The Renewables Obligation (Scotland) Order 2009

Made: 31st March 2009

Coming into force in accordance with Article 1

The Scottish Ministers make the following Order in exercise of the powers conferred by sections 32 to 32M of the Electricity Act 1989 and all other powers enabling them to do so.

In accordance with section 32L(3) of that Act, a draft of this instrument has been laid before and approved by resolution of the Scottish Parliament.

In accordance with section 32D(4) of that Act the Scottish Ministers have had regard to the matters referred to in that section.

In accordance with section 32L(1) of that Act they have consulted the Gas and Electricity Markets Authority, the Gas and Electricity Consumer Council, electricity suppliers to whom this Order applies, and such generators of electricity from renewable sources and other persons as they considered appropriate.

PART 1 — Introductory provisions

Citation and commencement

1

This Order may be cited as the Renewables Obligation (Scotland) Order 2009 and comes into force on the day after the day on which it is made.

Interpretation

2

• (1) In this Order–

• “2013/14 capacity” means—in relation to a generating station accredited on or before 31st March 2013, any capacity which—in the Authority’s view, forms part of the station from a date no earlier than 1st April 2013 and no later than 31st March 2014; anddoes not form part of the capacity of the station as accredited;in relation to a generating station which is registered under article 58ZA as a grace period generating station, any capacity which—in the Authority’s view, forms part of the station from a date no later than 31st March 2014; anddoes not form part of the capacity of the station as accredited;in relation to a generating station which—was not accredited on or before 31st March 2013;was accredited on or before 31st March 2014; andis not registered under article 58ZA as a grace period generating station,the capacity of the station as accredited, together with any additional capacity which, in the Authority’s view, forms part of the station from a date no later than 31st March 2014;

• “2013/15 capacity” means any capacity which is—2013/14 capacity; or2014/15 capacity;

• “2014/15 capacity” means—in relation to a generating station accredited on or before 31st March 2014, any capacity which—in the Authority’s view, forms part of the station from a date no earlier than 1st April 2014 and no later than 31st March 2015; anddoes not form part of the capacity of the station as accredited;in relation to a generating station which—was not accredited on or before 31st March 2014; andwas accredited on or before 31st March 2015,the capacity of the station as accredited, together with any additional capacity which, in the Authority’s view, forms part of the station from a date no later than 31st March 2015;

• “2015/16 capacity” means—in relation to a generating station accredited on or before 31st March 2015, any capacity which—in the Authority’s view, forms part of the station from a date no earlier than 1st April 2015 and no later than 31st March 2016; anddoes not form part of the capacity of the station as accredited;in relation to a generating station which—was not accredited on or before 31st March 2015; andwas accredited on or before 31st March 2016,the capacity of the station as accredited, together with any additional capacity which, in the Authority’s view, forms part of the station from a date no later than 31st March 2016;

• “the Act” means the Electricity Act 1989;

• “the 2007 Order” means the Renewables Obligation (Scotland) Order 2007 ;

• “the 2015 Order” means the Renewables Obligation Order 2015;

• “accreditation” in relation to a generating station, means accreditation of the station as one which is capable of generating electricity from renewable sources by the Authority or the Northern Ireland authority (and includes accreditation granted before 1st April 2009) and “accredited” should be construed accordingly;

• “advanced fuel” means a liquid or gaseous fuel which is produced directly or indirectly from the gasification or the pyrolysis of—waste, orbiomass;

• “anaerobic digestion” means the bacterial fermentation of organic material in the absence of free oxygen;

• “animal excreta” means excreta produced by animals and includes biomass wholly derived from excreta produced by animals;

• “biomass” is to be construed in accordance with article 4;

• “biomaterial” means the biodegradable part of—products, waste and residues of biological origin resulting from agriculture (including vegetal and animal substances), forestry and related industries (including fisheries and aquaculture); andindustrial, commercial and municipal waste;

• “CEN/TS 15359:2006” means the document identified by Standard Number DD CEN/TS 15359 and entitled “Solid recovered fuels. Specifications and classes.” published by the European Committee for Standardisation on 30th June 2006 ;

• “CEN/TS 15402:2006” means the document identified by Standard Number DD CEN/TS 15402 and entitled “Solid recovered fuels. Methods for the determination of the content of volatile matter.” published by the European Committee for Standardisation on 30th November 2006 ;

• “CEN/TS 15415:2006” means the document identified by Standard Number DD CEN/TS 15415 and entitled “Solid recovered fuels. Determination of particle size and particle size distribution by screen method.” published by the European Committee for Standardisation on 30th November 2006 ;

• “CEN/TS 15590:2007” means the document identified by Standard Number DD CEN/TS 15590 and entitled “Solid recovered fuels. Determination of potential rate of microbial self heating using the real dynamic respiration index.” published by the European Committee for Standardisation on 29th June 2007 ;

• “CFD” has the meaning given in section 6(2) of the Energy Act 2013 (regulations to encourage low carbon electricity generation);

