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 (f) Consents required and authorisations from other ministries

Angola

(i) List of key licences, permits or consents

A project company that wants to build and operate a power plant in Angola must obtain key licences, such as the Certificate of Registration of Private Investment (Certificado de Registo do Investimento Privado) if it is a project incorporated according to the Law of Private Investment and is issued by the National Agency of Private Investment (Agencia Nacional do Investimento Privado); and an operation licence or concession, granted by the local authorities or the Council of Ministers, respectively.

(ii) Are consents capable of being secured and are transferable to the lenders?

No.

(iii) Process of application for consents

The application for the licensing of electrical facilities, is done through a standard form provided by the licensing authority of the Ministry of Energy and Water. The application to National Agency for Private Investment ("ANIP") is a standard form provided by that entity, upon payment of a fee of USD 150. There is no standard form for the application for other licenses; it may vary depending on the concerned entity, the same regarding the costs.

Guinea

(i) Key licences/consents: please list the key licences, permits or consents that are typically required by a project company for the design, finance, construction, operation and maintenance of a power plant.

The project will need to sign a BOT contract, to obtain environmental clearance and to obtain construction permits. It will also need visas for its personnel and import clearance for all goods and equipment.

(ii) Security: are these consents capable of being secured and are transferable to the lenders?

The rights (licenses, permits, and consents) arising from the BOT Convention are capable of being secured and are transferable to the lenders.

(iii) Process of application: please also provide details of all conditions applicable, specifying process, timing and costs for obtaining the consents.

TO BE VERIFIED

Ivory Coast

(i) List of key licences, permits or consents

(A) A contract for the concession for power generation is signed by the project company and the representantive of the Ministry of Energy.

(B) An Environmental Permit issued by the Ministry of Environment.

(C) An "Attestation de depot" for Investors under the regime of declaration and an "Arrete Interministeriel d'approbation" for investors under the regime of accreditation.

(ii) Are consents capable of being secured and are transferable to the lenders?

(A) The Ministry of Energy launches the tender process for the concession of generation, transmission and distribution of electricity depending on the needs on the country.

(B) The Project Company applies for the concession.

(C) The Minister and the regulators approve the dossier.

(D) The Minister of Energy takes the dossier to Council of Ministers.

(E) The Council of Ministers awards the concession and approves the dossier by Decree.

Kenya

(i) List of key licenses, permits or consents

The Government involvement, depending on whether it is a petroleum project or electricity project, could be from the Ministry of Energy, the ERC, NEMA, WRMA or the relevant Local Authority, which become involved under the Physical Planning Act, the Public Health Act and the issuing of Single Business Permits.

The key licences required are:

  1. the Generation Licence issued pursuant to the provisions of the Energy Act;
  2. a Geothermal Licence, or Water Permit depending on whether its hydro electric power or geothermal power;
  3. a Certificate of Compliance by the local authority in relation to the Physical Planning Act;
  4. approval of the power purchasing agreement by the ERC;
  5. an Environmental Impact Assessment Licence granted by NEMA;
  6. registration of the project as a work place under the Occupational Safety and Health Act;
  7. approval of the building plans by the Commissioner of Lands where the title to the property is leasehold; and
  8. depending on the nature of a grant of property the consent of the Commissioner of Lands may be required to charge (create security over) the property.

(ii) Are consents capable of being secured and are transferable to the lenders?

The Generation Licence can be transferred in the event that the Lenders are enforcing security with the consent of the ERC. Furthermore, if a geothermal or water permit has been granted, the consent of the Minister or WRMA is required to transfer the permit. Although the licences do not form security, it has become practice for lenders to obtain comfort letters from the regulators acknowledging that a security has been created over the project assets. Therefore, in the event of default, the regulators will permit the transfer of the licences.

(iii) Process of application for consents

Please contact us for further information.

Madagascar

(i) List of key licenses, permits or consents

The list of key licences permits and consents required by the project company are:

  • The consent by the Ministry of Energy and Mines (either the authorisation or concession depending on size).
  • The environmental permit issued by the Ministry of Environment.
  • The authorization issued by the Ministry of Public Works including zoning, construction permit and compliance certificate.
  • The authorisation issued by the Region and the Commune.

(ii) Are consents capable of being secured and are transferable to the lenders?

These consents are capable of being secured and are assignable to the lenders.

(iii) Process of application for consents

The Ministry of the Energy and Mines launches a tender for the concession.

The project company should apply under the terms of the tender the concession.

The Ministry of Energy and Mines approves the concession by decree.

The Ministry of Environment oversees the environmental evaluation at the National Environmental Office.

The National Environmental Office studies the dossiers for 60- 120 days and approved the environmental permit. There is a fee to pay.

Mali

(i) List of key licences, permits or consents

The Minister of Energy grants the Authorisation or Concession for power generation depending on the power produced by the project.

(ii) Are consents capable of being secured and are transferable to the lenders?

The rights awarded to the concessionaire may be pledged as security, individually or collectively, by the holder under the conditions set up by the regulations and the terms of the Concession.

