Energy Act 2004 (c. 20)

(The document as of February, 2008)

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(b) ends with the date of payment.

(11) The rate of interest shall be a rate determined by the Secretary of State to be comparable with commercial rates.

108 Reviews and revisions of decommissioning programmes

(1) The Secretary of State must, from time to time, conduct such reviews of a decommissioning programme approved by him as he considers appropriate.

(2) A proposal--

(a) to modify a decommissioning programme approved by the Secretary of State, or

(b) to modify a condition to which such a programme is subject,

may be made by the Secretary of State, or by the person who submitted the programme or (if there is more than one of them) by all of them acting jointly.

(3) A proposal--

(a) to relieve a person of his duty under section 109(1) in relation to a decommissioning programme approved by the Secretary of State, or

(b) as respects such a programme, to impose that duty upon a person not previously subject to it (whether in addition to or in substitution for another person),

may be made by the Secretary of State or by the person for the time being subject to that duty or (if there is more than one person subject to that duty) by any one or more of them.

(4) A proposal under subsection (2) or (3) may be made only by way of notice given--

(a) if the proposal is the Secretary of State's, to every person whose duty under section 109(1) in relation to the programme would be affected or relieved under the proposal or who would become subject to such a duty; and

(b) in any other case, to the Secretary of State.

(5) An opportunity of making representations to the Secretary of State about a proposal of his under this section must be given by him to every person to whom notice of the proposal is required to have been given.

(6) It is to be for the Secretary of State, after considering any representations made to him, to determine whether or not effect should be given to a proposal of his, or of any other person, under this section.

(7) Before making a determination under subsection (6) with respect to a proposal in relation to a decommissioning programme relating to a relevant object which is to be or is, wholly or partly--

(a) in an area of Scottish waters, or

(b) in an area of waters in a Scottish part of a Renewable Energy Zone,

the Secretary of State must consult the Scottish Ministers.

(8) Where the Secretary of State makes a determination under subsection (6), he must give notice of his determination, and of his reasons for it, to--

(a) every person who, before the determination, had a duty under section 109(1) in relation to the programme; and

(b) every person who will become subject to such a duty as a result of the determination.

(9) Where the Secretary of State gives notice under subsection (8) in respect of a proposal, this Chapter shall have effect after the giving of that notice--

(a) in the case of a proposal under subsection (2), as if the programme in question had been approved subject to the modifications specified in the determination; and

(b) in the case of a proposal under subsection (3), as if that programme had been submitted to the Secretary of State by the person or persons so specified.

(10) Where the Secretary of State gives notice under subsection (8) to a person that he is to become subject to a duty under section 109(1) in relation to a programme, the Secretary of State may by notice to that person require him--

(a) to provide such security in relation to the carrying out of the programme, and for his compliance with any conditions of its approval, as may be specified by the Secretary of State; and

(b) to provide it at such time, and in accordance with such requirements, as may be specified by the Secretary of State;

and a requirement under this subsection has effect as if it were a condition of the approval of the programme.

Implementation of decommissioning programmes

109 Carrying out of decommissioning programmes

(1) Where a decommissioning programme is approved by the Secretary of State, it shall be the duty of the person who submitted the programme to secure--

(a) that it is carried out in every respect; and

(b) that all the conditions to which the approval is subject are complied with.

(2) Where a relevant object is subject to a decommissioning programme approved by the Secretary of State, it is an offence for a person to take any measures for decommissioning that object unless he does so--

(a) in accordance with the programme; or

(b) with the agreement of the Secretary of State.

110 Default in carrying out decommissioning programmes

(1) Where--

(a) a decommissioning programme approved by the Secretary of State is not carried out in a particular respect, or

(b) a condition to which the approval is subject is contravened,

the Secretary of State may, by notice, require a person subject to the duty under section 109(1) in relation to the programme to take such remedial action as may be specified in the notice.

(2) Remedial action required by a notice under this section must be taken within such period as may be specified in the notice.

(3) A person who fails to comply with a notice given to him under this section is guilty of an offence.

(4) In proceedings against a person for an offence under this section it is a defence for him to show that he exercised due diligence to avoid the contravention in question.

(5) If a notice under this section is not complied with, the Secretary of State may--

(a) himself secure the carrying out of the remedial action required by the notice; and

(b) recover any expenditure incurred by him in doing so from the person to whom the notice was given.

