Office of Public Sector Information
PART 2 continued
(1) A renewables obligation order may provide for amounts received by the Authority by virtue of section 32G to be used by the Authority—
(a) to make payments into the Consolidated Fund in respect of costs (or a proportion of costs) which have been or are expected to be incurred by the Authority in connection with the performance of its functions conferred by or under sections 32 to 32M, or
(b) to make payments to the Northern Ireland authority in respect of costs (or a proportion of costs) which have been or are expected to be incurred by that authority in connection with the performance of its functions conferred by or under Articles 52 to 55 of the Energy (Northern Ireland) Order 2003.
(2) A renewables obligation order—
(a) may exclude amounts of a specified description from being used as mentioned in subsection (1);
(b) may prevent the Authority using amounts to make payments in respect of costs of a specified description.
(1) A renewables obligation order may provide for the Authority to require—
(a) an electricity supplier to provide the Authority with information, or with information of a particular kind, which in the Authority’s opinion is relevant to the question whether the supplier is discharging, or has discharged, its renewables obligation;
(b) a person to provide the Authority with information, or with information of a particular kind, which in the Authority’s opinion is relevant to the question whether a renewables obligation certificate is, or was or will in future be, required to be issued to the person.
(2) That information must be given to the Authority in whatever form it requires.
(3) A renewables obligation order may—
(a) require operators of generating stations generating electricity (wholly or partly) from biomass to give specified information, or information of a specified kind, to the Authority;
(b) specify what, for this purpose, constitutes “biomass”;
(c) require the information to be given in a specified form and within a specified period;
(d) authorise or require the Authority to postpone the issue of certificates under section 32B to the operator of a generating station who fails to comply with a requirement imposed by virtue of paragraph (a) or (c) until such time as the failure is remedied;
(e) authorise or require the Authority to refuse to issue certificates to such a person or to refuse to issue them unless the failure is remedied within a prescribed period.
(4) The Authority may publish information obtained by virtue of subsection (3).
(5) No person is required by virtue of this section to provide any information which the person could not be compelled to give in evidence in civil proceedings in the High Court or, in Scotland, the Court of Session.
(1) A renewables obligation order may—
(a) make further provision as to the functions of the Authority in relation to the matters dealt with by the order;
(b) make transitional provision and savings;
(c) provide for anything falling to be calculated or otherwise determined under the order to be calculated or determined by such persons, in accordance with such procedure and by reference to such matters and to the opinion of such persons, as may be specified in the order;
(d) make different provision for different cases or circumstances.
(2) Provision made by virtue of subsection (1)(b) may, in particular, include provision about the treatment of certificates issued under section 32B before the substitution of that section by section 37 of the Energy Act 2008.
(3) Provision made by virtue of subsection (1)(d) may, in particular, make—
(a) different provision in relation to different suppliers;
(b) different provision in relation to generating stations of different descriptions;
(c) different provision in relation to different localities.
(4) In subsection (3) “supplier” means an electricity supplier or a Northern Ireland supplier.
(1) Before making a renewables obligation order, the relevant minister must consult—
(a) the Authority,
(b) the Council,
(c) the electricity suppliers to whom the proposed order would apply,
(d) such generators of electricity from renewable sources as the relevant minister considers appropriate, and
(e) such other persons, if any, as the relevant minister considers appropriate.
(2) A renewables obligation order is not to be made by the Secretary of State unless a draft of the instrument containing it has been laid before and approved by a resolution of each House of Parliament.
(3) A renewables obligation order is not to be made by the Scottish Ministers unless a draft of the instrument containing it has been laid before and approved by a resolution of the Scottish Parliament.
