Section 105A Section 105 notices: supplementalF1

(1)

The F2appropriate Minister may not give a notice under section 105(2)(b) to a body corporate associated with a person (“the responsible person”) within section 105(1)(a), (b) or (c) unless the appropriate Minister—

(a)

has given a notice to the responsible person under section 105(2)(a), and

(b)

is not satisfied that adequate arrangements (including financial arrangements) have been made by the responsible person to ensure that a satisfactory decommissioning programme will be carried out.

(2)

Subsection (1) does not apply if—

(a)

there has been a failure to comply with a notice under section 105(2), or

(b)

the appropriate Minister has rejected a programme submitted in compliance with such a notice.

(3)

For the purposes of this section and section 105, one body corporate is associated with another if one of them controls the other or a third body corporate controls both of them, and subsections (4) to (8) set out the circumstances in which one body corporate (“A”) controls another (“B”).

(4)

Where B is a company, A controls B if A possesses or is entitled to acquire—

(a)

one half or more of the issued share capital of B,

(b)

such rights as would entitle A to exercise one half or more of the votes exercisable in general meetings of B,

(c)

such part of the issued share capital of B as would entitle A to one half or more of the amount distributed if the whole of the income of B were in fact distributed among the shareholders, or

(d)

such rights as would, in the event of the winding up of B or in any other circumstances, entitle it to receive one half or more of the assets of B which would then be available for distribution among the shareholders.

(5)

Where B is a limited liability partnership, A controls B if A—

(a)

holds a majority of the voting rights in B,

(b)

is a member of B and has a right to appoint or remove a majority of other members, or

(c)

is a member of B and controls alone, or pursuant to an agreement with other members, a majority of the voting rights in B.

(6)

In subsection (5)(a) and (c) the references to “voting rights” are to the rights conferred on members in respect of their interest in a limited liability partnership to vote on those matters which are to be decided on by a vote of the members of the limited liability partnership.

(7)

In any case, A controls B if A has the power, directly or indirectly, to secure that the affairs of B are conducted in accordance with A's wishes.

(8)

In determining whether, by virtue of subsections (4) to (7), A controls B, A is to be taken to possess—

(a)

any rights and powers possessed by a person as nominee for it, and

(b)

any rights and powers possessed by a body corporate which it controls (including rights and powers which such a body corporate would be taken to possess by virtue of this paragraph).

Annotations

Textual amendments

F1: S. 105A inserted (6.4.2009) by Energy Act 2008 (c. 32), ss. 69(4), 110(2); S.I. 2009/45, art. 4(b)(ii)
F2: Words in Pt. 2 Ch. 3 substituted (1.4.2017) by Scotland Act 2016 (c. 11), ss. 62(10)(11), 72(4)(e); S.I. 2017/300, reg. 3 (with regs. 4-6)