Energy Bill [HL]

House of Commons

Session 2003 - 04
Internet Publications
Other Bills before Parliament

Energy Bill [HL]

Energy Bill [HL]
Schedule 3 — Procedural requirements applicable to NDA’s annual plans
162

Schedule 3
Section 16

Procedural requirements applicable to NDA’s annual plans
Preparation and revision of plan
1     (1)
A plan prepared or revised by the NDA has effect only if it is approved—
(a)
by the Secretary of State; and
5
(b)
to the extent that it relates to responsibilities of the NDA falling
within section 9(2), also by the Scottish Ministers.
      (2)
The NDA may revise its plan at any time before or during the year to which
it relates.
Consultation by NDA
10
2     (1)
Before preparing or revising a plan the NDA must consult—
(a)
the Health and Safety Executive;
(b)
the Environment Agency;
(c)
the Scottish Environment Protection Agency;
(d)
such persons with responsibilities in relation to nuclear security as
15
have been nominated for the purposes of this sub-paragraph by the
Secretary of State;
(e)
every local authority whose area includes a designated installation,
designated site or designated facility or a locality affected by
activities at such an installation, site or facility;
20
(f)
every person with control of such an installation, site or facility;
(g)
the employees of every such person and the persons appearing to the
NDA to represent them; and
(h)
every body established—
(i)
by the NDA, or
25
(ii)
by a person with control of a designated installation,
designated site or designated facility,

for the purpose of consulting persons about activities carried on at,
or in connection with, such an installation, site or facility.
      (2)
In the case of a revision of a plan, the Secretary of State may allow the NDA
30
to proceed without consulting one or more of the persons mentioned in sub-
paragraph (1).
      (3)
In preparing or revising a plan the NDA must have regard to—
(a)
every representation made to it by or on behalf of a person
mentioned in sub-paragraph (1); and
35
(b)
the representations made to it by members of the public.
      (4)
In this paragraph references, in relation to the preparation or revision of a
plan, to a designated installation, designated site or designated facility
include references to an installation, site or facility designated by a direction
which—
40
(a)
is not yet in force; but
(b)
is to come into force during the year to which the plan relates.

Energy Bill [HL]
Schedule 3 — Procedural requirements applicable to NDA’s annual plans
163

Approval of annual plan
3     (1)
This paragraph applies where a draft of the NDA’s plan for a financial year,
or of a revision of such a plan, is submitted for approval—
(a)
to the Secretary of State; or
(b)
to the Secretary of State and the Scottish Ministers.
5
      (2)
The submission must be accompanied by a report by the NDA of the
representations about the contents of its plan or revision that it received in
the course of its preparation.
      (3)
Before determining whether or not to approve anything relating to
responsibilities mentioned in section 9(3), the Secretary of State must consult
10
the Scottish Ministers.
      (4)
The Secretary of State must also consult the Scottish Ministers before
approving anything relating to proposals for the non-processing treatment,
the storage or the disposal of hazardous materials if it appears to him that
the proposals would have an effect (notwithstanding that they relate only to
15
England and Wales)—
(a)
on the management of hazardous materials located in Scotland; or
(b)
on the use of a site in England and Wales for the non-processing
treatment, the storage or the disposal of hazardous materials that
could be brought to that site from Scotland.
20
      (5)
If—
(a)
the Secretary of State approves what has been submitted to him, and
(b)
the Scottish Ministers approve it so far as it relates to responsibilities
of the NDA falling within section 9(2),

it takes effect, in relation to the financial year to which it relates, as an
25
approved plan of the NDA.
      (6)
If it is not so approved, the NDA must—
(a)
modify what was submitted; and
(b)
re-submit it for approval to the Secretary of State and (if the case so
requires) to the Scottish Ministers.
30
      (7)
Where the NDA makes modifications of a plan for the purpose of
resubmitting it, it must do so in accordance with any directions given to it—
(a)
in relation to any matter other than responsibilities of the NDA
falling within section 9(2), by Secretary of State; or
(b)
in relation to those responsibilities, by the Secretary of State and the
35
Scottish Ministers, acting jointly.
      (8)
Before giving a direction under sub-paragraph (7), the Secretary of State or
(as the case may be) the Secretary of State and the Scottish Ministers must
consult —
(a)
the NDA;
40
(b)
the Health and Safety Executive;
(c)
the Environment Agency;
(d)
the Scottish Environment Protection Agency; and
(e)
such persons with responsibilities in relation to nuclear security as
have been nominated for the purposes of this sub-paragraph by the
45
Secretary of State.
      (9)
In this paragraph “non-processing treatment” has the same meaning as in
section 9.

