(1) The following are voidable on an application to the court—
(a) the exercise of a shareholder right in breach of section 8O;
(b) the appointment of a senior officer in breach of that section.
(2) Any person may make an application under subsection (1).
(3) Such an application may not be made after the end of the 5 years beginning with the day on which the shareholder right was exercised or the appointment made.
(4) If, by virtue of this section, the court declares the exercise of a shareholder right or an appointment to be void, it may make an order as to the consequences of its declaration.
(5) In this section, “the court” means—
(a) in relation to England and Wales, the High Court, and
(b) in relation to Scotland, the Court of Session.
(1) In sections 8C to 8P and this section—
“control”, in relation to one person having control over another, has the meaning given by Article 2(36) of the Gas Directive (but in determining whether one person (“person A”) has control over another (“person B”) no account is to be taken of any unexercised contractual or other right which would, if exercised, give person A control over person B and which was conferred as a condition of the provision of either financial support or a guarantee (or both), by person A in relation to the business of person B); and references to one person controlling another are to be interpreted accordingly;
“certified” means certified by the Authority under section 8F; and “certify” and “certification” are to be interpreted accordingly;
“certification grounds” has the meaning given by section 8G(2);
“person from a country outside the United Kingdom” means a person the Authority thinks is from a country outside the United Kingdom;
“shareholder right” means a right, conferred by the holding of a share in the company’s share capital—
to vote at general meetings of the company; or
to appoint or remove a member of the company’s board of directors;
...
(2) In this Part “gas undertaking” means a person who—
(a) gets natural gas from its natural condition in strata otherwise than as an unintended consequence of the storage of gas, and requires a licence under section 3 of the Petroleum Act 1998 (licences to search and bore for and get petroleum) to do so or would require such a licence if getting the gas in Great Britain;
(b) produces any other gas, including in particular biomethane, which is suitable for conveyance through pipes to premises in accordance with a licence under section 7;
(c) supplies to any premises gas which has been conveyed to those premises through pipes;
(d) arranges with a gas transporter for gas to be introduced into, conveyed by means of or taken out of a pipe-line system operated by that transporter; or
(e) otherwise sells gas.
(3) In this Part “relevant producer or supplier”, in relation to an applicant for certification or a certified person, means a person who falls within each of subsections (4) and (5).
(4) A person falls within this subsection if the person—
(a) is a gas undertaking;
(b) generates electricity for the purpose of giving a supply to any premises or enabling a supply to be so given;
(c) supplies electricity to any premises; or
(d) otherwise generates or sells electricity,
and terms used in paragraphs (b) and (c) of this subsection have the same meanings in those paragraphs as in Part 1 of the Electricity Act 1989.
(5) A person falls within this subsection if—
(a) the person requires a licence under section 7A of this Act or section 6 of the Electricity Act 1989 (licences authorising supply, etc) to carry out the activity by virtue of which the person falls within subsection (4);
(b) where the person does not carry out the activity in Great Britain, the person would, in the Authority’s opinion, require such a licence if carrying out the activity in Great Britain; or
(c) the person has a relationship with the applicant or certified person which the Authority thinks might lead the applicant or certified person to discriminate in favour of the person.
(1) This section applies to a storage facility unless a minor facility exemption is in force in respect of that facility under section 8S.
(2) The owner of a storage facility to which this section applies must, notwithstanding any licence held by the owner, refrain from producing gas in the United Kingdom.
(3) The owner must also, notwithstanding any licence held by the owner, refrain from carrying out any of the following activities in the United Kingdom except to the extent that the activity is necessary for the efficient operation of the storage facility or of another facility used by the owner to store gas—
(a) the supply to any premises of gas which has been conveyed to those premises through pipes;
(b) the making of an arrangement with a gas transporter for gas to be introduced into, conveyed by means of or taken out of a pipe-line system operated by that gas transporter;
(c) any other sale of gas.
(4) If an affiliate of the owner carries out in the United Kingdom an activity which, under subsection (2) or (3), the owner must refrain from carrying out, the owner must operate the storage facility independently of the interests of that affiliate and must, in particular, ensure that—
(a) no senior officer or manager of the owner is a senior officer or manager of the affiliate;
(b) if a senior officer or manager of the owner has an interest in the affiliate that conflicts, or is likely to conflict, with the interests of the storage facility, the owner maintains procedures to ensure that the storage facility is operated independently of that interest in the affiliate;
(c) the owner is entitled to take decisions without the consent of that affiliate in respect of any assets necessary to operate, maintain or develop the storage facility; and
(d) the owner does not take instructions from the affiliate regarding day to day operations or individual decisions concerning the construction or upgrading of the storage facility.
(5) Subsection (4)(c) and (d) does not prevent a parent undertaking of the owner from requiring the owner—
(a) to obtain the parent undertaking’s approval of the owner’s annual financial planning;
(b) to comply with restrictions on the owner’s overall indebtedness.
(6) The owner must establish a programme (the “independence programme”) in relation to the owner’s senior officers, other officers, managers and employees for the purpose of ensuring that they do not cause the owner to—
(a) discriminate against persons who are not affiliates of the owner; or
(b) breach any of the owner’s obligations under section 11C regarding the disclosure or use of information.
(7) The owner must—
(a) ensure that compliance with the independence programme is monitored; and
(b) each year, publish a report setting out the measures taken in accordance with the independence programme and send a copy to the Authority.
(8) For the purposes of this section a person produces gas if the person—
(a) gets natural gas from its natural condition in strata otherwise than as an unintended consequence of the storage of gas, and requires a licence under section 3 of the Petroleum Act 1998 (licences to search and bore for and get petroleum) to do so or would require such a licence if getting the gas in Great Britain; or
(b) produces any other gas, including in particular biomethane, which is suitable for conveyance through pipes to premises in accordance with a licence under section 7.
(9) In this section—
“affiliate”, in relation to a person (“person A”), means—
a person who has control of person A; or
a person who is under the control of the same person as person A;
“control” has the meaning given by section 8Q(1);
“manager”, in relation to the owner of a storage facility or an affiliate of the owner, means a natural person who is responsible, directly or indirectly, for the day to day management of the owner or the affiliate;
“parent undertaking” has the meaning given by section 1162 of the Companies Act 2006.
(10) The reference in subsection (4)(b) to a conflict of interests includes a conflict of interest and duty and a conflict of duties.
8S Independence of storage facilities and duty to allow others to use them: exemptions for minor facilities
(1) A person who is or expects to be an owner of a storage facility may apply in writing to the Authority for an exemption from the requirements of sections 8R and 19B in respect of that facility (a “minor facility exemption”).
(2) The Authority must give a minor facility exemption in respect of a facility where it is satisfied that use of the facility by other persons is not technically or economically necessary for the operation of an efficient gas market.
(3) A minor facility exemption—
(a) must be in writing;
(b) may be given—
(i) for an indefinite period or for a period determined under the exemption;
(ii) unconditionally or subject to such conditions as the Authority considers appropriate.
(4) The Authority must publish its decision to give or refuse to give a minor facility exemption together with the reasons for the decision.
(5) A minor facility exemption may be revoked—
(a) in accordance with provisions contained in it;
(b) at any other time, if the Authority considers that the condition in subsection (2) is no longer met.
(6) The Authority must from time to time publish a document setting out how it will determine whether the use of a facility by other persons is technically or economically necessary for the operation of an efficient gas market, including the matters it will take into account when determining this.
(7) Publication under subsection (4) or (6) must be in such manner as the Authority considers appropriate.
(8) Before publishing a document under subsection (6) the Authority must consult—
(a) the Secretary of State; and
(b) such other persons as the Authority considers appropriate.
(1) It shall be the duty of a gas transporter as respects each authorised area of his—
(a) to develop and maintain an efficient and economical pipe-line system for the conveyance of gas; and
(b) subject to paragraph (a) above, to comply, so far as it is economical to do so, with any reasonable request for him —
(i)
to connect to that system, and convey gas by means of that system to, any premises ; or.
(ii) to connect to that system a pipe-line system operated by an authorised transporter.
(1A) It shall also be the duty of a gas transporter to facilitate competition in the supply of gas.
(2) It shall also be the duty of a gas transporter to avoid any undue preference or undue discrimination—
(a) in the connection of premises , or a pipe-line system operated by an authorised transporter, to any pipe-line system operated by him; or
(b) in the terms on which he undertakes the conveyance of gas by means of such a system.
(2A) The conditions of a licence held by a gas transporter may include a condition requiring the gas transporter, in performing a duty under subsection (1), (1A) or (2), to have regard to the interests of existing and future consumers in relation to electricity conveyed by distribution systems or transmission systems (within the meaning of the Electricity Act 1989).
(3) The following provisions shall have effect, namely—
(a) Schedule 3 to this Act (which provides for the acquisition of land by gas transporters); and
(b) Schedule 4 to this Act (which relates to the breaking up of streets and bridges by such transporters).
(1) Subsection (2) below applies to any premises in an authorised area of a gas transporter which—
(a) are situated within 23 metres from a relevant main of the transporter; or
(b) could be connected to any such main by a pipe supplied and laid, or proposed to be supplied and laid, by the owner or occupier of the premises.