(1) In this section and sections 32 to 32L—
“banding provision” is to be construed in accordance with section 32D(3);
“fossil fuel” means—
coal,
lignite,
natural gas (within the meaning of the Energy Act 1976),
crude liquid petroleum,
petroleum products (within the meaning of that Act), or
any substance produced directly or indirectly from a substance mentioned in paragraphs (a) to (e);
“generated” means generated at any place whether situated in the United Kingdom or elsewhere, and cognate expressions are to be construed accordingly;
“Northern Ireland authority” means the Northern Ireland Authority for Utility Regulation;
“Northern Ireland supplier” means an electricity supplier within the meaning of Part 7 of the Energy (Northern Ireland) Order 2003;
“the relevant minister” has the meaning given by section 32;
“the relevant part of Great Britain” means—
in the case of a renewables obligation order made by the Secretary of State, England and Wales (including so much of the internal waters and territorial sea of the United Kingdom as are adjacent to England or Wales);
in the case of a renewables obligation order made by the Scottish Ministers, Scotland (including so much of the internal waters and territorial sea of the United Kingdom as are adjacent to Scotland);
“the renewables obligation” is to be construed in accordance with section 32(4);
“renewables obligation certificate” is to be construed in accordance with section 32B;
“renewables obligation order” is to be construed in accordance with section 32;
“renewable sources” means sources of energy other than fossil fuel or nuclear fuel, but includes waste of which not more than a specified proportion is waste which is, or is derived from, fossil fuel;
“specified”, in relation to a renewables obligation order, means specified in the order.
(2) For the purposes of the definition of “renewable sources”, a renewables obligation order may make provision—
(a) about what constitutes “waste”;
(b) about how the proportion of waste which is, or is derived from, fossil fuel is to be determined;
(c) about what, subject to such exceptions as may be specified, constitutes sufficient evidence of that proportion in any particular case;
(d) authorising the Authority, in specified circumstances, to require an operator of a generating station to arrange—
(i) for samples of any fuel used (or to be used) in the generating station, or of any gas or other substance produced as a result of the use of such fuel, to be taken by a person, and analysed in a manner, approved by the Authority, and
(ii) for the results of that analysis to be made available to the Authority.
(3) For the purposes of the definition of “the relevant part of Great Britain”, the territorial sea adjacent to England is the territorial sea adjacent to the United Kingdom, other than the territorial sea adjacent to Scotland, Wales or Northern Ireland.
(4) An Order in Council under section 126(2) of the Scotland Act 1998 (c. 46) (apportionment of sea areas) has effect for the purposes of this section and sections 32 to 32L if, or to the extent that, the Order is expressed to apply—
(a) by virtue of this subsection, for those purposes, or
(b) if no provision has been made by virtue of paragraph (a), for the general or residual purposes of that Act.
(5) An order or Order in Council made under or by virtue of section 158(3) or (4) of the Government of Wales Act 2006 (apportionment of sea areas) has effect for the purposes of this section if, or to the extent that, the order or Order in Council is expressed to apply—
(a) by virtue of this subsection, for those purposes, or
(b) if no provision has been made by virtue of paragraph (a), for the general or residual purposes of that Act.
(6) An Order in Council under section 98(8) of the Northern Ireland Act 1998 (c. 46) (apportionment of sea areas) has effect for the purposes of this section if, or to the extent that, the Order is expressed to apply—
(a) by virtue of this subsection, for those purposes, or
(b) if no provision has been made by virtue of paragraph (a), for the general or residual purposes of that Act.
(7) A renewables obligation order may make provision, for the purposes of sections 32 to 32L, about the circumstances in which electricity is to be regarded as having been supplied—
(a) to customers in Great Britain;
(b) to customers in the relevant part of Great Britain;
(c) to customers in Northern Ireland.”
(1) In the case of an order made under section 32 of the Electricity Act 1989 (c. 29) after the commencement of section 37, the requirements of section 32L(1) of that Act (as substituted by section 37) may be satisfied by consultation undertaken before that commencement or the passing of this Act.
(2) Where a NI amending order is made, the Secretary of State may, by order—
(a) make consequential amendments to any reference to a provision of the NI Energy Order contained in sections 32 to 32M of the Electricity Act 1989 (as substituted by section 37);
(b) amend section 32K(2) of that Act (as so substituted) so as to extend it to certificates issued before the relevant time by the Northern Ireland Authority for Utility Regulation under provision included, by virtue of Article 54 of the NI Energy Order, in an order made under Article 52 of that Order.
(3) In this section—
“NI amending order” means an order under Article 56 of the NI Energy Order which (by virtue of section 40(2)) makes amendments to Part 7 of that Order to take account of any amendments made or proposed to be made by section 37;
“NI Energy Order” means the Energy (Northern Ireland) Order 2003 (S.I. 2003/419 (N.I. 6));
“the relevant time” means the time when the first order made under Article 52 of the NI Energy Order by virtue of a NI amending order comes into force.
