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PART I
PRELIMINARY
Citation and commencement
1
This Order may be cited as the Scarweather Sands Offshore Wind Farm Order 2004 and comes into force on 19 November 2004.
Interpretation
2
1
In this Order —
“the 1961 Act” (“ Deddf 1961 ”) means the Land Compensation Act 1961 ;
“the 1965 Act” (“ Deddf 1965 ”) means the Compulsory Purchase Act 1965 ;
“the Applications Rules” (“ y Rheolau Ceisiadau ”) means the Transport and Works (Applications and Objections Procedure) (England and Wales) Rules 2000 ; and references in this Order to numbered rules are to the rules bearing those numbers in the Applications Rules;
“authorised works” (“ y gweithfeydd awdurdodedig ”) means the scheduled works, the works and facilities described in article 3(4) and, except in articles 8 to 17, the existing mast;
“the book of reference” (“ y cyfeirlyfr ”) means the book of reference certified by the National Assembly as the book of reference for the purposes of this Order;
“carriageway” (“ cerbytffordd ”), “footpath” (“ llwybr troed ”), “highway” (“ priffordd ”) and “highway authority” (“ awdurdod priffyrdd ”) have the same meaning as in the Highways Act 1980 ;
“electric line” (“ llinell drydan ”) has the meaning given by section 64(1) of the Electricity Act 1989 ;
“enactment” (“ deddfiad ”) includes any order, byelaw, rule, regulation, scheme or other instrument having effect by virtue of an enactment;
“the existing electricity pylon” (“ y peilon trydan presennol ”) means the electricity pylon at reference point 278906E, 185778N and includes any apparatus which is ancillary to that pylon;
“the existing mast” (“ y mast presennol ”) means the existing anemometry mast on the bed of Swansea Bay adjoining the coast at Port Talbot in the County Borough of Neath Port Talbot, situated at reference point 271709E, 176723N;
“the inter-turbine cables” (“ y ceblau rhyngdyrbinau ”) means the cables described in paragraph 1(b) of Schedule 1 to this Order;
“the land plans” (“ planiau'r tir ”) means the plans certified by the National Assembly as the land plans for the purposes of this Order; and references to land shown on those plans are references to land so shown in pursuance of rule 12(5);
“the level of high water” (“ lefel y dŵr uchel ”) means the level of mean high water springs;
“the limits of deviation” (“ terfynau'r gwyro ”), in relation to a work, means the limits of deviation related to that work which are shown on the works plans;
“maintain” (“ cynnal a chadw ”) includes inspect, maintain, repair, adjust, alter, remove, reconstruct and replace; and “maintenance” shall be construed accordingly;
“the marine feeder cables” (“ y ceblau cludo i'r môr ”) means the cables comprised in Work No. 2;
“owner” (“ perchennog ”), in relation to land, means a person, other than a mortgagee not in possession, who is for the time being entitled to dispose of the fee simple of land (whether in possession or reversion) and includes a person holding, or entitled to the rents and profits of, the land under a lease or tenancy having an unexpired term exceeding 3 years;
“reference point” (“ cyfeirbwynt ”) means the Ordnance Survey National Grid reference point;
“the scheduled works” (“ y gweithfeydd a restrwyd ”) means the works specified in Schedule 1 to this Order or any part of them;
“the sections” (“ y trawsluniau ”) means the sections certified by the National Assembly as the sections for the purposes of this Order;
“street” (“ stryd ”) includes part of a street;
“street authority” (“ awdurdod stryd ”), in relation to a street, has the same meaning as in Part III of the Street Works Act;
“the Street Works Act” (“ y Ddeddf Gwaith Stryd ”) means the New Roads and Street Works Act 1991 ;
“tidal work” (“ gwaith llanw'r môr ”) means so much of any authorised work as is on, under or over tidal waters;
“the Tribunal” (“ y Tribiwnlys ”) means the Lands Tribunal;
“Trinity House” means the Corporation of Trinity House of Deptford Strond;
“the undertaker” (“ yr ymgymerwr ”) means Scarweather Sands Limited or any person to whom the powers conferred by this Order are transferred in an agreement pursuant to article 37;
“vessel” (“ cwch ”) means a ship, boat, raft or water craft of any description and includes non-displacement craft, seaplanes and any other thing constructed or adapted for floating on or being submersed in water (whether permanently or temporarily) and a hovercraft or other amphibious vehicle;
“the wind farm site” (“safle'r fferm wynt”) means an area shown on the works plans within the limits of deviation for the inter-turbine cables;
“wind turbine” (“ tyrbin gwynt ”) means a wind turbine generator described in paragraph 1(a) of Schedule 1 to this Order; and
“the works plans” (“ planiau'r gweithfeydd ”) means the plans certified by the National Assembly as the works plans for the purposes of this Order.
2
References in this Order to rights over land include references to rights to do, or to place and maintain, anything in or on land or in the air space over its surface.
3
All directions, distances, lengths and points stated in any description of works, powers or lands are to be construed as if the words “or thereabouts” were inserted after each such direction, distance, length and point.
4
Any reference in this Order to a work identified by the number of the work is to be construed as a reference to the work of that number authorised by this Order.
5
References in this Order to points identified by letters are to be construed as references to the points so lettered on the works plans.
PART II
WORKS
Principal powers
Power to construct and maintain works
3
1
The undertaker may construct and maintain the scheduled works.
2
The undertaker may retain and maintain the existing mast.
3
Subject to article 4, the scheduled works must be constructed and maintained in the lines or situations shown on the works plans and in accordance with the levels shown on the sections.
4
The undertaker may, within the limits of deviation for the scheduled works, carry out, provide and maintain such of the following works and facilities as may be necessary or expedient for the purposes of, in connection with, or in consequence of, the construction or maintenance of the scheduled works, namely —
a
temporary or permanent landing places, jetties, or moorings or other means of accommodating vessels in the construction or maintenance of the scheduled works;
b
buoys, beacons, fenders and other navigational warning or ship impact protection works;
c
works to alter the position of apparatus, including mains, sewers, drains and cables;
d
works to alter the course of, or otherwise interfere with, non-navigable rivers, streams or watercourses;
e
landscaping and other works to mitigate any adverse affects of the construction, maintenance or operation of the authorised works;
f
works for the benefit or protection of land affected by the authorised works;
g
one or more additional anemometry masts;
h
such other works and apparatus, plant and machinery of whatever nature as may be necessary or expedient.
Power to deviate
4
1
In constructing or maintaining any scheduled work, the undertaker may deviate —
a
laterally from the lines or situations shown on the works plans within the limits of deviation and, in particular, the inter-turbine cables may connect within the limits of deviation with any of the wind turbines; and
b
vertically from the levels shown on the sections in respect of —
i
the height of the towers of the wind turbines to any extent not exceeding 24 metres downwards (subject to paragraph (2));
ii
the depth of the foundations of the wind turbines in the sea bed to any extent upwards and to any extent not exceeding 20 metres downwards;
iii
the cables comprised in Works Nos. 1 and 2 to any extent not exceeding 1 metre upwards or downwards (subject to paragraph (3));
iv
Work No. 2A, to any extent not exceeding 1 metre upwards or downwards;
v
Work No. 3 to any extent not exceeding 2 metres upwards or downwards;
vi
any overhead electric line comprised in Work No. 4 to any extent not exceeding 10 metres upwards or 3 metres downwards;
vii
any underground electric line comprised in Work No. 4 to any extent not exceeding 5 metres upwards or 12 metres downwards; and
viii
Work No. 5 to any extent not exceeding 1 metre upwards or downwards.
2
There must be a minimum distance of 25 metres between the lowest point of the rotating blades of the wind turbines and the level of high water.
3
Subject to such variation as is agreed not to be material by the National Assembly, the cables comprised in Works Nos. 1 and 2 must be laid at a depth of not less than 1.5 metres below the level of the seabed.
Streets
Power to execute street works
5
1
The undertaker may, for the purposes of the authorised works, enter upon so much of any street specified in columns (1) and (2) of Schedule 2 to this Order as is within the limits of deviation and may —
a
place apparatus in that street;
b
maintain apparatus in that street or change the position of such apparatus;
c
improve the surface of Heol Caer Bont between points A and F shown on the works plan for the purpose of providing an access to construct and maintain the authorised works; and
d
execute any works required for, or incidental to, the authorised works or any works referred to in sub-paragraphs (a), (b) and (c) (including, in particular, breaking up or opening the street, or any sewer, drain or tunnel under it, or tunnelling or boring under the street).
2
In this article, “apparatus” has the same meaning as in Part III of the Street Works Act.
Temporary stopping up of streets
6
1
The undertaker may, during and for the purposes of the execution of the authorised works, temporarily stop up the streets specified in columns (1) and (2) of Schedule 2 to this Order to the extent specified by reference to the letters in column (3) to that Schedule and may for any reasonable time —
a
divert the traffic from the street; and
b
subject to paragraph (2), prevent all persons from passing along the street.
2
The undertaker must provide reasonable access at all times for pedestrians going to or from premises abutting on a street affected by the exercise of the powers conferred by this article if there would otherwise be no such access.
3
The undertaker must not exercise the powers of this article in relation to any street specified as mentioned in paragraph (1) without first consulting the street authority.
