|
| |
|
13 (1) | On an application for a property scheme, no scheme may be made |
| |
| |
(a) | the offshore transmission licence has been issued to the |
| |
| |
(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. |
| |
| |
(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. |
| |
| 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 |
| |
“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 |
|
| |
|
| |
|
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 |
| |
| 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 |
| |
| |
(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— |
| |
| |
(b) | the successful bidder, |
| |
| 30 |
(d) | a third party affected by a provision of the property |
| |
| |
(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 |
| |
| |
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 |
|
| |
|
| |
|
(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 |
| |
| 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 |
| |
| 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, |
| |
| |
(b) | in the case of an application made in Scotland, the Court of |
| |
| 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 |
| |
| 40 |
(2) | The Authority must, as soon as reasonably practicable, serve a |
| |
| |
(a) | the successful bidder, |
| |
| |
|
| |
|
| |
|
(c) | each third party affected by the scheme whose name and |
| |
| |
(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 |
| |
| 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 |
| |
| 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 |
| |
(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 |
| |
| 30 |
| |
(b) | the successful bidder, |
| |
| |
(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- |
| |
| |
(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. |
| |
|
| |
|
| |
|
Effect of property scheme |
| |
20 | A property scheme, by virtue of this paragraph, has effect |
| |
| |
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 |
| |
| |
(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 |
| |
| |
| 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. |
| |
| |
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, |
| |
| |
(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 |
| |
| 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 |
| |
| |
|
| |
|
| |
|
(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 |
| |
| |
25 (1) | This paragraph applies where— |
| 10 |
(a) | the Competition Appeal Tribunal makes an order under |
| |
| |
(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 |
| |
| 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 |
| |
(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, |
| |
| |
(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 |
| |
| |
(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; |
| |
|
| |
|
| |
|
(d) | provision for the payment of compensation to a third party |
| |
| |
(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 |
| |
| |
(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 |
| |
| |
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 |
| |
| 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 |
| |
| 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 |
| |
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 |
| |
| |
(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, |
| |
|
| |
|