—(1) Subject to subsection (7), an owner of a relevant facility shall provide access to the relevant facility without undue discrimination.
(2) If a person is unable to negotiate access to a relevant facility, he may, after giving the owner of the facility not less than 28 days notice, apply to the Authority for directions under this section in order to secure rights of access to that facility.
(3) Where an application is made under subsection (2), it shall be the duty of the Authority —
to decide whether the application should be adjourned to enable negotiations or further negotiations to take place;
to decide whether the application should be considered further or rejected;
to give the applicant and the owner of the relevant facility or any other person whom the Authority considers has an interest an opportunity to be heard; and
to inform such persons of its decision.
(4) Where, after considering an application under subsection (2), the Authority is satisfied that the efficient operation of the relevant facility or compliance by the owner of the relevant facility with this Act or the conditions of a gas licence would not be prejudiced by the giving of directions, the Authority may give directions —
specifying the terms on which the Authority considers the owner of the relevant facility should enter into an access agreement with the applicant in order to —
secure to the applicant an appropriate access right for the quantities and quality of gas specified in the directions for the duration specified in the directions;
secure that the exercise of that access right is not prevented or impeded;
regulate the charges which may be imposed by the owner of the relevant facility for that access right; and
secure to the applicant any ancillary or incidental rights that the Authority considers necessary or expedient, including connections rights;
specifying the sums or the method of determining the sums which the Authority considers should be paid by the applicant to the owner of the relevant facility in consideration of that access right;
requiring the owner of the relevant facility, if the applicant pays or agrees to pay those sums within a period specified in the directions, to enter into an agreement with him on the terms so specified; and
requiring the owner of the relevant facility to make such adjustments to charges imposed by the owner on existing users of the relevant facility, as the Authority considers appropriate.
(4A) For the avoidance of doubt, the Authority may give directions under subsection (4) notwithstanding that such directions may prejudice the performance of any contractual obligation of the owner of the relevant facility, whether such obligation relates to a contract made before, on or after the appointed day.
(5) In giving any directions under this section, the Authority shall apply the principle that the owner of the relevant facility providing access to the facility should be entitled to receive —
the appropriate proportion of its capital value and operating costs incurred in respect of the facility; and
a reasonable rate of return on the appropriate proportion of the capital value of the facility.
(6) The Authority may require any person who requires access to a gas pipeline or gas pipeline network or who is undertaking the trading of gas at any point (whether actual or notional) in a gas pipeline or gas pipeline network to enter into any agreement designated by the Authority for the purposes of this section.
(7) The Authority may exempt a relevant facility from the requirements set out in this section unconditionally or subject to such conditions as may be specified.
(8) Any person who fails to comply with a direction of the Authority under this section shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $1 million and, in the case of a continuing offence, to a further fine not exceeding $100,000 for every day or part thereof during which the offence continues after conviction.
(9) Any person who does any act which has or is likely to have the effect of obstructing, hindering or otherwise preventing any other person from complying with a direction of the Authority under this section shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $1 million and, in the case of a continuing offence, to a further fine not exceeding $100,000 for every day or part thereof during which the offence continues after conviction.
(10) No action, suit or other legal proceedings shall lie against any party to a contract made before the appointed day for, or in relation to, any breach of that contract, where such breach is solely attributable to, or occasioned by, the compliance by that party with any direction of the Authority under this section.
(11) Nothing in subsection (10) shall affect the operation of the Frustrated Contracts Act (Cap. 115).
(12) In this section —
“appointed day” means the date of commencement of section 16 of the Gas (Amendment) Act 2007;
“appropriate proportion” means a proportion which properly —
reflects the use made of the relevant facility by virtue of the access right as compared with the use made of that facility for other purposes; and
takes into account sums paid previously in consideration for the access right;
“owner”, in relation to a relevant facility, means any person legally occupying or having control of the relevant facility;
“relevant facility” means any one or all of the following:
a gas pipeline or a gas pipeline network;
a gas processing or production facility which carries out any of the following operations:
synthesising, manufacturing, purifying, blending, odorising or compressing gas for the purpose of enabling it to be introduced into or conveyed through a gas pipeline network owned by, or under the management or control of, a gas transporter or an exempt gas transporter;
removing from gas for that purpose any of its constituent gas, or separating from gas for that purpose any liquids; and
determining the quantity or quality of gas which is or is to be introduced, or so conveyed; or
such onshore receiving facility, LNG terminal, gas storage or landing facility (other than a gas pipeline), as may be designated by the Authority to be a relevant facility for the purposes of this section for such time as the Authority considers appropriate.