4
The provisions of the Street Works Act mentioned in paragraph (5) and any regulations made, or code of practice issued or approved, under those provisions apply (with the necessary modifications) in relation to the stopping up, alteration or diversion of a street by the undertaker under the powers conferred by this article where no street works are executed in that street as they would apply if the stopping up, alteration or diversion were occasioned by street works executed in that street by the undertaker.
5
The provisions of the Street Works Act referred to in paragraph (4) are —
a
section 54 (advance notice of certain works);
b
section 55 (notice of starting date of works);
c
section 59 (general duty of street authority to co-ordinate works);
d
section 60 (general duty of undertakers to co-operate);
e
section 69 (works likely to affect other apparatus in the street);
f
section 76 (liability for cost of temporary traffic regulation);
g
section 77 (liability for cost of use of alternative route); and
h
all such other provisions as apply for the purposes of the provisions mentioned above.
6
Any person who suffers loss by the suspension of a private right of way under this article is entitled to compensation to be determined, in case of dispute, under Part I of the 1961 Act.
Supplemental powers
Power to survey and investigate land
7
1
The undertaker may for the purposes of this Order —
a
survey or investigate any land which is both within the limits of deviation and is shown on the land plans and described in the book of reference;
b
without prejudice to the generality of sub-paragraph (a), make trial holes in such positions as the undertaker thinks fit on the land to investigate the nature of the surface layer and subsoil and remove soil samples;
c
place on, leave on and remove from the land apparatus for use in connection with the survey and investigation of land and making of trial holes; and
d
enter on the land for the purpose of exercising the powers conferred by sub-paragraphs (a) to (c).
2
No land may be entered, or equipment placed or left on or removed from the land under paragraph (1), unless at least 7 days notice has been served on every owner and occupier of the land.
3
Any person entering land under this article on behalf of the undertaker —
a
must, if so required, before or after entering the land produce written evidence of that person’s authority to do so; and
b
may use such vehicles and equipment as are necessary to carry out the survey or investigation or to make the trial holes.
4
No trial holes are to be made under this article in a carriageway or footway without the consent of the street authority, but such consent must not be unreasonably withheld.
5
The undertaker must pay compensation for any damage occasioned, by the exercise of the powers conferred by this article, to the owners and occupiers of the land; such compensation to be determined, in case of dispute, under Part I of the 1961 Act.
Protection of navigation and air traffic and control of noise
Tidal works not to be executed without approval of the Secretary of State
8
1
A tidal work must not be constructed or altered, except in accordance with plans and sections approved by the Secretary of State before the work is begun.
2
If a tidal work is constructed or altered in contravention of this article or any condition or restriction imposed under this article —
a
the Secretary of State may by notice in writing require the undertaker at its own expense to remove the tidal work or any part of it and restore the site to its former condition; and
b
if it appears to the Secretary of State urgently necessary so to do, the Secretary of State may remove the tidal work or part of it and restore the site to its former condition;
and any expenditure incurred by the Secretary of State in so doing will be recoverable from the undertaker.
Provision against danger to navigation
9
In case of injury to, or destruction or decay of, a tidal work or any part thereof, the undertaker must, as soon as reasonably practicable, notify Trinity House and lay down such buoys, exhibit such lights and take such other steps for preventing danger to navigation as Trinity House may from time to time direct.
Abatement of works abandoned or decayed
10
1
Where a tidal work is abandoned, or suffered to fall into decay, the Secretary of State may by notice in writing require the undertaker at its own expense either to repair and restore the work or any part of it, or to remove the work and restore the site of the work to its former condition, to such an extent and within such limits as the Secretary of State may specify in the notice.
2
Where a work consisting partly of a tidal work and partly of works on or over land above the level of high water is abandoned or suffered to fall into decay and that part of the work on or over land above the level of high water is in such condition as to interfere or to cause reasonable apprehension that it may interfere with the right of navigation or other public rights over the foreshore, the Secretary of State may include that part of the work, or any portion of it, in any notice under this article.
3
This article does not apply to any decommissioning of the authorised works in accordance with a decommissioning plan agreed with the Crown Estate Commissioners or approved by the National Assembly under any condition imposed in a licence granted under section 5 of the Food and Environment Protection Act 1985 .
Survey of tidal works
11
1
The Secretary of State may at any time, if the Secretary of State deems it expedient, order a survey and examination of a tidal work or of the site upon which it is proposed to construct the work; and any expenditure incurred by the Secretary of State in any such survey and examination will be recoverable from the undertaker.
2
Subject to paragraph (3), such surveys must not be ordered more frequently than once a year; and before ordering such a survey —
a
the Secretary of State must consult the undertaker in order to establish what relevant survey information is already available; and
b
give the undertaker an opportunity to carry out the survey itself.
3
Paragraph (2) does not apply in an emergency.
Permanent lights, navigational safety aids and colour
12
1
After the completion of the tidal works, the undertaker must exhibit every night from sunset to sunrise such lights, if any, and take such other steps for the prevention of danger to navigation as Trinity House may from time to time direct.
2
The undertaker must exhibit every night from sunset to sunrise lights for the prevention of danger to aircraft, of a shape, colour and character as directed by the Civil Aviation Authority.
3
Unless the National Assembly otherwise directs, the undertaker must ensure that so much of any wind turbine as is above the level up to which Trinity House direct colouring for navigational safety reasons, and all nacelles and blades, are painted light grey.
Lights on tidal works during construction
13
The undertaker must at or near a tidal work during the whole time of the construction, alteration, enlargement, replacement, relaying, reconstruction or extension of the work exhibit every night from sunset to sunrise such lights, if any, and take such other steps for the prevention of danger to navigation as Trinity House may from time to time direct.
Active safety management system
14
1
The wind turbines must be operated in accordance with an active safety management system for the purpose of minimising the risk of vessels colliding with the towers or rotating blades of the wind turbines and to facilitate search and rescue activities.
2
The details of the active safety management system must be approved by the Maritime and Coastguard Agency, but the system must include —
a
provision for each wind turbine to be marked by day and night with clearly visible identification systems;
b
provision for communication procedures between mariners in distress, the Maritime and Coastguard Agency and the central control room for the operation of the wind turbines when a vessel is in distress;
c
provision for the immediate shutting down of one or more of the wind turbines at the request of the Maritime and Coastguard Agency in a position which secures the maximum clearance between the lowest point of the blades and the water level; and
d
provision for testing the emergency procedures at times and in a manner reasonably required by the Maritime and Coastguard Agency.
Construction and operational noise
15
1
Unless otherwise approved in writing by the National Assembly, the undertaker must —
a
comply with British Standard 5228 (Noise and Vibration Control on Construction and Open Sites) Parts 1 and 2: 1997 and Part 4: 1992 in respect of all relevant activities carried out during the construction, maintenance or decommissioning of the authorised works; and
b
ensure that the maximum levels of noise to be generated by such activities does not exceed at the facade of any noise sensitive receptor —
i
between 23.00 hours and 07.00 hours: a level of 50 dB LAeq, 8 hour nor an LAFmax level of 60 dB; and
ii
between 07.00 hours and 23.00 hours: a level of 75 dB LAeq, 1 hour.
2
Unless otherwise approved in writing by the National Assembly, the undertaker must ensure that the rating level of noise emissions generated by the operation of the wind turbines does not exceed 35dB LA90, when measured in accordance with the guidance contained in “The Assessment and Rating of Noise from Wind Farms” (ETSU-R-1997), in free field conditions at a point 1.2 metres above ground level at any noise sensitive receptor, at wind speeds of up to 10 metres per second measured at a height of 10 metres above the level of high water within the wind farm site.
3
In this article —
“relevant activities” (“ gweithgareddau perthnasol ”) means any activities carried out in an area outside the jurisdiction of a local authority under Part III of the Control of Pollution Act 1974 ;
“noise sensitive receptor” (“ derbynnydd sy'n sensitif i sŵ n ”) means any existing habitable dwelling or any hospital, school or rest home.
Execution by Secretary of State of works in default
16
If, on the expiration of 30 days from the date when a notice under article 8(2)(a) or 10(1) is served upon the undertaker it has failed, without reasonable excuse, to comply with the requirements of the notice, the Secretary of State may execute the works specified in the notice; and any expenditure incurred by the Secretary of State in so doing will be recoverable from the undertaker.
Offences
17
If the undertaker, without reasonable excuse, fails to —
a
comply with a direction given under article 9, 12(1) or (2) or 13;
b
comply with the requirements of article 12(3) or 15;
c
give notification as required by article 9; or
d
operate the wind turbines in accordance with article 14,
it will be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.
PART III
ACQUISITION AND POSSESSION OF LAND
Powers of acquisition
Power to acquire land
18
The undertaker may acquire compulsorily so much of the land shown numbered 4 on the land plans and described in the book of reference as may be required for the purposes of Work No. 3 and it may use any land so acquired for those purposes or for any other purposes connected with or ancillary to its electricity undertaking.
Application of Part I of the Compulsory Purchase Act 1965
19
1
Part I of the 1965 Act, insofar as not modified by, or inconsistent with, the provisions of this Order, applies to the acquisition of land under this Order as —
a
it applies to a compulsory purchase to which the Acquisition of Land Act 1981 applies; and
b
if this Order were a compulsory purchase order under that Act.
