http://www.legislation.gov.uk/id/ukpga/2004/20

Part 2Sustainability and Renewable Energy Sources

Chapter 1Sustainable energy

I181Reports under section 1 of Sustainable Energy Act 2003

1

Section 1 of the Sustainable Energy Act 2003 (c. 30) (annual reports on progress towards sustainable energy aims) is amended as follows.

2

After subsection (1) insert—

1A
The report must include, in particular, all such information as the Secretary of State considers appropriate about—
a
things done during the reporting period for the purposes of the development or the bringing into use of any of the energy sources or technologies mentioned in subsection (1B);
b
things done during that period for the purpose of ensuring the maintenance of the scientific and engineering expertise available in the United Kingdom that is necessary for the development of potential energy sources (including sources of nuclear energy); and
c
things done during that period for the purpose of achieving the energy efficiency aims designated under sections 2 and 3.
1B
The energy sources and technologies referred to in subsection (1A)(a) are—
a
clean coal technology;
b
coal mine methane;
c
biomass;
d
biofuels;
e
fuel cells;
f
photovoltaics;
g
wave and tidal generation;
h
hydrogeneration;
i
microgeneration;
j
geothermal sources; and
k
other sources of energy, and technologies for the production of energy, the use of which would, in the opinion of the Secretary of State, cut the United Kingdom’s carbon emissions.
1C
The references in subsection (1A) to things done during the reporting period include references to proposals of the Secretary of State published during that period.

F123

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

in relation to the generation of electricity, 50 kilowatts;

b

in relation to the production of heat, 45 kilowatts thermal.

9

In this section—

“consumers” includes both existing and future consumers;
“distribution system” and “transmission system” have the same meanings as in Part 1 of the 1989 Act;
“fuel poverty” has the same meaning as in section 1 of the Sustainable Energy Act 2003 (c. 30);
“greenhouse gases” means—
1. a
  carbon dioxide;
2. b
  methane;
3. c
  nitrous oxide;
4. d
  hydrofluorocarbons;
5. e
  perfluorocarbons;
6. f
  sulphur hexafluoride;
“plant” includes any equipment, apparatus or appliance.

I383Sustainable development

In each of section 4AA of the Gas Act 1986 (c. 44) and section 3A of the 1989 Act (the principal objective and general duties of the Secretary of State and the Authority), in subsection (5)—

a

for the “and” at the end of paragraph (b) substitute—

ba
to contribute to the achievement of sustainable development; and

b

for “and shall” substitute “ and (so far as not otherwise required to do so by this subsection) shall ”.

Chapter 2Offshore production of energy

Renewable Energy Zones

I484Exploitation of areas outside the territorial sea for energy production

1

The rights to which this section applies shall have effect as rights belonging to Her Majesty by virtue of this section.

2

This section applies to the rights under Part V of the Convention that are exercisable by the United Kingdom in areas outside the territorial sea—

a

with respect to the exploitation of those areas for the production of energy from water or winds;

b

with respect to the exploration of such areas in that connection; or

c

for other purposes connected with such exploitation.

3

The other purposes so connected include, in particular, the transmission, distribution and supply of electricity generated in the course of such exploitation.

F314

The area within which the rights to which this section applies are exercisable (the “Renewable Energy Zone”)—

a

is any area for the time being designated under section 41(3) of the Marine and Coastal Access Act 2009 (exclusive economic zone), but

b

if Her Majesty by Order in Council declares that the Renewable Energy Zone extends to such other area as may be specified in the Order, is the area resulting from the Order.

5

The Secretary of State may by order designate the whole or a part of a Renewable Energy Zone as an area in relation to which the Scottish Ministers are to have functions.

6

Orders in Council under this section, and orders under subsection (5), are subject to the negative resolution procedure.

7

In this section—

“the Convention” means the United Nations Convention on the Law of the Sea 1982 (Cmnd 8941) and any modifications of that Convention agreed after the passing of this Act that have entered into force in relation to the United Kingdom;
“exploration” includes the doing of anything (whether by way of investigations, trials or feasibility studies or otherwise) with a view to ascertaining whether the exploitation of an area is, in a particular case, practicable or commercially viable, or both.

I585Application of criminal law to renewable energy installations etc.

In relation to times before the coming into force of section 27(1) of the Justice (Northern Ireland) Act 2002 (c. 26), the reference in subsection (4) to the Advocate General for Northern Ireland is to be read as a reference to the Attorney General for Northern Ireland.

6

Section 3 of the Territorial Waters Jurisdiction Act 1878 (c. 73) (consents to prosecution of offences committed on the open sea by persons who are not British citizens) does not apply to proceedings for an offence to which this section applies.

I787Application of civil law to renewable energy installations etc.

1

Her Majesty may by Order in Council provide that questions arising out of—

a

acts or omissions taking place on, under or above a renewable energy installation situated in waters to which this section applies, or

b

acts or omissions taking place on, under or above such waters in relation to a related line,

are to be determined in accordance with the law in force in such part of the United Kingdom as may be specified in the Order.

2

An Order in Council under this section may also make provision for conferring jurisdiction in proceedings with respect to questions of the kind mentioned in subsection (1) on courts in one or more parts of the United Kingdom.

3

Jurisdiction conferred on a court by an Order in Council under this section is in addition to any jurisdiction exercisable apart from that Order by that or any other court; and this section is to be disregarded in determining the extent of any jurisdiction so exercisable.

4

The waters to which this section applies are—

a

tidal waters and parts of the sea in or adjacent to Great Britain up to the seaward limits of the territorial sea; and

b

waters in a Renewable Energy Zone.

5

In section 410(3) of the Communications Act 2003 (c. 21) (which enables Orders in Council under section 11 of the Petroleum Act 1998 (c. 17) to extend certain communications legislation to offshore installations), after “1998” insert “ or section 87 of the Energy Act 2004 ”.

6

In this section—

“court” includes any tribunal or regulatory authority;
“related line” means an electric line, or a part of an electric line, which—
1. a
  falls within subsection (7); but
2. b
  is not an electricity interconnector (within the meaning of Part 1 of the 1989 Act).

7

An electric line, or a part of an electric line, falls within this subsection if it—

a

is used for the conveyance of electricity to or from a renewable energy installation;

b

is in the course of construction at a place where it is to be so used; or

c

has ceased to be so used (whether or not it is being decommissioned) and since ceasing to be so used has not been used for any other purpose.

I888Orders in Council under ss. 85 and 87

1

An Order in Council under section 85 or 87 that makes provision falling within subsection (3) is subject to annulment in pursuance of a resolution of the Scottish Parliament (but may by virtue of subsection (2) be subject also to the negative resolution procedure).

2

An Order in Council under section 85 or 87 that makes provision not falling within subsection (3) is subject to the negative resolution procedure.

3

Provision falls within this subsection so far as it is provision that would be within the legislative competence of the Scottish Parliament if it were included in an Act of that Parliament.

Application of 1989 Act offshore

I30 I57 I5889Activities offshore requiring 1989 Act licences

1

In subsection (4) of section 4 of the 1989 Act (definitions for the purposes of Part 1), after the definition of “distribute” insert—

“generate”, in relation to electricity, means generate at a relevant place;

2

After that subsection insert—

5
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.

3

In section 6 of that Act (licences authorising supply etc.), after subsection (9) insert—

10
In this section “premises” has the same meaning as in section 4.

4

In section 64(1) of that Act (interpretation of Part 1), after the definitions of “final order” and “provisional order” insert—

“generate”, in relation to electricity, has the meaning given by section 4(4) above, and cognate expressions shall be construed accordingly;

A modification under subsection (1)(b) of part of a standard condition of a licence does not prevent any other part of the condition from continuing to be regarded as a standard condition for the purposes of Part 1 of the 1989 Act.

8

The Secretary of State’s powers under this section are exercisable only during the eighteen months beginning with F26the passing of the Energy Act 2011.