Energy Bill [HL]
Schedule 4 — Supplemental taxation provisions for exempt activities
164

Publication of plan
4     (1)
The NDA must publish its plan for a financial year in the manner which, in
its opinion, is most appropriate for bringing it to the attention of persons
likely to be affected by it.
      (2)
Where it revises that plan, it must so publish the revised plan.
5
      (3)
Where the NDA publishes a plan or revised plan under this paragraph it
must, in the same manner, publish a report on the representations it received
about what the plan or revision should contain.
      (4)
The NDA must exclude from what it publishes under this paragraph
anything that it has been notified by the Secretary of State is a matter the
10
publication of which he considers to be against the interests of national
security.
      (5)
The NDA may also exclude from what it publishes under this paragraph—
(a)
anything relating to the private affairs of an individual the
publication of which the NDA considers would seriously and
15
prejudicially affect the interests of that individual; and
(b)
anything of a commercial nature relating specifically to the affairs of
a particular body of persons the publication of which the NDA
considers would seriously and prejudicially affect the interests of
that body.
20
      (6)
In determining whether to exclude anything from publication under sub-
paragraph (5) the NDA must have regard to whether the harm that would
be caused by publication is likely to outweigh the benefits.
Schedule 4
Section 30

Supplemental taxation provisions for exempt activities
25
Exempt activities to be separate trade
1
Exempt activities carried on—
(a)
by the NDA, or
(b)
by a company while it is an NDA company,

are to be treated for corporation tax purposes as a separate trade distinct
30
from all other activities carried on by the NDA or (as the case may be) that
company.
Accounting periods of companies carrying on exempt activities
2     (1)
An accounting period of the NDA or of an NDA company ends (if it would
not otherwise do so)—
35
(a)
where it begins to carry on exempt activities, immediately before it
begins to carry them on; and
(b)
where it ceases to carry on such activities, immediately after it so
ceases.
      (2)
An accounting period of a company which—
40
(a)
becomes an NDA company, and

Energy Bill [HL]
Schedule 4 — Supplemental taxation provisions for exempt activities
165

(b)
is carrying on exempt activities immediately after becoming such a
company,

ends (if it would not otherwise do so) when it becomes an NDA company.
      (3)
An accounting period of a company which—
(a)
ceases to be an NDA company, and
5
(b)
is carrying on exempt activities immediately before ceasing to be
such a company,

ends (if it would not otherwise do so) when it ceases to be an NDA company.
Charges on income in connection with exempt activities
3
No charges on income incurred—
10
(a)
by the NDA, or
(b)
by an NDA company,

in connection with the carrying on of exempt activities are to be deductible
from its total profits under section 338 of the Income and Corporation Taxes
Act 1988 (c. 1) (deduction of charges on income).
15
Finance leasing of plant and machinery
4     (1)
This paragraph applies where there is a finance lease in the case of which—
(a)
the lessor is the NDA or an NDA company;
(b)
the lessee is the NDA or an NDA company;
(c)
the lessee is carrying on exempt activities; and
20
(d)
the machinery or plant to which the lease relates is used by the lessee
for the purposes of those activities.
      (2)
No allowance under Part 2 of the Capital Allowances Act 2001 (c. 2) (plant
and machinery allowances) shall be available to the lessor in respect of
qualifying expenditure on the provision of the plant or machinery for
25
leasing under the lease.
      (3)
Expressions used in this paragraph and in Chapter 17 of Part 2 of the Capital
Allowances Act 2001 (anti-avoidance provisions relating to plant and
machinery allowances) have the same meanings in this paragraph as in that
Chapter.
30
Mixed use of industrial buildings
5
An identifiable part of a building or structure used for the purposes of
exempt activities carried on by the NDA or an NDA company is to be treated
for the purposes of Part 3 of the Capital Allowances Act 2001 (industrial
buildings allowances) as used otherwise than as an industrial building.
35
Residue of qualifying expenditure on industrial buildings
6     (1)
This paragraph applies where—
(a)
the NDA disposes of the relevant interest in an industrial building;
or
(b)
an NDA company carrying on exempt activities disposes of the
40
relevant interest in an industrial building.
      (2)
Section 313 and Chapter 8 of Part 3 of the Capital Allowances Act 2001
(meaning of “residue of qualifying expenditure” and writing off of