In section 67 of the Utilities Act 2000 (c. 27) (savings relating to section 32 of the Electricity Act 1989 etc), in subsection (1)(c) for “(as mentioned in that section) made pursuant to such an order” substitute “made pursuant to such an order (or such arrangements as modified or replaced by virtue of an order under this section)”.
(1) In section 121 of the Energy Act 2004 (c. 20) (power of Gas and Electricity Markets Authority to act on behalf of Northern Ireland regulator)—
(a) in subsection (1) for “Energy” substitute “Utility”,
(b) in subsection (2) for “Articles 52” to the end substitute “the Northern Ireland provisions.”, and
(c) after that subsection insert—
“(3) For this purpose “the Northern Ireland provisions” means—
(a) Articles 52 to 55 of the Energy (Northern Ireland) Order 2003 (renewables obligations for Northern Ireland suppliers), and
(b) any provision made (whether before or after the passing of the Energy Act 2008) by an order under Article 56 of the Energy (Northern Ireland) Order 2003 which amends Part 7 of that Order.”
(2) In Article 56(1) of the NI Energy Order (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 Electricity Act 1989 (c. 29) includes a reference to section 37 of this Act.
(3) In the case of an order under Article 52 of the NI Energy Order made by virtue of a NI amending order, the requirements of Article 52(6) of the NI Energy Order (consultation before making a renewables order) may be satisfied by consultation undertaken before the NI amending order came into force or the passing of this Act.
(4) In this section “NI amending order” and “NI Energy Order” have the same meaning as in section 38.
(1) The Secretary of State may modify—
(a) a condition of a particular licence under section 6(1)(c) or (d) of the Electricity Act 1989 (distribution and supply licences);
(b) the standard conditions incorporated in licences under those provisions by virtue of section 8A of that Act;
(c) a document maintained in accordance with the conditions of licences under section 6(1) of that Act, or an agreement that gives effect to a document so maintained.
(2) The Secretary of State may exercise the power in subsection (1) for the purpose only of—
(a) establishing, or making arrangements for the administration of, a scheme of financial incentives to encourage small-scale low-carbon generation of electricity;
(b) requiring or enabling the holder of a distribution licence to make arrangements for the distribution of electricity generated by small-scale low-carbon generation;
(c) requiring the holder of a licence to make arrangements related to the matters mentioned in paragraph (a) or (b).
(3) Modifications made by virtue of subsection (1) may include—
(a) provision requiring the holder of a supply licence to make a payment to a small-scale low-carbon generator, or to the Authority for onward payment to such a generator, in specified circumstances;
(b) provision specifying how a payment under paragraph (a) is to be calculated;
(c) provision for the level of payment under paragraph (a) to decrease year by year in accordance with a formula published, or to be published, by the Secretary of State;
(d) provision about the circumstances in which no payment, or a reduced payment, may be made to a small-scale low-carbon generator;
(e) provision about the circumstances in which a payment may be recovered from a small-scale low-carbon generator;
(f) a requirement for the holder of a supply licence or distribution licence to pay a levy to the Authority at specified times;
(g) provision specifying how a levy under paragraph (f) is to be calculated (which may require specified matters to be determined by the Authority or the Secretary of State);
(h) provision conferring an entitlement on the holder of a supply licence or distribution licence to receive a payment from the Authority.
(4) In this section—
“Authority” means the Gas and Electricity Markets Authority;
“distribution licence” means a licence under section 6(1)(c) of the Electricity Act 1989 (c. 29);
“owner”, in relation to any plant which is the subject of a hire purchase agreement, a conditional sale agreement or any agreement of a similar nature, means the person in possession of the plant under that agreement;
“plant” includes any equipment, apparatus or appliance;
“small-scale low-carbon generation” means the use, for the generation of electricity, of any plant—
which, in generating electricity, relies wholly or mainly on a source of energy or a technology mentioned in subsection (5), and
the capacity of which to generate electricity does not exceed the specified maximum capacity;
“small-scale low-carbon generator” means an owner of plant used or intended to be used for small-scale low-carbon generation, whether or not the person is also operating or intending to operate the plant;
“specified maximum capacity” means the capacity specified by the Secretary of State by order, which must not exceed 5 megawatts;
“supply licence” means a licence under section 6(1)(d) of the Electricity Act 1989 (c. 29).
