Infrastructure Bill (HC Bill 124)
SCHEDULE 4 continued PART 4 continued
Infrastructure BillPage 100
Interpretation
44 (1) In this Part of this Schedule—
-
“local authority” means—
(a)a district council,
(b)5a county council in England for an area for which there is no
district council,(c)a county council in Wales,
(d)a county borough council,
(e)a London borough council,
(f)10the Common Council of the City of London, or
(g)the Council of the Isles of Scilly;
-
“the old register”, in relation to a local authority, means the local land
charges register kept by the authority under the Local Land Charges
Act 1975 before the relevant date; -
15“the new register” means the local land charges register kept by the
Chief Land Registrar under the Local Land Charges Act 1975; -
“the relevant date”, in relation to a local authority, means the date on
which Parts 1 and 3 of this Schedule first had effect in relation to the
authority’s area.
(2)
20For the purposes of this Part of this Schedule the area of the Common
Council of the City of London includes the Inner Temple and the Middle
Temple.
(3)
Expressions used in this Part of this Schedule and in the Local Land Charges
Act 1975 have the same meaning as in that Act.
Section 33
25SCHEDULE 5 Community electricity right regulations
Part 1 The right to buy
“Right to buy regulations”
1
30In this Schedule “right to buy regulations” means regulations under
subsection (1) of section 33.
Kinds of facilities in relation to which right to buy exercisable
2
(1)
Right to buy regulations must specify the kind, or kinds, of renewable
electricity generation facilities in relation to which the right to buy is to be
35exercisable.
(2)
The regulations must secure that the right to buy is not to be exercisable in
relation to a renewable electricity generation facility if the total installed
capacity of the facility is expected to be less than 5 megawatts.
(3)
The regulations may specify a kind of renewable electricity generation
40facility by reference to one or more of the following factors—
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(a) the renewable source of energy used at the facility;
(b) the technology used to generate electricity at the facility;
(c) the electricity generation capacity of the facility;
(d) whether the facility is a land-based facility or an offshore facility.
5Identification of qualifying facilities
3
(1)
Right to buy regulations must make provision enabling those renewable
electricity generation facilities which are qualifying facilities to be identified.
(2)
The regulations may make provision enabling the following to be
identified—
(a)
10different renewable electricity generation facilities located at the
same site;
(b) any facility at that site which is a qualifying facility.
(3)
The regulations may make provision enabling the following to be identified
in cases where there is expansion at a site where a renewable electricity
15generation facility is located—
(a)
any new renewable electricity generation facility created by the
expansion;
(b)
any facility at that site which is a qualifying facility (including any
existing facility which becomes a qualifying facility because its total
20installed capacity is expected to be 5 megawatts or more as a result
of the expansion).
(4)
Right to buy regulations may make provision about cases in which the right
to buy is not to be exercisable in relation to a renewable electricity generation
facility which would otherwise be a qualifying facility (an “excepted
25facility”).
(5)
The functions that may be conferred by regulations under sub-paragraph (4)
(in accordance with section 34(1)) include—
(a)
the function of determining whether or not a renewable electricity
generation facility is an excepted facility;
(b)
30the function of specifying that a particular renewable electricity
generation facility is an excepted facility.
(6)
The regulations may provide for an excepted facility to be identified by
reference to one or more of the following factors—
(a) community ownership of the facility;
(b) 35community ownership of a stake in the facility;
(c)
non-participation in a statutory energy scheme (whether or not there
could be participation in the scheme in respect of the facility).
The promoter
4
(1)
Right to buy regulations must make provision enabling the promoter of a
40qualifying facility to be identified in a case where the promoter is not, or is
not expected to become, the facility operator.
(2)
In this paragraph “promoter” means a person developing a qualifying
facility.
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The community
5
(1)
Right to buy regulations must make provision enabling the following to be
identified—
(a) the community in which a land-based facility is located;
(b) 5the community adjacent to which an offshore facility is located.
(2) A community must be a geographical area which is—
(a) wholly in England, wholly in Wales or wholly in Scotland;
(b) partly in England and partly in Wales; or
(c) partly in England and partly in Scotland.
(3)
10A community may be identified by reference to one or more of the following
factors—
(a)
distance measured from the facility or some other point (such as a
point on a coastline adjacent to an offshore facility);
(b) the number of residents;
(c) 15administrative boundaries of any kind.
