Energy Act 2004

(3) Operations in or as regards Scotland fall within paragraph (ga) of that subsection only if and to the extent that the Scottish Ministers by order made by statutory instrument so provide. (4) A statutory instrument containing an order under subsection (3) shall not be made unless a draft of the instrument has been laid before and approved by a resolution of the Scottish Parliament. (5) In that paragraph “offshore generating activities” has the same meaning as in section 36B of the Electricity Act 1989.

Further provision relating to public rights of navigation

100

• (1) This section applies where a consent falling within subsection (2) has been granted by the Secretary of State or the Scottish Ministers ...under section 36 of the 1989 Act (consent required for construction etc. of generating stations) before the commencement of section 99.

• (2) A consent falls within this subsection if it relates to—

• (a) the construction or operation of a generating station that comprises or is to comprise (in whole or in part) renewable energy installations situated in relevant waters; or

• (b) an extension of a generating station that comprises or is to comprise (in whole or in part) renewable energy installations so situated or an extension of such an installation.

• (3) On an application made by the generator, the appropriate authority may make a declaration under this section as respects rights of navigation—

• (a) so far as they pass through the places where the renewable energy installations are situated or are to be situated; or

• (b) so far as they pass through some of those places.

• (4) A declaration under this section is one declaring that the rights of navigation specified or described in it—

• (a) are extinguished;

• (b) are suspended for the period that is specified in the declaration;

• (c) are suspended until such time as may be determined in accordance with provision contained in the declaration; or

• (d) are to be exercisable subject to such restrictions or conditions, or both, as are set out in the declaration.

• (5) Subsections (4) to (6) of section 36A of the 1989 Act (declarations extinguishing etc. rights of navigation upon grant of consent under section 36 of that Act) shall apply in relation to declarations under this section as they apply in relation to declarations under that section, but with the omission of subsection (5)(c).

• (6) Before making a declaration under this section, the appropriate authority must—

• (a) publish details of the generator’s application in such manner as that authority considers appropriate;

• (b) give notice of that application to such persons as that authority considers appropriate;

• (c) consult the persons to whom notice has been given;

• (d) make such arrangements as that authority considers appropriate for a copy of the application to be made available for inspection by members of the public; and

• (e) give such opportunities to such persons as that authority considers appropriate to make representations to the authority about the application.

• (7) The appropriate authority may satisfy the requirements of paragraphs (a) to (d) of subsection (6) by securing that the things that it is required to do under those paragraphs are done on its behalf by the generator.

• (8) In this section—

• "appropriate authority” has the same meaning as in section 36 of the Electricity Act 1989; “generator”, in relation to a consent under section 36 of the 1989 Act, means the person who is constructing or operating the station in question, or making the extension in question, or who is proposing to do so;

• “relevant waters” has the same meaning as in section 36A of the 1989 Act.

Application of civil aviation regulations to renewable energy installations

101

• (1) Schedule 13 to the Civil Aviation Act 1982 (c. 16) (subordinate instruments) is amended as follows.

• (2) In the Table in Part 2 (provisions applying to certain powers), in the entry for section 60, in column 4 (applicable paragraphs of Part 3 of the Schedule), for “and 6” substitute “ , 6 and 7 ”.

• (3) In paragraph 6 of Part 3 (extra-territorial provisions), in sub-paragraph (4) for “sub-paragraph (5)” substitute “ sub-paragraphs (5) and (7) ”.

• (4) After sub-paragraph (6) of that paragraph insert—

(7) So far as relates to a provision of an Order in Council or regulation concerning aircraft on or in the neighbourhood of a renewable energy installation, this paragraph— (a) shall apply to all aircraft, and not only to aircraft registered in the United Kingdom; and (b) shall apply to the doing of anything in relation to an aircraft by any person, irrespective of nationality, or (in the case of a body corporate) of the law under which it was incorporated. (8) For the purposes of sub-paragraphs (5) and (7) the neighbourhood of an installation includes anywhere within 500 metres of that installation. (9) In this paragraph “renewable energy installation” has the same meaning as in Chapter 2 of Part 2 of the Energy Act 2004.

• (5) After that paragraph insert—

(7) (1) Without prejudice to paragraph 6 above, an Air Navigation Order may make provision in relation to renewable energy installations located within a Renewable Energy Zone as if those installations were located in a part of the United Kingdom. (2) Such provision may apply to any person irrespective of nationality or (in the case of a body corporate) of the law under which it was incorporated. (3) In this paragraph “renewable energy installation” and “Renewable Energy Zone” have the same meanings as in Chapter 2 of Part 2 of the Energy Act 2004.

Supplementary provisions of Chapter 2 of Part 2

Amendments of 1989 Act consequential on Chapter 2 of Part 2

102

• (1) The 1989 Act is amended as follows.

• (2) In section 61(2) (concurrent proceedings for compulsory purchase and in respect of consents under section 36 of that Act), at the end insert “ and with any related proceedings under Schedule 16 to the Energy Act 2004 ”.

• (3) In section 62(3) (power to combine inquiries)—

• (a) in paragraph (a), after “this Part” insert “ or Schedule 16 to the Energy Act 2004 ”; and

• (b) in paragraph (b), after “this Part” insert “ , that Schedule ”.

• (4) In section 64(1) (interpretation of Part 1)—

• (a) after the definition of “authorised supplier” insert—

“construct” and “construction”, in relation to so much of a generating station as comprises or is to comprise renewable energy installations, has the same meaning as in Chapter 2 of Part 2 of the Energy Act 2004;

;

• (b) after the definitions of “relevant condition” and “relevant requirement” insert—

“renewable energy installation” and “Renewable Energy Zone” have the same meanings as in Chapter 2 of Part 2 of the Energy Act 2004;

.

• (5) After section 108 insert—

(108A) (1) Where by virtue of this Act an act or omission taking place outside Great Britain constitutes an offence, proceedings for the offence may be taken, and the offence may for all incidental purposes be treated as having been committed, in any place in Great Britain. (2) Provision made by or under this Act in relation to places outside Great Britain— (a) so far as it applies to individuals, applies to them whether or not they are British citizens; and (b) so far as it applies to bodies corporate, applies to them whether or not they are incorporated under the law of a part of the United Kingdom.

Other amendments consequential on Chapter 2 of Part 2

103

• (1) In section 8 of the Continental Shelf Act 1964 (c. 29) (application of Submarine Telegraph Act 1885 to pipelines and submarine cables)—

• (a) in subsection (1), omit “high-voltage”; and

• (b) in subsection (1A), for the words from “pipe-lines under the high seas” onwards substitute “ submarine cables and pipe-lines under the high seas includes a reference to submarine cables and pipe-lines under the territorial sea adjacent to the United Kingdom or under waters in an area designated under section 1(7) of this Act ”.

