the end of the period of 14 days mentioned in subsection (7), direct the Authority to exclude that matter from the copy of the report to be sent to the Council and published under that subsection.
56E Application by Authority for order excluding activities.
1
Before making an application for an order providing for activities to cease to be licensable activities, the Authority shall give notice—
a
stating that it proposes to make an application for an order providing for the activities to cease to be licensable activities; and
b
specifying a reasonable period (not being less than 28 days from the date of publication of the notice) within which representations or objections may be made with respect to the proposal,
and shall consider any representations or objections which are duly made and not withdrawn.
2
The notice shall be given—
a
by serving a copy on the Secretary of State and the Council; and
b
by publishing it in such manner as the Authority considers appropriate for bringing it to the attention of persons appearing to the Authority to be likely to be affected by such an order.
3
An application under this section shall set out—
a
the activities which the Authority considers should cease to be licensable activities; and
b
the Authority’s reasons for proposing that the order be made.
56F Consultation by Secretary of State about order excluding activities.
1
If the Secretary of State proposes to make an order providing for activities to cease to be licensable activities (otherwise than on an application by the Authority under section 56E), he shall give notice—
a
stating that he proposes to make an order providing for the activities to cease to be licensable activities; and
b
specifying a reasonable period (not being less than 28 days from the date of publication of the notice) within which representations or objections may be made with respect to the proposal,
and shall consider any representations or objections duly made (and not withdrawn).
2
The notice shall be given—
a
by serving a copy on the Authority and the Council; and
b
by publishing it in such manner as the Secretary of State considers appropriate for bringing it to the attention of persons appearing to him to be likely to be affected by such an order.
56FAF323New licensable activities: smart meters
1
The Secretary of State may by order amend this Part so as to provide—
a
for one or more activities within subsection (3) to be added to the activities which are licensable activities, or
b
where an order has previously been made under paragraph (a) in relation to an activity, for the activity to cease to be a licensable activity.
2
For the purposes of this Part activities are licensable activities if undertaking them without the authority of a licence or exemption constitutes an offence under section 4(1).
3
The activities within this subsection are activities connected with the provision, installation or operation of relevant meters, including the provision or installation of infrastructure, or the provision of services, in connection with the communication of information by or to such meters.
4
In this section—
a
“relevant meter” means a meter of a kind prescribed by the order;
b
a reference to a meter includes a reference to a visual display unit, or any other device, associated with or ancillary to a meter.
5
An order under this section may make consequential, transitional, incidental or supplementary provision, including—
a
amendments (or repeals) in any provision of this Act or any other enactment;
b
in the case of an order under subsection (1)(a), provision determining the conditions which are to be standard conditions for the purposes of licences authorising the undertaking of the activities;
c
provision modifying any standard conditions of licences.
6
Without prejudice to the generality of subsections (1) and (5), an order under this section may also make provision—
a
for licences to authorise the holder to carry out the licensable activities in any area, or only in an area specified in the licence;
b
enabling the terms of the licence to be modified so as to extend or restrict the area in which the licence holder may carry on the licensable activities;
c
specifying that a licence, and any modification of a licence, must be in writing;
d
for a licence, if not previously revoked, to continue in force for such period as may be specified in or determined by or under the licence;
e
conferring functions on the Secretary of State or the Authority.
7
An order under this section may provide that it is to remain in force only for the period specified in the order.
56FBSection 56FA: supplemental
1
Before making an order under section 56FA, the Secretary of State must consult—
a
the Authority, and
b
such other persons as the Secretary of State thinks appropriate.
2
The power to make such an order may not be exercised after the end of the period of 5 years beginning with the day on which section 56FA comes into force.
3
An order under section 56FA may not be made unless a draft of the statutory instrument containing it has been laid before, and approved by resolution of, each House of Parliament.
4
Section 60 applies in relation to an order under this section as it applies in relation to regulations under this Part.
56FCCompetitive tenders for licences for new licensable activities
1
The Secretary of State may by regulations make provision for a determination on a competitive basis of the person to whom a licence in respect of new licensable activities is to be granted.