Energy Bill [HL]
Schedule 5 — Supplementary provisions about nuclear transfer schemes
166

qualifying expenditure) apply to determine the residue of expenditure in the
hands of the person who acquires the relevant interest as if—
(a)
exempt activities carried on by the NDA or the NDA company had
not been exempt activities; and
(b)
all writing down allowances, and balancing allowances and charges,
5
had been made as could have been made but for those activities
being exempt activities.
      (3)
In this paragraph “relevant interest” and “industrial building” have the
same meanings as in Part 3 of the Capital Allowances Act 2001 (c. 2).
      (4)
References in this paragraph to the NDA or an NDA company disposing of
10
a relevant interest in an industrial building include references to the transfer
in accordance with a nuclear transfer scheme of such an interest—
(a)
from the NDA or that company,
(b)
to a person who is neither the NDA nor an NDA company.
Schedule 5
15
Section 41

Supplementary provisions about nuclear transfer schemes
Identification of property to which scheme applies
1
A nuclear transfer scheme may set out the property, rights and liabilities to
be transferred in one or more of the following ways—
(a)
by specifying or describing them in particular;
20
(b)
by identifying them generally by reference to, or to a specified part
of, an undertaking from which they are to be transferred; or
(c)
by specifying the manner in which they are to be determined.
Property, rights and liabilities that may be transferred
2     (1)
The property, rights and liabilities that may be transferred by a nuclear
25
transfer scheme include—
(a)
property, rights and liabilities that would not otherwise be capable
of being transferred or assigned by the transferor;
(b)
property acquired, and rights and liabilities arising, in the period
after the making of the scheme and before it comes into force;
30
(c)
rights and liabilities arising after it comes into force in respect of
matters occurring before it comes into force;
(d)
property situated anywhere in the United Kingdom or elsewhere;
(e)
rights and liabilities under the law of a part of the United Kingdom
or of a place outside the United Kingdom; and
35
(f)
rights and liabilities under an enactment, Community instrument or
subordinate legislation.
      (2)
The transfers to which effect may be given by a nuclear transfer scheme
include transfers of interests and rights that are to take effect in accordance
with the scheme as if there were—
40
(a)
no such requirement to obtain a person’s consent or concurrence,
(b)
no such liability in respect of a contravention of any other
requirement, and

Energy Bill [HL]
Schedule 5 — Supplementary provisions about nuclear transfer schemes
167