• (2) In section 23 of the Police and Criminal Evidence Act 1984 (c. 60) (meaning of premises)—

• (a) in the definition of “premises”, for the “and” at the end of paragraph (b) substitute—

(ba) any renewable energy installation;

;

• (b) after the definition of “offshore installation” insert—

“renewable energy installation” has the same meaning as in Chapter 2 of Part 2 of the Energy Act 2004.

• (3) In section 10(10) of the Petroleum Act 1998 (c. 17) (section to apply to installations in transit), after “transit” insert “ but does not apply to an installation that is a renewable energy installation (within the meaning of Chapter 2 of Part 2 of the Energy Act 2004) ”.

• (4) After section 47 of that Act insert—

(47A) (1) The matters to which the Secretary of State may have regard, in exercising or performing the powers and duties conferred or imposed on him by or under this Act, include, in particular— (a) activities in relevant waters for or in connection with the generation of electricity; (b) proposals made by a person to carry on such activities; (c) the proposals that it appears to the Secretary of State may be made in the future for the carrying on of such activities; and (d) the likelihood that activities will in due course be carried on in accordance with proposals falling within paragraph (b) or (c). (2) The reference in subsection (1) to activities in connection with the generation of electricity in relevant waters includes— (a) the transmission, distribution and supply of the electricity generated; and (b) the doing of anything (whether by way of investigations, trials or feasibility studies or otherwise) with a view to ascertaining whether activities in relevant waters for or in connection with the generation of electricity are, in a particular case, practicable or commercially viable, or both. (3) In this section— - “distribution”, “generate”, “supply” and “transmission”, and cognate expressions, have the same meanings as in Part 1 of the Electricity Act 1989; and - “relevant waters” means— 1. waters in or adjacent to the United Kingdom up to the seaward limits of the territorial sea; or 2. waters in a Renewable Energy Zone (within the meaning of Chapter 2 of Part 2 of the Energy Act 2004).

Interpretation of Chapter 2 of Part 2

104

• (1) In this Chapter—

• “construct”, in relation to an installation or an electric line or in relation to a generating station so far as it is to comprise renewable energy installations, includes—placing it in or upon the bed of any waters;attaching it to the bed of any waters;assembling it;commissioning it; andinstalling it;and “construction” is to be construed accordingly;

• “decommission”, in relation to an installation or an electric line, includes—removing it from the bed of any waters;demolishing it; anddismantling it;

• “distribution” and “electric line” have the same meanings as in Part 1 of the 1989 Act;

• “extend” and “extension”—in relation to a generating station, have the same meanings as in Part 1 of the 1989 Act; andin relation to an installation, have the same meanings as in relation to a generating station;

• “installation” includes artificial island, structure and device;

• “master” includes—in relation to a hovercraft, the captain;in relation to any submersible apparatus, the person in charge of the apparatus; andin relation to an installation in transit, the person in charge of the transit operation;

• “renewable energy installation” is to be construed in accordance with subsections (3) to (5);

• “Renewable Energy Zone” has the meaning given by section 84(4);

• “safety zone” means an area which is a safety zone for the purposes of this Chapter by virtue of section 95;

• “Scottish part”, in relation to a Renewable Energy Zone, means so much of that Zone as is designated under section 84(5);

• “Scottish waters” means—the internal waters of the United Kingdom that are in or are adjacent to Scotland; orso much of the territorial sea of the United Kingdom as is adjacent to Scotland;

• “submersible apparatus” has the meaning given by section 88(4) of the Merchant Shipping Act 1995 (c. 21);

• “supply”, in relation to electricity, has the same meaning as in Part 1 of the 1989 Act;

• “transmission”, in relation to electricity, has the same meaning as in Part 1 of the 1989 Act;

• “vessel” includes—a hovercraft;any submersible apparatus; andan installation in transit.

• “Welsh waters” means so much of the internal waters and territorial sea of the United Kingdom as are adjacent to Wales, and the Welsh zone;

• “Welsh zone” has the meaning given in section 158 of the Government of Wales Act 2006.

• (2) References in this Chapter to the production of energy from water include, in particular, references to its production from currents and tides.

• (3) In this Chapter “renewable energy installation” means—

• (a) an offshore installation used for purposes connected with the production of energy from water or winds;

• (b) an installation in the course of construction at a place where it is to be used as an offshore installation within paragraph (a);

• (c) an installation that has ceased to be an installation within paragraph (a) while remaining an offshore installation (whether or not at the same place);

• (d) an installation that is being decommissioned at a place where it has been an installation within paragraph (a) or (c);

• (e) an installation in transit to or from a place where it is to be, or has been, used for purposes that would make it, or made it, an installation within paragraph (a);

• (f) an installation in transit to or from a place where it is to be, or was, an installation within paragraph (c).

• (4) In subsection (3) “offshore installation” means an installation which is situated in waters where—

• (a) it permanently rests on, or is permanently attached to, the bed of the waters; and

• (b) it is not connected with dry land by a permanent structure providing access at all times for all purposes.

• (5) The purposes referred to in subsection (3)(a) include, in particular—

• (a) the transmission, distribution and supply of electricity generated using water or winds; and

• (b) the doing of anything (whether by way of investigations, trials or feasibility studies or otherwise) with a view to ascertaining whether the generation of electricity in that manner is, in a particular case, practicable or commercially viable, or both.

• (6) Provision made by or under this Chapter in relation to places outside the United Kingdom—

• (a) so far as it applies to individuals, applies to them whether or not they are British citizens; and

• (b) so far as it applies to bodies corporate, applies to them whether or not they are incorporated under the law of a part of the United Kingdom.

Chapter 3 — Decommissioning of offshore installations

Decommissioning programmes

Requirement to prepare decommissioning programmes

105

• (1) This section applies where—

• (a) there is a proposal by a person to construct a relevant object in waters regulated under this Chapter, or to extend a relevant object in such waters;

• (b) there is a proposal by a person to operate or to use a relevant object in such waters on the completion of its construction, or of any extension of it in such waters; or

• (c) a person is constructing, extending, operating or using a relevant object in such waters or has begun in such waters to decommission such an object.

• (1A) In this Chapter “appropriate Minister”—

• (a) in relation to a renewable energy installation, means the Scottish Ministers—

• (i) if the installation is to be or is wholly in an area of Scottish waters or an area of waters in a Scottish part of a Renewable Energy Zone, and is not being or proposed to be extended outside those areas,

• (ii) if sub-paragraph (i) has ceased to apply to the installation because of an extension or proposed extension, and subsection (1B) applies, or

• (iii) to the extent that the installation is to be or is in an area of Scottish waters or an area of waters in a Scottish part of a Renewable Energy Zone, if sub-paragraph (i) has ceased to apply because of an extension or proposed extension, and subsection (1B) does not apply;

and otherwise means the Secretary of State;

• (b) in relation to an electric line which is or has been a related line, means—

• (i) the Scottish Ministers, to the extent that the line is to be or is in an area of Scottish waters or an area of waters in a Scottish part of a Renewable Energy Zone;

• (ii) otherwise, the Secretary of State.

