Energy Act 2016

“(5A)

A notice under subsection (1), (2) or (3) that imposes a requirement on a person must specify when the requirement is to be complied with.”

“87AAppeals against requirements to provide information

(1)

Any person on whom a requirement is imposed by a notice under section 87(1), (2) or (3) may appeal against the notice to the Tribunal on the grounds that—

(a)

the information required by the notice is not relevant to the exercise by the OGA of its functions under this Chapter, or

(b)

the length of time given to comply with the notice is unreasonable.

(2)

On an appeal under this section the Tribunal may—

(a)

confirm, vary or cancel the notice, or

(b)

remit the matter under appeal to the OGA for reconsideration with such directions (if any) as the Tribunal considers appropriate.

(3)

In this section “the Tribunal” means the First-tier Tribunal.

87BSanctions for failure to provide information

(1)

A requirement imposed by a notice under section 87(1), (2) or (3) is to be treated for the purposes of Chapter 5 of Part 2 of the Energy Act 2016 (power of the OGA to impose sanctions) as a petroleum-related requirement.

(2)

But the OGA may not give a revocation notice or an operator removal notice under that Chapter by virtue of this section.”

“89AAssignments and assignations of applications

(1)

This section applies where—

(a)

there is an assignment or assignation of an application made under section 82 from one person (“A”) to another (“B”), and

(b)

the following are notified of the assignment or assignation—

(i)

the owner of the pipeline or facility that is the subject of the application, and

(ii)

the OGA.

(2)

A notice under subsection (1)(b) must—

(a)

be in writing, and

(b)

specify the date of the assignment or assignation.

(3)

For the purposes of this Chapter, anything done (or treated as done) by or in relation to A in connection with the application is treated after the assignment or assignation as having been done by or in relation to B. This subsection is subject to subsections (4) and (5) and does not apply for the purposes of subsections (6) and (7).

(4)

Any provision of this Chapter that requires the OGA to give the applicant an opportunity to be heard has effect after the assignment or assignation as requiring the OGA to give B an opportunity to be heard (whether or not the applicant was heard under that provision before the assignment or assignation).

(5)

Subsection (3) does not apply in relation to any notice given under section 87 before the assignment or assignation (and, accordingly, the person to whom the notice was given remains under an obligation to comply with it).

(6)

Any information relating to the application obtained by the OGA before the assignment or assignation from any person who at the time was the applicant may be disclosed to B.

(7)

Before disclosing any such information to B, the OGA must remove any information which the OGA considers may prejudice the commercial interests of the person from whom the information was obtained.

89BTransfers of ownership

(1)

This section applies where the ownership of a pipeline or facility that is the subject of an application under section 82, or to which a notice under subsection (11) of that section relates, is transferred from one person (“C”) to another (“D”).

(2)

For the purposes of this Chapter—

(a)

anything done (or treated as done) by or in relation to C in connection with C's ownership of the pipeline or facility is treated after the transfer as having been done by or in relation to D, and

(b)

any obligations imposed or rights conferred (or treated as imposed or conferred) by or under this Chapter on C in connection with C's ownership of the pipeline or facility are treated after the transfer as imposed or conferred on D.

This subsection is subject to subsections (3) and (4) and does not apply for the purposes of subsections (5) and (6).

(3)

Any provision of this Chapter that requires the OGA to give the owner of the pipeline or facility an opportunity to be heard has effect after the transfer as requiring the OGA to give D an opportunity to be heard (whether or not the owner was heard under that provision before the transfer).

(4)

Subsection (2) does not affect the obligation to comply with any notice given under section 87 before the transfer (and, accordingly, the person to whom the notice was given remains under an obligation to comply with it).

(5)

Any information relating to the application obtained by the OGA before the transfer from any person who at the time was the owner may be disclosed to D.

(6)

Before disclosing any such information to D, the OGA must remove any information which the OGA considers may prejudice the commercial interests of the person from whom the information was obtained.”

“(v)

owners of relevant offshore installations.”

“9HARelevant offshore installations” and their owners

(1)

For the purposes of this Part an offshore installation is a relevant offshore installation if and in so far as it is used in relation to petroleum within subsection (2) (including such petroleum after it has been got).

(2)

Petroleum is within this subsection if it is petroleum which for the time being exists in its natural condition in strata beneath—

(a)

the territorial sea adjacent to Great Britain, or

(b)

the sea in any area designated under section 1(7) of the Continental Shelf Act 1964.

