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Private finance transactions
Transactions for the provision of a capital asset and services
40
.
- (1) In this regulation, in relation to a private finance transaction -
"asset" means the asset provided under the transaction; and
"relevant purpose" means the purpose for which the asset is provided under the transaction.
(2) A credit arrangement which is a private finance transaction shall be excluded from section 49(2), and the initial cost and the cost at any time of the arrangement shall be nil, if -
(a) the services provided in relation to the asset consist of, or include, maintaining and repairing the asset and doing everything necessary to ensure that the asset can be used for the relevant purpose in safety and comfort and in accordance with any requirements specified by the authority; and
(b) the authority determine, immediately before the date on which they enter into the transaction, that their estimate of amount B does not exceed 80 per cent. of their estimate of amount A.
(3) For the purposes of paragraph (2), in relation to a private finance transaction -
"amount A" means the amount which, apart from this regulation, would be the initial cost of the transaction; and
"amount B" is the amount which would be amount A if for each relevant financial year (within the meaning given to that expression in section 48(2)) the authority assumed -
(a) that the amount of fees falling to be paid under the transaction would be the minimum which could become payable in that year (without there being a breach of any term of the transaction); and
(b) that the minimum extent, rate or intensity of use of the asset for the relevant purpose would be 80 per cent. of the extent, rate or intensity of use estimated by them for that year for the purpose of estimating amount A.
Transactions for the replacement or enhancement of a building and provision of heating services
41
.
- (1) In this regulation, in relation to a private finance transaction to which paragraph (3) applies (a "relevant transaction") -
"corresponding purpose", in relation to any qualifying purpose, means the same qualifying purpose, or a different purpose within the same category as that which includes the same qualifying purpose;
"old building" means the relevant building in respect of which the authority make a decision such as is mentioned in paragraph (3)(b); and "new building" means the building which, in consequence of such a decision, the authority use for a corresponding purpose;
"qualifying purpose", in relation to the use of land, means a purpose specified in any of the categories 1 to 6 and 8 and 9 of Schedule 1 to these Regulations, and "category" means one of those categories; and
"relevant building" means a building -
(a) which is situated on non-housing land;
(b) which is in use by the authority for a qualifying purpose; and
(c) in which the authority have a freehold interest or a leasehold interest under a lease granted for a term of not less than 99 years.
(2) A credit arrangement which is a relevant transaction shall be excluded from section 49(2), and the initial cost and the cost at any time of the transaction shall be calculated in accordance with paragraphs (4) to (7).
(3) This paragraph applies to a private finance transaction where -
(a) the initial cost of the transaction does not fall to be determined under regulation 40;
(b) at any time during the period of five years ending on the date on which they enter into the transaction, the authority made a single decision either -
(i) to cease to use a relevant building and to use a different building for a corresponding purpose; or
(ii) to carry out works for the enhancement of a relevant building and to continue to use the same building, after the completion of the works, for a corresponding purpose;
(c) the asset provided for the authority's use under the transaction consists of, or includes, the new building or, as the case may be, the works of enhancement of the relevant building; and
(d) the services provided in relation to the asset consist of, or include, maintaining and repairing the system for heating the new building and providing for the supply of the gas, electricity and fuel required for such heating.
(4) Subject to paragraph (7), the initial cost of a relevant transaction shall be the lesser of -
(a) 70 per cent. of the amount which, apart from this regulation, would be the initial cost of the transaction; and
(b) the amount which, apart from this regulation, would be the initial cost of the transaction minus the relevant deduction.
(5) For the purposes of paragraph (4)(b), the relevant deduction is the amount which would be the initial cost of the transaction assuming that -
(a) the initial cost fell to be determined in accordance with section 49(1) and (2);
(b) no consideration was required to be given in the financial year in which the transaction was entered into; and
(c) for each subsequent financial year of the transaction, for the purposes of the formula in section 49(2), "x" was an amount equal to the product of the formula -
where -
"E" means the average annual expenditure which the authority incurred, during the period of 5 years ending on the date on which they enter into the transaction (or, if earlier, the date on which they cease to use the old building) in providing for the old building the same services as those to be provided under the transaction;
"i" means the figure in Table 2.1 of Economic Trends published by the Office for National Statistics as the most recent percentage change, quarter on corresponding quarter of previous year, of the implied gross domestic product deflator at market prices; and
"n" has the same meaning as in section 49(2).