• (1B) This subsection applies to an installation if there is an agreement in force between the Secretary of State and the Scottish Ministers providing for the Scottish Ministers to be the appropriate Minister in relation to the whole of the installation.

• (1C) Where subsection (1B) applies, the Scottish Ministers must consult the Secretary of State about the exercise of their functions as the appropriate Minister.

• (2) The appropriate Minister may by notice require—

• (a) a person falling within subsection (1)(a), (b) or (c), or

• (b) if a person to whom paragraph (a) applies is a body corporate, a body corporate associated with that person (subject to section 105A),

to submit to him a programme for decommissioning the relevant object (a “decommissioning programme”).

• (3) Before requiring a person to submit a decommissioning programme in respect of proposals made by a person within paragraph (a) or (b) of subsection (1), the appropriate Minister must be satisfied that at least one of the statutory consents required for giving effect to those proposals—

• (a) has been given; or

• (b) has been applied for and is likely to be given;

but for this purpose it is immaterial that a statutory consent that has been or may be given will have no effect before a particular time or unless particular conditions are satisfied.

• (4) Where there is more than one person to whom a notice under this section may be given—

• (a) it may be given to any one or more of them; and

• (b) where it is given to more than one of them, the requirement to submit a programme must be satisfied by all those persons acting jointly.

• (5) Before giving a notice under this section in relation to a relevant object which is to be or is, ... partly—

• (a) in an area of Scottish waters; or

• (b) in an area of waters in a Scottish part of a Renewable Energy Zone,

the Secretary of State must consult the Scottish Ministers.

• (6) A notice under this section must either—

• (a) specify the date by which the decommissioning programme is to be submitted; or

• (b) require it to be submitted on or before such date as the appropriate Minister may direct.

• (7) A notice under this section may require the recipient of the notice to carry out the consultations specified in the notice before submitting the programme required of him.

• (8) A decommissioning programme—

• (a) must set out measures to be taken for decommissioning the relevant object;

• (b) must contain an estimate of the expenditure likely to be incurred in carrying out those measures;

• (c) must make provision for the determination of the times at which, or the periods within which, those measures will have to be taken;

• (d) if it proposes that the relevant object will be wholly or partly removed from a place in waters regulated under this Chapter, must include provision about restoring that place to the condition that it was in prior to the construction of the object; and

• (e) if it proposes that the relevant object will be left in position at a place in waters regulated under this Chapter or will not be wholly removed from a place in such waters, must include provision about whatever continuing monitoring and maintenance of the object will be necessary.

• (9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (10) In this Chapter—

• “relevant object” means the whole or any part of—a renewable energy installation; oran electric line that is or has been a related line;

• “waters regulated under this Chapter” means—waters in or adjacent to Great Britain which are between the mean low water mark and the seaward limits of the territorial sea; andwaters in a Renewable Energy Zone.

• (11) In this section—

• “related line” means an electric line which is a line for the conveyance of electricity to or from a renewable energy installation but is not an electricity interconnector (within the meaning of Part 1 of the 1989 Act); and

• “statutory consent” means a consent, licence or approval required by or under any enactment.

Approval of decommissioning programmes

106

• (1) The appropriate Minister may either approve or reject a programme submitted to him under section 105.

• (2) Before approving or rejecting a decommissioning programme relating to a relevant object which is to be or is, ... partly—

• (a) in an area of Scottish waters, or

• (b) in an area of waters in a Scottish part of a Renewable Energy Zone,

the Secretary of State must consult the Scottish Ministers.

• (3) If the appropriate Minister approves a programme, he may do so—

• (a) with or without modifications; and

• (b) either subject to conditions or unconditionally.

• (4) His power to approve it subject to conditions includes, in particular, power to approve it subject to a condition that the person who submitted the programme—

• (a) provides such security in relation to the carrying out of the programme, and for his compliance with the conditions (if any) of its approval, as may be specified by the appropriate Minister; and

• (b) provides that security at such time, and in accordance with such requirements, as may be specified by the appropriate Minister.

• (5) Before approving a programme with modifications or subject to conditions, the appropriate Minister must give the person who submitted it an opportunity of making representations about the proposed modifications or conditions.

• (6) The power of the appropriate Minister to approve a programme subject to conditions includes power, where more than one person submitted it, to impose different conditions in relation to different persons.

• (7) If he rejects a programme, the appropriate Minister—

• (a) must inform the person who submitted it of his reasons for doing so; and

• (b) may exercise his power under section 105 to require the submission of a new one.

• (8) The appropriate Minister must act without unreasonable delay in reaching a decision as to whether to approve or reject a programme.

Failure to submit or rejection of decommissioning programmes

107

• (1) Where—

• (a) a notice given under section 105 is not complied with, or

• (b) the appropriate Minister rejects a programme submitted to him,

the appropriate Minister may himself prepare a decommissioning programme in relation to the relevant object in question.

• (2) Before himself preparing a decommissioning programme relating to a relevant object which is to be or is, ... partly—

• (a) in an area of Scottish waters, or

• (b) in an area of waters in a Scottish part of a Renewable Energy Zone,

the Secretary of State must consult the Scottish Ministers.

• (3) Where the appropriate Minister prepares a decommissioning programme under this section—

• (a) he must give notice informing the recipient of the notice given under section 105 that he has done so; and

• (b) this Chapter shall have effect subsequently as if the appropriate Minister’s programme were a programme submitted to him by the person informed and had been approved by the appropriate Minister subject to the conditions specified by the appropriate Minister.

• (4) Where the appropriate Minister informs a person under subsection (3) that he has prepared his own decommissioning programme, he may by notice to that person require him—

• (a) to provide such security in relation to the carrying out of the programme, and for his compliance with its conditions (if any), as may be specified by the appropriate Minister; and

• (b) to provide it at such time, and in accordance with such requirements, as may be specified by the appropriate Minister;

and a requirement under this subsection has effect as if it were a condition of the deemed approval of the programme.

• (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (8) The power of the appropriate Minister to impose requirements under this section includes power, where there is more than one person on whom he may impose them, to impose different requirements in relation to different persons.

• (9) Where, having given a notice under section 105, the appropriate Minister prepares his own decommissioning programme, he may recover expenditure incurred by him in, or in connection with, the exercise of his powers under this section from the recipient of the notice.

• (10) A person liable to pay a sum to the appropriate Minister by virtue of subsection (9) must also pay interest on that sum for the period which—

• (a) begins with the day on which the appropriate Minister notified him of the sum payable; and

• (b) ends with the date of payment.

