Energy Act 2004

175 Determination of appeals E+W+S

(1) This section applies to every appeal brought under section 173 of this Act.

(2) In determining the appeal the [F1 CMA] must have regard, to the same extent as is required of GEMA, to the matters to which GEMA must have regard—

(a) in the carrying out of its principal objectives under section 4AA of the Gas Act 1986 (c. 44) and section 3A of the 1989 Act (principal objectives and general duties);

(b) in the performance of its duties under those sections; and

(c) in the performance of its duties under sections 4AB and 4A of that Act of 1986 and sections 3B and 3C of the 1989 Act (environmental and health and safety considerations).

(3) In determining the appeal the [F1 CMA]—

(a) may have regard to any matter to which GEMA was not able to have regard in the case of the decision appealed against; but

(b) must not, in the exercise of that power, have regard to any matter to which GEMA would not have been entitled to have regard in that case had it had the opportunity of doing so.

(4) The [F1 CMA] may allow the appeal only if it is satisfied that the decision appealed against was wrong on one or more of the following grounds—

(a) that GEMA failed properly to have regard to the matters mentioned in subsection (2);

(b) that GEMA failed properly to have regard to [F2 —

(i) the purposes for which the relevant condition has effect (in the case of an appeal by virtue of section 173(2)), or

(ii) the purposes of the power to give a direction under section 36C of the Gas Act 1986 or the purposes of Standard Special Condition A11 of licences granted under section 7 of that Act (in the case of an appeal by virtue of section 173(2A))];

(c) that GEMA failed to give the appropriate weight to one or more of those matters or purposes;

(d) that the decision was based, wholly or partly, on an error of fact;

(e) that the decision was wrong in law.

(5) Where the [F1 CMA] does not allow the appeal, it must confirm the decision appealed against.

(6) Where it allows the appeal, it must do one or more of the following—

(a) quash the decision appealed against;

(b) remit the matter to GEMA for reconsideration and determination in accordance with the directions given by the [F1 CMA];

(c) where it quashes the refusal of a consent, give directions to GEMA, and to such other persons as it considers appropriate, for securing that the relevant condition has effect as if the consent had been given.

(7) A person shall not be directed under subsection (6) to do anything that he would not have power to do apart from the direction.

(8) A person to whom a direction is given under subsection (6) must comply with it; and such a direction given to a person other than GEMA shall be enforceable as if it were an order of the High Court or (in Scotland) of the Court of Session.

(9) The decision of the [F3 CMA] on the appeal—

(a) must be contained in an order made by [F4 the CMA];

(b) must set out the reasons for the decision;

(c) takes effect at the time specified in the order or determined in accordance with provision set out in that order;

(d) must be notified by [F4 the CMA] to the persons who (within the meaning of Schedule 22) were parties to the appeal; and

(e) must be published by [F4 the CMA] in such manner as it considers appropriate for bringing it to the attention of other persons likely to be affected by it.

(10) The [F5 CMA] may exclude from what it publishes under subsection (9)(e) any information which it is satisfied is—

(a) commercial information the disclosure of which would, or might, significantly harm the legitimate business interests of an undertaking to which it relates;

(b) information relating to the private affairs of an individual the disclosure of which would, or might, in its opinion, significantly harm his interests.

(11) In this section—

• “consent” includes an approval or direction; and

• “the relevant condition”, in relation to a decision, means the licence condition the provisions of which have effect by reference to the document to which the decision relates.

Textual Amendments

F1 Words in s. 175(2)-(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 104(2); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F2 S. 175(4)(b)(i)(ii) substituted for words (18.10.2011) by Energy Act 2011 (c. 16), ss. 81(5), 121(4)

F3 Word in s. 175(9) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 104(3)(a); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F4 Words in s. 175(9) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 104(3)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F5 Word in s. 175(10) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 104(4); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Modifications etc. (not altering text)

C1 Ss. 171-196: power to apply (with modifications) conferred (26.10.2023) by Energy Act 2023 (c. 52), s. 334(2)(l), Sch. 18 para. 50

Commencement Information

I1 S. 175 in force at 5.10.2004 by S.I. 2004/2575, art. 2(1), Sch. 1