(6) Subject to paragraph (7), the cost at any time of a relevant transaction shall be the lesser of -
(a) 70 per cent. of the amount which, apart from this regulation, would be the cost of the transaction at that time; and
(b) the amount which, apart from this regulation, would be the cost of the transaction at that time minus an amount equal to the product of the formula -
where -
"D" means the relevant deduction determined in relation to the transaction in accordance with paragraph (5);
"T" means the number of years comprising the period over which consideration falls to be given by the authority under the transaction; and
"Y" means the number of years which, at the time in question, comprises the unexpired part of that period.
(7) For the purpose of calculating the initial cost or cost at any time of a relevant transaction, the authority shall disregard any consideration not in money which has been, or falls to be, given by them in respect of the transaction.
Transactions for the provision of a building and heating services
42
.
- (1) In this regulation -
"qualifying purpose", in relation to the use of land, means a purpose specified in any of the categories 1 to 6 and 8 and 9 of Schedule 1 to these Regulations, and "category" means one of those categories; and
"relevant transaction" means a private finance transaction to which paragraph (3) applies.
(2) A credit arrangement which is a relevant transaction shall be excluded from section 49(2), and the initial cost and the cost at any time of the transaction shall be calculated in accordance with paragraphs (4) to (6).
(3) This paragraph applies to a private finance transaction where -
(a) the initial cost of the transaction does not fall to be determined under regulation 40 or 41;
(b) the asset provided under the transaction consists of, or includes, a building which is on non-housing land and is for use for a qualifying purpose; and
(c) the services provided in relation to the asset consist of, or include, maintaining and repairing the system for heating the building and providing for the supply of the gas, electricity and fuel required for such heating.
(4) Subject to paragraph (6), the initial cost of a relevant transaction shall be 70 per cent. of the amount which, apart from this regulation, would be the initial cost of the arrangement.
(5) Subject to paragraph (6), the cost at any time of a relevant transaction shall be 70 per cent. of the amount which, apart from this regulation, would be the cost of the transaction at that time.
(6) For the purpose of calculating the initial cost or cost at any time of a relevant transaction, the authority shall disregard any consideration not in money which has been, or falls to be, given by them in respect of the transaction.
Initial and subsequent cost of other credit arrangements
Arrangement for improving the heating or lighting of a building
43
.
- (1) An arrangement to which paragraph (2) applies shall be excluded from section 49(2), and the initial cost and the cost at any time of such an arrangement shall be calculated in accordance with regulation 45.
(2) This paragraph applies to a credit arrangement where -
(a) the arrangement is for the carrying out of works consisting of the improvement of the system for heating or lighting a building in which the authority have a freehold or leasehold interest, or the installation of a new system for such heating or lighting; and
(b) the person with whom the arrangement is made is required under the arrangement, or under a separate contract entered into no later than the date of the arrangement, to maintain and repair the system for heating, or, as the case may be, lighting the building concerned.
Arrangement for improving street lighting
44
.
- (1) An arrangement to which paragraph (2) applies shall be excluded from section 49(2), and the initial cost and the cost at any time of such an arrangement shall be calculated in accordance with regulation 45.
(2) This paragraph applies to a credit arrangement where -
(a) the arrangement is for the carrying out of works which are intended to improve the system of lamps, lamp posts and other materials and apparatus which supplies the means of lighting streets, markets and public buildings in the area of the authority ("the lighting system");
(b) the works consist of the installation of new lamps, lamp posts and other materials and apparatus;
(c) the person with whom the arrangement is made is required under the arrangement, or under a separate contract entered into no later than the date of the arrangement, to maintain and repair the lighting system in whole or in part; and
(d) the lighting system -
(i) was provided by the authority in the exercise of powers under section 161 of the Public Health Act 1875[40] or section 97 of the Highways Act 1980 (lighting of highways)[41]; or
(ii) has vested in the authority by virtue of section 270 of the Highways Act 1980 (transfer of lighting systems).
Initial cost and cost at any time of arrangements for heating or lighting improvements
45
.
- (1) In this regulation, "relevant arrangement" means a credit arrangement to which regulation 43(2) or 44(2) applies.
(2) The initial cost of a relevant arrangement shall be the amount which, apart from this regulation, would be the initial cost of the arrangement minus the amount which would be the initial cost assuming that -
(a) no consideration was required to be given in respect of the arrangement in the financial year in which the arrangement comes into being; and
(b) for each subsequent financial year of the arrangement, for the purposes of the formula in section 49(2), "x" was an amount equal to the product of the formula -
where -
"A" means the average annual expenditure incurred by the authority during the period of five years ending on the date on which they enter into the arrangement, on operating, maintaining and repairing the heating system or lighting system which is improved or replaced by the works carried out under the arrangement;
"i" means the figure in Table 2.1 of Economic Trends published by the Office for National Statistics as the most recent percentage change, quarter on corresponding quarter of previous year, of the implied gross domestic product deflator at market prices; and
"n" has the same meaning as in section 49(2).
