82 Responsibility for composite listing particulars.
(1) Where—
(a) the same document contains listing particulars for securities of two or more successor Companies; and
(b) any person’s responsibility for any information included in the document is stated in the document to be confined to its inclusion as part of the listing particulars for securities of any one of those companies,
that person shall not be treated as responsible for that information in so far as it is stated in the document to form part of the listing particulars for securities of any other of those companies.
(2) In this section—
“the 1986 Act” means the Financial Services Act 1986;
“listing particulars” means any listing particulars or supplementary listing particulars within the meaning of the 1986 Act;
“responsible” means responsible for the purposes of Part IV of the 1986 Act and “responsibility” shall be construed accordingly.
83 Application of Trustee Investments Act 1961 in relation to investment in operating companies.
(1) Subsection (2) below shall have effect for the purpose of applying paragraph 3(b) of Part IV of Schedule I to the Trustee Investments Act 1961 (which provides that shares and debentures of a company shall not count as wider–range and narrower–range investments respectively within the meaning of that Act unless the company has paid dividends in each of the five years immediately preceding that in which the investment is made) in relation to investment in shares or debentures of an operating company during the calendar year in which the transfer date falls (“the first investment year”) or during any year following that year.
(2) The company shall be deemed to have paid a dividend as mentioned in the said paragraph 3(b)—
(a) in every year preceding the first investment year which is included in the relevant five years; and
(b) in the first investment year, if that year is included in the relevant five years and that company does not in fact pay such a dividend in that year.
(3) In subsection (2) above “the relevant five years” means the five years immediately preceding the year in which the investment in question is made or proposed to be made.
Schedule 11 to this Act (which makes provision about taxation in relation to or in connection with the other provisions of this Part) shall have effect.
(1) On the transfer date all the rights and liabilities —
(a) to which the Electricity Council was entitled or subject immediately before that date under the terms of issue of British Electricity Stock; or
(b) to which the North of Scotland Hydro-Electric Board was entitled or subject immediately before that date under the terms of issue of North of Scotland Electricity Stock,
shall become by virtue of this section rights and liabilities of the Treasury.
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) The Bank of England shall deal with—
(a) money paid to them under subsection (2) above; and
(b) money already in their hands which represents such unclaimed interest or redemption money as is mentioned in that subsection,
as money entrusted to them for payment to holders of the Stock concerned and section 5 of the Miscellaneous Financial Provisions Act 1955 (which relates to unclaimed dividends etc. on Government Stock) shall apply accordingly.
(4) In this section—
“British Electricity Stock” means any stock created and issued under section 16(1) of the Electricity Act 1957 or under section 40 of the Electricity Act 1947;
“North of Scotland Electricity Stock” means any stock created and issued under section 13 of the Hydro-Electric Development (Scotland) Act 1943.
In the House of Commons Disqualification Act 1975, in Part III of Schedule 1 (other disqualifying offices) there shall be inserted (at the appropriate place) the following entry—
Director of a successor company (within the meaning of Part II of the Electricity Act 1989), being a director nominated or appointed by a Minister of the Crown or by a person acting on behalf of the Crown
and the like insertion shall be made in Part III of Schedule 1 to the Northern Ireland Assembly Disqualification Act 1975.
94 Construction of references to property, rights and liabilities.
(1) References in this Part to property, rights and liabilities of an Electricity Board or the Electricity Council are references to all such property, rights and liabilities, whether or not capable of being transferred or assigned by that body.
(2) It is hereby declared for the avoidance of doubt that—
(a) any reference in this Part to property of an Electricity Board or the Electricity Council is a reference to property of that Board or Council, whether situated in the United Kingdom or elsewhere; and
(b) any such reference to rights and liabilities of an Electricity Board or the Electricity Council is a reference to rights to which that Board or Council is entitled, or (as the case may be) liabilities to which that body is subject, whether under the law of the United Kingdom or of any part of the United Kingdom or under the law of any country or territory outside the United Kingdom.
(1) In this Part, unless the context otherwise requires—
“the appropriate successor company”, in relation to an existing body, has the meaning given by section 88(4) above;
“debentures” includes debenture stock;
“existing body” has the meaning given by section 84(1) above;
“generating company” means a company designated as such by the Secretary of State;
“operating company” has the meaning given by section 74(10) above;
“securities”, in relation to a company, includes shares, debentures, bonds and other securities of the company, whether or not constituting a charge on the assets of the company;
“shares” includes stock;
“Scottish electricity company” means a company designated as such by the Secretary of State;
“Scottish nuclear company” means the company designated as such by the Secretary of State;
“successor company” has the meaning given by section 71(1) above;
“supply company” has the meaning given by section 65(5) above;
“the transfer date”—
in relation to any transfer effected by subsection (1) of section 65 or subsection (5) of section 66 above, has the meaning given by the said subsection (1);
in relation to any transfer effected by subsection (4) of section 67 above, has the meaning given by subsection (3) of that section;
“transferee” and “transferor”, in relation to any transfer of property, rights and liabilities effected or proposed to be effected under this Part, mean respectively the person to whom and the person from whom they are or are to be so transferred;
“transfer scheme” has the meaning given by section 69(1) above;
“transitional period”, in relation to an existing body, has the meaning given by section 84(2) above;
“transmission company” means the company designated as such by the Secretary of State.
(2) A company shall be regarded for the purposes of this Part as wholly owned by the Crown at any time when none of the issued shares in the company is held otherwise than—
(a) by, or by a nominee of, the Treasury or the Secretary of State; or
(b) by a company which is itself wholly owned by the Crown.
96 Directions for preserving security of electricity supplies etc.
(1) The Secretary of State may, after consultation with a person to whom this section applies, give to that person such directions of a general character as appear to the Secretary of State to be requisite or expedient for the purpose of—
(a) preserving the security of buildings or installations used for, or for purposes connected with, the generation, transmission or supply of electricity or the provision of a smart meter communication service; or
(b) mitigating the effects of any civil emergency which may occur.
(2) If it appears to the Secretary of State to be requisite or expedient to do so for any such purpose as is mentioned in subsection (1) above, he may, after consultation with a person to whom this section applies, give to that person a direction requiring him (according to the circumstances of the case) to do, or not to do, a particular thing specified in the direction.
(3) A person to whom this section applies shall give effect to any direction given to him by the Secretary of State under this section notwithstanding any other duty imposed on him by or under this Act.
(4) The Secretary of State shall lay before each House of Parliament a copy of every direction given under this section unless he is of the opinion that disclosure of the direction is against the interests of national security or the commercial interests of any person.
(5) A person shall not disclose, or be required by virtue of any enactment or otherwise to disclose, anything done by virtue of this section if the Secretary of State has notified him that the Secretary of State is of the opinion that disclosure of that thing is against the interests of national security or the commercial interests of some other person.
(6) This section applies to any licence holder and any person authorised by an exemption to generate or supply electricity or the provision of a smart meter communication service.
(7) In this section “civil emergency” means any natural disaster or other emergency which, in the opinion of the Secretary of State, is or may be likely to disrupt electricity supplies; and expressions used in Part I have the same meanings as in that Part.
97 Financial assistance for discharge of nuclear liabilities.
The provisions of Schedule 12 to this Act (which provide for the giving of financial assistance in connection with the storage and reprocessing of nuclear fuel, the treatment, storage and disposal of radioactive waste and the decommissioning of nuclear installations) shall have effect.
(1) The Secretary of State may, if he considers it expedient for the purpose of obtaining statistical information relating to the generation, transmission or supply of electricity or the use of electricity interconnectors or the provision of a smart meter communication service, serve a notice under this section on any licence holder or any person who is authorised by an exemption to generate or supply electricity or to participate in the operation of electricity interconnectors or to provide a smart meter communication service.
(2) A notice under this section may require the person on whom it is served to furnish, at a time and place specified in the notice, to the Secretary of State such statistical information about that person’s business as may be so specified.
(3) Subject to subsections (4) and (5) below, no information with respect to any particular business which—
(a) has been obtained under this section; and
(b) relates to the affairs of any individual or to any particular business,
shall, during the lifetime of that individual or so long as that business continues to be carried on, be published or otherwise disclosed without the consent of that individual or the person for the time being carrying on that business.
(4) Subsection (3) above does not apply in relation to any disclosure which is made after consultation with the individual concerned, or the person for the time being carrying on the business concerned, and is of information relating to—
(a) the quantities of electricity generated by particular methods or by the use of particular fuels;
(b) the quantities of particular fuels used for the generation of electricity;
(c) the quantities of electricity transferred between Great Britain and countries or territories outside Great Britain, or between England and Wales on the one hand and Scotland on the other; or
(d) the quantities of electricity supplied in England, Scotland or Wales either generally or to persons of any particular class or description.
(5) Subsection (3) above does not apply in relation to any disclosure which is made to the Minister in charge of any Government department or to the Scottish Ministers or for the purposes of any proceedings under this section.
(6) The Secretary of State may, after consultation with persons or bodies appearing to him to be representative of persons likely to be affected, by order amend subsection (4) above so as to add other descriptions of information which may be disclosed notwithstanding that it may relate to a particular person or business.
(7) Any person who without reasonable excuse fails to furnish information in compliance with a requirement under this section shall be liable on summary conviction to a fine not exceeding level 1 on the standard scale.
(8) Any person who publishes or discloses any information in contravention of subsection (3) above or, in purported compliance with a requirement under this section, knowingly or recklessly furnishes any information which is false in any material particular shall be liable—
(a) on summary conviction, to imprisonment for a term not exceeding three months or a fine not exceeding the statutory maximum or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine or both.
(9) In this section “information” does not include estimates as to future matters but, subject to that, expressions which are used in Part I have the same meanings as in that Part.
99 Promotion of new techniques in national interest.
(1) The Secretary of State shall exercise the power conferred on him by section 5 of the Science and Technology Act 1965 (expenditure on research and development in science or technology) for the purpose of promoting such research into, and such development of, new techniques relating to the generation, transmission or supply of electricity as appears to him to be necessary in the national interest.
(2) The Secretary of State may, if he considers it expedient for purposes connected with the performance of his duty under this section, serve notice under this subsection on any licence holder or any person who is authorised by an exemption to generate or supply electricity.
(3) A notice under subsection (2) above may require the person on whom it is served to furnish, at a time and place specified in the notice, to the Secretary of State such information about that person’s business as may be so specified.
(4) Subsections (3), (5) and (7) to (9) of section 98 above shall apply for the purposes of this section as they apply for the purposes of that section.
In section 2 of the Rights of Entry (Gas and Electricity Boards) Act 1954 (warrant to authorise entry), for subsection (4) there shall be substituted the following subsection—
(4) Every warrant granted under this section shall continue in force until—
(a) the time when the purpose for which the entry is required is satisfied; or
(b) the end of the period of 28 days beginning with the day on which the warrant was granted,
whichever is the earlier.
102 Production and supply of heat or electricity etc. by Scottish local authorities.
The provisions of Schedule 13 (which inserts into the Local Government (Scotland) Act 1973 provisions analogous to sections 11 (production and supply of heat or electricity or both by local authorities in England and Wales) and 12 (provisions supplementary to the said section 11) of the Local Government (Miscellaneous Provisions) Act 1976) shall have effect.
104 Amendment etc. of Electricity Supply Pension Scheme.
The provisions of Schedule 14 to this Act (which provide for amending the Electricity Supply Pension Scheme and for giving special protection to certain persons who have or may acquire rights under that scheme) shall have effect.
The provisions of Schedule 15 to this Act (which provide for amending the Hydroboard Superannuation Fund and the South of Scotland Electricity Board’s Superannuation Scheme and for giving special protection to certain persons who have or may acquire rights under those schemes) shall have effect.
(1) Any power under this Act to make regulations, and any power of the Secretary of State under this Act to make orders (other than the powers conferred by section 23, paragraph 9(6) of Schedule 4 and paragraph 2 of Schedule 5), shall be exercisable by statutory instrument.
(1ZA) Subsection (1) does not apply to a power of the Scottish Ministers to make regulations (see section 27 of the Interpretation and Legislative Reform (Scotland) Act 2010 (Scottish statutory instruments)).
(1A) Any power of the Scottish Ministers to make orders under section 32 is exercisable by statutory instrument.
(1B) Any power of the Welsh Ministers to make orders under section 36 or 36C or paragraph 1(4) of Schedule 9 is exercisable by statutory instrument.
(2) Any statutory instrument containing—
(a) regulations under this Act made by the Secretary of State (other than regulations under section 56FBA); or
(b) an order under this Act (other than an order appointing a day or nominating a company , an order under section 11A, 27O, 32, 32LA, 32N, 32R(4), 41A, ... 56A or 56FA or an order under paragraph 4 of Schedule 12 to this Act),
shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(2ZA) Subsection (2) does not apply to a statutory instrument containing (whether alone or with other provision)—
(a) regulations under paragraph 2A of Schedule 8;
(b) regulations under section 38A.
(2A) Any statutory instrument containing regulations or an order made by the Welsh Ministers under section 36 or 36C or paragraph 1(4) of Schedule 9 shall be subject to annulment in pursuance of a resolution of the National Assembly for Wales.
(3) Regulations made by the Scottish Ministers under —
(a) section 36C,
(b) section 37A,
(c) section 37B,
(d) section 37C,
(e) paragraph 6A of Schedule 4, or
(f) any paragraph of Schedule 8 except paragraph 2A,
are subject to the negative procedure.
(4) Before making regulations under a provision listed in subsection (6), the Secretary of State must consult the Scottish Ministers.
(5) Before making regulations under a provision listed in subsection (6), the Scottish Ministers must consult the Secretary of State.
(6) The provisions are—
(a) section 37A;
(b) section 37B;
(c) section 37C;
(d) paragraphs 1A, 2A and 7B of Schedule 8.
(1) It shall be the duty of any person to whom a direction is given under this Act to give effect to that direction.
(2) Any power conferred by this Act to give a direction shall, unless the context otherwise requires, include power to vary or revoke the direction.
(3) Any direction given under this Act shall be in writing.
(1) Where a body corporate is guilty of an offence under this Act and that offence is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate or any person who was purporting t oact in any such capacity he, as well as the body corporate, shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
(2) Where the affairs of a body corporate are managed by its members, subsection (1) above shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.
(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.
(1) Any document required or authorised by virtue of this Act to be served on any person may be served—
(a) by delivering it to him or by leaving it at his proper address or by sending it by post to him at that address; or
(b) if the person is a body corporate, by serving it in accordance with paragraph (a) above on the secretary of that body; or
(c) if the person is a partnership, by serving it in accordance with paragraph (a) above on a partner or a person having the control or management of the partnership business.
(2) For the purposes of this section and section 7 of the Interpretation Act 1978 (which relates to the service of documents by post) in its application to this section, the proper address of any person on whom a document is to be served shall be his last known address, except that—
(a) in the case of service on a body corporate or its secretary, it shall be the address of the registered or principal office of the body;
(b) in the case of service on a partnership or a partner or a person having the control or management of a partnership business, it shall be the address of the principal office of the partnership;
and for the purposes of this subsection the principal office of a company registered outside the United Kingdom or of a partnership carrying on business outside the United Kingdom is its principal office within the United Kingdom.
(3) If a person to be served by virtue of this Act with any document by another has specified to that other an address within the United Kingdom other than his proper address (as determined in pursuance of subsection (2) above) as the one at which he or someone on his behalf will accept documents of the same description as that document, that address shall also be treated as his proper address for the purposes of this section and for the purposes of the said section 7 in its application to this section.
(4) If the name or address of any owner or occupier of land on whom by virtue of this Act any document is to be served cannot after reasonable inquiry be ascertained, the document may be served by—
(a) addressing it to him by the description of “owner” or “occupier” of the land (describing it); and
(b) either leaving it in the hands of a person who is or appears to be resident or employed on the land or leaving it conspicuously affixed to some building or object on or near the land.
(4A) In the case of any document required or authorised by virtue of this Act to be served on any person by the Authority or the Secretary of State, that document may also be served by electronic means if the conditions in subsection (4B) are met.
(4B) The conditions in this subsection are that—
(a) the person on whom the document is to be served has indicated to the Authority or the Secretary of State (as the case may be) the person’s willingness to receive by electronic means documents of that description (and has not withdrawn that indication); and
(b) the document is sent to the number or address most recently specified by the person for that purpose.
(4C) An indication for the purposes of subsection (4B)—
(a) must be given in such manner and include such information as the Authority or the Secretary of State (as the case may be) directs; and
(b) may be withdrawn by an indication given in such manner as the Authority or the Secretary of State (as the case may be) directs.
(4D) Withdrawal of an indication given for the purposes of subsection (4B) takes effect at the beginning of the fifth working day after the day on which the Authority or the Secretary of State (as the case may be) receives the indication withdrawing it.
(4E) A document which is served in accordance with subsection (4A) is to be treated as having been served on the next working day after the day on which it is sent.
(5) This section shall not apply to any document in relation to the service of which provision is made by rules of court.
(6) In this section—
“secretary”, in relation to a local authority within the meaning of the Local Government Act 1972 or the Local Government (Scotland) Act 1973, means the proper officer within the meaning of that Act;
“working day” means any day other than—
Saturday or Sunday;
Christmas Day or Good Friday;
a day which is a bank holiday in England and Wales or Scotland under the Banking and Financial Dealings Act 1971.
There shall be paid out of money provided by Parliament—
(a) any administrative expenses incurred by the Secretary of State or the Treasury in consequence of the provisions of this Act; and
(b) any increase attributable to this Act in the sums payable out of money so provided under any other Act.
(1) In this Act, unless the context otherwise requires—
“Area Board” has the same meaning as in the Electricity Act 1947;
“the Authority” means the Gas and Electricity Markets Authority;
“Citizens Advice” means the National Association of Citizens Advice Bureaux;
“Citizens Advice Scotland” means the Scottish Association of Citizens Advice Bureaux;
“contravention”, in relation to any direction, condition, requirement, regulation or order, includes any failure to comply with it and cognate expressions shall be construed accordingly;
...
