Energy Bill

House of Commons

Session 2007 - 08
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Energy Bill

Energy Bill
Schedule 2 — Property schemes
91

(b)
it may serve on the applicant and the non-applicant party
a notice proposing, in relation to the property, right or
liability, alternative provision of a kind mentioned in
paragraph 1(2).
      (4)
A notice under sub-paragraph (3)(b) must—
5
(a)
invite the recipient to make representations to the
Authority about the proposed alternative provision within
the period specified in the notice (being not less than 21
days) beginning with the day on which the notice is
served, and
10
(b)
be accompanied by a notice under paragraph 16 which
complies with the requirements of sub-paragraph (5).
      (5)
The notice under paragraph 16 must require the recipient of the
notice to provide the Authority, within the period specified in the
notice (being not less than 7 days) beginning with the day on
15
which the notice is served, with—
(a)
the name and address of each person to whom sub-
paragraph (6) applies, or
(b)
if the recipient does not consider that there is any such
person, a statement to that effect.
20
      (6)
This sub-paragraph applies to a person—
(a)
whom the recipient of the notice considers is a third party
who would be affected by the Authority’s proposed
alternative provision, and
(b)
whose name and address were not—
25
(i)
specified in the application in accordance with
paragraph 3(2)(c) or in a modification notice under
paragraph 9(3), or
(ii)
provided to the Authority in response to a notice
within paragraph 6(2)(b) or 9(5)(b).
30
      (7)
As soon as reasonably practicable after receiving the information
required by a notice within sub-paragraph (4)(b), the Authority
must serve on each person within sub-paragraph (8)—
(a)
if a copy of the application has not previously been served
on the person under paragraph 7(1) or 9(8), a copy of the
35
application,
(b)
if a copy of any modification notice has not previously
been served on the person under paragraph 9(8), a copy of
the notice,
(c)
a copy of the notice served under sub-paragraph (3)(b),
40
and
(d)
a notice inviting that person to make representations to the
Authority about the proposed alternative provision within
the period specified in the notice beginning with the day
on which the notice is served.
45
      (8)
A person is within this sub-paragraph if the person’s name and
address were—
(a)
specified in the application in accordance with paragraph
3(2)(c) or in a modification notice under paragraph 9(3),

Energy Bill
Schedule 2 — Property schemes
92

(b)
provided to the Authority in response to a notice within
sub-paragraph (4)(b) or paragraph 6(2)(b)) or 9(5)(b).
      (9)
The period specified under sub-paragraph (7)(d) must be not less
than—
(a)
in the case of a person whose name and address were
5
provided to the Authority in response to a notice within
sub-paragraph (4)(b), 21 days, and
(b)
in any other case, 14 days.
     (10)
Having considered any representations made in accordance with
sub-paragraph (4)(a) or (7)(d), the Authority must determine
10
whether the proposed alternative provision is necessary or
expedient for operational purposes.
     (11)
If—
(a)
the Authority determines under sub-paragraph (1) that the
proposed provision, in relation to any property, right or
15
liability specified in the application, is necessary or
expedient for operational purposes,
(b)
the successful bidder and the asset owner agree that that is
the case, or
(c)
the Authority determines under sub-paragraph (10) that
20
the proposed alternative provision, in relation to any
property, right or liability, is necessary or expedient for
operational purposes,

the Authority must, subject to paragraphs 13 and 14(4), make a
property scheme in relation to that property, right or liability.
25
     (12)
In this section “the proposed provision”, in relation to any
property, right or liability, means the provision of a kind
mentioned in paragraph 1(2) which the application proposes is
made in relation to that property, right or liability (having regard
to any modification under paragraph 9 or restriction under
30
paragraph 11).
13    (1)
On an application for a property scheme, no scheme may be made
until—
(a)
the offshore transmission licence has been issued to the
successful bidder, and
35
(b)
the relevant co-ordination licence holder has given the
Authority, in accordance with the co-ordination licence, a
completion notice in relation to the transmission system to
which the property scheme relates.
      (2)
For this purpose—
40
(a)
a “completion notice”, in relation to a transmission system,
is a notice which states that it would be possible to carry on
an activity to which section 4(1)(b) applies by making
available for use that system;
(b)
a property scheme relates to a transmission system if the
45
property, rights and liabilities in respect of which the
scheme makes provision of a kind mentioned in paragraph
1(2) are relevant to the performance by the successful
bidder of its licensed functions in relation to that system.

