Energy Bill (HC Bill 128)

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(2) The approved development condition is met in respect of an onshore
wind generating station if the documents specified in subsections (4),
(5) and (6) were provided to the Authority with the application for
accreditation of the station.

(3) 5The approved development condition is met in respect of additional
capacity if the documents specified in subsections (4), (5) and (6) were
provided to the Authority on or before the date on which the Authority
made its decision that the additional capacity could form part of an
onshore wind generating station.

(4) 10The documents specified in this subsection are—

(a) evidence that—

(i) planning permission for the station or additional
capacity was granted on or before 18 June 2015, and

(ii) any conditions as to the time period within which the
15development to which the permission relates must be
begun have not been breached,

(b) evidence that—

(i) planning permission for the station or additional
capacity was refused on or before 18 June 2015, but
20granted after that date following an appeal or judicial
review, and

(ii) any conditions as to the time period within which the
development to which the permission relates must be
begun have not been breached,

(c) 25evidence that—

(i) an application for 1990 Act permission or 1997 Act
permission was made on or before 18 June 2015 for the
station or additional capacity,

(ii) the period allowed under section 78(2) of the 1990 Act or
30(as the case may be) section 47(2) of the 1997 Act ended
on or before 18 June 2015 without any of the things
mentioned in section 78(2)(a) to (b) of the 1990 Act or
section 47(2)(a) to (c) of the 1997 Act being done in
respect of the application,

(iii) 35the application was not referred to the Secretary of State,
Welsh Ministers or Scottish Ministers in accordance
with directions given under section 77 of the 1990 Act or
section 46 of the 1997 Act,

(iv) 1990 Act permission or 1997 Act permission was
40granted after 18 June 2015 following an appeal, and

(v) any conditions as to the time period within which the
development to which the permission relates must be
begun have not been breached, or

(d) a declaration by the operator of the station that, to the best of the
45operator’s knowledge and belief, planning permission is not
required for the station or additional capacity.

(5) The documents specified in this subsection are—

(a) a copy of an offer from a licensed network operator made on or
before 18 June 2015 to carry out grid works in relation to the
50station or additional capacity, and evidence that the offer was

Energy BillPage 51

accepted on or before that date (whether or not the acceptance
was subject to any conditions or other terms), or

(b) a declaration by the operator of the station that, to the best of the
operator’s knowledge and belief, no grid works were required
5to be carried out by a licensed network operator in order to
enable the station to be commissioned or the additional capacity
to form part of the station.

(6) The documents specified in this subsection are a declaration by the
operator of the station that, to the best of the operator’s knowledge and
10belief, as at 18 June 2015 a relevant developer of the station or
additional capacity (or a person connected, within the meaning of
section 1122 of the Corporation Tax Act 2010, with a relevant developer
of the station or additional capacity)—

(a) was an owner or lessee of the land on which the station or
15additional capacity is situated,

(b) had entered into an agreement to purchase or lease the land on
which the station or additional capacity is situated,

(c) had an option to purchase or to lease the land on which the
station or additional capacity is situated, or

(d) 20was a party to an exclusivity agreement in relation to the land
on which the station or additional capacity is situated.

(7) In this section—

  • “the 1990 Act” means the Town and Country Planning Act 1990;

  • “1990 Act permission” means planning permission under the 1990
    25Act (except outline planning permission, within the meaning of
    section 92 of that Act);

  • “the 1997 Act” means the Town and Country Planning (Scotland)
    Act 1997;

  • “1997 Act permission” means planning permission under the 1997
    30Act (except planning permission in principle, within the
    meaning of section 59 of that Act);

  • “exclusivity agreement”, in relation to land, means an agreement
    by the owner or a lessee of the land not to permit any person
    (other than the persons identified in the agreement) to construct
    35an onshore wind generating station on the land;

  • “planning permission” means—

    (a)

    consent under section 36 of this Act,

    (b)

    1990 Act permission,

    (c)

    1997 Act permission, or

    (d)

    40development consent under the Planning Act 2008.