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“Electricity Board” means an Area Board, the Generating Board or a Scottish Board;
“the Generating Board” means the Central Electricity Generating Board;
“modifications” includes additions, alterations and omissions and cognate expressions shall be construed accordingly;
“protection of the water environment” has the same meaning as in section 1(2) of the Water Environment and Water Services (Scotland) Act 2003;
“Scottish Board” means either the North of Scotland Hydro-Electric Board or the South of Scotland Electricity Board.
(2) For the purposes of this Act any class or description may be framed by reference to any matters or circumstances whatever.
112 Amendments, transitional provisions, savings and repeals.
(1) The enactments mentioned in Schedule 16 to this Act shall have effect subject to the amendments there specified (being minor amendments or amendments consequential on the preceding provisions of this Act).
(2) The Secretary of State may by order make such consequential modifications of any provision contained in any Act (whether public general or local) passed, or in subordinate legislation made, before the relevant date as appear to him necessary or expedient—
(a) in respect of any reference in that Act or subordinate legislation to any of the Electricity Boards or the Electricity Council;
(b) in respect of any reference (in whatever terms) in that Act or subordinate legislation to a person carrying on an electricity undertaking or to such an undertaking;
(c) in respect of any reference in that Act or subordinate legislation to any enactment repealed by this Act; or
(d) in the case of a provision contained in a local Act or subordinate legislation, in respect of any other inconsistency between that Act or subordinate legislation and this Act;
and in this subsection “the relevant date”, in relation to any modifications, means the date of the coming into force of the provisions of this Act on which they are consequential.
(3) The transitional provisions and savings contained in Schedule 17 to this Act shall have effect; but those provisions are without prejudice to sections 16 and 17 of the Interpretation Act 1978 (effect of repeals).
(4) The enactments mentioned in Schedule 18 to this Act (which include some that are spent or no longer of practical utility) are hereby repealed to the extent specified in the third column of that Schedule.
(1) This Act may be cited as the Electricity Act 1989.
(2) This Act shall come into force on such day as the Secretary of State may by order appoint; and different days may be so appointed for different provisions or for different purposes.
(3) This Act, except this section and the following provisions, namely—
Sections 32N to 32Z2;
sections 65 to 70;
section 82;
sections 91 to 95;
section 100;
paragraph 8 of Schedule 1 and section 1(5) so far as relating to that paragraph;
paragraph 10 of Schedule 2 and section 2(6) so far as relating to that paragraph;
paragraph 11 of Schedule 16 and section 112(1) so far as relating to that paragraph; and
Schedule 18 and section 112(4) so far as relating to enactments which extend there ...,
does not extend to Northern Ireland.
Remuneration, pensions etc.
1 (1) There shall be paid to the Director such remuneration, and such travelling and other allowances, as the Secretary of State may determine.
(2) In the case of any such holder of the office of the Director as may be determined by the Secretary of State, there shall be paid such pension, allowance or gratuity to or in respect of him, or such contributions or payments towards provision for such a pension, allowance or gratuity, as may be so determined.
(3) If, when any person ceases to hold office as the Director, the Secretary of State determines that there are special circumstances which make it right that he should receive compensation, there may be paid to him a sum by way of compensation of such amount as may be determined by the Secretary of State.
(4) The approval of the Treasury shall be required for the making of a determination under this paragraph.
Staff
2 The Director may, with the approval of the Treasury as to numbers and terms and conditions of service, appoint such staff as he may determine.
Expenses of the Director and his staff
3 There shall be paid out of money provided by Parliament—
(a) the remuneration of, and any travelling or other allowances payable under this Act to, the Director and any staff of the Director;
(b) any sums payable under this Act to or in respect of the Director; and
(c) any expenses duly incurred by the Director or by any of his staff in consequence of the provisions of this Act.
Official seal
4 The Director shall have an official seal for the authentication of documents required for the purposes of his functions.
Performance of functions
5 (1) Anything authorised or required by or under this Act or any other enactment to be done by the Director, other than the making of a statutory instrument, may be done by any member of the staff of the Director who is authorised generally or specially in that behalf by the Director.
(2) The Statutory Instruments Act 1946 shall apply to any power to make statutory instruments conferred on the Director by this Act as if the Director were a Minister of the Crown.
Documentary evidence
6 The Documentary Evidence Act 1868 shall have effect as if the Director were included in the first column of the Schedule to that Act, as if the Director and any person authorised to act on behalf of the Director were mentioned in the second column of that Schedule, and as if the regulations referred to in that Act included any document issued by the Director or by any such person.
The Parliamentary Commissioner
7 In the Parliamentary Commissioner Act 1967, in Schedule 2 (departments and authorities subject to investigation), there shall be inserted (at the appropriate place) the following entry—
Office of the Director General of Electricity Supply.
Parliamentary disqualification etc.
8 In the House of Commons Disqualification Act 1975, in Part III of Schedule 1 (other disqualifying offices), there shall be inserted (at the appropriate place) the following entry—
Director General of Electricity Supply
;
and the like insertion shall be made in Part III of Schedule 1 to the Northern Ireland Assembly Disqualification Act 1975.
Preliminary
1 In this Schedule any reference to the committee is a reference to each of the consumers’ committees.
Remuneration, pensions etc. of chairman
2 (1) There shall be paid to the chairman of the committee such remuneration, and such travelling and other allowances, as the Director may determine.
(2) There shall be paid such pension, allowance or gratuity to or in respect of a person who has held or holds office as chairman of the committee, or such contributions or payments towards provision for such a pension, allowance or gratuity to or in respect of such a person, as the Director may determine.
(3) If, when any person ceases to hold office as such a chairman, the Director determines that there are special circumstances which make it right that that person should receive compensation, there may be paid to him a sum by way of compensation of such amount as the Director may determine.
(4) The approval of the Treasury shall be required for the making of a determination under this paragraph.
Allowances for other members
3 There shall be paid to members of the committee other than the chairman such travelling and other allowances as the Director with the approval of the Treasury may determine.
Administration etc.
4 The Director may make arrangements for the committee to be provided with office accommodation and with such services as he considers appropriate to enable them to carry out their functions.
Proceedings
5 The validity of any proceedings of the committee shall not be affected by any vacancy amongst the members or by any defect in the appointment of a member.
6 (1) Subject to sub-paragraphs (2) and (3) below, meetings of the committee shall be open to the public.
(2) The public shall be excluded during any item of business where—
(a) it is likely, were members of the public to be present during that item, that information furnished in confidence to the committee by the Director would be disclosed in breach of the obligation of confidence; or
(b) the committee have resolved that, by reason of the confidential nature of the item or for other special reasons stated in the resolution, it is desirable in the public interest that the public be excluded; or
(c) the item relates to a proposal to refer any matter to the Director in pursuance of section 45(3) or 46(1)(a) or (4) of this Act.
(3) Except to the extent that the Director otherwise directs (whether generally or in relation to the particular case), the public shall be excluded during any item of business which relates to—
(a) the determination of any dispute referred to the committee under section 39(5) of this Act; or
(b) the investigation by the committee of any matter in pursuance of section 45(2) or 46(1)(b) of this Act.
(4) The committee shall give such notice—
(a) of any meeting of the committee which is open to the public; and
(b) of the business to be taken at that meeting (other than items during which the public is to be excluded),
as they consider appropriate for the purpose of bringing the meeting to the attention of interested members of the public.
Sub-committees
7 (1) The committee may, with the approval of the Director—
(a) establish local and other sub-committees through which the committee may carry out such of their functions as they may determine;
(b) appoint such persons (including persons who are not members of the committee) to be members of any such sub-committee as they may determine; and
(c) regulate the procedure of any such sub-committee.
(2) Persons appointed under sub-paragraph (1) who are not members of the committee may be reimbursed for their travelling expenses and such of their out-of-pocket expenses as do not relate to loss of remuneration.
Financial provisions
8 (1) There shall be paid by the Director out of money provided by Parliament—
(a) any sums payable to or in respect of any person under paragraph 2, 3 or 7 above; and
(b) any expenses incurred by the committee in accordance with any statement approved under sub-paragraph (3) below.
(2) The committee shall prepare and send to the Director before the beginning of each financial year a statement of the expenses which they expect to incur in respect of that year for the purposes of, or in connection with, the carrying out of their functions.
(3) The Director shall consider any statement sent to him under sub-paragraph (2) above and shall either approve the statement or approve it with such modifications as he considers appropriate.
Amendment of other Acts
9 In section 14(1) of the Chronically Sick and Disabled Persons Act 1970, for the words “Electricity Consultative Councils, the Electricity Consumers’ Council” there shall be substituted the words “consumers’ committees appointed under section 2 of the Electricity Act 1989”.
10 In Part III of Schedule 1 to the House of Commons Disqualification Act 1975, there shall be inserted at the appropriate place—
Chairman of a consumers’ committee appointed under section 2 of the Electricity Act 1989
;
and the like insertion shall be made in Part III of Schedule 1 to the Northern Ireland Assembly Disqualification Act 1975.
SCHEDULE 2ZA Duties of distribution exemption holders
Section 5A
Third party access
1. (1) This paragraph applies where—
(a) a customer owns or occupies premises which are connected to an exempt distribution system;
(b) the customer is taking a supply of electricity through that system from—
(i) the distribution exemption holder that operates or has control of the system, or
(ii) a person related to the distribution exemption holder; and
(c) the customer—
(i) has served on the distribution exemption holder a notice expressing the customer’s interest in taking a supply of electricity from a third party supplier through that system; and
(ii) has provided with the notice evidence that at least one third party supplier would be willing to supply the customer with electricity through that system, and has identified any such third party supplier in the notice.
(2) In this Schedule “expression of interest” means a notice served under sub-paragraph (1).
(3) Within 5 working days beginning with the day on which it receives the expression of interest, the distribution exemption holder must provide any person related to it that is currently supplying the customer with electricity with a copy of the expression of interest.
(4) Within 10 working days beginning with the day on which it receives the expression of interest, the distribution exemption holder must serve on the customer—
(a) a notice informing the customer that it will take the steps in sub-paragraph (6) with a view to giving a third party supplier access to its distribution system; or
(b) a notice informing the customer that the distribution exemption holder considers—
(i) that it would need to increase the capacity of its distribution system in order to give a third party supplier access to that distribution system; and
(ii) that one of the conditions in sub-paragraph (5) is met.
(5) Those conditions are—
(a) that it is not technically feasible to provide the increase in capacity in question;
(b) that providing that increase in capacity would have a significant and adverse economic impact on the distribution exemption holder or any other person.
(6) Where the distribution exemption holder has served on the customer a notice under sub-paragraph (4)(a), the distribution exemption holder must—
(a) serve on any third party supplier identified in the expression of interest a notice specifying—
(i) any metering arrangements that the distribution exemption holder considers would be required to enable access to be given; and
(ii) whether it would be willing to give access through contractual arrangements which would not require a connection to be made or modified; and
(b) provide each such third party supplier with any other documents or information that it may reasonably request.
(7) The distribution exemption holder must serve the notice required by sub-paragraph (6)(a) within 20 working days beginning with the day on which it receives the expression of interest.
(8) The distribution exemption holder must provide any documents or information requested by a third party supplier under sub-paragraph (6)(b)—
(a) within 20 working days beginning with the day of the distribution exemption holder’s receipt of the expression of interest; or
(b) if the request is made at a time when there are fewer than 10 working days remaining in the 20 working day period mentioned in paragraph (a) above, within 10 working days beginning with the day of the distribution exemption holder’s receipt of the request.
2. (1) This paragraph and paragraph 3 apply where a customer who has served an expression of interest relating to an exempt distribution system serves on the distribution exemption holder a notice—
(a) confirming that the customer has entered into a contract with a third party supplier identified in the expression of interest for the supply of electricity to premises which are connected to the exempt distribution system; and
(b) identifying that third party supplier.
(2) Within 5 working days beginning with the day on which it receives the notice served under sub-paragraph (1), the distribution exemption holder must provide any person related to it that is currently giving a supply of electricity to the customer with a copy of that notice.
(3) If the distribution exemption holder has not, by the end of the 10 working day period mentioned in paragraph 1(4), served on the customer a notice under paragraph 1(4)(b), the distribution exemption holder must give the third party supplier such access to the distribution system to which the expression of interest relates as is necessary to enable the third party supplier to give a supply of electricity to the customer.
(4) Access under sub-paragraph (2) must be given either—
(a) as soon as is reasonably practicable after the distribution exemption holder receives the notice served under sub-paragraph (1); or
(b) on a date agreed by the distribution exemption holder, the third party supplier and the customer in writing.
(5) Sub-paragraphs (6) to (11) apply if the distribution exemption holder has served on the customer a notice under paragraph 1(4)(b) (whether before or after the service of the notice under sub-paragraph (1)).
(6) Subject to sub-paragraph (7), the distribution exemption holder must give the third party supplier such access to its distribution system as is necessary to enable the third party supplier to give a supply of electricity to the customer, and must give that access—
(a) as soon as is reasonably practicable after the end of the period of 28 working days beginning with the day on which the customer serves the notice under sub-paragraph (1); or
(b) on a date agreed by the distribution exemption holder, the third party supplier and the customer in writing.
(7) If, before the end of the period mentioned in sub-paragraph (6)(a), the distribution exemption holder takes the steps mentioned in sub-paragraph (8)—
(a) the distribution exemption holder is not required to give access in accordance with sub-paragraph (6), and
(b) sub-paragraph (9) applies.
(8) The steps mentioned in sub-paragraph (7) are—
(a) providing the third party supplier with evidence to show—
(i) that the distribution exemption holder would need to increase the capacity of its distribution system in order to give the third party supplier access to that distribution system; and
(ii) that one of the conditions in paragraph 1(5) is met; and
(b) sending a copy of the evidence to the customer.
(9) If, within the period mentioned in sub-paragraph (10), the distribution exemption holder and the third party supplier enter into a contract for the provision to the third party supplier of such access as is necessary to enable it to give a supply of electricity to the customer through the distribution system, the distribution exemption holder must give access to the third party supplier in accordance with the terms of the contract.
(10) That period is—
(a) the 14 days immediately following the period mentioned in sub-paragraph (6)(a); or
(b) any longer period that the distribution exemption holder, the third party supplier and the customer may agree in writing.
(11) If, before the end of the 28 day period mentioned in sub-paragraph (6)(a), the distribution exemption holder, the third party supplier and the customer agree in writing to the extension of that period, sub-paragraphs (6) to (10) have effect as if sub-paragraph (6)(a) referred to the extended period instead of to the period of 28 working days there mentioned.
3. (1) The third party supplier mentioned in paragraph 2(1) may make an application to the Authority under this paragraph if—
(a) the distribution exemption holder has served on the customer a notice under paragraph 1(4)(b); and
(b) at the end of the period mentioned in paragraph 2(10), the distribution exemption holder is not under a duty (whether by virtue of sub-paragraph (6) or (9) of paragraph 2) to give access to the third party supplier.
(2) The third party supplier may not make an application under this paragraph unless it has, no later than the 10th working day before the day on which the application is made, served on the distribution exemption holder a notice—
(a) informing the distribution exemption holder that it intends to make an application under this paragraph; and
(b) inviting the distribution exemption holder to provide it with any further evidence it may wish to provide for the purpose mentioned in paragraph 2(8)(a).
(3) The application must include—
(a) any evidence provided by the distribution exemption holder under paragraph 2(8)(a) or sub-paragraph (2)(b) above;
(b) a description of the nature of the access required by the third party supplier (including any alternative forms of access that would be acceptable to it); and
(c) any evidence the third party supplier may wish to include—
(i) to show that the capacity of the distribution system would not need to be increased in order to give a third party supplier access to it;
(ii) to show that a condition in paragraph 1(5) is not met; or
(iii) as to the benefits that would be brought by any increase in capacity that may be necessary.
(4) The third party supplier must send a copy of the application to the distribution exemption holder and the customer.
(5) Where an application has been made under this paragraph the Authority may, at the request of the customer or the third party supplier (the “requesting party”), ask the distribution exemption holder to provide the Authority and the requesting party with information in respect of the measures that would be required to reinforce the distribution system in order to provide the necessary capacity.
(6) Except to the extent that sub-paragraph (7) applies, the distribution exemption holder must comply with any request made by the Authority under sub-paragraph (5).
(7) If the distribution exemption holder represents to the Authority that particular information should not be disclosed under sub-paragraph (6) because it is commercially sensitive, the Authority may determine that the information in question should be excepted from the duty to disclose information under that sub-paragraph, having regard to the need to preserve the confidentiality of commercially sensitive information.
(8) The distribution exemption holder may recover from the requesting party any costs reasonably incurred in providing any information requested under sub-paragraph (5).
(9) Where an application has been made under this paragraph the Authority—
(a) must, if satisfied that the conditions in sub-paragraph (10) are met, determine that the distribution exemption holder is entitled to refuse the third party supplier access to its distribution system on the ground of lack of capacity;
(b) must, if not satisfied that those conditions are met, determine that the distribution exemption holder is not entitled to refuse the third party supplier access to its distribution system on the ground of lack of capacity.
(10) Those conditions are—
(a) that the distribution exemption holder would need to increase the capacity of its distribution system in order to give the third party supplier access to it; and
(b) that either it is not technically feasible to provide that increase in capacity, or the benefits of the increase in capacity would be outweighed by the economic impact that the provision of the increase in capacity would have on the distribution exemption holder or any other person.
(11) The Authority must, as soon as is reasonably practicable after making its determination—
(a) notify the distribution exemption holder of its determination; and
(b) provide the customer and the third party supplier with a copy of that notice.