(6) A person liable to pay a sum to the Secretary of State by virtue of subsection (5) must also pay interest on that sum for the period which--

(a) begins with the day on which the Secretary of State notified him of the sum payable; and

(b) ends with the date of payment.

(7) The rate of interest shall be a rate determined by the Secretary of State to be comparable with commercial rates.

Decommissioning regulations

111 Regulations about decommissioning

(1) The Secretary of State may make regulations relating to the decommissioning of relevant objects in waters regulated under this Chapter.

(2) The provision that may be contained in regulations under this section includes, in particular--

(a) provision prescribing standards in respect of decommissioning;

(b) provision prescribing standards and safety requirements in respect of anything left in place where a relevant object is not wholly removed;

(d) provision for the prevention of pollution;

(e) provision for inspections, including provision as to the payment of the costs of inspections.

(3) Regulations under this section may include provision making it an offence to contravene provisions of the regulations.

(4) Where the regulations under this section create an offence, they must make provision as to the mode of trial and punishment of offenders; but there is no power for regulations under this section--

(a) to impose a penalty of imprisonment on summary conviction, or to impose a maximum fine, on summary conviction, of more than the statutory maximum; or

(b) to impose a maximum term of imprisonment, on conviction on indictment, of more than two years.

(5) Before making regulations under this section, the Secretary of State must consult--

(a) organisations appearing to him to be representative of persons who will be affected by the regulations; and

(b) any other persons he considers appropriate.

(6) Before making regulations under this section containing provision that relates to the decommissioning of relevant objects which are to be or are, wholly or partly--

(a) in Scottish waters, or

(b) in waters in a Scottish part of a Renewable Energy Zone,

the Secretary of State must consult the Scottish Ministers.

(7) Regulations under this section are subject to the negative resolution procedure.

Supplementary provisions of Chapter 3 of Part 2

112 Duty to inform Secretary of State

(1) A person who becomes responsible for a relevant object must notify the Secretary of State that he has become so responsible.

(2) For the purposes of this section a person becomes responsible for a relevant object if--

(a) he makes a proposal to construct the object in waters regulated under this Chapter;

(b) he makes a proposal for the extension or decommissioning in such waters of the object;

(d) he makes a proposal to operate or use the object on completion in such waters of any extension of it;

(e) he becomes a party to a proposal mentioned in paragraphs (a) to (d);

(f) he begins in such waters to construct, to extend, to operate or use or to decommission the object;

(g) he begins to participate in any of the following activities carried on in such waters, the construction, extension, operation or use or decommissioning of the object.

(3) A person is not required to notify the Secretary of State that he has made a proposal, or become a party to a proposal, at any time before at least one of the statutory consents required for enabling effect to be given to the proposal has been given or applied for.

(4) A person who notifies the Secretary of State under this section that he has made a proposal, or has become a party to a proposal--

(a) must specify in the notification what statutory consents required for giving effect to the proposal have been given, and what applications for such consents have been made; and

(b) must notify him subsequently whenever such a consent or application is given or made.

(5) A notification under this section must be given within such period after the obligation to give the notification arises as may be prescribed by regulations made by the Secretary of State.

(6) A person who contravenes the requirements of this section is guilty of an offence.

(7) Regulations under this section are subject to the negative resolution procedure.

(8) A reference in this section to participation in activities does not include a reference--

(a) to participation on behalf of another person; or

(b) to participation by acting in pursuance of an agreement to provide a service or services to a person carrying on those activities.

(9) In this section "statutory consent" has the same meaning as in section 105.

113 Offences relating to decommissioning programmes

(1) A person guilty of an offence under a provision of this Chapter is liable--

(a) on summary conviction, to a fine not exceeding the statutory maximum;

(b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine, or to both.

(2) No proceedings for a decommissioning offence shall be instituted in England and Wales or Northern Ireland except--

(a) by the Secretary of State;

(b) by a person authorised in that behalf by the Secretary of State; or

(c) by or with the consent of the Director of Public Prosecutions or (as the case may be) the Director of Public Prosecutions for Northern Ireland.

(3) Where a decommissioning offence is committed by a body corporate and is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of--

(a) a director, manager, secretary or other similar officer of the body corporate, or

(b) a person who was purporting to act in any such capacity,

he (as well as the body corporate) is guilty of that offence and shall be liable to be proceeded against and dealt with accordingly.

(4) Where such an offence--

(a) is committed by a Scottish firm, and

(b) is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a partner of the firm,

he (as well as the firm) is guilty of that offence and shall be liable to be proceeded against and dealt with accordingly.