• (11) The rate of interest shall be a rate determined by the appropriate Minister to be comparable with commercial rates.

Reviews and revisions of decommissioning programmes

108

• (1) The appropriate Minister must, from time to time, conduct such reviews of a decommissioning programme approved by him as he considers appropriate.

• (2) A proposal—

• (a) to modify a decommissioning programme approved by the appropriate Minister, or

• (b) to modify a condition to which such a programme is subject,

may be made by the appropriate Minister, or by the person who submitted the programme or (if there is more than one of them) by all of them acting jointly.

• (3) A proposal—

• (a) to relieve a person of his duty under section 109(1) in relation to a decommissioning programme approved by the appropriate Minister, or

• (b) as respects such a programme, to impose that duty upon a person not previously subject to it (whether in addition to or in substitution for another person),

may be made by the appropriate Minister or by the person for the time being subject to that duty or (if there is more than one person subject to that duty) by any one or more of them.

• (3A) A proposal under subsection (3)(b) may, in particular, be made in relation to a body corporate associated with a person who has a duty under section 109(1) (and for this purpose “associated” is to be construed in accordance with section 105A(3) to (8)).

• (4) A proposal under subsection (2) or (3) may be made only by way of notice given—

• (a) if the proposal is the appropriate Minister's, to every person whose duty under section 109(1) in relation to the programme would be affected or relieved under the proposal or who would become subject to such a duty; and

• (b) in any other case, to the appropriate Minister.

• (5) An opportunity of making representations to the appropriate Minister about a proposal of his under this section must be given by him to every person to whom notice of the proposal is required to have been given.

• (6) It is to be for the appropriate Minister, after considering any representations made to him, to determine whether or not effect should be given to a proposal of his, or of any other person, under this section.

• (7) Before making a determination under subsection (6) with respect to a proposal in relation to a decommissioning programme relating to a relevant object which is to be or is, ... partly—

• (a) in an area of Scottish waters, or

• (b) in an area of waters in a Scottish part of a Renewable Energy Zone,

the Secretary of State must consult the Scottish Ministers.

• (8) Where the appropriate Minister makes a determination under subsection (6), he must give notice of his determination, and of his reasons for it, to—

• (a) every person who, before the determination, had a duty under section 109(1) in relation to the programme; and

• (b) every person who will become subject to such a duty as a result of the determination.

• (9) Where the appropriate Minister gives notice under subsection (8) in respect of a proposal, this Chapter shall have effect after the giving of that notice—

• (a) in the case of a proposal under subsection (2), as if the programme in question had been approved subject to the modifications specified in the determination; and

• (b) in the case of a proposal under subsection (3), as if that programme had been submitted to the appropriate Minister by the person or persons so specified.

• (10) Where the appropriate Minister gives notice under subsection (8) to a person that he is to become subject to a duty under section 109(1) in relation to a programme, the appropriate Minister may by notice to that person require him—

• (a) to provide such security in relation to the carrying out of the programme, and for his compliance with any conditions of its approval, as may be specified by the appropriate Minister; and

• (b) to provide it at such time, and in accordance with such requirements, as may be specified by the appropriate Minister;

and a requirement under this subsection has effect as if it were a condition of the approval of the programme.

Implementation of decommissioning programmes

Carrying out of decommissioning programmes

109

• (1) Where a decommissioning programme is approved by the appropriate Minister, it shall be the duty of the person who submitted the programme to secure—

• (a) that it is carried out in every respect; and

• (b) that all the conditions to which the approval is subject are complied with.

• (2) Where a relevant object is subject to a decommissioning programme approved by the appropriate Minister, it is an offence for a person to take any measures for decommissioning that object unless he does so—

• (a) in accordance with the programme; or

• (b) with the agreement of the appropriate Minister.

Default in carrying out decommissioning programmes

110

• (1) Where—

• (a) a decommissioning programme approved by the appropriate Minister is not carried out in a particular respect, or

• (b) a condition to which the approval is subject is contravened,

the appropriate Minister may, by notice, require a person subject to the duty under section 109(1) in relation to the programme to take such remedial action as may be specified in the notice.

• (2) Remedial action required by a notice under this section must be taken within such period as may be specified in the notice.

• (3) A person who fails to comply with a notice given to him under this section is guilty of an offence.

• (4) In proceedings against a person for an offence under this section it is a defence for him to show that he exercised due diligence to avoid the contravention in question.

• (5) If a notice under this section is not complied with, the appropriate Minister may—

• (a) himself secure the carrying out of the remedial action required by the notice; and

• (b) recover any expenditure incurred by him in doing so from the person to whom the notice was given.

• (6) A person liable to pay a sum to the appropriate Minister by virtue of subsection (5) must also pay interest on that sum for the period which—

• (a) begins with the day on which the appropriate Minister notified him of the sum payable; and

• (b) ends with the date of payment.

• (7) The rate of interest shall be a rate determined by the appropriate Minister to be comparable with commercial rates.

Decommissioning regulations

Regulations about decommissioning

111

• (1) The appropriate Minister may make regulations relating to the decommissioning of relevant objects in waters regulated under this Chapter.

• (2) The provision that may be contained in regulations under this section includes, in particular—

• (a) provision prescribing standards in respect of decommissioning;

• (b) provision prescribing standards and safety requirements in respect of anything left in place where a relevant object is not wholly removed;

• (c) provision about the security that a person may be required to provide under this Chapter;

• (d) provision for the prevention of pollution;

• (e) provision for inspections, including provision as to the payment of the costs of inspections.

• (3) Regulations under this section may include provision making it an offence to contravene provisions of the regulations.

• (4) Where the regulations under this section create an offence, they must make provision as to the mode of trial and punishment of offenders; but there is no power for regulations under this section—

• (a) to impose a penalty of imprisonment on summary conviction, or to impose a maximum fine, on summary conviction, of more than the statutory maximum; or

• (b) to impose a maximum term of imprisonment, on conviction on indictment, of more than two years.

• (5) Before making regulations under this section, the appropriate Minister must consult—

• (a) organisations appearing to him to be representative of persons who will be affected by the regulations; and

• (b) any other persons he considers appropriate.

• (6) Before making regulations under this section containing provision that relates to the decommissioning of relevant objects which are to be or are, ... partly—

• (a) in Scottish waters, or

• (b) in waters in a Scottish part of a Renewable Energy Zone,

the Secretary of State must consult the Scottish Ministers.

• (7) Regulations under this section—

• (a) if made by the Secretary of State, are subject to the negative resolution procedure;

• (b) if made by the Scottish Ministers, are subject to the negative procedure (see section 28 of the Interpretation and Legislative Reform (Scotland) Act 2010).

Supplementary provisions of Chapter 3 of Part 2

Duty to inform Secretary of State

112

• (1) A person who becomes responsible for a relevant object must notify the appropriate Minister that he has become so responsible.