2
Part I of the 1965 Act, as so applied, has effect as if —
a
section 4 (which provides a time limit for compulsory purchase of land) and paragraph 3(3) of Schedule 3 (which makes provisions as to the giving of bonds) were omitted; and
b
in section 11(1) (which confers powers to enter on and to take possession of land subject to a notice to treat on giving not less than 14 days' notice), for the reference to 14 days' notice, there were substituted in —
i
a case where the notice to treat relates only to the acquisition of subsoil or the acquisition of an easement or other right over the land, a reference to notice of one month; or
ii
any other case, a reference to notice of 3 months.
Power to acquire new rights
20
1
The undertaker may compulsorily acquire such easements or other rights over any land referred to in article 18 as may be required for any purpose for which that land may be acquired under that provision, by creating them as well as by acquiring easements or other rights already in existence.
2
The undertaker may compulsorily acquire such easements or other rights over the land shown numbered 1 to 3, 5 to 9 and 11 on the land plans and described in the book of reference (“the relevant land”) as it may consider necessary for and in connection with the construction, use, operation and maintenance of Works No. 2, 2A, 4 and 5.
3
The undertaker may compulsorily acquire such easements or rights to use the streets shown numbered 12 to 16 on the land plans and described in the book of reference as it may consider necessary in order to obtain access for the purpose of constructing, using, operating and maintaining the authorised works.
4
The easements or rights referred to in paragraph (3) are rights to use the streets referred to in that paragraph in common with any other persons entitled to use the streets; and nothing in this article is to be taken as conferring a right to interfere with the use of the streets by other persons.
5
Subject to section 8 of the 1965 Act (as substituted by paragraph 5 of Schedule 3 to this Order), where the undertaker acquires a right over land under this article, the undertaker is not required to acquire a greater interest in it.
6
Schedule 3 to this Order has effect for the purpose of modifying the enactments relating to compensation and the provisions of the 1965 Act in their application in relation to the compulsory acquisition under this article of a right over land by the creation of a new right.
Temporary possession of land
Temporary use of land for construction of works
21
1
The undertaker may, in connection with the carrying out of the authorised works —
a
enter upon, and take temporary possession of, the land shown numbered 4 on the land plans and described in the book of reference as may be required in connection with the construction of the authorised works;
b
remove any buildings and vegetation from that land; and
c
construct temporary works (including the provision of means of access) and buildings on the land.
2
Not less than 28 days before entering upon, and taking temporary possession, of land under this article, the undertaker must serve notice of the intended entry on the owners and occupiers of the land.
3
The undertaker may not, without the agreement of the owners of the land, remain in possession of any land under this article after the end of the period of one year beginning with the date of completion of the authorised works.
4
Before giving up possession of land of which temporary possession has been taken under this article, the undertaker must remove all temporary works and restore the land to the reasonable satisfaction of the owners of the land; but the undertaker is not required to replace a building removed under this article.
5
The undertaker must pay compensation to the owners and occupiers of land of which temporary possession is taken under this article for any loss or damage arising from the exercise in relation to the land of the powers conferred by this article.
6
Any dispute as to a person’s entitlement to compensation under paragraph (5), or as to the amount of the compensation, is to be determined under Part I of the 1961 Act.
7
Without prejudice to article 36, nothing in this article shall affect any liability to pay compensation under section 10(2) of the 1965 Act or under any other enactment in respect of loss or damage arising from the execution of any works, other than loss or damage for which compensation is payable under paragraph (5).
8
The powers of compulsory acquisition of land conferred by this Order do not apply in relation to any land of which temporary possession is taken under paragraph (1), except that the undertaker is not precluded from acquiring new rights over any part of that land under article 21.
9
Where the undertaker takes possession of land under this article, it is not required to acquire the land or any interest in it.
10
In this article, “building” (“ adeilad ”) includes structure or any other erection.
Compensation
Disregard of certain interests and improvements
22
1
In assessing the compensation (if any) payable to any person on the acquisition from him of any land under this Order, the Tribunal is not to take into account any —
a
interest in land; or
b
enhancement of the value of any interest in land by reason of any building erected, works executed or improvement or alteration made on relevant land,
if the Tribunal is satisfied that the creation of the interest, the erection of the building, the execution of the works or the making of the improvement or alteration was not reasonably necessary and was undertaken with a view to obtaining compensation or increased compensation.
2
In paragraph (1), “relevant land” (“ tir perthnasol ”) means the land acquired from the person concerned or any other land with which that person is, or was at the time when the building was erected, the works executed or the improvement or alteration made, directly or indirectly concerned.
Extinction or suspension of private rights of way
23
1
Subject to paragraph (2), all private rights of way over land subject to compulsory acquisition under article 18 are extinguished —
a
as from the acquisition of the land by the undertaker, whether compulsorily or by agreement; or
b
on the entry on the land by the undertaker under section 11(1) of the 1965 Act, whichever is sooner.
2
Paragraph (1) does not apply to any private rights of way over Heol Caer Bont.
3
All private rights of way over land of which the undertaker takes temporary possession under this Order are suspended and unenforceable for as long as the undertaker remains in lawful possession of the land.
4
Any person who suffers loss by the extinguishment or suspension of any private right of way under this article is entitled to compensation to be determined, in case of dispute, under Part I of the 1961 Act.
5
This article does not apply in relation to any right of way to which section 271 or 272 of the Town and Country Planning Act 1990 (extinguishment of rights of statutory undertakers etc.).
Time limit for exercise of powers of acquisition
24
1
The powers conferred by this Order to acquire land or rights over land compulsorily, and the power conferred by article 21 to enter upon and take temporary possession of land, cease at the end of the period of 5 years beginning on the day on which this Order comes into force.
2
Paragraph (1) does not prevent the undertaker remaining in possession of land in accordance with article 21 after the end of that period, if the land was entered and possession of it was taken before the end of that period.
PART IV
MISCELLANEOUS AND GENERAL
Power to operate and use works
25
The undertaker may operate and use the authorised works as a system for generating and transmitting electricity.
Dis-application of sections 36 and 37 of the Electricity Act 1989
26
The provisions of sections 36 and 37 of the Electricity Act 1989 do not apply in relation to the authorised works.
Obstruction and misuse of authorised works
27
Any person who without reasonable excuse —
a
obstructs another person from constructing or maintaining any of the authorised works under the powers conferred by this Order;
b
makes fast to any part of any tidal work; or
c
in any other way interferes with any of the authorised works or their operation,
will be guilty of an offence and will be liable on summary conviction to a fine not exceeding level 3 on the standard scale.
Safety zones for navigation, trawling and anchoring
28
1
Subject to paragraphs (2) and (4), any person who, without reasonable excuse, —
a
during the construction, relaying, replacement, removal or decommissioning of any tidal works navigates a vessel within an area extending 500 metres from any part of that work (or such lesser area as may be published under paragraph (2));
b
following the laying of any of the inter-turbine cables trawls or anchors a vessel within the wind farm site and an area extending 200 metres outwards from that site;
c
following the laying of any of the marine feeder cables anchors a vessel within an area extending 200 metres from any part of that cable; or
d
following completion of construction of any of the relevant structures navigates a vessel within an operational safety zone,
will be guilty of an offence and will be liable on summary conviction to a fine not exceeding level 3 on the standard scale.
2
A safety zone will not come into effect until —
a
7 days have elapsed after the publication of a notice to mariners specifying the location and extent of the safety zone, the date of its commencement and, in the case of a construction safety zone, its intended duration; and
b
the undertaker has taken such other steps as the Secretary of State may require to notify shipping of the proposed safety zone.
3
As soon as reasonably practicable following the termination of a safety zone (other than by reason of paragraph (5)), the undertaker must —
a
publish notice of the termination by means of a notice to mariners; and
b
take such other steps as the Secretary of State may require to notify shipping of the termination of a safety zone.
4
Paragraph (1) does not apply to a person navigating or anchoring a vessel for the purpose of, or in connection with, the construction, maintenance or operation of the tidal works.
5
Paragraph (1)(b), (c) and (d) ceases to have effect if and to the extent that the activities specified in any of those provisions, within the areas so specified, are prohibited under a relevant enactment.
6
In this article —
“the construction safety zone” (“ y parth diogelwch wrth adeiladu ”) means an area in which navigation is excluded under paragraph (1)(a);
“operational safety zone” (“ parth diogelwch wrth weithredu ”) means an area extending 5 metres from any part of a relevant structure (including scour protection around that structure) or such larger distance not exceeding 50 metres as may be determined by the undertaker following a risk assessment and consultation with the Maritime and Coast Guard Agency and the Royal Yachting Association;
“relevant enactment” (“ deddfiad perthnasol ”) means any provision of a public general Act, or of any subordinate legislation made under a public general Act, which is brought into force after the making of this Order;
“relevant structure” (“ strwythur berthnasol ”) means a wind turbine or any of the anemometry masts;
“safety zone” (“ parth diogelwch ”) means any of the areas in which activities are excluded under paragraph (1);
“trawl” (“ treillio ”) means any fishing activity which involves dragging a net or line or other apparatus along the seabed.
Certain land to be treated as operational land
29
Planning permission which is deemed by a direction under section 90(2A) of the Town and Country Planning Act 1990 to be granted in relation to works authorised by this Order will be treated as specific planning permission for the purposes of section 264(3)(a) of that Act (cases in which land is to be treated as operational land for the purposes of that Act).
Statutory undertakers, etc.
30
The provisions of Schedule 4 to this Order have effect.
For protection of Environment Agency
31
The provisions of Schedule 5 to this Order have effect.
For protection of Network Rail
32
The provisions of Schedule 6 to this Order have effect.
