The Energy Savings Opportunity Scheme Regulations 2014

Regulation 15(2)

SCHEDULE 1 U.K. Relevant undertakings

Large undertakings, and small or medium undertakings U.K.

1.  In these Regulations—

(a) a “large undertaking” means an undertaking which either—

(i) employs at least 250 persons, or

(ii) has an annual turnover in excess of 50 million euro and an annual balance sheet total of 43 million euro, and

(b) a “small or medium undertaking” means an undertaking which employs fewer than 250 persons and either—

(i) has an annual turnover not exceeding 50 million euro, or

(ii) has an annual balance sheet total not exceeding 43 million euro

determined in accordance with this Schedule.

Financial thresholds U.K.

2.  The annual turnover, and the annual balance sheet total, of an undertaking must be determined as follows.

3.  Any conversion into euro of the annual turnover or the annual balance sheet total for the purposes of paragraph 1, must be calculated on the basis of the currency conversion rate applicable on the qualification date for the compliance period. U.K.

4.  In this Schedule “ turnover” has the meaning given in section 474(1) of the Companies Act 2006 M1 with the modification that for “company” there is substituted “ undertaking ”. U.K.

Marginal Citations

M1 2006 c. 46, to which there are amendments not relevant to these Regulations.

5.  In relation to an undertaking the directors of which are required to prepare accounts under section 394 of the Companies Act 2006 (duty to prepare individual accounts)— U.K.

(a) the annual turnover and the annual balance sheet total for that undertaking are the annual turnover and annual balance sheet total recorded in those accounts for the financial year ending on, or in the 12 months immediately preceding, the qualification date, or

(b) where those accounts are not based on an accounting period of 12 months in accordance with sub-paragraph (a), a calculation of the annual turnover for a 12 month period, on a pro-rata basis.

6.  In relation to an undertaking the directors of which are not required to prepare accounts under section 394 of the Companies Act 2006, and have prepared accounts which comply with section 395 of that Act (Individual Accounts: applicable accounting framework), the annual turnover and the annual balance sheet total for that undertaking are— U.K.

(a) the annual turnover and annual balance sheet total recorded in those accounts for the financial year ending on, or in the 12 months immediately preceding, the qualification date, or

(b) where those accounts are based on an accounting period of other than 12 months in accordance with sub-paragraph (a), a calculation of the annual turnover for a 12 month period, on a pro-rata basis.

7.  In relation to an undertaking where individual accounts are not required under the Companies Act 2006, unless the undertaking is a relevant undertaking falling within regulation 15(1)(b), a responsible officer of the undertaking must estimate the annual turnover and annual balance sheet total for the undertaking for a 12 month period including the qualification date. U.K.

Employee threshold U.K.

8.  The number of persons employed by an undertaking must be determined as follows.

9.  For the purposes of this Schedule, a person is employed by an undertaking if they are— U.K.

(a) an employee of the undertaking,

(b) an owner manager of the undertaking,

(c) a partner in the undertaking.

10.  The number of persons employed by an undertaking on the qualification date is the total of the number of persons employed by the undertaking in each of the months in the accounting period used to calculate the undertaking's annual turnover and balance sheet total, divided by the number of months in that period. U.K.

Change of status U.K.

11.  Where, in any accounting period, an undertaking is a large undertaking (or a small or medium undertaking, as the case may be), it retains that status until it falls within the definition of a small or medium undertaking (or a large undertaking, as the case may be) for two consecutive accounting periods.

Regulation 17(1)(b)

SCHEDULE 2 U.K. Groups of undertakings

Aggregation U.K.

1.  Subject to paragraphs 3 and 4, two or more highest parent groups may comply with the Scheme as one participant.

2.  Where paragraph 1 applies, all the highest parents in those highest parent groups must agree in writing which of them is to be the responsible undertaking in relation to the participant's compliance with the Scheme and, in the absence of such agreement, each highest parent is the responsible undertaking in relation to the compliance of its highest parent group. U.K.

Disaggregation U.K.

3.  Subject to paragraph 4, the relevant undertakings comprising a highest parent group may comply with the Scheme—

(a) as individual participants,

(b) as two or more participants,

(c) by a combination of sub-paragraphs (a) and (b)

provided every undertaking comprising the highest parent group complies with the Scheme.

