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Statutory Instrument 1998 No. 686 (S.33)The Construction Contracts (Scotland) Exclusion Order 1998(The document as of February, 2008) STATUTORY INSTRUMENTS1998 No. 686 (S.33)The Construction Contracts (Scotland) Exclusion Order 1998
The Secretary of State, in exercise of the powers conferred on him by sections 106(1)(b) and 146(1) of the Housing Grants, Construction and Regeneration Act 1996[1] and of all other powers enabling him in that behalf, hereby makes the following Order, a draft of which has been laid before, and approved by resolution of, each House of Parliament: Citation, commencement and extent 1. - (1) This Order may be cited as the Construction Contracts (Scotland) Exclusion Order 1998 and shall come into force at the end of the period of 8 weeks beginning with the day on which it is made. (2) This Order shall extend to Scotland only. Interpretation 2.In this Order, "Part II" means Part II of the Housing Grants, Construction and Regeneration Act 1996. Agreements under statute 3.A construction contract is excluded from the operation of Part II if it is-
(b) an agreement under section 75 (agreements regulating development or use of land) or 246 (agreements relating to Crown land) of the Town and Country Planning (Scotland) Act 1997[3]; (c) an agreement under section 8 (agreements as to provision of sewers etc. for new premises) of the Sewerage (Scotland) Act 1968[4]; or (d) an externally financed development agreement within the meaning of section 1 (powers of NHS Trusts to enter into agreements) of the National Health Service (Private Finance) Act 1997[5]. Private finance initiative
(b) the consideration due under the contract is determined at least in part by reference to one or more of the following:-
(ii) the extent, rate or intensity of use of all or any part of the building or structure in question; or (iii) the right to operate any facility in connection with the building or structure in question; and (c) one of the parties to the contract is-
(ii) a department in respect of which appropriation accounts are required to be prepared under the Exchequer and Audit Departments Act 1866[6]; (iii) any other authority or body whose accounts are required to be examined and certified by or are open to the inspection of the Comptroller and Auditor General by virtue of an agreement entered into before the date on which this Order comes into force, or by virtue of any enactment; (iv) any authority or body listed in Schedule 4 (nationalised industries and other public authorities) to the National Audit Act 1983[7]; (v) a body whose accounts are subject to audit by auditors appointed by the Accounts Commission for Scotland; (vi) a water and sewerage authority established under section 62 (new water and sewerage authorities) of the Local Government etc. (Scotland) Act 1994[8]; (vii) the board of management of a self-governing school within the meaning of section 1(3) (duty of Secretary of State to maintain self-governing schools) of the Self-Governing Schools etc. (Scotland) Act 1989[9]; or (viii) a company wholly owned by any of the bodies described in heads (i) to (v) above. Finance agreements
(b) any contract under which the principal obligations include the formation or dissolution of a company, unincorporated association or partnership; (c) any contract under which the principal obligations include the creation or transfer of securities or any right or interest in securities; (d) any contract under which the principal obligations include the lending of money; (e) any contract under which the principal obligations include an undertaking by a person to be responsible as surety for the debt or default of another person, including a fidelity bond, advance payment bond, retention bond or performance bond. Development agreements
(b) a tenant's interest under a lease for a period which is to expire no earlier than 12 months after the completion of the construction operations under the contract.
(This note is not part of the Order) Part II of the Housing Grants, Construction and Regeneration Act 1996 makes provision in relation to the terms of construction contracts. Section 106 confers power on the Secretary of State to exclude descriptions of contracts from the operation of Part II. This Order excludes, as regards Scotland, contracts of four descriptions. Article 3 excludes agreements made under specified statutory provisions dealing with works relating to roads, planning obligations, sewerage works and externally financed NHS Trust agreements. Article 4 excludes agreements entered into by specified public bodies under the private finance initiative (or a project applying similar principles). Article 5 excludes agreements which primarily relate to the financing of works. Article 6 excludes development agreements, which contain provision for the disposal of an interest in land. Notes: [1] 1996 c.53.back [2] 1984 c.54.back [3] 1997 c.8.back [4] 1968 c.47.back [5] 1997 c.56.back [6] 1866 c.39.back [7] 1983 c.44: amended by the Telecommunications Act 1984 (c.12), Schedule 7, Part III; the Oil and Pipelines Act 1985 (c.12), Schedule 4, Part II; the Broadcasting Act 1990 (c.42), Schedule 20, paragraph 36, S.I. 1991/510, article 5(4) and the Coal Industry Act 1994 (c.21), Schedule 9, paragraph 29.back [8] 1994 c.39.back [9] 1989 c.39.back ISBN 0 11 055747 6 -- Back --
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