2
In this section “new licensable activities” means one or more activities which are the subject of an order under section 56FA(1)(a).
3
The regulations may—
a
provide for the determination to be made by the Secretary of State or the Authority;
b
provide, in prescribed cases, for the publication of a proposal to grant a licence in respect of the new licensable activities;
c
provide for the inclusion in such a proposal of an invitation to apply for such a licence;
d
impose conditions in relation to the making of an application for a licence;
e
impose restrictions in relation to persons who may apply for a licence;
f
impose requirements as to the period within which applications must be made;
g
make provision for regulating the manner in which applications are to be considered or determined;
h
authorise or require the Secretary of State or the Authority, when determining to whom a licence is to be granted, to have regard to the person's suitability for being granted both the licence and a gas licence;
i
confer on the Authority or the Secretary of State functions in connection with tender exercises.
4
The regulations may also include provision—
a
enabling the Secretary of State or the Authority to require prescribed persons, in relation to a tender exercise, to make payments, in the form and manner prescribed, in respect of tender costs;
b
about the effect on a person's participation in the tender exercise of a failure to comply with a requirement imposed by virtue of paragraph (a), and the circumstances in which the tender exercise is to stop as a result of such a failure.
5
In this section—
“gas licence” means a licence for an activity to which an order under section 41HA of the Gas Act 1986 applies;
“prescribed” means prescribed in or determined under regulations under this section;
“tender costs”, in relation to a tender exercise, means any costs incurred or likely to be incurred by the Authority or the Secretary of State for the purposes of the exercise;
“tender exercise” means the steps taken in accordance with regulations with a view to determining to whom a particular licence is to be granted.
6
Any sums received by the Secretary of State or the Authority under regulations made by virtue of this section are to be paid into the Consolidated Fund.
Miscellaneous
56GF168 Service by Authority of certain notices on Council.
Where the Authority is required by any provision of this Part to publish a notice or any other document, the Authority shall send a copy of the document to the Council.
F16657. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C4258 Directions restricting the use of certain information.
1
The Secretary of State may give to F243the holder of a transmission licence (“the authorised person”) such directions as appear to the Secretary of State to be requisite or expedient for the purpose of securing that, in any case where subsection (2) below applies, neither the person by whom the information mentioned in that subsection is acquired nor any other person obtains any unfair commercial advantage from his possession of the information.
2
This subsection applies where, in the course of any dealings with an outside person who is, or is an associate of, a person authorised by a licence or exemption to generate, F244supply or participate in the transmission of electricity F266or to participate in the operation of electricity interconnectors, the authorised person or any associate of his is furnished with or otherwise acquires any information which relates to the affairs of that outside person or any associate of his.
3
As soon as practicable after giving any directions under subsection (1) above, the Secretary of State shall publish a copy of the directions in such manner as he considers appropriate for the purpose of bringing the directions to the attention of persons likely to be affected by a contravention of them.
4
The obligation to comply with any directions under subsection (1) above is a duty owed to any person who may be affected by a contravention of them.
5
Where a duty is owed by virtue of subsection (4) above to any person any breach of the duty which causes that person to sustain loss or damage shall be actionable at the suit or instance of that person.
6
In any proceedings brought against any person in pursuance of subsection (5) above, it shall be a defence for him to prove that he took all reasonable steps and exercised all due diligence to avoid contravening the directions.
7
Without prejudice to any right which any person may have by virtue of subsection (5) above to bring civil proceedings in respect of any contravention or apprehended contravention of any directions under this section, compliance with any such directions shall be enforceable by civil proceedings by the Secretary of State for an injunction or interdict or for any other appropriate relief.
8
In this section—
“dealings” includes dealings entered into otherwise than for purposes connected with the transmission of electricity;
“outside person”, in relation to any person, means any person who is not an associate of his;
and for the purposes of this section a person is an associate of another if he and that other are connected with each other within the meaning of section 839 of the M10Income and Corporation Taxes Act 1988.