• (2) For the purposes of this section a person becomes responsible for a relevant object if—

• (a) he makes a proposal to construct the object in waters regulated under this Chapter;

• (b) he makes a proposal for the extension or decommissioning in such waters of the object;

• (c) he makes a proposal to operate or use the object on completion of its construction in such waters;

• (d) he makes a proposal to operate or use the object on completion in such waters of any extension of it;

• (e) he becomes a party to a proposal mentioned in paragraphs (a) to (d);

• (f) he begins in such waters to construct, to extend, to operate or use or to decommission the object;

• (g) he begins to participate in any of the following activities carried on in such waters, the construction, extension, operation or use or decommissioning of the object.

• (3) A person is not required to notify the appropriate Minister that he has made a proposal, or become a party to a proposal, at any time before at least one of the statutory consents required for enabling effect to be given to the proposal has been given or applied for.

• (4) A person who notifies the appropriate Minister under this section that he has made a proposal, or has become a party to a proposal—

• (a) must specify in the notification what statutory consents required for giving effect to the proposal have been given, and what applications for such consents have been made; and

• (b) must notify him subsequently whenever such a consent or application is given or made.

• (5) A notification under this section must be given within such period after the obligation to give the notification arises as may be prescribed by regulations made by the appropriate Minister.

• (6) A person who contravenes the requirements of this section is guilty of an offence.

• (7) Regulations under this section—

• (a) if made by the Secretary of State, are subject to the negative resolution procedure;

• (b) if made by the Scottish Ministers, are subject to the negative procedure (see section 28 of the Interpretation and Legislative Reform (Scotland) Act 2010).

• (8) A reference in this section to participation in activities does not include a reference—

• (a) to participation on behalf of another person; or

• (b) to participation by acting in pursuance of an agreement to provide a service or services to a person carrying on those activities.

• (9) In this section “statutory consent” has the same meaning as in section 105.

Offences relating to decommissioning programmes

113

• (1) A person guilty of an offence under a provision of this Chapter is liable—

• (a) on summary conviction, to a fine not exceeding the statutory maximum;

• (b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine, or to both.

• (2) No proceedings for a decommissioning offence shall be instituted in England and Wales or Northern Ireland except—

• (a) by the Secretary of State;

• (b) by a person authorised in that behalf by the Secretary of State; or

• (c) by or with the consent of the Director of Public Prosecutions or (as the case may be) the Director of Public Prosecutions for Northern Ireland.

• (3) Where a decommissioning offence is committed by a body corporate and is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of—

• (a) a director, manager, secretary or other similar officer of the body corporate, or

• (b) a person who was purporting to act in any such capacity,

he (as well as the body corporate) is guilty of that offence and shall be liable to be proceeded against and dealt with accordingly.

• (4) Where such an offence—

• (a) is committed by a Scottish firm, and

• (b) is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a partner of the firm,

he (as well as the firm) is guilty of that offence and shall be liable to be proceeded against and dealt with accordingly.

• (5) Where a decommissioning offence is committed outside the United Kingdom, proceedings for the offence may be taken, and the offence may for all incidental purposes be treated as having been committed, in any place in the United Kingdom.

• (6) Section 3 of the Territorial Waters Jurisdiction Act 1878 (c. 73) (consents to prosecution of offences committed on the open sea by persons who are not British citizens) does not apply to proceedings for a decommissioning offence.

• (7) In this section—

• “decommissioning offence” means an offence under—a provision of this Chapter; orregulations made under section 111;

• “director”, in relation to a body corporate whose affairs are managed by its members, means a member of the body corporate.

Interpretation of Chapter 3 of Part 2

114

• (1) Expressions used in this Chapter and in Chapter 2 of this Part have the same meanings in this Chapter as in that Chapter.

• (2) In this Chapter—

• “appropriate Minister” has the meaning given by section 105(1A);

• “decommissioning programme” has the meaning given by section 105(2);

• “extend” and “extension”, in relation to an electric line, have the same meanings as they have in Chapter 2 of this Part and this Chapter in relation to a renewable energy installation;

• “recipient”, in relation to a notice under section 105, means the person or any one or more of the persons to whom that notice was given;

• “relevant object” has the meaning given by section 105(10);

• “security” includes—a charge over a bank account or any other asset;a deposit of money;a performance bond or guarantee;an insurance policy;a letter of credit; anda letter of comfort;

• “waters regulated under this Chapter” has the meaning given by section 105(10).

• (3) References in this Chapter to providing a security include references—

• (a) to securing its maintenance or renewal; and

• (b) to ensuring that its value is adjusted from time to time to take account of changes to the likely costs of the matters in respect of which it is given.

• (4) References in this Chapter to the person by whom a decommissioning programme was submitted are references, in the case of a programme submitted jointly by more than one person, to each of them.

• (5) Provision made by or under this Chapter in relation to places outside the United Kingdom—

• (a) so far as it applies to individuals, applies to them whether or not they are British citizens; and

• (b) so far as it applies to bodies corporate, applies to them whether or not they are incorporated under the law of any part of the United Kingdom.

Chapter 4 — Renewables obligations relating to electricity

Discharge of renewables obligation in Great Britain by payment

115

• (1) In section 32(3) of the 1989 Act (renewables obligation), for the words from “must” to “produce” substitute “ must, by each specified day, have produced ”.

• (2) In section 32C of that Act (payment as an alternative to complying with a renewables obligation), in subsection (1) for the words from “that” onwards substitute—

(a) that an electricity supplier may (in whole or in part) discharge its renewables obligation by making a payment to the Authority before the day specified as the day by which evidence must be produced for the purposes of section 32(3); and (b) that an electricity supplier’s renewables obligation that was not discharged in whole or in part before the day so specified is to be treated as having been discharged to the extent specified in the order where the payment for which the order provides is made to the Authority before the end of such period beginning with that day as may be specified in the order.

• (3) In subsection (2) of that section (supplementary provisions of order providing for payments)—

• (a) after paragraph (a) insert—

(aa) for the sums that must be paid in order for an obligation to be treated as having been discharged to increase at a rate specified in the order for each day after the time by which evidence had to be produced for the purposes of section 32(3);

• (b) in paragraph (b), for “such sums” substitute “ sums or rates falling within paragraph (a) or (aa) ”;

• (c) in paragraph (c), after “sums” insert “ or rates ”; and

• (d) in paragraph (d), after “sum” insert “ or rate ”.