Compensation for fishermen
33
1
If a relevant person can demonstrate to the reasonable satisfaction of the undertaker that the relevant person has suffered, or will suffer, loss as a result of being unable to fish within the relevant area following commencement of construction of Work No. 1 in consequence of the exercise of the powers of this Order, the undertaker must pay the relevant person reasonable compensation for that loss.
2
Any such claim must be made no earlier than the commencement of construction of Work No. 1 and no later than 2 years after its completion; and any dispute as to the liability for, or amount of compensation, is to be referred to arbitration in accordance with article 39 of the Order.
3
No person is entitled to compensation under this provision if convicted of an offence under article 28(1) by virtue of trawling in the relevant area; and, if any person is convicted of such an offence following payment of compensation under this article, such compensation may be recovered by the undertaker from that person.
4
For the purpose of determining whether or not a person is a relevant person, and the extent of any person’s loss for the purpose of paragraph (1), no account is to be taken of any activity unless it was undertaken in compliance with any applicable enactment or rule of law; and, in particular, no account is to be taken of any fish taken unless it has been included in returns submitted to the South Wales Sea Fisheries Committee under byelaws made under section 5 of the Sea Fisheries Regulation Act 1966 and, where relevant, in declarations submitted under article 8 of Council Regulation (EEC) No. 2847/93 .
5
In this article —
“relevant person” (“ person perthnasol ”) means the owner of a vessel who has been fishing with that vessel on a regular basis, in the course of his business, within the relevant area, in each of the five years immediately preceding commencement of construction of Work No. 1; and
“the relevant area” (“ yr ardal berthnasol ”) means the wind farm site and additional area referred to in article 28(1)(b).
Certification of plans, etc.
34
The undertaker must, as soon as practicable after the making of this Order, submit copies of the book of reference, the sections and the works and land plans to the National Assembly for certification that they are true copies, respectively, of the book of reference, sections and the works and land plans referred to in this Order; and a document so certified will be admissible in any proceedings as evidence of the contents of the document of which it is a copy.
Service of notices
35
1
A notice or other document required or authorised to be served for the purposes of this Order may be served by post.
2
Where the person on whom a notice or other document to be served for the purposes of this Order is a body corporate, the notice or document is duly served if it is served on the secretary or clerk of that body.
3
For the purposes of section 7 of the Interpretation Act 1978 as it applies for the purposes of this article, the proper address of any person in relation to the service on that person of a notice or document under paragraph (1) is, if that person has given an address for service, that address and otherwise in —
a
the case of the secretary or clerk of a body corporate, the registered or principal office of that body; and
b
any other case, the person’s last known address at the time of service.
4
Where for the purposes of this Order a notice or other document is required or authorised to be served on a person as having any interest in, or as the occupier of, land and his name or address cannot be ascertained after reasonable enquiry, the notice may be served by —
a
addressing it to that person by name or by the description of “owner” or, as the case may be, “occupier” of the land (describing it); and
b
either leaving it in the hands of a person who is or appears to be resident or employed on the land or leaving it conspicuously affixed to some building or object on or near the land.
5
This article does not exclude the employment of any method of service not expressly provided for by it.
No double recovery
36
Compensation will not be payable in respect of the same matter both under this Order and under any other enactment, any contract or any rule of law.
Transfer of powers
37
1
The undertaker may, with the consent of the National Assembly, enter into, and carry into effect, agreements for the transfer to another person of all or any of the powers conferred on the undertaker by this Order.
2
The exercise of any power conferred by this Order by any other person in accordance with an agreement under subsection (1) will be subject to the same obligations and liabilities under this Order as would apply if that power were exercised by the undertaker.
3
Not later than 21 days before any such agreement comes into effect which provides for the transfer to another person of powers relating to any tidal works, the undertaker must give written notice to the Secretary of State and to Trinity House, stating the name and address of the person to whom the powers are being transferred and the date when the transfer is to take effect.
Crown rights
38
1
Nothing in this Order affects prejudicially any estate, right, power, privilege, authority or exemption of the Crown and, in particular, nothing in this Order authorises the undertaker to take, use, enter upon or in any manner interfere with any land, hereditaments, or rights of whatsoever description (including any part of the shore or bed of the sea or any river, channel, creek, bay or estuary) belonging to —
a
Her Majesty in right of Her Crown and under the management of the Crown Estate Commissioners, without the consent in writing of those Commissioners; or
b
a government department or held in trust for Her Majesty for the purposes of a government department, without the consent in writing of that government department.
2
A consent under paragraph (1) may be given unconditionally or subject to such conditions or upon such terms as may be considered necessary or appropriate.
Arbitration
39
Any difference under any provision of this Order (other than a difference which falls to be determined by the Tribunal) must be referred to, and settled by, a single arbitrator to be agreed between the parties or, failing agreement, to be appointed on the application of either party (after notice in writing to the other) by the President of the Institution of Civil Engineers.
Signed by the Minister for Finance, Local Government and Public Services on behalf of the National Assembly for Wales
Sue Essex
16 November 2004


type: legislation

jurisdiction: UK

text:
Citation
1
This Order may be cited as the Office of Communications Act 2002 (Commencement No. 3) and Communications Act 2003 (Commencement No. 2) (Amendment No. 2) Order 2004.
Amendment of the principal Order
2
1
The Office of Communications Act 2002 (Commencement No. 3) and Communications Act 2003 (Commencement No. 2) Order 2003 shall be amended as follows.
2
In article 4, after paragraph (1) insert —
1A
Section 367 of the principal Act shall come into force on 9th March 2004 for the purposes of enabling regulations to be made under section 6(1) of the Wireless Telegraphy Act 1967 as amended by that section.
3
In Schedule 2, for the entry relating to sections 363 to 368 substitute the following entry —
Sections 363 to 366, 367 (so far as not already in force) and 368.
Tessa Jowell
Secretary of State for Culture, Media and Sport
8th March 2004


text:
Citation, commencement and interpretation
1
1
These Regulations may be cited as the Tax Avoidance Schemes (Prescribed Descriptions of Arrangements) (Amendment) Regulations 2004 and shall come into force on 30th September 2004.
2
In these Regulations “the principal Regulations ” means the Tax Avoidance Schemes (Prescribed Descriptions of Arrangements) Regulations 2004 .
Amendment of the principal Regulations
2
The principal Regulations are amended as follows.
3
At the end of regulation 1 (citation, commencement and interpretation) add —
4
For the purposes of these Regulations, a premium fee, in relation to any arrangements, is a fee which is chargeable by virtue of any element of the arrangements (including the way in which they are structured) from which the tax advantage expected to be obtained arises and is a fee —
a
the amount of which is to a significant extent attributable to that tax advantage; or
b
which is to any extent contingent upon the obtaining of that tax advantage.
.
4
In regulation 2(4)(a) (interaction of Parts 1 and 2 of the Schedule to the principal Regulations) after “the Schedule” insert “other than paragraph 5A,”.
5
1
The Schedule to the principal Regulations (arrangements prescribed for the purposes of the Regulations) is amended as follows
2
In paragraph 1(1) after paragraph (c) add —
unless they are arrangements that are excluded by paragraph 5A
.
3
After paragraph 5 insert —
Excluded arrangements
5A
Arrangements are excluded by this paragraph if both of the following conditions are met.
The first condition is that the arrangements are such that it might reasonably be expected that no promoter, and no person connected with a promoter, of arrangements that are the same as, or substantially similar to, the arrangements in question would be able to obtain a premium fee from a person experienced in receiving services of the type being provided.
The second condition is that the tax advantage expected to be obtained under the arrangements does not arise from any element of the arrangements (including the way in which they are structured) which, disregarding any duty of confidentiality owed to any person, a promoter might reasonably be expected to wish to keep confidential from other promoters.
.
4
Omit paragraph 8(5).
John Heppell
Derek Twigg
Two of the Lords Commissioners of Her Majesty’s Treasury
16th September 2004


text:
Citation and commencement
1
1
These Rules may be cited as the Trade Marks (Amendment) Rules 2004.
2
These Rules shall come into force on 5th May 2004 immediately after the Trade Marks (Proof of Use, etc. ) Regulations 2004 have come into force.
Amendments to the Trade Marks Rules 2000
2
The Trade Marks Rules 2000 shall be amended as follows.
3
In rule 5 (applications for registration) paragraphs (2) to (4) shall be omitted.
4
In rule 8 (application may relate to more than one class and shall specify the class) for paragraphs (2) and (3) there shall be substituted —
2
Every application shall specify —
a
the class in Schedule 4 to which it relates; and
b
the goods or services which are appropriate to the class and they shall be described in such a way as to indicate clearly the nature of those goods or services and to allow them to be classified in the classes in Schedule 4.
3
If the application relates to more than one class in Schedule 4 the specification contained in it shall set out the classes in consecutive numerical order and the specification of the goods or services shall be grouped accordingly.
.
5
After rule 8 there shall be inserted —
Determination of classification
8A
1
Where an application does not satisfy the requirements of rule 8(2)(b) or 8(3), the registrar shall send notice thereof to the applicant.
2
A notice sent under paragraph (1) shall specify a period, of not less than two months, within which the applicant must satisfy those requirements.
3
Where the applicant fails to satisfy those requirements before the expiry of the period specified under paragraph (2) his application shall be treated as abandoned.
.