(3)

In this Part “owner”, in relation to a relevant offshore installation, means—

(a)

a person in whom the installation is vested, and

(b)

a lessee and any person occupying or controlling the installation.”

““offshore installation” has the same meaning as in Part 4 (see section 44);”;

““owner”, in relation to a relevant offshore installation, has the meaning given in section 9HA;”;

““relevant offshore installation” has the meaning given in section 9HA;”;

““submarine pipeline” has the meaning given in section 45;”.

“9HUpstream petroleum infrastructure” and its owners

(1)

In this Part “upstream petroleum infrastructure” means anything that for the purposes of section 82(1) of the Energy Act 2011 is—

(a)

a relevant upstream petroleum pipeline,

(b)

a relevant oil processing facility, or

(c)

a relevant gas processing facility,

if and in so far as it is used in relation to petroleum within subsection (2) (including such petroleum after it has been got).

(2)

Petroleum is within this subsection if it is petroleum which for the time being exists in its natural condition in strata beneath—

(a)

the territorial sea adjacent to Great Britain, or

(b)

the sea in any area designated under section 1(7) of the Continental Shelf Act 1964.

(3)

In this Part “owner”, in relation to upstream petroleum infrastructure, means—

(a)

a person in whom the pipeline or facility is vested;

(b)

a lessee and any person occupying or controlling the pipeline or facility; and

(c)

any person who has the right to have things conveyed by the pipeline or processed by the facility.”

“32LCOnshore wind generating stations: closure of renewables obligation

(1)

No renewables obligation certificates are to be issued under a renewables obligation order in respect of electricity generated after the onshore wind closure date by an onshore wind generating station.

(2)

Subsection (1) does not apply to electricity generated in the circumstances set out in any one or more of sections 32LD to 32LL.

(3)

In this section and sections 32LD to 32LL—

“the onshore wind closure date” means the date on which the Energy Act 2016 is passed;

“onshore wind generating station” means a generating station that—

(a)

generates electricity from wind, and

(b)

is situated in England, Wales or Scotland, but not in waters in or adjacent to England, Wales or Scotland up to the seaward limits of the territorial sea.

(4)

The reference in subsection (1) to a renewables obligation order is to any renewables obligation order made under section 32 (whenever made, and whether or not made by the Secretary of State).

(5)

Power to make provision in a renewables obligation order or a renewables obligation closure order (and any provision contained in such an order) is subject to subsection (1) and sections 32LD to 32LL.

(6)

This section is not otherwise to be taken as affecting power to make provision in a renewables obligation order or renewables obligation closure order.”

““onshore wind generating station” means a generating station that—

(a)

generates electricity from wind, and

(b)

is situated in England, Wales or Scotland, but not in waters in or adjacent to England, Wales or Scotland up to the seaward limits of the territorial sea;”.

“32LDOnshore wind generating stations accredited, or additional capacity added, on or before the onshore wind closure date

The circumstances set out in this section are where the electricity is—

(a)

generated by an onshore wind generating station which was accredited on or before the onshore wind closure date, and

(b)

generated using—

(i)

the original capacity of the station, or

(ii)

additional capacity which in the Authority's view first formed part of the station on or before the onshore wind closure date.

32LEOnshore wind generating stations accredited, or additional capacity added, in the year after the onshore wind closure date: grid or radar delay condition met

The circumstances set out in this section are where the electricity is—

(a)

generated using the original capacity of an onshore wind generating station—

(i)

which was accredited during the period beginning immediately after the onshore wind closure date and ending with the first anniversary of the onshore wind closure date, and

(ii)

in respect of which the grid or radar delay condition is met, or

(b)

generated using additional capacity of an onshore wind generating station, where—

(i)

the station was accredited on or before the onshore wind closure date,

(ii)

in the Authority's view, the additional capacity first formed part of the station during the period beginning immediately after the onshore wind closure date and ending with the first anniversary of the onshore wind closure date, and

(iii)

the grid or radar delay condition is met in respect of the additional capacity.

32LFOnshore wind generating stations accredited, or additional capacity added, on or before 31 March 2017: approved development condition met

The circumstances set out in this section are where the electricity is—

(a)

generated using the original capacity of an onshore wind generating station—

(i)

which was accredited on or before 31 March 2017, and

(ii)

in respect of which the approved development condition is met, or

(b)

generated using additional capacity of an onshore wind generating station, where—

(i)

the station was accredited on or before the onshore wind closure date,

(ii)

in the Authority's view, the additional capacity first formed part of the station on or before 31 March 2017, and

(iii)

the approved development condition is met in respect of the additional capacity.