The members of the community
6
(1)
Right to buy regulations must make provision enabling the following to be
identified—
(a) individuals who may exercise the right to buy;
(b) 20groups who may exercise the right to buy.
(2)
The individuals who may exercise the right to buy may be identified by
reference to one or more of the following factors—
(a) how old an individual is;
(b) how long an individual has been resident in the community;
(c)
25whether the community is an individual’s only (or main) place of
residence.
(3)
Right to buy regulations may specify the kind, or kinds, of individuals who
may not exercise the right to buy.
(4)
Those kinds of individuals may be identified by reference to one or more of
30the following factors—
(a)
whether an individual is, or has been, bankrupt or subject to any
other kind of arrangement relating to indebtedness;
(b)
whether an individual has been convicted of a criminal offence
involving fraud;
(c) 35whether an individual is connected with—
(i) the designated promoter or facility operator, or
(ii)
bodies or individuals connected with the designated
promoter or facility operator.
(5)
The groups who may exercise the right to buy may be identified by reference
40to one or more of the following factors—
(a) the legal form of the group;
(b) the constitution, structure and management of the group;
(c)
the criteria for membership of the group (including criteria relating
to residence);
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(d) the members of the group;
(e) the aims of the group;
(f) the activities of the group (including economic activities);
(g)
the geographical area or areas in which, or in relation to which, the
5group operates;
(h) the treatment of income and profits of the group;
(i) the treatment of assets of the group (including on its dissolution);
(j) whether the group is connected with—
(i) the designated promoter or facility operator, or
(ii)
10bodies or individuals connected with the designated
promoter or facility operator.
(6)
The provision that may be made about membership, or members, of the
group under sub-paragraph (5)(c) or (d) includes provision of any kind that
may be made under sub-paragraph (2) or (4) about individuals.
(7)
15Right to buy regulations may specify the kind, or kinds, of groups who may
not exercise the right to buy.
(8)
Regulations under this paragraph may make provision about which persons
are connected with which other persons for the purposes of any such
regulations.
(9)
20The regulations may provide that one person (“A”) is connected with
another person (“B”) by virtue of—
(a) a direct or indirect connection;
(b)
connections arising from employment or office-holding, from family
relationships, or from financial arrangements;
(c) 25A being the parent of B or another person connected with B;
(d) A being a subsidiary of B or another person connected with B.
Kinds of stake which may be bought through the right to buy
7
(1)
Right to buy regulations must specify the kinds of stakes in qualifying
facilities which may be bought through the right to buy.
(2) 30A stake may take any of the following forms—
(a) one or more shares in a company;
(b) any other interest in a body other than a company;
(c) an equitable interest;
(d) a right to a royalty related to revenues;
(e) 35a loan.
(3)
Right to buy regulations may make provision about the rights, obligations,
powers and other terms attaching to a stake.
Particular kind of stake which may be bought in particular facility
8
(1)
Right to buy regulations must require the designated promoter or facility
40operator to choose the kind, or kinds, of stake in a qualifying facility that are
to be available through the right to buy.
(2)
The regulations must give the designated promoter or facility operator a
choice of at least two different kinds of stake in relation to a qualifying
facility.
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(3) The regulations must require the designated promoter or facility operator—
(a)
to carry out a consultation before choosing which kind, or kinds, of
stake are to be available, and
(b)
to take the results of that consultation into account in making the
5choice.
The price of the stakes
9
(1)
Right to buy regulations must make provision about setting the price of the
available stakes in a qualifying facility.
(2)
In making the regulations, the Secretary of State must have regard to the
10desirability of the prices of available stakes reflecting a measure of fair value.
(3)
In this paragraph “available stakes”, in relation to a qualifying facility,
means the stakes in the qualifying facility that are to be offered through the
right to buy.
Total value of the offer
10
(1)
15Right to buy regulations must require the offer to consist of stakes whose
combined price is—
(a) equal to, or
(b) greater than,
the minimum amount described in the regulations.
(2)
20That minimum amount must be expressed as a percentage of the total capital
costs of development of a qualifying facility.
(3) That percentage must not exceed 5%.
(4) The regulations may make provision about—
(a)
the kinds of costs that are capital costs of development of a qualifying
25facility;
(b)
calculation of the total capital costs of development of a qualifying
facility.