4.  An undertaking may only comply with the Scheme other than as a member of the highest parent group where that is agreed in writing by the undertaking and the highest parent. U.K.

5.  Where an undertaking complies as an individual participant in accordance with paragraph 3(a) or (c), it is the responsible undertaking in relation to its compliance with the Scheme. U.K.

6.  Where two or more undertakings comply as one participant in accordance with paragraph 3(b) or 3(c), those undertakings must agree in writing which of them is to be the responsible undertaking in relation to their compliance with the Scheme, and in the absence of such agreement, each undertaking is responsible for its own compliance with the Scheme. U.K.

Change of group U.K.

7.  Any undertaking which is a member of a highest parent group, or of a participant formed in accordance with paragraph 3(b) or (c), on the qualification date, and ceases to be part of that group or participant before the compliance date—

(a) may agree in writing with the highest parent that it will comply with the Scheme as if it were still a member of that group or participant,

(b) may agree in writing with the highest parent of another highest parent group that it will comply with the Scheme as a member of that group, or

(c) in the absence of an agreement made in accordance with sub-paragraph (a) or (b), must comply with the Scheme on its own behalf.

8.  Where paragraph 7(a) or (b) applies, the undertaking must use the same reference period as the relevant participant. U.K.

9.  Where paragraph 7(c) applies, the undertaking is the responsible undertaking in relation to its compliance with the Scheme. U.K.

Compliance of franchise undertakings as a group U.K.

10.  Subject to paragraph 11, two or more franchise undertakings may comply with the Scheme as one participant.

11.  Where paragraph 10 applies, those franchise undertakings must agree in writing that they will comply with the Scheme as one participant, and which of them is to be the responsible undertaking in relation to their compliance. U.K.

12.  In these Regulations— U.K.

(a) a “franchise agreement” exists where one undertaking (“the franchisee”) and another undertaking (“the franchisor”) agree that—

(i) the franchisee carries on a business activity which is the sale or distribution of goods or the provision of services (the “franchise business”),

(ii) the franchise business is carried on under a name which the franchisor provides to the franchisee,

(iii) the premises where the franchise business is carried on are used exclusively for that business by the franchisee, and

(iv) those premises have an internal or external appearance agreed by the franchisor and that appearance is similar to that of other premises in respect of which the franchisor has entered into a franchise agreement,

(b) where a franchise agreement exists, “franchise premises” means—

(i) the premises described in sub-paragraph (a), and

(ii) any other premises used by the franchisee in relation to carrying on the franchise business,

(c) a “franchise undertaking” means the franchisor, and any franchisee, that are party to a franchise agreement,

(d) a franchise agreement does not exist where the franchisee and the franchisor are group undertakings in relation to each other.

Determinations U.K.

13.—(1) A compliance body may determine whether or not a relevant undertaking is a member of a participant.

(2) A determination under sub-paragraph (1) must be made in writing and include information about appeals under Part 9 of these Regulations and, within 10 days of making the determination, be served on the relevant undertakings the compliance body considers are affected by it.

Regulation 29(a)

SCHEDULE 3 U.K. Basic information to be notified to the scheme administrator

1.  Information to be notified in relation to a responsible undertaking— U.K.

(a) name,

(b) email address and telephone number,

(c) registered office (where applicable),

(d) principal place of activity, where the responsible undertaking has no registered office,

(e) company registration number (where applicable),

(f) trading or other name by which the responsible undertaking is commonly known (where applicable),

(g) name, postal address, email address and telephone number of at least two individuals who will act as contacts for the responsible undertaking, one of whom is the responsible officer,

(h) where the responsible undertaking has a parent undertaking to which these Regulations do not extend (the “global parent”), the name of the global parent, and the trading or other name of the group of undertakings of which the global parent is the parent,

(i) name of the relevant trust (where applicable).

2.  Information to be notified where the responsible undertaking is, or was on the qualification date, one of two or more undertakings complying with the Scheme as one participant— U.K.

(a) the number of undertakings comprising the participant,

(b) where paragraph 1 of Schedule 2 applies, the fact that an agreement under paragraph 2 of Schedule 2 has been made, and the names of the relevant highest parents,

(c) where paragraph 3, 4, or 7 of Schedule 2 applies, the information in paragraph 1(a) in relation to any undertaking that has ceased to be, part of the participant since the qualification date.