9

In this section—

“offshore distribution” means distribution within an area of offshore waters of electricity generated by a generating station in such an area;
“offshore transmission” means transmission within an area of offshore waters of electricity generated by a generating station in such an area; and
“offshore waters” means—
1. a
  waters in or adjacent to Great Britain which are between the mean low water mark and the seaward limits of the territorial sea; and
2. b
  waters within an area designated under section 1(7) of the Continental Shelf Act 1964 (c. 29).

10

Expressions used in this section and in Part 1 of the 1989 Act have the same meanings in this section as in that Part.

Expressions used in this section and in Part 1 of the 1989 Act have the same meanings in this section as in that Part.

I5492Competitive tenders for offshore transmission licences

After section 6B of the 1989 Act (applications for transmission licences) insert—

6CCompetitive tenders for offshore transmission licences
1
The Authority may by regulations make such provision as appears to it to be appropriate for facilitating the making, in prescribed cases, of a determination on a competitive basis of the person to whom an offshore transmission licence is to be granted.
2
That provision may include—
a
provision, in prescribed cases, for the publication of a proposal to grant an offshore transmission licence;
b
provision for the inclusion in such a proposal of an invitation to apply for such a licence;
c
provision restricting the making of applications for offshore transmission licences and imposing requirements as to the period within which they must be made;
d
provision for regulating the manner in which applications are considered and determined.
3
Regulations under this section—
a
may make provision by reference to a determination by the Authority or to the opinion of the Authority as to any matter; and
b
may dispense with or supplement provision made in relation to applications for transmission licences by or under section 6A or 6B above.
4
The approval of the Secretary of State is required for the making of regulations under this section.
5
In this section—
“offshore transmission licence” means a transmission licence authorising anything that forms part of a transmission system to be used for purposes connected with offshore transmission; and
“prescribed” means prescribed in or determined under regulations made by the Authority.
6
In subsection (5) “offshore transmission” means the transmission within an area of offshore waters of electricity generated by a generating station in such an area.
7
In subsection (6) “offshore waters” means—
a
waters in or adjacent to Great Britain which are between the mean low water mark and the seaward limits of the territorial sea; and
b
waters within an area designated under section 1(7) of the Continental Shelf Act 1964.

I3193Consents for generating stations offshore

1

In section 36(1) of the 1989 Act (consent required for construction etc. of generating stations), after “constructed” insert “ at a relevant place (within the meaning of section 4), and a generating station at such a place shall not be ”.

2

Before paragraph 8 of Schedule 8 to that Act (procedure for consents under sections 36 and 37) insert—

7AGenerating stations not within areas of relevant planning authorities
1
This paragraph applies to every case where an application for a consent under section 36 of this Act relates to—
a
the construction or operation of a generating station the whole or a part of which is to be, or is, at a place that is not within the area of a relevant planning authority; or
b
the extension of a generating station at or to a place the whole or a part of which is not within such an area.
2
This Schedule shall have effect in relation to cases to which this paragraph applies with the following modifications.
3
In paragraph 1(1), for the words from “land to which” onwards substitute “ place to which the application relates, that is, the place where it is proposed to construct the generating station, where the proposed extension will be or where the station proposed to be operated is situated. ”
4
Paragraph 2 does not apply where no part of the place to which the application relates is within the area of a relevant planning authority.
5
In paragraph 4—
a
in sub-paragraph (1)—
i
in paragraph (a), for “land” substitute “ place ”; and
ii
in paragraph (b), for “in the locality” substitute “ in the area specified in or determined in accordance with regulations made by the Secretary of State ”;
b
in sub-paragraph (2), for the words from “the locality” onwards substitute “ the area specified in or determined in accordance with regulations made by the Secretary of State. ”; and
c
in sub-paragraph (3), for “in the locality” substitute “ who are likely to be affected by the consent applied for if it is given ”.
6
Paragraph 5 does not apply; but sub-paragraphs (7) to (10) apply where—
a
a public inquiry is to be held in accordance with paragraph 2(2) or 3(2); and
b
the application for consent relates to a place a part of which is in the area of one or more relevant planning authorities.
7
Except in so far as the Secretary of State otherwise directs, an inquiry held in accordance with paragraph 2(2) must be confined to so much of the application as relates to land within the area of the authority by whom an objection has been made.
8
The Secretary of State must have regard to objections made otherwise than by the authority in question in determining whether to give a direction under sub-paragraph (7) and in determining (where he gives one) what direction to give.
9
The Secretary of State may direct that separate inquiries may be held in relation to any or each of the following—
a
so much of the application as relates to land within the area of a particular relevant planning authority;
b
so much of the application as relates to anywhere that is not within the area of a relevant planning authority.
10
For the purposes of sub-paragraph (7) a planning authority that has made an objection is to be treated as not having done so if the Secretary of State proposes to accede to the application subject to such modifications or conditions as meet that objection.

3

In section 36(9) of that Act (definition of extension), after “land” insert “ or area of waters ”.

4

The functions conferred by virtue of this section on the Secretary of State are not to be exercisable by the Scottish Ministers, except in pursuance of an Order in Council made after the passing of this Act under section 63 of the Scotland Act 1998 (c. 46).

I994Application of regulations under 1989 Act offshore

1

In section 29 of the 1989 Act (regulations relating to supply and safety), after subsection (1) insert—

1A
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

In section 30 of that Act (electrical inspectors), after subsection (3) insert—

3A
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.

Safety zones for installations

I37 C595Safety zones around renewable energy installations

1

This section applies where—

a

there is a proposal to construct a renewable energy installation in waters subject to regulation under this section, or to extend or to decommission a renewable energy installation situated in such waters;

b

there is a proposal to operate a renewable energy installation on completion of its construction in such waters, or of any extension of it in such waters; or

c

a renewable energy installation is being constructed, extended, operated or decommissioned in such waters.

F331A

In this section and section 96 the “appropriate Minister” means the Scottish Ministers, in relation to a renewable energy installation—

a

which is to be or is wholly in an area of Scottish waters or an area of waters in a Scottish part of a Renewable Energy Zone, and is not being or proposed to be extended outside those areas,

b

to which paragraph (a) has ceased to apply because of an extension or proposed extension, if subsection (1B) applies, or

c

to the extent that it is to be or is in an area of Scottish waters or an area of waters in a Scottish part of a Renewable Energy Zone, if paragraph (a) has ceased to apply because of an extension or proposed extension, and subsection (1B) does not apply,

and otherwise means the Secretary of State (subject to section 13 of the Marine and Coastal Access Act 2009, which transfers certain functions of the Secretary of State to the Marine Management Organisation).

1B

This subsection applies if there is an agreement in force between the Secretary of State and the Scottish Ministers providing for the Scottish Ministers to be the appropriate Minister in relation to the whole of the installation.

1C

Where subsection (1B) applies, the Scottish Ministers must consult the Secretary of State about the exercise of their functions as the appropriate Minister.

2

If the F34appropriate Minister considers it appropriate to do so for the purpose of securing the safety of—

a

the renewable energy installation or its construction, extension or decommissioning,

b

other installations in the vicinity of the installation or the place where it is to be constructed or extended,

c

individuals in or on the installation or other installations in that vicinity, or

d

vessels in that vicinity or individuals on such vessels,

he may issue a notice declaring that such areas as are specified or described in the notice are to be safety zones for the purposes of this Chapter.

3

The power of the F34appropriate Minister to issue a notice under this section shall be exercisable by him either—

a

on an application made to him for the purpose by any person; or

b

where no such application is made, on his own initiative.

4

Before issuing a notice under this section which relates, wholly or partly, to—

a

an area of Scottish waters, or

b

if made by the Scottish Ministers, are subject to the negative procedure (see section 28 of the Interpretation and Legislative Reform (Scotland) Act 2010).

I3997Offences relating to safety zones

1

Where a vessel enters or remains in a safety zone in contravention of section 96(1), the vessel’s owner and her master are each guilty of an offence.