(2) Subject to the provisions of this Part and any regulations made under those provisions, a gas transporter shall, on being required to do so by the owner or occupier of any premises to which this subsection applies—
(a) in the case of premises falling within paragraph (a) of subsection (1) above, connect the premises to the relevant main, and supply and lay any pipe that may be necessary for that purpose; and
(b) in the case of premises falling within paragraph (b) of that subsection, connect the premises to the relevant main by the pipe there mentioned;
and in the following provisions of this section “connect”, in relation to any premises, means connect to a relevant main of a gas transporter and “connection” shall be construed accordingly.
(3) Subject to the provisions of this Part and any regulations made under those provisions, where any premises are connected (whether by virtue of subsection (2) above or otherwise), the gas transporter shall maintain the connection until such time as it is no longer required by the owner or occupier of the premises.
(3A) A gas transporter may require any person who requires a connection under subsection (2)(b) to accept any terms—
(a) indemnifying the transporter in respect of any liability connected with the laying of the pipe;
(b) which it is reasonable in all the circumstances for that person to be required to accept.
(4) Where any person requires a connection in pursuance of subsection (2) above, he shall serve on the gas transporter a notice specifying—
(a) the premises in respect of which the connection is required; and
(b) the day (not being earlier than a reasonable time after the service of the notice) upon which the connection is required to be made.
(5) Where any pipe is supplied and laid by a gas transporter in pursuance of subsection (2)(a) above, the cost of supplying and laying the pipe shall, if and to the extent that the transporter so requires and the conditions of his licence so allow, be defrayed by the person requiring the connection.
(5A) Where in pursuance of subsection (2)(b) a gas transporter connects any premises to a relevant main by a pipe supplied and laid by the owner or occupier of the premises, the cost of making the connection shall, if and to the extent that the transporter so requires and the conditions of his licence so allow, be defrayed by the person supplying and laying the pipe.
(6) Where at any time a gas transporter connects any premises under subsection (2)(b) above—
(a) the pipe supplied and laid by the owner or occupier of the premises; and
(b) any rights or liabilities of the owner or occupier which relate to the laying, maintenance, repair, alteration or removal of the pipe,
shall at that time vest in and become property , rights or liabilities of the transporter.
(7) The Director may, with the consent of the Secretary of State, make provision by regulations for entitling a gas transporter to require a person requiring a connection in pursuance of subsection (2) above to pay to the transporter an amount in respect of the expenses of the laying of the main used for the purpose of making that connection if—
(a) the connection is required within the prescribed period after the laying of the main;
(b) a person for the purpose of connecting whose premises the main was laid has made a payment to the transporter in respect of those expenses;
(c) the amount required does not exceed any amount paid in respect of those expenses by such a person or by any person previously required to make a payment under the regulations; and
(d) the transporter has not recovered those expenses in full.
(8) Nothing in subsection (2) or (3) above shall be taken as requiring a gas transporter to connect, or maintain the connection of, any premises if the supply of gas to those premises is likely to exceed 75,000 therms in any period of twelve months.
(9) Nothing in subsection (2) or (3) above shall be taken as requiring a gas transporter to connect, or to maintain the connection of, any premises if—
(a) he is prevented from doing so by circumstances not within his control;
(b) circumstances exist by reason of which his doing so would or might involve danger to the public, and he has taken all such steps as it was reasonable to take both to prevent the circumstances from occurring and to prevent them from having that effect; or
(c) in the case of premises falling within paragraph (b) of subsection (1) above, the pipe supplied and laid by the owner or occupier of the premises is not fit for the purpose.
(10) Where—
(a) any person requires a connection to be made or maintained in pursuance of subsection (2) or (3) above;
(b) the making or maintenance of the connection would involve a new or increased supply of gas to the premises in question;
(c) the gas transporter reasonably expects that, if the connection were made or maintained, gas would be supplied to the premises in question at a rate exceeding 2,500 therms a year; and
(d) the new or increased supply is such that the connection cannot be made or maintained without the laying of a new main, or the enlarging of an existing main, or the construction or enlarging of any other works required for the conveyance of gas,
the transporter may, if he thinks fit, refuse to make or maintain the connection unless that person enters into a written contract with the transporter to make such payments to him as he may reasonably require having regard to the expense to be incurred in laying or enlarging the main or constructing or enlarging the other works and the extent to which it is reasonable to expect that the transporter will recover that expense from elsewhere.
(11) If and to the extent that regulations made by the Director with the consent of the Secretary of State so provide, subsection (10) above shall have effect as if—
(a) the reference in paragraph (d) to the laying of a new main, the enlarging of an existing main or the construction or enlarging of any other works required for the conveyance of gas included a reference to a new main which had previously been laid, an existing main which had previously been enlarged or any other works required for the conveyance of gas which had previously been constructed or enlarged;
(b) the reference to the expense to be incurred in laying or enlarging the main or constructing or enlarging the other works included a reference to the expense which had been so incurred; and
(c) the reference to the extent to which it is reasonable to expect that the transporter will recover that expense from elsewhere included a reference to the extent to which the transporter had been able so to recover that expense.
(12) Subject to subsection (13) below, in this section “relevant main”, in relation to a gas transporter, means any distribution main in an authorised area of his which is being used for the purpose of giving a supply of gas to any premises in that area at a rate not exceeding 75,000 therms a year.
(13) Any pipe which—
(a) vests in and becomes the property of a gas transporter by virtue of subsection (6) above; and
(b) apart from this subsection, would be a relevant main for the purposes of this section,
shall be such a main if, and only if, it has been declared to be such a main by the transporter.
(14) A gas transporter shall make a declaration under subsection (13) above in respect of each pipe falling within that subsection which is fit for the purpose of being a relevant main; and a declaration under that subsection shall not be capable of being revoked.
10A Restriction on use of certain pipe-lines for providing a supply.
(1) Any pipe-line of a gas transporter—
(a) for the construction of which the execution of works has begun before the commencement of section 76 of the Utilities Act 2000 (abolition of geographical exclusivity of authorised areas of gas transporters); and
(b) which is situated in an area which, immediately before the commencement of that section, is the authorised area of a public gas transporter (the “other transporter”),
shall not be used for the purpose of giving a supply of gas to any premises in that area at a rate less than 2,196,000 kilowatt hours per year unless the other transporter consents in writing to such use.
(2) If the other transporter refuses or fails to give consent under subsection (1) consent may instead be given in writing by the Authority where it considers it appropriate to do so.
(3) Consent given under this section may not be withdrawn.
(4) In this section “pipe-line” has the same meaning as in the Pipe-lines Act 1962.
(1) Where any person requires a connection in pursuance of paragraph (a) of section 10(2) above and a pipe falls to be supplied and laid by the gas transporter in pursuance of that paragraph—
(a) the transporter may require that person to give him reasonable security for the payment to him of all money which may become due to him in respect of the supply and laying of the pipe; and
(b) if that person fails to give such security or, where any security given by him has become invalid or insufficient, fails to provide alternative or additional security, the transporter may if he thinks fit refuse to supply and lay the pipe for so long as the failure continues.
(2) Where any amount is deposited with a gas transporter by way of security in pursuance of this section, the transporter shall pay interest on that amount, at such rate as may from time to time be fixed by the transporter with the approval of the Director, in respect of the period during which it remains in the hands of the transporter.
(3) In this section “connection” shall be construed in accordance with section 10(2) above.
(1) This section applies to—
(a) a storage facility;
(b) an LNG import or export facility.
(2) The owner of a facility to which this section applies must—
(a) operate, maintain and develop the facility, so far as it is economical to do so, in a manner calculated to ensure that the facility is secure, reliable and efficient;
(b) take any steps required by the Authority to ensure that the owner maintains sufficient financial resources to enable the owner to comply with the owner’s obligations under this Act and under the Gas Regulation.
11B Duty of current and prospective LNG import or export facility owners to provide information
A person who is or expects to be the owner of an LNG import or export facility must provide the Authority with such information in such manner and at such times as the Authority may reasonably require to facilitate the performance of its functions under this Act.
11C Restrictions on disclosure of information by facility owners
(1) The owner of a storage facility or LNG import or export facility must take all reasonable steps to ensure that commercially sensitive information relating to the operation of the facility is not disclosed—
(a) to a person in a way that discriminates against any other person or description of persons;
(b) to an associated undertaking unless the disclosure is necessary in order to enable a transaction with that associated undertaking to take place.
(2) Information which is obtained by the owner of a storage facility or LNG import or export facility from an associated undertaking for the purpose of, or in the course of, a transaction with that undertaking must not be used by the owner for any other purpose.
(1) Except in prescribed cases, the number of therms or kilowatt hours conveyed by a gas transporter to premises, or to pipe-line systems operated by other gas transporters, shall be calculated in the prescribed manner—
(a) on the basis of calorific values of the gas determined by the transporter in accordance with regulations under this section, or so determined by another gas transporter and adopted by the transporter in accordance with such regulations; or
(b) if and to the extent that regulations under this section so provide and the transporter thinks fit, on the basis of declared calorific values of the gas;
and regulations under this section shall be made by the Director with the consent of the Secretary of State.
(2) In this Part—
“calorific value”, in relation to any gas, means the number of megajoules (gross) which would be produced by—
the combustion of one cubic metre of the gas measured at a temperature of 15°C and a pressure of 1013.25 millibars; or
if regulations under this section so provide, the combustion of one kilogram of the gas,
containing in either case, if the Director so determines, such an amount of water vapour as is specified in the determination;
“declared calorific value”, in relation to any gas conveyed by a gas transporter, means a calorific value declared by the transporter in accordance with regulations under this section, or so declared by another gas transporter and adopted by the transporter in accordance with such regulations.