(5)
The provision about calculation of the total capital costs may provide for the
total—
(a)
30to be calculated by reference to a period ending after the time of the
calculation (including a period ending with commissioning of the
facility);
(b)
to include costs which have not been incurred at the time of the
calculation;
(c) 35to include estimated costs.
(6) In this paragraph—
-
“combined price”, in relation to the stakes offered through the right to
buy, means the total which the amounts to be paid for all of those
stakes will add up to (assuming those stakes are all bought); -
40“offer” means the offer of stakes in a qualifying facility through the
right to buy.
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Buying a stake
11
(1)
Right to buy regulations must make provision about the procedure for
exercising the right to buy in relation to a qualifying facility (the “purchase
procedure”).
(2) 5The purchase procedure must identify what stake or stakes—
(a) the individuals resident in the community, and
(b) the groups connected with the community,
may buy through the right to buy.
(3)
The regulations may require the designated promoter or facility operator to
10conduct the purchase procedure.
(4)
The purchase procedure must identify the period of time during which
stakes in a qualifying facility may be applied for (the “application period”).
(5)
The purchase procedure must secure that the application period does not
begin until after planning consent has been given for the development of the
15qualifying facility.
(6)
Here “planning consent” means whichever of the following is, or are,
needed for that facility to be developed—
(a) development consent under the Planning Act 2008;
(b)
planning permission under Part 3 of the Town and Country Planning
20Act 1990;
(c) a marine licence under the Marine and Coastal Access Act 2009;
(d)
consent of the Scottish Ministers under section 36 of the Electricity
Act 1989;
(e)
planning permission under the Town and Country Planning
25(Scotland) Act 1997;
(f) a marine licence under Part 4 of the Marine (Scotland) Act 2010.
Excessive or insufficient take-up
12
(1)
Right to buy regulations may make provision (including provision relating
to the allocation of stakes)—
(a)
30about cases where applications made in the application period
exceed the available stakes, and
(b)
about cases where applications made in the application period do
not exceed the available stakes.
(2)
Provision about cases where applications made in the application period do
35not exceed the available stakes may—
(a) provide for the right to buy to be modified or to cease to apply;
(b)
identify a subsequent period of time (a “secondary period”) during
which the right to buy is to be exercisable.
(3)
If right to buy regulations identify a secondary period, the regulations may
40make, in relation to the secondary period, any provision of the kinds
mentioned in sub-paragraphs (1) and (2)(a) that may be made in relation to
the application period.
(4)
The power under section 46 to make different provision in community
electricity right regulations for different purposes includes power to make
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provision relating to secondary periods that is different from provision
relating to application periods.
(5) The provision that may differ includes provision about—
(a)
the community in which a land-based facility is located or adjacent
5to which an offshore facility is located;
(b)
the individuals resident in a community or the groups connected
with a community who may exercise the right to buy.
(6) In this paragraph—
-
“application period” has the meaning given in paragraph 11;
-
10“applications” means applications for stakes in a qualifying facility;
-
“available stakes” means the stakes in a qualifying facility that are
available to be bought through the right to buy.
Subsequent disposal of a stake
13
(1)
Right to buy regulations may make provision about the disposal of a stake
15in a qualifying facility after it has been bought through the right to buy
(whether the disposal is by a person who bought the stake through the right
to buy or by a person who has subsequently acquired it).
(2)
The regulations may impose restrictions or prohibitions on the disposal of a
stake.
(3)
20The regulations may impose duties to dispose of a stake in a case where the
holder ceases to be—
(a) an individual resident in a community, or
(b) a body connected with a community.
(4)
A restriction or prohibition may limit or prevent the disposal of a stake
25except to an individual or body who—
(a)
would have been able to buy the stake at the time when the right to
buy was originally exercisable, or
(b)
would be able to buy the stake at the time of the disposal, were the
right to buy exercisable at that time.
30Part 2 Operators, ownership & related matters
“Operator and ownership regulations”
14
In this Schedule “operator and ownership regulations” means regulations
under subsection (2) of section 33.
35Bodies that may be facility operators
15
If operator and ownership regulations specify two or more kinds of bodies
which may be a facility operator, the regulations may make provision about
which kind of body may own which kind of facility in which circumstances.