(5) Where a decommissioning offence is committed outside the United Kingdom, proceedings for the offence may be taken, and the offence may for all incidental purposes be treated as having been committed, in any place in the United Kingdom.

(6) Section 3 of the Territorial Waters Jurisdiction Act 1878 (c. 73) (consents to prosecution of offences committed on the open sea by persons who are not British citizens) does not apply to proceedings for a decommissioning offence.

(7) In this section--

"decommissioning offence" means an offence under--
(a)
a provision of this Chapter; or
(b)
regulations made under section 111;
"director", in relation to a body corporate whose affairs are managed by its members, means a member of the body corporate.

114 Interpretation of Chapter 3 of Part 2

(1) Expressions used in this Chapter and in Chapter 2 of this Part have the same meanings in this Chapter as in that Chapter.

(2) In this Chapter--

"decommissioning programme" has the meaning given by section 105(2);
"extend" and "extension", in relation to an electric line, have the same meanings as they have in Chapter 2 of this Part and this Chapter in relation to a renewable energy installation;
"recipient", in relation to a notice under section 105, means the person or any one or more of the persons to whom that notice was given;
"relevant object" has the meaning given by section 105(10);
"security" includes--
(a)
a charge over a bank account or any other asset;
(b)
a deposit of money;
(c)
a performance bond or guarantee;
(d)
a letter of credit; and
(e)
a letter of comfort;
"waters regulated under this Chapter" has the meaning given by section 105(10).

(3) References in this Chapter to providing a security include references--

(a) to securing its maintenance or renewal; and

(b) to ensuring that its value is adjusted from time to time to take account of changes to the likely costs of the matters in respect of which it is given.

(4) References in this Chapter to the person by whom a decommissioning programme was submitted are references, in the case of a programme submitted jointly by more than one person, to each of them.

(5) Provision made by or under this Chapter in relation to places outside the United Kingdom--

(a) so far as it applies to individuals, applies to them whether or not they are British citizens; and

(b) so far as it applies to bodies corporate, applies to them whether or not they are incorporated under the law of any part of the United Kingdom.

Chapter 4 Renewables obligations relating to electricity

115 Discharge of renewables obligation in Great Britain by payment

(1) In section 32(3) of the 1989 Act (renewables obligation), for the words from "must" to "produce" substitute "must, by each specified day, have produced".

(2) In section 32C of that Act (payment as an alternative to complying with a renewables obligation), in subsection (1) for the words from "that" onwards substitute--

" (a) that an electricity supplier may (in whole or in part) discharge its renewables obligation by making a payment to the Authority before the day specified as the day by which evidence must be produced for the purposes of section 32(3); and

(b) that an electricity supplier's renewables obligation that was not discharged in whole or in part before the day so specified is to be treated as having been discharged to the extent specified in the order where the payment for which the order provides is made to the Authority before the end of such period beginning with that day as may be specified in the order. "

(3) In subsection (2) of that section (supplementary provisions of order providing for payments)--

(a) after paragraph (a) insert--

" (aa) for the sums that must be paid in order for an obligation to be treated as having been discharged to increase at a rate specified in the order for each day after the time by which evidence had to be produced for the purposes of section 32(3); "

(b) in paragraph (b), for "such sums" substitute "sums or rates falling within paragraph (a) or (aa)";

(d) in paragraph (d), after "sum" insert "or rate".

(4) For subsection (3) of that section substitute--

" (2A) An order under section 32 may provide that, where--

(a) a renewables obligation is one in relation to which provision made by virtue of subsection (1)(b) applies in the case of the electricity supplier who is subject to the obligation, and

(b) the period ending with such day (after the day by which the obligation had to be complied with) as may be specified in or determined under the order has not expired,

the taking of steps under section 27A in respect of a contravention by that supplier of that obligation is prohibited or otherwise restricted to the extent specified in the order.

(2B) An order under section 32 may provide that, in a case in which the amount received by the Authority, or by the Northern Ireland authority, by way of discharge payments for a period falls short of the amount due in respect of that period, every person who--

(a) was subject to a renewables obligation for the relevant period or for a subsequent period specified in or determined under the order, and

(b) is of a description so specified or determined,

must, by the time and in the circumstances so specified or determined, make a payment (or further payment) to the Authority of an amount calculated in the manner so specified or determined.