32LGOnshore wind generating stations accredited, or additional capacity added, between 1 April 2017 and 31 March 2018: grid or radar delay condition met

The circumstances set out in this section are where the electricity is—

(a)

generated using the original capacity of an onshore wind generating station—

(i)

which was accredited during the period beginning with 1 April 2017 and ending with 31 March 2018,

(ii)

in respect of which the approved development condition is met, and

(iii)

in respect of which the grid or radar delay condition is met, or

(b)

generated using additional capacity of an onshore wind generating station, where—

(i)

the station was accredited on or before the onshore wind closure date,

(ii)

in the Authority's view, the additional capacity first formed part of the station during the period beginning with 1 April 2017 and ending with 31 March 2018,

(iii)

the approved development condition is met in respect of the additional capacity, and

(iv)

the grid or radar delay condition is met in respect of the additional capacity.

32LHOnshore wind generating stations accredited, or additional capacity added, between 1 April 2017 and 31 January 2018: investment freezing condition met

The circumstances set out in this section are where the electricity is—

(a)

generated using the original capacity of an onshore wind generating station—

(i)

which was accredited during the period beginning with 1 April 2017 and ending with 31 January 2018, and

(ii)

in respect of which both the approved development condition and the investment freezing condition are met, or

(b)

generated using additional capacity of an onshore wind generating station, where—

(i)

the station was accredited on or before the onshore wind closure date,

(ii)

in the Authority's view, the additional capacity first formed part of the station during the period beginning with 1 April 2017 and ending with 31 January 2018, and

(iii)

both the approved development condition and the investment freezing condition are met in respect of the additional capacity.

32LIOnshore wind generating stations accredited, or additional capacity added, between 1 February 2018 and 31 January 2019: grid or radar delay condition met

The circumstances set out in this section are where the electricity is—

(a)

generated using the original capacity of an onshore wind generating station—

(i)

which was accredited during the period beginning with 1 February 2018 and ending with 31 January 2019,

(ii)

in respect of which both the approved development condition and the investment freezing condition are met, and

(iii)

in respect of which the grid or radar delay condition is met, or

(b)

generated using additional capacity of an onshore wind generating station, where—

(i)

the station was accredited on or before the onshore wind closure date,

(ii)

in the Authority's view, the additional capacity first formed part of the station during the period beginning with 1 February 2018 and ending with 31 January 2019,

(iii)

both the approved development condition and the investment freezing condition are met in respect of the additional capacity, and

(iv)

the grid or radar delay condition is met in respect of the additional capacity.

32LJThe approved development condition

(1)

This section applies for the purposes of sections 32LF to 32LI.

(2)

The approved development condition is met in respect of an onshore wind generating station if the documents specified in subsections (4), (5) and (6) were provided to the Authority with the application for accreditation of the station.

(3)

The approved development condition is met in respect of additional capacity if the documents specified in subsections (4), (5) and (6) were provided to the Authority on or before the date on which the Authority made its decision that the additional capacity could form part of an onshore wind generating station.

(4)

The documents specified in this subsection are—

(a)

evidence that—

(i)

planning permission for the station or additional capacity was granted on or before 18 June 2015, and

(ii)

any conditions as to the time period within which the development to which the permission relates must be begun have not been breached,

(b)

evidence that—

(i)

planning permission for the station or additional capacity was refused on or before 18 June 2015, but granted after that date following an appeal or judicial review, and

(ii)

any conditions as to the time period within which the development to which the permission relates must be begun have not been breached,

(c)

evidence that—

(i)

an application for 1990 Act permission or 1997 Act permission was made on or before 18 June 2015 for the station or additional capacity,

(ii)

the period allowed under section 78(2) of the 1990 Act or (as the case may be) section 47(2) of the 1997 Act ended on or before 18 June 2015 without any of the things mentioned in section 78(2)(a) to (b) of the 1990 Act or section 47(2)(a) to (c) of the 1997 Act being done in respect of the application,

(iii)

the application was not referred to the Secretary of State, Welsh Ministers or Scottish Ministers in accordance with directions given under section 77 of the 1990 Act or section 46 of the 1997 Act,

(iv)

1990 Act permission or 1997 Act permission was granted after 18 June 2015 following an appeal, and

(v)

any conditions as to the time period within which the development to which the permission relates must be begun have not been breached, or

(d)

a declaration by the operator of the station that, to the best of the operator's knowledge and belief, planning permission is not required for the station or additional capacity.

