The Electricity (Applications for Licences, Modifications of an Area and Extensions and Restrictions of Licences) Regulations 2009

Made: 3rd December 2009

Coming into force: 28th December 2009

The Gas and Electricity Markets Authority [^f00001], in exercise of the powers conferred by sections 6A (2), (3) and (6) and 60 of the Electricity Act 1989[^f00002] makes the following Regulations:

Citation, commencement and revocation

1

• (1) These Regulations may be cited as the Electricity (Applications for Licences, Modifications of an Area and Extensions and Restrictions of Licences) Regulations 2009 and come into force on 28th December 2009.

• (2) The Electricity (Applications for Licences, Modifications of an Area and Extensions and Restrictions of Licences) Regulations 2008[^f00003] (“the 2008 Regulations”) are revoked.

Transitional provisions

2

• (1) Where an application has been made under the 2008 Regulations but at the date upon which these Regulations come into force the application has neither been granted nor refused, the application shall be treated thereafter as having been made under these Regulations.

• (2) An application to which paragraph (1) applies which conformed to the requirements of the 2008 Regulations and was accompanied by the fee prescribed under those regulations shall not be treated as defective by virtue only of failure in any respect to comply with these Regulations.

• (3) Where, in relation to an application to which paragraph (1) applies, the applicant, before the coming into force of these Regulations, published a notice of the application in accordance with the 2008 Regulations, the requirements of these Regulations as regards publication shall be taken to have been met.

Interpretation

3

• (1) In these Regulations —

• “the 2000 Act” means the Utilities Act 2000[^f00004];

• “the 2004 Act” means the Energy Act 2004[^f00005];

• “the Act” means the Electricity Act 1989;

• “application” means an application for a licence or for a modification of a licence under the Act and references to an application in respect of a licence shall be construed accordingly;

• “the Authority” means the Gas and Electricity Markets Authority established by section 1 of the 2000 Act;

• “distribution licence” means a licence granted or to be granted under section 6(1)(c) of the Act[^f00006];

• “domestic premises” means premises used wholly or mainly for domestic purposes;

• “extension”, in relation to a supply licence, means an extension of the licence under section 6(4) of the Act and, in relation to a distribution licence, means an extension of the licence under section 6(6) of the Act;

• “generation licence” means a licence granted or to be granted under section 6(1)(a) of the Act;

• “interconnector licence” means a licence granted or to be granted under section 6(1)(e) of the Act[^f00007];

• “modification of an area” in relation to a transmission licence, means a modification of an area of the licence under section 6(6B) of the Act[^f00008];

• “principal undertaking” means an undertaking within the meaning of section 1161 of the Companies Act 2006[^f00009];

• “related person” in relation to an applicant who is principal undertaking, means a parent or subsidiary undertaking of the principal undertaking or a subsidiary undertaking of the parent undertaking of the principal undertaking, in each case within the meaning of section 1162 of the Companies Act 2006; and in relation to any applicant (including such an undertaking), means a connected person of the applicant within the meaning of section 286 of the Taxation of Chargeable Gains Act 1992;

• “restriction”, in relation to a supply licence, means a restriction of the licence under section 6(4) of the Act and, in relation to a distribution licence, means a restriction of the licence under section 6(6) of the Act, and, in relation to a transmission licence, means a modification of an area of the licence under section 6(6B) of the Act by a restriction of the area of the licence;

• “shares” in relation to an applicant with share capital, means allotted shares; in relation to an applicant with capital but no share capital, means rights to share in the capital of the applicant; and in relation to an applicant without share capital, means interests (i) conferring any right to share in the profits or liability to contribute to the losses of the applicant; and (ii) giving rise to an obligation to contribute to the debts or expenses of the applicant in the event of winding up;

• “signed” includes signed in a manner which would for the purposes of section 7 of the Electronic Communications Act 2000[^f00010] be an electronic signature;

• “supply licence” means a licence granted or to be granted under section 6(1)(d) of the Act;

• “transmission licence” means a licence granted or to be granted under section 6(1)(b) of the Act[^f00011]; and

• “ultimate holding company” means a holding company (within the meaning of sections 1159 and 1160 of the Companies Act 2006[^f00012]) of the licensee which is not itself a subsidiary of another company, which is in the position to control, or exercise significant influence over, a policy of the licensee by virtue of rights under contractual arrangements or rights of ownership which are held by the company or of which the company is a beneficiary.

• (2) In these Regulations, unless the context otherwise requires, a reference to a standard condition is a reference, —

• (a) in relation to a distribution licence, a generation licence, a supply licence or a transmission licence, to a standard condition which is determined under section 33(1) of the 2000 Act[^f00013] or section 137(1) of the 2004 Act; or

• (b) in relation to an interconnector licence, to a standard condition which is determined under section 146(1) of the 2004 Act,

subject to any modifications of the standard conditions made under Part I of the Act, the 2000 Act, or the 2004 Act after the determination under those sections.

• (3) In these Regulations—

• (a) any reference to a numbered Schedule is a reference to the Schedule bearing that number in these Regulations; and

• (b) any reference to a numbered paragraph is a reference to the paragraph bearing that number in the regulation in which the reference occurs.

• (4) These Regulations do not apply to applications in respect of an “offshore transmission licence” as defined by section 6C(5) of the Act.

Manner of Application

4

An application shall be—

• (a) made in writing, addressed to the Authority and delivered or sent by prepaid post to the Authority at its principal address or sent by electronic mail to an address specified by the Authority or made by electronic means via the point of single contact website at an address specified by the Authority; and

• (b) signed and dated by or on behalf of the applicant, stating, where signed on behalf of the applicant, the capacity of the signatory.