32LK The investment freezing condition

(1) This section applies for the purposes of sections 32LH and 32LI.

(2) The investment freezing condition is met in respect of an onshore wind
generating station if the documents specified in subsection (4) were
45provided to the Authority with the application for accreditation of the
station.

(3) The investment freezing condition is met in respect of additional
capacity if the documents specified in subsection (4) were provided to
the Authority on or before the date on which the Authority made its

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decision that the additional capacity could form part of an onshore
wind generating station.

(4) The documents specified in this subsection are—

(a) a declaration by the operator of the station that, to the best of the
5operator’s knowledge and belief, as at the Royal Assent date—

(i) the relevant developer required funding from a
recognised lender before the station could be
commissioned or additional capacity could form part of
the station,

(ii) 10a recognised lender was not prepared to provide that
funding until enactment of the Energy Act 2016, because
of uncertainty over whether the Act would be enacted or
its wording if enacted, and

(iii) the station would have been commissioned, or the
15additional capacity would have formed part of the
station, on or before 31 March 2017 if the funding had
been provided before the Royal Assent date, and

(b) a letter or other document, dated on or before the date which is
28 days after the Royal Assent date, from a recognised lender
20confirming (whether or not the confirmation is subject to any
conditions or other terms) that the lender was not prepared to
provide funding in respect of the station or additional capacity
until enactment of the Energy Act 2016, because of uncertainty
over whether the Act would be enacted or its wording if
25enacted.

(5) In this section—

  • “recognised lender” means a provider of debt finance which has
    been issued with an investment grade credit rating by a
    registered credit rating agency;

  • 30“the Royal Assent date” means the date on which the Energy Act
    2016 is passed.

(6) For the purposes of the definition of “recognised lender” in subsection
(5)—

  • “investment grade credit rating” means a credit rating commonly
    35understood by registered credit rating agencies to be
    investment grade;

  • “registered credit rating agency” means a credit rating agency
    registered in accordance with Regulation (EC) No 1060/2009 of
    the European Parliament and the Council of 16 September 2009
    40on credit rating agencies.

32LL The grid or radar delay condition

(1) This section applies for the purposes of sections 32LE, 32LG and 32LI.

(2) The grid or radar delay condition is met in respect of an onshore wind
generating station if, on or before the date on which the Authority
45made its decision to accredit the station, the documents specified in
subsection (4), (5) or (6) were—

(a) submitted by the operator of the station, and

(b) received by the Authority.

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(3) The grid or radar delay condition is met in respect of additional
capacity if, on or before the date on which the Authority made its
decision that the additional capacity could form part of an onshore
wind generating station, the documents specified in subsection (4), (5)
5or (6) were—

(a) submitted by the operator of the station, and

(b) received by the Authority.

(4) The documents specified in this subsection are—

(a) evidence of an agreement with a network operator (“the
10relevant network operator”) to carry out grid works in relation
to the station or additional capacity (“the relevant grid works”);

(b) a copy of a document written by, or on behalf of, the relevant
network operator which estimated or set a date for completion
of the relevant grid works (“the planned grid works completion
15date”) which was no later than the primary date;

(c) a letter from the relevant network operator confirming
(whether or not such confirmation is subject to any conditions
or other terms) that—

(i) the relevant grid works were completed after the
20planned grid works completion date, and

(ii) in the relevant network operator’s opinion, the failure to
complete the relevant grid works on or before the
planned grid works completion date was not due to any
breach by a generating station developer of any
25agreement with the relevant network operator; and

(d) a declaration by the operator of the station that, to the best of the
operator’s knowledge and belief, the station would have been
commissioned, or the additional capacity would have formed
part of the station, on or before the primary date if the relevant
30grid works had been completed on or before the planned grid
works completion date.