(5)

The documents specified in this subsection are—

(a)

a copy of an offer from a licensed network operator made on or before 18 June 2015 to carry out grid works in relation to the station or additional capacity, and evidence that the offer was accepted on or before that date (whether or not the acceptance was subject to any conditions or other terms), or

(b)

a declaration by the operator of the station that, to the best of the operator's knowledge and belief, no grid works were required to be carried out by a licensed network operator in order to enable the station to be commissioned or the additional capacity to form part of the station.

(6)

The documents specified in this subsection are a declaration by the operator of the station that, to the best of the operator's knowledge and belief, as at 18 June 2015 a relevant developer of the station or additional capacity (or a person connected, within the meaning of section 1122 of the Corporation Tax Act 2010, with a relevant developer of the station or additional capacity)—

(a)

was an owner or lessee of the land on which the station or additional capacity is situated,

(b)

had entered into an agreement to purchase or lease the land on which the station or additional capacity is situated,

(c)

had an option to purchase or to lease the land on which the station or additional capacity is situated, or

(d)

was a party to an exclusivity agreement in relation to the land on which the station or additional capacity is situated.

(7)

In this section—

“the 1990 Act” means the Town and Country Planning Act 1990;

“1990 Act permission” means planning permission under the 1990 Act (except outline planning permission, within the meaning of section 92 of that Act);

“the 1997 Act” means the Town and Country Planning (Scotland) Act 1997;

“1997 Act permission” means planning permission under the 1997 Act (except planning permission in principle, within the meaning of section 59 of that Act);

“exclusivity agreement”, in relation to land, means an agreement by the owner or a lessee of the land not to permit any person (other than the persons identified in the agreement) to construct an onshore wind generating station on the land;

“planning permission” means—

(a)

consent under section 36 of this Act,

(b)

1990 Act permission,

(c)

1997 Act permission, or

(d)

development consent under the Planning Act 2008.

32LKThe investment freezing condition

(1)

This section applies for the purposes of sections 32LH and 32LI.

(2)

The investment freezing condition is met in respect of an onshore wind generating station if the documents specified in subsection (4) were provided to the Authority with the application for accreditation of the station.

(3)

The investment freezing condition is met in respect of additional capacity if the documents specified in subsection (4) were provided to the Authority on or before the date on which the Authority made its decision that the additional capacity could form part of an onshore wind generating station.

(4)

The documents specified in this subsection are—

(a)

a declaration by the operator of the station that, to the best of the operator's knowledge and belief, as at the Royal Assent date—

(i)

the relevant developer required funding from a recognised lender before the station could be commissioned or additional capacity could form part of the station,

(ii)

a recognised lender was not prepared to provide that funding until enactment of the Energy Act 2016, because of uncertainty over whether the Act would be enacted or its wording if enacted, and

(iii)

the station would have been commissioned, or the additional capacity would have formed part of the station, on or before 31 March 2017 if the funding had been provided before the Royal Assent date, and

(b)

a letter or other document, dated on or before the date which is 28 days after the Royal Assent date, from a recognised lender confirming (whether or not the confirmation is subject to any conditions or other terms) that the lender was not prepared to provide funding in respect of the station or additional capacity until enactment of the Energy Act 2016, because of uncertainty over whether the Act would be enacted or its wording if enacted.

(5)

In this section—

“recognised lender” means a provider of debt finance which has been issued with an investment grade credit rating by a registered credit rating agency;

“the Royal Assent date” means the date on which the Energy Act 2016 is passed.

(6)

For the purposes of the definition of “recognised lender” in subsection (5)—

“investment grade credit rating” means a credit rating commonly understood by registered credit rating agencies to be investment grade;

“registered credit rating agency” means a credit rating agency registered in accordance with Regulation (EC) No 1060/2009 of the European Parliament and the Council of 16 September 2009 on credit rating agencies.

32LLThe grid or radar delay condition

(1)

This section applies for the purposes of sections 32LE, 32LG and 32LI.

(2)

The grid or radar delay condition is met in respect of an onshore wind generating station if, on or before the date on which the Authority made its decision to accredit the station, the documents specified in subsection (4), (5) or (6) were—

(a)

submitted by the operator of the station, and

(b)

received by the Authority.

(3)

The grid or radar delay condition is met in respect of additional capacity if, on or before the date on which the Authority made its decision that the additional capacity could form part of an onshore wind generating station, the documents specified in subsection (4), (5) or (6) were—

(a)

submitted by the operator of the station, and

(b)

received by the Authority.

