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Energy Act 2004 (c. 20)(The document as of February, 2008) Page 24 Pages: P.1 | P.2 | P.3 | P.4 | P.5 | P.6 | P.7 | P.8 | P.9 | P.10 | P.11 | P.12 | P.13 | P.14 | P.15 | P.16 | P.17 | P.18 | P.19 | P.20 | P.21 | P.22 | P.23 | P.24 | P.25 | P.26 | P.27 (6) The place set out in accordance with sub-paragraph (5)(a) in the case of an inquiry in respect of an application for a safety zone notice must be the place determined in accordance with regulations made by the Secretary of State. (7) If it appears to the Secretary of State, in the case of an inquiry in respect of such an application, that further notification of the inquiry should be given (in addition to the published notice) in order to secure that the matters set out in the published notice are sufficiently made known to persons who are likely to be affected by the application-- (a) the Secretary of State may direct the applicant to take such further steps for that purpose (whether by the service of notices, advertisement or otherwise) as may be specified in the direction; and (b) that person must comply with the direction. (8) If it appears to the Secretary of State, in the case of an inquiry in respect of a proposal of his, that further notification of the inquiry should be given (in addition to the published notice) in order to secure that the matters set out in the published notice are sufficiently made known to persons who are likely to be affected by the proposal, he must take such further steps for that purpose (whether by the service of notices, advertisement or otherwise) as he considers appropriate. (9) The following provisions-- (a) subsections (2) to (5) of section 250 of the Local Government Act 1972 (c. 70) (which relates to evidence at inquiries and the costs of inquiries), and (b) subsections (2) to (8) of section 210 of the Local Government (Scotland) Act 1973 (c. 65) (which makes similar provision for Scotland), shall apply in relation to a public inquiry held under this Schedule as they apply in relation to a local inquiry which a Minister causes to be held under subsection (1) of that section. (10) For the purposes of this paragraph a public inquiry under sub-paragraph (6) of paragraph 5 in a case where that paragraph applies by virtue of sub-paragraph (1)(b) of that paragraph-- (a) is a public inquiry in respect of a proposal of the Secretary of State; and (b) is not a public inquiry in respect of an application. Use of additional inspectors for an inquiry7 (1) This paragraph applies in the case of-- (a) a public inquiry in England and Wales under this Schedule; or (b) a public inquiry in England and Wales which is a combination under section 62 of the 1989 Act into one inquiry of-- (i) two or more inquiries under this Schedule; or (ii) one or more inquiries under this Schedule and one or more other inquiries. (2) At any time after appointing a person to hold the inquiry ("the lead inspector"), the Secretary of State may direct him-- (a) to consider such matters relating to the conduct of the inquiry as are specified in the direction; and (b) to make recommendations to the Secretary of State about those matters. (3) After considering the recommendations of the lead inspector, the Secretary of State may-- (a) appoint for the purposes of the inquiry such number of additional inspectors as he thinks appropriate; and (b) direct that each additional inspector must consider such of the matters to which the inquiry relates as are allocated to him by the lead inspector. (4) An additional inspector must-- (a) comply with every direction as to procedural matters given to him by the lead inspector; and (b) report to the lead inspector on every matter allocated to him. (5) It is to be for the lead inspector to report to the Secretary of State on the consideration of both-- (a) the matters which he considered himself; and (b) the matters the consideration of which was allocated to additional inspectors. (6) The power of the Secretary of State to give directions to the lead inspector may be exercised on one or more different occasions after the appointment of the lead inspector. (7) Accordingly-- (a) the recommendations that may be made by the lead inspector following such a direction include, in particular, a recommendation for varying the number of additional inspectors; and (b) the power of the Secretary of State to appoint an additional inspector includes power to revoke such an appointment. (8) A direction by any person under this paragraph may be varied or revoked by a subsequent direction by that person. Combined notices8 A notice required by or under this Schedule may be combined with a notice required by or under Schedule 8 to the 1989 Act (procedure on application for a consent in respect of a generating station) in any case involving the same installation or proposed installation. Parliamentary control of regulations9 Regulations under this Schedule are subject to the negative resolution procedure. Section 138 SCHEDULE 17 Conversion