59 Making of false statements etc.
1
If any person, in giving any information or making any application under or for the purposes of any provision of this Part, or of any regulations made under this Part, makes any statement which he knows to be false in a material particular, or recklessly makes any statement which is false in a material particular, he shall be liable—
a
on summary conviction, to a fine not exceeding the statutory maximum;
b
on conviction on indictment, to a fine.
2
Any person who seeks to obtain entry to any premises by falsely pretending to be—
a
an employee ofF167, or other person acting on behalf of, an electricity distributor or electricity supplier;
b
an electrical inspector; or
c
a meter examiner,
shall be liable on summary conviction to a fine not exceeding level 4 on the standard scale.
3
No proceedings shall be instituted in England and Wales in respect of an offence under subsection (1) above except by or with the consent of the Secretary of State or the Director of Public Prosecutions.
Supplemental
C43C4460 Powers to make regulations.
1
Regulations made under any provision of this Part may provide for the determination of questions of fact or of law which may arise in giving effect to the regulations and for regulating (otherwise than in relation to any court proceedings) any matters relating to the practice and procedure to be followed in connection with the determination of such questions, including provision—
a
as to the mode of proof of any matter;
b
as to parties and their representation;
c
for the right to appear before and be heard by the Secretary of State, the Director and other authorities; and
d
as to awarding costs or expenses of proceedings for the determination of such questions, including the amount of the costs or expenses and the enforcement of the awards.
2
Regulations made under any provision of this Part which prescribe a period within which things are to be done may provide for extending the period so prescribed.
3
Regulations made under any provision of this Part may—
a
provide for anything falling to be determined under the regulations to be determined by such persons, in accordance with such procedure and by reference to such matters and to the opinion of such persons as may be prescribed by the regulations;
b
make different provision for different cases, including different provision in relation to different persons, circumstances or localities; and
c
make such supplemental, consequential and transitional provision as the Secretary of State or, as the case may be, the Director considers appropriate.
C4561 Concurrent proceedings.
1
Subsection (2) below applies where a licence holder makes an application to the Secretary of State for his consent under section 36 above for the construction or extension of a generating station and, for a purpose connected with the proposed construction or extension of that station, makes either or both of the following, namely—
a
a compulsory purchase order; and
b
an application to the Secretary of State for authorisation under paragraph 1 of Schedule 5 to this Act (water rights for hydro-electric generating stations in Scotland).
2
The proceedings which—
a
b
in the case of an application under paragraph 1 of Schedule 5 to this Act, are required by paragraphs 7 to 12 of that Schedule to be taken in relation to that application,
may be taken concurrently (so far as practicable) with the proceedings required by Schedule 8 to this Act to be taken in relation to the application for consent under section 36 above F281and with any related proceedings under Schedule 16 to the Energy Act 2004.
3
Subsection (4) below applies where a licence holder makes an application to the Secretary of State for his consent under section 37 above for the installation of an electric line above ground and, for a purpose connected with the proposed installation of that line, makes one or more of the following, namely—
a
a compulsory purchase order;
b
an application to the Secretary of State under paragraph 6 of Schedule 4 to this Act for a necessary wayleave; and
c
a reference to the Secretary of State under paragraph 9 (felling and lopping of trees) of that Schedule.
4
The proceedings which—
a
in the case of a compulsory purchase order, are required by Part II of the Acquisition of Land Act 1981 or Schedule 1 to the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 to be taken for the purpose of confirming that order;
b
in the case of an application under paragraph 6 of Schedule 4 to this Act, are required by that paragraph to be taken in relation to that application;
c
in the case of a reference under paragraph 9 of that Schedule, are required by that paragraph to be taken in relation to that reference,
may be taken concurrently (so far as practicable) with the proceedings required by Schedule 8 to this Act to be taken in relation to the application for consent under section 37 above.
