The Greenhouse Gas Emissions Trading Scheme Regulations 2012

Regulation 39(3)

SCHEDULE 9 Detention and sale of aircraft

Interpretation

1.  In this Schedule—

“aerodrome” has the meaning given to it in section 105(1) of the Civil Aviation Act 1982(1);

“aerodrome operator” means the person for the time being having the management or control of an aerodrome;

“aircraft documents” has the meaning given by section 88(10) of the Civil Aviation Act 1982(2);

“airport charges” means charges payable to the owner or manager of an aerodrome for the use of, or for services provided at, an aerodrome (but does not include charges payable by virtue of section 73 of the Transport Act 2000(3));

“civil penalty” means any civil penalty which is due under regulation 50, under regulation 21 of the 2009 Regulations or regulation 30 of the 2010 Regulations (even where the failure giving rise to that civil penalty arose before 1st January 2012);

“the court” means—

(a)

in relation to England, Wales and Northern Ireland, the High Court; and

(b)

in relation to Scotland, the Court of Session;

“defaulting operator” means a person who falls under regulation 39(1)(a) or (b);

“operating ban” means an operating ban imposed under Article 16(10) of the Directive;

“regulator expenses” means any expenses incurred by the regulator in detaining, keeping or selling an aircraft, including—

(a)

any sums recovered from the regulator under paragraph 7(2) or regulation 21(2), or any sums under paragraph 2(4)(b) of Schedule 10 that have not been recovered under paragraph 2(5) of that Schedule;

(b)

any expenses in connection with the application to the court under paragraph 4; and

(c)

any regulator expenses that are deemed to be added by virtue of paragraph 3(2).

Sale following detention of aircraft

2.  Where an aircraft has been detained—

(a) under regulation 39(1)(a) and the defaulting operator has not paid the civil penalty and regulator expenses within the period of—

(i) 56 days beginning with the date on which the detention began; or

(ii) 21 days beginning with the date of service of a notice under paragraph 8(2), if later; or

(b) under regulation 39(1)(b) and—

(i) the operating ban has not been lifted within the period of 56 days beginning with the date on which the detention began; and

(ii) the defaulting operator has not paid the regulator expenses,

the regulator may, subject to the following provisions of this Schedule, sell that aircraft.

Release of aircraft

3.—(1) The regulator must not detain, or continue to detain, or sell an aircraft if—

(a) following detention, the regulator no longer has reason to believe the defaulting operator is the operator of the aircraft;

(b) in relation to a detention under regulation 39(1)(a), the defaulting operator—

(i) has exercised a right of appeal in respect of the civil penalty for which the aircraft has been detained;

(ii) gives to the regulator, pending the determination or withdrawal of the appeal, sufficient security for the payment of that civil penalty and any other civil penalty that the defaulting operator has not paid; and

(iii) pays to the regulator the regulator expenses;

(c) the defaulting operator or any other person claiming an interest in the aircraft demonstrates to the satisfaction of the regulator that the defaulting operator is no longer entitled to possession of the detained aircraft, or no longer entitled to possession of a part of it, in particular by virtue of the termination of any lease of the aircraft or of any part;

(d) in relation to a detention under regulation 39(1)(a), the defaulting operator pays to the regulator—

(i) the civil penalty for which the aircraft has been detained;

(ii) any other civil penalty that the defaulting operator has not paid; and

(iii) the regulator expenses;

(e) in relation to a detention under regulation 39(1)(b)—

(i) the operating ban imposed on the defaulting operator is lifted; and

(ii) the defaulting operator pays to the regulator any regulator expenses; or

(f) in relation to a detention under regulation 39(1)(b)—

(i) the regulator is satisfied that the aircraft will not be flown from the aerodrome in contravention of the operating ban; and

(ii) the defaulting operator pays to the regulator any regulator expenses.

(2) Where an aircraft has been detained, but subsequently released under sub-paragraph (1)(c), any unpaid regulator expenses incurred in relation to that detention are deemed to be added to any regulator expenses that may subsequently be incurred in relation to an aircraft of which the defaulting operator is the operator.

Court procedures

4.—(1) The regulator must not sell an aircraft under paragraph 2 without the leave of the court.

(2) The court must not give leave under sub-paragraph (1) in relation to a detention under regulation 39(1)(a) except where it is satisfied that—

(a) a civil penalty is due to the regulator;

(b) the UK administered operator has not paid the civil penalty to the regulator; and

(c) the regulator is entitled to apply to the court for leave to sell the aircraft.

(3) The court must not give leave under sub-paragraph (1) in relation to a detention under regulation 39(1)(b) except where it is satisfied that—

(a) an operating ban has been imposed on the person who is the operator of the aircraft;

(b) the operating ban has not been lifted before the expiry of the period mentioned in paragraph 2(b); and

(c) the regulator is entitled to apply to the court for leave to sell the aircraft.

(4) Before applying to the court for leave under sub-paragraph (1) the regulator must, in accordance with the procedure set out in paragraph 8—

(a) take steps for bringing the proposed application to the notice of any person who may have an interest in the aircraft; and

(b) afford those persons an opportunity of becoming a party to the proceedings.

(5) Where leave is given under sub-paragraph (1) the regulator must sell the aircraft for the best price that can be reasonably obtained.

(6) Failure to comply with sub-paragraph (4) or (5) does not make a sale void or voidable.