Any agreement in which the concessionaire transfers to a third party the rights conferred by the concession is subject to prior authorisation of the contracting authority after the approval of the CREE.

(iii) Process of application for consents

See (f) (i) above

Mauritius

(i) Key licences/consents: please list the key licences, permits or consents that are typically required by a project company for the design, finance, construction, operation and maintenance of a power plant.

As mentioned above, the licenses required will include a permit from the CEB pursuant to the EA 1939 (or license from the URA upon proclamation of the EA 2005).

A BLU application is a formal request for permission to carry out a proposed development/building.

An environment impact assessment ('EIA') license has to be applied in respect of a project company to the Department of Environment (the 'Department') in accordance with the Environment Protection Act 2002 (the 'EPA 2002').

(ii) Security: are these consents capable of being secured and are they transferable to the lenders?

The above consents cannot be secured and are not transferable.

(iii) Process of application: please also provide details of all conditions applicable, specifying process, timing and costs for obtaining the consents.

Application under EA 1939

In order for any authority, company or persons (the 'Applicant') to establish an undertaking for the supply of electricity for public and private purposes and for the supply of electricity in bulk, an application must be made to the CEB to act as an undertaker. There is no prescribed application form for such applications.

The application must include a description of the area where the supply of electricity will be provided and also any other information that the CEB may require.

In the event of the CEB considering the application favourably the Applicant must publish the application in the Government Gazette (the 'Gazette'), and any authority, company, body or person wishing to object to the grant of a permit to the Applicant to act as an undertaker should transmit his objection to the CEB in writing by registered post within 14 days of the date of the publication of the application in the Gazette, or within such longer period as the CEB may prescribe.

The CEB may, where it thinks fit and without assigning any reason, refuse to consider any application. After consideration of the application and of any objections, the CEB may, subject to the approval of the President, refuse to grant a permit or may issue a permit on such terms and conditions as it thinks fit. The permit will not, however, be issued for a period exceeding 20 years.

The duration of the permit and the conditions subject to which it is granted will be endorsed on the permit.

The CEB is not obliged to state its reasons for rejection of the application. Where the application is accepted, it will be published in the Gazette as a notice and any person wishing to object to the grant of the permit will have to express the objection in writing to the CEB within 14 days following the publication. The CEB may come to a decision as it thinks fit having reviewed the objection.

Once the permit is issued, the Applicant must ensure that his undertaking is in a fit condition to start supplying electricity.

The CEB will then certify that the undertaking is in the required fit condition.

Following such certification, the President will signify his approval by proclamation to the commencement of supply of electricity by the undertaking in the defined area of supply. The undertaker may then commence supply of electricity.

Application under EA 2005

An application for a license will need to be made to the URA in such manner and form determined by the URA. The URA must give public notice in the Gazette and in 2 daily newspapers of the application and has to inform the applicant, of the outcome of its application, not later than 3 months from the date the application was made or from the date the applicant has submitted any additional information where such information was required of the applicant.

Application under EPA 2002

In respect of an application for an EIA license, the applicant must submit an EIA report in electronic form as well as 15 printed copies of the report to the Department and fill out an application in the prescribed form.

The Director shall review an EIA application submitted by a proponent and determine its scope and contents and refer the EIA application, with such comments and observations as he thinks appropriate, and with any public comment submitted under section 20, to the EIA Committee for examination not later than 42 days after the expiry of the time limit set for submission of public comments.

An EIA may also be submitted through the Board of Investment ('BOI') where the observations requested by the Director will be made within 7 days of the request.

In addition, the Director must then refer the EIA application to the EIA Committee not later than 14 days after the expiry of the time limit set for the submission of public comments.

The Minister of Environment and National Development Unit (the 'Minister') shall after taking into consideration the recommendations of the EIA Committee make his decision on the EIA and the Director shall, as soon as possible but not later than 7 working days after the day on which the Minister makes his decision, give notice in the Gazette and in the newspapers in which notice of application was given, of a summary of the decision of the Minister to approve, or to reject the EIA.

Application under LGA 2003

The BLU application form can be obtained from the following website

http://www.gov.mu/portal/goc/mlge/files/guide/blp3.pdf

together with a guide which sets out a complete guide in respect of the process for such application which may be obtained from the following website

http://www.gov.mu/portal/goc/mlge/files/guide/p_guide.doc

The processing fee of the application is about US$ 17.

Morocco

(i) List of key licences, permits or consents

Generally, any such Project would require a construction licence; and security and safety approval from the local administrative authorities. In addition, any foreign finance structuring should be subject to the foreign exchange authority's preliminary approval.

(ii) Are consents capable of being secured and are transferable to the lenders?

Generally, no, as these are nominee consents and approvals.

(iii) Process of application for consents

Under Moroccan administrative law, an application for any administrative license or approval will receive a formal response within two months. When any response is received from the administration, the applicant should be aware that the license or approval is implicitly given. However, in respect of construction, it is vital that a written license, with registered license number, be issued to the applicant in light of any of the designer and engineer’s detailed plans and other construction documents. With regard to safety, once the construction is completed, the civil protection authority must inspect all related water, electricity, telephone, sweeping public or private entities in order to grant an occupation authorization providing the construction is in compliance with the relevant technical standards.