2

Where—

a

a vessel enters or remains in a safety zone with a permission granted for the purposes of section 96, and

b

there is a contravention of a condition of that permission in relation to the vessel or individuals on the vessel,

the vessel’s owner and her master are each guilty of an offence.

3

A person who carries on an activity wholly or partly in a safety zone in contravention of section 96(2) is guilty of an offence.

4

Where—

a

a person carries on an activity wholly or partly in a safety zone with a permission granted for the purposes of section 96, and

b

5

6

In this section “director”, in relation to a body corporate whose affairs are managed by its members, means a member of the body corporate.

Navigation and civil aviation

I3299Navigation

I35 I411

After section 36 of the 1989 Act insert—

36ADeclarations 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.
4
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.
5
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.
6
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;
“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.
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.

2

In paragraph 8 of Schedule 8 to that Act (supplementary provisions relating to applications under section 36 of that Act), after sub-paragraph (2) insert—

3
Where an application for a declaration under section 36A of this Act is made with an application for a consent under section 36 of this Act, the application for the declaration shall be treated for the purposes of this Schedule as part of the application for the consent.

3

In section 3D of that Act (principal objective and general duties not to apply to Secretary of State’s functions under section 36 or 37), for “section 36 or 37” substitute “ sections 36 to 37 ”.

4

~~F24In subsection (1) of section 35 of the Coast Protection Act 1949 (c. 74) (operations not requiring consent under section 34), after paragraph (g) insert—~~

ga
subject to subsection (3) of this section, any operations comprised in offshore generating activities carried out in accordance with a consent under section 36 of the Electricity Act 1989 granted after the commencement of section 99 of the Energy Act 2004;

5

~~F24After subsection (2) of that section insert—~~

3
~~Operations in or as regards Scotland fall within paragraph (ga) of that subsection only if and to the extent that the Scottish Ministers by order made by statutory instrument so provide.~~
4
~~A statutory instrument containing an order under subsection (3) shall not be made unless a draft of the instrument has been laid before and approved by a resolution of the Scottish Parliament.~~
5
~~In that paragraph “offshore generating activities” has the same meaning as in section 36B of the Electricity Act 1989.~~

The consenting authority may satisfy the requirements of paragraphs (a) to (d) of subsection (6) by securing that the things that it is required to do under those paragraphs are done on its behalf by the generator.

8

In this section—

“generator”, in relation to a consent under section 36 of the 1989 Act, means the person who is constructing or operating the station in question, or making the extension in question, or who is proposing to do so;
“relevant waters” has the same meaning as in section 36A of the 1989 Act.

I10101Application of civil aviation regulations to renewable energy installations

1

Schedule 13 to the Civil Aviation Act 1982 (c. 16) (subordinate instruments) is amended as follows.

2

In the Table in Part 2 (provisions applying to certain powers), in the entry for section 60, in column 4 (applicable paragraphs of Part 3 of the Schedule), for “and 6” substitute “ , 6 and 7 ”.

3

In paragraph 6 of Part 3 (extra-territorial provisions), in sub-paragraph (4) for “sub-paragraph (5)” substitute “ sub-paragraphs (5) and (7) ”.

4

After sub-paragraph (6) of that paragraph insert—

7
So far as relates to a provision of an Order in Council or regulation concerning aircraft on or in the neighbourhood of a renewable energy installation, this paragraph—
a
shall apply to all aircraft, and not only to aircraft registered in the United Kingdom; and
b
shall apply to the doing of anything in relation to an aircraft by any person, irrespective of nationality, or (in the case of a body corporate) of the law under which it was incorporated.
8
For the purposes of sub-paragraphs (5) and (7) the neighbourhood of an installation includes anywhere within 500 metres of that installation.
9
In this paragraph “renewable energy installation” has the same meaning as in Chapter 2 of Part 2 of the Energy Act 2004.

5

After that paragraph insert—

7
1
Without prejudice to paragraph 6 above, an Air Navigation Order may make provision in relation to renewable energy installations located within a Renewable Energy Zone as if those installations were located in a part of the United Kingdom.
2
Such provision may apply to any person irrespective of nationality or (in the case of a body corporate) of the law under which it was incorporated.
3
In this paragraph “renewable energy installation” and “Renewable Energy Zone” have the same meanings as in Chapter 2 of Part 2 of the Energy Act 2004.

Supplementary provisions of Chapter 2 of Part 2

102Amendments of 1989 Act consequential on Chapter 2 of Part 2

I111

The 1989 Act is amended as follows.

I422

In section 61(2) (concurrent proceedings for compulsory purchase and in respect of consents under section 36 of that Act), at the end insert “ and with any related proceedings under Schedule 16 to the Energy Act 2004 ”.

I423

In section 62(3) (power to combine inquiries)—

a

in paragraph (a), after “this Part” insert “ or Schedule 16 to the Energy Act 2004 ”; and

b

in paragraph (b), after “this Part” insert “ , that Schedule ”.

I114

In section 64(1) (interpretation of Part 1)—

a

after the definition of “authorised supplier” insert—

“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;

b

after the definitions of “relevant condition” and “relevant requirement” insert—

“renewable energy installation” and “Renewable Energy Zone” have the same meanings as in Chapter 2 of Part 2 of the Energy Act 2004;

I335

After section 108 insert—

108AExtraterritorial operation of Act
1
Where by virtue of this Act an act or omission taking place outside Great Britain constitutes an offence, proceedings for the offence may be taken, and the offence may for all incidental purposes be treated as having been committed, in any place in Great Britain.
2
Provision made by or under this Act in relation to places outside Great Britain—
a
so far as it applies to individuals, applies to them whether or not they are British citizens; and
b
so far as it applies to bodies corporate, applies to them whether or not they are incorporated under the law of a part of the United Kingdom.

103Other amendments consequential on Chapter 2 of Part 2

I531

In section 8 of the Continental Shelf Act 1964 (c. 29) (application of Submarine Telegraph Act 1885 to pipelines and submarine cables)—

a

in subsection (1), omit “high-voltage”; and

b

in subsection (1A), for the words from “pipe-lines under the high seas” onwards substitute “ submarine cables and pipe-lines under the high seas includes a reference to submarine cables and pipe-lines under the territorial sea adjacent to the United Kingdom or under waters in an area designated under section 1(7) of this Act ”.

I122

In section 23 of the Police and Criminal Evidence Act 1984 (c. 60) (meaning of premises)—

a

in the definition of “premises”, for the “and” at the end of paragraph (b) substitute—

ba
any renewable energy installation;

b

after the definition of “offshore installation” insert—

“renewable energy installation” has the same meaning as in Chapter 2 of Part 2 of the Energy Act 2004.

I343

In section 10(10) of the Petroleum Act 1998 (c. 17) (section to apply to installations in transit), after “transit” insert “ but does not apply to an installation that is a renewable energy installation (within the meaning of Chapter 2 of Part 2 of the Energy Act 2004) ”.

I124

After section 47 of that Act insert—

47AFactors for the Secretary of State to take into account
1
The matters to which the Secretary of State may have regard, in exercising or performing the powers and duties conferred or imposed on him by or under this Act, include, in particular—
a
activities in relevant waters for or in connection with the generation of electricity;
b
proposals made by a person to carry on such activities;
c
the proposals that it appears to the Secretary of State may be made in the future for the carrying on of such activities; and
d
the likelihood that activities will in due course be carried on in accordance with proposals falling within paragraph (b) or (c).
2
The reference in subsection (1) to activities in connection with the generation of electricity in relevant waters includes—
a
the transmission, distribution and supply of the electricity generated; and
b
the doing of anything (whether by way of investigations, trials or feasibility studies or otherwise) with a view to ascertaining whether activities in relevant waters for or in connection with the generation of electricity are, in a particular case, practicable or commercially viable, or both.
3
In this section—
“distribution”, “generate”, “supply” and “transmission”, and cognate expressions, have the same meanings as in Part 1 of the Electricity Act 1989; and
“relevant waters” means—
a
waters in or adjacent to the United Kingdom up to the seaward limits of the territorial sea; or
b
waters in a Renewable Energy Zone (within the meaning of Chapter 2 of Part 2 of the Energy Act 2004).