(5) The documents specified in this subsection are—

(a) evidence of an agreement between a generating station
developer and a person who is not a generating station
35developer (“the radar works agreement”) for the carrying out of
radar works (“the relevant radar works”);

(b) a copy of a document written by, or on behalf of, a party to the
radar works agreement (other than a generating station
developer) which estimated or set a date for completion of the
40relevant radar works (“the planned radar works completion
date”) which was no later than the primary date;

(c) a letter from a party to the radar works agreement (other than a
generating station developer) confirming, whether or not such
confirmation is subject to any conditions or other terms, that—

(i) 45the relevant radar works were completed after the
planned radar works completion date, and

(ii) in that party’s opinion, the failure to complete the
relevant radar works on or before the planned radar
works completion date was not due to any breach of the
50radar works agreement by a generating station
developer; and

Energy BillPage 54

(d) a declaration by the operator of the station that, to the best of the
operator’s knowledge and belief, the station would have been
commissioned, or the additional capacity would have formed
part of the station, on or before the primary date if the relevant
5radar works had been completed on or before the planned radar
works completion date.

(6) The documents specified in this subsection are—

(a) the documents specified in subsection (4)(a), (b) and (c);

(b) the documents specified in subsection (5)(a), (b) and (c); and

(c) 10a declaration by the operator of the station that, to the best of the
operator’s knowledge and belief, the station would have been
commissioned, or the additional capacity would have formed
part of the station, on or before the primary date if—

(i) the relevant grid works had been completed on or
15before the planned grid works completion date, and

(ii) the relevant radar works had been completed on or
before the planned radar works completion date.

(7) In this section “the primary date” means—

(a) in a case within section 32LE(a)(i) or (b)(i) and (ii), 31 March
202016;

(b) in a case within section 32LG(a)(i) and (ii) or (b)(i) to (iii), 31
March 2017;

(c) in a case within section 32LI(a)(i) and (ii) or (b)(i) to (iii), 31
December 2017.”

(3) 25In section 32M (interpretation of sections 32 to 32M)—

(a) in subsection (1), for “32LB” substitute “32LL”;

(b) at the appropriate places insert the following definitions—

  • ““accredited”, in relation to an onshore wind generating
    station, means accredited by the Authority as a
    30generating station which is capable of generating
    electricity from renewable sources; and “accredit” and
    “accreditation” are to be construed accordingly;”;

  • ““additional capacity”, in relation to an onshore wind
    generating station, means any generating capacity
    35which does not form part of the original capacity of the
    station;”;

  • ““commissioned”, in relation to an onshore wind
    generating station, means having completed such
    procedures and tests in relation to the station as
    40constitute, at the time they are undertaken, the usual
    industry standards and practices for commissioning
    that type of generating station in order to demonstrate
    that it is capable of commercial operation;”;

  • ““generating station developer”, in relation to an onshore
    45wind generating station or additional capacity, means—

    (a)

    the operator of the station, or

    (b)

    a person who arranged for the construction of
    the station or additional capacity;”;

  • ““grid works”, in relation to an onshore wind generating
    50station, means—

    Energy BillPage 55

    (a)

    the construction of a connection between the
    station and a transmission or distribution system
    for the purpose of enabling electricity to be
    conveyed from the station to the system, or

    (b)

    5the carrying out of modifications to a connection
    between the station and a transmission or
    distribution system for the purpose of enabling
    an increase in the amount of electricity that can
    be conveyed over that connection from the
    10station to the system;”;

  • ““licensed network operator” means a distribution licence
    holder or a transmission licence holder;”;

  • ““network operator” means a distribution exemption
    holder, a distribution licence holder or a transmission
    15licence holder;”;

  • ““onshore wind generating station” has the meaning given
    by section 32LC(3);”;

  • ““original capacity”, in relation to an onshore wind
    generating station, means the generating capacity of the
    20station as accredited;”;

  • ““radar works” means—

    (a)

    the construction of a radar station,

    (b)

    the installation of radar equipment,

    (c)

    the carrying out of modifications to a radar
    25station or radar equipment, or

    (d)

    the testing of a radar station or radar
    equipment;”;

  • ““relevant developer”, in relation to an onshore wind
    generating station or additional capacity, means a
    30person who—

    (a)

    applied for planning permission for the station
    or additional capacity,

    (b)

    arranged for grid works to be carried out in
    relation to the station or additional capacity,

    (c)

    35arranged for the construction of any part of the
    station or additional capacity,

    (d)

    constructed any part of the station or additional
    capacity, or

    (e)

    operates, or proposes to operate, the station;”.

