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Energy Bill
Schedule 2 — Property schemes

93

 

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

(b)   

the relevant co-ordination licence holder has given the

5

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—

(a)   

a “completion notice”, in relation to a transmission system,

10

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

property, rights and liabilities in respect of which the

15

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.

      (3)  

Until such time as section 180 of the Energy Act 2004 (meaning of

“high voltage line”) comes into force—

20

(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

offshore 132 kilovolt system”), and

(b)   

that section is to be treated as if it were in force for the

25

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

an offshore 132 kilovolt system.

      (4)  

In this paragraph—

30

“licensed functions” means—

(a)   

functions under the offshore transmission licence to

which the tender exercise relates, and

(b)   

functions which the successful bidder has, in the

capacity of holder of that licence, under or by virtue

35

of any enactment;

“relevant co-ordination licence holder” means—

(a)   

the holder of a co-ordination licence to whom a

person has applied (in accordance with any provision

made by that licence) for an offer of connection to and

40

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

connection request within the meaning of section

6D(3)(b), the holder of a co-ordination licence to

45

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,

accordingly, the tender exercise had been held for the

purposes of such a request.

50

 
 

Energy Bill
Schedule 2 — Property schemes

94

 

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

asset owner may agree or, if they fail to agree, as the Authority

may determine.

5

           

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

with the day on which the scheme is made.

      (3)  

In determining the terms of a scheme under sub-paragraph (1), the

10

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

(b)   

by the asset owner to the successful bidder,

           

and, if so, what that provision should be.

15

      (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

20

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

25

(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

30

(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).

35

      (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

40

(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.

45

 
 

Energy Bill
Schedule 2 — Property schemes

95

 

      (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.

5

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—

10

(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;

15

(e)   

any third party who is or may be affected by a provision of

a property scheme or a proposed property scheme.

      (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,

20

require the person to provide it with such information.

      (3)  

A notice under this paragraph may specify the period within

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

25

Authority may make an application to the court under this section.

      (5)  

If, on an application under this section, the court decides that the

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.

30

      (6)  

In this paragraph “the court” means—

(a)   

in the case of an application made in England and Wales,

the High Court, and

(b)   

in the case of an application made in Scotland, the Court of

Session.

35

17         

The Authority may engage consultants for the purpose of advising

it in relation to the making of a determination under this Schedule.

Notification of property scheme

18    (1)  

This paragraph applies where the Authority makes a property

scheme.

40

      (2)  

The Authority must, as soon as reasonably practicable, serve a

copy of the scheme on—

(a)   

the successful bidder,

(b)   

the asset owner, and

 
 

Energy Bill
Schedule 2 — Property schemes

96

 

(c)   

each third party affected by the scheme whose name and

address was—

(i)   

specified in the application for the scheme in

accordance with paragraph 3(2)(c) or in a

modification notice in relation to that application in

5

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).

      (3)  

The Authority must, as soon as reasonably practicable, publish a

notice which—

10

(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

(c)   

contains a general description of the provision made by the

scheme.

15

Refusal of application or part of application

19    (1)  

This paragraph applies where the Authority—

(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

20

3(2)(a), or

(b)   

determines not to make any alternative provision

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

25

notice giving details of the determination on each person

mentioned in paragraph 18(2)(a) to (c).

      (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—

30

(a)   

the Authority,

(b)   

the successful bidder,

(c)   

the asset owner, or

(d)   

a third party affected by a provision of the proposed

property scheme or any alternative provision proposed

35

under paragraph 12(3)(b).

      (4)  

The Authority must serve notice of a direction given under sub-

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

40

(c)   

any person served with a notice in relation to the

application under paragraph 7(1), 9(8) or 12(7).

      (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

45

to be paid into the Consolidated Fund.

 
 

Energy Bill
Schedule 2 — Property schemes

97

 

Effect of property scheme

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

5

provides for transactions of that description to be registered in any

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

10

or concurrence of any person.

      (3)  

In this paragraph “enactment” includes an enactment comprised

in, or in an instrument made under, an Act of the Scottish

Parliament.

22         

Where—

15

(a)   

an amount of compensation is owed to a person in

accordance with a property scheme, or

(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),

20

           

the amount may be recovered by that person.

Review of determinations

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.

25

      (2)  

An application under sub-paragraph (1) may be made—

(a)   

during the relevant appeal period, or

(b)   

with the permission of the Competition Appeal Tribunal,

at a later time.

