UK Law and Practice Contributed by: Tom Sprange KC, Andrea Stauber, Martina Antosova and Lucy Pearson, King & Spalding International LLP
3.4 Eminent Domain, Condemnation and Expropriation Rights to Construct and Operate Generation Facilities There are no general eminent domain rights or simi- lar for electricity generation facilities in the UK. The Secretary of State may, however, grant any licence holder the power to acquire land compulsorily under Schedule 3 to the Electricity Act 1989. In England, compulsory purchase in practice falls under the Planning Act 2008 DCO procedure. Standard Licence Condition 14 (3) restricts exercise of compulsory purchase powers to generating stations of 50 MW or more. In Wales, compulsory purchase procedures apply to onshore wind (of any capacity) and other (non-wind) onshore generating stations of between 50 and 350 MW capacity (apart from pumped storage, to which the Planning Act 2008 DCO regime applies). 3.5 Decommissioning a Generation Facility There are specific requirements for decommissioning nuclear power stations. There are two distinct decom- missioning processes under the Energy Act 2008: • process for decommissioning existing nuclear power plants that were commissioned before 2008; and • process for decommissioning new nuclear power plants that were commissioned after 2008. Most of the UK’s existing fleet of nuclear power sta- tions were built in the 1960s and 1970s and are nearing the end of their operational life. At present, 11 power plants in the UK are being decommissioned, and most of the UK’s existing nuclear power stations will need to be decommissioned before 2030. Hunterston B power plant is expected to enter decommissioning in 2027. The body responsible for decommissioning nuclear power plants is the Nuclear Decommissioning Author- ity (NDA). The NDA is sponsored by DESNZ. Energy companies seeking to construct any new nuclear power stations must ensure that they have sufficient funds to cover the full costs of:
(a) the requirements of the Grid Code (so far as applicable); (b) every applicable Distribution Code; (c) the Fuel Security Code; (d) the programme implementation scheme desig- nated by the Secretary of State; (e) the Balancing and Settlement Code (BSC) and New Electricity Trading Arrangements (NETA) Implementation; (f) the Connection and Use of System Code (CUSC); (g) the BETTA run-off arrangements scheme; (h) any scheme imposed by the Secretary of State in relation to the preparation and storage of regulatory accounts; and (i) any scheme made by the Secretary of State under Schedule 7 to the Utilities Act 2000. • The licensee must make all reasonable measures to secure and implement the provisions of the Utili- ties Act 2000. • The licensee must be party to: (a) the BSC Framework Agreement; and (b) the CUSC Framework Agreement. • From time to time, upon request by the SO, the licensee must offer terms for the provision by the licensee of ancillary services from any operating generation set of the licensee. • The licensee must, at any time and upon request of GEMA, provide a report containing the details of: (a) prices offered for the provision of ancillary services; and (b) an explanation of the factors justifying the prices offered. • The licensee must furnish GEMA with information it reasonably requires for the purpose of perform- ing the functions conferred on it by or under the Electricity Act 1989. • The licensee must not obtain an excessive benefit from electricity generation in relation to a Transmis- sion Constraint Period. There are supplementary standard conditions that apply in Scotland, under Section C of the SLCs for electricity generation. The standard conditions may be modified by Ofgem when granting a licence (or subsequently) and, in some cases, can be modified by the Secretary of State.
375 CHAMBERS.COM
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