• (4) For subsection (3) of that section substitute—

(2A) An order under section 32 may provide that, where— (a) a renewables obligation is one in relation to which provision made by virtue of subsection (1)(b) applies in the case of the electricity supplier who is subject to the obligation, and (b) the period ending with such day (after the day by which the obligation had to be complied with) as may be specified in or determined under the order has not expired, the taking of steps under section 27A in respect of a contravention by that supplier of that obligation is prohibited or otherwise restricted to the extent specified in the order. (2B) An order under section 32 may provide that, in a case in which the amount received by the Authority, or by the Northern Ireland authority, by way of discharge payments for a period falls short of the amount due in respect of that period, every person who— (a) was subject to a renewables obligation for the relevant period or for a subsequent period specified in or determined under the order, and (b) is of a description so specified or determined, must, by the time and in the circumstances so specified or determined, make a payment (or further payment) to the Authority of an amount calculated in the manner so specified or determined. (2C) An order under section 32 may not by virtue of subsection (2B) confer an entitlement on the Authority to receive a payment in respect of the shortfall for any period— (a) in the case of a shortfall in the amount received by the Authority, if the receipt of the payment is to be while a prohibition or restriction by virtue of subsection (2A) applies, in one or more cases, to the taking of steps in relation to contraventions of renewables obligations for that period; or (b) in the case of a shortfall in the amount received by the Northern Ireland authority, if the receipt of the payment is to be while a prohibition or restriction by virtue of a corresponding provision having effect in Northern Ireland applies, in one or more cases, to the taking of steps in relation to contraventions of Northern Ireland obligations for that period. (2D) The provision that may be made by virtue of subsection (2B) includes— (a) provision for the making of adjustments and repayments at times after a requirement to make payments in respect of a shortfall for a period has already arisen; and (b) provision that sections 25 to 28 are to apply in relation to a requirement imposed by virtue of that subsection on a person who is not a licence holder as if he were a licence holder. (3) The amounts received by the Authority by virtue of the preceding provisions of this section must be paid by it to electricity suppliers in accordance with a system of allocation specified in an order under section 32.

• (5) In that section, at the end insert—

(6) References in this section to an electricity supplier’s renewables obligation include references to its renewables obligation in relation to a particular period. (7) For the purposes of this section— (a) the amount received by the Authority by way of discharge payments for a period falls short of the amount due in respect of that period, and (b) the amount received by the Northern Ireland authority by way of discharge payments for a period falls short of the amount due in respect of that period, if, and to the extent that, the Authority or (as the case may be) the Northern Ireland authority would have received more by way of discharge payments if every renewables obligation or (as the case may be) Northern Ireland obligation for that period, so far as it was not otherwise discharged, had been discharged by payment. (8) In this section— “discharge payment”, in relation to a period, means— (a) a payment by virtue of paragraph (a) of subsection (1) for discharging (in whole or in part) an electricity supplier’s renewables obligation for that period; (b) so much of a payment by virtue of paragraph (b) of that subsection for securing that such an obligation is treated as discharged to any extent as does not exceed the payment that would have discharged that obligation to the same extent if it had been made before the day mentioned in that paragraph; or (c) so much of any payment to the Northern Ireland authority as corresponds, in relation to a Northern Ireland obligation for that period, to anything falling within paragraph (a) or (b) above; “Northern Ireland obligation” means a renewables obligation of a Northern Ireland supplier under Article 52 of the Energy (Northern Ireland) Order 2003; “the relevant period”— (a) in relation to a shortfall in amounts received by the Authority by way of discharge payments for a period, means that period; and (b) in relation to a shortfall in amounts received by the Northern Ireland authority by way of discharge payments for a period, means any period that includes the whole or a part of that period.

• (6) The requirements of section 32(7) of the 1989 Act (consultation before making an order) may be satisfied in the case of an order containing provision made by virtue of this section by consultation that took place wholly or partly before the commencement of this section.

Issue of green certificates in Great Britain

116

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Use of green certificates issued in Northern Ireland

117

• (1) After section 32B of the 1989 Act insert—

(32BA) (1) An order under section 32 may provide that— (a) in such cases as may be specified in the order, and (b) subject to such conditions as may be so specified, an electricity supplier may (to the extent provided for in accordance with the order) discharge its renewables obligation (or its obligation in relation to a particular period) by the production to the Authority of a Northern Ireland certificate. (2) In this section “Northern Ireland certificate” means a certificate issued by the Northern Ireland authority in accordance with provision included, by virtue of Article 54 of the Energy (Northern Ireland) Order 2003, in an order under Article 52 of that Order (renewables obligations for Northern Ireland suppliers).

• (2) The requirements of section 32(7) of the 1989 Act (consultation before making an order) may be satisfied in the case of an order containing provision made by virtue of this section by consultation that took place wholly or partly before the commencement of this section.

• (3) In Article 56(1) of the Energy (Northern Ireland) Order 2003 (S.I. 2003/419 (N.I. 6)) (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 1989 Act includes a reference to subsection (1) of this section.

• (4) Subsection (3) extends to Northern Ireland only.

Distributions to Northern Ireland suppliers

118

• (1) In section 32C of the 1989 Act (payment of money to discharge renewables obligation and distribution of fund to electricity suppliers), after subsection (4) insert—

(5) The references in subsections (3) and (4) to electricity suppliers include references to persons who are Northern Ireland suppliers.

• (2) The requirements of section 32(7) of the 1989 Act (consultation before making an order) may be satisfied in the case of an order containing provision made by virtue of this section by consultation that took place wholly or partly before the commencement of this section.

Supplementary provision relating to renewables obligation in Great Britain

119

• (1) In subsection (3) of section 32 of the 1989 Act (definition of renewables obligation), for “and 32C” substitute “ to 32C ”.

• (2) In subsection (7) of that section, for paragraph (d) substitute—

(d) such generators of electricity from renewable sources as he considers appropriate; and

.

• (3) After subsection (8) of that section insert—

(8A) In this section and in sections 32A to 32C— “generated” means generated at any place whether situated in the United Kingdom or elsewhere, and cognate expressions shall be construed accordingly; “Northern Ireland authority” means the Northern Ireland Authority for Energy Regulation; “Northern Ireland supplier” means an electricity supplier within the meaning of Part 7 of the Energy (Northern Ireland) Order 2003.

• (4) In section 32A of that Act (supplementary provision relating to orders under section 32), in subsection (3) for the words from “the differences” onwards substitute “ no supplier would by virtue of the differences be unduly disadvantaged in competing with other suppliers ”.

• (5) After that subsection insert—

(3A) In subsection (3) “supplier” means an electricity supplier or a Northern Ireland supplier.

• (6) In subsection (7) of that section, for “obligation imposed” substitute “ matters dealt with ”.

• (7) The requirements of section 32(7) of that Act (consultation before making an order) may be satisfied in the case of an order containing provision made by virtue of this section by consultation that took place wholly or partly before the commencement of this section.

Issue of green certificates in Northern Ireland

120

• (1) Article 54 of the Energy (Northern Ireland) Order 2003 (S.I. 2003/419 (N.I. 6)) (which contains provision corresponding to provision contained in section 32B of the 1989 Act) is amended as follows.