(3) Regulations under this section may make provision as to the manner in which prescribed information with respect to the making of calculations in accordance with the regulations is to be made available to other licence holders and to the public.
(4) Regulations under this section made for the purposes of subsection (1)(a) above may make provision—
(a) for requiring determinations of calorific values of gas conveyed by gas transporters to be made on the basis of samples of gas taken at such places or premises, at such times and in such manner as the Director may direct;
(b) for requiring such determinations to be made at such places or premises, at such times and in such manner as the Director may direct;
(c) as to the manner in which the results of such determinations are to be made available to other licence holders and to the public;
(d) for requiring such premises, apparatus and equipment as the Director may direct to be provided and maintained by gas transporters for the purpose of making such determinations;
(e) for requiring gas transporters to carry out tests of apparatus and equipment so provided and maintained by them; and
(f) for requiring the results of such tests to be notified to the Director or to any person appointed under section 13(1) below, and to be made available to other licence holders and to the public.
(5) Regulations under this section made for the purposes of subsection (1)(b) above may make provision—
(a) for requiring declarations of calorific values of gas conveyed by gas transporters to be made at such times and in such manner as the Director may direct;
(b) as to the times when such declarations are to take effect, and as to the manner in which the calorific values declared are to be made available to other licence holders and to the public;
(c) for imposing requirements on gas transporters as to the correlation between—
(i) the calorific values of the gas conveyed by them for any period; and
(ii) the calorific values declared by them for that period;
(d) for requiring gas transporters to carry out tests of gas for the purpose of ascertaining whether they are complying with the requirements of regulations made by virtue of paragraph (c) above;
(e) for requiring such tests to be carried out at such places or premises, at such times and in such manner as the Director may direct; and
(f) for requiring the results of such tests to be notified to the Director or to any person appointed under section 13(1) below, and to be made available to other licence holders and to the public.
(6) Subject to subsection (7) below, the Director may by notice in writing require a gas transporter to give to the Director, or to any person appointed by him for the purpose, within such time and at such place as may be specified in the notice, such information as the Director may reasonably require for the purpose of making regulations under this section or section 13 below or of giving directions under such regulations.
(7) A gas transporter shall not be required under subsection (6) above to give any information which he could not be compelled to give in evidence in civil proceedings before the court; and in this subsection “the court” means—
(a) in relation to England and Wales, the High Court;
(b) in relation to Scotland, the Court of Session.
(1) The Director shall appoint competent and impartial persons—
(a) to carry out tests of apparatus and equipment provided and maintained by gas transporters in pursuance of regulations made by virtue of subsection (4)(d) of section 12 above for the purpose of ascertaining whether they comply with the regulations;
(b) to carry out tests of gas conveyed by gas transporters where the number of therms or kilowatt hours falls to be calculated in accordance with subsection (1)(b) of that section for the purpose of ascertaining whether the transporters are complying with the requirements of regulations made by virtue of subsection (5)(c) of that section; and
(c) generally to assist the Director in exercising his functions under, or under regulations made under, this section or that section.
(2) Regulations under this section, which shall be made by the Director with the consent of the Secretary of State, may make provision—
(a) for requiring such tests as are mentioned in subsection (1)(b) above to be carried out at such places or premises as the Director may direct;
(b) for requiring such premises, apparatus and equipment as the Director may direct to be provided and maintained by gas transporters for the purpose of carrying out such tests;
(c) for requiring samples of gas to be taken by gas transporters at such places or premises, at such times and in such manner as the Director may direct; and
(d) for requiring samples of gas so taken to be provided by gas transporters, for the purpose of carrying out such tests, at such places or premises, at such times and in such manner as the Director may direct.
(3) Regulations under this section may make provision—
(a) for persons representing the public gas transporter concerned to be present during the carrying out of such tests as are mentioned in subsection (1) above;
(b) as to the manner in which the results of such tests are to be made available to other licence holders and to the public; and
(c) for conferring powers of entry on property owned or occupied by gas transporters for the purpose of carrying out such tests and otherwise for the purposes of this section or section 12 above.
(4) There shall be paid out of money provided by Parliament to persons appointed under subsection (1) above who are members of the Director’s staff such remuneration and such allowances as may be determined by the Director with the approval of the Treasury, and such pensions as may be so determined may be paid out of money provided by Parliament to or in respect of such persons.
(5) Every person who is a gas transporter during any period shall pay to the Director such proportion (if any) as the Director may determine of—
(a) any sums paid by him under subsection (4) above in respect of that period; and
(b) such part of his other expenses for that period as he may with the consent of the Treasury determine to be attributable to his functions under section 12 above or this section;
and any liability under this subsection to pay to the Director sums on account of pensions (whether paid by him under subsection (4) above or otherwise) shall, if the Director so determines, be satisfied by way of contributions calculated, at such rate as may be determined by the Treasury, by reference to remuneration.
(6) Any sums received by the Director under this section shall be paid into the Consolidated Fund.
(1) The Authority may, with the consent of the Secretary of State, prescribe—
(a) standards of pressure and purity to be complied with by gas transporters in conveying gas to premises or to pipe-line systems operated by other gas transporters; and
(b) other standards with respect to the properties, condition and composition of gas so conveyed.
(2) Before making any regulations under this section the Authority shall consult such persons and organisations as it considers appropriate and such gas transporters as appear to it to be affected by the regulations.
(3) The Authority shall appoint competent and impartial persons for the purpose of—
(a) carrying out tests of gas, apparatus or equipment in accordance with regulations under this section; and
(b) assisting the Authority in exercising functions under this section and regulations made under it.
(4) Regulations under this section may make provision—
(a) for requiring tests of gas conveyed by gas transporters to be carried out by persons appointed under subsection (3) or by gas transporters for the purpose of ascertaining whether the gas conforms with the standards prescribed by the regulations;
(b) for requiring such tests to be carried out on the basis of samples taken by persons appointed under subsection (3) or by gas transporters; and
(c) for requiring samples of gas taken under paragraph (b) to be provided by gas transporters for the purpose of carrying out such tests.
(5) Regulations under this section may make provision—
(a) for requiring such premises, apparatus and equipment as the Authority may direct to be provided and maintained by gas transporters for the purpose of carrying out tests required under subsection (4)(a);
(b) for requiring tests of apparatus and equipment so provided to be carried out by persons appointed under subsection (3); and
(c) for requiring gas transporters to carry out tests of apparatus and equipment so provided and maintained by them.
(6) Regulations under this section may make provision—
(a) as to the places or premises and the times at which, and the manner in which—
(i) tests under this section are to be carried out;
(ii) samples of gas are to be taken and provided under this section; and
(iii) results of tests under this section are to be notified or made available;
(b) for the Authority to require by direction any matter which may be required by regulations by virtue of paragraph (a);
(c) for persons representing the gas transporter concerned to be present during the carrying out of any tests carried out by persons appointed under subsection (3);
(d) for the results of tests under this section to be made available to other licence holders and to the public;
(e) for requiring gas transporters to notify the results of such tests carried out by them to the Authority or to any person appointed under subsection (3);
(f) for conferring powers of entry on property owned or occupied by gas transporters for the purpose of carrying out tests under this section and otherwise for the purposes of the regulations.
(7) Subject to subsection (8), the Authority may by notice in writing require a gas transporter to give to the Authority, or to any person appointed by it for the purpose, within such time and at such place as may be specified in the notice, such information as the Authority may reasonably require for the purpose of making regulations under this section or of giving directions under such regulations.
(8) A gas transporter shall not be required under subsection (7) to give any information which he could not be compelled to give in evidence in civil proceedings before the High Court or, in Scotland, the Court of Session.
(9) Every person who is a gas transporter during any period shall pay to the Authority such proportion as the Authority may determine of such part of its expenses for that period as the Authority may determine to be attributable to its functions in connection with the testing of gas for the purposes of this section.
(10) It shall be the duty of every gas transporter to conduct his business in such a way as can reasonably be expected to secure compliance with the standards set under subsection (1).
(1) No meter shall be used for the purpose of ascertaining the quantity of gas supplied through pipes to any person unless it is stamped either by, or on the authority of, a meter examiner appointed under this section or in such other manner as may be authorised by regulations under this section.
(2) Subject to subsections (3) to (5) below, it shall be the duty of a meter examiner who is employed in the civil service of the State, on being required to do so by any person and on payment of the requisite fee—
(a) to examine any meter used or intended to be used for ascertaining the quantity of gas supplied to any person; and
(b) to stamp, or authorise the stamping of, that meter.
(3) A meter examiner shall not stamp, or authorise the stamping of, any meter unless he is satisfied that it is of such pattern and construction and is marked in such manner as is approved by the Director and that the meter conforms with such standards as may be prescribed for the purposes of this subsection.
(4) A meter examiner may stamp or authorise another person to stamp a meter, notwithstanding that he has not himself examined it, if—
(a) the meter was manufactured or repaired by the person submitting it to the examiner;
(b) that person has obtained the consent of the Director to his submission; and
(c) any conditions subject to which the consent was given have been satisfied.