(12) If the Authority determines that the distribution exemption holder is not entitled to refuse the third party supplier access to its distribution system on the ground of lack of capacity—
(a) the distribution exemption holder must give the third party supplier such access to its distribution system as is necessary to enable the third party supplier to give a supply of electricity to the customer;
(b) paragraph 1(6) to (8) applies as if the distribution exemption holder had served a notice under paragraph 1(4)(a) on the customer, and as if the references in paragraph 1(7) and (8)(a) to the “expression of interest” were to the notification under sub-paragraph (11) above; and
(c) paragraph 5 has effect as if the reference in paragraph 5(3) to the “expression of interest” were to the notification under sub-paragraph (11) above.
(13) Access under sub-paragraph (12)(a) must be given either—
(a) as soon as is reasonably practicable after the distribution exemption holder receives the notification under sub-paragraph (11); or
(b) on a date agreed by the distribution exemption holder, the third party supplier and the customer in writing.
4. (1) This paragraph applies where a distribution exemption holder is required under paragraph 2(3), (6) or (9) or 3(12)(a) to give a third party supplier access to its distribution system.
(2) The duty must be performed for so long as the access is required.
(3) In meeting the duty the distribution exemption holder must not—
(a) treat the third party supplier less favourably than any other supplier in respect of the terms and conditions for access to its distribution system, including those relating to any connection under paragraph 7(2);
(b) refuse to give access on the basis that the Authority has not yet approved its charging methodology; or
(c) act in a manner which unreasonably prevents, restricts or delays access to its distribution system by the third party supplier.
(4) The distribution exemption holder must grant the third party supplier such ancillary or incidental rights over its distribution system as are necessary to enable the third party supplier to meet its licence or statutory obligations, including any obligations of the third party supplier relating to metering functions.
(5) Where access has been given before a methodology for calculating a use of system charge has been given an approval that is required by virtue of paragraph 5(1), the distribution exemption holder may, within a reasonable period after receiving notification of the approval of the methodology, require the third party supplier to pay for that access an amount that is—
(a) equivalent to the charge that would have been payable for that access had the methodology been approved before the access was given; and
(b) payable within such period as the parties agree or, in the absence of such agreement, within such reasonable period after the distribution exemption holder demands the payment as may be specified by the distribution exemption holder.
Charges for use of system
5. (1) Subject to paragraph 13(1), a distribution exemption holder on whom a customer has served an expression of interest must not impose a use of system charge unless the Authority has approved the methodology for calculating that charge under sub-paragraph (5) or paragraph 14(7).
(2) If such a distribution exemption holder proposes to impose a use of system charge in circumstances where, by virtue of sub-paragraph (1), the Authority’s approval of the methodology for that charge is required the distribution exemption holder must—
(a) prepare a record of the assets and liabilities associated with its distribution activities at the time of the receipt of the expression of interest;
(b) prepare a statement (a “charging statement”) containing details of the proposed methodology for calculating the use of system charge;
(c) provide the Authority with—
(i) the charging statement,
(ii) any evidence that the distribution exemption holder may wish to provide in support of the methodology proposed for calculating the use of system charge,
(iii) a copy of the expression of interest, and
(iv) such other information or documents as the Authority may request;
(d) provide the relevant third party supplier with a copy of the charging statement.
(3) Subject to sub-paragraph (4), all of the steps required by sub-paragraph (2) must be carried out within 20 working days beginning with the day of the distribution exemption holder’s receipt of the expression of interest.
(4) Where the Authority has requested further information or documents in accordance with sub-paragraph (2)(c)(iv) at a time when there are fewer than 10 working days remaining in the 20 working day period mentioned in sub-paragraph (3), the further information or documents must be provided within 10 working days beginning with the day of the distribution exemption holder’s receipt of the request.
(5) Where a distribution exemption holder has complied with sub-paragraph (2)(c) the Authority must, as soon as is reasonably practicable—
(a) decide whether to approve the methodology proposed by that distribution exemption holder; and
(b) notify the distribution exemption holder of that decision.
(6) Where a distribution exemption holder receives a notice under sub-paragraph (5)(b), it must, as soon as is reasonably practicable after that receipt, provide the relevant third party supplier with a copy of that notice.
(7) Where the Authority does not approve the methodology proposed by the distribution exemption holder, the Authority must give reasons for that decision.
(8) Where the Authority does not approve the methodology proposed by the distribution exemption holder and the distribution exemption holder still wishes to impose a use of system charge the distribution exemption holder must—
(a) submit to the Authority a charging statement containing details of a revised methodology;
(b) provide the Authority with a copy of such other information as the Authority may request in respect of that revised methodology; and
(c) provide the relevant third party supplier with a copy of the charging statement.
(9) Where at any time a distribution exemption holder wishes to modify a methodology that has previously been approved under this Schedule and is used by it for calculating a use of system charge levied for the use of a distribution system other than a closed distribution system, the distribution exemption holder must—
(a) submit to the Authority a charging statement containing details of the proposed revised methodology;
(b) provide the Authority with a copy of such other information as the Authority may request; and
(c) provide the relevant third party supplier, and any other third party supplier who would be affected by the modification proposed, with a copy of the charging statement.
(10) If a distribution exemption holder takes the steps required by sub-paragraph (8) or (9), sub-paragraphs (5) to (7) apply as if it had complied with sub-paragraph (2)(c).
(11) For the purposes of sub-paragraphs (2)(d), (6), (8)(c) and (9)(c), a duty to provide anything to “the relevant third party supplier” is a duty to provide it—
(a) if at the time when the duty is discharged the distribution exemption holder has received a notice from the customer under paragraph 2(1), to the third party supplier identified in that notice; or
(b) if at the time when the duty is discharged the distribution exemption holder has not received such a notice from the customer, to any third party supplier identified in the expression of interest.
6. (1) Sub-paragraph (2) applies where a distribution exemption holder is under a duty to give access to its distribution system under paragraph 2(3), (6) or (9) or 3(12)(a).
(2) Where and for so long as the distribution exemption holder is imposing a use of system charge, it must—
(a) prepare and maintain distribution accounts in respect of the distribution system for each regulatory year;
(b) keep copies of those accounts for 6 years from the date of the transactions to which they relate; and
(c) notify the Authority of the address where those accounts are held.
(3) In sub-paragraph (2)—
“distribution accounts” means accounting records in relation to the business (the “distribution business”) constituted by the distribution activities of the distribution exemption holder’s business that—
are sufficient to show and explain the transactions of the distribution business, separate from any other transactions of the distribution exemption holder’s business;
are sufficient to disclose with reasonable accuracy, at any time, the financial position of the distribution business at that time;
contain entries from day to day of all sums of money received and expended in the course of the distribution business and the matters in respect of which the receipt and expenditure takes place; and
contain a record of the assets and liabilities attributable to the distribution business;
“regulatory year”, in relation to a distribution business, means—
a period of 12 months beginning on 1 April in any calendar year and ending on 31 March of the next calendar year; or
where the distribution exemption holder wishes to align the accounting period for the distribution business with the accounting period for any other business it carries on or the business of any a person related to it, the period of 12 months used as the accounting period for that other business or the business of that related person.
Connection
7. (1) This paragraph applies where a distribution exemption holder is under a duty to give access to a third party supplier under paragraph 2(3), (6) or (9) or 3(12)(a).
(2) The distribution exemption holder must, if required to do so by the third party supplier or the customer who served the notice under paragraph 2(1), make a connection between its distribution system and—
(a) the premises mentioned in paragraph 1(1)(a); or
(b) the distribution system of another authorised distributor.
(3) The duty under sub-paragraph (2) includes a duty to provide such electric lines or electrical plant as may be necessary to enable the connection to be used for the purpose for which it is required.
(4) The duty under sub-paragraph (2) must be performed in accordance with such terms as are agreed under paragraphs 8 and 9, or paragraph 10, for so long as the connection is required.
(5) In this paragraph and paragraphs 8 to 10—
(a) any reference to making a connection includes a reference to maintaining the connection (and continuing to provide the necessary electric lines or electrical plant);
(b) any reference to requiring a connection includes a reference to requiring the connection to be maintained (and the continued provision of the necessary electric lines or electrical plant); and
(c) any reference to the provision of any electric line or electrical plant is a reference to the provision of such a line or an item of electrical plant either by the installation of a new one or by the modification of an existing one.
8. (1) Where a distribution exemption holder makes a connection under paragraph 7(2) any expenses reasonably incurred in making the connection or in providing any electric line or electrical plant that the distribution exemption holder is under a duty to provide must, if and to the extent that the distribution exemption holder requires, be met by the person requiring the connection.
(2) The reference in sub-paragraph (1) to any expenses reasonably incurred in providing an electric line or electrical plant includes a reference to the capitalised value of any expenses likely to be so incurred in continuing to provide it.
(3) Where a distribution exemption holder is under a duty to make a connection under paragraph 7(2)—
(a) it may require the person requiring the connection to provide it with reasonable security for the payment to it under sub-paragraph (1) of amounts in respect of the provision of any electric lines or electrical plant that it is under a duty to provide; and
(b) if the person requiring the connection fails to provide any security required under paragraph (a), or any security given by the person requiring the connection becomes invalid or insufficient and that person fails to provide alternative or additional security, the distribution exemption holder may if it thinks fit—
(i) where the connection has not been made, refuse to provide the line or plant for so long as the failure continues, or
(ii) where the connection is being maintained, disconnect the premises or distribution system in question.
(4) Where any sum has been deposited with a distribution exemption holder by way of security under sub-paragraph (3) the distribution exemption holder must, on repaying the amount, also pay interest on that amount, calculated on a daily basis at the rate of 1 per cent above LIBOR, for the period beginning with the day following that on which the amount was deposited and ending on the day on which the amount is repaid.
(5) In sub-paragraph (4) “LIBOR”, in relation to any day, means the sterling three-month London inter-bank offered rate in force for that day rounded if necessary to two decimal places.
(6) Nothing in paragraph 7 is to be taken as requiring the distribution exemption holder to make a connection between its distribution system and any premises or other distribution system if and to the extent that—
(a) the distribution exemption holder is prevented from doing so by circumstances outside its control;
(b) circumstances exist by reason of which the connection would or might involve danger to the public, and the distribution exemption holder has taken all reasonable steps to prevent the circumstances from occurring and to prevent them from having that effect; or
(c) it is not reasonable in all the circumstances for the distribution exemption holder to be required to do so.
(7) Without prejudice to the generality of sub-paragraph (6), nothing in paragraph 7 is to be taken as requiring the distribution exemption holder to make a connection if any consent that is necessary for the connection to be made has not been given.
(8) A distribution exemption holder who is required to make a connection under paragraph 7(2) may require the person requiring the connection to accept, in respect of the making of the connection, any terms restricting any liability of the distribution exemption holder for economic loss resulting from negligence which it is reasonable in all the circumstances for that person to be required to accept.
(9) Sub-paragraphs (3)(b)(ii) and (6)(c), do not permit a distribution exemption holder to disconnect any premises or distribution system unless the distribution exemption holder has given the owner and the occupier of the premises or (as the case may be) the person who operates or has control of the distribution system not less than 7 working days’ notice of its intention to disconnect.
9. (1) This paragraph applies where a distribution exemption holder has a duty to make a connection under paragraph 7(2).
(2) Except where an agreement under paragraph 10(1) is in place, the distribution exemption holder must comply with the requirements of sub-paragraph (3) as soon as is reasonably practicable after the person requiring the connection has—
(a) served on the distribution exemption holder a notice requesting that the distribution exemption holder offer terms for making the connection; and
(b) provided the distribution exemption holder with the following information—
(i) details of the premises or distribution system from which the connection to the distribution exemption holder’s distribution system is required, including the location of the premises or distribution system,
(ii) the date on or by which the person requiring the connection proposes that the work necessary for the connection to be made should be carried out,
(iii) the maximum power at which electricity may be required to be conveyed through the connection,
(iv) details of any other requirements that the person requiring the connection has, including any metering requirements, and
(v) any other information in relation to the required connection reasonably requested by the distribution exemption holder.
(3) The distribution exemption holder must serve on the person requiring the connection a notice—
(a) raising any concerns that it has with the information provided in accordance with sub-paragraph (2)(b);
(b) proposing arrangements for any security that the person requiring the connection will be required to pay to it under paragraph 8(3);
(c) proposing arrangements for any payment that the person requiring the connection will be required to make under paragraph 8(1);
(d) stating any terms that the person requiring a connection will be required to accept under paragraph 8(8), restricting the distribution exemption holder’s liability; and
(e) proposing any other terms on which it will make the connection.
(4) The distribution exemption holder must negotiate in good faith with the person requiring the connection and endeavour to reach an agreement on the terms and conditions for that connection.
10. (1) The distribution exemption holder may enter into an agreement with a person requiring a connection in pursuance of paragraph 7(2) for the making of a connection on such terms as may be agreed by the parties.
(2) So long as the agreement is effective, the rights and liabilities of the parties shall be those arising under the agreement and not those provided for under paragraphs 7 to 9.
11. (1) Section 23 (determination of disputes) applies in relation to a dispute arising under paragraphs 7 to 9 of this Schedule as it applies to a dispute arising under sections 16 to 21, but as if—
(a) the references to an electricity distributor were to a distribution exemption holder;
(b) the references to a person requiring a connection were to a person requiring a connection in pursuance of paragraph 7(2); and
(c) the reference in subsection (3) to section 20(1) were to paragraph 8(3)(a).
(2) The reference in sub-paragraph (1)(b) to requiring a connection is to be construed in accordance with paragraph 7(5).
Closed distribution systems
12. (1) A distribution exemption holder may apply to the Authority for an exempt distribution system operated or controlled by it to be classified as a closed distribution system.
(2) Where the Authority has received an application from a distribution exemption holder under sub-paragraph (1) (a “closed distribution system application”), it must classify the distribution system as a closed distribution system if the Authority considers that all of the following criteria are met—
(a) the distribution system is not used for the purpose of supplying electricity to household customers, or is used to supply fewer than 50 household customers who—
(i) are employees of, or work for or otherwise render services to, the distribution exemption holder or a person related to the distribution exemption holder; and
(ii) take a supply of electricity that is wholly or mainly from a generating station embedded in the distribution system;
(b) the distribution system is wholly or mainly used for distributing electricity within a geographically self-contained industrial, commercial or shared services site and is not integrated with any distribution system operated or controlled by an electricity distributor, or any transmission system operated or controlled by the holder of a transmission licence; and
(c) the distribution system is wholly or mainly used either—
(i) by system users whose businesses, for technical or safety-related reasons, have operational or production processes that are integrated with those of other system users of that distribution system; or
(ii) for the purpose of supplying electricity to premises owned or occupied by the distribution exemption holder or by a person related to the distribution exemption holder.
(3) A closed distribution system application must—
(a) identify the distribution system to which the application relates;
(b) include any evidence available to the applicant to support that application; and
(c) provide any further information or documents that the Authority may request in respect of that application.
(4) The Authority must decide whether to classify a distribution system as a closed distribution system as soon as is reasonably practicable after the Authority has received—
(a) the closed distribution system application; and
(b) any further information or documents requested by it in under sub-paragraph (3)(c).
(5) The Authority must notify the distribution exemption holder of its decision as soon as is reasonably practicable after that decision has been made.
13. (1) Paragraph 5(1) to (8) does not apply in relation to any use of system charge (or proposed use of system charge) that relates to a closed distribution system.
(2) Where a distribution exemption holder that operates or has control of a closed distribution system receives an expression of interest from a customer who owns or occupies premises that are connected to that system, it must—
(a) include in any notice served under paragraph 1(4) a statement that its distribution system is a closed distribution system; and
(b) within 7 working days beginning with the day on which it receives the expression of interest, by notice inform any third party supplier identified in the expression of interest that its distribution system is a closed distribution system.
14. (1) Sub-paragraphs (2) and (3) apply if a customer has served an expression of interest with respect to a closed distribution system and—
(a) the customer, or a third party supplier identified in the expression of interest, serves a notice on the distribution exemption holder requesting that the methodology for a proposed use of system charge be submitted to the Authority for approval; and
(b) at the time of receiving the request the distribution exemption holder has not received any confirmation under paragraph 2(1) that the customer has entered into a contract with a third party supplier.
(2) From the time when the distribution exemption holder receives that request, paragraph 5(1) to (8) has effect in relation to the closed distribution system as if paragraph 13(1) did not have effect.
(3) For the purposes of the application of paragraph 5(2) in relation to the proposed use of system charge mentioned in sub-paragraph (1)(a), the reference in paragraph 5(3) to the “expression of interest” is to be read as a reference to the request mentioned in sub-paragraph (1)(a) above.
(4) Sub-paragraphs (5) to (11) apply where a customer who owns or occupies premises that are connected to a closed distribution system has served a notice under paragraph 2(1) confirming that it has entered into a contract with a third party supplier (“the confirmed third party supplier”) and—
(a) the customer or the confirmed third party supplier serves on the distribution exemption holder that operates or has control of the closed distribution system a notice requesting that the methodology for a use of system charge that is being applied by the distribution exemption holder be submitted to the Authority for approval;
(b) the methodology for calculating the charge has not previously been approved under this Schedule; and
(c) at the time of receiving the notice under paragraph (a), the distribution exemption holder has received the notice served under paragraph 2(1).
(5) The distribution exemption holder must, within 20 working days beginning with the day on which it receives the request under sub-paragraph (4)(a)—
(a) provide the Authority with—
(i) a charging statement in respect of the methodology for any use of system charge applied at the time of the request being made; and
(ii) such other information or documents as the Authority may specify; and
(b) provide the customer and the confirmed third party supplier with a copy of that charging statement.
(6) Where the Authority has requested further documents or information in accordance with sub-paragraph (5)(a)(ii) at a time when there are fewer than 10 working days remaining in the 20 working day period mentioned in sub-paragraph (5), those further documents or information must be provided within 10 working days beginning with the day of the distribution exemption holder’s receipt of that request for further documents or information.