I13104Interpretation of Chapter 2 of Part 2

1

In this Chapter—

“construct”, in relation to an installation or an electric line or in relation to a generating station so far as it is to comprise renewable energy installations, includes—
1. a
  placing it in or upon the bed of any waters;
2. b
  attaching it to the bed of any waters;
3. c
  assembling it;
4. d
  commissioning it; and
5. e
  installing it;
and “construction” is to be construed accordingly;
“decommission”, in relation to an installation or an electric line, includes—
1. a
  removing it from the bed of any waters;
2. b
  demolishing it; and
3. c
  dismantling it;
“distribution” and “electric line” have the same meanings as in Part 1 of the 1989 Act;
“extend” and “extension”—
1. a
  in relation to a generating station, have the same meanings as in Part 1 of the 1989 Act; and
2. b
  in relation to an installation, have the same meanings as in relation to a generating station;
“installation” includes artificial island, structure and device;
“master” includes—
1. a
  in relation to a hovercraft, the captain;
2. b
  in relation to any submersible apparatus, the person in charge of the apparatus; and
3. c
  in relation to an installation in transit, the person in charge of the transit operation;
“renewable energy installation” is to be construed in accordance with subsections (3) to (5);
“Renewable Energy Zone” has the meaning given by section 84(4);
“safety zone” means an area which is a safety zone for the purposes of this Chapter by virtue of section 95;
“Scottish part”, in relation to a Renewable Energy Zone, means so much of that Zone as is designated under section 84(5);
“Scottish waters” means—
1. a
  the internal waters of the United Kingdom that are in or are adjacent to Scotland; or
2. b
  so much of the territorial sea of the United Kingdom as is adjacent to Scotland;
“submersible apparatus” has the meaning given by section 88(4) of the Merchant Shipping Act 1995 (c. 21);
“supply”, in relation to electricity, has the same meaning as in Part 1 of the 1989 Act;
“transmission”, in relation to electricity, has the same meaning as in Part 1 of the 1989 Act;
“vessel” includes—
1. a
  a hovercraft;
2. b
  any submersible apparatus; and
3. c
  an installation in transit.

b

so far as it applies to bodies corporate, applies to them whether or not they are incorporated under the law of a part of the United Kingdom.

Chapter 3Decommissioning of offshore installations

Decommissioning programmes

I43105Requirement to prepare decommissioning programmes

1

This section applies where—

a

there is a proposal by a person to construct a relevant object in waters regulated under this Chapter, or to extend a relevant object in such waters;

b

there is a proposal by a person to operate or to use a relevant object in such waters on the completion of its construction, or of any extension of it in such waters; or

c

a person is constructing, extending, operating or using a relevant object in such waters or has begun in such waters to decommission such an object.

F391A

In this Chapter “appropriate Minister”—

a

in relation to a renewable energy installation, means the Scottish Ministers—

i

if the installation is to be or is wholly in an area of Scottish waters or an area of waters in a Scottish part of a Renewable Energy Zone, and is not being or proposed to be extended outside those areas,

ii

if sub-paragraph (i) has ceased to apply to the installation because of an extension or proposed extension, and subsection (1B) applies, or

iii

to the extent that the installation is to be or is in an area of Scottish waters or an area of waters in a Scottish part of a Renewable Energy Zone, if sub-paragraph (i) has ceased to apply because of an extension or proposed extension, and subsection (1B) does not apply;

and otherwise means the Secretary of State;

b

in relation to an electric line which is or has been a related line, means—

i

the Scottish Ministers, to the extent that the line is to be or is in an area of Scottish waters or an area of waters in a Scottish part of a Renewable Energy Zone;

ii

otherwise, the Secretary of State.

1B

This subsection applies to an installation if there is an agreement in force between the Secretary of State and the Scottish Ministers providing for the Scottish Ministers to be the appropriate Minister in relation to the whole of the installation.

where it is given to more than one of them, the requirement to submit a programme must be satisfied by all those persons acting jointly.

5

Before giving a notice under this section in relation to a relevant object which is to be or is, F40... partly—

a

in an area of Scottish waters; or

b

in an area of waters in a Scottish part of a Renewable Energy Zone,

the Secretary of State must consult the Scottish Ministers.

6

A notice under this section must either—

a

specify the date by which the decommissioning programme is to be submitted; or

b

require it to be submitted on or before such date as the F50appropriate Minister may direct.

7

A notice under this section may require the recipient of the notice to carry out the consultations specified in the notice before submitting the programme required of him.

8

A decommissioning programme—

a

must set out measures to be taken for decommissioning the relevant object;

b

must contain an estimate of the expenditure likely to be incurred in carrying out those measures;

c

must make provision for the determination of the times at which, or the periods within which, those measures will have to be taken;

d

if it proposes that the relevant object will be wholly or partly removed from a place in waters regulated under this Chapter, must include provision about restoring that place to the condition that it was in prior to the construction of the object; and

e

if it proposes that the relevant object will be left in position at a place in waters regulated under this Chapter or will not be wholly removed from a place in such waters, must include provision about whatever continuing monitoring and maintenance of the object will be necessary.

F209

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

10

In this Chapter—

“relevant object” means the whole or any part of—
1. a
  a renewable energy installation; or
2. b
  an electric line that is or has been a related line;
“waters regulated under this Chapter” means—
1. a
  waters in or adjacent to Great Britain which are between the mean low water mark and the seaward limits of the territorial sea; and
2. b
  waters in a Renewable Energy Zone.

11

In this section—

“related line” means an electric line which is a line for the conveyance of electricity to or from a renewable energy installation but is not an electricity interconnector (within the meaning of Part 1 of the 1989 Act); and
“statutory consent” means a consent, licence or approval required by or under any enactment.

any rights and powers possessed by a person as nominee for it, and

b

any rights and powers possessed by a body corporate which it controls (including rights and powers which such a body corporate would be taken to possess by virtue of this paragraph).

I44 C6106Approval of decommissioning programmes

1

The F50appropriate Minister may either approve or reject a programme submitted to him under section 105.

2

Before approving or rejecting a decommissioning programme relating to a relevant object which is to be or is, F41... partly—

a

in an area of Scottish waters, or

b

4

Where the F50appropriate Minister informs a person under subsection (3) that he has prepared his own decommissioning programme, he may by notice to that person require him—

a

to provide such security in relation to the carrying out of the programme, and for his compliance with its conditions (if any), as may be specified by the F50appropriate Minister; and

b

to provide it at such time, and in accordance with such requirements, as may be specified by the F50appropriate Minister;

and a requirement under this subsection has effect as if it were a condition of the deemed approval of the programme.

F215

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F216

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F217

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

8

The power of the F50appropriate Minister to impose requirements under this section includes power, where there is more than one person on whom he may impose them, to impose different requirements in relation to different persons.

9

Where, having given a notice under section 105, the F50appropriate Minister prepares his own decommissioning programme, he may recover expenditure incurred by him in, or in connection with, the exercise of his powers under this section from the recipient of the notice.

10

A person liable to pay a sum to the F50appropriate Minister by virtue of subsection (9) must also pay interest on that sum for the period which—

if the proposal is the F50appropriate Minister's, to every person whose duty under section 109(1) in relation to the programme would be affected or relieved under the proposal or who would become subject to such a duty; and

b

in any other case, to the F50appropriate Minister.

5

An opportunity of making representations to the F50appropriate Minister about a proposal of his under this section must be given by him to every person to whom notice of the proposal is required to have been given.

6

It is to be for the F50appropriate Minister, after considering any representations made to him, to determine whether or not effect should be given to a proposal of his, or of any other person, under this section.