(5) A meter examiner may authorise another person to stamp a meter, notwithstanding that he has not himself examined it, if—
(a) the meter was manufactured or repaired by that person;
(b) that person has obtained the consent of the Director to his stamping of the meter; and
(c) any conditions subject to which the consent was given have been satisfied.
(6) The Director shall appoint competent and impartial persons as meter examiners for the purposes of this section.
(7) There shall be paid out of money provided by Parliament to meter examiners who are employed in the civil service of the State such remuneration and such allowances as may be determined by the Director with the approval of the Treasury, and such pensions as may be so determined may be paid out of money provided by Parliament to or in respect of such examiners.
(7A) The Secretary of State may pay, out of money provided by Parliament, to meter examiners who are not employed in the civil service of the State or to any employer of such examiners—
(a) sums in connection with the performance by such examiners of functions conferred by or under this section or gas meter regulations (within the meaning of section 92 of the Energy Act 2008), and
(b) sums in respect of any pension payable to or in respect of such examiners.
(8) All fees payable to meter examiners who are employed in the civil service of the State for the performance of functions conferred by or under this section shall be paid to the Director; and any sums received by him under this subsection shall be paid into the Consolidated Fund.
(9) Regulations under this section, which shall be made by the Director ... , may make provision—
(a) for re-examining meters already stamped, and for the cancellation of stamps in the case of meters which no longer conform with the prescribed standards and in such other circumstances as may be prescribed;
(b) for requiring meters to be periodically overhauled; and
(c) for the revocation of any approval given by the Director to any particular pattern or construction of meter, and for requiring existing meters of that pattern or construction to be replaced within such period as may be prescribed for the purposes of this subsection.
(10) The fees to be paid to meter examiners who are employed in the civil service of the State for the performance of functions conferred by or under this section, and the persons by whom they are to be paid, shall be such as the Director may, with the approval of the Treasury, from time to time determine; and a determination under this subsection may—
(a) make different provision for different areas or in relation to different cases or different circumstances; and
(b) make such supplementary, incidental or transitional provision as the Director considers necessary or expedient.
(11) If any person supplies gas through a meter which has not been stamped under this section, he shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(12) Where the commission by any person of an offence under subsection (11) above is due to the act or default of some other person, that other person shall be guilty of the offence; and a person may be charged with and convicted of the offence by virtue of this subsection whether or not proceedings are taken against the first-mentioned person.
(13) In any proceedings for an offence under subsection (11) above it shall be a defence for the person charged to prove that he took all reasonable steps and exercised all due diligence to avoid committing the offence.
(14) The preceding provisions of this section shall not have effect in relation to the supply of gas to a person under any agreement providing for the quantity of gas supplied to him to be ascertained by a meter designed for rates of flow which, if measured at a temperature of 15°C and a pressure of 1013.25 millibars, would exceed 1600 cubic metres an hour.
(15) Regulations under this section may provide that subsection (14) above shall have effect as if for the number of cubic metres an hour which is for the time being applicable for the purposes of that subsection there were substituted such lower number of cubic metres an hour as the Director considers appropriate.
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2) The Secretary of State may by regulations make provision for empowering any officer authorised by the relevant authority—
(a) to enter any premises in which there is a service pipe connected with a gas main, for the purpose of inspecting any gas fitting on the premises, any flue or means of ventilation used in connection with any such gas fitting, or any part of the gas system on the premises, that is to say,any service pipe or other apparatus (not being a gas fitting) which is on the premises and is used for the conveyance orsupply of gas or is connected with a gas main;
(b) where he so enters any such premises, to examine or apply any test to any such object as is mentioned in paragraph (a) above and (where the object is a gas fitting) to verify what supply of air is available for it; and
(c) where in his opinion it is necessary to do so for the purpose of averting danger to life or property, and notwithstanding any contract previously existing, to disconnect and seal off any gas fitting or any part of the gas system on the premises, or disconnect the premises or, if the premises are not connected, to signify the refusal of the relevant authority to convey gas or, as the case may be, allow gas to be conveyed to the premises.
(3) Where any regulations under subsection (2) above confer any power in accordance with paragraph (c) of that subsection, the regulations shall also include provision—
(a) for securing that, where any such power is exercised, the consumer will be notified as to the nature of the defect or other circumstances in consequence of which it has been exercised;
(b) for enabling any consumer so notified to appeal to the Secretary of State on the grounds that the defect or other circumstances in question did not constitute a danger such as to justify the action taken in the exercise of the power, or did not exist or have ceased to exist; and
(c) for enabling the Secretary of State to give such directions as may in accordance with the regulations be determined by him to be appropriate in consequence of any such appeal.
(4) Regulations made under subsection (2) above may make provision for prohibiting any person, except with the consent of the relevant authority or in pursuance of any directions given by the Secretary of State as mentioned in subsection (3)(c) above, from—
(a) reconnecting any gas fitting or any part of any gas system which has been disconnected by or on behalf of the relevant authority in exercise of a power conferred by the regulations; or
(b) reconnecting any premises which have been disconnected by or on behalf of the relevant authority in the exercise of any such power; or
(c) causing gas from a gas main to be conveyed to any premises where in pursuance of the regulations the refusal of the relevant authority to convey gas or, as the case may be, allow gas to be conveyed to those premises has been signified and that refusal has not been withdrawn.
(5) Where in pursuance of any powers conferred by regulations made under subsection (2) above, entry is made on any premises by an officer authorised by the relevant authority—
(a) the officer shall ensure that the premises are left no less secure by reason of the entry; and
(b) the relevant authority shall make good, or pay compensation for, any damage caused by the officer, or by any person accompanying him in entering the premises, in taking any action therein authorised by the regulations, or in making the premises secure.
(6) Any officer exercising powers of entry conferred by regulations made under subsection (2) above may be accompanied by such persons as may be necessary or expedient for the purpose for which entry is made, or for the purposes of subsection (5) above.
(7) If any person intentionally obstructs any officer exercising powers of entry conferred by regulations made under subsection (2) above, he shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(8) The Rights of Entry (Gas and Electricity Boards) Act 1954 (entry under a justice’s warrant) shall apply in relation to any powers of entry conferred by regulations made under subsection (2) above as if any reference to a gas operator were a reference to the relevant authority.
(9) In this section “the relevant authority”—
(a) in relation to dangers arising from the conveyance of gas by a gas transporter, or from the use of gas conveyed by such a transporter, means that transporter; and
(b) in relation to dangers arising from the conveyance of gas by a person other than a gas transporter, or from the use of gas conveyed by such a person, means the Secretary of State.
(10) Where the relevant authority is a gas transporter, any reference in this section to any officer authorised by the authority includes a reference to any officer authorised by another such transporter with whom the authority has made arrangements for officers authorised by the other transporter to discharge any functions of the authority under this section.
(11) Except in cases of emergency, no officer shall be authorised by a gas transporter to exercise any powers of entry conferred by regulations under this section unless the transporter has taken all reasonable steps to ensure that he is a fit and proper person to exercise those powers.
(1) The Secretary of State may by regulations make provision—
(a) for empowering any officer authorised by a gas transporter, if the transporter has reasonable cause to suspect—
(i) that gas conveyed by the transporter is escaping, or may escape, in any premises; or
(ii) that gas so conveyed which has escaped has entered, or may enter, any premises,
to enter the premises, to carry out any work necessary to prevent the escape of gas and to take any other steps necessary to avert danger to life or property; and
(b) for empowering any officer so authorised, if the transporter has reasonable cause to suspect—
(i) that gas conveyed through pipes by some other person is escaping, or may escape, in any premises; or
(ii) that gas so conveyed which has escaped has entered, or may enter, any premises,
to enter the premises and take any steps necessary to avert danger to life or property.
(2) Subsections (5) to (7) and (11) of section 18 above shall apply for the purposes of this section as if—
(a) any reference to subsection (2) of that section were a reference to subsection (1) above;
(b) any reference to the relevant authority were a reference to a gas transporter;
(c) any reference to subsection (5) of that section were a reference to that subsection as applied by this subsection; and
(d) the reference in subsection (11) of that section to regulations under that section were a reference to regulations under this section.
(3) The Rights of Entry (Gas and Electricity Boards) Act 1954 (entry under a justice’s warrant) shall apply in relation to any powers of entry conferred by regulations made under subsection (1) above.
(4) Any reference in this section to any officer authorised by a gas transporter includes a reference to any officer authorised by another such transporter with whom the transporter has made arrangements for officers authorised by the other transporter to discharge any functions under this section of officers authorised by the transporter.
19 Acquisition of rights to use pipe-line systems.
(1) In the case of a pipe-line system operated by a gas transporter, any person may, after giving the transporter not less than 28 days’ notice, apply to the Director for directions under this section which would secure to the applicant a right of a description specified in the application to have conveyed by the system gas which—
(a) is of a kind so specified; and
(b) is of, or of a kind similar to, the kind which the system is designed to convey.
(2) Where an application is made under subsection (1) above, it shall be the duty of the Director—
(a) to decide whether the application is to be adjourned (so as to enable negotiations or further negotiations to take place), considered further or rejected;
(b) to give notice of his decision to the applicant;
(c) in the case of a decision that the application is to be considered further, to give to the transporter, to the Health and Safety Executive and to any person who has a right to have gas conveyed by the pipe-line system, notice that the application is to be so considered and an opportunity of being heard about the matter.