of existing transmission licences: licensing schemeLicensing scheme1 (1) Before the commencement of section 136, the Secretary of State shall make a scheme in relation to existing transmission licences. (2) A scheme under this paragraph shall provide for each licence to which it relates to have effect on and after such date as the scheme may provide-- (a) as a licence under section 6(1)(b) of the 1989 Act as amended by Chapter 1 of Part 3 of this Act, and (b) with the inclusion of such provision under section 6(6A) of that Act as the scheme may provide. (3) Subject to sub-paragraph (4), a scheme under this paragraph shall provide that the conditions which by virtue of section 137(3) are standard conditions for the purposes of transmission licences are incorporated by reference in each licence to which the scheme relates (in place of the existing standard conditions of that licence). (4) A scheme under this paragraph may provide that each licence to which it relates shall have effect with such incidental, consequential and supplementary modifications as appear to the Secretary of State to be necessary or expedient. (5) Modifications under sub-paragraph (4) may relate to-- (a) the terms of a licence, or (b) the conditions of a licence (including the standard conditions which would otherwise be incorporated by virtue of sub-paragraph (3)). (6) A scheme under this paragraph may-- (a) make such transitional provision as appears to the Secretary of State to be necessary or expedient; (b) make different provision for different cases. (7) As soon as practicable after making a scheme under this paragraph, the Secretary of State shall publish the text of each licence to which the scheme relates as it has effect by virtue of the scheme. (8) Any text so published shall be treated as authoritative unless the contrary is shown. (9) The Secretary of State may change the date on which a scheme under this paragraph is to come into operation. Consequential amendment of related codes and agreements2 The Secretary of State may include in a scheme under paragraph 1 provision amending a code or agreement relevant to the conditions of an existing transmission licence if it appears to him to be necessary or expedient to do so in consequence of anything for which the scheme makes provision. Effect of licensing scheme3 (1) A scheme under paragraph 1 shall, by virtue of this paragraph, have effect according to its terms. (2) The modification under paragraph 1(4) of what would otherwise be a standard condition of a licence to which the scheme relates shall not prevent any other part of the condition which is not so modified being regarded as a standard condition for the purposes of Part 1 of the 1989 Act. Modification of licensing scheme4 (1) If at any time after a scheme under paragraph 1 has come into operation the Secretary of State considers it appropriate to do so, he may by order provide that the scheme shall for all purposes be deemed to have come into operation with such modifications as may be specified in the order. (2) An order under sub-paragraph (1) may make, with effect from the coming into force of the scheme, such provision as could have been made by the scheme, and in connection with giving effect to that provision from that time may contain such supplemental, consequential and transitional provision as the Secretary of State considers appropriate. (3) An order under sub-paragraph (1) is subject to the negative resolution procedure. Consultation by the Secretary of State5 (1) Before carrying out any function under this Schedule the Secretary of State shall consult-- (a) GEMA, and (b) holders of existing transmission licences, in such manner as he considers appropriate. (2) Sub-paragraph (1) may be satisfied by consultation before, as well as by consultation after, the commencement of this paragraph. "Existing transmission licence"6 In this Schedule, references to an existing transmission licence are to a transmission licence which is in force immediately before the day on which section 136 comes into force. Section 141 SCHEDULE 18 Property arrangements schemesScheme-making power1 (1) GEMA may, on application, make a scheme providing for-- (a) the transfer to the system operator of, or (b) the creation in favour of the system operator of any rights in relation to, property, rights or liabilities of an existing transmission licence holder. (2) A scheme under sub-paragraph (1) ("a property arrangements scheme") may also contain-- (a) provision for the creation, in relation to property which the scheme transfers, of an interest in or right over the property in favour of the relevant existing transmission licence holder; (b) provision for the creation of any rights or liabilities as between the relevant existing transmission licence holder and the system operator; (c) provision for imposing on the relevant existing transmission licence holder or the system operator an obligation to enter into a written agreement with, or to execute an instrument of another kind in