7

Before making a determination under subsection (6) with respect to a proposal in relation to a decommissioning programme relating to a relevant object which is to be or is, F43... partly—

a

in an area of Scottish waters, or

b

b

to provide it at such time, and in accordance with such requirements, as may be specified by the F50appropriate Minister;

and a requirement under this subsection has effect as if it were a condition of the approval of the programme.

Implementation of decommissioning programmes

I47109Carrying out of decommissioning programmes

C81

Where a decommissioning programme is approved by the F50appropriate Minister, it shall be the duty of the person who submitted the programme to secure—

a

that it is carried out in every respect; and

b

that all the conditions to which the approval is subject are complied with.

2

Where a relevant object is subject to a decommissioning programme approved by the F50appropriate Minister, it is an offence for a person to take any measures for decommissioning that object unless he does so—

a

in accordance with the programme; or

b

with the agreement of the F50appropriate Minister.

I48 C9110Default in carrying out decommissioning programmes

1

Where—

a

a decommissioning programme approved by the F50appropriate Minister is not carried out in a particular respect, or

b

a condition to which the approval is subject is contravened,

the F50appropriate Minister may, by notice, require a person subject to the duty under section 109(1) in relation to the programme to take such remedial action as may be specified in the notice.

2

Remedial action required by a notice under this section must be taken within such period as may be specified in the notice.

3

A person who fails to comply with a notice given to him under this section is guilty of an offence.

4

In proceedings against a person for an offence under this section it is a defence for him to show that he exercised due diligence to avoid the contravention in question.

5

If a notice under this section is not complied with, the F50appropriate Minister may—

a

himself secure the carrying out of the remedial action required by the notice; and

b

recover any expenditure incurred by him in doing so from the person to whom the notice was given.

6

A person liable to pay a sum to the F50appropriate Minister by virtue of subsection (5) must also pay interest on that sum for the period which—

a

begins with the day on which the F50appropriate Minister notified him of the sum payable; and

b

ends with the date of payment.

7

The rate of interest shall be a rate determined by the F50appropriate Minister to be comparable with commercial rates.

C10110AF16Protection of funds held for purposes of decommissioning

1

This section applies where any security in relation to the carrying out of an approved decommissioning programme, or for compliance with the conditions of its approval, has been provided by a person (“the security provider”) by way of a trust or other arrangements.

2

In this section a reference to “the protected assets” is a reference to the security and any property or rights in which it consists.

3

The manner in which, and purposes for which, the protected assets are to be applied and enforceable (whether in the event of the security provider's insolvency or otherwise) is to be determined in accordance with the trust or other arrangements.

4

For the purposes of subsection (3), no regard is to be had to so much of the Insolvency Act 1986, the Insolvency (Northern Ireland) Order 1989 or any other enactment or rule of law as, in its operation in relation to the security provider or any conduct of the security provider, would—

a

prevent or restrict the protected assets from being applied in accordance with the trust or other arrangement, or

b

prevent or restrict their enforcement for the purposes of being so applied.

5

In subsection (4) “enactment” includes an instrument made under an enactment.

C11110BSection 110A: supplemental

1

The F50appropriate Minister may direct a security provider to publish specified information about the protected assets.

2

A direction under this section may specify—

a

the time when the information must be published, and

b

the manner of publication.

3

If a security provider fails to comply with a direction, the F50appropriate Minister or a creditor of the security provider may make an application to the court under this section.

4

If, on an application under this section, the court decides that the security provider has failed to comply with the direction, it may order the security provider to take such steps as the court directs for securing that the direction is complied with.

5

In this section—

“the protected assets” has the same meaning as in section 110A;
“security provider” means a person who has provided security in relation to which that section applies.

b

in waters in a Scottish part of a Renewable Energy Zone,

to participation by acting in pursuance of an agreement to provide a service or services to a person carrying on those activities.

9

In this section “statutory consent” has the same meaning as in section 105.

is required by or under an enactment.

a director, manager, secretary or other similar officer of the body corporate, or

b

a person who was purporting to act in any such capacity,

he (as well as the body corporate) is guilty of that offence and shall be liable to be proceeded against and dealt with accordingly.

4

Where such an offence—

a

is committed by a Scottish firm, and

b

is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a partner of the firm,

he (as well as the firm) is guilty of that offence and shall be liable to be proceeded against and dealt with accordingly.

5

Where a decommissioning offence is committed outside the United Kingdom, proceedings for the offence may be taken, and the offence may for all incidental purposes be treated as having been committed, in any place in the United Kingdom.

6

7

In this section—

“decommissioning offence” means an offence under—
1. a
  a provision of this Chapter; or
2. b
  regulations made under section 111;
“director”, in relation to a body corporate whose affairs are managed by its members, means a member of the body corporate.

I52114Interpretation of Chapter 3 of Part 2

1

Expressions used in this Chapter and in Chapter 2 of this Part have the same meanings in this Chapter as in that Chapter.

2

In this Chapter—

F49“appropriate Minister” has the meaning given by section 105(1A);
“decommissioning programme” has the meaning given by section 105(2);
“extend” and “extension”, in relation to an electric line, have the same meanings as they have in Chapter 2 of this Part and this Chapter in relation to a renewable energy installation;
“recipient”, in relation to a notice under section 105, means the person or any one or more of the persons to whom that notice was given;
“relevant object” has the meaning given by section 105(10);
“security” includes—
1. a
  a charge over a bank account or any other asset;
2. b
  a deposit of money;
3. c
  a performance bond or guarantee;
4. ca
  F23an insurance policy;
5. d
  a letter of credit; and
6. e
  a letter of comfort;
“waters regulated under this Chapter” has the meaning given by section 105(10).

3

References in this Chapter to providing a security include references—

a

to securing its maintenance or renewal; and

b

to ensuring that its value is adjusted from time to time to take account of changes to the likely costs of the matters in respect of which it is given.

4

References in this Chapter to the person by whom a decommissioning programme was submitted are references, in the case of a programme submitted jointly by more than one person, to each of them.

5

Provision made by or under this Chapter in relation to places outside the United Kingdom—

a

so far as it applies to individuals, applies to them whether or not they are British citizens; and

b

so far as it applies to bodies corporate, applies to them whether or not they are incorporated under the law of any part of the United Kingdom.

Chapter 4Renewables obligations relating to electricity

I14115Discharge of renewables obligation in Great Britain by payment

1

In section 32(3) of the 1989 Act (renewables obligation), for the words from “must” to “produce” substitute “ must, by each specified day, have produced ”.

2

In section 32C of that Act (payment as an alternative to complying with a renewables obligation), in subsection (1) for the words from “that” onwards substitute—

a
that an electricity supplier may (in whole or in part) discharge its renewables obligation by making a payment to the Authority before the day specified as the day by which evidence must be produced for the purposes of section 32(3); and
b
that an electricity supplier’s renewables obligation that was not discharged in whole or in part before the day so specified 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 such period beginning with that day as may be specified in the order.

3

In subsection (2) of that section (supplementary provisions of order providing for payments)—

a

after paragraph (a) insert—

aa
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 time by which evidence had to be produced for the purposes of section 32(3);

b

in paragraph (b), for “such sums” substitute “ sums or rates falling within paragraph (a) or (aa) ”;

c

in paragraph (c), after “sums” insert “ or rates ”; and

d

in paragraph (d), after “sum” insert “ or rate ”.

4

For subsection (3) of that section substitute—

2A
An order under section 32 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 day by which the obligation had to be complied with) 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.
2B
An order under section 32 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.
2C
An order under section 32 may not by virtue of subsection (2B) 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 (2A) 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.
2D
The provision that may be made by virtue of subsection (2B) 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 he were a licence holder.
3
The amounts received by the Authority by virtue of the preceding provisions of this section must be paid by it to electricity suppliers in accordance with a system of allocation specified in an order under section 32.