Form of application

5

An application shall be made in the form specified in Schedule 1 or a form to the like effect, and shall contain the information there specified.

Additional information and documents to accompany application

6

• (1) Subject to paragraphs (2), (3) and (4)—

• (a) an application in respect of a transmission licence shall be accompanied by the information and documents specified in Part 1 of Schedule 2;

• (b) an application in respect of a distribution licence shall be accompanied by the information and documents specified in Part 2 of Schedule 2;

• (c) an application in respect of a supply licence shall be accompanied by the information and documents specified in Part 3 of Schedule 2; and

• (d) an application in respect of an interconnector licence shall be accompanied by the information and documents specified in Part 4 of Schedule 2.

• (2) The obligation imposed by paragraph (1) shall, to the extent that information and documents are specified in Schedule 2 by reference to, or in relation to, a standard condition, apply—

• (a) subject to paragraph (3), in the case of an application for a licence, as if the standard condition in question were to be included and have effect in any licence granted as a result of the application; and

• (b) in the case of an application for a modification of an area, or for an extension or restriction of a licence, in relation to such of the standard conditions in question as have been included and have effect in that licence.

• (3) Where a modification to any standard condition is requested in accordance with paragraph 4 of Schedule 1, the obligation imposed by paragraph (2)(a) shall be modified accordingly.

• (4) The obligation imposed by paragraph (1)(a), (b) and (c) in relation to an application for an extension or restriction of a licence shall only apply to the extent that the information and documents differ from or add to the most recent information and documents provided in relation to an application made in accordance with these Regulations or in pursuance of a condition of the applicant’s licence.

Application fees

7

• (1) Subject to paragraph (2), the prescribed fee in relation to an application of the description specified in the first column of the Table in Schedule 3 shall be the corresponding fee specified in the second column of that Table.

• (2) Where more than one fee would, but for this paragraph, be payable in respect of a particular application, the prescribed fee shall be the higher or highest such fee.

Publication of notice of application

8

• (1) The period prescribed for the purpose of section 6A(3) of the Act[^f00014] (notice of applications) is ten working days (“the prescribed period”).

• (2) The prescribed manner of publication for that purpose shall be either by—

• (a) requesting the Authority to place the notice on the website address of the Authority (at “www.ofgem.gov.uk” or such other website address as may be notified to the applicant by the Authority in writing); or

• (b) publishing the notice on the website address of the applicant and requesting the Authority to place a link to the applicant’s website address on the website address of the Authority (at “www.ofgem.gov.uk” or such other website address as may be notified to the applicant by the Authority in writing).

• (3) Where an application is for the restriction of a licence, the applicant shall also ensure that notice of application is published within the prescribed period in such newspapers as are calculated to ensure that the notice is circulated throughout the area to which the proposed restriction relates.

SCHEDULE 1

SCHEDULE 2

SCHEDULE 3 — APPLICATION FEES

Signed

The seal of the Gas and Electricity Markets Authority here affixed is authenticated by the signature of

Sarah Harrison — A member of the Authority — For and by the Gas and Electricity Markets Authority — 3rd December 2009

Explanatory note

(This note is not part of the Regulations)

EXPLANATORY NOTE

These Regulations set out the information and other documents that are required to be submitted with applications for generation, transmission, distribution, supply and interconnector licences (and for modifications of an area of transmission licences and extensions, or restrictions of supply and distribution licences) under the Electricity Act 1989, as amended by the Utilities Act 2000 and the Energy Act 2004. They specify the form and manner of such applications. These Regulations also set out the manner in which notices of applications are to be published.

These Regulations come into force on 28th December 2009.

Regulation 1 provides for the citation, commencement and revokes the previous Regulations.

Regulation 2 makes transitional provisions for applications made but not determined before these Regulations come into force.

Regulation 3 provides for general interpretation.

Regulation 4 deals with the manner of applications.

Regulation 5 concerns the form of applications, and incorporates Schedule 1 that specifies their form, and the information and documents to accompany them.

Regulation 6 specifies the additional information and documents to accompany applications. It incorporates Schedule 2, which covers, respectively, applications for:

—transmission licences, at Part 1;

—distribution licences, at Part 2;

—supply licences, at Part 3; and

—interconnector licences at Part 4.

Regulation 7 incorporates Schedule 3, which specifies the fees payable in respect of applications.

Regulation 8 provides for the notice period and publication requirements for applications. It requires applicants to request that the notice of the application is published on the Ofgem website or to publish it on their own website. If the application is for a restriction (including a modification of an area of a transmission licence to restrict that area) the applicant must also publish the notice in local newspapers.

Footnotes

[^f00001]: The Gas and Electricity Markets Authority was established under section 1(1) of the Utilities Act 2000 (c.27)

[^f00002]: 1989 c.29: with effect from 1 October 2001, section 30 of the Utilities Act 2000 introduced section 6A into the Electricity Act 1989

[^f00003]: SI. 2008/2376

[^f00004]: 2000 c.27

[^f00005]: 2004 c.20

[^f00006]: section 6 was substituted by section 30 of the Utility Act 2000

[^f00007]: section 6(1)(e) was inserted by section 145 of the Energy Act 2004

[^f00008]: section 6(6B) was inserted by section 136 of the Energy Act 2004

[^f00009]: 2006 c.46

[^f00010]: 2000 c.7

[^f00011]: section 6(1)(b) was amended by section 136 of the Energy Act 2004

[^f00012]: 2006 c.46

[^f00013]: section 33(1) was amended by section 143(1) of the Energy Act 2004

[^f00014]: section 6A was inserted by section 30 of the Utilities Act 2000