favour of, the other; (d) supplemental, incidental and consequential provision. (3) The property, rights or liabilities which may be transferred by a property arrangements scheme include property, rights or liabilities which would not otherwise be capable of being transferred. (4) If a property arrangements scheme provides for the division of an estate or interest in land and any rent is-- (a) payable in respect of the estate or interest under a lease, or (b) charged on the estate or interest, the scheme may contain provision for apportionment or division so that one part is payable in respect of, or charged on, only one part of the estate or interest and the other part is payable in respect of, or charged on, only the other part of the estate or interest. (5) A property arrangements scheme that contains provision which adversely affects a third party may also contain provision requiring the system operator or the relevant existing transmission licence holder to pay the third party compensation. Applications for schemes2 (1) An application for the making of a property arrangements scheme may be made by-- (a) the system operator, or (b) the relevant existing transmission licence holder. (2) No application for a property arrangements scheme may be made after the end of the period of three months beginning with the day on which section 141 comes into force. (3) An application for a property arrangements scheme shall specify the property, rights or liabilities in relation to which provision of a kind mentioned in paragraph 1(1) is proposed to be included in the scheme. GEMA's functions in relation to applications3 (1) On an application for the making of a property arrangements scheme, GEMA shall, in relation to any property, rights or liabilities in respect of which the application proposes provision of a kind mentioned in paragraph 1(1), determine whether provision of such a kind is, in relation to that property, or those rights or liabilities, necessary or expedient for implementation purposes. (2) Sub-paragraph (1) does not apply if the system operator and the relevant existing transmission licence holder agree that provision of a kind mentioned in paragraph 1(1) is, in relation to the property, rights or liabilities concerned, necessary or expedient for implementation purposes. (3) If GEMA determines under sub-paragraph (1) that provision of a kind mentioned in paragraph 1(1) is not, in relation to any property, rights or liabilities, necessary or expedient for implementation purposes, it shall refuse the application in relation to that property, or those rights or liabilities. (4) If-- (a) GEMA determines under sub-paragraph (1) that provision of a kind mentioned in paragraph 1(1) is, in relation to any property, rights or liabilities, necessary or expedient for implementation purposes, or (b) the system operator and the relevant existing transmission licence holder agree that that is the case, GEMA shall, subject to paragraph 4(2), make a property arrangements scheme in relation to that property, or those rights or liabilities. 4 (1) Subject to the following provisions of this paragraph, where GEMA is required to make a property arrangements scheme, the terms of the scheme shall be such as the system operator and the relevant existing transmission licence holder may agree or, if they fail to agree, as GEMA may determine. (2) GEMA may not include in a property arrangements scheme provision which would adversely affect a third party unless it determines that it is necessary or expedient for implementation purposes for the provision to be made. (3) Where GEMA does include in a property arrangements scheme provision which would adversely affect a third party, GEMA shall determine whether the scheme should include provision for compensation and, if so, what that provision should be. (4) A property arrangements scheme shall 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. 5 (1) A determination under paragraph 4, so far as relating to any financial matter, shall be made on the basis of what is just in all the circumstances of the case. (2) A determination under paragraph 4, so far as relating to any other matter, shall be made on the basis of what appears to GEMA to be appropriate in all the circumstances of the case having regard, in particular, to what is necessary or expedient for implementation purposes. 6 GEMA may require any of the following persons to give it information and assistance in connection with the making of a determination under this Schedule-- (a) the system operator, (b) any existing transmission licence holder, and (c) any person who makes representations to GEMA about the application to which the determination relates. 7 GEMA may engage such consultants as it thinks fit for the purpose of advising it in relation to the making of a determination under this Schedule. Effect of property arrangements scheme8 A property arrangements scheme shall, by virtue of this paragraph, have effect according to its terms. 