Gas in UK Law

The application for planning permission did not include any development at Knapton. Paragraph 122 of the National Planning Policy Framework ("NPPF") advises planning authorities that they should focus on whether the development is an acceptable use of land, rather than on control of processes or emissions where these are subject to approval under pollution control regimes, and it should be assumed that those regimes will operate effectively.

Mr. McCaughran on a number of occasions submitted that "the purpose" of the provisions relating to the Transmission Charges was to allow the seller to recover "costs of and associated with the transportation of gas to Ballylumford". I accept that Clause 2.1(b) of the GSA envisaged that the buyer would pay "a charge for the costs of … gas transportation along the Pipeline" (my emphasis), which suggests that such charge will cover all the costs of transportation.

The factual matrix evidence that shows this was the following. The GSA was, as I have already said, based upon the standard form of LTI contract in use in 1992, namely LTI3. Under this form of contract, all purchasers of gas from British Gas paid the same commodity prices. The provisions of Annex 5 were specifically negotiated to cover the additional costs of transporting the gas from Great Britain to Ballylumford.

However, the reality was that the GSA, as Mr. Onions pointed out, closely defines what may be recovered as "Transmission Charges" and reflects an understandable commercial deal entered into in 1992, when the Pipeline was to be constructed, to enable recovery of the costs of constructing, operating, repairing or maintaining the Pipeline as specific Transmission Charges to be paid by the buyer, PPL, to the seller, in respect of the seller's operation, or its Affiliate's operation, of the Pipeline.

In my judgment, and despite Mr. Onions' skilful and superficially persuasive arguments, the simple reality is that, as result of Postalisation, the seller cannot charge the buyer in respect of the costs of gas transportation along the Pipeline; the seller is required, as a result of the modifications to the operator and supply licence and the Transportation Code, to pay a postalised tariff to the operator (PTL).

It means that a plaintiff prima facie establishes negligence where: (1) it is not possible for him to prove precisely what was the relevant act or omission which set in train the events leading to the accident; but (ii) on the evidence as it stands at the relevant time it is more likely than not that the effective cause of the accident was some acts or omission of the defendant or of someone for whom the defendant is responsible, which act or omission constitutes a failure to take proper care for the plaintiff a safety.