5

In that section, at the end insert—

6
References in this section to an electricity supplier’s renewables obligation include references to its renewables obligation in relation to a particular period.
7
For the purposes of this section—
a
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, and
b
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, the Authority or (as the case may be) the Northern Ireland authority would have received more by way of discharge payments if every renewables obligation or (as the case may be) Northern Ireland obligation for that period, so far as it was not otherwise discharged, had been discharged by payment.
8
In this section—
“discharge payment”, in relation to a period, means—
a
a payment by virtue of paragraph (a) of subsection (1) 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 paragraph (b) of that subsection 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 day mentioned in that paragraph; 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;
“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.

C16

The requirements of section 32(7) of the 1989 Act (consultation before making an order) may be satisfied in the case of an order containing provision made by virtue of this section by consultation that took place wholly or partly before the commencement of this section.

F13116Issue of green certificates in Great Britain

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

I15117Use of green certificates issued in Northern Ireland

1

After section 32B of the 1989 Act insert—

32BAUse of green certificates issued in Northern Ireland
1
An order under section 32 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 Article 54 of the Energy (Northern Ireland) Order 2003, in an order under Article 52 of that Order (renewables obligations for Northern Ireland suppliers).

C22

3

In Article 56(1) of the Energy (Northern Ireland) Order 2003 (S.I. 2003/419 (N.I. 6)) (power to amend Part 7 of that Order to take account of amendments of corresponding Great Britain provisions), the reference to amendments made to sections 32 to 32C of the 1989 Act includes a reference to subsection (1) of this section.

4

Subsection (3) extends to Northern Ireland only.

I16118Distributions to Northern Ireland suppliers

1

In section 32C of the 1989 Act (payment of money to discharge renewables obligation and distribution of fund to electricity suppliers), after subsection (4) insert—

5
The references in subsections (3) and (4) to electricity suppliers include references to persons who are Northern Ireland suppliers.

C32

I17119Supplementary provision relating to renewables obligation in Great Britain

1

In subsection (3) of section 32 of the 1989 Act (definition of renewables obligation), for “and 32C” substitute “ to 32C ”.

2

In subsection (7) of that section, for paragraph (d) substitute—

d
such generators of electricity from renewable sources as he considers appropriate; and

3

After subsection (8) of that section insert—

8A
In this section and in sections 32A to 32C—
“generated” means generated at any place whether situated in the United Kingdom or elsewhere, and cognate expressions shall be construed accordingly;
“Northern Ireland authority” means the Northern Ireland Authority for Energy Regulation;
“Northern Ireland supplier” means an electricity supplier within the meaning of Part 7 of the Energy (Northern Ireland) Order 2003.

4

In section 32A of that Act (supplementary provision relating to orders under section 32), in subsection (3) for the words from “the differences” onwards substitute “ no supplier would by virtue of the differences be unduly disadvantaged in competing with other suppliers ”.

5

After that subsection insert—

3A
In subsection (3) “supplier” means an electricity supplier or a Northern Ireland supplier.

6

In subsection (7) of that section, for “obligation imposed” substitute “ matters dealt with ”.

C47

The requirements of section 32(7) of that Act (consultation before making an order) may be satisfied in the case of an order containing provision made by virtue of this section by consultation that took place wholly or partly before the commencement of this section.

I18120Issue of green certificates in Northern Ireland

1

Article 54 of the Energy (Northern Ireland) Order 2003 (S.I. 2003/419 (N.I. 6)) (which contains provision corresponding to provision contained in section 32B of the 1989 Act) is amended as follows.

2

After paragraph (2) insert—

2A
In paragraphs (1) and (2) “Northern Ireland” does not include any part of the territorial sea of the United Kingdom.
2B
The provision that may be contained by virtue of this Article in an order under Article 52 includes—
a
provision for the person to whom a certificate is to be issued to be determined either before or after the supply of the electricity to which it relates; and
b
provision for a determination as to the person to whom a certificate is to be issued to be made in accordance with such arrangements as may be specified in or determined under the order.
2C
In the case only of a certificate relating to electricity that has been acquired, or is required to be acquired, under a qualifying arrangement, the arrangements within paragraph (2B)(b) that may be specified in or determined under the order include arrangements—
a
requiring the determination of the person to whom the certificate is to be issued to be made by reference to financial bids made in respect of the certificate or in respect of both the certificate and the electricity to which it relates; and
b
requiring that person to make a payment, in accordance with his bid, to such person as may be specified in or determined under the order.
2D
In the case only of a certificate relating to electricity that has been acquired, or is required to be acquired, under a qualifying arrangement, provision falling within paragraph (2B)(b) may require the relevant person—
a
to make and implement the arrangements that are specified in or determined under the order; and
b
to comply with directions given to him by the Authority for that purpose.
2E
A person who receives a payment in accordance with provision made by virtue of paragraph (2C)(b) shall apply the money received in such manner as the Department may direct.
2F
A direction under paragraph (2E) may require that the money received or part of that money be paid to the Department.
2G
Part VI shall apply in relation to a requirement imposed by virtue of paragraph (2D) or (2E) on a person who is not an electricity licence holder as if he were an electricity licence holder.

3

After paragraph (3) insert—

4
An order under Article 52 may confer on the Authority functions in Northern Ireland in relation to the issue of Great Britain certificates.
5
In this Article—
“Great Britain certificates” means certificates that are or may be issued by the Gas and Electricity Markets Authority in accordance with provision included, by virtue of section 32B of the Electricity Act 1989, in an order under section 32 of that Act;
“qualifying arrangement” means an arrangement made pursuant to an order under Article 35 of the Electricity Order (or such an arrangement as modified or replaced by virtue of an order under Article 57 of this Order);
“relevant person” means, in relation to electricity that is acquired, or is required to be acquired, under a qualifying arrangement, the person who acquired it, or who is required to acquire it.

4

The requirements of Article 52(6) of that Order (consultation before making an order) may be satisfied in the case of an order containing provision made by virtue of this section by consultation that took place wholly or partly before the commencement of this section.

5

This section extends to Northern Ireland only.

I19121GEMA’s power to act on behalf of Northern Ireland regulator

1

GEMA and the Northern Ireland Authority for F5Utility Regulation (“the Northern Ireland Authority”) shall be entitled—

a

to enter into arrangements for GEMA to act on behalf of the Northern Ireland Authority for, or in connection with, the carrying out of the 2003 renewables obligations functions; and

b

to give effect to those arrangements.

2

In this section “the 2003 renewables obligations functions” means the functions conferred on the Northern Ireland Authority under or for the purposes of F6the Northern Ireland provisions.

F43

For this purpose “the Northern Ireland provisions” means—

a

Articles 52 to 55 of the Energy (Northern Ireland) Order 2003 (renewables obligations for Northern Ireland suppliers), and

b

any provision made (whether before or after the passing of the Energy Act 2008) by an order under Article 56 of the Energy (Northern Ireland) Order 2003 which amends Part 7 of that Order.

121AF1GEMA’s power to act on behalf of Northern Ireland regulator in issuing guarantees of origin of renewables electricity

1

GEMA and the Northern Ireland Authority for Utility Regulation (“the Northern Ireland Authority”) shall be entitled—

a

to enter into arrangements for GEMA to act on behalf of the Northern Ireland Authority for, or in connection with, the carrying out of the 2003 guarantees of origin functions; and

b

to give effect to those arrangements.

2

In this section “the 2003 guarantees of origin functions” means the functions conferred on the Northern Ireland Authority under or for the purposes of the Electricity (Guarantees of Origin of Electricity Produced from Renewable Energy Sources) Regulations (Northern Ireland) 2003.

I20122Consultation in relation to Northern Ireland renewables orders

1

This section applies where the Department of Enterprise, Trade and Investment in Northern Ireland amends the provisions of Part 7 of the 2003 Order (renewables obligations for Northern Ireland suppliers) by way of an amending order to take account of amendments of the 1989 Act made by this Chapter.

2

In the case of a renewables order containing provision made by virtue of the amending order, the requirements of Article 52(6) of the 2003 Order (consultation before making a renewables order) may be satisfied by consultation that took place wholly or partly before the amending order came into force (including consultation taking place before the commencement of this section).