• (2) After paragraph (2) insert—

(2A) In paragraphs (1) and (2) “Northern Ireland” does not include any part of the territorial sea of the United Kingdom. (2B) The provision that may be contained by virtue of this Article in an order under Article 52 includes— (a) provision for the person to whom a certificate is to be issued to be determined either before or after the supply of the electricity to which it relates; and (b) provision for a determination as to the person to whom a certificate is to be issued to be made in accordance with such arrangements as may be specified in or determined under the order. (2C) In the case only of a certificate relating to electricity that has been acquired, or is required to be acquired, under a qualifying arrangement, the arrangements within paragraph (2B)(b) that may be specified in or determined under the order include arrangements— (a) requiring the determination of the person to whom the certificate is to be issued to be made by reference to financial bids made in respect of the certificate or in respect of both the certificate and the electricity to which it relates; and (b) requiring that person to make a payment, in accordance with his bid, to such person as may be specified in or determined under the order. (2D) In the case only of a certificate relating to electricity that has been acquired, or is required to be acquired, under a qualifying arrangement, provision falling within paragraph (2B)(b) may require the relevant person— (a) to make and implement the arrangements that are specified in or determined under the order; and (b) to comply with directions given to him by the Authority for that purpose. (2E) A person who receives a payment in accordance with provision made by virtue of paragraph (2C)(b) shall apply the money received in such manner as the Department may direct. (2F) A direction under paragraph (2E) may require that the money received or part of that money be paid to the Department. (2G) Part VI shall apply in relation to a requirement imposed by virtue of paragraph (2D) or (2E) on a person who is not an electricity licence holder as if he were an electricity licence holder.

• (3) After paragraph (3) insert—

(4) An order under Article 52 may confer on the Authority functions in Northern Ireland in relation to the issue of Great Britain certificates. (5) In this Article— “Great Britain certificates” means certificates that are or may be issued by the Gas and Electricity Markets Authority in accordance with provision included, by virtue of section 32B of the Electricity Act 1989, in an order under section 32 of that Act; “qualifying arrangement” means an arrangement made pursuant to an order under Article 35 of the Electricity Order (or such an arrangement as modified or replaced by virtue of an order under Article 57 of this Order); “relevant person” means, in relation to electricity that is acquired, or is required to be acquired, under a qualifying arrangement, the person who acquired it, or who is required to acquire it.

• (4) The requirements of Article 52(6) of that Order (consultation before making an order) may be satisfied in the case of an order containing provision made by virtue of this section by consultation that took place wholly or partly before the commencement of this section.

• (5) This section extends to Northern Ireland only.

GEMA’s power to act on behalf of Northern Ireland regulator

121

• (1) GEMA and the Northern Ireland Authority for Utility Regulation (“the Northern Ireland Authority”) shall be entitled—

• (a) to enter into arrangements for GEMA to act on behalf of the Northern Ireland Authority for, or in connection with, the carrying out of the 2003 renewables obligations functions; and

• (b) to give effect to those arrangements.

• (2) In this section “the 2003 renewables obligations functions” means the functions conferred on the Northern Ireland Authority under or for the purposes of the Northern Ireland provisions.

• (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.

Consultation in relation to Northern Ireland renewables orders

122

• (1) This section applies where the Department of Enterprise, Trade and Investment in Northern Ireland amends the provisions of Part 7 of the 2003 Order (renewables obligations for Northern Ireland suppliers) by way of an amending order to take account of amendments of the 1989 Act made by this Chapter.

• (2) In the case of a renewables order containing provision made by virtue of the amending order, the requirements of Article 52(6) of the 2003 Order (consultation before making a renewables order) may be satisfied by consultation that took place wholly or partly before the amending order came into force (including consultation taking place before the commencement of this section).

• (3) In this section—

• “amending order” means an order under Article 56 of the 2003 Order;

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

• “renewables order” means an order under Article 52 of the 2003 Order.

• (4) This section extends to Northern Ireland only.

Modification of conditions of Northern Ireland electricity licences

123

• (1) In Part 7 of the Energy (Northern Ireland) Order 2003 (renewable energy sources), after Article 58 insert—

(58A) (1) Where the Department or the Authority considers it necessary or expedient to do so in connection with— (a) amendments of this Order made by section 120 of the Energy Act 2004, or (b) provision made by an order under Article 56 to take account of amendments of the Electricity Act 1989 made by Chapter 4 of Part 2 of that Act of 2004, it may modify the conditions of an electricity licence. (2) The power to make modifications under this Article includes power to make incidental, consequential or transitional modifications. (3) Before making a modification of a licence condition under this Article the Department shall consult the Authority and the licence holder. (4) Before making a modification of a licence condition under this Article the Authority shall— (a) consult the licence holder; and (b) obtain the consent of the Department to the modification. (5) Paragraphs (3) and (4)(a) may be satisfied by consultation— (a) that, in the case of a modification within paragraph (1)(b), took place wholly or partly before the order in question comes into force; and (b) that, in any case, took place wholly or partly before the commencement of this Article. (6) Where the Department or the Authority makes any modifications under this Article it shall publish those modifications in such manner as it considers appropriate. (7) The power conferred by virtue of paragraph (1)(a) may not be exercised after the end of the period of two years beginning with the commencement of this Article. (8) The power conferred by virtue of paragraph (1)(b) may not be exercised in relation to an order under Article 56 after the end of the period of two years beginning with the day on which the order comes into force.

• (2) This section extends to Northern Ireland only.

Chapter 5 — Renewable transport fuel obligations

Imposition of renewable transport fuel obligations

124

• (1) The Secretary of State may by order impose on each transport fuel supplier of a specified description the obligation mentioned in subsection (2) (a “renewable transport fuel obligation”).

• (2) That obligation is an obligation, for each specified period, for the supplier to produce to the Administrator, by the specified date, evidence which—

• (a) is of the specified kind and in the specified form; and

• (b) shows that during the specified period the specified amount of renewable transport fuel was supplied at or for delivery to places in the United Kingdom.

• (3) An order under subsection (1) is referred to in this Chapter as an “RTF order”.

• (4) Before making an RTF order the Secretary of State must consult such persons appearing to him to represent persons whose interests will be affected by the order, and such other persons, as he considers appropriate.

• (5) The power to make an RTF order is subject to the affirmative resolution procedure.

The Administrator

125

• (1) For the purposes of provision made by or under this Chapter, an RTF order may—

• (a) establish a body corporate, and

• (b) appoint that body as the Administrator.

• (2) An RTF order may—

• (a) make provision for the appointment of members of the body;

• (b) make provision in relation to the staffing of the body;

• (c) make provision in relation to the expenditure of the body;

• (d) make provision regulating the procedure of the body;

• (e) make any other provision that the Secretary of State considers appropriate for purposes connected with the establishment and maintenance of the body.