(3) Where, after further considering an application under subsection (1) above, the Director is satisfied that the giving of directions under this section would not prejudice the efficient operation of the pipe-line system, or the conveyance by the system of—
(a) the quantities of gas which the gas transporter requires or may reasonably be expected to require to be conveyed by the system to enable the transporter to comply with the conditions of his licence and to perform his contractual obligations;
(b) the quantities of gas which any person who has a right to have gas conveyed by the system is entitled to require to be so conveyed in the exercise of that right,
the Director may give such directions to the transporter.
(4) Directions under this section may—
(a) specify the terms on which the Director considers the gas transporter should enter into an agreement with the applicant for all or any of the following purposes—
(i) for securing to the applicant the right to have conveyed by the pipe-line system, for the period specified in the directions and in the quantities so specified or determined by or under the directions, gas which is of a kind so specified;
(ii) for securing that the exercise of that right is not prevented or impeded;
(iii) for regulating the charges which may be made for the conveyance of gas by virtue of that right;
(iv) for securing to the applicant such ancillary or incidental rights as the Director considers necessary or expedient, which may include the right to have a pipe-line of his connected to the pipe-line system by the transporter;
(b) specify the sums or the method of determining the sums which the Director considers should be paid by way of consideration for any such right; and
(c) require the transporter, if the applicant pays or agrees to pay those sums within a period specified in that behalf in the directions, to enter into an agreement with him on the terms so specified.
(5) In giving any directions under this section, the Director shall apply the principle that the gas transporter should be entitled to receive by way of charges for the conveyance of gas by virtue of the right—
(a) the appropriate proportion of the costs incurred by the transporter in administering, maintaining and operating his pipe-line system; and
(b) a return equal to the appropriate proportion of the return received by the transporter (otherwise than by virtue of the right) on the capital value of the system (including so much of that return as is set aside to meet the need from time to time to renew the system).
(6) In subsection (5) above “the appropriate proportion” means such proportion as properly—
(a) reflects the use made of the gas transporter’s pipe-line system by virtue of the right as compared with the use made of that system for other purposes; and
(b) takes into account the sums paid by way of consideration for the right and any sums paid in respect of the pipe-line system (whether by the applicant or by any other person) in pursuance of directions under section 21(1) below.
(7) Any reference in this section to a right to have gas of any kind conveyed by a pipe-line system includes a reference to a right to introduce into, or take out of, such a system gas of that kind.
19A Application of section 19B to storage facilities.
(1) Section 19B applies to a storage facility, except as provided in subsections (1A) and (1B).
(1A) Section 19B does not apply to a storage facility if it is subject to a minor facility exemption under section 8S.
(1B) Section 19B does not apply to a storage facility if, or to the extent that, it is exempt under this section.
(1C) The Authority must maintain on its website a list of the facilities to which section 19B applies.
(1D) If only part of the capacity of a storage facility is exempt under this section, the list under subsection (1C) must specify the extent to which section 19B applies to the facility.
(2) A person who is or expects to be an owner of a storage facility may apply in writing to the Director for an exemption under this section with respect to the facility.
(2A) An application under subsection (2) must relate to—
(a) a storage facility (or proposed storage facility) which is not yet operational; or
(b) a modification (or proposed modification) which falls within subsection (2B) and is not yet operational.
(2B) A modification (or proposed modification) falls within this subsection if it is—
(a) a modification of a storage facility to provide for a significant increase in the capacity of the facility; or
(b) a modification of a storage facility to enable the development of new sources of gas supply.
(2C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) An exemption under this section must be given in writing and on the following terms—
(a) a term specifying the period of the exemption, or specifying how that period is to be determined;
(b) a term as to whether the exemption applies to all of the capacity of the facility or part of that capacity only;
(c) a term that the owner must comply with the capacity allocation mechanism approved in accordance with section 19DB; and
(d) such other terms regarding non-discriminatory access to the facility or any other matter as the Authority considers appropriate.
(3A) When determining a term under subsection (3) the Authority must take into account—
(a) the capacity of the facility or (as the case may be) the increase in capacity of the facility;
(b) the length of time required to recover the investment in the facility or (as the case may be) the investment in the modification;
(c) the implications of the exemption for the operation of the gas market in Great Britain.
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6) Where the Authority receives an application under subsection (2) in relation to a facility or modification, it must give an exemption if it is satisfied that —
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) the requirements of subsection (8) are met.
(6A) An exemption given in accordance with subsection (6) may apply to all of the capacity of the facility concerned or to part of that capacity only, regardless of the extent of the exemption applied for; but this is subject to subsection (7).
(7) In respect of a facility which is or is to be modified to provide for a significant increase in its capacity, an exemption by virtue of subsection (6)(b) may only be given in relation to that increase in its capacity or part of that increase in its capacity.
(7A) When deciding whether the requirements of subsection (8)(a), (d) and (e) are met, the Authority must take into account the way in which capacity is to be allocated under the capacity allocation mechanism approved in accordance with section 19DB.
(8) The requirements of this subsection are that—
(a) the facility or (as the case may be) the modification will promote security of supply;
(b) the level of risk is such that the investment to construct the facility or (as the case may be) to modify the facility ... would not be or would not have been made without the exemption;
(c) the facility is or is to be owned by a person other than the gas transporter who operates or will operate the pipeline system connected or to be connected to the facility;
(d) charges will be levied on users of the facility or (as the case may) the increase in its capacity; and
(e) the exemption will not be detrimental to competition, the operation of an economically efficient gas market or the efficient functioning of the pipeline system connected or to be connected to the facility.
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(9) Subject to subsections (9A) and (10), an exemption may not be given by virtue of subsection (6)(b) more than once in respect of the same facility.
(9A) Subsection (9) does not prevent a further exemption being given by virtue of subsection (6)(b) in respect of a facility if the previous exemption given by virtue of that provision in respect of the facility has been revoked under section 19AA(5).
(10) Subsection (9) does not prevent a further exemption being given by virtue of subsection (6)(b) in respect of a facility if—
the facility is or is to be modified to provide for a significant increase in its capacity or to enable the development of new sources of gas supply;
the exemption has effect only in relation to that modification; and
no previous exemption has been given by virtue of subsection (6)(b) in relation to that modification.
(11) The Authority shall publish its decision to give or refuse to give an exemption under this section, together with the reasons for its decision, in such manner as it considers appropriate.
(12) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
19AA ... Revocation of exemptions under section 19A
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) The Authority must revoke an exemption given under section 19A in respect of a facility—
(a) if the construction of the facility, or (as the case may be) the making of the modification to which the exemption relates, has not been started within the 2 years beginning with the relevant date; or
(b) if the facility, or (as the case may be) the modification to which the exemption relates, is not operational within the 5 years beginning with the relevant date.
(4) In subsection (3) “relevant date” means—
(a) if before IP completion day the European Commission notified the Authority that it approved the exemption and terms as copied to it under subsection (1) (as it then had effect), the date of that notification;
(b) if, before IP completion day and in accordance with Article 36(9) of the Gas Directive, the European Commission required the Authority to modify the terms, the date of that requirement;
(c) if—
(i) before IP completion day the Authority sent the European Commission a copy of the exemption and terms under subsection (1) (as it then had effect), and
(ii) the European Commission does not act as described in paragraph (a) or (b) before IP completion day,
the date 4 months after the Authority sent the European Commission a copy of the exemption and terms under subsection (1) or IP completion day, whichever is the sooner;
(d) if the decision to give the exemption was published under section 19A(11) on or after IP completion day, the date on which the decision was published under section 19A(11).
(5) The Authority may at any other time revoke an exemption given under section 19A, or modify the terms on which such an exemption is given, in respect of a facility—
(a) in accordance with the provisions of the exemption; or
(b) by giving the owner of the facility a notice of revocation at least 4 months before the revocation takes effect.
19B Acquisition of rights to use storage facilities.
(1) The owner of a storage facility to which this section applies (a “relevant facility”)—
(a) shall publish at least once in every year the main commercial conditions relating to the grant to another person of a right to have gas or liquid gas stored in the facility on that person’s behalf; and
(b) shall publish any changes to the published conditions as soon as they become effective.
(2) In subsection (1) “year” means any year ending with 9th August.
(3) The owner of a relevant facility shall ensure that the conditions which he is required to publish under subsection (1) do not discriminate against any applicants or descriptions of applicants, or any potential applicants or descriptions of potential applicants, for a right to have gas or liquid gas stored in the facility.
(3A) At least 2 months before publishing the main commercial conditions, or any changes to the published conditions, under subsection (1), the owner of a relevant facility must—
(a) publish a draft of the proposed conditions or changes; and
(b) inform any person who has a right to have gas stored in the facility that the draft has been published.
(3B) When finalising conditions or changes under subsection (1), the owner of a relevant facility must take into account any representations it has received about the proposed conditions or changes.
(4) Any person who seeks a right to have gas or liquid gas stored on his behalf in a relevant facility (“the applicant”) shall, before making an application to the Director under subsection (8), apply to the owner of the facility for the right.
(5) An application under subsection (4) shall be made by giving notice to the owner specifying what is being sought.