(2C) An order under section 32 may not by virtue of subsection (2B) confer an entitlement on the Authority to receive a payment in respect of the shortfall for any period--

(a) in the case of a shortfall in the amount received by the Authority, if the receipt of the payment is to be while a prohibition or restriction by virtue of subsection (2A) applies, in one or more cases, to the taking of steps in relation to contraventions of renewables obligations for that period; or

(b) in the case of a shortfall in the amount received by the Northern Ireland authority, if the receipt of the payment is to be while a prohibition or restriction by virtue of a corresponding provision having effect in Northern Ireland applies, in one or more cases, to the taking of steps in relation to contraventions of Northern Ireland obligations for that period.

(2D) The provision that may be made by virtue of subsection (2B) includes--

(a) provision for the making of adjustments and repayments at times after a requirement to make payments in respect of a shortfall for a period has already arisen; and

(b) provision that sections 25 to 28 are to apply in relation to a requirement imposed by virtue of that subsection on a person who is not a licence holder as if he were a licence holder.

(3) The amounts received by the Authority by virtue of the preceding provisions of this section must be paid by it to electricity suppliers in accordance with a system of allocation specified in an order under section 32. "

(5) In that section, at the end insert--

" (6) References in this section to an electricity supplier's renewables obligation include references to its renewables obligation in relation to a particular period.

(7) For the purposes of this section--

(a) the amount received by the Authority by way of discharge payments for a period falls short of the amount due in respect of that period, and

(b) the amount received by the Northern Ireland authority by way of discharge payments for a period falls short of the amount due in respect of that period,

if, and to the extent that, the Authority or (as the case may be) the Northern Ireland authority would have received more by way of discharge payments if every renewables obligation or (as the case may be) Northern Ireland obligation for that period, so far as it was not otherwise discharged, had been discharged by payment.

(8) In this section--

"discharge payment", in relation to a period, means--
(a)
a payment by virtue of paragraph (a) of subsection (1) for discharging (in whole or in part) an electricity supplier's renewables obligation for that period;
(b)
so much of a payment by virtue of paragraph (b) of that subsection for securing that such an obligation is treated as discharged to any extent as does not exceed the payment that would have discharged that obligation to the same extent if it had been made before the day mentioned in that paragraph; or
(c)
so much of any payment to the Northern Ireland authority as corresponds, in relation to a Northern Ireland obligation for that period, to anything falling within paragraph (a) or (b) above;
"Northern Ireland obligation" means a renewables obligation of a Northern Ireland supplier under Article 52 of the Energy (Northern Ireland) Order 2003;
"the relevant period"--
(a)
in relation to a shortfall in amounts received by the Authority by way of discharge payments for a period, means that period; and
(b)
in relation to a shortfall in amounts received by the Northern Ireland authority by way of discharge payments for a period, means any period that includes the whole or a part of that period. "

(6) The requirements of section 32(7) of the 1989 Act (consultation before making an order) may be satisfied in the case of an order containing provision made by virtue of this section by consultation that took place wholly or partly before the commencement of this section.

116 Issue of green certificates in Great Britain

(1) Section 32B of the 1989 Act (green certificates) is amended as follows.

(2) In subsection (1), for "or to an electricity supplier" substitute ", to an electricity supplier or to a Northern Ireland supplier".

(3) After that subsection insert--

" (1A) A certificate is to certify either the matters within subsection (2) or the matters within subsection (2A). "

(4) In subsection (2)--

(a) for "A certificate is to certify" substitute "The matters within this subsection are";

(b) in paragraph (a), after "an electricity supplier" insert "or to a Northern Ireland supplier".

(5) After that subsection insert--

" (2A) The matters within this subsection are--

(a) that the generating station or, in the case of a certificate issued to an electricity supplier or to a Northern Ireland supplier, a generating station specified in the certificate, has generated from renewable sources the amount of electricity stated in the certificate;

(b) that the generating station in question is not a generating station mentioned in Article 54(1) of the Energy (Northern Ireland) Order 2003; and

(2B) An order under section 32 must--

(a) prohibit the issue of a certificate certifying matters within subsection (2A) where the Northern Ireland authority has notified the Authority that it is not satisfied that the electricity in question has been supplied to customers in Northern Ireland; and

(b) require the revocation of such a certificate if the Northern Ireland authority so notifies the Authority at a time between the issue of the certificate and its production for the purposes of provision made by virtue of subsection (4). "

(6) In subsection (3), after "Authority" insert "that certifies matters within subsection (2)".