9 (1) A transaction of any description effected by or under a property arrangements scheme shall have effect subject to the provisions of any enactment which provides for transactions of that description to be registered in any statutory register. (2) Subject to sub-paragraph (1), a transaction of any description effected by or under a property arrangements scheme shall be binding on all persons, notwithstanding that it would, apart from this provision, have required the consent or concurrence of any person. Review of determinations10 (1) Any person aggrieved by a determination of GEMA under this Schedule may apply to the Competition Appeal Tribunal for a review of the determination. (2) Subject to sub-paragraph (3), no application under sub-paragraph (1) may be made after the end of the period of 7 days beginning with the day on which the determination is made. (3) Where GEMA has made a property arrangements scheme, an application under sub-paragraph (1) may be made in respect of a determination relating to the scheme at any time before the end of the period of 7 days beginning with the day on which the scheme is made. (4) On an application under sub-paragraph (1), the Competition Appeal Tribunal may-- (a) dismiss the application, or (b) make an order substituting its own determination. 11 (1) This paragraph applies where-- (a) the Competition Appeal Tribunal makes an order under paragraph 10(4)(b), and (b) GEMA has not made a property arrangements scheme in relation to the property, rights or liabilities concerned. (2) The Tribunal may include in the order provision requiring GEMA to make a property arrangements scheme in relation to that property, or those rights or liabilities. (3) Where paragraph 4 applies because of provision under this paragraph, anything the Tribunal has determined shall be treated for the purposes of that paragraph as determined by GEMA. 12 (1) This paragraph applies where-- (a) the Competition Appeal Tribunal makes an order under paragraph 10(4)(b), (b) GEMA has made a property arrangements scheme in relation to 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 the kind mentioned in paragraph 1(1) is not, in relation to the property, rights or liabilities concerned, necessary or expedient for implementation purposes, it may include in the order provision quashing the scheme. (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 GEMA's determination as it thinks fit, and (b) to the extent that GEMA's determination dealt with any financial matter, provision requiring GEMA to redetermine the matter in accordance with the order and to amend the scheme accordingly. 13 (1) This paragraph applies where-- (a) the Competition Appeal Tribunal makes an order under paragraph 10(4)(b), (b) GEMA has made a property arrangements 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 fit for the purpose of doing justice between-- (a) the system operator, (b) the relevant existing transmission licence holder, and (c) any third party adversely affected by the scheme, in the light of its determination. (3) Without prejudice to the generality of sub-paragraph (2), the Tribunal may include in the order-- (a) provision for retransfer, (b) provision for the surrender or extinction of rights, and (c) provision for the payment of compensation. 14 An order under paragraph 10(4)(b) may include provision for the award of interest at such rate and for such period as the Competition Appeal Tribunal thinks fit. 15 Section 120(6) to (8) of the Enterprise Act 2002 (c. 40) (appeal with leave on point of law from decision of Competition Appeal Tribunal to Court of Appeal or Court of Session) shall apply in relation to decisions of the Tribunal under this Schedule as they apply in relation to decisions under that section. Interim arrangements pending review of determination16 (1) This paragraph applies where-- (a) a person makes an application under paragraph 10(1) for the review of a determination, and (b) GEMA has not made a property arrangements scheme in relation to the property, rights or liabilities to which the determination relates. (2) The Competition Appeal Tribunal may on application by the system operator or the relevant existing transmission licence holder make such interim arrangements as it thinks fit with respect to the property, rights or liabilities concerned. (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 system operator 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 thinks fit. (4) No application under sub-paragraph (2) may be made after the end of the period of 7 days beginning with the day on which the application under paragraph 10(1) is made. 17 (1) This paragraph applies where– (a) a person makes an application under paragraph 10(1) for the review of a determination, and (b) GEMA has made a property arrangements scheme in relation to the property, rights or liabilities to which the determination relates. (2) The Competition Appeal Tribunal may on application by-- (a) the system operator, (b) the relevant existing transmission licence holder, or (c) a third party who is adversely affected by any provision of the scheme, make such interim arrangements as it thinks fit with respect to the property, rights or liabilities concerned. (3) Without prejudice to the generality of sub-paragraph (2), the power under that sub-paragraph includes, in particular, power-- (a) to make provision postponing or suspending the operation of any provision of the scheme for such period, and on such terms, as the Tribunal thinks fit; (b) to make provision for the system operator 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 thinks fit. (4) No application under sub-paragraph (2) may be made after the end of the period of 7 days beginning with the day on which the application under paragraph 10(1) is made. 18 In exercising its powers under paragraph 16 or 17, the Competition Appeal Tribunal shall have regard, in particular, to what is necessary or expedient for implementation purposes. 19 Paragraphs 16 and 17 are without prejudice to any powers of the Competition Appeal Tribunal to make orders on an interim basis under rules under section 15 of the Enterprise Act 2002 (c. 40). 20 (1) If an order under paragraph 16 or 17 is registered in England and Wales in accordance with rules of court or any practice direction, it shall be enforceable as an order of the High Court. (2) An order under paragraph 16 or 17 may be recorded for execution in the Books of Council and Session and shall be enforceable accordingly. (3) Subject to rules of court or any practice direction, an order under paragraph 16 or 17 may be registered or recorded for execution by a person entitled to any right under the interim arrangements for which the order makes provision. (4) Sub-paragraphs (1) to (3) apply to an order on an interim basis made under rules under section 15 of the Enterprise Act 2002 in connection with an application under paragraph 10(1) as they apply to an order under paragraph 16 or 17. Supplementary21 The Secretary of State may by order designate the holder of a transmission licence as the system operator for the purposes of this Schedule. 22 An application under this Schedule is not allowed to be made orally. 23 (1) In this Schedule--
(2) For the purposes of this Schedule, a provision of a property arrangements scheme adversely affects a third party if-- (a) his consent or concurrence would be required to the making of the provision otherwise than by means of the scheme, and (b) he does not consent to the making of the provision by means of the scheme. Section 143 SCHEDULE 19 Consequential amendments relating to Chapter 1 of Part 3Water (Scotland) Act 1980 (c. 45)1 In Schedule 4 to the Water (Scotland) Act 1980 (provisions to be incorporated in orders relating to statutory undertakers), in paragraph (b) of the proviso to section 36, for "transmit" substitute "participate in the transmission of". Telecommunications Act 1984 (c. 38)2 In section 98(9) of the Telecommunications Act 1984, in the definition of "electricity authority", for "transmit or supply", where they first occur, substitute "supply or participate in the transmission of". Electricity Act 1989 (c. 29)3 The 1989 Act is amended as follows. 4 In section 3A(5)(a), for "transmit, distribute or supply" substitute "distribute, supply or participate in the transmission of". 5 In section 6 (licences authorising supply etc.), for subsection (7) substitute-- " (7) A licence, and any modification of a licence under subsection (4), (6) or (6B), shall be in writing. " 6 In section 6A (procedure for licence applications), in subsection (1) (applications to which the section applies), for paragraph (b) substitute-- " (b) for the modification of a licence under section 6(4), (6) or (6B). " 7 (1) Section 6B (applications for transmission licence) is amended as follows. (2) For subsection (2) substitute-- " (2) The applicant shall give notice of the application to any person who holds a transmission licence and whose interests may be affected if the licence applied for is granted. " (3) In subsection (5)(c) (under which there is a duty to give notice of the proposed grant of an application to the holder of a transmission licence whose authorised area is affected by the area to which the application relates), for the words from "authorised area" to "area" substitute "interests may be affected by the grant of the licence". 