(4)

The documents specified in this subsection are—

(a)

evidence of an agreement with a network operator (“the relevant network operator”) to carry out grid works in relation to the station or additional capacity (“the relevant grid works”);

(b)

a copy of a document written by, or on behalf of, the relevant network operator which estimated or set a date for completion of the relevant grid works (“the planned grid works completion date”) which was no later than the primary date;

(c)

a letter from the relevant network operator confirming (whether or not such confirmation is subject to any conditions or other terms) that—

(i)

the relevant grid works were completed after the planned grid works completion date, and

(ii)

in the relevant network operator's opinion, the failure to complete the relevant grid works on or before the planned grid works completion date was not due to any breach by a generating station developer of any agreement with the relevant network operator; and

(d)

a declaration by the operator of the station that, to the best of the operator's knowledge and belief, the station would have been commissioned, or the additional capacity would have formed part of the station, on or before the primary date if the relevant grid works had been completed on or before the planned grid works completion date.

(5)

The documents specified in this subsection are—

(a)

evidence of an agreement between a generating station developer and a person who is not a generating station developer (“the radar works agreement”) for the carrying out of radar works (“the relevant radar works”);

(b)

a copy of a document written by, or on behalf of, a party to the radar works agreement (other than a generating station developer) which estimated or set a date for completion of the relevant radar works (“the planned radar works completion date”) which was no later than the primary date;

(c)

a letter from a party to the radar works agreement (other than a generating station developer) confirming, whether or not such confirmation is subject to any conditions or other terms, that—

(i)

the relevant radar works were completed after the planned radar works completion date, and

(ii)

in that party's opinion, the failure to complete the relevant radar works on or before the planned radar works completion date was not due to any breach of the radar works agreement by a generating station developer; and

(d)

a declaration by the operator of the station that, to the best of the operator's knowledge and belief, the station would have been commissioned, or the additional capacity would have formed part of the station, on or before the primary date if the relevant radar works had been completed on or before the planned radar works completion date.

(6)

The documents specified in this subsection are—

(a)

the documents specified in subsection (4)(a), (b) and (c);

(b)

the documents specified in subsection (5)(a), (b) and (c); and

(c)

a declaration by the operator of the station that, to the best of the operator's knowledge and belief, the station would have been commissioned, or the additional capacity would have formed part of the station, on or before the primary date if—

(i)

the relevant grid works had been completed on or before the planned grid works completion date, and

(ii)

the relevant radar works had been completed on or before the planned radar works completion date.

(7)

In this section “the primary date” means—

(a)

in a case within section 32LE(a)(i) or (b)(i) and (ii), the onshore wind closure date;

(b)

in a case within section 32LG(a)(i) and (ii) or (b)(i) to (iii), 31 March 2017;

(c)

in a case within section 32LI(a)(i) and (ii) or (b)(i) to (iii), 31 January 2018.”

“32LMUse of Northern Ireland certificates: onshore wind power

(1)

The Secretary of State may make regulations providing that an electricity supplier may not discharge its renewables obligation (or its obligation in relation to a particular period) by the production to the Authority of a relevant Northern Ireland certificate, except in the circumstances, and to the extent, specified in the regulations.

(2)

A “relevant Northern Ireland certificate” is a Northern Ireland certificate issued in respect of electricity generated after the onshore wind closure date (or any later date specified in the regulations)—

(a)

using the original capacity of a Northern Ireland onshore wind generating station accredited after the onshore wind closure date (or any later date so specified), or

(b)

using additional capacity of a Northern Ireland onshore wind generating station, where in the Authority's view the additional capacity first formed part of the station after the onshore wind closure date (or any later date so specified).

(3)

In this section—

“NIRO Order” means any order made under Articles 52 to 55F of the Energy (Northern Ireland) Order 2003;

“Northern Ireland certificate” means a renewables obligation certificate issued by the Northern Ireland authority under the Energy (Northern Ireland) Order 2003 and pursuant to a NIRO Order;

“Northern Ireland onshore wind generating station” means a generating station that—

(a)

generates electricity from wind, and

(b)

is situated in Northern Ireland, but not in waters in or adjacent to Northern Ireland up to the seaward limits of the territorial sea.

(4)

Power to make provision in a renewables obligation order by virtue of section 32F (and any provision contained in such an order) is subject to provision contained in regulations under this section.

(5)

This section is not otherwise to be taken as affecting power to make provision in a renewables obligation order.

(6)

Regulations under this section may amend a renewables obligation order.

(7)

Section 32K applies in relation to regulations under this section as it applies in relation to a renewables obligation order.”