(7) After that subsection insert--

" (4) An order under section 32 may provide that--

(a) in such cases as may be specified in the order, and

(b) subject to such conditions as may be so specified,

an electricity supplier may (to the extent provided for in accordance with the order) discharge its renewables obligation (or its obligation in relation to a particular period) by the production to the Authority of a certificate that certifies matters within subsection (2A).

(5) References in this section to the supply of electricity to customers in Northern Ireland shall be construed in accordance with the definition of "supply" in Article 3 of the Electricity (Northern Ireland) Order 1992. "

(8) The requirements of section 32(7) of that Act (consultation before making an order) may be satisfied in the case of an order containing provision made by virtue of this section by consultation that took place wholly or partly before the commencement of this section.

117 Use of green certificates issued in Northern Ireland

(1) After section 32B of the 1989 Act insert--

" 32BA Use of green certificates issued in Northern Ireland

(1) An order under section 32 may provide that--

(a) in such cases as may be specified in the order, and

(b) subject to such conditions as may be so specified,

(2) In this section "Northern Ireland certificate" means a certificate issued by the Northern Ireland authority in accordance with provision included, by virtue of Article 54 of the Energy (Northern Ireland) Order 2003, in an order under Article 52 of that Order (renewables obligations for Northern Ireland suppliers). "

(2) The requirements of section 32(7) of the 1989 Act (consultation before making an order) may be satisfied in the case of an order containing provision made by virtue of this section by consultation that took place wholly or partly before the commencement of this section.

(3) In Article 56(1) of the Energy (Northern Ireland) Order 2003 (S.I. 2003/419 (N.I. 6)) (power to amend Part 7 of that Order to take account of amendments of corresponding Great Britain provisions), the reference to amendments made to sections 32 to 32C of the 1989 Act includes a reference to subsection (1) of this section.

(4) Subsection (3) extends to Northern Ireland only.

118 Distributions to Northern Ireland suppliers

(1) In section 32C of the 1989 Act (payment of money to discharge renewables obligation and distribution of fund to electricity suppliers), after subsection (4) insert--

" (5) The references in subsections (3) and (4) to electricity suppliers include references to persons who are Northern Ireland suppliers. "

119 Supplementary provision relating to renewables obligation in Great Britain

(1) In subsection (3) of section 32 of the 1989 Act (definition of renewables obligation), for "and 32C" substitute "to 32C".

(2) In subsection (7) of that section, for paragraph (d) substitute--

" (d) such generators of electricity from renewable sources as he considers appropriate; and " .

(3) After subsection (8) of that section insert--

" (8A) In this section and in sections 32A to 32C--

"generated" means generated at any place whether situated in the United Kingdom or elsewhere, and cognate expressions shall be construed accordingly;
"Northern Ireland authority" means the Northern Ireland Authority for Energy Regulation;
"Northern Ireland supplier" means an electricity supplier within the meaning of Part 7 of the Energy (Northern Ireland) Order 2003. "

(4) In section 32A of that Act (supplementary provision relating to orders under section 32), in subsection (3) for the words from "the differences" onwards substitute "no supplier would by virtue of the differences be unduly disadvantaged in competing with other suppliers".

(5) After that subsection insert--

" (3A) In subsection (3) "supplier" means an electricity supplier or a Northern Ireland supplier. "

(6) In subsection (7) of that section, for "obligation imposed" substitute "matters dealt with".

(7) The requirements of section 32(7) of that Act (consultation before making an order) may be satisfied in the case of an order containing provision made by virtue of this section by consultation that took place wholly or partly before the commencement of this section.

120 Issue of green certificates in Northern Ireland

(1) Article 54 of the Energy (Northern Ireland) Order 2003 (S.I. 2003/419 (N.I. 6)) (which contains provision corresponding to provision contained in section 32B of the 1989 Act) is amended as follows.

(2) After paragraph (2) insert--

" (2A) In paragraphs (1) and (2) "Northern Ireland" does not include any part of the territorial sea of the United Kingdom.

(2B) The provision that may be contained by virtue of this Article in an order under Article 52 includes--

(a) provision for the person to whom a certificate is to be issued to be determined either before or after the supply of the electricity to which it relates; and

(b) provision for a determination as to the person to whom a certificate is to be issued to be made in accordance with such arrangements as may be specified in or determined under the order.

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