3.  Information to be notified in relation to the responsible officer— U.K.

(a) name,

(b) full title or position in the undertaking,

(c) contact details,

(d) date on which the responsible officer considered the recommendations of the scheme assessment.

4.  Information to be notified in relation to the lead assessor— U.K.

(a) name,

(b) relevant approved register.

5.  Information to be notified in relation to the assessment— U.K.

(a) whether, and if so to what extent, the participant has relied on Part 6 in complying with the Scheme,

(b) the notification required by regulations 23(7)(b)(i), 26(8)(a), and 27(6)(a).

Regulation 48(5)

SCHEDULE 4 U.K. Appeals procedure

PART 1 U.K. Procedure for appeals against determinations made, and enforcement and penalty notices issued, by the Scottish Environment Protection Agency

1.  This Part applies to appeals against determinations made, and enforcement and penalty notices issued, by the Scottish Environment Protection Agency. U.K.

2.  The Scottish Ministers must appoint an independent person to hear appeals on behalf of the appeal body. U.K.

3.  A person who wishes to appeal to the Scottish Ministers under regulation 48(1) must give them written notice of the appeal together with a statement of the grounds of appeal. U.K.

4.  The Scottish Ministers must as soon as is reasonably practicable send a copy of that notice and statement to the Scottish Environment Protection Agency. U.K.

5.  An appellant may withdraw an appeal by notifying the Scottish Ministers who must, as soon as is reasonably practicable, notify the Scottish Environment Protection Agency accordingly. U.K.

6.  Notice of appeal in accordance with paragraph 3 is to be given before the expiry of the period of 28 (or where that period expires on a day other than a working day, by no later than the next working day) after the date of the determination, or the date of service of the enforcement notice or penalty notice (as the case may be). U.K.

7.  The standard of proof to be applied by the Scottish Ministers in determining an appeal is proof on the balance on probabilities. U.K.

PART 2 U.K. Procedure for appeals against determinations made, and enforcement and penalty notices issued, by the Chief Inspector

8.  This Part applies to appeals against determinations made, and enforcement and penalty notices issued, by the Chief Inspector. U.K.

9.  A person who wishes to appeal to the Planning Appeals Commission under regulation 48(1) must give them written notice of the appeal together with a statement of the grounds of appeal. U.K.

10.  The Planning Appeals Commission must as soon as is reasonably practicable send a copy of that notice and statement to the Chief Inspector. U.K.

11.  An appellant may withdraw an appeal by notifying the Planning Appeals Commission who must, as soon as is reasonably practicable, notify the Chief Inspector accordingly. U.K.

12.  Notice of appeal in accordance with paragraph 9 is to be given before the expiry of the period of 28 calendar days (or where that period expires on a day other than a working day, by no later than the next working day) after the date of the determination, or the date of service of the enforcement notice or penalty notice (as the case may be). U.K.

13.  The appeal body must determine the appeal and paragraphs (1) and (3) of Article 111 of the Planning (Northern Ireland) Order 1991 M2 apply in relation to the determination of the appeal as they apply in relation to the determination of an appeal under that Order. U.K.

Marginal Citations

M2 Article 111(1) is amended by S.I. 2006/1252 (N.I. 7) articles 1(3)(b) and 15(2), and by S.R. 2006/222 article 2.

14.  The Planning Appeals Commission must determine the process for determining appeals taking into account any requests of the appellant or the Chief Inspector. U.K.

15.  An appeal under this Part must be accompanied by a fee and Article 127(2)(b) of the Planning (Northern Ireland) Order 1991 has effect as if the reference to an appeal under that Order included a reference to an appeal under these Regulations. U.K.

16.  The standard of proof to be applied by the Planning Appeals Commission in determining an appeal is proof on the balance on probabilities. U.K.

Regulation 53(8)

SCHEDULE 5 U.K. Modification of the application of these Regulations in relation to certain relevant trust assets

1.—(1) Part 3 applies with the following modifications. U.K.

(2) Regulations 17, 18, and 19, and Schedule 2, do not apply, and instead the “participant” and the “responsible undertaking” in relation to relevant trust assets—

(a) mean the undertaking which is required to comply with the Scheme in relation to those relevant trust assets, determined in accordance with regulation 53(2), (3), (4), (5) or (6),

(b) where they are the participant and the responsible undertaking in relation to the relevant trust assets of two or more relevant trusts, must comply with the Scheme as a separate participant and responsible undertaking in relation to each relevant trust,

(c) where they are also a participant or a responsible undertaking by virtue of regulations 17, 18 and 19, must comply with the Scheme as a separate participant or responsible undertaking (as the case may be) in accordance with those regulations.