8 (1) Section 9 (general duties of licence holders) is amended as follows. (2) In subsection (2) (duties of transmission licence holder), for "transmit" substitute "participate in the transmission of". (3) After that subsection insert-- " (2A) Subsection (2)(a) shall not have effect to require the holder of a transmission licence which is subject to a condition of the kind mentioned in section 7(2A)(a) to carry on an activity which he would be authorised by the licence to carry on apart from the condition. " 9 (1) Section 10 (powers of licence holders) is amended as follows. (2) In subsection (1)(a) (which applies Schedules 3 and 4 to a person authorised by a licence to transmit electricity), for the words from "a person" to "electricity" substitute "the holder of a transmission licence". (3) For subsection (4) substitute-- " (4) A transmission licence may provide that, where the licence is modified under section 6(6B), 11 or 11A above so as to reduce in any respect the area in which the licence holder may carry on activities, Schedule 4 to this Act shall have effect in relation to him as if any reference to the activities which he is authorised by his licence to carry on included a reference to the activities which he was previously so authorised to carry on. " 10 In section 29 (regulations relating to supply and safety), in subsection (2)(c) (power to require persons to keep maps etc.), for "transmit" substitute "participate in the transmission of". 11 In section 30 (electrical inspectors), in subsection (2)(a) (duty to inspect and test equipment belonging to certain persons), for "transmit or distribute" substitute "distribute or participate in the transmission of". 12 (1) Section 35 (which supplements section 34 about fuel stocks at generating stations) is amended as follows. (2) In subsection (1) (power to require information from any person authorised by a licence to transmit electricity), for "any person authorised by a licence to transmit electricity" substitute "the holder of a transmission licence". (3) For subsection (2) substitute-- " (2) The Secretary of State may give a direction requiring any person who is authorised by a licence to participate in the transmission of electricity to carry on the activities which the licence authorises (or any of them), at any time when a direction under section 34(4) above is in force, either in a specified manner or with a view to achieving specified objectives. " (4) In subsection (3), for the words from "and", in the second place where it occurs, to the end substitute "and a person subject to a direction under subsection (2) above shall give effect to it notwithstanding any other duty imposed on him by or under this Part." 13 In section 43B (supplementary provision about orders under section 43A), in subsection (7) (definition of "authorised transmitter"), for "transmit" substitute "participate in the transmission of". 14 In section 58 (directions restricting the use of certain information)-- (a) in subsection (1), for "any person who is authorised by a licence to transmit electricity" substitute "the holder of a transmission licence", and (b) in subsection (2), for "transmit or supply" substitute "supply or participate in the transmission of". 15 (1) Section 64 (interpretation of Part 1) is amended as follows. (2) In subsection (1), for the definition of "transmit" substitute-- " "transmission", in relation to electricity, has the meaning given by section 4(4) above; "transmission system" has the same meaning given by section 4(4) above; " . (3) Before subsection (2) insert-- " (1B) In this Part, references to participation, in relation to the transmission of electricity, are to be construed in accordance with section 4(3A) and (3B) above. " 16 In Schedule 9 (preservation of amenity and fisheries), in paragraphs 1(1) and 3(1), for "transmit, distribute or supply" substitute "distribute, supply or participate in the transmission of". Water Industry Act 1991 (c. 56)17 In Schedule 13 to the Water Industry Act 1991 (protective provisions), in paragraph 1(5) (undertakings protected), in paragraph (f), for "transmit or supply" substitute "supply or participate in the transmission of". Water Resources Act 1991 (c. 57)18 In Schedule 22 to the Water Resources Act 1991 (protective provisions), in paragraph 1(4) (undertakings protected), in paragraph (f), for "transmit or supply" substitute "supply or participate in the transmission of". Land Drainage Act 1991 (c. 59)19 In Schedule 6 to the Land Drainage Act 1991 (protective provisions), in paragraph 1(1) (undertakings protected), in paragraph (f), for "transmit or supply" substitute "supply or participate in the transmission of". Utilities Act 2000 (c. 27)20 In section 33(1) of the Utilities Act 2000 (which provides that conditions determined under that provision shall be standard conditions for the purposes of any of the types of licence mentioned in section 6(1) of the 1989 Act)-- (a) for "6(1)" substitute "6(1)(a), (c) and (d)", (b) omit the words "transmission licences,", and (c) for the words from ", subject" to the end substitute " be standard conditions for the purposes of licences of that type, subject to any modifications of the standard conditions for the purposes of licences of that type made-- (a) under Part 1 of the 1989 Act after the determination under this section, or (b) under the Energy Act 2004. " Section 159 SCHEDULE 20 Conduct of energy administrationPages: P.1 | P.2 | P.3 | P.4 | P.5 | P.6 | P.7 | P.8 | P.9 | P.10 | P.11 | P.12 | P.13 | P.14 | P.15 | P.16 | P.17 | P.18 | P.19 | P.20 | P.21 | P.22 | P.23 | P.24 | P.25 | P.26 | P.27 -- Back --
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