(5) The sources of energy and technologies are—
(a) biomass;
(b) biofuels;
(c) fuel cells;
(d) photovoltaics;
(e) water (including waves and tides);
(f) wind;
(g) solar power;
(h) geothermal sources;
(i) combined heat and power systems with an electrical capacity of 50 kilowatts or less.
(6) The Secretary of State may by order modify the list of sources of energy and technologies for the time being listed in subsection (5).
(7) The power conferred by subsection (1)—
(a) may be exercised generally, only in relation to specified cases or subject to exceptions (including provision for a case to be excepted only so long as specified conditions are satisfied);
(b) may be exercised differently in different cases or circumstances;
(c) includes a power to make incidental, supplemental, consequential or transitional modifications.
(8) Provision included in a licence by virtue of that power—
(a) need not relate to the activities authorised by the licence;
(b) may make different provision for different cases.
(1) Before making a modification, the Secretary of State must consult—
(a) the holder of any licence being modified,
(b) the Gas and Electricity Markets Authority, and
(c) such other persons as the Secretary of State considers appropriate.
(2) Subsection (1) may be satisfied by consultation before, as well as by consultation after, the passing of this Act.
(3) Before making modifications, the Secretary of State must lay a draft of the modifications before Parliament.
(4) If, within the 40-day period, either House of Parliament resolves not to approve the draft, the Secretary of State may not take any further steps in relation to the proposed modifications.
(5) If no such resolution is made within that period, the Secretary of State may make the modifications in the form of the draft.
(6) Subsection (4) does not prevent a new draft of proposed modifications being laid before Parliament.
(7) The Secretary of State must publish details of any modifications as soon as reasonably practicable after they are made.
(8) In this section, “40-day period”, in relation to a draft of proposed modifications, means the period of 40 days beginning with the day on which the draft is laid before Parliament (or, if it is not laid before each House of Parliament on the same day, the later of the 2 days on which it is laid).
(9) For the purposes of calculating the 40-day period, no account is to be taken of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than 4 days.
(10) In this section “modification” means a modification under section 41(1).
(1) A modification under section 41 of part of a standard condition of a licence does not prevent any other part of the condition from continuing to be regarded as a standard condition for the purposes of Part 1 of the Electricity Act 1989 (c. 29).
(2) Where the Secretary of State makes modifications under section 41(1)(b) of the standard conditions of a licence of any type, the Gas and Electricity Markets Authority (“the Authority”) must—
(a) make the same modification of those standard conditions for the purposes of their incorporation in licences of that type granted after that time, and
(b) publish the modification.
(3) The Secretary of State may by order—
(a) make provision conferring functions on the Authority or the Secretary of State (or both) in connection with the administration of any scheme established by virtue of section 41;
(b) make such modifications of provision made by or under an Act or an Act of the Scottish Parliament (whenever passed or made) as the Secretary of State considers appropriate in consequence of provision made under paragraph (a) or section 41.
(1) Part 1 of the Electricity Act 1989 (electricity supply) is amended as follows.
(2) After section 6C insert—
(1) The provision made by regulations under section 6C(1) may also include—
(a) provision requiring a person within subsection (2), in relation to a tender exercise, to make payments to the Authority, in prescribed circumstances, in respect of the Authority’s tender costs in relation to the exercise;
(b) provision requiring a person within subsection (2)(a) (“the relevant person”) in prescribed circumstances—
(i) to pay a deposit of a prescribed amount to the Authority, or to provide the Authority with security in a form approved by it, or
(ii) to make arrangements for a person approved by the Authority to pay to the Authority such a deposit or provide it with such security,
in respect of any liability which the relevant person has, or may in future have, by virtue of paragraph (a);
(c) provision requiring the owner of a regulated asset, in a case where a transitional tender exercise has been held, to make a payment of a prescribed amount to the Authority in respect of any costs incurred by the Authority in connection with any assessment of the costs which have been, or ought to have been, incurred in connection with that asset;
(d) provision about the times at which payments are to be made under regulations made by virtue of paragraph (a) or (c) or deposits or other forms of security are to be provided under regulations made by virtue of paragraph (b);
(e) provision about—
(i) the circumstances in which a payment made in accordance with regulations made by virtue of paragraph (a) is to be repaid (wholly or in part);
(ii) the circumstances in which such a repayment is to include an amount representing interest accrued on the whole or part of the payment;
(iii) the circumstances in which a deposit (including any interest accrued on it) or other security provided in accordance with regulations made by virtue of paragraph (b) is to be released or forfeited (wholly or in part);
(f) provision about the effect on a person’s participation in the tender exercise of a failure to comply with a requirement imposed by virtue of this subsection, and the circumstances in which the tender exercise is to stop as a result of such a failure.