3

In this section—

“amending order” means an order under Article 56 of the 2003 Order;
“the 2003 Order” means the Energy (Northern Ireland) Order 2003;
“renewables order” means an order under Article 52 of the 2003 Order.

4

This section extends to Northern Ireland only.

I21123Modification of conditions of Northern Ireland electricity licences

1

In Part 7 of the Energy (Northern Ireland) Order 2003 (renewable energy sources), after Article 58 insert—

Modifications of licences in connection with Energy Act 200458A
1
Where the Department or the Authority considers it necessary or expedient to do so in connection with—
a
amendments of this Order made by section 120 of the Energy Act 2004, or
b
provision made by an order under Article 56 to take account of amendments of the Electricity Act 1989 made by Chapter 4 of Part 2 of that Act of 2004,
it may modify the conditions of an electricity licence.
2
The power to make modifications under this Article includes power to make incidental, consequential or transitional modifications.
3
Before making a modification of a licence condition under this Article the Department shall consult the Authority and the licence holder.
4
Before making a modification of a licence condition under this Article the Authority shall—
a
consult the licence holder; and
b
obtain the consent of the Department to the modification.
5
Paragraphs (3) and (4)(a) may be satisfied by consultation—
a
that, in the case of a modification within paragraph (1)(b), took place wholly or partly before the order in question comes into force; and
b
that, in any case, took place wholly or partly before the commencement of this Article.
6
Where the Department or the Authority makes any modifications under this Article it shall publish those modifications in such manner as it considers appropriate.
7
The power conferred by virtue of paragraph (1)(a) may not be exercised after the end of the period of two years beginning with the commencement of this Article.
8
The power conferred by virtue of paragraph (1)(b) may not be exercised in relation to an order under Article 56 after the end of the period of two years beginning with the day on which the order comes into force.

2

This section extends to Northern Ireland only.

Chapter 5Renewable transport fuel obligations

I22124Imposition of renewable transport fuel obligations

1

The Secretary of State may by order impose on each transport fuel supplier of a specified description the obligation mentioned in subsection (2) (a “renewable transport fuel obligation”).

2

That obligation is an obligation, for each specified period, for the supplier to produce to the Administrator, by the specified date, evidence which—

a

is of the specified kind and in the specified form; and

b

shows that during the specified period the specified amount of renewable transport fuel was supplied at or for delivery to places in the United Kingdom.

3

An order under subsection (1) is referred to in this Chapter as an “RTF order”.

4

Before making an RTF order the Secretary of State must consult such persons appearing to him to represent persons whose interests will be affected by the order, and such other persons, as he considers appropriate.

5

The power to make an RTF order is subject to the affirmative resolution procedure.

the body itself; or

c

members or staff of the body.

125AGeneral functions of the Administrator

1

An RTF order may—

a

confer or impose powers and duties on the Administrator for purposes connected with the implementation of provision made by or under this Chapter;

b

confer discretions on the Administrator in relation to the making of determinations under such an order and otherwise in relation to the Administrator's powers and duties; and

c

impose duties on transport fuel suppliers for purposes connected with the Administrator's powers and duties (including, in particular, duties framed by reference to determinations made by the Administrator).

2

It is the duty of the Administrator to promote the supply of renewable transport fuel whose production, supply or use—

a

causes or contributes to the reduction of carbon emissions, and

b

contributes to sustainable development or the protection or enhancement of the environment generally.

125BFunctions of the Administrator: supplementary

1

The powers that may be conferred on the Administrator by virtue of section 125A(1) include, in particular—

a

power to require a transport fuel supplier to provide the Administrator with such information as the Administrator may require for purposes connected with the carrying out of the Administrator's functions;

b

power to impose requirements as to the form in which such information must be provided and as to the period within which it must be provided;

c

power to imposes charges of specified amounts on transport fuel suppliers.

2

The Secretary of State may give written directions to the Administrator about the exercise of any power conferred on the Administrator by virtue of subsection (1)(a) or (b).

3

The power to give directions under subsection (2) includes power to vary or revoke the directions.

4

The Administrator must comply with any directions given under that subsection.

5

Sums received by the Administrator by virtue of provision within subsection (1)(c)—

a

where the Administrator is the Secretary of State, must be paid into the Consolidated Fund, and

b

otherwise, must be used for the purpose of meeting costs incurred in carrying out the Administrator's functions.

6

The Secretary of State may make grants to the Administrator on such terms as the Secretary of State may determine.

an Act of the Scottish Parliament,

iii

a Measure or Act of the National Assembly for Wales, or

iv

Northern Ireland legislation.

I23126Determinations of amounts of transport fuel

1

An RTF order may make provision about how amounts of transport fuel are to be counted or determined for the purposes of provision made by or under this Chapter.

2

The provision that may be made by virtue of this section includes, in particular—

a

provision for amounts of renewable transport fuel to count towards discharging a renewable transport fuel obligation for a period only if the fuel is of a specified description;

b

provision for amounts of renewable transport fuel of a specified description to count towards discharging such an obligation only up to a specified amount;

c

provision for such an obligation not to be treated as discharged unless a specified minimum amount of renewable transport fuel of a specified description has been counted towards its discharge;

d

provision for only such proportion of any renewable transport fuel of a specified description as is attributable to a specified substance, source of energy, method, process or other matter to count towards discharging such an obligation;

e

provision as to how that proportion is to be determined;

f

provision for an amount of renewable transport fuel of a specified description to count towards discharging such an obligation only if, or to the extent that, specified conditions are satisfied in relation to its supply, the person by or to whom it was supplied or the place at or for delivery to which it was supplied;

g

provision for evidence produced by a supplier in relation to any fuel not to count for the purposes of his renewable transport fuel obligation for a period if evidence in relation to the same fuel has previously been produced (whether by him or by another supplier);

h

provision for evidence produced by a supplier in relation to any fuel not to count for those purposes if, after the supply to which the evidence relates, the fuel is supplied by any person at or for delivery to a place outside the United Kingdom or a specified part of the United Kingdom;

i

provision about the measurement of amounts of different descriptions of transport fuel;

j

provision for units of transport fuel of a specified description to count for more or less than the same units of transport fuel of other descriptions;

k

provision about how measurements in different units of different descriptions of transport fuel are to be aggregated;

l

provision for the application of presumptions where specified matters are shown.

3

The provision that may be made by virtue of this section also includes, in particular, provision which—

a

is made having regard to one or more of the effects mentioned in subsection (4) (whether in the United Kingdom or elsewhere); or

b

requires regard to be had to one or more such effects.

4

Those effects are the effects of the production, supply or use of fuel of a particular description on—

a

carbon emissions;

b

agriculture;

c

other economic activities;

d

sustainable development; or

e

the environment generally.

F75

If an RTF order makes provision for the counting or determination of amounts of transport fuel for the purposes of provision made by or under this Chapter by reference to any document, it may provide for references to the document to have effect as references to it as revised or re-issued from time to time.

6

The Secretary of State may give written directions to the Administrator about the exercise of any of the Administrator's functions in connection with the counting or determination of amounts of transport fuel for the purposes of provision made by or under this Chapter.

7

The power to give directions under subsection (6) includes power to vary or revoke the directions.

8

The Administrator must comply with any directions given under that subsection.

If a supplier produces an RTF certificate to the Administrator, it is to count for the purposes of section 124(2) as sufficient evidence of the facts certified.

7

An RTF order may provide that, in specified circumstances, evidence produced by virtue of subsection (6) may count to the specified extent towards the discharge of a renewable transport fuel obligation for a period even if it is produced after the time by which evidence had to be produced for the purposes of that obligation.

8

Such an order may also provide that, in specified circumstances, evidence produced by virtue of subsection (6) may count to the specified extent towards the discharge of a renewable transport fuel obligation for a period that is later than the period stated in the certificate in question in accordance with subsection (2)(b).