Energy Bill
Schedule 2 — Property schemes
93

      (3)
Until such time as section 180 of the Energy Act 2004 (meaning of
“high voltage line”) comes into force—
(a)
the references in sub-paragraphs (1) and (2) to a
transmission system include a system which, if that section
were in force, would be a transmission system (“an
5
offshore 132 kilovolt system”), and
(b)
that section is to be treated as if it were in force for the
purposes of determining under sub-paragraph (2)(a)
whether it would be possible to carry on an activity to
which section 4(1)(b) applies by making available for use
10
an offshore 132 kilovolt system.
      (4)
In this paragraph—
“licensed functions” means—
(a)
functions under the offshore transmission licence to
which the tender exercise relates, and
15
(b)
functions which the successful bidder has, in the
capacity of holder of that licence, under or by virtue
of any enactment;
“relevant co-ordination licence holder” means—
(a)
the holder of a co-ordination licence to whom a
20
person has applied (in accordance with any provision
made by that licence) for an offer of connection to and
use of a transmission system for the purposes of
which the tender exercise is held, or
(b)
where the tender exercise is held for the purposes of a
25
connection request within the meaning of section
6D(3)(b), the holder of a co-ordination licence to
whom a connection request within the meaning of
section 6D(3)(a) would have been made if section 180
of the Energy Act 2004 had been in force and,
30
accordingly, the tender exercise had been held for the
purposes of such a request.
Terms of a property scheme
14    (1)
Where the Authority is required to make a property scheme, the
terms of the scheme must be such as the successful bidder and the
35
asset owner may agree or, if they fail to agree, as the Authority
may determine.

This is subject to sub-paragraphs (2) to (9).
      (2)
A property scheme must not provide for any provision to come
into operation before the end of the period of 21 days beginning
40
with the day on which the scheme is made.
      (3)
In determining the terms of a scheme under sub-paragraph (1), the
Authority must, in particular, determine whether the scheme
should include provision for compensation to be paid—
(a)
by the successful bidder to the asset owner, or
45
(b)
by the asset owner to the successful bidder,

and, if so, what that provision should be.

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Schedule 2 — Property schemes
94

      (4)
The Authority may not include in a property scheme provision
which would adversely affect a third party unless it determines
that it is necessary or expedient for operational purposes for the
provision to be made.
      (5)
Where the Authority includes in a property scheme provision
5
which would adversely affect a third party, the Authority must
determine whether the scheme should include provision for
compensation and, if so, what that provision should be.
      (6)
The Authority may include in a property scheme provision for
payments to be made by the successful bidder or the asset owner
10
(or both) in respect of costs incurred in connection with the
scheme (including the application for the scheme) by—
(a)
the Authority,
(b)
the successful bidder,
(c)
the asset owner, or
15
(d)
a third party affected by a provision of the property
scheme.
      (7)
For the purposes of making a determination under sub-paragraph
(6), the Authority may have regard to the conduct of the parties
mentioned in sub-paragraph (6)(a) to (d).
20
      (8)
Any sums received by the Authority under sub-paragraph (6) are to be
paid into the Consolidated Fund.
      (9)
For the purposes of this paragraph, a provision of a property
scheme adversely affects a third party if that party—
(a)
is affected by the provision (see paragraph 38(2)), and
25
(b)
does not consent to the making of the provision by means
of the scheme.
15    (1)
A determination under paragraph 14, so far as relating to any
financial matter, must be made on the basis of what is just in all the
circumstances of the case.
30
      (2)
A determination under paragraph 14, so far as relating to any
other matter, must be made on the basis of what appears to the
Authority to be appropriate in all the circumstances of the case
having regard, in particular, to what is necessary or expedient for
operational purposes.
35
Additional powers of the Authority
16    (1)
The Authority may, by notice, require any of the following
persons to provide information or assistance in connection with
the performance by the Authority of its functions under this
Schedule—
40
(a)
the preferred bidder in relation to a tender exercise;
(b)
the successful bidder in relation to a tender exercise;
(c)
the asset owner in relation to a property scheme or an
application for such a scheme;
(d)
the holder of a co-ordination licence;
45
(e)
any third party who is or may be affected by a provision of
a property scheme or a proposed property scheme.

Energy Bill
Schedule 2 — Property schemes
95

      (2)
If the Authority considers that any other person may be able to
provide it with information in respect of any provision of a
property scheme or proposed property scheme, it may, by notice,
require the person to provide it with such information.
      (3)
A notice under this paragraph may specify the period within
5
which the information or assistance is to be provided.
      (4)
If at any time it appears to the Authority that a person has failed
to comply with a requirement under sub-paragraph (1) or (2), the
Authority may make an application to the court under this section.
      (5)
If, on an application under this section, the court decides that the
10
person has failed to comply with the requirement, it may order the
person to take such steps as the court directs for securing that the
requirement is complied with.
      (6)
In this paragraph “the court” means—
(a)
in the case of an application made in England and Wales,
15
the High Court, and
(b)
in the case of an application made in Scotland, the Court of
Session.
17
The Authority may engage consultants for the purpose of advising
it in relation to the making of a determination under this Schedule.
20
Notification of property scheme
18    (1)
This paragraph applies where the Authority makes a property
scheme.
      (2)
The Authority must, as soon as reasonably practicable, serve a
copy of the scheme on—
25
(a)
the successful bidder,
(b)
the asset owner, and
(c)
each third party affected by the scheme whose name and
address was—
(i)
specified in the application for the scheme in
30
accordance with paragraph 3(2)(c) or in a
modification notice in relation to that application in
accordance with paragraph 9(3), or
(ii)
provided to the Authority in response to a notice
within paragraph 6(2)(b), 9(5)(b) or 12(4)(b).
35
      (3)
The Authority must, as soon as reasonably practicable, publish a
notice which—
(a)
states that a property scheme has been made,
(b)
states the names of the successful bidder and the asset
owner in relation to the scheme, and
40
(c)
contains a general description of the provision made by the
scheme.
Refusal of application or part of application
19    (1)
This paragraph applies where the Authority—

