Energy Bill

House of Commons

Session 2007 - 08
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Other Bills before Parliament

Energy Bill

Energy Bill
Schedule 2 — Property schemes
86

(c)
the name and address of each third party whom the
applicant considers would be affected by a provision of the
proposed property scheme.
      (3)
All property, rights and liabilities specified in an application in
accordance with sub-paragraph (2)(a) must belong to the same
5
person.
      (4)
A person may make more than one application under this
paragraph.
Timing of applications
4
An application for a property scheme, in relation to a tender
10
exercise, may only be made at a time when—
(a)
a notice identifying the preferred bidder has been
published under paragraph 35(2) (and not withdrawn), or
(b)
a notice has been published under paragraph 36
identifying the successful bidder.
15
5     (1)
No application may be made for a property scheme after the end
of the transitional period.
      (2)
Subject to sub-paragraph (3), “the transitional period” means the
period of 4 years beginning with the day on which section 92 of the
Energy Act 2004 (competitive tenders for offshore transmission
20
licences) comes into force.
      (3)
Before the end of the transitional period, the Secretary of State
may, by order, extend that period by a period specified in the
order.
      (4)
An order under sub-paragraph (3) may relate to a particular case,
25
or to cases of a particular description, only.
      (5)
The total transitional period in any case must not exceed 7 years.
      (6)
Before making an order under sub-paragraph (3), the Secretary of
State must give notice of the proposal to extend the transitional
period.
30
      (7)
The notice must—
(a)
state that the Secretary of State proposes to make an order
extending the transitional period and set out the terms of
the proposed order,
(b)
state the reasons why the Secretary of State proposes to
35
make the order, and
(c)
specify the time (not being less than 28 days from the date
of publication of the notice under sub-paragraph (8)(b))
within which representations with respect to the proposals
may be made.
40
      (8)
The notice must be given—
(a)
by serving a copy of it on the Authority, and
(b)
by publishing it in such manner as the Secretary of State
considers appropriate for bringing it to the attention of—

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Schedule 2 — Property schemes
87

(i)
the owner of any property, right or liability who
may have an interest in the making of the proposed
order, and
(ii)
if the order relates to a case where a tender exercise
has begun, any person who has submitted an
5
application for the offshore transmission licence to
which the exercise relates.
Notifying the non-applicant party
6     (1)
On receipt of an application for a property scheme, the Authority
must serve on the non-applicant party a notice which—
10
(a)
invites the non-applicant party to make representations to
the Authority about the application within the period
specified in the notice (being not less than 21 days)
beginning with the day on which the notice is served, and
(b)
describes the effect of paragraphs 9 and 11.
15
      (2)
A notice under sub-paragraph (1) must be accompanied by—
(a)
a copy of the application, and
(b)
a notice under paragraph 16 which complies with the
requirements of sub-paragraph (3).
      (3)
The notice under paragraph 16 must require the non-applicant
20
party to provide the Authority, within the period specified in the
notice (being not less than 7 days) beginning with the day on
which the notice is served, with—
(a)
the name and address of each person to whom sub-
paragraph (4) applies, or
25
(b)
if the non-applicant party does not consider that there is
any person to whom that sub-paragraph applies, a
statement to that effect.
      (4)
This sub-paragraph applies to a person—
(a)
whom the non-applicant party considers is a third party
30
who would be affected by a provision of the proposed
property scheme, and
(b)
whose name and address were not specified in the
application under paragraph 3(2)(c).
Notifying third parties
35
7     (1)
As soon as reasonably practicable after receiving the information
required by a notice within paragraph 6(2)(b), the Authority must
serve on each person within sub-paragraph (2)—
(a)
a copy of the application, and
(b)
a notice inviting that person to make representations to the
40
Authority about the application within the period
specified in the notice (being not less than 21 days)
beginning with the day on which the notice is served.
      (2)
A person is within this sub-paragraph if the person’s name and
address were—
45