(c)
no such interference with any interest or right,

as there would be, in the case of a transaction apart from this Act, by reason
of a provision falling within sub-paragraph (3).
      (3)
A provision falls within this sub-paragraph to the extent that it has effect
(whether under an enactment or agreement or otherwise) in relation to the
5
terms on which the transferor is entitled or subject to anything to which the
transfer relates.
      (4)
Sub-paragraph (5) applies where (apart from that sub-paragraph) a person
would be entitled, in consequence of anything done or likely to be done by
or under this Act in connection with a nuclear transfer scheme—
10
(a)
to terminate, modify, acquire or claim an interest or right; or
(b)
to treat an interest or right as modified or terminated.
      (5)
That entitlement—
(a)
shall not be enforceable in relation to that interest or right until after
the transfer of the interest or right by the scheme; and
15
(b)
shall then be enforceable in relation to the interest or right only in so
far as the scheme contains provision for the interest or right to be
transferred subject to whatever confers that entitlement.
      (6)
Sub-paragraphs (2) to (5) have effect where shares in a subsidiary of the
transferor are transferred—
20
(a)
as if the reference in sub-paragraph (3) to the terms on which the
transferor is entitled or subject to anything to which the transfer
relates included a reference to the terms on which the subsidiary is
entitled or subject to anything immediately before the transfer takes
effect; and
25
(b)
in relation to an interest or right of the subsidiary, as if the references
in sub-paragraph (5) to the transfer of the interest or right included a
reference to the transfer of the shares.
Dividing and modifying transferor’s property, rights and liabilities
3     (1)
A nuclear transfer scheme may contain provision—
30
(a)
for the creation, in favour of a transferor or transferee, of an interest
or right in or in relation to property transferred in accordance with
the scheme;
(b)
for giving effect to a transfer to a person by the creation, in favour of
that person, of an interest or right in or in relation to property
35
retained by a transferor;
(c)
for the creation of new rights and liabilities (including rights of
indemnity and duties to indemnify) as between different transferees
and as between a transferee and a transferor.
      (2)
A nuclear transfer scheme may contain provision for the creation of rights
40
and liabilities for the purpose of converting arrangements between different
parts of a transferor’s undertaking which exist immediately before the
coming into force of the scheme into a contract between different transferees
or between a transferee and a transferor.
      (3)
A nuclear transfer scheme may contain provision—
45
(a)
for rights and liabilities to be transferred so as to be enforceable by or
against more than one transferee or by or against both the transferee
and the transferor; and

Energy Bill [HL]
Schedule 5 — Supplementary provisions about nuclear transfer schemes
168

(b)
for rights and liabilities enforceable against more than one person in
accordance with provision falling within paragraph (a) to be
enforceable in different or modified respects by or against each or
any of them.
      (4)
A nuclear transfer scheme may contain provision for interests, rights or
5
liabilities of third parties in relation to anything to which the scheme relates
to be modified in the manner set out in the scheme.
      (5)
In sub-paragraph (4) “third party”, in relation to a nuclear transfer scheme,
means a person other than the transferor or the transferee.
      (6)
Paragraph 2(2) and (3) applies to the creation of interests and rights in
10
accordance with a nuclear transfer scheme as it applies to the transfer of
interests and rights.
Obligation to effect transfers etc. under a nuclear transfer scheme
4     (1)
A nuclear transfer scheme may contain provision for imposing on a
transferee or transferor an obligation—
15
(a)
to enter into such agreements with another person on whom a
corresponding obligation is, or could be or has been, imposed by
virtue of this paragraph (whether in the same or a different scheme),
or
(b)
to execute such instruments in favour of any such person,
20

as may be specified or described in the scheme.
      (2)
Subject to sub-paragraphs (3) and (4) of this paragraph, paragraph 2 does not
enable—
(a)
an agreement or instrument entered into or executed in accordance
with an obligation imposed by a nuclear transfer scheme, or
25
(b)
anything done under such an agreement or instrument,

to give effect to a transfer, or to create an interest or right, which could not
have been made or created by or under that agreement or instrument apart
from that paragraph.
      (3)
A nuclear transfer scheme may provide for—
30
(a)
transfers made by or under an agreement or instrument entered into
or executed in accordance with an obligation imposed in a nuclear
transfer scheme, or
(b)
interests or rights created by or under such an agreement or
instrument,
35

to include, to the extent specified in the scheme, a transfer, interest or right
that may be made or created by virtue of paragraph 2(2).
      (4)
A nuclear transfer scheme may provide for paragraph 2(4) and (5) to apply
to interests or rights affected by—
(a)
the provisions of an agreement or instrument which is to be entered
40
into or executed in accordance with the scheme; or
(b)
a proposal for such an agreement or for the execution of such an
instrument.
      (5)
Where paragraph 2(4) and (5) does apply to interests or rights so affected, it
shall apply as if references to the nuclear transfer scheme included
45
references to the agreement or instrument in question.
      (6)
An obligation imposed on a person by virtue of sub-paragraph (1) shall be
enforceable by the relevant person in civil proceedings—