Energy Act 2004

Decommissioning programmes

105Requirement to prepare decommissioning programmes

(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.

(2)The Secretary of State may by notice require that person to submit to him a programme for decommissioning the relevant object (a “decommissioning programme”).

(3)The Secretary of State may require a person to submit a decommissioning programme in respect of proposals made by that person only if the Secretary of State is satisfied that at least one of the statutory consents required for enabling that person to give 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, wholly or 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 Secretary of State 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)A notice under this section may require the recipient of the notice to submit any of the following with the decommissioning programme—

(a)such information and documents relating to the place where the relevant object is or is to be situated as may be specified in the notice;

(b)such specifications relating to the relevant object as may be specified in the notice;

(c)such information and documents relating to the financial affairs of the recipient as may be specified in the notice; and

(d)details of the security (if any) that the recipient proposes to provide in relation to the carrying out of the decommissioning programme and for his compliance with any conditions of its approval.

(10)In this Chapter—

• “relevant object” means the whole or any part of—

  (a)

  a renewable energy installation; or

  (b)

  an electric line that is or has been a related line;

• “waters regulated under this Chapter” means—

  (a)

  waters in or adjacent to Great Britain which are between the mean low water mark and the seaward limits of the territorial sea; and

  (b)

  waters 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.

106Approval of decommissioning programmes

(1)The Secretary of State 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, wholly or 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 Secretary of State 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 Secretary of State; and

(b)provides that security at such time, and in accordance with such requirements, as may be specified by the Secretary of State.

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

(6)The power of the Secretary of State 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 Secretary of State—

(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 Secretary of State must act without unreasonable delay in reaching a decision as to whether to approve or reject a programme.

107Failure to submit or rejection of decommissioning programmes

(1)Where—

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

(b)the Secretary of State rejects a programme submitted to him,

the Secretary of State 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, wholly or 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 Secretary of State 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 Secretary of State’s programme were a programme submitted to him by the person informed and had been approved by the Secretary of State subject to the conditions specified by the Secretary of State.

(4)Where the Secretary of State 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 Secretary of State; and

(b)to provide it at such time, and in accordance with such requirements, as may be specified by the Secretary of State;

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

(5)The Secretary of State may by notice require the recipient of a notice under section 105 to provide him with such information and documents as he may require for the purpose of exercising his powers under subsections (1) and (4).

(6)Information and documents required to be provided under subsection (5) must be provided within such period as may be specified in the notice under that subsection.

(7)A person who fails, without reasonable excuse, to comply with a notice under subsection (5) is guilty of an offence.

(8)The power of the Secretary of State 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 Secretary of State 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 Secretary of State by virtue of subsection (9) must also pay interest on that sum for the period which—

(a)begins with the day on which the Secretary of State 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 Secretary of State to be comparable with commercial rates.

108Reviews and revisions of decommissioning programmes

(1)The Secretary of State 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 Secretary of State, or

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

may be made by the Secretary of State, 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 Secretary of State, 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 Secretary of State 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.

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

(a)if the proposal is the Secretary of State'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 Secretary of State.

(5)An opportunity of making representations to the Secretary of State 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 Secretary of State, 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, wholly or 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 Secretary of State 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 Secretary of State 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 Secretary of State by the person or persons so specified.

(10)Where the Secretary of State 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 Secretary of State 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 Secretary of State; and

(b)to provide it at such time, and in accordance with such requirements, as may be specified by the Secretary of State;

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