      (3)  

The relevant appeal period means—

30

(a)   

where the application is in respect of a determination

relating to a property scheme which has been made by the

Authority, 21 days beginning with the day on which a

notice in respect of the scheme is published under

paragraph 18(3);

35

(b)   

in any other case, 21 days beginning with the day on which

the determination was made.

      (4)  

On an application under sub-paragraph (1), the Competition

Appeal Tribunal may by order—

(a)   

dismiss the application, or

40

(b)   

make such other determination as it considers appropriate.

24    (1)  

This paragraph applies where—

(a)   

the Competition Appeal Tribunal makes an order under

paragraph 23(4)(b), and

 
 

Energy Bill
Schedule 2 — Property schemes

98

 

(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

Authority to make a property scheme in relation to that property,

or those rights and liabilities.

5

      (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

Authority.

25    (1)  

This paragraph applies where—

10

(a)   

the Competition Appeal Tribunal makes an order under

paragraph 23(4)(b),

(b)   

the Authority has made a property scheme in relation to

the property, rights or liabilities concerned, and

(c)   

the scheme has not come into operation.

15

      (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

operational purposes, it may include in the order provision

quashing the scheme.

20

      (3)  

In any other case, the Tribunal may include in the order—

(a)   

provision for the scheme to have effect with such

amendments with respect to any matter dealt with by the

Authority’s determination as it thinks fit, and

(b)   

to the extent that the Authority’s determination dealt with

25

any financial matter, provision requiring the Authority to

redetermine the matter in accordance with the order and to

amend the scheme accordingly.

26    (1)  

This paragraph applies where—

(a)   

the Competition Appeal Tribunal makes an order under

30

paragraph 23(4)(b),

(b)   

the Authority has made a property scheme in relation to

the property, rights or liabilities concerned, and

(c)   

the scheme has come into operation.

      (2)  

The Tribunal may include in the order such provision as it thinks

35

fit for the purpose of doing justice between—

(a)   

the successful bidder,

(b)   

the asset owner, and

(c)   

any third party affected by the scheme,

           

in the light of its determination.

40

      (3)  

Without prejudice to the generality of sub-paragraph (2), the

Tribunal may include in the order—

(a)   

provision for the transfer of anything transferred by the

scheme;

(b)   

provision for the surrender or extinction of rights;

45

(c)   

provision for the payment of compensation to the asset

owner or the successful bidder;

 
 

Energy Bill
Schedule 2 — Property schemes

99

 

(d)   

provision for the payment of compensation to a third party

affected by the scheme;

(e)   

provision about the payment of costs of the kind

mentioned in paragraph 14(6).

      (4)  

Any sums received by the Authority by virtue of sub-paragraph

5

(3)(e) are to be paid into the Consolidated Fund.

27    (1)  

An order under paragraph 23(4)(b) may include provision for the

award of interest at such rate and for such period as the

Competition Appeal Tribunal thinks fit.

      (2)  

Where the application made under paragraph 23(1) is for a review

10

of a determination under paragraph 11(6) or 19(3), the Tribunal

may include in an order under paragraph 23(4)(b) one or both of

the following—

(a)   

provision amending or revoking any direction made as a

result of the determination;

15

(b)   

provision equivalent to any direction which could have

been made by the Authority under paragraph 11(6) or

19(3).

Interim arrangements pending review of determination

28    (1)  

This paragraph applies where—

20

(a)   

a person makes an application under paragraph 23(1) for

the review of a determination, and

(b)   

the Authority has not made a property scheme in relation

to the property, rights or liabilities to which the

determination relates.

25

      (2)  

The Competition Appeal Tribunal may, at any time before an

order is made under paragraph 23(4), on application by the

successful bidder or the asset owner make such interim

arrangements as it thinks fit with respect to the property, rights or

liabilities concerned.

30

      (3)  

Without prejudice to the generality of sub-paragraph (2), the

power under that sub-paragraph includes, in particular, power to

make provision for the successful bidder to have access to, or

otherwise to enjoy the benefit of, any of the property or rights

concerned for such period, and on such terms, as the Tribunal

35

thinks fit.

29    (1)  

This paragraph applies where—

(a)   

a person makes an application under paragraph 23(1) for

the review of a determination, and

(b)   

the Authority has made a property scheme in relation to

40

the property, rights or liabilities to which the

determination relates.

      (2)  

The Competition Appeal Tribunal may, at any time before an

order is made under paragraph 23(4), on application by—

(a)   

the successful bidder,

45

(b)   

if the scheme has not come into operation, the asset owner,

 
 

 
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