Part 3: Decommissioning of Energy Installations Commentary on Sections New section 38A: Protection of funds set aside for the purposes of abandonment programme
351.This section is designed to ensure that, in the event of the insolvency of a person responsible for an abandonment programme or a person with obligations under that programme, the funds set aside for meeting those liabilities remain available for abandonment and are not available to the general body of creditors. The protection in the event of insolvency applies where any funds have been set aside in a secure way (such as a trust or other arrangement which was established on or after 1 December 2007) for meeting obligations under an abandonment programme. This provision applies whether the security is established before or after the programme’s approval, as long as it is clear in the arrangement that it has been established to secure the obligations under the programme.
352.Subsection (4) provides that the term “security” has a wide meaning for this purpose. The list is non-exhaustive.
353.Subsection (6) specifically disapplies any provision of the Insolvency Act 1986, the Insolvency (Northern Ireland) Order 1989 or any other enactment or rule of law the operation of which would prevent or restrict the security being used for the purpose for which it was set up (meeting abandonment liabilities). Subsection (7) extends the meaning of “enactment” to include Acts of the Scottish Parliament.