5
Where, for a purpose connected with the proposed installation of an electric line, a licence holder makes—
a
an application to the Secretary of State under paragraph 6 of Schedule 4 to this Act for the necessary wayleave; and
b
a reference to the Secretary of State under paragraph 9 of that Schedule,
the proceedings required by the said paragraph 9 to be taken in relation to the reference under that paragraph may be taken concurrently (so far as practicable) with the proceedings required by the said paragraph 6 to be taken in relation to the application under that paragraph.
62 Public inquiries.
1
The Secretary of State may cause an enquiry to be held in any case where he considers it advisable to do so in connection with any matter arising under this Part other than a matter in respect of which any functions of the Director under section 25 above are or may be exercisable F169or a matter relating to a function which is exercisable by the Scottish Ministers.
F1701A
The Scottish Ministers may cause an inquiry to be held in any case where they consider it advisable to do so in connection with any matter relating to the exercise by them of a function under this Part.
2
The provisions of subsections (2) to (5) of section 250 of the M13 Local Government Act 1972 or subsections (2) to (8) of section 210 of the M14Local Government (Scotland) Act 1973 (which relate to the giving of evidence at, and defraying the cost of, local enquiries) shall apply in relation to any inquiry held under this Part as they apply in relation to a local inquiry which a Minister causes to be held under subsection (1) of that section.
3
Where—
a
b
in the case of some other matter required or authorised (whether by this PartF283, that Schedule or by any other enactment) to be the subject of an enquiry (“the other enquiry”), it appears to the relevant Minister or Ministers that the matters are so far cognate that they should be considered together,
the relevant Minister or Ministers may direct that the two inquiries be held concurrently or combined as one inquiry.
4
In subsection (3) above “the relevant Minister or Ministers” means the Secretary of State or, where causing the other inquiry to be held is a function of some other Minister of the Crown, the Secretary of State and that other Minister acting jointly.
F1725
Where–
a
an inquiry is to be caused to be held by the Scottish Ministers under this Part in connection with any matter; and
b
in the case of some other matter required or authorised (whether by this Part or by any other enactment) to be the subject of an inquiry which is to be caused to be held by the Scottish Ministers, it appears to the Scottish Ministers that the matters are so far cognate that they should be considered together,
the Scottish Ministers may direct that the two inquiries be held concurrently or combined as one inquiry.
63 Application to Crown land.
1
No power (whether a power of compulsory acquisition or other compulsory power, a power to carry out works or a power of entry) which is conferred by or under this Part shall, exept with the consent of the appropriate authority, be exercisable in relation to any land in which there is a Crown or Duchy interest, that is to say, an interest—
a
belonging to Her Majesty in right of the Crown or of the Duchy of Lancaster, or to the Duchy of Cornwall; or
b
belonging to a government department or held in trust for Her Majesty for the purposes of a government department.
2
A consent given for the purposes of subsection (1) above may be given on such financial and other conditions as the appropriate authority giving the consent may consider appropriate.
3
Subject to subsection (1) above, the provisions of this Part shall have effect in relation to land in which there is a Crown or Duchy interest as they have effect in relation to land in which there is no such interest.
4
In this section “the appropriate authority”—
a
in relation to land belonging to Her Majesty in right of the Crown and forming part of the Crown Estate, means the Crown Estate Commissioners;
b
in relation to any other land belonging to Her Majesty in right of the Crown, means the government department having the management of the land;
c
in relation to land belonging to Her Majesty in right of the Duchy of Lancaster, means the Chancellor of that Duchy;
d
in relation to land belonging to the Duchy of Cornwall, means such person as the Duke of Cornwall, or the possessor for the time being of that Duchy, appoints;
e
in relation to land belonging to a government department or held in trust for Her Majesty for the purposes of a government department, means that department;
and, if any question arises as to what authority is the appropriate authority in relation to any land, that question shall be referred to the Treasury, whose decision shall be final.