• “CHPQA” means the Combined Heat and Power Quality Assurance Standard, Issue 6, October 2016 and Guidance Note 44 (Use of CHPQA in respect of the Renewables Obligation and Contracts for Difference), Issue 6, October 2016;

• “civil works”, in relation to a hydro generating station, are to be regarded as all man made structures, and man made works for holding water which are located on the inlet side of a turbine (turbine A), excluding any such structures or works which supply another turbine before water is supplied to the structures and works which supply turbine A;

• “combined heat and power generating station” means a station which generates electricity and is (or may be) operated for purposes including the supply to any premises of–heat produced in association with electricity; orsteam produced from, or air or water heated by, such heat;

• “combustion unit” means a boiler, turbine or engine;

• “commissioned”, in relation to a generating station, means the completion of such procedures and tests in relation to that station as constitute, at the time they are undertaken, the usual industry standards and practices for commissioning that type of station in order to demonstrate that that station is capable of commercial operation;

• “connected person”, in relation to the owner or operator of a generating station, or any party to a NFFO arrangement, means any person connected to the owner, operator or party within the meaning of section 1122 of the Corporation Tax Act 2010;

• “declared net capacity” in relation to a generating station, means the maximum capacity at which the station could be operated for a sustained period without causing damage to it (assuming the source of power used by it to generate electricity was available to it without interruption) less the amount of electricity that is consumed by the plant;

• “demonstration lease” means a lease granted by the Crown Estate Commissioners or a relevant person, one of whose purposes is testing, demonstrating and approving the viability of a wind turbine;

• “designated electricity supplier” is to be construed in accordance with article 5(1);

• “EII excluded electricity” means electricity which constitutes EII excluded electricity within the meaning of regulation 6(1) of the Electricity Supplier Obligations (Amendment & Excluded Electricity) Regulations 2015;

• “electricity interconnector” means so much of an electric line or other electric plant as subsists wholly or primarily for the purposes of the conveyance of electricity between a transmission or distribution system in Great Britain and an equivalent system in another country (including Northern Ireland);

• “energy content”, in relation to any substance, means the energy contained within that substance (whether measured by a calorimeter or determined in some other way) expressed in terms of the substance's gross calorific value within the meaning of British Standard BS 7420:1991 (Guide for determination of calorific values of solid, liquid and gaseous fuels (including definitions) published by the British Standards Institution on 28th June 1991 );

• “energy crops” means—a perennial crop planted at high density, the stems of which are harvested above ground level at intervals of less than 20 years and which is one of the following—Acer pseudoplatanus (also known as sycamore);Alnus (also known as alder);Betula (also known as birch);Castanea sativa (also known as sweet chestnut);Corylus avellana (also known as hazel);Fraxinus excelsior (also known as ash);Populus (also known as poplar);Salix (also known as willow); orTilia cordata (also known as small-leaved lime); ora perennial crop which is one of the following—Arundo donax (also known as giant reed);Bambuseae, where the crop was planted after 31st December 1989 and is grown primarily for the purpose of being used as a fuel;Miscanthus;Panicum;Pennisetum (other than Pennisetum setaceum (also known as fountain grass), Pennisetum clandestinum (also known as kikuyu grass) and Pennisetum villosum (also known as feathertop grass)); orPhalaris;

• “excepted generating station” means a generating station—which was accredited on or before 31st March 2011;which, since being accredited, has not ceased to be accredited at any time; andin respect of which, if it was not accredited as at 31st March 2009, preliminary accreditation was held on and from that date until the date on which it was accredited;

• “excluded capacity” means—generating capacity which in the Authority’s view—formed part of a generating station from a date no earlier than 1st April 2014;does not form part of the capacity of the station as accredited;is not registered under article 58B (registration of additional capacity); andis not a wind turbine forming part of a generating station which is offshore; in relation to a large hydro generating station, generating capacity which in the Authority’s view—formed part of the station from a date no earlier than 20th November 2018; anddoes not form part of the capacity of the station as accredited;a wind turbine which in the Authority’s view—is not registered under article 58A (registration of offshore wind turbines);forms part of a generating station which is offshore; andwhere the generating station was accredited as at 31st March 2011, is a registrable additional turbine; ora combustion unit in relation to which a CFD transfer notice has come into force, and for the purposes of this definition—“CFD transfer notice” has the meaning given in article 21B(4) (combustion units in relation to which a CFD or investment contract has been entered into); andthe date on which a CFD transfer notice comes into force is to be determined in accordance with article 21B(8);

• “fossil derived bioliquid” means bioliquid produced directly or indirectly from—coal,lignite,natural gas (within the meaning of the Energy Act 1976),crude liquid petroleum, orpetroleum products (within the meaning of the Energy Act 1976);

• “gasification” means the substoichiometric oxidation or steam reformation of a substance to produce a gaseous mixture containing two or all of the following: oxides of carbon, methane and hydrogen;