(6) Such a notice shall, in particular, specify—
(a) the period during which the gas or liquid gas is to be stored in the facility;
(b) the kind of gas or liquid gas to be stored (which must be of, or similar to, the kind which the facility is designed to store); and
(c) the quantities of gas or liquid gas to be stored.
(7) Where an applicant gives notice under subsection (5), he and the owner of the facility shall negotiate in good faith and endeavour to reach agreement on the application.
(8) If the owner and the applicant do not reach any such agreement, the applicant may apply to the Director for directions under subsection (11) which would secure to the applicant the right specified in the notice under subsection (5).
(9) The Director shall not entertain an application under subsection (8) unless he is satisfied that the parties have had a reasonable time in which to fulfil their duties under subsection (7).
(10) Where a person applies to the Director under subsection (8) and the Director is satisfied as mentioned in subsection (9), the Director shall—
(a) decide whether the application is to be adjourned (so as to enable further negotiations to take place), considered further or rejected;
(b) give notice of his decision to the applicant; and
(c) in the case of a decision that the application is to be considered further, give to the owner of the facility, the Health and Safety Executive and any person who has a right to have gas or liquid gas stored in the facility notice that the application is to be so considered and an opportunity of being heard on the matter.
(11) Where, after considering an application under subsection (8), the Director is satisfied that the giving of directions under this subsection would not prejudice the efficient operation of the facility, or the storage in the facility of—
(a) the quantities of gas or liquid gas which the owner of the facility requires or may reasonably be expected to require to be stored in the facility; and
(b) the quantities of gas or liquid gas which any person who has a right to have gas or liquid gas stored in the facility is entitled to require to be so stored in the exercise of that right;
the Director may give such directions to the owner of the facility.
(12) Directions under subsection (11) may—
(a) specify the terms on which the Director considers the owner of the facility should enter into an agreement with the applicant for all or any of the following purposes—
(i) for securing to the applicant the right to have stored in the facility, for the period specified in the directions and in the quantities so specified or determined by or under the directions, gas or liquid gas which is of a kind so specified;
(ii) for securing that the exercise of that right is not prevented or impeded;
(iii) for regulating the charges which may be made for the storage of gas or liquid gas by virtue of that right;
(iv) for securing to the applicant such ancillary or incidental rights as the Director considers necessary or expedient (which may include, in particular, a right to have a pipeline of his connected to the facility by the owner);
(b) specify the sums or the method of determining the sums which the Director considers should be paid by way of consideration for any such right; and
(c) require the owner, if the applicant pays or agrees to pay those sums within a period specified in that behalf in the directions, to enter into an agreement with him on the terms so specified.
(1) Section 19D applies to an LNG import or export facility, except as provided in subsections (1A) and (1B).
(1A) Section 19D does not apply to an LNG import or export facility if, or to the extent that, it is exempt under this section.
(1B) Section 19D does not apply to an LNG import or export facility if it is exempt under section 19DZA.
(2) A person who is or expects to be an owner of an LNG import or export facility may apply in writing to the Director for an exemption under this section with respect to the facility.
(2A) An application under subsection (2) must relate to—
(a) a facility (or proposed facility) which is not yet operational; or
(b) a modification (or proposed modification) which falls within subsection (2B) and is not yet operational.
(2B) A modification (or proposed modification) falls within this subsection if it is—
(a) a modification of an LNG import or export facility to provide for a significant increase in the capacity of the facility; or
(b) a modification of an LNG import or export facility to enable the development of new sources of gas supply.
(2C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) An exemption under this section must be given in writing and on the following terms—
(a) a term specifying the period of the exemption, or specifying how that period is to be determined;
(b) a term as to whether the exemption applies to all of the capacity of the facility or part of that capacity only;
(c) a term that the owner must comply with the capacity allocation mechanism approved in accordance with section 19DB; and
(d) such other terms regarding non-discriminatory access to the facility or any other matter as the Authority considers appropriate.
(3A) When determining a term under subsection (3) the Authority must take into account—
(a) the capacity of the facility or (as the case may be) the increase in capacity of the facility;
(b) the length of time required to recover the investment in the facility or (as the case may be) the investment in the modification; and
(c) the implications of the exemption for the operation of the gas market in Great Britain.
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5) The Authority shall give an exemption with respect to a facility where it is satisfied that the requirements of subsection (7) are met.
(5A) An exemption given in accordance with subsection (5) may apply to all of the capacity of the facility concerned or to part of that capacity only, regardless of the extent of the exemption applied for; but this is subject to subsection (6).
(6) In respect of a facility which is or is to be modified to provide for a significant increase in its capacity, an exemption by virtue of subsection (5) may only be given in relation to that increase in its capacity or part of that increase in its capacity.
(6A) When deciding whether the requirements of subsection (7)(a), (d) and (e) are met, the Authority must take into account the way in which capacity is to be allocated under the capacity allocation mechanism approved in accordance with section 19DB.
(7) The requirements of this subsection are that—
(a) the facility or (as the case may be) the modification will promote security of supply;
(b) the level of risk is such that the investment to construct the facility or (as the case may be) to modify the facility ... would not be or would not have been made without the exemption;
(c) the facility is or is to be owned by a person other than the gas transporter who operates or will operate the pipeline system connected or to be connected to the facility;
(d) charges will be levied on users of the facility or (as the case may be) the increase in its capacity; and
(e) the exemption will not be detrimental to competition, the operation of an economically efficient gas market or the efficient functioning of the pipeline system connected or to be connected to the facility.
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(8) Subject to subsections (8A) and (9), an exemption may not be given by virtue of subsection (5) more than once in respect of the same facility.
(8A) Subsection (8) does not prevent a further exemption being given by virtue of subsection (5) in respect of a facility if the previous exemption given by virtue of that subsection in respect of the facility has been revoked under section 19CA(3).
(9) Subsection (8) does not prevent a further exemption being given by virtue of subsection (5) in respect of a facility if—
the facility is or is to be modified to provide for significant increase in its capacity or to enable the development of new sources of gas supply;
the exemption has effect only in relation to modification; and
no previous exemption has been given by virtue of subsection (5) in relation to modification.
(10) The Authority shall publish its decision to give or refuse to give an exemption under this section, together with the reasons for its decision, in such manner as it considers appropriate.
(11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
19CA ... Revocation of exemptions under section 19C
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) The Authority must revoke an exemption given under section 19C in respect of a facility—
(a) if the construction of the facility, or (as the case may be) the making of the modification to which the exemption relates, has not been started within the 2 years beginning with the relevant date; or
(b) if the facility, or (as the case may be) the modification to which the exemption relates, is not operational within the 5 years beginning with the relevant date.
(4) In subsection (4) “relevant date” means—
(a) if before IP completion day the European Commission notified the Authority that it approved the exemption and terms as copied to it under subsection (1) (as it then had effect), the date of that notification;
(b) if, before IP completion day and in accordance with Article 36(9) of the Gas Directive, the European Commission required the Authority to modify the terms, the date of that requirement;
(c) if—
(i) before IP completion day the Authority sent the European Commission a copy of the exemption and terms under subsection (1) (as it then had effect), and
(ii) the European Commission does not act as described in paragraph (a) or (b) before IP completion day,
the date 4 months after the Authority sent the European Commission a copy of the exemption and terms under subsection (1) or IP completion day, whichever is the sooner;
(d) if the decision to give the exemption was published under section 19C(10) on or after IP completion day, the date on which the decision was published under section 19C(10).
(5) The Authority may at any other time revoke an exemption given under section 19C, or modify the terms on which such an exemption is given, in respect of a facility—
(a) in accordance with the provisions of the exemption; or
(b) by giving the owner of the facility a notice of revocation at least 4 months before the revocation takes effect.
(1) Subject to subsection (2A), the owner of an LNG import or export facility to which this section applies (a “relevant facility”)—
(a) shall publish prior to their entry into force the main commercial conditions relating to the grant to another person of a right to have gas or liquid gas treated in the facility on that person’s behalf; and
(b) shall publish any changes to the published conditions as soon as they become effective.
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2A) The cost or the method of determining the cost of acquiring the right to have gas or liquid gas treated in a relevant facility and any changes thereto must be approved by the Authority prior to their publication; and such approval may be given on condition that certain modifications are made to the cost or methodology.
(2B) Before the owner of a relevant facility seeks approval under subsection (2A) he must carry out such consultation as the Authority may require.
(3) The owner of a relevant facility shall ensure that the conditions which he is required to publish under subsection (1) do not discriminate against any applicants or descriptions of applicants, or any potential applicants or descriptions of potential applicants, for a right to have gas or liquid gas treated in the facility.
(4) Any person who seeks a right to have gas or liquid gas treated on his behalf in a relevant facility (“the applicant”) shall, before making an application to the Director under subsection (8), apply to the owner of the facility for the right.
(5) An application under subsection (4) shall be made by giving notice to the owner specifying what is being sought.
(6) Such a notice shall, in particular, specify—
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) the kind of gas or liquid gas to be treated (which must be of, or similar to, the kind which the facility is designed to treat); and
(c) the quantities of gas or liquid gas to be treated.
(7) The owner shall notify the applicant of his decision giving reasons for any refusal.
(8) If the owner refuses the application , the applicant may apply to the Director for directions under subsection (11) which would secure to the applicant the right specified in the notice under subsection (5).