(3) The cost at any time of a relevant arrangement shall be the amount which, apart from this regulation, would be the cost of the arrangement at that time minus an amount equal to the product of the formula -
where -
"I" means the amount which would be the initial cost of the arrangement calculated on the assumptions mentioned in paragraph (2);
"P" means the number of years comprising the period over which the consideration on the part of the authority under the arrangement falls to be given; and
"U" means the number of years which, at the time in question, comprises the unexpired part of that period.
Variation of credit arrangements
Variation of arrangements excluded from section 49(2)
46
.
Where a credit arrangement which is excluded from section 49(2) is varied as mentioned in section 51(1) (variation of credit arrangements), the adjusted cost and the cost of the arrangement at any time after the variation shall be determined in accordance with regulations 47 to 51.
The adjusted cost of arrangements - general provision
47
.
- (1) Subject to regulation 15, the adjusted cost of a credit arrangement which is excluded from section 49(2), other than a credit arrangement falling within regulation 48, 49 or 50, shall be the amount which, at the time the arrangement is varied, the authority estimate will be the aggregate of -
(a) the value of the consideration given by them in respect of the arrangement before or during the financial year in which the arrangement is varied; and
(b) the value of the consideration falling to be given by them in respect of the arrangement, as varied, in any subsequent financial year.
(2) For each subsequent financial year referred to in paragraph (1)(b), the value of the consideration falling to be given in that year shall be the amount determined by the formula in regulation 14(2), but, for this purpose -
"x" is the value of the consideration which the authority estimate will fall to be given by them in that financial year in respect of the arrangement as varied;
"r" is the percentage rate of discount prescribed for the financial year in which the arrangement is varied by regulations made by the Secretary of State for the purposes of section 49; and
"n" is the financial year concerned expressed as a year subsequent to the financial year in which the arrangement is varied (so that the first of the subsequent financial years is 1, the next is 2, and so on).
Leases having an adjusted cost of nil
48
.
Where -
(a) a credit arrangement which is a lease of land ("the arrangement") is varied by the grant to the authority of a new lease of the same land for a term which extends beyond the expiry date of the arrangement, and
(b) if the new lease were granted upon the expiry of the arrangement, the initial cost of the new lease would fall to be determined under regulation 29, 30 or 32,
the adjusted cost of the arrangement shall be nil.
Variation of lease where initial cost included consideration under earlier lease
49
.
- (1) In this regulation -
"preceding interest", in relation to a relevant lease, means the earlier leasehold interest mentioned in regulation 35(2) or, as the case may be, paragraph (6)(b) of regulation 7 of the 1990 Regulations; and
"relevant lease" means a lease of which the initial cost was determined under regulation 35 or paragraph (6) of regulation 7 of the 1990 Regulations[42].
(2) Where a local authority agree to a variation of a credit arrangement which is a relevant lease, the adjusted cost of the lease shall be the aggregate of -
(a) the amount which, apart from this regulation, would be the adjusted cost by virtue of regulation 47; and
(b) the value of the consideration given by the authority in respect of the preceding interest.
Continuation of tenancy under Part II of the Landlord and Tenant Act 1954
50
.
- (1) In this regulation -
"the 1954 Act" means the Landlord and Tenant Act 1954[43]; and
"relevant lease" means a lease which creates a tenancy to which Part II of the 1954 Act (security for business and professional tenants) applies.
(2) Where a credit arrangement which is a relevant lease is varied by the continuation of the tenancy by virtue of section 24 of the 1954 Act (continuation of tenancies to which Part II applies and grant of new tenancies), the adjusted cost of the lease shall be an amount determined for the lease under regulation 47, or, where the initial cost of the lease was determined under regulation 35 or paragraph (6) of regulation 7 of the 1990 Regulations, under regulation 49.
Cost of arrangements at any time after variation
51
.
Where a local authority agree to a variation of a credit arrangement which is excluded from section 49(2), the cost of the arrangement at any time after the variation shall be the amount which would, in accordance with regulation 47, be the adjusted cost of the arrangement if the variation was made at the time in question, on the basis of an estimate made at that time and disregarding any consideration given by the authority in respect of the arrangement before that time.
Notes:
[40]
1875 c. 55.
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[41]
1980 c. 66.
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[42]
S.I. 1990/432; paragraph (6) of regulation 7 was amended by S.I. 1992/3257, S.I. 1995/850, S.I. 1996/568 and S.I. 1996/2539.
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[43]
1954 c. 56.
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