81 40Onshore wind power: use of Northern Ireland certificates

(1) The Electricity Act 1989 is amended as follows.

(2) Before section 32M insert—

32LM Use of Northern Ireland certificates: onshore wind power

(1) The Secretary of State may make regulations providing that an
45electricity supplier may not discharge its renewables obligation (or its
obligation in relation to a particular period) by the production to the
Authority of a relevant Northern Ireland certificate, except in the
circumstances, and to the extent, specified in the regulations.

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(2) A “relevant Northern Ireland certificate” is a Northern Ireland
certificate issued in respect of electricity generated—

(a) after 31 March 2016 (or any later date specified in the
regulations), and

(b) 5by a Northern Ireland onshore wind generating station
accredited after 31 March 2016 (or any later date specified in the
regulations).

(3) In this section—

  • NIRO Order” means any order made under Articles 52 to 55F of
    10the Energy (Northern Ireland) Order 2003;

  • “Northern Ireland certificate” means a renewables obligation
    certificate issued by the Northern Ireland authority under the
    Energy (Northern Ireland) Order 2003 and pursuant to a NIRO
    Order;

  • 15“Northern Ireland onshore wind generating station” means a
    generating station that—

    (a)

    generates electricity from wind, and

    (b)

    is situated in Northern Ireland, but not in waters in or
    adjacent to Northern Ireland up to the seaward limits of
    20the territorial sea.

(4) Power to make provision in a renewables obligation order by virtue of
section 32F (and any provision contained in such an order) is subject to
provision contained in regulations under this section.

(5) This section is not otherwise to be taken as affecting power to make
25provision in a renewables obligation order.

(6) Regulations under this section may amend a renewables obligation
order.

(7) Section 32K applies in relation to regulations under this section as it
applies in relation to a renewables obligation order.”

(3) 30In section 32M (interpretation)—

(a) in subsection (1), for “32LB” substitute “32LM”;

(b) in subsection (7), for “32L” substitute “32LM”.

Part 6 Final Provisions

82 35Regulations

(1) A power to make regulations under this Act is exercisable by statutory
instrument.

(2) A power to make regulations under this Act includes power—

(a) to make different provision for different purposes (including areas);

(b) 40to make provision generally or in relation to specific cases.

(3) A power to make regulations under this Act (except the power conferred by
section 84) includes power to make incidental, consequential, supplemental,
transitional or transitory provision or savings.

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(4) A statutory instrument containing—

(a) regulations under section 2 which amend or repeal any Act or
provision of an Act,

(b) regulations under section 45(7),

(c) 5regulations under section 63(6) or,

(d) regulations under section 66(1),

may not be made unless a draft of the instrument has been laid before, and
approved by a resolution of, each House of Parliament.

(5) A statutory instrument containing any other regulations under this Act is
10subject to annulment in pursuance of a resolution of either House of
Parliament.

(6) Subsection (5) does not apply to a statutory instrument containing regulations
under section 84.

83 Regulations and orders: disapplication of requirements to consult the OGA

(1) 15This section applies where the Secretary of State is required by this Act, the
Petroleum Act 1998 or the Energy Act 2008 to consult the OGA before
exercising a power to make regulations or an order.

(2) The requirement does not apply in relation to the first exercise of the power in
the period of one year beginning with the date on which section 1 comes into
20force.

84 Commencement

(1) Sections 79 to 81 and this Part come into force on the day on which this Act is
passed.

(2) Part 4 comes into force two months after the day on which this Act is passed.

(3) 25The remaining provisions of this Act come into force on such day or days as the
Secretary of State may by regulations appoint.

(4) Regulations under subsection (3) may include transitional or transitory
provision or savings.