Energy Bill
Schedule 2 — Property schemes
88

(a)
specified in the application in accordance with paragraph
3(2)(c), or
(b)
provided to the Authority in response to a notice within
paragraph 6(2)(b).
Publishing the application
5
8
As soon as reasonably practicable after an application is made for
a property scheme, the Authority must publish a notice which—
(a)
states that an application for a property scheme has been
made,
(b)
states the names of the applicant and the non-applicant
10
party, and
(c)
contains a general description of the property scheme to
which the application relates.
Supplementing the application
9     (1)
The non-applicant party may, by notice served on the Authority
15
during the period mentioned in paragraph 6(1)(a), modify the
application so as to specify additional property, rights or liabilities
of the asset owner in relation to which provision of a kind
mentioned in paragraph 1(2) is proposed to be included in the
scheme.
20
      (2)
Where an application is modified by a notice under sub-paragraph
(1) (a “modification notice”), this Schedule has effect from that
time as if any additional property, rights or liabilities specified in
the notice had been specified in the application in accordance with
paragraph 3(2)(a).
25
      (3)
A modification notice must specify the name and address of each
person—
(a)
whom the non-applicant party considers to be a third party
who would be affected by a provision of the proposed
property scheme as modified by the notice, and
30
(b)
who is not within paragraph 7(2).
      (4)
On receipt of a modification notice, the Authority must serve on
the applicant a notice (a “warning notice”) which invites the
applicant to make representations to the Authority about the
modification notice within the period specified in the warning
35
notice (being a period of not less than 21 days) beginning with the
day on which the warning notice is served.
      (5)
A warning notice must be accompanied by—
(a)
a copy of the modification notice,
(b)
a notice under paragraph 16 which complies with the
40
requirements of sub-paragraph (6), and
(c)
a copy of any information provided by the non-applicant
to the Authority in response to a notice within paragraph
6(2)(b).
      (6)
The notice under paragraph 16 must require the applicant to
45
provide the Authority, within the period specified in the notice

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Schedule 2 — Property schemes
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(being not less than 7 days) beginning with the day on which the
notice is served, with—
(a)
the name and address of each person to whom sub-
paragraph (7) applies, or
(b)
if the applicant does not consider that there is any person
5
to whom that sub-paragraph applies, a statement to that
effect.
      (7)
This sub-paragraph applies to a person—
(a)
whom the applicant considers is a third party who would
be affected by a provision of the proposed property
10
scheme as modified by the modification notice, and
(b)
whose name and address were not—
(i)
specified in the application in accordance with
paragraph 3(2)(c),
(ii)
provided to the Authority in response to a notice
15
within paragraph 6(2)(b), or
(iii)
specified in the modification notice under sub-
paragraph (3).
      (8)
As soon as reasonably practicable after receiving the information
required by a notice within sub-paragraph (5)(b), the Authority
20
must serve on each person within sub-paragraph (9) a notice
inviting that person to make representations to the Authority
about the modification notice within the period specified in the
notice (being a period of not less than 21 days) beginning with the
day on which the notice is served.
25
      (9)
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),
(b)
provided to the Authority in response to a notice within
30
paragraph 6(2)(b) or sub-paragraph (5)(b) of this
paragraph, or
(c)
specified in the modification notice.
     (10)
A notice under sub-paragraph (8) must be accompanied by—
(a)
a copy of the modification notice, and
35
(b)
if a copy of the application has not previously been served
on the person under paragraph 7(1), a copy of the
application.
10
As soon as reasonably practicable after the Authority receives a
modification notice, the Authority must publish a notice which—
40
(a)
states that a modification notice has been served on the
Authority in relation to an application,
(b)
states the names of the applicant and the non-applicant
party in relation to the application, and
(c)
contains a general description of the modifications made to
45
the application by the modification notice.