• “greenhouse gas emission criteria” means—in the case of bioliquid, the criteria set out in Schedule A1 (greenhouse gas emission criteria for bioliquid); andin all other cases, the criteria set out in Part 1 of Schedule A1A (greenhouse gas emission criteria for solid and gaseous biomass);

• “hazardous waste” is as defined in Articles 3(2) and 7 of Directive 2008/98/EC of the European Parliament and of the Council on waste and repealing certain Directives, as amended by Commission Regulation (EU) No 1357/2014 replacing Annex III of Directive 2008/98/EC;

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• “hydro generating station” means a generating station driven by water (other than a generating station driven by tidal flows, waves, ocean currents or geothermal sources) and includes all turbines supplied with water by or from the same civil works, except any turbine driven by a compensation flow supplied by or from those civil works in a natural water course where there is a statutory obligation to maintain that compensation flow in that water course (in which case that turbine and associated infrastructure is to be regarded as a separate hydro generating station);

• “investment contract” has the meaning given in paragraph 1 of Schedule 2 to the Energy Act 2013 (meaning of “investment contract”);

• “ISAE 3000” means the International Standard on Assurance Engagements 3000 promulgated by the International Federation of Accountants;

• “land criteria” means the criteria set out in Schedule A2;

• “landfill” has the meaning given in Article 2(g) of Council Directive 1999/31/EC ;

• “landfill gas” means gas formed by the digestion of material in a landfill;

• “large hydro generating station” means a hydro generating station which has, or has had at any time since 1st April 2002, a declared net capacity of more than 20 megawatts;

• “linked person” in relation to a person who is a party to a NFFO arrangement (“the first person”) means another person who has given or who has arranged to give to the first person or has ensured or arranged to ensure that the first person is given a financial or other inducement relating to any right or interest in, or in respect of, the construction or operation of a generating station at the location;

• “microgenerator” means a generating station, other than an enhanced wave or enhanced tidal stream generating station, which has a declared net capacity of 50 kilowatts or less;

• “micro hydro generating station” means a hydro generating station which–has a declared net capacity of 1.25 megawatts or less;has always been in private ownership and operation; andhas never generated electricity under an arrangement which has been a qualifying arrangement as defined in section 33 of the Act (as that section was originally enacted);

• “municipal waste” means—waste from households; andother waste that, because of its nature or composition, is similar to waste from households;

• “national system operator” has the meaning given in section 8(3) of the Energy Act 2013 (duties of a CFD counterparty);

• “NFFO arrangement” means an arrangement which was originally made pursuant to a Non-Fossil Fuel Order (and includes any replacement of such an arrangement where that replacement was made pursuant to an order made under section 67 of the Utilities Act 2000 );

• “NIRO Order” means any order made under Article 52 to 55F of the Northern Ireland Energy Order;

• “nominated person” has the same meaning as it has in the Electricity from Non-Fossil Fuel Sources Saving Arrangements Order 2000 or in the Electricity from Non-Fossil Fuels Sources (Scotland) Saving Arrangements Order 2005 (as the case may be);

• “Non-Fossil Fuel Order” means any of the following Orders: the Electricity (Non-Fossil Fuel Sources) (England and Wales) Order 1994 ; the Electricity (Non-Fossil Fuel Sources) (Scotland) Order 1994 ; the Electricity (Non-Fossil Fuel Sources) (England and Wales) Order 1997 ; the Electricity (Non-Fossil Fuel Sources) (Scotland) Order 1997 ; the Electricity (Non-Fossil Fuel Sources) (England and Wales) Order 1998 ; and the Electricity (Non-Fossil Fuel Sources) (Scotland) Order 1999 ;

• “Northern Ireland certificate” means a renewables obligation certificate issued by the Northern Ireland authority under the Northern Ireland Energy Order and pursuant to a NIRO Order;

• “Northern Ireland Energy Order” means the Energy (Northern Ireland) Order 2003 ;

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• “obligation period” means any of the periods referred to in the first column of Schedule 1;

• “offshore”, in relation to a generating station which generates electricity from wind, means a generating station which—has its wind turbines situated wholly in offshore waters; andis not connected to dry land by means of a permanent structure which provides access to land above the mean low water mark;

• “offshore waters” means–waters in or adjacent to the United Kingdom which are between the mean low water mark and the seaward limits of the territorial sea; andwaters within an area designated under section 1(7) of the Continental Shelf Act 1964 ;

• “on land”, in relation to the location of a generating station, means wholly or partly on land above mean high water level;

• “permitted ancillary purposes” is to be construed in accordance with article 22(3) (fossil fuel or waste used for permitted ancillary purposes);

• “plant”, with reference to crops or plant matter, includes shrubs and trees;

• “post-2016 capacity” means—in relation to a generating station accredited on or before 31st March 2016, any capacity which—in the Authority’s view, forms part of the station from a date no earlier than 1st April 2016; anddoes not form part of the capacity of the station as accredited;in relation to a generating station which—is accredited; andwas not accredited on or before 31st March 2016,the capacity of the station as accredited, together with any additional capacity which, in the Authority’s view, forms part of the station;