(2) The persons within this subsection, in relation to a tender exercise, are—
(a) the person who made the connection request for the purposes of which the tender exercise has been, is being or is to be, held;
(b) any person who submits an application for the offshore transmission licence to which the tender exercise relates.
(3) For the purposes of subsection (2)(a) a person makes a connection request when the person—
(a) makes an application to the holder of a co-ordination licence (in accordance with any provision made by the licence) for an offer of connection to and use of a transmission system, or
(b) before the coming into force of section 180 of the Energy Act 2004 (meaning of “high voltage line”), makes an application to the holder of a distribution licence (in accordance with any provision made by the licence) for an offer of connection to and use of a system in circumstances where the application is for connection to and use of that system by a system—
(i) which was a distribution system at the time the application was made (or would have been had it been in existence at that time), and
(ii) which consists (wholly or mainly) of electric lines of a nominal voltage of 132 kilovolts.
(4) A person (“P”) is to be treated as within subsection (2)(a) if—
(a) P would have made the connection request, but for the fact that another person had already made an application within subsection (3)(a) or (b), and
(b) the benefit of that application, or any agreement resulting from it, is vested in P.
(5) Where regulations are made by virtue of subsection (1)(a) or (b), regulations made by virtue of subsection (1)(e) must ensure that, as soon as reasonably practicable after a tender exercise is finished, steps are taken by the Authority, in accordance with the regulations, to ensure that the aggregate of—
(a) any fees under section 6A(2) in respect of applications for the offshore transmission licence to which the tender exercise relates,
(b) any payments made in accordance with regulations made by virtue of subsection (1)(a) and not repaid, and
(c) the value of any security forfeited in accordance with regulations made by virtue of subsection (1)(e)(iii),
does not exceed the Authority’s tender costs.
(6) Where regulations under section 6C—
(a) restrict the making of applications for offshore transmission licences, or
(b) operate so as to prevent an application from being considered or further considered, if the applicant does not meet one or more prescribed requirements,
such regulations may make provision enabling a person to apply to the Authority for a decision as to the effect of any such restriction or requirement if the person were to make an application for such a licence.
(7) Regulations made by virtue of subsection (6) may enable the Authority to charge a person who makes such an application a prescribed fee for any decision given in response to it.
(8) In this section—
“co-ordination licence” means a transmission licence which authorises a person to co-ordinate and direct the flow of electricity onto and over a transmission system—
by means of which the transmission of electricity takes place, and
the whole or a part of which is at a relevant place (within the meaning of section 4(5));
“offshore transmission licence” has the same meaning as in section 6C;
“prescribed” has the same meaning as in that section;
“regulated asset”, in relation to a tender exercise, means an asset which the person granted the offshore transmission licence requires in order to enable that person to comply with the obligations under the licence;
“successful bidder”, in relation to a tender exercise, means the person to whom, as a result of that exercise, the offshore transmission licence has been, or is to be, granted;
“tender costs”, in relation to a tender exercise, means—
any costs incurred or likely to be incurred by the Authority for the purposes of the exercise, and
such proportion as the Authority considers appropriate of the costs which—
have been, or are likely to be, incurred by it under or for the purposes of section 6C or of regulations under that section, and
are not directly attributable to a particular tender exercise;
“tender exercise” means the steps taken in accordance with regulations under section 6C with a view to determining to whom a particular offshore transmission licence is to be granted;
“transitional tender exercise” means a tender exercise in relation to which paragraph 1(1) of Schedule 2A applies.
(9) Any sums received by the Authority under regulations made by virtue of this section are to be paid into the Consolidated Fund.
Energy Act 2008