(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(10) Where a person applies to the Authority under subsection (8), the Authority shall—
(a) decide whether to give directions under subsection (11), to consider the application further or to reject the application
(b) give notice of his decision to the applicant; and
(c) in the case of a decision that the application is to be considered further—
(i) give to the owner of the facility, the Health and Safety Executive and any person who has a right to have gas or liquid gas treated in the facility notice that the application is to be so considered and an opportunity of being heard about the matter; and
(ii) after so considering the matter, decide whether to give directions under subsection (11) or to reject the application and give notice of its decision to the applicant.
(11) Where, after considering an application under subsection (8), the Director is satisfied that the giving of directions under this subsection would not prejudice the efficient operation of the facility, or the treatment in the facility of—
(a) the quantities of gas or liquid gas which the owner of the facility requires or may reasonably be expected to require to be treated in the facility; and
(b) the quantities of gas or liquid gas which any person who has a right to have gas or liquid gas treated in the facility is entitled to require to be so treated in the exercise of that right;
the Director may give such directions to the owner of the facility ; but this is subject to subsections (11A) and (11B) .
(11A) When considering whether the giving of directions under subsection (11) in respect of an LNG import or export facility would be prejudicial as mentioned in that subsection, the Authority must disregard any difficulties by virtue of which the owner of the facility may or must apply for an exemption under section 19DZA with respect to the facility.
(11B) The Authority must not give directions under subsection (11) in respect of an LNG import or export facility if—
(a) such directions would prevent the owner from carrying out any public service obligation which applies to the owner; or
(b) an exemption is in force with respect to the facility under section 19DZA (regardless of whether that exemption was given before or after the application to the Authority under subsection (8) was made).
(12) Directions under subsection (11) may—
(a) specify the terms on which the Director considers the owner of the facility should enter into an agreement with the applicant for all or any of the following purposes—
(i) for securing to the applicant the right to have treated in the facility, ... and in the quantities so specified or determined by or under the directions, gas or liquid gas which is of a kind so specified;
(ii) for securing that the exercise of that right is not prevented or impeded;
(iii) for regulating the charges which may be made for the treatment of gas or liquid gas by virtue of that right;
(iv) for securing to the applicant such ancillary or incidental rights as the Director considers necessary or expedient ...;
(b) specify the sums or the method of determining the sums which the Director considers should be paid by way of consideration for any such right; and
(c) require the owner, if the applicant pays or agrees to pay those sums within a period specified in that behalf in the directions, to enter into an agreement with him on the terms so specified.
(13) An obligation is a public service obligation for the purposes of this section if—
(a) it is imposed by or under a provision of an Act, and
(b) the provision is identified in a notice issued by the Secretary of State as a provision imposing, or enabling the imposition of, a public service obligation within the meaning of Article 3(2) of the Gas Directive (as it had effect immediately before IP completion day).
(14) For the purposes of subsection (13), the reference to Article 3(2) is to be read as if the reference in that provision to natural gas undertakings of the Community were a reference to natural gas undertakings of the United Kingdom.
19DZA Duty to allow others to use LNG import or export facilities: exemptions in relation to take-or-pay commitments
(1) The owner of an LNG import or export facility may apply to the Authority for an exemption under this section with respect to the facility if the owner—
(a) receives an application under section 19D(4) with respect to the facility; and
(b) considers that allowing the application would cause the owner serious financial difficulties because of take-or-pay commitments of the owner under one or more gas-purchase contracts.
(2) The owner of an LNG import or export facility must apply to the Authority for an exemption under this section with respect to the facility if—
(a) the owner refuses an application under section 19D(4) with respect to the facility; and
(b) the reason, or one of the reasons, given under section 19D(7) for the refusal is the consideration mentioned in subsection (1)(b).
(3) An application made by virtue of subsection (2) must be made before the end of the 7 days beginning with the day of the refusal.
(4) An application for an exemption under this section must enclose all relevant information, including in particular information in respect of—
(a) the nature and extent of the difficulties mentioned in subsection (1)(b) which the owner considers would arise (the “difficulties”);
(b) any steps taken by the owner to prevent the difficulties from arising; and
(c) the period over which the owner considers the difficulties would arise.
(5) The Authority may give an exemption under this section if it considers that—
(a) having regard to any steps taken by the owner to prevent the difficulties from arising, the only reasonably available means of prevention is an exemption under this section; and
(b) an exemption ought to be given, having regard to—
(i) the objective of achieving a competitive gas market;
(ii) the need for the owner to comply with any relevant public service obligation which applies to the owner;
(iii) the need to ensure security of the supply of gas;
(iv) the position of the owner of the facility in the gas market and the level of competition in the market;
(v) the level of seriousness of the difficulties;
(vi) the time when the gas-purchase contract was entered into, and the extent to which the owner could reasonably have foreseen at that time that the difficulties were likely to arise;
(vii) the terms of the gas-purchase contract, including the extent to which the contract allows for market changes;
(viii) the significance of the facility to the gas market; and
(ix) the overall effect of the exemption on the operation of an economically efficient gas market.
(5A) In subsection (5)(b)(ii) “public service obligation” has the same meaning as in section 19D.
(6) An exemption under this section must be given for a limited period and in writing and must specify—
(a) the period of the exemption; and
(b) any conditions the Authority considers necessary in order to ensure that the owner takes all reasonably practicable steps to ensure that, by the time the exemption expires, the difficulties would no longer arise.
(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(8) An exemption under this section may be modified or revoked by the Authority—
(a) in accordance with its provisions;
(b) at any other time, if the Authority considers that an exemption under this section is no longer required.
(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(10) In this section “take-or-pay commitment” and “gas-purchase contract” have the same meanings as in Article 48(1) of the Gas Directive.
19DB Allocation of capacity in exempt new and modified facilities
(1) This section applies in relation to an application for an exemption—
(a) under section 19A(2), in respect of all or part of the capacity of a storage facility; or
(b) under section 19C(2), in respect of all or part of the capacity of an LNG import or export facility.
(2) The application must specify the criteria that will be used to determine—
(a) who is to be granted rights to use the facility, or the part of the capacity of the facility, to which the application relates (the “exempt infrastructure”); and
(b) the way in which those rights may be exercised,
(the “capacity allocation mechanism”).
(3) The Authority must not give an exemption under section 19A or 19C in response to the application unless it has—
(a) approved the capacity allocation mechanism specified in the application; or
(b) approved the mechanism on condition that certain modifications are made to it.
(4) The Authority may only approve the capacity allocation mechanism under subsection (3)(a) if it considers that the mechanism meets the following three conditions.
(5) The first condition is that before a right to use the exempt infrastructure is granted to the owner of the facility or to any other person—
(a) the intention to grant a right to use the exempt infrastructure must be published in a way that the Authority considers appropriate for the purpose of bringing it to the attention of persons likely to be interested in using the infrastructure; and
(b) such persons must be able to register an interest in using the exempt infrastructure.
(6) The second condition is that the mechanism must require that any unused capacity in the exempt infrastructure be made available to other users or potential users.
(7) The third condition is that the mechanism must not prevent, and must not be capable of being used to prevent, subsequent trading of rights to use the exempt infrastructure.
(8) The Authority may only approve the capacity allocation mechanism under subsection (3)(b) if it considers that the mechanism will meet those three conditions once the modifications on which the approval is conditional have been made.
(1) In sections 19A to 19D and this section—
“accounting information” means such accounting records as would be required by section 386 of the Companies Act 2006 in respect of each of the storage or (as the case may be) treatment activities undertaken by the owner of the facility if those activities were the only business undertaken by the owner and the owner were a person to whom that section applied;
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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ....
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“significant transaction” means—
any transaction which relates to rights to have gas or liquid gas stored in a storage facility, or (as the case may be) treated in an LNG import or export facility; and
any other transaction which is of a description specified from time to time by the Director by notice;
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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(2) For the purpose of considering an application under section 19B(8) or 19D(8), the Director may by notice require the owner of the relevant facility to provide him with accounting information and details of the main commercial terms of any significant transactions with associated undertakings.
(3) Owners of relevant facilities shall keep their internal accounts in such manner as will enable them to provide accounting information if required to do so by a notice under subsection (2).
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5) Any reference in section 19B to a right to have gas or gas of any kind, or liquid gas or liquid gas of any kind, stored in a storage facility includes a reference to a right to introduce into, or take out of, such a facility gas or gas of that kind, or liquid gas or liquid gas of that kind,.
(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(1) If in the case of a pipe-line system operated by a gas transporter it appears to the Director, on the application of a person other than the transporter, that the system can and should be modified—
(a) by installing in it a junction through which another pipe-line may be connected to the system; or
(b) by modifying apparatus and works associated with a high pressure pipe-line so as to increase the capacity of the pipe-line,
then, subject to subsection (3) below, the Director may, after giving to the transporter an opportunity of being heard about the matter and giving to the Health and Safety Executive notice of his proposed directions, give directions to the transporter in accordance with subsection (2) below in consequence of the application.
(2) Directions under subsection (1) above may—
(a) specify the modifications which the Director considers should be made in consequence of the application;
(b) specify the sums or the method of determining the sums which the Director considers should be paid to the gas transporter by the applicant by way of consideration for the modifications;
(c) specify the arrangements which the Director considers should be made by the applicant, within a period specified in that behalf in the directions, for the purpose of securing that those sums will be paid to the transporter if he carries out the modifications;
(d) require the transporter, if the applicant makes those arrangements within the period aforesaid, to carry out the modifications within a period specified in that behalf in the directions.