(7) Where the distribution exemption holder has complied with sub-paragraph (5)(a), the Authority must, as soon as is reasonably practicable—
(a) decide whether to approve the methodology set out in the charging statement; and
(b) notify the distribution exemption holder and the confirmed third party supplier of its decision.
(8) Where the Authority does not approve the methodology, the Authority must give reasons for that decision.
(9) Where the Authority has notified the distribution exemption holder of a decision that it does not approve the methodology, the distribution exemption holder must not continue to impose a use of system charge, except where the Authority has considered the methodology for such a charge by virtue of sub-paragraph (11) and has approved it.
(10) Where the Authority does not approve the methodology submitted under sub-paragraph (5)(a) the distribution exemption holder may—
(a) submit to the Authority a charging statement containing details of a revised methodology;
(b) provide the Authority with such other information or documents as the Authority may specify; and
(c) send a copy of the charging statement to the customer and the confirmed third party supplier.
(11) If the distribution exemption holder takes the steps mentioned in sub-paragraph (10)(a) to (c), sub-paragraphs (7) and (8) apply as if it had complied with sub-paragraph (5)(a).
(12) Where at any time a distribution exemption holder wishes to modify a methodology that has previously been approved under this Schedule and is used by it for calculating a use of system charge levied for the use of a closed distribution system, the distribution exemption holder must—
(a) submit to the Authority a charging statement containing details of the proposed revised methodology;
(b) provide the Authority with a copy of such other information or documents as the Authority may request; and
(c) send a copy of the charging statement to the customer, the confirmed third party supplier and any other third party supplier who would be affected by the modification proposed.
(13) If the distribution exemption holder takes the steps mentioned in sub-paragraph (12)(a) to (c), sub-paragraphs (7) and (8) apply as if it had complied with sub-paragraph (5)(a).
Change of circumstance in respect of a closed distribution system
15. (1) If, after a system has been classified as a closed distribution system, there is a change of circumstance which affects, or might affect, whether the system continues to meet the criteria set out in paragraph 12(2), the distribution exemption holder that operates or has control of the distribution system must notify the Authority of the change as soon as is reasonably practicable after it occurs.
(2) If the distribution exemption holder that operates or has control of the distribution system wishes the system to continue to be classified as a closed distribution system, it must include in the notice an application to the Authority asking the Authority to confirm the classification.
(3) Any application under sub-paragraph (2) must—
(a) identify the distribution system to which the application relates;
(b) include any evidence available to the applicant to support that application; and
(c) provide any further information or documents that the Authority may request in respect of that application.
(4) Where the Authority has received a notice under sub-paragraph (1), it must, as soon as is reasonably practicable, either—
(a) revoke the classification; or
(b) confirm the classification if—
(i) the notice includes an application made under sub-paragraph (2);
(ii) the Authority has received any further information or documents requested by it; and
(iii) the Authority considers that the criteria set out in paragraph 12(2) continue to be met.
(5) The Authority must notify the applicant of its decision under sub-paragraph (4) as soon as is reasonably practicable after the decision has been made.
Interpretation
16. (1) In this Schedule—
“charging statement” (in relation to a distribution exemption holder who proposes to impose a use of system charge) is to be construed in accordance with paragraph 5(2)(b);
“closed distribution system” means a system classified as a closed distribution system by the Authority under paragraph 12(2);
“customer” means a person who purchases electricity for the person’s own consumption;
“expression of interest’ has the meaning given by paragraph 1(2);
“household customer” means a customer who purchases electricity for consumption by the customer’s own household;
“system user”, in relation to a distribution system, means—
a person supplying electricity that is being conveyed by means of that distribution system; or
a customer who owns or occupies premises that are connected to that distribution system;
“third party supplier”, in relation to a distribution exemption holder, means any authorised supplier that is not related to the distribution exemption holder;
“use of system charge”, in relation to a distribution exemption holder, means a charge which—
is levied by the distribution exemption holder on a third party supplier identified in an expression of interest that has been served on the distribution exemption holder; and
is for use of the exempt distribution system to which the expression of interest relates.
(2) For the purposes of this Schedule, a person (“A”) is related to another person (“B”) where A is—
(a) an undertaking in which B has a participating interest within the meaning of section 421A of the Financial Services and Markets Act 2000;
(b) a holding company of B;
(c) a subsidiary of B; or
(d) a subsidiary of a holding company of B.
(3) For the purposes of sub-paragraph (2) “holding company” and “subsidiary” are to be construed in accordance with section 1159 of the Companies Act 2006.
Section 5B
Change of supplier
1. (1) This paragraph applies if a supply exemption holder enters into a contract with a customer to start supplying electricity to any premises.
(2) The supply exemption holder must, within 7 days beginning with the day on which the contract is entered into, give any person who is currently supplying electricity to the premises a notice stating—
(a) that the contract has been entered into, and
(b) when the supply exemption holder will start supplying electricity to the premises.
(3) Subject to sub-paragraphs (4) and (7), the supply exemption holder must start supplying electricity to the premises within 21 days of the relevant date.
(4) The supply exemption holder need not comply with sub-paragraph (3) if—
(a) the customer requests that the supply start on a later date;
(b) the customer terminates, or gives notice to terminate, the contract; or
(c) one or more of the reasons in sub-paragraph (5) applies.
(5) The reasons in this sub-paragraph are—
(a) that the supply exemption holder—
(i) does not have all of the information it requires in order to start supplying electricity to the premises, despite having taken all reasonable steps to obtain the missing information from the customer; and
(ii) cannot readily obtain that information from another source;
(b) that the customer is taking a supply of electricity through an exempt distribution system and the supply exemption holder is unable to start supplying electricity to the premises because—
(i) a connection which the customer or supply exemption holder requires to be made in pursuance of paragraph 7(2) of Schedule 2ZA has not yet been made; or
(ii) the distribution exemption holder has specified, in a notice under paragraph 1(6)(a)(i) of Schedule 2ZA, a metering arrangement which it considers would be required for access to be given to a third party supplier (within the meaning of that Schedule) and that metering arrangement is not yet in place;
(c) that any other circumstance which is outside the control of the supply exemption holder and which it has taken all reasonably practicable steps to resolve prevents it from starting to supply electricity to the premises.
(6) If, because of a reason in sub-paragraph (5), a supply exemption holder is not required to start supplying electricity to the premises within 21 days of the relevant date, it must start supplying electricity to the premises as soon as is reasonably practicable after the reason ceases to apply, and in any event within 21 days of the date on which the reason ceases to apply (but if there is more than one reason, references in this sub-paragraph to a reason’s ceasing to apply are to all the reasons’ having ceased to apply).
(7) If another supply exemption holder is currently supplying electricity to the premises and has objected to the change of supplier under paragraph 2, then the supply exemption holder mentioned in sub-paragraph (1) above—
(a) must not start supplying electricity to the premises before that objection is resolved; but
(b) must start supplying electricity to the premises as soon as is reasonably practicable after the objection is resolved, and in any event within 21 days of the date on which the objection is resolved.
(8) For the purposes of sub-paragraph (7) an objection made under paragraph 2 is taken to be resolved—
(a) in the case of an objection based on the reason in paragraph 2(5)(a) alone—
(i) when the customer, or the supply exemption holder who made the objection, informs the supply exemption holder mentioned in sub-paragraph (1) above that the debt has been paid off in full, or
(ii) when an arrangement such as is mentioned in paragraph 2(5)(a)(iii) is made with respect to the debt;
(b) in the case of an objection based on the reason in paragraph 2(5)(b) alone, when the period mentioned in that paragraph expires;
(c) in the case of an objection based on both those reasons, when the objection has been resolved in relation to each reason in accordance with paragraphs (a) and (b) above; or
(d) in any case, when the objection is withdrawn.
(9) In this paragraph “the relevant date” means—
(a) the day after the day on which the supply exemption holder enters into the contract mentioned in sub-paragraph (1); or
(b) if, after the contract is entered into, there is a period within which the customer may decide not to proceed with it, the earlier of—
(i) the day after the day on which that period ends; or
(ii) the 14th day after the day on which the contract was entered into.
2. (1) This paragraph applies if—
(a) a person (“the new supplier”) has entered into a contract with a customer to start supplying electricity to any premises; and
(b) a supply exemption holder is currently supplying electricity to the premises under a contract with that customer.
(2) If one or more of the reasons in sub-paragraph (5) applies, the supply exemption holder may object to the change of supplier by sending notice of the objection and the reason (or reasons) for it to—
(a) the new supplier; and
(b) the customer.
(3) A notice under sub-paragraph (2) must be sent—
(a) as soon as reasonably practicable; and
(b) if the supply exemption holder is notified under paragraph 1(2), or in accordance with a condition in a licence, that the contract has been entered into, not later than the end of the 14th day after the day on which it receives that notification.
(4) If the supply exemption holder objects to a change of supplier because of the reason in sub-paragraph (5)(b), the notice of this objection must also state when the period mentioned in that sub-paragraph will expire.
(5) The reasons in this sub-paragraph are that—
(a) the customer owes money (“the debt”) to the supply exemption holder in respect of electricity supplied to the customer and—
(i) the supply exemption holder has demanded payment of the debt;
(ii) at least 28 days have passed since the date on which the demand was sent to the customer and any date for payment stated in the demand has also passed; and
(iii) the new supplier and the supply exemption holder have not agreed to an arrangement under which some or all of the debt will be assigned to the new supplier; or
(b) a contract between the supply exemption holder and the customer includes a term which prevents the customer from terminating that contract within a specified period which has not expired.
(6) The supply exemption holder must comply with any reasonable request from the new supplier to provide any information, or take any other steps, required to enable the new supplier to start supplying electricity to the customer’s premises.
3. (1) A supply exemption holder must not require a household customer to pay any sum in respect of a change of supplier by that household customer.
(2) Sub-paragraph (1) does not prevent a supply exemption holder from requiring payment of any termination fee payable under any contract between it and the household customer.
(3) A supply exemption holder must take all reasonable steps to ensure that a final bill in respect of any unpaid charges for electricity supplied to a household customer’s premises is sent to that customer within 6 weeks of the date on which the supply exemption holder stops supplying electricity to the premises.
Customer contracts
4. (1) Where a supply exemption holder enters into a contract with a household customer for the supply of electricity it must provide the customer with a copy of the contract.
(2) The contract must specify—
(a) the identity and address of the supply exemption holder;
(b) the services provided, including any maintenance services provided;
(c) any service quality levels that are to be met;
(d) if a connection is required, when that connection will take place;
(e) the means by which up-to-date information may be obtained about—
(i) any applicable tariffs and maintenance charges; and
(ii) the supply exemption holder’s standard terms and conditions;
(f) the duration of the contract;
(g) any conditions for renewal of the contract;
(h) any conditions for termination of the contract or of any services provided under it and whether the customer can terminate the contract if the supply exemption holder increases the applicable tariffs or charges, or changes one or more of the main contractual conditions;
(i) any charges for early termination of the contract;
(j) any compensation and refund arrangements which apply if any service quality levels specified in the contract are not met, including any arrangements which apply in the event of inaccurate or delayed billing;
(k) the methods of dispute resolution available to the customer in the event of a dispute with the supply exemption holder, including how such dispute resolution procedures can be initiated; and
(l) where further information on the customer’s rights as a consumer of electricity can be found.
(3) If a supply exemption holder intends to increase the applicable tariffs or charges payable under a contract with a household customer it must inform that customer of the change and of any applicable termination rights as soon as practicable and no later than the date on which the customer is first charged for electricity at the increased rate.
(4) If a supply exemption holder intends to change any of the main contractual conditions of a contract with a household customer it must inform that customer of the change and of any applicable termination rights at least one month before the change is to come into effect.
(5) Any charge made under the contract for offering a particular payment method, including any charge for use of a pre-payment meter, must reflect the cost to the supply exemption holder of making that payment method available.
(6) A supply exemption holder must not treat a household customer or group of household customers differently without good reason when offering different payment methods to customers.
(7) In this paragraph, “main contractual conditions” means any conditions of the contract which relate to a matter mentioned in any of paragraphs (b), (c) and (f) to (j) of sub-paragraph (2).
Customer information
5. (1) No later than 12 months after entering into a contract with a customer to start supplying electricity to any premises, and at intervals of not less than 12 months thereafter, a supply exemption holder must send the customer the information specified in sub-paragraph (3), (4) or (5) (whichever is applicable).
(2) But the supply exemption holder is required to specify the matters mentioned in sub-paragraphs (3)(b) and (4)(b) only so far as it is reasonably practicable to do so.
(3) If the customer is charged for its supply wholly or partly by reference to the quantity of electricity supplied and a meter records the quantity supplied to that customer separately from the quantity supplied to other customers, the information in question is—
(a) the number of that meter if it has one;
(b) the amount of electricity recorded by that meter as having been consumed by that customer in the 12 months immediately preceding the date on which the information is sent (or in the part of the period during which the supply exemption holder supplied electricity to those premises under the contract with the customer); and
(c) the total cost that the customer has been charged for that electricity.
(4) If the customer is charged for its supply wholly or partly by reference to the quantity of electricity supplied and that quantity is not recorded using a separate meter, the information in question is—
(a) the number of any meter that recorded the total electricity consumed by that customer and other customers in the 12 months immediately preceding the date on which the information is sent (or in any part of that period during which the supply exemption holder supplied electricity to those premises under the contract with the customer);
(b) the amount of electricity recorded by that meter; and
(c) an explanation as to how the proportion of electricity charged to the customer was determined.
(5) If the customer is not charged for its supply by reference to the quantity of electricity supplied, the information in question is the total cost that the customer has been charged for that electricity in the 12 months immediately preceding the date on which the information is sent.
(6) A supply exemption holder who is supplying electricity to any premises under a contract with a customer must comply with any written request by the customer to send relevant information—
(a) to the customer, or
(b) to a person who is not currently supplying electricity to the premises under a contract with the customer but has expressed an interest in doing so.
(7) In sub-paragraph (6) “relevant information” means—
(a) if information has been sent to a customer in accordance with sub-paragraph (1) in the previous 12 months, a copy of that information;
(b) in any other case, so much of the information referred to in sub-paragraph (1) as can be readily provided by the supply exemption holder.
(8) A supply exemption holder must not require a customer to pay for any costs associated with preparing or sending information to the customer, or to any other person at the customer’s request, in accordance with this paragraph.
6. (1) A supply exemption holder must, so far as is reasonably practicable to do so, inform each customer with each bill of the following matters—
(a) what sources of energy were used to generate the electricity supplied in the period covered by that bill;
(b) the proportions in which the sources of energy were used; and
(c) where further information can be found about the environmental impact of generating electricity using those sources of energy.
(2) A supply exemption holder must, at the end of any period of 12 months during which it has supplied a customer with electricity but has neither sent a bill nor provided the customer with information under this sub-paragraph, provide the customer with the information required by sub-paragraph (1) (but for this purpose sub-paragraph (1)(a) is to be read as if the reference to the period covered by the bill were to the period of 12 months mentioned in this sub-paragraph).
(3) A supply exemption holder must not require a customer to pay for any costs associated with preparing or sending information to the customer in accordance with this paragraph.
7. (1) A supply exemption holder must—
(a) with each bill inform each customer what methods of dispute resolution are available to the customer in the event of a dispute with the supply exemption holder; and
(b) with each bill inform each household customer—
(i) where the energy consumer guidance and the concise consumer guidance can be found; and
(ii) that the household customer has a right to request a copy of the concise guidance from the supply exemption holder.
(2) At the end of any period of 12 months during which a supply exemption holder has supplied a customer with electricity but has not sent a bill (nor provided the customer with information under this sub-paragraph) the supply exemption holder must inform the customer of—
(a) the matters mentioned in sub-paragraph (1)(a), and
(b) if the customer is a household customer, the matters mentioned in sub-paragraph (1)(b).
(3) A supply exemption holder must send a household customer a copy of the concise guidance within one month of receiving a request for it from or on behalf of that customer.
(4) A supply exemption holder must not require a customer to pay for any costs associated with preparing or sending information to the customer in accordance with this paragraph.
(5) In this paragraph—
(a) “the energy consumer guidance” means any guidance such as is mentioned in section 19A(1)(a) of the Consumers, Estate Agents and Redress Act 2007 which is published under that section; and
(b) “the concise guidance” means any summary such as is mentioned in section 19A(1)(b) of that Act which is so published.
Determination of disputes
8. (1) Sections 44C and 44D apply in relation to an exempt supply dispute as they apply in relation to a section 44B dispute such as is mentioned in section 44C(1), but as if in section 44C(8) the words “against whom a complaint is made as mentioned in section 44B(1)(a), and” were omitted.
(2) A dispute is an “exempt supply dispute” if—
(a) it is wholly or mainly a dispute—
(i) regarding an obligation of a supply exemption holder under this Schedule; or
(ii) as to whether a supply exemption holder who has objected to a change of supplier because of a reason in paragraph 2(5) of this Schedule was entitled to object on that basis;
(b) it arises from a written complaint made against the supply exemption holder; and
(c) it is a dispute between the complainant and that supply exemption holder.
Interpretation
9. In this Schedule—
“customer” means a person who purchases electricity for the person’s own consumption;
“household customer” means a customer who purchases electricity for consumption by the customer’s own household.
SECTION 6E
Scheme-making power
1 (1) This paragraph applies where a tender exercise is held in relation to a relevant electricity project, a relevant licence or a relevant contract.
(2) The Authority may, on an application under paragraph 3, make a scheme (“a property scheme”) providing for—
(a) the transfer to the successful bidder of, or
(b) the creation in favour of the successful bidder of rights in relation to,
any property, rights or liabilities necessary or expedient for construction, commissioning or operational purposes.