I25128Discharge of obligation by payment

1

An RTF order may provide that a person who does not wholly discharge his renewable transport fuel obligation for a period by the production of evidence must pay the Administrator the specified sum within the specified period.

2

The provision that may be made by virtue of subsection (1) includes, in particular, provision—

a

for the specified sum to increase, in cases where that sum is not paid within a specified period, at the specified rate until it is paid or until the occurrence of a specified event;

b

for specified amounts to be adjusted from time to time for inflation in the specified manner;

c

for the repayment of sums in cases where provision made by virtue of section 127(7) applies in relation to a person;

d

prohibiting the Administrator from taking steps to recover the specified sum or a part of that sum if specified conditions are satisfied.

3

Provision within subsection (2)(b) may refer, in particular, to a specified index or to other data, including any index or data as modified from time to time after the coming into force of the order.

4

An RTF order may provide that, in a case in which the amount of payments by virtue of subsection (1) which the Administrator has received by the specified time in respect of renewable transport fuel obligations for any period falls short of the amount due in respect of that period, the persons who—

a

were subject to renewable transport fuel obligations for that period, and

b

are of a specified description,

must, within the specified period and in the specified circumstances, each make a payment (or further payment) to the Administrator of an amount calculated in the specified manner.

5

The provision that may be made by virtue of subsection (4) includes, in particular, provision for the making of adjustments and repayments after a requirement to make payments has already arisen.

F86

Where the Administrator is the Secretary of State—

a

sums received by the Administrator by virtue of this section must be paid into the Consolidated Fund, and

b

an RTF order may make provision for sums to be paid by the Administrator to transport fuel suppliers, or to transport fuel suppliers of a specified description, in accordance with the specified system of allocation.

7

Such an order must contain provision ensuring that the total of the sums so paid by the Administrator does not at any time exceed the total of the sums so received by the Administrator up to that time.

8

Where the Administrator is a person other than the Secretary of State, an RTF order may—

a

require the Administrator to use, to the specified extent, sums received by the Administrator by virtue of this section for the purpose of meeting costs incurred in carrying out the Administrator's functions, or

b

require the Administrator to pay, to the specified extent, sums so received to the Secretary of State.

9

Sums so received which are not dealt with in accordance with provision made under subsection (8) must be paid by the Administrator to transport fuel suppliers, or to transport fuel suppliers of a specified description, in accordance with the specified system of allocation.

10

The Secretary of State must pay sums received by the Secretary of State by virtue of provision made under subsection (8)(b) into the Consolidated Fund.

6

Where, on consideration of an objection, the Administrator increases the penalty, he must give the objector a new civil penalty notice; and, where he reduces it, the notification mentioned in subsection (5) must set out the reduced amount.

made for the purposes of a criminal investigation or criminal proceedings (whether or not within the United Kingdom) relating to a matter in respect of which the Administrator has functions,

d

made for the purposes of civil proceedings (whether or not within the United Kingdom) relating to a matter in respect of which the Administrator has functions,

e

made with the consent of the Commissioners for Her Majesty's Revenue and Customs, or

f

made with the consent of each person to whom the information relates.

in England and Wales, in relation to an offence committed before the commencement of section 154(1) of the Criminal Justice Act 2003, or

b

in Northern Ireland,

the reference in subsection (4)(b) to twelve months is to be read as a reference to six months.

I29132Interpretation of Chapter 5 of Part 2

1

In this Chapter—

F10“Administrator” means the person for the time being appointed as the Administrator by order under this Chapter;
F11“authorised person” has the meaning given by section 131A(3);
“biofuel” means liquid or gaseous fuel that is produced wholly from biomass;
“blended biofuel” means liquid or gaseous fuel consisting of a blend of biofuel and fossil fuel;
“civil penalty notice” has the meaning given by section 129(2);
F11“enactment” includes—
1. a
  an enactment contained in subordinate legislation,
2. b
  an enactment contained in, or in an instrument made under, an Act of the Scottish Parliament,
3. c
  an enactment contained in, or in an instrument made under, Northern Ireland legislation, and
4. d
  an enactment contained in, or in an instrument made under, a Measure or Act of the National Assembly for Wales;
“renewable transport fuel” means—
1. a
  biofuel;
2. b
  blended biofuel;
3. c
  any solid, liquid or gaseous fuel (other than fossil fuel or nuclear fuel) which is produced—
  1. i
    wholly by energy from a renewable source; or
  2. ii
    wholly by a process powered wholly by such energy; or
4. d
  any solid, liquid or gaseous fuel which is of a description of fuel designated by an RTF order as renewable transport fuel;
“renewable transport fuel obligation” has the meaning given by section 124(1);
“RTF order” has the meaning given by section 124(3);
“specified” means specified in, or determined in accordance with, an RTF order;
“supply” means, in relation to fuel, the supply of that fuel to any person with a view to its being used (whether by that person or persons to whom it is subsequently supplied) wholly or primarily for transport purposes;
“transport fuel” means—
1. a
  renewable transport fuel;
2. b
  fossil fuel; or
3. c
  any solid, liquid or gaseous fuel that is neither renewable transport fuel nor fossil fuel;
“transport fuel supplier” means a person who, in the course of any business of his, supplies transport fuel at or for delivery to places in the United Kingdom.

2

For the purposes of this section a process powered by electricity that was generated by energy from a particular source is to be treated as being powered by energy from that source.

F303

For the purposes of this section fuel is used for transport purposes if—

a

it is used as fuel for one or more of the following—

i

any mode of transport, including vehicles, vessels, aircraft and trains;

ii

recreational craft which do not normally operate at sea;

iii

F51... tractors;

iv

non-road mobile machinery, including inland waterway vessels which do not normally operate at sea; or

b

it is used for producing fuel that is intended to be so used.

F293A

For the purposes of subsection (3) “sea”—

a

includes tidal rivers and estuaries;

b

does not include—

i

non-tidal rivers and canals where the significant wave height could not be expected to exceed 0.6 metres at any time; and

ii

lakes and lochs where the significant wave height could not be expected to exceed 1.2 metres at any time.

4

In this section—

F52...
“biomass” means the biodegradeable portion of a specified product, waste or residue;
“fossil fuel” has the same meaning as in F14section 32M of the 1989 Act;
F53“inland waterway vessel” means an inland waterway vessel, within the meaning given by Article 3(c) of the 2016 Directive, to which that Directive applies (see Article 2 of the 2016 Directive); and in this definition “the 2016 Directive” means Directive EU 2016/1629 of the European Parliament and of the Council of 14 September 2016 laying down technical requirements for inland waterway vessels;
F54“non-road mobile machinery” means non-road mobile machinery, within the meaning given by Article 3(1) of the 2016 Regulation, which has installed in it an engine within a category set out in paragraph 1 of Article 4 of that Regulation; and in this definition “the 2016 Regulation” means Regulation (EU) 2016/1628 of the European Parliament and of the Council of 14 September 2016 on requirements relating to gaseous and particulate pollutant emission limits and type-approval for internal combustion engines for non-road mobile machinery;
F55“recreational craft” has the meaning given by Article 3(2) of Directive 2013/53/EU of the European Parliament and of the Council of 20 November 2013 on recreational craft and personal watercraft;
F56“renewable source”, in relation to energy, means any of the following non-fossil sources of energy, namely wind, the sun, aerothermal sources, geothermal sources, water (including hydrothermal sources, waves and tides) and biomass (including landfill gas, sewage treatment plant gas and biogases), where—
1. a
  “aerothermal” means energy stored in the form of heat in the ambient air;
2. b
  “geothermal” means energy stored in the form of heat beneath the surface of solid earth; and
3. c
  “hydrothermal” means energy stored in the form of heat in surface water;
F57“tractor” has the meaning given by Article 3(8) of Regulation (EU) No 167/2013 of the European Parliament and of the Council of 5 February 2013 on the approval and market surveillance of agricultural and forestry vehicles.