Energy Bill
Schedule 2 — Property schemes
90

Restricting or withdrawing the application
11    (1)
Where an application for a property scheme has been made, the
applicant and the non-applicant party may, by a notice served by
them jointly on the Authority—
(a)
restrict the property, rights and liabilities in relation to
5
which provision of a kind mentioned in paragraph 1(2) is
proposed, or
(b)
withdraw the application.
      (2)
Where a notice is served under sub-paragraph (1) the Authority
must serve a copy of the notice on any person served with a notice
10
in relation to the application under paragraph 7(1) or 9(8).
      (3)
A notice may be served under sub-paragraph (1) at any time
before a property scheme is made in response to the application.
      (4)
If, at any time, a notice specifying the preferred bidder, in relation
to a tender exercise, is withdrawn under paragraph 35, any
15
application for a property scheme previously made, in relation to
that exercise, by the preferred bidder or by the asset owner (unless
previously withdrawn under sub-paragraph (1)) is treated as
withdrawn at that time.
      (5)
Where an application is withdrawn by virtue of sub-paragraph
20
(4), the Authority must serve notice to that effect on—
(a)
the asset owner, and
(b)
any person served with a notice in relation to the
application under paragraph 7(1) or 9(8).
      (6)
If a notice is served under sub-paragraph (1) or an application is
25
withdrawn by virtue of sub-paragraph (4), the Authority may
direct the applicant or the non-applicant party (or both) to make a
payment to a person within sub-paragraph (7) in respect of the
costs incurred by such a person in connection with the application.
      (7)
Those persons are—
30
(a)
the Authority;
(b)
any third party affected by a provision of the proposed
property scheme.
      (8)
A determination under sub-paragraph (6) must be made on the
basis of what is just in all the circumstances of the case.
35
      (9)
The Authority must serve notice of a direction given under sub-
paragraph (6) on—
(a)
the applicant (if not the recipient of the direction),
(b)
the non-applicant party (if not the recipient of the
direction), and
40
(c)
any person served with a notice in relation to the
application under paragraph 7(1) or 9(8).
     (10)
Any sums received by the Authority under sub-paragraph (6) are
to be paid into the Consolidated Fund.

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Schedule 2 — Property schemes
91

The Authority’s functions in relation to applications
12    (1)
On an application for the making of a property scheme, the
Authority must determine whether the proposed provision in
relation to any property, right or liability specified in the
application in accordance with paragraph 3(2)(a) is necessary or
5
expedient for operational purposes.
      (2)
Sub-paragraph (1) does not apply, in relation to any property,
right or liability specified in the application, if the successful
bidder and the asset owner agree that the proposed provision, in
relation to that property, right or liability, is necessary or
10
expedient for operational purposes.
      (3)
If the Authority determines under sub-paragraph (1) that the
proposed provision, in relation to any property, right or liability
specified in the application, is not necessary or expedient for
operational purposes—
15
(a)
it must refuse the application in relation to the property,
right or liability, but
(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
20
paragraph 1(2).
      (4)
A notice under sub-paragraph (3)(b) must—
(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
25
days) beginning with the day on which the notice is
served, and
(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
30
notice to provide the Authority, within the period specified in the
notice (being not less than 7 days) beginning with the day on
which the notice is served, with—
(a)
the name and address of each person to whom sub-
paragraph (6) applies, or
35
(b)
if the recipient does not consider that there is any such
person, a statement to that effect.
      (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
40
alternative provision, and
(b)
whose name and address were not—
(i)
specified in the application in accordance with
paragraph 3(2)(c) or in a modification notice under
paragraph 9(3), or
45
(ii)
provided to the Authority in response to a notice
within paragraph 6(2)(b) or 9(5)(b).

Energy Bill
Schedule 2 — Property schemes
92

      (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
5
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),
10
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.
15
      (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),
(b)
provided to the Authority in response to a notice within
20
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
provided to the Authority in response to a notice within
25
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
whether the proposed alternative provision is necessary or
30
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
liability specified in the application, is necessary or
35
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
the proposed alternative provision, in relation to any
40
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.
     (12)
In this section “the proposed provision”, in relation to any
45
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
paragraph 11).
50