6
In rule 11 (deficiencies in application) for the word “8(2)”, in both places it occurs, there shall be substituted “8(2)(a)”.
7
For rule 13 (opposition proceedings) there shall be substituted —
Opposition proceedings: filing of notice of opposition; s38(2) (Form TM7)
13
1
Any person may, within three months of the date on which the application was published, give notice to the registrar of opposition to the registration on Form TM7 which shall include a statement of the grounds of opposition.
2
Where the opposition is based on a trade mark which has been registered, there shall be included in the statement of the grounds of opposition a representation of that mark and —
a
the details of the authority with which the mark is registered;
b
the registration number of that mark;
c
the classes in respect of which that mark is registered;
d
the goods and services in respect of which —
i
that mark is registered; and
ii
the opposition is based; and
e
where the registration procedure for the mark was completed before the start of the period of five years ending with the date of publication, a statement detailing whether during the period referred to in section 6A(3)(a) the mark has been put to genuine use in relation to each of the goods and services in respect of which the opposition is based or whether there are proper reasons for non-use (for the purposes of rule 13C this is the “statement of use”).
3
Where the opposition is based on a trade mark in respect of which an application for registration has been made, there shall be included in the statement of the grounds of opposition a representation of that mark and those matters set out in paragraph (2)(a) to (d), with references to registration being construed as references to the application for registration.
4
Where the opposition is based on an unregistered trade mark or other sign which the person opposing the application claims to be protected by virtue of any rule of law (in particular, the law of passing off), there shall be included in the statement of the grounds of opposition a representation of that mark or sign and the goods and services in respect of which such protection is claimed.
5
The registrar shall send a copy of Form TM7 to the applicant and the date upon which this is done shall, for the purposes of rule 13A, be the “notification date”.
Opposition proceedings: filing of counter-statement and cooling off period (Forms TM8, TM9c & TM9t)
13A
1
The applicant shall, within the relevant period, file a Form TM8, which shall include a counter-statement, otherwise his application for registration shall be deemed to be withdrawn.
2
Unless either paragraph (3) or (4) applies, the relevant period shall begin on the notification date and end three months after that date.
3
This paragraph applies where —
a
the applicant and the person opposing the registration agree to an extension of time for the filing of Form TM8;
b
within the period of three months beginning on the notification date, either party files Form TM9c requesting an extension of time for the filing of Form TM8; and
c
during the period beginning on the date Form TM9c was filed and ending twelve months after the notification date, no notice to continue on Form TM9t is filed by the person opposing the registration,
and where this paragraph applies the relevant period shall begin on the notification date and end twelve months after that date.
4
This paragraph applies where —
a
a request for an extension of time for the filing of Form TM8 has been filed on Form TM9c; and
b
the person opposing the registration has filed a notice to continue on Form TM9t,
and where this paragraph applies the relevant period shall begin on the notification date and end one month after the date on which Form TM9t was filed or three months after the notification date, whichever is the later.
5
The registrar shall send a copy of Form TM8 to the person opposing the registration and, unless rule 13B applies, the date upon which this is sent shall, for the purposes of rule 13C, be the “initiation date”.
Opposition proceedings: preliminary indication (Form TM53)
13B
1
This rule applies if —
a
the opposition or part of it is based on the relative grounds of refusal set out in section 5(1) or (2); and
b
the registrar has not indicated to the parties that she thinks that it is inappropriate for this rule to apply.
2
After considering the statement of the grounds of opposition and the counter-statement the registrar shall notify the parties whether it appears to her that the mark should or should not be registered in respect of the goods and services listed in the application.
3
The date upon which such notification is sent shall be the “indication date”.
4
Where it appeared to the registrar under paragraph (2) that —
a
the mark should be registered for all the goods and services listed in the application, the person opposing the registration shall, within one month of the indication date, file notice of intention to proceed on Form TM53, otherwise he shall be deemed to have withdrawn his opposition;
b
the mark should be registered for some, but not all, of the goods and services listed in the application, unless —
i
within the period of one month of the indication date, the applicant or the person opposing the registration files a notice of intention to proceed on Form TM53; or
ii
within the period of one month beginning immediately after the end of the period mentioned in paragraph (i), the applicant requests the amendment of his application so that it relates only to the goods and services which the registrar notified the parties to be goods and services for which it appeared the mark should be registered;
the applicant shall be deemed to have withdrawn his application for registration in its entirety; or
c
the mark should not be registered for any of the goods and services listed in the application, the applicant shall, within one month of the indication date, file notice of intention to proceed on Form TM53, otherwise he shall be deemed to have withdrawn his application for registration.
5
The registrar need not give reasons why it appears to her that the mark should or should not be registered, nor shall her view be subject to appeal.
6
If a notice of intention to proceed has been filed by either party then the registrar shall send a copy of that notice to all the other parties and the date upon which this is sent shall, for the purposes of rule 13C, be the “initiation date”.
Opposition proceedings: evidence rounds (Form TM54)
13C
1
The person opposing the registration, within three months of the initiation date —
a
shall file any evidence he considers necessary to adduce in support of his grounds of opposition; and
b
where —
i
the opposition is based on an earlier trade mark;
ii
the registration procedure for the earlier trade mark was completed before the start of the period of five years ending with the date of publication; and
ii
the truth of a matter set out in the statement of use is either denied or not admitted by the applicant,
shall file evidence supporting the statement of use.
2
Where the person opposing the registration files no evidence under paragraph (1), he shall, unless the registrar otherwise directs, be deemed to have withdrawn his opposition.
3
The registrar shall notify the applicant of any direction given under paragraph (2).
4
The applicant may file any evidence he may consider necessary to adduce in support of his application —
a
within three months of the evidence being filed under paragraph (1); or
b
within three months of the registrar sending him notification that a direction has been given under paragraph (2).
5
Where the applicant files evidence under paragraph (4), the person opposing the registration may, within three months of such evidence being filed, file any evidence in reply; such evidence shall be confined to matters strictly in reply to the applicant’s evidence.
6
The registrar may, at any time if she thinks fit, give leave to either party to file evidence upon such terms as she thinks fit.
7
Under this rule, evidence shall only be considered filed when —
a
it has been received by the registrar accompanied by Form TM54; and
b
it has been sent to all other parties to the opposition.
8
Where the periods for filing evidence under paragraphs (1) and (4) and, if relevant, paragraph (5) have expired, the registrar shall request that the parties give written notice of whether they wish to be heard.
9
Where any party requests to be heard, the registrar shall send to the parties notice of a date for the hearing.
.
8
In rule 14(1) (decision of registrar in opposition proceedings) for the words “rule 13” there shall be substituted “rules 13 to 13C”.
9
In rule 18 (amendment of application after publication) for paragraphs (2) and (3) there shall be substituted —
2
Any person claiming to be affected by the amendment may, within one month of the date on which the amendment or a statement of the effect of the amendment was published under paragraph (1), give notice to the registrar of objection to the amendment on Form TM7 which shall include a statement of the grounds of objection which shall, in particular, indicate why the amendment would not fall within section 39(2).
3
The registrar shall send a copy of Form TM7 to the applicant and the procedure in rules 13A to 14 shall apply to the proceedings relating to the objection to the amendment as they apply to proceedings relating to opposition to an application for registration, but with the following modifications —
a
any reference to —
i
an application for registration shall be construed as a reference to a request for amendment of an application;
ii
the person opposing the registration shall be construed as a reference to the person objecting to the amendment of an application;
iii
the opposition shall be construed as a reference to the objection;
b
the relevant period, referred to in rule 13A(1), shall for these purposes be the period of three months beginning on the date upon which the registrar sent a copy of Form TM7 to the applicant;
c
rules 13A(2) to (4), rule 13B and rule 13C(1)(b) shall not apply.
.
10
1
Rule 21 (registration of a series of trade marks) shall be amended as follows.
2
In paragraph (2) for the words from “shall, if” to the end of the paragraph there shall be substituted
shall divide the application accordingly, provided that at least one application remaining after such a division would comprise of either —
a single mark; or
two or more marks that would be a series of trade marks within the meaning of section 41(2).
.
3
After paragraph (3) there shall be inserted —
3A
Where under paragraph (3) the registrar deletes a trade mark from an application for registration, the application, in so far as it relates to the deleted mark, shall be treated as withdrawn.
.
11
In rule 23 (amendment of regulations of collective and certification marks) for paragraphs (4) and (5) there shall be substituted —
4
Any person may, within three months of the date on which the notice was published under paragraph (2), give notice to the registrar of opposition to the amendment on Form TM7 which shall include a statement of the grounds of opposition indicating why the amended regulations do not comply with the requirements of paragraph 6(1) of Schedule 1, or, as the case may be, paragraph 7(1) of Schedule 2.
5
The registrar shall send a copy of Form TM7 to the proprietor and the procedure in rules 13A to 14 shall apply to the proceedings relating to the opposition to the amendment as they apply to proceedings relating to opposition to an application for registration, but with the following modifications —
a
any reference to —
i
the applicant shall be construed as a reference to the proprietor;
ii
an application for registration shall be construed as a reference to an application for the amendment of the regulations;
iii
the person opposing the registration shall be construed as a reference to the person opposing the amendment of the regulations;
b
the relevant period, referred to in rule 13A(1), shall for these purposes be the period of three months beginning on the date upon which the registrar sent a copy of Form TM7 to the proprietor;
c
rules 13A(2) to (4), rule 13B and rule 13C(1)(b) shall not apply.