Further provision about the content of a scheme
2 (1) A property scheme may also contain—
(a) provision for the creation, in relation to property which the scheme transfers, of an interest in or right over the property in favour of the asset owner;
(b) provision for the creation of any rights or liabilities as between the asset owner and the successful bidder;
(c) provision for imposing on the asset owner or the successful bidder an obligation to enter into a written agreement with, or to execute an instrument of another kind in favour of, the other;
(d) provision requiring the successful bidder to pay the asset owner compensation;
(e) provision requiring the asset owner to pay the successful bidder compensation;
(f) supplemental, incidental and consequential provision.
(2) The property, rights and liabilities which may be transferred by a property scheme include property, rights or liabilities which would not otherwise be capable of being transferred.
(3) If a property scheme provides for the division of an estate or interest in land and any rent is—
(a) payable in respect of the estate or interest under a lease, or
(b) charged on the estate or interest,
the scheme may contain provision for apportionment or division so that one part is payable in respect of, or charged on, only one part of the estate or interest and the other part is payable in respect of, or charged on, only the other part of the estate or interest.
(4) A property scheme which contains provision which affects a third party may also contain provision requiring the successful bidder or the asset owner to pay the third party compensation.
(5) A property scheme may not contain provision for the transfer of, or creation of rights in relation to, property, rights or liabilities that the Authority considers it appropriate for the successful bidder to acquire by other means.
Applications for schemes
3 (1) An application for a property scheme may be made by—
(a) the preferred bidder,
(b) the successful bidder, or
(c) a person who owns the property, rights and liabilities in relation to which provision of a kind mentioned in paragraph 1(2) is proposed to be included in the scheme.
(2) An application must specify—
(a) the property, rights and liabilities in relation to which provision of a kind mentioned in paragraph 1(2) is proposed to be included in the scheme,
(b) the name and address of the non-applicant party, and
(c) the name and address of each third party whom the applicant considers would be affected by a provision of the proposed property scheme.
(3) All property, rights and liabilities specified in an application in accordance with sub-paragraph (2)(a) must belong to the same person.
(4) A person may make more than one application under this paragraph.
Timing of applications
4 An application for a property scheme, in relation to a tender exercise, may only be made at a time when—
(a) a notice identifying the preferred bidder has been published under paragraph 35(2) (and not withdrawn), or
(b) a notice has been published under paragraph 36 identifying the successful bidder.
5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Notifying the non-applicant party
6 (1) On receipt of an application for a property scheme, the Authority must serve on the non-applicant party a notice which—
(a) invites the non-applicant party to make representations to the Authority about the application within the period specified in the notice (being not less than 21 days) beginning with the day on which the notice is served, and
(b) describes the effect of paragraphs 9 and 11.
(2) A notice under sub-paragraph (1) must be accompanied by—
(a) a copy of the application, and
(b) a notice under paragraph 16 which complies with the requirements of sub-paragraph (3).
(3) The notice under paragraph 16 must require the non-applicant party to provide the Authority, within the period specified in the notice (being not less than 7 days) beginning with the day on which the notice is served, with—
(a) the name and address of each person to whom sub-paragraph (4) applies, or
(b) if the non-applicant party does not consider that there is any person to whom that sub-paragraph applies, a statement to that effect.
(4) This sub-paragraph applies to a person—
(a) whom the non-applicant party considers is a third party who would be affected by a provision of the proposed property scheme, and
(b) whose name and address were not specified in the application under paragraph 3(2)(c).
Notifying third parties
7 (1) As soon as reasonably practicable after receiving the information required by a notice within paragraph 6(2)(b), the Authority must serve on each person within sub-paragraph (2)—
(a) a copy of the application, and
(b) a notice inviting that person to make representations to the Authority about the application within the period specified in the notice (being not less than 21 days) beginning with the day on which the notice is served.
(2) A person is within this sub-paragraph if the person's name and address were—
(a) specified in the application in accordance with paragraph 3(2)(c), or
(b) provided to the Authority in response to a notice within paragraph 6(2)(b).
Publishing the application
8 As soon as reasonably practicable after an application is made for a property scheme, the Authority must publish a notice which—
(a) states that an application for a property scheme has been made,
(b) states the names of the applicant and the non-applicant party, and
(c) contains a general description of the property scheme to which the application relates.
Supplementing the application
9 (1) The non-applicant party may, by notice served on the Authority during the period mentioned in paragraph 6(1)(a), modify the application so as to specify additional property, rights or liabilities of the asset owner in relation to which provision of a kind mentioned in paragraph 1(2) is proposed to be included in the scheme.
(2) Where an application is modified by a notice under sub-paragraph (1) (a “modification notice”), this Schedule has effect from that time as if any additional property, rights or liabilities specified in the notice had been specified in the application in accordance with paragraph 3(2)(a).
(3) A modification notice must specify the name and address of each person—
(a) whom the non-applicant party considers to be a third party who would be affected by a provision of the proposed property scheme as modified by the notice, and
(b) who is not within paragraph 7(2).
(4) On receipt of a modification notice, the Authority must serve on the applicant a notice (a “warning notice”) which invites the applicant to make representations to the Authority about the modification notice within the period specified in the warning notice (being a period of not less than 21 days) beginning with the day on which the warning notice is served.
(5) A warning notice must be accompanied by—
(a) a copy of the modification notice,
(b) a notice under paragraph 16 which complies with the requirements of sub-paragraph (6), and
(c) a copy of any information provided by the non-applicant to the Authority in response to a notice within paragraph 6(2)(b).
(6) The notice under paragraph 16 must require the applicant to provide the Authority, within the period specified in the notice (being not less than 7 days) beginning with the day on which the notice is served, with—
(a) the name and address of each person to whom sub-paragraph (7) applies, or
(b) if the applicant does not consider that there is any person to whom that sub-paragraph applies, a statement to that effect.
(7) This sub-paragraph applies to a person—
(a) whom the applicant considers is a third party who would be affected by a provision of the proposed property scheme as modified by the modification notice, and
(b) whose name and address were not—
(i) specified in the application in accordance with paragraph 3(2)(c),
(ii) provided to the Authority in response to a notice within paragraph 6(2)(b), or
(iii) specified in the modification notice under sub-paragraph (3).
(8) As soon as reasonably practicable after receiving the information required by a notice within sub-paragraph (5)(b), the Authority must serve on each person within sub-paragraph (9) a notice inviting that person to make representations to the Authority about the modification notice within the period specified in the notice (being a period of not less than 21 days) beginning with the day on which the notice is served.
(9) A person is within this sub-paragraph if the person's name and address were—
(a) specified in the application in accordance with paragraph 3(2)(c),
(b) provided to the Authority in response to a notice within paragraph 6(2)(b) or sub-paragraph (5)(b) of this paragraph, or
(c) specified in the modification notice.
(10) A notice under sub-paragraph (8) must be accompanied by—
(a) a copy of the modification notice, and
(b) if a copy of the application has not previously been served on the person under paragraph 7(1), a copy of the application.
10 As soon as reasonably practicable after the Authority receives a modification notice, the Authority must publish a notice which—
(a) states that a modification notice has been served on the Authority in relation to an application,
(b) states the names of the applicant and the non-applicant party in relation to the application, and
(c) contains a general description of the modifications made to the application by the modification notice.
Restricting or withdrawing the application
11 (1) Where an application for a property scheme has been made, the applicant and the non-applicant party may, by a notice served by them jointly on the Authority—
(a) restrict the property, rights and liabilities in relation to which provision of a kind mentioned in paragraph 1(2) is proposed, or
(b) withdraw the application.
(2) Where a notice is served under sub-paragraph (1) the Authority must serve a copy of the notice on any person served with a notice in relation to the application under paragraph 7(1) or 9(8).
(3) A notice may be served under sub-paragraph (1) at any time before a property scheme is made in response to the application.
(4) If, at any time, a notice specifying the preferred bidder, in relation to a tender exercise, is withdrawn under paragraph 35, any application for a property scheme previously made, in relation to that exercise, by the preferred bidder or by the asset owner (unless previously withdrawn under sub-paragraph (1)) is treated as withdrawn at that time.
(5) Where an application is withdrawn by virtue of sub-paragraph (4), the Authority must serve notice to that effect on—
(a) the asset owner, and
(b) any person served with a notice in relation to the application under paragraph 7(1) or 9(8).
(6) If a notice is served under sub-paragraph (1) or an application is withdrawn by virtue of sub-paragraph (4), the Authority may direct the applicant or the non-applicant party (or both) to make a payment to a person within sub-paragraph (7) in respect of the costs incurred by such a person in connection with the application.
(7) Those persons are—
(a) the Authority;
(b) any third party affected by a provision of the proposed property scheme.
(8) A determination under sub-paragraph (6) must be made on the basis of what is just in all the circumstances of the case.
(9) The Authority must serve notice of a direction given under sub-paragraph (6) on—
(a) the applicant (if not the recipient of the direction),
(b) the non-applicant party (if not the recipient of the direction), and
(c) any person served with a notice in relation to the application under paragraph 7(1) or 9(8).
(10) Any sums received by the Authority under sub-paragraph (6) are to be paid into the Consolidated Fund.
The Authority's functions in relation to applications
12 (1) On an application for the making of a property scheme, the Authority must determine whether the proposed provision in relation to any property, right or liability specified in the application in accordance with paragraph 3(2)(a) is necessary or expedient for construction, commissioning or operational purposes.
(2) Sub-paragraph (1) does not apply, in relation to any property, right or liability specified in the application, if the successful bidder and the asset owner agree that the proposed provision, in relation to that property, right or liability, is necessary or expedient for construction, commissioning or operational purposes.
(3) If the Authority determines under sub-paragraph (1) that the proposed provision, in relation to any property, right or liability specified in the application, is not necessary or expedient for construction, commissioning or operational purposes—
(a) it must refuse the application in relation to the property, right or liability, but
(b) it may serve on the applicant and the non-applicant party a notice proposing, in relation to the property, right or liability, alternative provision of a kind mentioned in paragraph 1(2).
(4) A notice under sub-paragraph (3)(b) must—
(a) invite the recipient to make representations to the Authority about the proposed alternative provision within the period specified in the notice (being not less than 21 days) beginning with the day on which the notice is served, and
(b) be accompanied by a notice under paragraph 16 which complies with the requirements of sub-paragraph (5).
(5) The notice under paragraph 16 must require the recipient of the notice to provide the Authority, within the period specified in the notice (being not less than 7 days) beginning with the day on which the notice is served, with—
(a) the name and address of each person to whom sub-paragraph (6) applies, or
(b) if the recipient does not consider that there is any such person, a statement to that effect.
(6) This sub-paragraph applies to a person—
(a) whom the recipient of the notice considers is a third party who would be affected by the Authority's proposed alternative provision, and
(b) whose name and address were not—
(i) specified in the application in accordance with paragraph 3(2)(c) or in a modification notice under paragraph 9(3), or
(ii) provided to the Authority in response to a notice within paragraph 6(2)(b) or 9(5)(b).
(7) As soon as reasonably practicable after receiving the information required by a notice within sub-paragraph (4)(b), the Authority must serve on each person within sub-paragraph (8)—
(a) if a copy of the application has not previously been served on the person under paragraph 7(1) or 9(8), a copy of the application,
(b) if a copy of any modification notice has not previously been served on the person under paragraph 9(8), a copy of the notice,
(c) a copy of the notice served under sub-paragraph (3)(b), and
(d) a notice inviting that person to make representations to the Authority about the proposed alternative provision within the period specified in the notice beginning with the day on which the notice is served.
(8) A person is within this sub-paragraph if the person's name and address were—
(a) specified in the application in accordance with paragraph 3(2)(c) or in a modification notice under paragraph 9(3),
(b) provided to the Authority in response to a notice within sub-paragraph (4)(b) or paragraph 6(2)(b) or 9(5)(b).
(9) The period specified under sub-paragraph (7)(d) must be not less than—
(a) in the case of a person whose name and address were provided to the Authority in response to a notice within sub-paragraph (4)(b), 21 days, and
(b) in any other case, 14 days.
(10) Having considered any representations made in accordance with sub-paragraph (4)(a) or (7)(d), the Authority must determine whether the proposed alternative provision is necessary or expedient for construction, commissioning or operational purposes.
(11) If—
(a) the Authority determines under sub-paragraph (1) that the proposed provision, in relation to any property, right or liability specified in the application, is necessary or expedient for construction, commissioning or operational purposes,
(b) the successful bidder and the asset owner agree that that is the case, or
(c) the Authority determines under sub-paragraph (10) that the proposed alternative provision, in relation to any property, right or liability, is necessary or expedient for construction, commissioning or operational purposes,
the Authority must, subject to paragraphs 13 and 14(4), make a property scheme in relation to that property, right or liability.
(12) In this paragraph “the proposed provision”, in relation to any property, right or liability, means the provision of a kind mentioned in paragraph 1(2) which the application proposes is made in relation to that property, right or liability (having regard to any modification under paragraph 9 or restriction under paragraph 11).
13 On an application for a property scheme, no scheme may be made until either a relevant licence has been granted or a relevant contract has been awarded to the successful bidder.
Terms of a property scheme
14 (1) Where the Authority is required to make a property scheme, the terms of the scheme must be such as the successful bidder and the asset owner may agree or, if they fail to agree, as the Authority may determine.
This is subject to sub-paragraphs (2) to (9).
(2) A property scheme must not provide for any provision to come into operation before the end of the period of 21 days beginning with the day on which the scheme is made.
(3) In determining the terms of a scheme under sub-paragraph (1), the Authority must, in particular, determine whether the scheme should include provision for compensation to be paid—
(a) by the successful bidder to the asset owner, or
(b) by the asset owner to the successful bidder,
and, if so, what that provision should be.
(4) The Authority may not include in a property scheme provision which would adversely affect a third party unless it determines that it is necessary or expedient for construction, commissioning or operational purposes for the provision to be made.
(5) Where the Authority includes in a property scheme provision which would adversely affect a third party, the Authority must determine whether the scheme should include provision for compensation and, if so, what that provision should be.
(6) The Authority may include in a property scheme provision for payments to be made by the successful bidder or the asset owner (or both) in respect of costs incurred in connection with the scheme (including the application for the scheme) by—
(a) the Authority,
(aa) a delivery body,
(ab) a contract counterparty,
(b) the successful bidder,
(c) the asset owner, or
(d) a third party affected by a provision of the property scheme.
(7) For the purposes of making a determination under sub-paragraph (6), the Authority may have regard to the conduct of the parties mentioned in sub-paragraph (6)(a) to (d).
(8) Any sums received by the Authority under sub-paragraph (6) are to be paid into the Consolidated Fund.
(9) For the purposes of this paragraph, a provision of a property scheme adversely affects a third party if that party—
(a) is affected by the provision (see paragraph 38(2)), and
(b) does not consent to the making of the provision by means of the scheme.
15 (1) A determination under paragraph 14, so far as relating to any financial matter, must be made on the basis of what is just in all the circumstances of the case.
(2) A determination under paragraph 14, so far as relating to any other matter, must be made on the basis of what appears to the Authority to be appropriate in all the circumstances of the case having regard, in particular, to what is necessary or expedient for construction, commissioning or operational purposes.
Additional powers of the Authority
16 (1) The Authority may, by notice, require any of the following persons to provide information or assistance in connection with the performance by the Authority of its functions under this Schedule—
(a) the preferred bidder in relation to a tender exercise;
(b) the successful bidder in relation to a tender exercise;
(c) the asset owner in relation to a property scheme or an application for such a scheme;
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(e) any third party who is or may be affected by a provision of a property scheme or a proposed property scheme.
(2) If the Authority considers that any other person may be able to provide it with information in respect of any provision of a property scheme or proposed property scheme, it may, by notice, require the person to provide it with such information.
(3) A notice under this paragraph may specify the period within which the information or assistance is to be provided.
(4) If at any time it appears to the Authority that a person has failed to comply with a requirement under sub-paragraph (1) or (2), the Authority may make an application to the court under this paragraph.
(5) If, on an application under this paragraph, the court decides that the person has failed to comply with the requirement, it may order the person to take such steps as the court directs for securing that the requirement is complied with.
(6) In this paragraph “the court” means—
(a) in the case of an application made in England and Wales, the High Court, and
(b) in the case of an application made in Scotland, the Court of Session.
17 The Authority may engage consultants for the purpose of advising it in relation to the making of a determination under this Schedule.
Notification of property scheme
18 (1) This paragraph applies where the Authority makes a property scheme.
(2) The Authority must, as soon as reasonably practicable, serve a copy of the scheme on—
(a) the successful bidder,
(b) the asset owner, and
(c) each third party affected by the scheme whose name and address was—
(i) specified in the application for the scheme in accordance with paragraph 3(2)(c) or in a modification notice in relation to that application in accordance with paragraph 9(3), or
(ii) provided to the Authority in response to a notice within paragraph 6(2)(b), 9(5)(b) or 12(4)(b).
(3) The Authority must, as soon as reasonably practicable, publish a notice which—
(a) states that a property scheme has been made,
(b) states the names of the successful bidder and the asset owner in relation to the scheme, and
(c) contains a general description of the provision made by the scheme.
Refusal of application or part of application
19 (1) This paragraph applies where the Authority—
(a) determines to refuse an application for a property scheme so far as it relates to any property, right or liability specified in the application in accordance with paragraph 3(2)(a), or
(b) determines not to make any alternative provision proposed under paragraph 12(3)(b) in relation to any such property, right or liability.
(2) The Authority must, as soon as reasonably practicable, serve a notice giving details of the determination on each person mentioned in paragraph 18(2)(a) to (c).
(3) The Authority may direct the successful bidder or the asset owner to make a payment in respect of the costs incurred in connection with the application by—
(a) the Authority,
(b) the successful bidder,
(c) the asset owner, or
(d) a third party affected by a provision of the proposed property scheme or any alternative provision proposed under paragraph 12(3)(b).