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Constitutions of facility operators
16
(1)
Operator and ownership regulations may require the constitution of a
facility operator to be in accordance with provision specified in the
regulations.
(2)
5In the case of a facility operator that is a company, the regulations may
require the constitution of the company to be in accordance with provision
about—
(a)
the voting rights attached to, or other characteristics of, shares in the
company;
(b) 10the issuing of new shares in the company.
Ownership of facility operators
17
(1)
Operator and ownership regulations may make provision about the
ownership of facility operators.
(2) The regulations may—
(a) 15impose limitations on who may own a facility operator;
(b)
require the owners of a facility operator to consist of, or include, one
or more persons of a kind specified in the regulations.
Conduct of owners of facility operators
18
(1)
Operator and ownership regulations may make provision about the conduct
20of the owners of facility operators.
(2)
The regulations may impose duties, restrictions or prohibitions in relation to
the exercise of rights or powers of owners (including a right or power to
exercise a vote attached to a share).
Revenues
19
(1)
25Operator and ownership regulations may make provision about the
treatment of the revenues earned by a qualifying facility.
(2)
The regulations may restrict or prohibit the making of arrangements
affecting the destination of the revenues.
Part 3 30Information
“Information regulations”
20
In this Schedule “information regulations” means regulations under
subsection (3) of section 33.
Particular kinds of information
21 35Information regulations may make provision about the supply of—
(a)
financial information relating to a renewable electricity generation
facility;
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(b)
information relating to electricity generation at a renewable
electricity generation facility.
Possible buyers of stakes
22
Information regulations may make provision about the supply of
5information by, or to, individuals and groups who are, or may be, interested
in exercising the right to buy (were it available to them).
Prospective buyers of stakes
23
Information regulations may make provision about the supply of
information by, or to, individuals and groups who are entitled to exercise the
10right to buy.
Applicants for stakes
24
Information regulations may make provision about the supply of
information by, or to, individuals and groups who are exercising the right to
buy.
15Owners of stakes
25
Information regulations may make provision about the supply of
information by, or to, individuals and groups who hold—
(a) stakes which they have bought through the right to buy, or
(b)
stakes which they have acquired after their sale through the right to
20buy.
Part 4 Supplementary
Interpretation
26 In this Schedule—
-
25“body” means an incorporated or unincorporated body of persons;
-
“company” includes any other kind of incorporated body;
-
“designated promoter”, in relation to a renewable electricity generation
facility, means the promoter identified in accordance with
regulations under paragraph 4; -
30“shares” includes any other instrument by which a person holds an
interest in the equity of an incorporated body; -
“total installed capacity”, in relation to a renewable electricity
generation facility, means the maximum capacity at which the
facility could be operated for a sustained period without causing
35damage to it.
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Section 37
SCHEDULE 6 The licensing levy
The amount of the levy
1
Regulations may provide for the licensing levy payable in respect of a
5charging period to increase or decrease over that period.
Basis of amount
2
Regulations may provide for an amount of licensing levy payable by a
licence holder to be calculated by reference to the size of an area to which an
energy industry licence held by that person relates.
10Amounts payable by different categories of licence holders
3 Regulations may provide for different categories of licence holders to pay—
(a) different amounts of licensing levy, or
(b)
amounts of licensing levy calculated, set or determined in different
ways.
15Exemptions
4
Regulations may provide for a category of licence holder to be exempt from
payment of the licensing levy.
Unpaid levy
5
(1)
Regulations may provide for interest (at a rate specified in, or determined
20under, the regulations) to be charged in respect of unpaid amounts of
licensing levy.
(2)
Regulations may provide for unpaid amounts of licensing levy (together
with any interest charged) to be recoverable as a civil debt.
Conferral of functions
6
25Regulations may confer a function (including a function involving the
exercise of a discretion) on—
(a) the Secretary of State, or
(b)
any other person, apart from the Scottish Ministers or the Welsh
Ministers.
30Categories of licence holders
7
(1)
Regulations (including regulations of the kinds mentioned in paragraphs 3
and 4) may provide for a category of licence holder to consist of persons who
hold a kind of energy industry licence specified in the regulations.
(2)
The regulations may (in particular) specify any of the following kinds of
35energy industry licence—
(a) licences granted under a particular enactment;
(b)
licences of a particular description granted under a particular
enactment;