Proceeds of sale

5.—(1) The proceeds of any sale under this Schedule must be applied by the regulator in the following order—

(a) in payment of any customs duty which is due in consequence of the aircraft having been brought into the United Kingdom;

(b) in payment of any regulator expenses that remain unpaid;

(c) in payment of any charges in respect of any aircraft operated by the defaulting operator which the court has found to be due by virtue of section 73(1) of the Transport Act 2000;

(d) in payment of any airport charges incurred in respect of the aircraft which are due from the defaulting operator to the person entitled to levy charges in respect of the aerodrome at which the aircraft was detained under regulation 39(1);

(e) in relation to a detention under regulation 39(1)(a), in payment of the civil penalty in respect of which the aircraft was detained and sold;

(f) in payment of any other civil penalty that the defaulting operator has not paid.

(2) The regulator must, after making the payments under sub-paragraph (1), pay any residue from the proceeds of sale to the person or persons whose interests have been divested by reason of the sale.

Equipment and documents

6.—(1) The power to detain and sell an aircraft under regulation 39 and this Schedule includes the power to detain and sell equipment and stores carried in the aircraft provided it is the property of the defaulting operator; and for that purpose references to the aircraft include references to any such equipment and stores.

(2) The power of detention under regulation 39 extends to any aircraft documents carried in the aircraft, and any such documents may, if the aircraft is sold under these Regulations, be transferred by the regulator to the purchaser.

Assistance of aerodrome operator

7.—(1) An aerodrome operator must provide such reasonable assistance and advice as the regulator may require in connection with any of the regulator’s functions under this Schedule.

(2) An aerodrome operator is entitled to recover from the regulator a sum equal to any expense reasonably incurred in providing the regulator with assistance or advice under sub-paragraph (1).

Procedure for applying for leave to sell an aircraft

8.—(1) The following procedure applies where the regulator proposes to apply to the court for leave to sell an aircraft under paragraph 4.

(2) At least 21 days before applying to the court the regulator must, unless it is impracticable to so do, serve a notice in accordance with sub-paragraph (5) on—

(a) the person in whose name the aircraft is registered;

(b) any person who appears to the regulator to be the owner of the aircraft;

(c) any person who appears to the regulator to be a charterer of the aircraft whether or not by demise;

(d) any person who appears to the regulator to have the management of the aircraft for the time being;

(e) any person who appears to the regulator to be the operator of the aircraft;

(f) any person who is registered as a mortgagee of the aircraft under an Order in Council made under section 86 of the Civil Aviation Act 1982(4) or who appears to the regulator to be a mortgagee of the aircraft under the law of any country other than the United Kingdom;

(g) any other person who appears to the regulator to have a proprietary interest in the aircraft or any part of it.

(3) Where a person who has been served with a notice in accordance with sub-paragraph (2) informs the regulator within the period of 14 days beginning with the day following service of the notice of the person’s desire to become a party to the proceedings, the regulator must make that person a party to the application.

(4) At the same time as serving any notice under sub-paragraph (2), the regulator must publish a copy of that notice—

(a) in the London Gazette and—

(i) if the aircraft is detained in Scotland, the Edinburgh Gazette, or

(ii) if it is detained in Northern Ireland, the Belfast Gazette; and

(b) in one or more local newspapers circulating in the locality in which the aircraft is detained.

(5) A notice under sub-paragraph (2) must—

(a) state the nationality and registration marks of the aircraft;

(b) state the type of aircraft;

(c) state, as the case may be, the matters mentioned in sub-paragraph (6) or (7);

(d) invite the person to whom the notice is given to inform the regulator within 14 days after the date of service of the notice if the person wishes to become a party to the proceedings on the application.

(6) The matters mentioned in this sub-paragraph are that—

(a) by reason of default in the payment of a civil penalty, the regulator, on a date specified in the notice, detained the aircraft under these Regulations; and

(b) unless payment of the sum so due is made within a period of—

(i) 56 days beginning with the date when the detention began, or

(ii) 21 days after the date of service of the notice, if later,

the regulator may (subject to the provisions of this Schedule) apply to the court for leave to sell the aircraft.

(7) The matters mentioned in this sub-paragraph are that—

(a) by reason of an operating ban having been imposed on the operator of the aircraft under Article 16(10) of the Directive the regulator, on a date specified in the notice, detained the aircraft under these Regulations; and

(b) unless the operating ban has been lifted within the period of 56 days beginning with the date on which the detention began and the operator of the aircraft has paid the regulator expenses by a date specified in the notice, the regulator may (subject to the provisions of this Schedule) apply to the court for leave to sell the aircraft.

(8) A notice under sub-paragraph (2) must be served by the regulator—

(a) delivering it to the person to whom it is to be sent;

(b) leaving it at that person’s usual or last known place of business or abode;

(c) sending it, addressed to that person at that person’s usual or last known place of business or abode, by a registered post service or by a postal service which provided for the delivery of the notice by post to be recorded; or

(d) if the person to whom it is to be sent is an incorporated company or body, delivering it to the secretary, clerk or other appropriate officer of the company or body at its registered or principal office or sending it, addressed to the secretary, clerk or other officer of the company or body at that office, by a registered post service or by a postal service which provides for the delivery of the notice by post to be recorded.

(9) In sub-paragraph (8), “registered post service” and “postal service” have the meaning given in section 125(1) of the Postal Services Act 2000(5); and any notice which is sent by a postal service in accordance with that sub-paragraph to a place outside the United Kingdom must be sent by air mail or by some other equally expeditious means.

(1)

1982 c. 16; there are amendments to section 105(1) that are not relevant.

(2)

There are amendments to section 88(10) that are not relevant.

(3)

2000 c. 38.

(4)

1982 c. 16.

(5)

2000 c. 26.