(4) The Authority must serve notice of a direction given under sub-paragraph (3) on—
(a) the successful bidder (if not the recipient of the direction),
(b) the asset owner (if not the recipient of the direction), and
(c) any person served with a notice in relation to the application under paragraph 7(1), 9(8) or 12(7).
(5) A determination under sub-paragraph (3) must be made on the basis of what is just in all the circumstances of the case.
(6) Any sums received by the Authority under sub-paragraph (3) are to be paid into the Consolidated Fund.
Effect of property scheme
20 A property scheme, by virtue of this paragraph, has effect according to its terms.
21 (1) A transaction of any description effected by or under a property scheme has effect subject to the provisions of any enactment which provides for transactions of that description to be registered in any statutory register.
(2) Subject to that, a transaction of any description effected by or under a property scheme is binding on all persons, despite the fact that it would, apart from this provision, have required the consent or concurrence of any person.
(3) In this paragraph “enactment” includes an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament.
22 Where—
(a) an amount of compensation is owed to a person in accordance with a property scheme, or
(b) an amount in respect of costs is owed to a person in accordance with such a scheme or with a direction under paragraph 11(6) or 19(3),
the amount may be recovered by that person.
Review of determinations
23 (1) Any person affected by a determination of the Authority under this Schedule may apply to the Competition Appeal Tribunal for a review of the determination.
(2) An application under sub-paragraph (1) may be made—
(a) during the relevant appeal period, or
(b) with the permission of the Competition Appeal Tribunal, at a later time.
(3) The relevant appeal period means—
(a) where the application is in respect of a determination relating to a property scheme which has been made by the Authority, 21 days beginning with the day on which a notice in respect of the scheme is published under paragraph 18(3);
(b) in any other case, 21 days beginning with the day on which the determination was made.
(4) On an application under sub-paragraph (1), the Competition Appeal Tribunal may by order—
(a) dismiss the application, or
(b) make such other determination as it considers appropriate.
24 (1) This paragraph applies where—
(a) the Competition Appeal Tribunal makes an order under paragraph 23(4)(b), and
(b) the Authority has not made a property scheme in relation to the property, rights or liabilities concerned.
(2) The Tribunal may include in the order provision requiring the Authority to make a property scheme in relation to that property, or those rights and liabilities.
(3) Where paragraph 14 applies because of provision under this paragraph, anything the Tribunal has determined is to be treated for the purposes of that paragraph as determined by the Authority.
25 (1) This paragraph applies where—
(a) the Competition Appeal Tribunal makes an order under paragraph 23(4)(b),
(b) the Authority has made a property scheme in relation to the property, rights or liabilities concerned, and
(c) the scheme has not come into operation.
(2) Where the Tribunal's determination is that provision of a kind mentioned in paragraph 1(2) is not, in relation to the property, rights or liabilities concerned, necessary or expedient for construction, commissioning or operational purposes, it may include in the order provision quashing the scheme.
(3) In any other case, the Tribunal may include in the order—
(a) provision for the scheme to have effect with such amendments with respect to any matter dealt with by the Authority's determination as it thinks fit, and
(b) to the extent that the Authority's determination dealt with any financial matter, provision requiring the Authority to redetermine the matter in accordance with the order and to amend the scheme accordingly.
26 (1) This paragraph applies where—
(a) the Competition Appeal Tribunal makes an order under paragraph 23(4)(b),
(b) the Authority has made a property scheme in relation to the property, rights or liabilities concerned, and
(c) the scheme has come into operation.
(2) The Tribunal may include in the order such provision as it thinks fit for the purpose of doing justice between—
(a) the successful bidder,
(b) the person who was the asset owner immediately before the scheme came into operation, and
(c) any third party affected by the scheme,
in the light of its determination.
(3) Without prejudice to the generality of sub-paragraph (2), the Tribunal may include in the order—
(a) provision for the transfer of anything transferred by the scheme;
(b) provision for the surrender or extinction of rights;
(c) provision for the payment of compensation to the successful bidder or the person who was the asset owner immediately before the scheme came into operation;
(d) provision for the payment of compensation to a third party affected by the scheme;
(e) provision about the payment of costs of the kind mentioned in paragraph 14(6).
(4) Any sums received by the Authority by virtue of sub-paragraph (3)(e) are to be paid into the Consolidated Fund.
27 (1) An order under paragraph 23(4)(b) may include provision for the award of interest at such rate and for such period as the Competition Appeal Tribunal thinks fit.
(2) Where the application made under paragraph 23(1) is for a review of a determination under paragraph 11(6) or 19(3), the Tribunal may include in an order under paragraph 23(4)(b) one or both of the following—
(a) provision amending or revoking any direction made as a result of the determination;
(b) provision equivalent to any direction which could have been made by the Authority under paragraph 11(6) or 19(3).
Interim arrangements pending review of determination
28 (1) This paragraph applies where—
(a) a person makes an application under paragraph 23(1) for the review of a determination, and
(b) the Authority has not made a property scheme in relation to the property, rights or liabilities to which the determination relates.
(2) The Competition Appeal Tribunal may, at any time before an order is made under paragraph 23(4), on application by the successful bidder or the asset owner make such interim arrangements as it thinks fit with respect to the property, rights or liabilities concerned.
(3) Without prejudice to the generality of sub-paragraph (2), the power under that sub-paragraph includes, in particular, power to make provision for the successful bidder to have access to, or otherwise to enjoy the benefit of, any of the property or rights concerned for such period, and on such terms, as the Tribunal thinks fit.
29 (1) This paragraph applies where—
(a) a person makes an application under paragraph 23(1) for the review of a determination, and
(b) the Authority has made a property scheme in relation to the property, rights or liabilities to which the determination relates.
(2) The Competition Appeal Tribunal may, at any time before an order is made under paragraph 23(4), on application by—
(a) the successful bidder,
(b) if the scheme has not come into operation, the asset owner,
(c) if the scheme has come into operation, the person who was the asset owner immediately before it did so, or
(d) a third party who is affected by any provision of the property scheme,
make such interim arrangements as it thinks fit with respect to the property, rights or liabilities concerned.
(3) Without prejudice to the generality of sub-paragraph (2), the power under that sub-paragraph includes, in particular, power—
(a) to make provision postponing or suspending the operation of any provision of the scheme for such period, and on such terms, as the Tribunal thinks fit;
(b) to make provision for the successful bidder, or an applicant within sub-paragraph (2)(c), to have access to, or otherwise to enjoy the benefit of, any of the property or rights concerned for such period and on such terms as the Tribunal thinks fit.
30 In exercising its powers under paragraph 28 or 29, the Competition Appeal Tribunal must have regard, in particular, to what is necessary or expedient for construction, commissioning or operational purposes.
31 Paragraphs 28 or 29 are without prejudice to any powers of the Competition Appeal Tribunal to make orders on an interim basis under rules under section 15 of the Enterprise Act 2002 (c. 40).
32 (1) If an order under paragraph 28 or 29 is registered in England and Wales in accordance with rules of court or any practice direction, it is enforceable as an order of the High Court.
(2) An order under paragraph 28 or 29 may be recorded for execution in the Books of Council and Session and is to be enforceable accordingly.
(3) Subject to rules of court or any practice direction, an order under paragraph 28 or 29 may be registered or recorded for execution by a person entitled to any right under the interim arrangements for which the order makes provision.
(4) Sub-paragraphs (1) to (3) apply to an order on an interim basis made under rules under section 15 of the Enterprise Act 2002 in connection with an application under paragraph 23(1) as they apply to an order under paragraph 28 or 29.
Appeal on a point of law
33 (1) An appeal lies on any point of law arising from a decision of the Competition Appeal Tribunal under this Schedule to the appropriate court.
(2) An appeal under this paragraph requires the permission of the Tribunal or of the appropriate court.
(3) In this paragraph “the appropriate court” means—
(a) in the case of Tribunal proceedings in England and Wales, the Court of Appeal, and
(b) in the case of Tribunal proceedings in Scotland, the Court of Session.
Change of asset owner during application process
34 (1) Where any property, rights or liabilities specified in an application in accordance with paragraph 3(2)(a) are transferred by the asset owner to another person (“the new asset owner”) after the application is made, this Schedule has effect as if—
(a) references to the asset owner included the new asset owner, and
(b) anything done by or in relation to the asset owner had been done by or in relation to the new asset owner.
(2) In the case of property, rights or liabilities treated as specified in an application by virtue of paragraph 9(2), sub-paragraph (1) applies as if for “the application is made” there were substituted “ the modification notice is served on the Authority ”.
The preferred bidder
35 (1) The preferred bidder, in relation to a tender exercise, is the person whose name and address is specified in a notice which has been published under sub-paragraph (2) (and has not been withdrawn under sub-paragraph (4)).
(2) Where a tender exercise is held, as soon as the Authority is satisfied that it will grant a relevant licence to a particular person if certain matters are resolved to the Authority's satisfaction, it must publish a notice to that effect.
(2A) Where a tender exercise is held, as soon as a contract counterparty is satisfied that it will enter into a relevant contract with a particular person if certain matters are resolved to the counterparty’s satisfaction, it must publish a notice to that effect.
(3) A notice under sub-paragraph (2) or (2A) must—
(a) specify the name and address of the person, and
(b) describe, in general terms, those matters.
(4) The Authority may withdraw a notice under sub-paragraph (2) by publishing a notice to that effect.
(4A) A contract counterparty may withdraw a notice given by it under sub-paragraph (2A) by publishing a notice to that effect.
(5) A notice published under sub-paragraph (2) or (2A) must be withdrawn before a subsequent notice may be published under that sub-paragraph in relation to the same tender exercise.
The successful bidder
36 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2) Where as a result of a tender exercise the Authority determines to grant a relevant licence to a person, it must publish a notice to that effect.
(2A) Where as a result of a tender exercise a person is awarded a relevant contract, the contract counterparty with which the contract is to be entered into must publish a notice to that effect.
(3) The notice must specify the name and address of the successful bidder.
Transmission owner and distribution network owner of last resort
36A (1) Before directing the holder of a transmission licence to act as a transmission owner of last resort pursuant to the conditions of the licence, the Authority may publish a notice—
(a) stating that it proposes to give the direction, and
(b) identifying the licence holder to whom it proposes to give the direction.
(2) Where a notice is published under sub-paragraph (1), this Schedule has effect as if—
(a) the licence holder is the preferred bidder in relation to a tender exercise, and
(b) the notice is one published under paragraph 35(2), identifying the licence holder as the preferred bidder.
(3) Paragraph 35(4) applies in relation to a notice published under sub-paragraph (1) of this paragraph as it applies to a notice published under paragraph 35(2).
(4) Where the Authority directs the holder of a transmission licence to act as a transmission owner of last resort pursuant to the conditions of the licence, this Schedule has effect as if—
(a) the licence holder is the holder of a transmission licence granted as a result of a tender exercise in which the licence holder was the successful bidder, and
(b) a notice has been published under paragraph 36 identifying the licence holder as the successful bidder in relation to the tender exercise.
36B (1) Before directing the holder of a distribution licence to act as a distribution network owner of last resort pursuant to the conditions of the licence, the Authority may publish a notice—
(a) stating that it proposes to give the direction, and
(b) identifying the licence holder to whom it proposes to give the direction.
(2) Where a notice is published under sub-paragraph (1), this Schedule has effect as if—
(a) the licence holder is the preferred bidder in relation to a tender exercise, and
(b) the notice is one published under paragraph 35(2), identifying the licence holder as the preferred bidder.
(3) Paragraph 35(4) applies in relation to a notice published under sub-paragraph (1) of this paragraph as it applies to a notice published under paragraph 35(2).
(4) Where the Authority directs the holder of a distribution licence to act as a distribution network owner of last resort pursuant to the conditions of the licence, this Schedule has effect as if—
(a) the licence holder is the holder of a distribution licence granted as a result of a tender exercise in which the licence holder was the successful bidder, and
(b) a notice has been published under paragraph 36 identifying the licence holder as the successful bidder in relation to the tender exercise.
Associated bodies corporate
37 (1) For the purposes of this Schedule, one body corporate is associated with another if one of them controls the other or a third body corporate controls both of them, and sub-paragraphs (2) to (6) set out the circumstances in which one body corporate (“A”) controls another (“B”).
(2) Where B is a company, A controls B if A possesses or is entitled to acquire—
(a) one half or more of the issued share capital of B,
(b) such rights as would entitle A to exercise one half or more of the votes exercisable in general meetings of B,
(c) such part of the issued share capital of B as would entitle A to one half or more of the amount distributed if the whole of the income of B were in fact distributed among the shareholders, or
(d) such rights as would, in the event of the winding up of B or in any other circumstances, entitle it to receive one half or more of the assets of B which would then be available for distribution among the shareholders.
(3) Where B is a limited liability partnership, A controls B if A—
(a) holds a majority of the voting rights in B,
(b) is a member of B and has a right to appoint or remove a majority of other members, or
(c) is a member of B and controls alone or pursuant to an agreement with other members, a majority of the voting rights in B.
(4) In sub-paragraph (3)(a) and (c) the references to “voting rights” are to the rights conferred on members in respect of their interest in a limited liability partnership to vote on those matters which are to be decided on by a vote of the members of the limited liability partnership.
(5) In any case, A controls B if A has the power, directly or indirectly, to secure that the affairs of B are conducted in accordance with A's wishes.
(6) In determining whether, by virtue of sub-paragraphs (2) to (5), A controls B, A is to be taken to possess—
(a) 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 sub-paragraph).
Interpretation
38 (1) In this Schedule—
“the asset owner”—
in relation to an application for a property scheme, means the owner of the property, rights and liabilities in relation to which provision of a kind mentioned in paragraph 1(2) is proposed to be included in the scheme;
in relation to a property scheme, means the owner of the property, rights and liabilities in relation to which provision of such a kind is included in the scheme;
“construction, commissioning or operational purposes” means the purposes of performing any functions which the successful bidder has, or may in future have under or by virtue of—
a relevant licence which has been, or is to be, granted as a result of the tender exercise,
a relevant contract which has been, or is to be, awarded as a result of the tender exercise, or
any enactment, in the successful bidder’s capacity as holder of the relevant licence or party to the relevant contract;
...
“functions” includes powers and duties;
“modification notice” is to be construed in accordance with paragraph 9;
“non-applicant party” means—
in the case of an application made by the preferred bidder or the successful bidder, the asset owner, and
in the case of an application made by the asset owner, the successful bidder or, if a notice has not yet been published under paragraph 36, the preferred bidder;
...
“preferred bidder”, in relation to a tender exercise, is to be construed in accordance with paragraph 35;
“property scheme” is to be construed in accordance with paragraph 1;
...
“successful bidder”, in relation to a tender exercise, has the meaning given by section 6CD(6);
“tender exercise” has the meaning given by section 6CD(3);
“third party”, in relation to a property scheme or proposed property scheme in connection with a tender exercise, means a person other than the preferred bidder, the successful bidder, or the asset owner.
(2) For the purposes of this Schedule, a provision of a property scheme affects a third party if that party's consent or concurrence would be required to the making of the provision otherwise than by means of the scheme.
SCHEDULE 3 Compulsory Acquisition of Land etc. by Licence Holders
Section 10(1).
Part I Powers of Acquisition
1 (1) Subject to paragraph 2 below, the Secretary of State may authorise a licence holder to purchase compulsorily any land required for any purpose connected with the carrying on of the activities which he is authorised by his licence to carry on.
(2) In this paragraph and paragraph 2 below “land” includes any right over land (other than, in Scotland, a right to abstract, divert and use water); and the power of the Secretary of State under this paragraph includes power to authorise the acquisition of rights over land by creating new rights as well as acquiring existing ones.
2 (1) No order shall be made under paragraph 1 above authorising the compulsory purchase of land belonging to another licence holder except with the consent of the Director.
(2) The Director shall not give his consent under this paragraph if—
(a) the land is being used by the licence holder to whom it belongs for the purposes of an installation necessary for the carrying on of the activities which he is authorised by his licence to carry on; or
(b) it appears to the Director that the land will be so used and that the use will commence, or any necessary planning permission or consent under section 36 or 37 of this Act will be applied for, within the period of five years beginning with the date of the application for his consent.
(3) The Secretary of State may by order provide that sub-paragraph (2) above shall have effect as if for the period mentioned in paragraph (b) there were substituted such other period as may be specified in the order.
(4) A consent under this paragraph which is not acted on within the period of six months beginning with the day on which it is granted shall cease to have effect at the end of that period.
(5) In this paragraph—
“the Planning Act” means the Town and Country Planning Act 1990 or the Town and Country Planning (Scotland) Act 1997;
“planning permission” means a planning permission granted under Part III of the Planning Act.
3 (1) This paragraph applies to land which—
(a) for the purposes of the Acquisition of Land Act 1981, is or forms part of a common, open space or a fuel or field garden allotment; or
(b) for the purposes of the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947, is or forms part of a common or open space.
(2) Where for any purpose a licence holder has acquired, or proposes to acquire, any land to which this paragraph applies, or any right over any such land, and other land is required for the purpose of being given in exchange for the land or right in question, the Secretary of State may authorise the licence holder to purchase that other land compulsorily, or he may acquire it by agreement.
4 Where a licence holder has acquired any land by virtue of paragraph 1 above, he shall not dispose of that land or of any interest in or right over it except with the consent of the Director.
Part II Procedure, Compensation etc. (England and Wales)
Application of Acquisition of Land Act 1981 generally
5 (1) Subject to sub-paragraph (2) below, the Acquisition of Land Act 1981 shall apply to a compulsory purchase by a licence holder of land or rights in England and Wales; and Schedule 3 to that Act shall apply in the case of a compulsory acquisition by a licence holder of a right by the creation of a new right.
(2) Section 16 of, and paragraph 3 of Schedule 3 to, the said Act of 1981 (statutory undertakers’ land excluded from compulsory purchase) shall not apply where the land or rights in question belong to another licence holder.