85 Short title and extent

(1) 30This Act may be cited as the Energy Act 2016.

(2) An amendment (other than an amendment of Part 1A of the Petroleum Act
1998) or repeal made by this Act has the same extent as the provision to which
it relates.

(3) Subject to subsection (2), this Act extends to the whole of the United Kingdom.

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SCHEDULES

Section 2

SCHEDULE 1 Transfer of functions to the OGA

Part 1 5Primary legislation

Energy Act 1976

1 The Energy Act 1976 is amended as follows.

2 (1) Section 12 (disposal of gas by flaring, etc) is amended as follows.

(2) After subsection (2) insert—

(2A) 10Disposal of gas by flaring, or by releasing it unignited into the
atmosphere, does not require consent under this section if consent—

(a) is required under section 12A (disposal of gas by flaring etc:
OGA’s functions), or

(b) would be required under that section but for subsection (3) of
15that section.”

(3) At the end of the heading insert “: Secretary of State’s functions”.

3 After section 12 insert—

12A Disposal of gas by flaring, etc: OGA’s functions

(1) The OGA’s consent is required for natural gas to be disposed of
20(whether at source or elsewhere)—

(a) by flaring, or by releasing it unignited into the atmosphere,
from anything that for the purposes of section 82(1) of the
Energy Act 2011 is a relevant oil processing facility or a
relevant gas processing facility, or

(b) 25by releasing it unignited into the atmosphere in connection
with activities carried out under a licence granted under—

(i) section 3 of the Petroleum Act 1998, or

(ii) section 2 of the Petroleum (Production) Act 1934.

(2) This section applies to all natural gas of the United Kingdom,
30whether obtained there or in territorial waters, or in areas designated
under the Continental Shelf Act 1964, except gas conveyed through
pipes to premises by a gas transporter within the meaning of Part 1
of the Gas Act 1986.

(3) Disposal of gas does not require consent under this section if—

Energy BillPage 59

(a) it is necessary in order to reduce or avoid the risk of injury to
any person,

(b) the risk could not reasonably have been foreseen in time to
reduce or avoid it otherwise than by means of the disposal,
5and

(c) it was not reasonably practicable to obtain consent under this
section in the time available.

(4) A person who disposes of gas in cases where the consent of the OGA
would have been required but for subsection (3) must inform the
10OGA of that disposal as soon as practicable after the disposal takes
place.

(5) The OGA’s consent under this section—

(a) may be given only by reference to particular cases, and

(b) may be made subject to conditions which may, in particular,
15be framed by reference to the description or origin of the gas,
or the quantities to be disposed of.

12B Sanctions for failure to comply with section 12A

(1) The requirements imposed by subsections (1) and (4) of section 12A
are to be treated for the purposes of Chapter 5 of Part 2 of the Energy
20Act 2016 (power of the OGA to impose sanctions) as petroleum-
related requirements.

(2) But the OGA may not give an enforcement notice, a revocation notice
or an operator removal notice under that Chapter by virtue of this
section.”

4 (1) 25Section 18 (administration, enforcement and offences) is amended as
follows.

(2) In subsection (2)(a), for “9 and 12” substitute “9, 12 and 12A”.

(3) In subsection (3)—

(a) in paragraph (a), for “9 or 12” substitute “9, 12 or 12A”, and

(b) 30in paragraph (b), after “Secretary of State” insert “or the OGA”.

5 In section 21 (interpretation), after the definition of “natural gas” insert—

  • ““the OGA” means the Oil and Gas Authority;”.

Petroleum Act 1998

6 The Petroleum Act 1998 is amended as follows.

7 35In section 9A(2) (principal objective and the strategy), for “Secretary of State”
substitute “OGA”.

8 In section 9B (exercise of certain functions)—

(a) for “Secretary of State” (including in the heading) substitute “OGA”,

(b) in paragraph (b), omit the words from “to the extent” to the end, and

(c) 40after paragraph (c) insert—

(ca) exercising functions under Part 2 of the Energy Act
2016,”.