.
12
In rule 25 (alteration of registered trade mark) for paragraph (3) there shall be substituted —
3
Any person claiming to be affected by the alteration may, within three months of the date on which the mark as altered was published under paragraph (2), give notice to the registrar of objection to the alteration on Form TM7 which shall include a statement of the grounds of objection.
4
The registrar shall send a copy of Form TM7 to the proprietor and the procedure in rules 13A to 14 shall apply to the proceedings relating to the objection to the alteration as they apply to proceedings relating to opposition to an application for registration, but with the following modifications —
a
any reference to —
i
the applicant shall be construed as a reference to the proprietor;
ii
an application for registration shall be construed as a reference to a request for alteration;
iii
the person opposing the registration shall be construed as a reference to the person objecting to the alteration;
iv
the opposition shall be construed as a reference to the objection;
b
the relevant period, referred to in rule 13A(1), shall for these purposes be the period of three months beginning on the date upon which the registrar sent a copy of Form TM7 to the proprietor;
c
rules 13A(2) to (4), rule 13B and rule 13C(1)(b) shall not apply.
.
13
For rules 31 to rule 33 there shall be substituted —
Application for revocation (on the grounds of non-use); s 46(1)(a) or (b) (Forms TM8 & TM26(N)
31
1
An application to the registrar for revocation of a trade mark under section 46, on the grounds set out in section 46(1)(a) or (b), shall be made on Form TM26(N) and be accompanied by a statement of the grounds on which the application is made.
2
The registrar shall send a copy of Form TM26(N) and the statement of the grounds on which the application is made to the proprietor.
3
The proprietor shall, within three months of the date on which he was sent a copy of Form TM26(N) and the statement by the registrar, file a Form TM8, which shall include a counter-statement, and be accompanied by —
a
two copies of evidence of use of the mark; or
b
reasons for non-use of the mark,
otherwise the registrar may treat him as not opposing the application.
4
The evidence of use of the mark shall —
a
cover the period of non-use alleged by the applicant on Form TM26(N), or
b
where the proprietor intends to rely on section 46(3), show that use of the mark commenced or resumed after the end of that period but before the application for revocation was made.
5
The reasons for non-use of the mark shall cover the period of non-use alleged by the applicant on Form TM26(N).
6
The registrar shall send a copy of Form TM8 and any evidence of use, or reasons for non-use, filed by the proprietor to the applicant and the date upon which this is sent shall, for the purposes of rule 31A, be the “initiation date”.
Application for revocation (on the grounds of non-use): evidence rounds (Form TM54)
31A
1
The applicant may, within three months of the initiation date, file any evidence he may consider necessary to adduce in support of the grounds on which the application was made.
2
Where the applicant files no evidence under paragraph (1), the registrar shall notify the proprietor that no evidence was filed.
3
The proprietor may, within the relevant period, file such evidence as he may consider necessary to adduce in support of his case.
4
The relevant period —
a
where the applicant files evidence under paragraph (1), is the period beginning on the date on which a copy of the evidence is filed and ending three months after that date; or
b
where the applicant does not file evidence under paragraph (1), is the period beginning on the date on which the registrar sent the proprietor a notification under paragraph (2) that no evidence was filed and ending three months after that date.
5
Where the proprietor files evidence under paragraph (3), the applicant may, within three months of such evidence being filed, file any evidence in reply; such evidence shall be confined to matters strictly in reply to the proprietor’s evidence.
6
The registrar may, at any time if she thinks fit, give leave to either party to file evidence upon such terms as she thinks fit.
7
Under this rule, evidence shall only be considered filed when —
a
it has been received by the registrar accompanied by Form TM54; and
b
it has been sent to all other parties to the revocation proceedings.
8
Where the periods for filing evidence under paragraphs (1) and (3) and, if relevant, paragraph (5) have expired, the registrar shall request that the parties give written notice of whether they wish to be heard.
9
Where any party requests to be heard, the registrar shall send to the parties notice of a date for the hearing.
Decision of registrar in revocation (on the grounds of non-use) proceedings
31B
1
When the registrar has made a decision on the application she shall send the parties to the proceedings written notice of it, stating the reasons for her decision.
2
For the purposes of any appeal against the registrar’s decision the date when the notice of the decision is sent shall be taken to be the date of the decision.
Application for revocation (on grounds other than non-use); s 46(1)(c) or (d) (Forms TM8 & TM26(O)
32
1
An application to the registrar for revocation of a trade mark under section 46, on the grounds set out in section 46(1)(c) or (d), shall be made on Form TM26(O) and be accompanied by a statement of the grounds on which the application is made.
2
The registrar shall send a copy of Form TM26(O) and the statement of the grounds on which the application is made to the proprietor.
3
The proprietor shall, within six weeks of the date on which he was sent a copy of Form TM26(O) and the statement by the registrar, file a Form TM8 which shall include a counter-statement, otherwise the registrar may treat him as not opposing the application.
4
The registrar shall send a copy of Form TM8 to the applicant and the date upon which this is sent shall, for the purposes of rule 32A, be the “initiation date”.
Application for revocation (on grounds other than non-use): evidence rounds (Form TM54)
32A
1
The applicant shall, within six weeks of the initiation date, file any evidence he may consider necessary to adduce in support of the grounds on which the application was made.
2
Where the applicant files no evidence under paragraph (1), he shall, unless the registrar otherwise directs, be deemed to have withdrawn his application.
3
The registrar shall notify the proprietor of any direction given under paragraph (2).
4
The proprietor may file any evidence he may consider necessary to adduce in support of his case —
a
within six weeks of the evidence being filed under paragraph (1); or
b
within six weeks of the registrar sending him a notification that a direction has been given under paragraph (2).
5
Where the proprietor files evidence under paragraph (4), the applicant may, within six weeks of such evidence being filed, file any evidence in reply; such evidence shall be confined to matters strictly in reply to the proprietor’s evidence.
6
The registrar may, at any time if she thinks fit, give leave to either party to file evidence upon such terms as she thinks fit.
7
Under this rule, evidence shall only be considered filed when —
a
it has been received by the registrar accompanied by Form TM54; and
b
it has been sent to all other parties to the revocation proceedings.
8
Where the periods for filing evidence under paragraphs (1) and (4) and, if relevant, paragraph (5) have expired, the registrar shall request that the parties give written notice of whether they wish to be heard.
9
Where any party requests to be heard, the registrar shall send to the parties notice of a date for the hearing.
Decision of registrar in revocation (on grounds other than non-use) proceedings
32B
1
When the registrar has made a decision on the application she shall send the parties to the proceedings written notice of it, stating the reasons for her decision.
2
For the purposes of any appeal against the registrar’s decision the date when the notice of the decision is sent shall be taken to be the date of the decision.
Application for invalidation: filing of application and counter-statement; s 47 (Forms TM8 & TM26(I))
33
1
An application to the registrar for a declaration of invalidity under section 47 shall be made on Form TM26(I) and be accompanied by a statement of the grounds on which the application is made.
2
Where the application is based on a trade mark which has been registered, there shall be included in the statement of the grounds on which the application is made a representation of that mark and —
a
the details of the authority with which the mark is registered;
b
the registration number of that mark;
c
the classes in respect of which that mark is registered;
d
the goods and services in respect of which —
i
that mark is registered; and
ii
the application is based; and
e
where neither section 47(2A)(a) nor (b) applies to the mark, a statement detailing whether during the period referred to in section 47(2B)(a) it has been put to genuine use in relation to each of the goods and services in respect of which the application is based or whether there are proper reasons for non-use (for the purposes of rule 33A this is the “statement of use”).
3
Where the application is based on a trade mark in respect of which an application for registration has been made, there shall be included in the statement of the grounds on which the application is made a representation of that mark and those matters set out in paragraph (2)(a) to (d), with references to registration being construed as references to the application for registration.
4
Where the application is based on an unregistered trade mark or other sign which the applicant claims to be protected by virtue of any rule of law (in particular, the law of passing off), there shall be included in the statement of the grounds on which the application is made a representation of that mark or sign and the goods and services in respect of which such protection is claimed.
5
The registrar shall send a copy of Form TM26(I) and the statement of the grounds on which the application is made to the proprietor.
6
The proprietor shall, within six weeks of the date on which he was sent a copy of Form TM26(I) and the statement by the registrar, file a Form TM8, which shall include a counter-statement, otherwise the registrar may treat him as not opposing the application.
7
The registrar shall send a copy of Form TM8 to the applicant and the date upon which this is sent shall, for the purposes of rule 33A, be the “initiation date”.
Application for invalidation: evidence rounds (Form TM54)
33A
1
The applicant, within six weeks of the initiation date —
a
shall file any evidence he may consider necessary to adduce in support of the grounds on which the application was made; and
b
where —
i
the application is based on an earlier trade mark;
ii
neither section 47(2A)(a) nor (b) applies to the mark; and
iii
the truth of a matter set out in the statement of use is either denied or not admitted by the proprietor,
shall file evidence supporting the statement of use.
2
Where the applicant files no evidence under paragraph (1), he shall, unless the registrar otherwise directs, be deemed to have withdrawn his application.
3
The registrar shall notify the proprietor of any direction given under paragraph (2).
4
The proprietor may file any evidence he may consider necessary to adduce in support of his case —
a
within six weeks of the evidence being filed under paragraph (1); or
b
within six weeks of the registrar sending him a notification that a direction has been given under paragraph (2).