New rights: general adaptation of Compulsory Purchase Act 1965
6 The Compulsory Purchase Act 1965 shall have effect with the modifications necessary to make it apply to a licence holder’s compulsory acquisition of a right in England and Wales by the creation of a new right as it applies to the compulsory acquisition of land, so that, in appropriate contexts, references in that Act to land are to be read as referring, or as including references, to the right acquired or to be acquired, or to land over which the right is or is to be exercisable, according to the requirements of the particular context.
New rights: specific adaptations of Act of 1965
7 Without prejudice to the generality of paragraph 6 above, Part I of the Compulsory Purchase Act 1965 shall apply in relation to a licence holder’s compulsory acquisition of a right in England and Wales by the creation of a new right with the modifications specified in paragraphs 8 to 13 below.
8 For section 7 of that Act (measure of compensation) there shall be substituted the following section—
7 In assessing the compensation to be paid by the acquiring authority under this Act regard shall be had not only to the extent (if any) to which the value of the land over which the right is to be acquired is depreciated by the acquisition of the right but also to the damage (if any) to be sustained by the owner of the land by reason of its severance from other land of his, or injuriously affecting that other land by the exercise of the powers conferred by this or the special Act.
9 Section 8(1) of the Compulsory Purchase Act 1965 has effect as if references to acquiring land were to acquiring a right in the land, and Schedule 2A to that Act is to be read as if, for that Schedule, there were substituted—
SCHEDULE 2A
Counter-notice requiring purchase of land
Introduction
1 (1) This Schedule applies where an acquiring authority serve a notice to treat in respect of a right over the whole or part of a house, building or factory.
(2) But see section 2A of the Acquisition of Land Act 1981 (under which a compulsory purchase order can exclude from this Schedule land that is 9 metres or more below the surface).
2 In this Schedule “house” includes any park or garden belonging to a house.
Counter-notice requiring purchase of land
3 A person who is able to sell the house, building or factory (“the owner”) may serve a counter-notice requiring the authority to purchase the owner's interest in the house, building or factory.
4 A counter-notice under paragraph 3 must be served within the period of 28 days beginning with the day on which the notice to treat was served.
Response to counter-notice
5 On receiving a counter-notice the acquiring authority must decide whether to—
(a) withdraw the notice to treat,
(b) accept the counter-notice, or
(c) refer the counter-notice to the Upper Tribunal.
6 The authority must serve notice of their decision on the owner within the period of 3 months beginning with the day on which the counter-notice is served (“the decision period”).
7 If the authority decide to refer the counter-notice to the Upper Tribunal they must do so within the decision period.
8 If the authority do not serve notice of a decision within the decision period they are to be treated as if they had served notice of a decision to withdraw the notice to treat at the end of that period.
9 If the authority serve notice of a decision to accept the counter-notice, the compulsory purchase order and the notice to treat are to have effect as if they included the owner's interest in the house, building or factory.
Determination by Upper Tribunal
10 On a referral under paragraph 7 the Upper Tribunal must determine whether the acquisition of the right would—
(a) in the case of a house, building or factory, cause material detriment to the house, building or factory, or
(b) in the case of a park or garden, seriously affect the amenity or convenience of the house to which the park or garden belongs.
11 In making its determination, the Upper Tribunal must take into account—
(a) the effect of the acquisition of the right,
(b) the proposed use of the right, and
(c) if the right is proposed to be acquired for works or other purposes extending to other land, the effect of the whole of the works and the use of the other land.
12 If the Upper Tribunal determines that the acquisition of the right would have either of the consequences described in paragraph 10 it must determine how much of the house, building or factory the authority ought to be required to take.
13 If the Upper Tribunal determines that the authority ought to be required to take some or all of the house, building or factory the compulsory purchase order and the notice to treat are to have effect as if they included the owner's interest in that land.
14 (1) If the Upper Tribunal determines that the authority ought to be required to take some or all of the house, building or factory, the authority may at any time within the period of 6 weeks beginning with the day on which the Upper Tribunal makes its determination withdraw the notice to treat in relation to that land.
(2) If the acquiring authority withdraws the notice to treat under this paragraph they must pay the person on whom the notice was served compensation for any loss or expense caused by the giving and withdrawal of the notice.
(3) Any dispute as to the compensation is to be determined by the Upper Tribunal.
10 The following provisions of that Act (being provisions stating the effect of a deed poll executed in various circumstances where there is no conveyance by persons with interests in the land)—
section 9(4) (refusal by owners to convey);
Schedule 1, paragraph 10(3) (owners under incapacity);
Schedule 2, paragraph 2(3) (absent and untraced owners); and
Schedule 4, paragraphs 2(3) and 7(2) (common land),
shall be so modified as to secure that, as against persons with interests in the land which are expressed to be overridden by the deed, the right which is to be compulsorily acquired is vested absolutely in the acquiring authority.
11 Section 11 of that Act (powers of entry) shall be so modified as to secure that, as from the date on which the acquiring authority have served notice to treat in respect of any right, they have power, exercisable in the like circumstances and subject to the like conditions, to enter for the purpose of exercising that right (which shall be deemed for this purpose to have been created on the date of service of the notice); and sections 12 (penalty for unauthorised entry) and 13 (entry on enforcement officer's or sheriff's warrant in the event of obstruction) shall be modified correspondingly.
12 Section 20 of that Act (protection for interests of tenants at will etc.) shall apply with the modifications necessary to secure that persons with such interests as are mentioned in that section are compensated in a manner corresponding to that in which they would be compensated on a compulsory acquisition of that land, but taking into account only the extent (if any) of such interference with such an interest as is actually caused, or likely to be caused, by the exercise of the right in question.
13 Section 22 of that Act (protection of acquiring authority’s possession where by inadvertence an estate, right or interest has not been got in) shall be so modified as to enable the acquiring authority, in circumstances corresponding to those referred to in that section, to continue entitled to exercise the right acquired, subject to compliance with that section as respects compensation.
New rights: compensation
14 The enactments in force in England and Wales with respect to compensation for the compulsory purchase of land shall apply with the necessary modifications as respects compensation in the case of a licence holder’s compulsory acquisition of a right by the creation of a new right as they apply to compensation on the compulsory purchase of land and interests in land.
Part III Procedure, Compensation etc. (Scotland)
Application of Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 generally
15 (1) Subject to sub-paragraph (2) below, the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 shall apply to the compulsory purchase by a licence holder of land or rights in Scotland as if the licence holder were a local authority within the meaning of that Act, and as if this Act had been in force immediately before the commencement of that Act.
(2) Paragraph 10 of the First Schedule to that Act (statutory undertakers’ land excluded from compulsory purchase) shall not apply where the land or rights in question belong to another licence holder.
New rights: general application of Act of 1947 and incorporated enactments
16 The Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947, and the enactments incorporated with this Act by virtue of paragraph 15 above and paragraph 1 of the Second Schedule to that Act shall have effect with the modifications necessary to make them apply to a licence holder’s compulsory acquisition of a right in Scotland by the creation of a new right (other than a right to abstract, divert and use water) as they apply to the compulsory acquisition of land, so that, in appropriate contexts, references in those enactments and that Act to land are to be read as referring, or as including references, to the right acquired or to be acquired, or to land over which the right is or is to be exercisable, according to the requirements of the particular context.
New rights: specific adaptations of Act of 1947
17 Without prejudice to the generality of paragraph 16 above, Part III of the First Schedule to the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 (requirement of special parliamentary procedure, and other special provisions, in the case of acquisition of certain descriptions of land) shall apply in relation to a licence holder’s compulsory acquisition of a right in Scotland by the creation of a new right with the modifications specified in paragraphs 18 to 23 below.
18 In paragraph 9 of that Schedule (compulsory purchase affecting land of the National Trust for Scotland) for references to the compulsory purchase of land there shall be substituted references to the compulsory acquisition of rights over land.
19 In paragraph 10 of that Schedule (land of statutory undertakers)—
(a) for the words “land comprised in the order” there shall be substituted the words “land over which a right is to be acquired by virtue of the order”;
(b) for the words “purchase of” there shall be substituted the words “acquisition of a right over”;
(c) for the words “it can be purchased and not replaced” there shall be substituted the words “the right can be acquired”; and
(d) for sub-paragraph (ii) there shall be substituted the following sub-paragraph—
(ii) that any detriment to the carrying on of the undertaking, in consequence of the acquisition of the right, can be made good by the undertakers by the use of other land belonging to, or available for acquisition by, them
.
20 In paragraph 11 of that Schedule (common or open space), for sub-paragraph (1) there shall be substituted the following sub-paragraph—
(1) In so far as a compulsory purchase order authorises the acquisition of a right over land forming part of a common or open space, it shall be subject to special parliamentary procedure unless the Secretary of State is satisfied—
(a) that the land, when burdened with that right, will be no less advantageous to those persons in whom it is vested and other persons, if any, entitled to rights of common or other rights, and to the public, than it was before;
(b) that there has been or will be given in exchange for the right additional land which will as respects the persons in whom there is vested the land over which the right is to be acquired, the persons, if any, entitled to rights of common or other rights over that land, and the public, be adequate to compensate them for the disadvantages which result from the acquisition of the right, and that the additional land has been or will be vested in the persons in whom there is vested the land over which the right is to be acquired, and subject to the like rights, trusts and incidents as attach to that land apart from the compulsory purchase order; or
(c) that the land affected by the right to be acquired does not exceed 250 square yards in extent, and that the giving of other land in exchange for the right is unnecessary, whether in the interests of the persons, if any, entitled to rights of common or other rights or in the interests of the public,
and certifies accordingly.
21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
22 Paragraph 3(1) of the Second Schedule to the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 shall be so modified as to secure that, as from the date on which the licence holder has served notice to treat in respect of any right, it has power, exercisable in the like circumstances and subject to the like conditions, to enter for the purpose of exercising that right (which shall be deemed for this purpose to have been created on the date of service of the notice).
23 For paragraph 4 of that Schedule (protection for owner against severance of property) there shall be substituted the following paragraphs—
4 No person shall be required to grant any right over part only—
(a) of any house, building or manufactory; or
(b) of a park or garden belonging to a house,
if he is willing to sell the whole of the house, building, manufactory, park or garden, unless the Lands Tribunal for Scotland determines that—
(i) in the case of a house, building or manufactory, the part over which the right is proposed to be acquired can be made subject to that right without material detriment to the house, building or manufactory; or
(ii) in the case of a park or garden, the part over which the right is proposed to be acquired can be made subject to that right without seriously affecting the amenity or convenience of the house;
and if it so determines, it shall award compensation in respect of any loss due to the acquisition of the right, in addition to its value; and thereupon the party interested shall be required to grant to the acquiring authority that right over the part of the house, building, manufactory, park or garden.
4A In considering, for the purposes of paragraph 4 above, the extent of any material detriment to a house, building or manufactory, or any extent to which the amenity or convenience of a house is affected, the Lands Tribunal for Scotland shall have regard not only to the right which is to be acquired over the land, but also to any adjoining or adjacent land belonging to the same owner and subject to compulsory purchase.
New rights: specific adaptations of Lands Clauses Consolidation (Scotland) Act 1845
24 Without prejudice to the generality of paragraph 16 above, the Lands Clauses Consolidation (Scotland) Act 1845 shall apply in relation to a licence holder’s compulsory acquisition of a right in Scotland by the creation of a new right with the modifications specified in paragraphs 25 to 28 below.
25 For section 61 of that Act (estimation of compensation) there shall be substituted the following section—
61 In estimating the purchase money or compensation to be paid by the licence holder under the special Act, in any of the cases aforesaid, regard shall be had not only to the extent (if any) to which the value of the land over which the right is to be acquired is depreciated by the acquisition of the right, but also to the damage (if any) to be sustained by the owner of the land by reason of its severance from other land of his, or injuriously affecting that other land by the exercise of the powers conferred by this or the special Act.
26 The following provisions of that Act (being provisions stating the effect of a notarial instrument or of a disposition executed in various circumstances where there is no conveyance by persons with interests in the land)—
section 74 (failure by owner to convey);
section 76 (refusal to convey or show title or owner cannot be found);
section 98 (vesting of common land),
shall be so modified as to secure that, as against persons with interests in the land over which the right is to be compulsorily acquired, such right is vested absolutely in the licence holder.
27 Sections 114 (compensation to be made to tenants for a year etc.) and 115 (compensation where greater interest than tenant for a year) of that Act shall apply with the modifications necessary to secure that persons with such interests as are mentioned in those sections are compensated in a manner corresponding to that in which they would be compensated on a compulsory acquisition of that land, but taking into account only the extent (if any) of such interference with such an interest as is actually caused, or likely to be caused, by the exercise of the right in question.
28 Sections 117 (protection of promoter of undertaking where by inadvertence an interest in land has not been purchased etc.) and 118 (provisions supplementary to section 117) of that Act shall be so modified as to enable the licence holder, in circumstances corresponding to those referred to in those sections, to continue entitled to exercise the right acquired, subject to compliance with those sections as respects compensation.
New rights: compensation
29 The enactments in force in Scotland with respect to compensation for the compulsory purchase of land shall apply as respects compensation in the case of a licence holder’s compulsory acquisition of a right by the creation of a new right (other than a right to abstract, divert and use water) as they apply to compensation on the compulsory purchase of land and interests in land.
Section 10(1).
Street works etc. in England and Wales
1 (1) Subject to the following provisions of this paragraph, for any purpose connected with the carrying on of the activities which he is authorised by his licence to carry on, a licence holder may execute—
(a) the following kinds of works, that is to say, installing under, over, in, on, along or across any street and from time to time inspecting, maintaining, adjusting, repairing, altering, replacing or removing—
(i) any electric lines or electrical plant; and
(ii) any structures for housing or covering any such lines or plant; and
(b) any works requisite for or incidental to the purposes of any works falling within paragraph (a) above, including for those purposes—
(i) opening or breaking up any street or any sewers, drains or tunnels within or under any street;
(ii) tunnelling or boring under any street; and
(iii) removing or using all earth and materials in or under any street;
but nothing in this sub-paragraph shall empower a licence holder to lay down or place any electric line or electrical plant into, through or against any building, or in any land not dedicated to the public use.
(2) The power of a licence holder under sub-paragraph (1) to place on or over a street any structure for housing any line or plant shall be exercisable only with the consent of the street authority; but such consent shall not be unreasonably withheld.
(3) Any question under sub-paragraph (2) above as to whether or not a consent is unreasonably withheld shall be determined by a single arbitrator to be appointed by the parties or, in default of agreement, by the Director.
(4) Except in cases of emergency arising from faults in any electric lines or electrical plant, a street which is not a maintainable highway shall not be opened or broken up by virtue of sub-paragraph (1) above except with the consent of the street authority or the consent of the Secretary of State.
(5) The Secretary of State shall not entertain an application for his consent under sub-paragraph (4) above unless the licence holder has served notice of the application on the person whose consent would otherwise be required.
(6) A licence holder shall do as little damage as possible in the exercise of the powers conferred by sub-paragraph (1) above and shall make compensation for any damage done in the exercise of those powers.
(7) A licence holder shall exercise the powers conferred by sub-paragraph (1) above in such manner as will secure that nothing which he instals or keeps installed under, over, in, on, along or across any street becomes a source of danger to the public.
(8) Nothing in sub-paragraph (1) above shall affect the application to any operation of sections 34 to 36 of the Coast Protection Act 1949.
(9) In this paragraph “maintainable highway”, “street” and “street authority” have the same meaning as in Part III of the New Roads and Street Works Act 1991.
(10) This paragraph extends to England and Wales only.
Road works etc. in Scotland
2 (1) Subject to the following provisions of this paragraph, for any purpose connected with the carrying on of the activities which he is authorised by his licence to carry on, a licence holder may execute—
(a) the following kinds of works, that is to say, installing under, over, in, on, along or across any road or bridge and from time to time inspecting, maintaining, adjusting, repairing, altering or removing—
(i) any electric lines or electrical plant; and
(ii) any structures for housing or covering any such lines or plant; and
(b) any works requisite for or incidental to the purposes of any works falling within paragraph (a) above, including for those purposes—
(i) opening or breaking up any road or bridge or any sewers, drains or tunnels within or under any road or bridge;
(ii) tunnelling or boring under any road; and
(iii) removing or using all earth and materials in or under any road;
but nothing in this sub-paragraph shall empower a licence holder to lay down or place any electric line or electrical plant into, through or against any building, or in any land over which there is no public right of passage.
(2) The power of a licence holder under sub-paragraph (1) above to place on or over a road or bridge any structure for housing any line or plant shall be exercisable only with the consent of the road works authority; but such consent shall not be unreasonably withheld .
(3) Any question under sub-paragraph (2) above as to whether or not a consent is unreasonably withheld shall be determined by a single arbiter to be appointed by the parties or, in default of agreement, by the Director.
(4) Except in cases of emergency arising from faults in any electric lines or electrical plant, a road which is not a public road shall not be opened or broken up by virtue of sub-paragraph (1) above except with the consent of the road works authority or the consent of the Secretary of State.
(5) The Secretary of State shall not entertain an application for his consent under sub-paragraph (4) above unless the licence holder has served notice of the application in the prescribed form on the person whose consent would otherwise be required.
(6) A licence holder shall do as little damage as possible in the exercise of the powers conferred by sub-paragraph (1) above and shall make compensation for any damage done in the exercise of those powers.
(7) A licence holder shall exercise the powers conferred by sub-paragraph (1) above in such manner as will secure that nothing which he instals or keeps installed under, over, in, on, along or across any road or bridge becomes a source of danger to the public.
(8) Nothing in sub-paragraph (1) above shall affect the application to any operation of sections 34 to 36 of the Coast Protection Act 1949.
(9) In this paragraph “public road”, “road” and “road works authority” have the same meaning as in Part IV of the New Roads and Street Works Act 1991.
(10) This paragraph extends to Scotland only.