(3) Where the Director proposes to give directions under subsection (1) above, it shall be his duty before doing so to give to the applicant—
(a) particulars of the modifications which he proposes to specify in the directions; and
(b) an opportunity of making an application under subsection (1) of section 19 above in respect of the pipe-line system;
and that section shall have effect in relation to such an application made by virtue of this subsection as if for references to a pipe-line system there were substituted references to the pipe-line system as it would be with those modifications and the reference in subsection (2) to the Director deciding whether the application is to be adjourned were omitted.
(3A) In giving any directions under this section, the Director shall apply the principle that, in so far as the following, namely—
(a) the cost of carrying out the modifications; and
(b) a reasonable element of profit,
will not be recoverable by the gas transporter from elsewhere, the transporter should be entitled to receive them by way of consideration for carrying out the modifications.
(4) References in this section to modifications include, in the case of modifications to any apparatus and works, references to changes in, substitutions for and additions to the apparatus and works; and the reference in subsection (1) above to apparatus and works associated with a pipe-line shall be construed in accordance with section 65(2) of the Pipe-lines Act 1962.
(5) In this section—
“high pressure pipe-line” means any pipe-line which has a design operating pressure exceeding 7 bar gauge;
“pipe-line” has the same meaning as in the Pipe-lines Act 1962.
(1) The obligation to comply with any directions under section section 19... or 21(1) above (in this section referred to as “relevant directions”) is a duty owed to any person who may be affected by a contravention of them.
(2) Where a duty is owed by virtue of subsection (1) above to any person any breach of the duty which causes that person to sustain loss or damage shall be actionable at the suit or instance of that person.
(3) In any proceedings brought against any person in pursuance of subsection (2) above, it shall be a defence for him to prove that he took all reasonable steps and exercised all due diligence to avoid contravening the relevant directions ....
(4) Without prejudice to any right which any person may have by virtue of subsection (2) above to bring civil proceedings in respect of any contravention or apprehended contravention of any relevant directions, compliance with any such directions shall be enforceable by civil proceedings by the Director for an injunction or interdict or for any other appropriate relief.
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(1) A gas transporter shall not at any time execute within 23 metres from a pipe-line of another gas transporter (the “other transporter”) any works for the construction of a pipe-line unless—
(a) he has given the other transporter a notice stating that he intends to construct the pipe-line;
(b) he has consulted with that transporter as to exactly where . . . the proposed pipe-line is to be located, having regard to the location of other pipe-lines . . .; . . .
(c) he has consulted with that transporter as to the manner in which—
(i) the safety of the pipe-line is to be secured; and
(ii) any escapes of gas (actual or suspected) from the pipe-line are to be dealt with ; and.
(d) (subject to subsection (1C)) where the existing pipe-line is a relevant main of the other transporter, that transporter has consented in writing to the construction of the proposed pipe-line, either unconditionally or subject to conditions.
(1A) Subsection (1) does not apply if the proposed pipe-line is required to enable a gas transporter to comply with any duty imposed by section 10(2).
(1B) Conditions imposed under subsection (1)(d) may relate to matters arising after the construction of the proposed pipe-line, including the use to be made of the pipe-line.
(1C) If the other transporter—
(a) refuses or fails to give consent under subsection (1)(d); or
(b) gives such consent subject to conditions,
consent may instead be given in writing by the Authority where it considers it appropriate to do so.
(1D) Consent under subsection (1C) may only be given unconditionally or, in a case falling within subsection (1C)(b), subject to the same conditions as were imposed by the other transporter.
(1E) A condition imposed on a gas transporter under this section shall be enforceable by civil proceedings by the other transporter for an injunction or for interdict or for any other appropriate relief.
(2) A notice under subsection (1)(a) above shall—
(a) specify the points between which the proposed pipe-line is to run and be accompanied by a map (drawn to an appropriate scale) on which is delineated the route which it is proposed to take;
(b) specify the length, diameter and operating pressure of the proposed pipe-line and the kind of gas which it is designed to convey; and
(c) contain such other particulars (if any) as may be prescribed.
(3) In this section—
“construction”, in relation to a pipe-line, includes placing;
“pipe-line” has the same meaning as in the Pipe-lines Act 1962.
“relevant main” has the meaning given by section 10(12).
(4) For the purposes of this section the execution of works in land for the purpose of determining whether or not it is suitable for the placing in it of a pipe-line and the carrying out of surveying operations for the purpose of settling the route of a proposed pipe-line shall be deemed not to constitute the execution of works for the construction of a pipe-line.
(1) The Authority may make modifications of—
(a) the conditions of a particular licence;
(b) the standard conditions of licences of any type under section 7, 7ZA, 7A(1) or (2) or 7AC.
(2) Before making any modifications under this section, the Authority must give notice—
(a) stating that it proposes to make modifications;
(b) setting out the proposed modifications and their effect;
(c) stating the reasons why it proposes to make the modifications; and
(d) specifying the time within which representations with respect to the proposed modifications may be made.
(3) The time specified by virtue of subsection (2)(d) may not be less than 28 days from the date of the publication of the notice.
(4) A notice under subsection (2) must be given—
(a) by publishing the notice in such manner as the Authority considers appropriate for the purpose of bringing the notice to the attention of persons likely to be affected by the making of the modifications, and
(b) by sending a copy of the notice to—
(i) each relevant licence holder,
(ii) the Secretary of State,
(iii) the Health and Safety Executive, ...
(iv) Citizens Advice, and
(v) Consumer Scotland.
(4A) The Authority must consider any representations which are duly made.
(5) If, within the time specified by virtue of subsection (2)(d) , the Secretary of State directs the Director not to make any modification, the Director shall comply with the direction.
(6) Subsections (7) to (9) apply where, having complied with subsections (2) to (4A), the Authority decides to proceed with the making of modifications of the conditions of any licence under this section.
(7) The Authority must—
(a) publish the decision and the modifications in such manner as it considers appropriate for the purpose of bringing them to the attention of persons likely to be affected by the making of the modifications,
(b) state the effect of the modifications,
(c) state how it has taken account of any representations duly made, and
(d) state the reason for any differences between the modifications and those set out in the notice by virtue of subsection (2)(b).
(8) Each modification has effect from the date specified by the Authority in relation to that modification (subject to the giving of a direction under paragraph 2 of Schedule 4A).
(9) The date specified by virtue of subsection (8) may not be less than 56 days from the publication of the decision to proceed with the making of modifications under this section.
(10) In this section “relevant licence holder”—
(a) in relation to the modification of standard conditions of licences of any type, means the holder of a licence of that type—
(i) which is to be modified by the inclusion of any new standard condition, or
(ii) which includes any standard conditions to which the modifications relate which are in effect at the time specified by virtue of subsection (2)(d); or
(b) in relation to the modification of a condition of a particular licence (other than a standard condition), means the holder of that particular licence.
23A Modification of conditions under section 23: supplementary
(1) Subsections (2) and (3) apply where at any time the Authority modifies the conditions of licences of any type under section 23.
(2) If the conditions modified are standard conditions, the Authority must—
(a) also make (as nearly as may be) the same modifications of those conditions for the purposes of their incorporation in licences of that type granted after that time, and
(b) publish the modifications in such manner as it considers appropriate for the purpose of bringing them to the attention of persons likely to be affected by the making of the modifications.
(3) The Authority may make such incidental or consequential modifications of any conditions of licences of any type as it considers necessary or expedient.
(4) The modification of part of a standard condition of a particular licence under section 23 does not prevent any other part of the condition from continuing to be regarded as a standard condition for the purposes of this Part.
(5) The modification of a condition of a licence under this section has effect subject to the giving of a direction under paragraph 2 of Schedule 4A in relation to the decision to which the modification relates.
(1) An appeal lies to the CMA against a decision by the Authority to proceed with the modification of a condition of a licence under section 23.
(2) An appeal may be brought under this section only by—
(a) a relevant licence holder (within the meaning of section 23);
(b) any other person who holds a licence of any type under section 7, 7ZA, , 7A(1) or (2) , 7AA, 7AB or 7AC whose interests are materially affected by the decision;
(c) a qualifying body or association in the capacity of representing a person falling within paragraph (a) or (b);
(d) Citizens Advice or Consumer Scotland or those bodies acting jointly in the capacity of representing consumers whose interests are materially affected by the decision.
(3) The permission of the CMA is required for the bringing of an appeal under this section.
(4) The CMA may refuse permission to bring an appeal only on one of the following grounds—
(a) in relation to an appeal brought by a person falling within subsection (2)(b), that the interests of the person are not materially affected by the decision;
(b) in relation to an appeal brought by a qualifying body or association, that the interests of the person represented are not materially affected by the decision;
(c) in relation to an appeal brought by Citizens Advice or Consumer Scotland or those bodies acting jointly, that the interests of the consumers represented are not materially affected by the decision;
(d) in relation to any appeal—
(i) that the appeal is brought for reasons that are trivial or vexatious;
(ii) that the appeal has no reasonable prospect of success.
(5) References in this section to a qualifying body or association are to a body or association whose functions are or include representing persons in respect of interests of theirs which are materially affected by the decision in question.