5
Where the proprietor files evidence under paragraph (4), the applicant may, within six weeks of such evidence being filed, file any evidence in reply; such evidence shall be confined to matters strictly in reply to the proprietor’s evidence.
6
The registrar may, at any time if she thinks fit, give leave to either party to file evidence upon such terms as she thinks fit.
7
Under this rule, evidence shall only be considered filed when —
a
it has been received by the registrar accompanied by Form TM54; and
b
it has been sent to all other parties to the invalidation proceedings.
8
Where the periods for filing evidence under paragraphs (1) and (4) and, if relevant, paragraph (5) have expired, the registrar shall request that the parties give written notice of whether they wish to be heard.
9
Where any party requests to be heard the registrar shall send to the parties notice of a date for the hearing.
Decision of registrar in invalidation proceedings
33B
1
When the registrar has made a decision on the application she shall send the parties to the proceedings written notice of it, stating the reasons for her decision.
2
For the purposes of any appeal against the registrar’s decision the date when the notice of the decision is sent shall be taken to be the date of the decision.
.
14
1
Rule 34 (procedure on application for rectification) shall be amended as follows.
2
After paragraph (2) there shall be inserted —
2A
A direction under paragraph (2)(b) may include a requirement that evidence shall only be considered filed when —
a
it has been received by the registrar accompanied by Form TM54; and
b
it has been sent to all other parties to the application.
.
3
In paragraph (3) for the words “Upon completion of the evidence” there shall be substituted “Where the periods for filing evidence specified in directions given under paragraph (2)(b) have expired,”.
15
In rule 35(2) (procedure for intervention) —
a
for the words “rule 31” there shall be substituted “rules 31 to 31B”;
b
for the words “rule 32” there shall be substituted “rules 32 to 32B”;
c
for the words “rule 33” there shall be substituted “rules 33 to 33B”.
16
For rule 47(1) (opposition to proposals) there shall be substituted —
1
Any person may, within three months of the date on which the proposals were published under rule 46, give notice to the registrar of opposition to the proposals on Form TM7 which shall include a statement of the grounds of opposition which shall, in particular, indicate why the proposed amendments would be contrary to section 65(3).
.
17
For rule 63(1) (appeal to person appointed) there shall be substituted —
1
Notice of appeal to the person appointed under section 76 shall be filed on Form TM55 which shall include the appellant’s grounds of appeal and his case in support of the appeal.
1A
Such notice shall be filed with the registrar within the period of 28 days beginning on the date of the registrar’s decision which is the subject of the appeal.
.
18
For rule 65 (hearing of appeal) there shall be substituted —
Hearing and determination of appeal; s 76(4)
65
1
Where the person appointed does not refer the appeal to the court, he shall send written notice of the time and place appointed for the oral hearing of the appeal —
a
where no person other than the appellant was a party to the proceedings in which the decision appealed against was made, to the registrar and to the appellant; and
b
in any other case, to the registrar and to each person who was a party to those proceedings.
2
The person appointed shall send the notice at least fourteen days before the time appointed for the oral hearing.
3
If all the persons notified under paragraph (1) inform the person appointed that they do not wish to make oral representations then —
a
the person appointed may hear and determine the case on the basis of any written representations; and
b
the time and place appointed for the oral hearing may be vacated.
4
Rules 55 to 58 and rules 60 and 61 shall apply to the person appointed and to proceedings before the person appointed as they apply to the registrar and to proceedings before the registrar.
5
If there is an oral hearing of the appeal then rule 59 shall apply to the person appointed and to proceedings before the person appointed as it applies to the registrar and to proceedings before the registrar.
6
The person appointed shall send a copy of his decision, with a statement of his reasons therefor, to the registrar and to each person who was a party to the appeal.
.
19
1
Rule 68 (alteration of time limits) shall be amended as follows.
2
In paragraph (2)(a) —
a
after the words “rule 13” there shall be inserted “ to 13C”;
b
for the words “31, 32, 33” there shall be substituted “31, 31A, 32, 32A, 33, 33A”.
3
In paragraph (3) —
a
for the words from “rule 13(1)” to “provided for in that rule” there shall be substituted “rule 13(1) (time for filing opposition), rule 13A(1) (time for filing counter-statement),”;
b
for the words “rule 31(2) (time for filing counter-statement)” there shall be substituted “rule 31(3) (time for filing counter-statement and evidence of use or reasons for non-use)”;
c
for the words “rule 32(2)” there shall be substituted “rule 32(3)”;
d
for the words “rule 33(2)” there shall be substituted “rule 33(6)”.
Transitional arrangements
20
In rules 22 to 24 —
“the unamended Rules ” means the Trade Marks Rules 2000 in the form they were immediately prior to these Rules coming into force;
“the amended Rules ” means the Trade Marks Rules 2000 in the form they are after these Rules have come into force.
21
Rules 4, 5 and 6 shall not apply in respect of any application for the registration of a trade mark which was filed before they came into force.
22
Any proceedings commenced under rule 13, 18, 23, 25, 32 or 33 of the unamended Rules where the applicant (or, as the case may be, the proprietor) —
a
has not filed Form TM8 before 5th May 2004 —
i
shall proceed under the unamended Rules until the date upon which Form TM8 is filed by the applicant (or, as the case may be, the proprietor); and
ii
shall proceed, subject to rule 23, under the amended Rules from the point in time immediately after Form TM8 is filed;
b
has filed TM8 before 5th May 2004 shall proceed under the unamended Rules; but where a new step is taken under such Rules on or after 5th May 2004, the amended Rules, subject to rule 23, shall apply to such proceedings from the point in time immediately after that step is taken.
23
Rules 13C(1)(b) and 33A(1)(b) of the amended Rules shall not apply to any proceedings commenced before the coming into force of these Rules.
24
Any proceedings commenced under rule 31 of the unamended Rules shall proceed under those Rules.
Sainsbury of Turville,
Parliamentary Under-Secretary of State for Science and Innovation,
Department of Trade and Industry
28th March 2004


text:
Citation and commencement
1
These Regulations may be cited as the Back to Work Bonus (Amendment) Regulations 2004 and shall come into force on 25th October 2004, immediately after the Social Security (Back to Work Bonus and Lone Parent Run-on) (Amendment and Revocation) Regulations 2003 .
Amendment of the Social Security (Back to Work Bonus and Lone Parent Run-on) (Amendment and Revocation) Regulations 2003.
2
In regulation 10 of the Social Security (Back to Work Bonus and Lone Parent Run-on) (Amendment and Revocation) Regulations 2003 —
a
in paragraph (1) for “Subject to paragraph (2)” substitute “Subject to the amendments made by paragraphs (2) and (3)”;
b
in paragraph (1)(d), after “regulation 23(6) of the Back to Work Bonus Regulations” add “, or who makes a claim for a bonus after 28th January 2005 within the appropriate specified period”.
Signed by authority of the Secretary of State for Work and Pensions.
Jane Kennedy
Minister of State,
Department for Work and Pensions
28th June 2004


text:
Citation and commencement
1
This Order may be cited as the Rail Vehicle Accessibility (Seaton Tramway Tramcars 9, 10 and 11) Exemption Order 2004 and shall come into force on 29th May 2004.
Interpretation
2
In this Order —
a
any reference to “the exempted vehicles” is a reference to the rail vehicles numbered 9, 10 and 11, built by Bolton Trams in Lancashire, for use by Modern Electric Tramways Limited on the Seaton Tramway in Devon; and
b
any reference to a numbered regulation is a reference to the regulation bearing that number in the Rail Vehicle Accessibility Regulations 1998 .
Authorisation and exemption
3
1
Subject to articles 4 and 5, the exempted vehicles are authorised to be used for carriage even though they do not conform with those provisions of the Rail Vehicle Accessibility Regulations referred to in paragraph (2).
2
Those provisions are —
a
regulation 6(3), in so far as it applies to a step between the gangway on the upper deck and the footwells of the seats;
b
regulation 8;
c
regulation 10(1)(b);
d
regulation 11(1)(b);
e
regulation 11(3);
f
regulation 13(1);
g
regulation 13(4);
h
regulation 13(5);
i
regulation 13(6);
j
regulation 13(8);
k
regulation 13(9); and
l
regulation 23(7)(b), in so far as it requires the width of the portable access ramp to be not less than 800 millimetres at any point.
Condition
4
It is a condition of the exemption given by article 3(2)(l), in respect of regulation 23(7)(b), that the width of the portable access ramp shall be not less than 710 millimetres at any point.
Expiry
5
The authorisation given by article 3(1) shall cease immediately in respect of an exempted vehicle if it is–
a
operated by a person other than Modern Electric Tramways Limited, unless the Secretary of State has been given written notice in advance specifying the name and address of that other person; or
b
operated on a route other than the Seaton Tramway in Devon.
Signed by authority of the Secretary of State for Transport
Tony McNulty
Parliamentary Under Secretary of State,
Department for Transport
23rd April 2004


text:
Citation and commencement
1
This Order may be cited as the Immigration Services Commissioner (Registration Fee) Order 2004 and shall come into force on 1st April 2004.