Alteration of works
3 (1) A licence holder may execute works in pursuance of paragraph 1 or 2 above, notwithstanding that they involve a temporary or permanent alteration of any of the following, namely—
(a) any electric line or electrical plant under the control of another licence holder;
(b) any gas pipe operated by a public gas transporter;
(c) any relevant pipe (within the meaning of section 159 of the Water Resources Act 1991 or section 158 of the Water Industry Act 1991 which (whether or not it is in a street) is) under the control of the National Rivers Authority, the Natural Resources Body for Wales, a water undertaker or a sewerage undertaker or, in Scotland, any water pipe under the control of a person supplying water in the exercise of statutory powers;
(d) any electronic communications apparatus used for the purposes of an electronic communications code network which is operated by a person to whom the electronic communications code applies; or
(e) any system apparatus (within the meaning of Part II of the Road Traffic (Driver Licensing and Information Systems) Act 1989) of an operator of a driver information system who is licensed under Part II of that Act.
(2) Where a licence holder is proposing to execute works in pursuance of paragraph 1 or 2 above which involve or are likely to involve any such alteration as is mentioned in sub-paragraph (1)(a), (b) or (c) above, the following provisions of this paragraph shall apply; and in those provisions “the relevant undertaker” means the other licence holder, the public gas transporter or the person supplying water in the exercise of statutory powers, as the case may be.
(3) The licence holder shall, not less than one month before the works are commenced, give the relevant undertaker a notice specifying the nature of the licence holder’s works, the alteration or likely alteration involved and the time and place at which the works will be commenced.
(4) Sub-paragraph (3) above shall not apply in relation to any emergency works of which the licence holder gives the relevant undertaker notice as soon as practicable after commencing the works.
(5) Where a notice has been given under sub-paragraph (3) above by the licence holder to the relevant undertaker, the undertaker may within the period of seven days beginning with the giving of the notice give the licence holder a counter-notice which may state either—
(a) that the undertaker intends himself to make any alteration made necessary or expedient by the licence holder’s proposed works; or
(b) that he requires the licence holder in making any such alteration to do so under the supervision and to the satisfaction of the undertaker.
(6) Where a counter-notice given under sub-paragraph (5) above states that the relevant undertaker intends himself to make any alteration—
(a) the undertaker shall (subject to sub-paragraph (8) below) have the right, instead of the licence holder, to execute any works for the purpose of making that alteration; and
(b) any expenses incurred by the undertaker in or in connection with the execution of those works and the amount of any loss or damage sustained by the undertaker in consequence of the alteration shall be recoverable by the undertaker from the licence holder in any court of competent jurisdiction.
(7) Where a counter-notice given under sub-paragraph (5) above states that any alteration is to be made under the supervision and to the satisfaction of the relevant undertaker—
(a) the licence holder shall not make the alteration except as required by the notice or under sub-paragraph (8) below; and
(b) any expenses incurred by the undertaker in or in connection with the provision of that supervision and the amount of any loss or damage sustained by the undertaker in consequence of the alteration shall be recoverable by the undertaker from the licence holder in any court of competent jurisdiction.
(8) Where—
(a) no counter-notice is given under sub-paragraph (5) above; or
(b) the relevant undertaker, having given a counter-notice falling within that sub-paragraph, fails to make any alteration made necessary or expedient by the licence holder’s proposed works within such period (being not less than 48 hours) as the licence holder may by notice specify or, as the case may be, unreasonably fails to provide the required supervision,
the licence holder may himself execute works for the purpose of making the alteration or, as the case may be, may execute such works without the supervision of the undertaker; but in either case the licence holder shall execute the works to the satisfaction of the undertaker.
(9) If the licence holder or any of his agents—
(a) executes any works without the notice required by sub-paragraph (3) above having been given; or
(b) unreasonably fails to comply with any reasonable requirement of the relevant undertaker under this paragraph,
he shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.
4 (1) Any of the following who is authorised by or under any enactment to execute works corresponding to those authorised by paragraph 1 or 2 above, namely—
(a) any public gas transporter;
(b) the Environment Agency, the Natural Resources Body for Wales, any water undertaker or any sewerage undertaker or, in Scotland, any person supplying water in the exercise of statutory powers;
(c) any electronic communications code operator or any former PTO; and
(d) any operator of a driver information system who is licensed under Part II of the Road Traffic (Driver Licensing and Information Systems) Act 1989,
(in this paragraph referred to as a “relevant undertaker”) may execute such works, notwithstanding that they involve a temporary or permanent alteration of any electric line or electrical plant under the control of a licence holder.
(2) Where a relevant undertaker is proposing to execute any such works as are mentioned in sub-paragraph (1) above which involve or are likely to involve any such alteration as is there mentioned, sub-paragraphs (3) to (9) of paragraph 3 above shall apply as if—
(a) any reference to the licence holder were a reference to the relevant undertaker; and
(b) any reference to the relevant undertaker were a reference to the licence holder.
Protection from interference
5 (1) Subject to sub-paragraph (2) below, a licence holder who instals or alters, or changes the mode of operation of, any electric line or electrical plant shall take all reasonable precautions for securing that the operation of that line or plant does not interfere with the operation of any electronic communications apparatus which—
(a) is under the control of a person to whom the electronic communications code applies; and
(b) is not unusually sensitive to interference with its operation.
(2) In the case of any electronic communications apparatus which is subsequently installed or altered or whose mode of operation is subsequently changed, the duty imposed by sub-paragraph (1) above shall not apply in relation to—
(a) any momentary interference with its operation; or
(b) where it is installed in unreasonably close proximity to the electric line or electrical plant, any other interference with its operation.
(3) Sub-paragraphs (1) and (2) above shall be read as also applying in the converse case of a person to whom the electronic communications code applies who instals or alters, or changes the mode of operation of, any electronic communications apparatus, and in such a case shall have effect as if—
(a) any reference to the licence holder were a reference to that person;
(b) any reference to an electric line or electrical plant were a reference to such apparatus; and
(c) any reference to such apparatus under the control of a person to whom that code applies were a reference to such a line or such plant under the control of a licence holder.
(4) Any difference arising under this paragraph between a licence holder and a person to whom the electronic communications code applies shall be referred to arbitration by an arbitrator or, in Scotland, arbiter appointed, in default of agreement between the parties, by the President of the Chartered Institute of Arbitrators.
(5) In this paragraph “momentary interference” means any interference of momentary duration which is not a regular occurrence (whether caused by physical contact or otherwise).
Acquisition of wayleaves
6 (1) This paragraph applies where—
(a) for any purpose connected with the carrying on of the activities which he is authorised by his licence to carry on, it is necessary or expedient for a licence holder to obtain the right to instal and keep installed an electric line on, under or over any land; and
(b) the owner or occupier of the land, having been given a notice requiring him to give the necessary wayleave within a period (not being less than 21 days) specified in the notice—
(i) has failed to give the wayleave before the end of that period; or
(ii) has given the wayleave subject to terms and conditions to which the licence holder objects;
and in this paragraph as it so applies “the necessary wayleave” means consent ... to instal and keep installed the electric line on, under or over the land and to have access to the land for the purpose of inspecting, maintaining, adjusting, repairing, altering, replacing or removing the electric line.
(2) This paragraph also applies where—
(a) for any purpose connected with the carrying on of the activities which he is authorised by his licence to carry on, it is necessary or expedient for a licence holder to keep an electric line installed on, under or over any land; and
(b) the owner or occupier of the land has given notice to the licence holder under paragraph 8(2) below requiring him to remove the electric line;
and in this paragraph as it so applies “the necessary wayleave” means consent for the licence holder to keep the electric line installed on, under or over the land and to have access to the land for the purpose of inspecting, maintaining, adjusting, repairing, altering, replacing or removing the electric line.
(3) Subject to sub-paragraphs (4) and (5) below, the Secretary of State may, on the application of the licence holder, himself grant the necessary wayleave subject to such terms and conditions as he thinks fit; and a necessary wayleave so granted shall, unless previously terminated in accordance with a term contained in the wayleave, continue in force for such period as may be specified in the wayleave.
(4) The Secretary of State shall not entertain an application under sub-paragraph (3) above in any case where—
(a) the land is covered by a dwelling, or will be so covered on the assumption that any planning permission which is in force is acted on; and
(b) the line is to be installed on or over the land.
(5) Before granting the necessary wayleave, the Secretary of State shall afford—
(a) the occupier of the land; and
(b) where the occupier is not also the owner of the land, the owner,
an opportunity of being heard by a person appointed by the Secretary of State.
(6) A necessary wayleave granted under this paragraph—
(a) shall not be subject to the provisions of any enactment requiring the registration of interests in, charges over or other obligations affecting land; but
(b) shall bind any person who is at any time the owner or occupier of the land.
(7) Where in pursuance of a necessary wayleave granted under this paragraph a licence holder has erected on any land supports for an electric line, he shall be deemed to have an interest in that land for the purposes of section 7 of the Mines (Working Facilities and Support) Act 1966.
(7A) A necessary wayleave granted to a licence holder under this paragraph may be transferred to another licence holder.
(8) In this paragraph “dwelling” means a building or part of a building occupied, or (if not occupied) last occupied or intended to be occupied, as a private dwelling or, in relation to Scotland, a private house, and includes any garden, yard, outhouses and appurtenances belonging to or usually enjoyed with that building or part.
Fees for applications under paragraph 6(3) to the Scottish Ministers
6A The Scottish Ministers may by regulations make provision about the fees to be paid to the Scottish Ministers in relation to an application made to them under paragraph 6(3).
Provisions supplementary to paragraph 6
7 (1) Where a wayleave is granted to a licence holder under paragraph 6 above—
(a) the occupier of the land; and
(b) where the occupier is not also the owner of the land, the owner,
may recover from the licence holder compensation in respect of the grant.
(2) Where in the exercise of any right conferred by such a wayleave any damage is caused to land or to moveables, any person interested in the land or moveables may recover from the licence holder compensation in respect of that damage; and where in consequence of the exercise of such a right a person is disturbed in his enjoyment of any land or moveables he may recover from the licence holder compensation in respect of that disturbance.
(3) Compensation under this paragraph may be recovered as a lump sum or by periodical payments or partly in one way and partly in the other.
(4) Any question of disputed compensation under this paragraph shall be determined by the Tribunal; and section 4 of the Land Compensation Act 1961 or sections 9 and 11 of the Land Compensation (Scotland) Act 1963 shall apply to any such determination.
Temporary continuation of wayleaves
8 (1) This paragraph applies where at any time such a wayleave as is mentioned in paragraph 6 above (whether granted under that paragraph or by agreement between the parties)—
(a) is determined by the expiration of a period specified in the wayleave;
(b) is terminated by the owner or occupier of the land in accordance with a term contained in the wayleave; or
(c) by reason of a change in the ownership or occupation of the land after the granting of the wayleave, ceases to be binding on the owner or occupier of the land.
(2) The owner or occupier of the land may—
(a) in a case falling within paragraph (a) of sub-paragraph (1) above, at any time after or within three months before the end of the period specified in the wayleave;
(b) in a case falling within paragraph (b) of that sub-paragraph, at any time after the wayleave has been terminated by him; or
(c) in a case falling within paragraph (c) of that sub-paragraph, at any time after becoming the owner or occupier of the land by virtue of such a change in the ownership or occupation of the land as is mentioned in that paragraph,
give to the licence holder a notice requiring him to remove the electric line from the land; but the licence holder shall not be obliged to comply with such a notice except in the circumstances and to the extent provided by the following provisions of this paragraph.
(3) Where within the period of three months beginning with the date of the notice under sub-paragraph (2) above the licence holder makes neither—
(a) an application for the grant of the necessary wayleave under paragraph 6 above; nor
(b) an order authorising the compulsory purchase of the land made by virtue of paragraph 1 of Schedule 3 to this Act,
the licence holder shall comply with the notice at the end of that period.
(4) Where—
(a) within the period mentioned in sub-paragraph (3) above the licence holder makes an application for the grant of the necessary wayleave under paragraph 6 above; and
(b) that application is refused by the Secretary of State,
the licence holder shall comply with the notice under sub-paragraph (2) above at the end of the period of one month beginning with the date of the Secretary of State’s decision or such longer period as the Secretary of State may specify.
(5) Where—
(a) within the period mentioned in sub-paragraph (3) above the licence holder makes an order by virtue of paragraph 1 of Schedule 3 to this Act authorising the compulsory purchase of the land; and
(b) that order is not confirmed by the Secretary of State,
the licence holder shall comply with the notice under sub-paragraph (2) above at the end of the period of one month beginning with the date of the Secretary of State’s decision or such longer period as the Secretary of State may specify.
Felling and lopping of trees etc.
9 (1) This paragraph applies where any tree is or will be in such close proximity to an electric line or electrical plant which is kept installed or is being or is to be installed by a licence holder as—
(a) to obstruct or interfere with the installation, maintenance or working of the line or plant; or
(b) to constitute an unacceptable source of danger (whether to children or to other persons);
and in this paragraph “the land” means the land on which the tree is growing.
(2) The licence holder may give notice to the occupier of the land requiring him to fell or lop the tree or cut back its roots so as to prevent it from having the effect mentioned in sub-paragraph (1)(a) or (b) above, subject to the payment to him by the licence holder of the expenses reasonably incurred by him in complying with the notice.
(3) Where the occupier is not also the owner of the land, a copy of any notice under sub-paragraph (2) above shall also be served on the owner.
(4) If within 21 days from the giving of a notice under sub-paragraph (2) above—
(a) the requirements of the notice are not complied with; and
(b) neither the owner nor occupier of the land gives a counter notice under sub-paragraph (5) below,
the licence holder may cause the tree to be felled or lopped or its roots to be cut back so as to prevent it from having the effect mentioned in sub-paragraph (1)(a) or (b) above.
(5) If, within 21 days from the giving of a notice under sub-paragraph (2) above, the owner or occupier of the land gives a counter notice to the licence holder objecting to the requirements of the notice, the matter shall, unless the counter notice is withdrawn, be referred to the Secretary of State.
(6) On a reference under sub-paragraph (5) above, the Secretary of State, after giving the parties an opportunity of being heard by a person appointed by him, may make such order as he thinks just, and any such order—
(a) may empower the licence holder (after giving such notice to any person by whom a counter notice was given of the commencement of the work as the order may direct) to cause the tree to be felled or lopped or its roots to be cut back so as to prevent it from having the effect mentioned in sub-paragraph (1)(a) or (b) above; and
(b) may determine any question as to what expenses (if any) are to be paid.
(7) Where the licence holder exercises any powers conferred under sub-paragraph (4) or (6) above, he shall—
(a) cause trees to be felled or lopped or their roots to be cut back in accordance with good arboricultural practice and so as to do as little damage as possible to trees, fences, hedges and growing crops;
(b) cause felled trees, lopped boughs or root cuttings to be removed in accordance with the directions of the owner or occupier; and
(c) make good any damage done to the land.
(8) In this paragraph “tree” includes any shrub and references to felling or lopping, felled trees or lopped boughs shall be construed accordingly.
Entry on land for purposes of exploration
10 (1) Subject to the following provisions of this paragraph and without prejudice to any other right of entry, a person authorised in writing by a licence holder may, at any reasonable time, enter upon and survey any land for the purpose of ascertaining whether the land would be suitable for use for any purpose connected with the carrying on of the activities which the licence holder is authorised by his licence to carry on.
(1A) A person may not be authorised under sub-paragraph (1) to enter and survey or value land in England and Wales in connection with a proposal to acquire an interest in or a right over land (but see section 172 of the Housing and Planning Act 2016).
(2) A person authorised to enter upon any land under this section shall not demand to do so as of right unless—
(a) 14 days notice of the intended entry has been given to the occupier; and
(b) if required to do so, he has produced evidence of his authority.
(3) The powers conferred by this paragraph shall not be exercisable in relation to land which is covered by a building or will be so covered on the assumption that any planning permission which is in force is acted on.
(4) The power to survey land conferred by this paragraph includes power to search and bore for the purpose of ascertaining the nature of the subsoil; but works may not be carried out on the land for this purpose unless—
(a) notice of the proposed works is included in the notice given under sub-paragraph (2) above; and
(b) where land is held by statutory undertakers who object to the works on the ground that the carrying out of the works would be seriously detrimental to the carrying on of their undertaking, the Secretary of State gives his consent.
(5) Where any person exercises any powers conferred by this paragraph, the licence holder by whom he was authorised shall make good any damage done to the land.
(6) In this paragraph “building” includes any garden, yard, outhouses and appurtenances belonging to or usually enjoyed with a building.
Provisions supplementary to paragraphs 9 and 10
11 (1) Any person who intentionally obstructs a person acting in the exercise of any power conferred by or under paragraph 9 or 10 above shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(2) Where in the exercise of any power conferred by or under paragraph 9 or 10 above any damage is caused to land or to moveables, any person interested in the land or moveables may recover compensation in respect of that damage from the licence holder on whose behalf the power is exercised; and where in consequence of the exercise of such a power a person is disturbed in his enjoyment of any land or moveables he may recover from that licence holder compensation in respect of that disturbance.
(3) Any question of disputed compensation under sub-paragraph (2) above shall be referred to and determined by the Tribunal; and section 4 of the Land Compensation Act 1961 or sections 9 and 11 of the Land Compensation (Scotland) Act 1963 shall apply to any such determination.
Interpretation
12 In this Schedule—
“moveables” means chattels in relation to England and Wales and corporeal moveables in relation to Scotland;
. . .
“the Planning Act” means the Town and Country Planning Act 1990 or the Town and Country Planning (Scotland) Act 1997;
“planning permission” means a planning permission granted under Part III of the Planning Act;
“public gas transporter” has the same meaning as in Part I of the Gas Act 1986;
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“statutory undertakers” has the same meaning as in the Planning Act;
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“the Tribunal” means the Upper Tribunal in relation to England and Wales and the Lands Tribunal for Scotland in relation to Scotland.