2.—(1) Part 4 applies with the following modifications. U.K.

(2) In regulation 21(1)(b) for “participant” there is substituted “ relevant trust asset ”.

(3) Regulation 22(1) to (3) does not apply and instead the responsible undertaking must, unless regulation 33(3) applies—

(a) subject to sub-paragraph (4), calculate the total energy consumption of all relevant trust assets held in the relevant trust on the qualification date for that compliance period, and

(b) base that calculation on the energy consumption of the relevant trust assets during the reference period.

(4) The responsible undertaking may elect to exclude from the calculation referred to in sub-paragraph (3) any relevant trust asset which is no longer held in the relevant trust on the compliance date.

(5) Regulation 23(1) and (2) does not apply and instead—

(a) the “energy consumption” of a relevant trust asset means energy that is supplied to, and consumed by, the relevant trust asset, but excluding any energy which is supplied from the relevant trust asset to another person,

(b) for the purposes of paragraph (a)—

(i) energy is supplied to a relevant trust asset when it is supplied pursuant to the agreement referred to in regulation 52(2)(b), or the relevant trust asset supplies energy, other than surplus heat, to itself,

(ii) energy is supplied from a relevant trust asset to another person (“R”) where the relevant undertaking that entered the agreement referred to in regulation 52(2)(b) agrees with R that it will supply energy to R, and R is supplied with energy further to that agreement,

and the amount of the supply is measured.

(6) In regulation 23(4) and (6)(a) for “participant”, wherever it appears, there is substituted “ relevant trust asset ”.

(7) In regulation 24—

(a) paragraph (1) does not apply,

(b) in paragraph (3) for “the energy consumption of a participant” there is substituted “ the energy consumption of relevant trust assets ”.

(8) Regulation 25 does not apply and instead—

(a) after calculating the total energy consumption of the relevant trust assets, the responsible undertaking may elect to identify the relevant trust assets' areas of significant energy consumption for the purposes of Chapter 3 of Part 4, and

(b) the “areas of significant energy consumption” of relevant trust assets means those relevant trust assets held by the relevant trust which together account for not less than 90% of the total energy consumption—

(i) measured in energy measurement units, or

(ii) measured by energy spend.

(9) Regulation 26 applies with the modifications that any reference to the energy consumption, or the total energy consumption, of a participant is to be read as if it were a reference to the energy consumption or, the total energy consumption (as the case may be) of the relevant trust assets.

(10) Regulation 27 applies with the modifications that—

(a) in paragraph (1)(a) for the words “participant's energy consumption and energy efficiency” there is substituted “ energy consumption and energy efficiency of the relevant trust assets ”,

(b) for paragraph (1)(b) there is substituted “ identify any way in which the relevant undertaking that entered the agreement referred to in regulation 52(2)(b) can improve the energy efficiency of the relevant trust asset, ”,

(c) in paragraph (1)(c) for “the participant” there is substituted “ that relevant undertaking ”,

(d) in paragraph (3)(a) for the words “by activities carried on, and assets held, by the participant” there is substituted “ by the relevant trust asset ”.

(11) In regulation 28 for paragraph (1)(c) there is substituted “ any agreement made under regulation 53(5) or (6), ”.

3.—(1) Part 6 applies with the following modifications. U.K.

(2) In regulation 32 for “an undertaking” there is substituted “ a relevant trust asset ”.

(3) In regulation 33—

(a) in paragraph (1) for the words “a participant's energy management system” there is substituted “ an energy management system in relation to the relevant trust asset ”,

(b) in paragraph (2) for the words “its energy consumption” there is substituted “ the energy consumption of the relevant trust asset ”,

(c) in paragraph (3) for “a participant” there is substituted “ a relevant trust asset ”.

(4) In regulation 34—

(a) in paragraph (1) for the words “occupied by a relevant undertaking” there is substituted “ which is a relevant trust asset ”,

(b) in paragraph (2) for “relevant undertaking” there is substituted “ participant ”, and for “its” there is substituted “ the ”,

(c) in paragraph (3) for “of a participant” there is substituted “ of a relevant trust asset ”.