Interpretation
2
In this Order —
“ the Act ” means the Immigration and Asylum Act 1999;
“level 1 adviser” means a person providing immigration advice or immigration services only in connection with —
the matters set out in paragraphs (ba) , (d), (e), (f) and (g) of the definition of “relevant matters” in section 82(1) of the Act;
the matter set out in paragraph (b) of the definition of “relevant matters” in section 82(1) of the Act, but only in so far as the advice or services is in connection with an application for, or for the variation of, entry clearance or leave to enter or remain in the United Kingdom for a purpose for which entry or remaining is permitted in accordance with immigration rules.
“immigration rules” has the same meaning as the Immigration Act 1971;
“registration” means registration under section 84(2)(a) or (b) of the Act;
“continued registration” means registration to be continued under paragraph 3(1) of Schedule 6 to the Act;
“the table” means the table in the Schedule to this Order;
“relevant advisers” is to be construed in accordance with article 3.
Meaning of “relevant advisers”
3
Relevant advisers means, in respect of —
a
an individual, that individual together with —
i
the employees of that individual who provide immigration advice or immigration services, excluding such employees who are qualified persons under sections 84(2)(c) to (f) of the Act, or who are persons to whom section 84(4) of the Act applies; and
ii
the persons who provide immigration advice or immigration services who work under the supervision of that individual and his employees, excluding such persons who are qualified persons under section 84(2)(c) to (f) of the Act, or who are persons to whom section 84(4) of the Act applies; and
b
a body corporate or unincorporate —
i
the members and employees of that body who provide immigration advice or immigration services, excluding such members and employees who are qualified persons under section 84(2)(c) to (f) of the Act, or who are persons to whom section 84(4) of the Act applies; and
ii
the persons who provide immigration advice or immigration services who work under the supervision of such members and employees, excluding such persons who are qualified persons under sections 84(2)(c) to (f) of the Act, or who are persons to whom section 84(4) of the Act applies.
Fees payable for registration and continued registration
4
On an application for registration —
a
the fee payable by a level 1 adviser shall be £555;
b
the fee payable by any other person providing immigration advice or immigration services shall be the fee in column 2 of the table which applies in respect of that person’s entry in column 1 of the table.
5
On an application for continued registration —
a
the fee payable by a level 1 adviser shall be £555;
b
the fee payable by any other person providing immigration advice or immigration services shall be the fee in column 3 of the table which applies in respect of that person’s entry in column 1 of the table.
6
A person’s entry in column 1 of the table shall be determined by reference to the number of relevant advisers in respect of that person at the date of the application for registration or, as the case may be, continued registration.
Revocation
7
The Immigration Services Commissioner (Registration Fee) Order 2002 is hereby revoked.
Beverley Hughes
Minister of State
Home Office
16th March 2004


text:
1
These Regulations may be cited as the Liberia (Freezing of Funds and Economic Resources) (Amendment) Regulations 2004 and shall come into force on 7th July 2004.
2
At the end of the definition of “the EC Regulation” in regulation 1(2) of the Liberia (Freezing of Funds and Economic Resources) Regulations 2004 , insert —
as amended by Commission Regulation (EC) No 1149/2004 of 22 June 2004 amending Council Regulation (EC) No 872/2004 concerning further restrictive measures in relation to Liberia .
John Heppell
Joan Ryan
Two Lords Commissioners of Her Majesty’s Treasury
6th July 2004


text:
Citation and commencement
1
These Regulations may be cited as the Social Security (Hospital In-Patients) Amendment Regulations 2004 and shall come into force for the purposes of —
a
this regulation, and regulation 2 in so far as it relates to a particular beneficiary in receipt of incapacity benefit or severe disablement allowance, on 16th February 2004 and
b
regulation 2 in so far as it relates to a particular beneficiary other than a beneficiary in receipt of incapacity benefit or severe disablement allowance, on 16th February 2004 if it is his day for payment or, if not, on his day for payment next following 16th February 2004, and for the purposes of this paragraph “day for payment” shall be construed in accordance with regulation 22(3) of, and Schedule 6 to, the Social Security (Claims and Payments) Regulations 1987 .
Amendment of the Social Security (Hospital In-Patients) Regulations 1975
2
1
The Social Security (Hospital In-Patients) Regulations 1975 shall be amended in accordance with the following paragraphs of this regulation.
2
In regulation 2(1) (interpretation) —
a
for the definition of “40% of the basic pension” substitute —
“38% of the basic pension” means an amount equal to 38% of the basic pension rounded to the nearest 5 pence, 2.5 pence being rounded to the next 5 pence above;
and
b
for the definition of “60% of the basic pension” substitute —
“58% of the basic pension” means an amount equal to 58% of the basic pension rounded to the nearest 5 pence, 2.5 pence being rounded to the next 5 pence above;
.
3
In regulation 6(1) (adjustment of personal benefit after 52 weeks in hospital where person has a dependant) —
a
for “paragraphs (3) and (4)” substitute “paragraph (3)” and
b
for “40%” substitute “38%” and for “60%” substitute “58%”.
Signed by authority of the Secretary of State for Work and Pensions.
Malcolm Wicks
Minister of State,
Department for Work and Pensions
19th January 2004


text:
Citation, commencement and effect
1
1
These Regulations may be cited as the Social Security (Contributions) (Amendment No. 4) Regulations 2004 and shall come into force on 1 st September 2004.
2
These Regulations have effect in relation to —
a
agreements entered into after 1 st September 2004 which are in respect of post-commencement employment income, and
b
elections made after that date.
Amendments to the Social Security (Contributions) Regulations 2001
2
The Social Security (Contributions) Regulations 2001 are amended as follows.
3
In regulation 1(2) (interpretation) after the definition of “readily convertible asset” insert —
“relevant employment income” has the meaning given in paragraph 3B(1A) of Schedule 1 to the Act ;
.
4
In regulation 69 and the heading preceding it (transfer of liability from secondary contributor to employed earner) for “share option gains” substitute “relevant employment income”.
5
In Schedule 2 (calculation of earnings for the purposes of earnings-related contributions) for paragraph 7 substitute —
7
1
The amount of earnings comprised in any payment by way of the conferment of —
a
a convertible interest in securities;
b
a restricted interest in securities; or
c
an interest in convertible or restricted securities,
falling to be taken into account in computing a person’s earnings from employed earner’s employment shall be computed in the same manner, and shall be taken into account at the same time, as applies under Chapters 1 to 5 of Part 7 of ITEPA 2003 , for the purpose of computing his employment income.
This is subject to the following qualification.
2
For the purpose of sub-paragraph (1) no account shall be taken of any relief obtained under sections 428A or 442A of ITEPA 2003 (relief for secondary Class 1 contributions met by employee).
.
6
In paragraph 3 of Part 10 of Schedule 3 (payments discharging liability for secondary Class 1 contributions following election under paragraph 3B of Schedule 1 to the Contributions and Benefits Act) for “share option gains” substitute “relevant employment income”.
7
In Part 2 of Schedule 4 (provisions derived from the Income Tax Acts and the Income Tax (Pay As You Earn) Regulations 2003) —
a
in paragraph 6(3) for “share option gains” substitute “relevant employment income”;
b
for paragraph 8 and the heading preceding it substitute —
Records where liability transferred from secondary contributor to employed earner: relevant employment income
8
Where an election has been made for the purposes of paragraph 3B(1) of Schedule 1 to the Act (elections about transfer of liability for secondary contributions in respect of relevant employment income), the secondary contributor shall maintain records containing —
a
a copy of any such election;
b
a copy of the notice of approval issued by the Inland Revenue under paragraph 3B(1)(b) of that Schedule;
c
the name and address of the secondary contributor who has entered into the election;
d
the name of the employed earner; and
e
the national insurance number allocated to the employed earner.
;
c
in paragraph 21(1)(a) for “a gain” to the end substitute “relevant employment income; and”; and
d
for the heading preceding paragraph 23 substitute —
Additional return by employer at end of year where liability transferred to employed earner: elections under paragraph 3B(1) of Schedule 1 to the Act.
; and
e
in paragraph 23(1)(a) for “a gain” to the end substitute “relevant employment income; and”.
8
In Schedule 5 (elections about share option gains) —
a
in the heading, for “SHARE OPTION GAINS” substitute “SECURITIES OPTIONS, RESTRICTED SECURITIES AND CONVERTIBLE SECURITIES”; and
b
in paragraph 1(1) for paragraphs (a) and (b) substitute —
a
details of the securities options, restricted securities and convertible securities to which it relates, or of the period to which it relates, within which these are intended to be awarded or acquired;
b
a statement that the election relates to relevant employment income arising from the securities or securities options referred to in sub-paragraph (1)(a) on which the employed earner is liable to pay secondary Class 1 contributions under —
i
in the case of securities options, section 476 of ITEPA 2003 and section 4(4)(a) of the Act ;
ii
in the case of restricted securities, section 426 of ITEPA 2003 and regulation 22(7) ;
iii
in the case of convertible securities, section 438 of ITEPA 2003 and regulation 22(7), and
an explanation of the effect of the relevant provision;
.
John Heppell
Jim Murphy
Two of the Lords Commissioners of Her Majesty’s Treasury
22nd July 2004
The Secretary of State concurs.
Signed on behalf of the Secretary of State.
P Hollis
Parliamentary Under-Secretary of State,
Department for Work and Pensions
3rd August 2004
The Department for Social Development concurs.
Sealed with the Official Seal of the Department for Social Development on 23rd July 2004.
John O'Neill
Senior Officer of the
Department for Social Development
Ann Chant
Helen Ghosh
Two of the Commissioners of Inland Revenue
26th July 2004