• (3) The provision that may be made by an RTF order by virtue of this section includes, in particular, provision conferring discretions on—

• (a) the Secretary of State;

• (b) the body itself; or

• (c) members or staff of the body.

Determinations of amounts of transport fuel

126

• (1) An RTF order may make provision about how amounts of transport fuel are to be counted or determined for the purposes of provision made by or under this Chapter.

• (2) The provision that may be made by virtue of this section includes, in particular—

• (a) provision for amounts of renewable transport fuel to count towards discharging a renewable transport fuel obligation for a period only if the fuel is of a specified description;

• (b) provision for amounts of renewable transport fuel of a specified description to count towards discharging such an obligation only up to a specified amount;

• (c) provision for such an obligation not to be treated as discharged unless a specified minimum amount of renewable transport fuel of a specified description has been counted towards its discharge;

• (d) provision for only such proportion of any renewable transport fuel of a specified description as is attributable to a specified substance, source of energy, method, process or other matter to count towards discharging such an obligation;

• (e) provision as to how that proportion is to be determined;

• (f) provision for an amount of renewable transport fuel of a specified description to count towards discharging such an obligation only if, or to the extent that, specified conditions are satisfied in relation to its supply, the person by or to whom it was supplied or the place at or for delivery to which it was supplied;

• (g) provision for evidence produced by a supplier in relation to any fuel not to count for the purposes of his renewable transport fuel obligation for a period if evidence in relation to the same fuel has previously been produced (whether by him or by another supplier);

• (h) provision for evidence produced by a supplier in relation to any fuel not to count for those purposes if, after the supply to which the evidence relates, the fuel is supplied by any person at or for delivery to a place outside the United Kingdom or a specified part of the United Kingdom;

• (i) provision about the measurement of amounts of different descriptions of transport fuel;

• (j) provision for units of transport fuel of a specified description to count for more or less than the same units of transport fuel of other descriptions;

• (k) provision about how measurements in different units of different descriptions of transport fuel are to be aggregated;

• (l) provision for the application of presumptions where specified matters are shown.

• (3) The provision that may be made by virtue of this section also includes, in particular, provision which—

• (a) is made having regard to one or more of the effects mentioned in subsection (4) (whether in the United Kingdom or elsewhere); or

• (b) requires regard to be had to one or more such effects.

• (4) Those effects are the effects of the production, supply or use of fuel of a particular description on—

• (a) carbon emissions;

• (b) agriculture;

• (c) other economic activities;

• (d) sustainable development; or

• (e) the environment generally.

• (5) If an RTF order makes provision for the counting or determination of amounts of transport fuel for the purposes of provision made by or under this Chapter by reference to any document, it may provide for references to the document to have effect as references to it as revised or re-issued from time to time.

• (6) The Secretary of State may give written directions to the Administrator about the exercise of any of the Administrator's functions in connection with the counting or determination of amounts of transport fuel for the purposes of provision made by or under this Chapter.

• (7) The power to give directions under subsection (6) includes power to vary or revoke the directions.

• (8) The Administrator must comply with any directions given under that subsection.

Renewable transport fuel certificates

127

• (1) An RTF order may make provision for the Administrator to issue certificates to transport fuel suppliers (“RTF certificates”).

• (2) An RTF certificate is to certify—

• (a) that the supplier to whom it is issued has supplied the amount of renewable transport fuel stated in the certificate;

• (b) that that amount of such fuel was supplied by him during the period stated in the certificate;

• (c) that that amount of such fuel was supplied by him during that period at or for delivery to a place in the United Kingdom or in the part of the United Kingdom stated in the certificate; and

• (d) the other specified facts.

• (3) Such a certificate may be issued to a supplier only if—

• (a) he applies for it in the specified manner;

• (b) his application includes evidence of the specified kind and in the specified form; and

• (c) the other specified conditions are satisfied.

• (4) An RTF order may authorise transfers of RTF certificates (whether for a consideration or otherwise) between persons of specified descriptions.

• (5) Such an order may also provide that such a transfer is not to be effective unless—

• (a) the specified details of it have been notified to the Administrator in the specified manner and within the specified time; and

• (b) the other specified requirements have been complied with.

• (6) If a supplier produces an RTF certificate to the Administrator, it is to count for the purposes of section 124(2) as sufficient evidence of the facts certified.

• (7) An RTF order may provide that, in specified circumstances, evidence produced by virtue of subsection (6) may count to the specified extent towards the discharge of a renewable transport fuel obligation for a period even if it is produced after the time by which evidence had to be produced for the purposes of that obligation.

• (8) Such an order may also provide that, in specified circumstances, evidence produced by virtue of subsection (6) may count to the specified extent towards the discharge of a renewable transport fuel obligation for a period that is later than the period stated in the certificate in question in accordance with subsection (2)(b).

Discharge of obligation by payment

128

• (1) An RTF order may provide that a person who does not wholly discharge his renewable transport fuel obligation for a period by the production of evidence must pay the Administrator the specified sum within the specified period.

• (2) The provision that may be made by virtue of subsection (1) includes, in particular, provision—

• (a) for the specified sum to increase, in cases where that sum is not paid within a specified period, at the specified rate until it is paid or until the occurrence of a specified event;

• (b) for specified amounts to be adjusted from time to time for inflation in the specified manner;

• (c) for the repayment of sums in cases where provision made by virtue of section 127(7) applies in relation to a person;

• (d) prohibiting the Administrator from taking steps to recover the specified sum or a part of that sum if specified conditions are satisfied.

• (3) Provision within subsection (2)(b) may refer, in particular, to a specified index or to other data, including any index or data as modified from time to time after the coming into force of the order.

• (4) An RTF order may provide that, in a case in which the amount of payments by virtue of subsection (1) which the Administrator has received by the specified time in respect of renewable transport fuel obligations for any period falls short of the amount due in respect of that period, the persons who—

• (a) were subject to renewable transport fuel obligations for that period, and

• (b) are of a specified description,

must, within the specified period and in the specified circumstances, each make a payment (or further payment) to the Administrator of an amount calculated in the specified manner.

• (5) The provision that may be made by virtue of subsection (4) includes, in particular, provision for the making of adjustments and repayments after a requirement to make payments has already arisen.

• (6) Where the Administrator is the Secretary of State—

• (a) sums received by the Administrator by virtue of this section must be paid into the Consolidated Fund, and

• (b) an RTF order may make provision for sums to be paid by the Administrator to transport fuel suppliers, or to transport fuel suppliers of a specified description, in accordance with the specified system of allocation.

• (7) Such an order must contain provision ensuring that the total of the sums so paid by the Administrator does not at any time exceed the total of the sums so received by the Administrator up to that time.

• (8) Where the Administrator is a person other than the Secretary of State, an RTF order may—