64 Interpretation etc. of Part I.
1
In this Part, unless the context otherwise requires—
“the 1973 Act” means the M15 Fair Trading Act 1973;
“the 1980 Act” means the M16 Competition Act 1980;
F247. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F173“authorised distributor” means a person who is authorised by a licence or exemption to distribute electricity;
F174“authorised supplier” means a person who is authorised by a licence or exemption to supply electricity;
F254“construct” and “construction”, in relation to so much of a generating station as comprises or is to comprise renewable energy installations, has the same meaning as in Chapter 2 of Part 2 of the Energy Act 2004;
F173“distribute” in relation to electricity, has the meaning given by section 4(4), and cognate expressions shall be construed accordingly;
C46 “electrical plant” means any plant equipment, apparatus or appliance used for, or for purposes connected with the generation, transmissionF175, distribution or supply of electricity, other than—
- a
an electric line;
- b
a meter used for ascertaining the quantity of electricity supplied to any premises; or
- c
an electrical appliance under the control of a consumer;
- a
C46“electric line” means any line which is used for carrying electricity for any purpose and includes, unless the context otherwise requires—
- a
any support of any such line, that is to say, any structure, pole or other thing in, on, by or from which any such line is or may be supported, carried or suspended;
- b
any apparatus connected to any such line for the purpose of carrying electricity; and
- c
any wire, cable, tube, pipe or other similar thing (including its casing or coating) which surrounds or supports, or is surrounded or supported by, or is installed in close proximity to, or is supported, carried or suspended in association with, any such line;
- a
F176“electricity distributor”F352, “electricity generator” and “electricity supplier” have the meanings given by section 6(9);
F271“electricity interconnector” has the meaning given by section 4(3E);
“exemption” means an exemption under section 5 above;
“extension”, in relation to a generating station, has the meaning given by section 36(8) above and “extend” shall be construed accordingly;
“final order” and “provisional order” have the meanings given by section 25(8) above;
F278“generate”, in relation to electricity, has the meaning given by section 4(4) above, and cognate expressions shall be construed accordingly;
“generating station”, in relation to a generating station wholly or mainly driven by water, includes all structures and works for holding or channelling water for a purpose directly related to the generation of electricity by that station;
“high voltage line” means—
- a
in relation to England and Wales, an electric line of a nominal voltage exceeding 132 kilovolts;
- b
in relation to Scotland, an electric line of a nominal voltage not less than 132 kilovolts,
and “low voltage line” shall be construed accordingly;
- a
“information” includes accounts, estimates and returns;
“licence” means a licence under section 6 above and “licence holder” shall be construed accordingly;
F177“licensable activity” means an activity which, if carried on without the authority of a licence or exemption, constitutes an offence under section 4(1);
“line” means any wire, cable, tube, pipe or any other similar thing (including its casing or coating) which is designed or adapted for use in carrying electricity;
F178. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“notice” means notice in writing;
“premises” includes any land, building or structure;
“prescribed”, F179means prescribed by regulations made, unless the context otherwise requires, by the Secretary of State;
F180. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F180. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“relevant condition”and “relevant requirement” have the meanings given by section 25(8) above;
F255“renewable energy installation” and “Renewable Energy Zone” have the same meanings as in Chapter 2 of Part 2 of the Energy Act 2004;
F181“special connection agreement” means a special agreement under section 22;
“supply”, in relation to electricity, has the meaning given by section 4(4) above, and cognate expressions shall be construed accordingly;
F180. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F245“transmission”, in relation to electricity, has the meaning given by section 4(4) above;
“transmission system” has the same meaning given by section 4(4) above;
“working day” means any day other than a Saturday, a Sunday, Christmas Day, Good Friday or a day which is a bank holiday within the meaning of the M17 Banking and Financial Dealings Act 1971.
F2461B
In this Part, references to participation, in relation to the transmission of electricity, are to be construed in accordance with section 4(3A) and (3B) above.
2
The provision of section 3 of the M18 Administration of Justice (Scotland) Act 1972 (power of arbiter to state case to Court of Session) shall not apply in relation to any determination under this Part made by an arbiter.
Pt. I modified (5.10.2004) by Energy Act 2004 (c. 20), ss. 184(12), 185(13), 198(2); S.I. 2004/2575, art. 2(1), Sch. 1