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Schedule 2 — Property schemes
96

(a)
determines to refuse an application for a property scheme
so far as it relates to any property, right or liability
specified in the application in accordance with paragraph
3(2)(a), or
(b)
determines not to make any alternative provision
5
proposed under paragraph 12(3)(b) in relation to any such
property, right or liability.
      (2)
The Authority must, as soon as reasonably practicable, serve a
notice giving details of the determination on each person
mentioned in paragraph 18(2)(a) to (c).
10
      (3)
The Authority may direct the successful bidder or the asset owner
to make a payment in respect of the costs incurred in connection
with the application by—
(a)
the Authority,
(b)
the successful bidder,
15
(c)
the asset owner, or
(d)
a third party affected by a provision of the proposed
property scheme or any alternative provision proposed
under paragraph 12(3)(b).
      (4)
The Authority must serve notice of a direction given under sub-
20
paragraph (3) on—
(a)
the successful bidder (if not the recipient of the direction),
(b)
the asset owner (if not the recipient of the direction), and
(c)
any person served with a notice in relation to the
application under paragraph 7(1), 9(8) or 12(7).
25
      (5)
A determination under sub-paragraph (3) must be made on the
basis of what is just in all the circumstances of the case.
      (6)
Any sums received by the Authority under sub-paragraph (3) are to be
paid into the Consolidated Fund.
Effect of property scheme
30
20
A property scheme, by virtue of this paragraph, has effect
according to its terms.
21    (1)
A transaction of any description effected by or under a property
scheme has effect subject to the provisions of any enactment which
provides for transactions of that description to be registered in any
35
statutory register.
      (2)
Subject to that, a transaction of any description effected by or
under a property scheme is binding on all persons, despite the fact
that it would, apart from this provision, have required the consent
or concurrence of any person.
40
      (3)
In this paragraph “enactment” includes an enactment comprised
in, or in an instrument made under, an Act of the Scottish
Parliament.
22
Where—
(a)
an amount of compensation is owed to a person in
45
accordance with a property scheme, or

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Schedule 2 — Property schemes
97

(b)
an amount in respect of costs is owed to a person in
accordance with such a scheme or with a direction under
paragraph 11(4) or 19(3),

the amount may be recovered by that person.
Review of determinations
5
23    (1)
Any person affected by a determination of the Authority under
this Schedule may apply to the Competition Appeal Tribunal for a
review of the determination.
      (2)
An application under sub-paragraph (1) may be made—
(a)
during the relevant appeal period, or
10
(b)
with the permission of the Competition Appeal Tribunal,
at a later time.
      (3)
The relevant appeal period means—
(a)
where the application is in respect of a determination
relating to a property scheme which has been made by the
15
Authority, 21 days beginning with the day on which a
notice in respect of the scheme is published under
paragraph 18(3);
(b)
in any other case, 21 days beginning with the day on which
the determination was made.
20
      (4)
On an application under sub-paragraph (1), the Competition
Appeal Tribunal may by order—
(a)
dismiss the application, or
(b)
make such other determination as it considers appropriate.
24    (1)
This paragraph applies where—
25
(a)
the Competition Appeal Tribunal makes an order under
paragraph 23(4)(b), and
(b)
the Authority has not made a property scheme in relation
to the property, rights or liabilities concerned.
      (2)
The Tribunal may include in the order provision requiring the
30
Authority to make a property scheme in relation to that property,
or those rights and liabilities.
      (3)
Where paragraph 14 applies because of provision under this
paragraph, anything the Tribunal has determined is to be treated
for the purposes of that paragraph as determined by the
35
Authority.
25    (1)
This paragraph applies where—
(a)
the Competition Appeal Tribunal makes an order under
paragraph 23(4)(b),
(b)
the Authority has made a property scheme in relation to
40
the property, rights or liabilities concerned, and
(c)
the scheme has not come into operation.
      (2)
Where the Tribunal’s determination is that provision of a kind
mentioned in paragraph 1(2) is not, in relation to the property,
rights or liabilities concerned, necessary or expedient for
45