 

 

Mozambique

(i) Key licences/consents: please list the key licences, permits or consents that are typically required by a project company for the design, finance, construction, operation and maintenance of a power plant.

Apart from the Concession license set out above other licenses/consents may be also required, including (i) CPI Approval, (ii) Foreign Exchange Registration/Authorization, (iii) Commercial/Industrial License, (iv) Environmental License, (vi) Land Use and Exploitation Right (“DUAT”) and (vii) Administrative Court Visa.

(ii) Security: are these consents capable of being secured and are transferable to the lenders? 

No.

(iii) Process of application: please also provide details of all conditions applicable, specifying process, timing and costs for obtaining the consents.

CPI Approval (CPI) – please see below.

Foreign Exchange Registration/Authorization – Where a non-resident entity is a party to the Concession Contract the relevant contract and/or the investment project approved by CPI, if applicable, shall be subject to prior approval of the Ministry of Finance (“MinFin”) and approval/registration with the Bank of Mozambique (“BoM”) for foreign exchange control purposes. An application for such purposes shall be submitted to BoM by the interested party directly or through a financial intermediary – normally a commercial bank – who then deals with the licensing process with BoM. The above mentioned application shall include (i) all the information and evidence necessary for the complete legal and economic description of the operation, (ii) the parties’ identification, and (iii) the total amount of the operation. Besides, BoM may require additional information and shall decide upon the request within 15 days of the date on which the application has been submitted.

Commercial/Industrial License - The Mozambican Commercial Code sets forth that a company seeking to operate in the country is required to obtain a so-called commercial license and/or an industrial license, as applicable, from the Ministry of Industry and Commerce (“MIC”). An application for such purposes shall be submitted to MIC.

Environmental License – An Environmental License has to be obtained whenever the activity to be conducted is deemed to have impact on the environment. In order to obtain such a license, an Environmental Impact Assessment (“EIA”) is required. The EIA and the relevant documentation therein shall be submitted and evaluated by the Ministry of Environment (“MICOA”).The Environmental License is required to be obtained prior to the any other licenses required for the project. 

Land Use and Exploitation Right – The implementation of projects which require the use of land are subject to prior award of Land Use and Exploitation Right (Direito de Uso e Aproveitamento da Terra – “DUAT”). For that purpose, the project company is required to comply with the procedures detailed in the Land Law and respective Regulations, such as (i) application for a DUAT, (ii) consultation with local communities, (iii) issuance of Provisional Authorization, (iv) demarcation of the land plot, (iv) project implementation, (v) payment of taxes and fees due, and (iv) relocation of any local population on site and related compensation package. The DUAT shall be issued by the relevant authority depending on extension of land required as follows (i) Provincial Government - up to 1000ha, (ii) Ministry of Agriculture - between 1000ha and 10.000ha, (iii) Council of Ministers – more than 10.000ha. This is a rather time-consuming and bureaucratic process.

Administrative Court Visa – The Concession Contract requires the Administrative Court Visa so as to be effective and enforceable.

Niger

(i) Key licences/consents: please list the key licences, permits or consents that are typically required by a project company for the design, finance, construction, operation and maintenance of a power plant.

  1. A Concession signed by the Power project and the Ministry of Mines and Energy
  2. An Environmental Permit issued by the Minstry in charge of Environment.
  3. An Authorisation to Trade issued by the Ministry of Trade and Industry.
  4. A Convention of Eligibility on the Investment Code is signed by the State of Niger and the Power project.

(ii) Security: are these consents capable of being secured and are transferable to the lenders? 

As per Article 4 of the Decree n°2004-266/PRN/MM/E dated on 14th of September 2004 (see above), the Concession is awarded directly to the entity concerned and is not transferable. However, the Concession also sets out the terms and methods of financing the investment plan of the power project.

(iii) Process of application: please also provide details of all conditions applicable, specifying process, timing and costs for obtaining the consents.

  1. The Ministry of Mine and Energy launches a tender for the concession indicating the nature and key terms of the agreement it intends to enter into and specifying the criteria of choice. 
  2. The Power project submits its candidature to apply under the terms of the concession.
  3. The Ministry of Mine and Energy and the ARM approve the dossier.
  4. The Ministry of Mine and Energy takes the dossier of concession in Council of Ministers.
  5. The Council of Ministers approves the dossier by Decree.

Nigeria

(i) List of key licences, permits or consents

The manual for the licensing process for doing business in the electric power sector in Nigeria does not list the permits and approvals required from an applicant for the grant of the same. However, the applicant will be required to provide sufficient evidence of its ability to meet the license conditions. To this end, the applicant may be required to furnish the NERC with the following consent documents/permits:

  • Certificate of incorporation and memorandum and articles of the company;
  • DPR approvals and permits to construct gas processing facilities:

Where the power plant is to be be gas-fired, the Department of Petroleum Resources ("DPR") Guidelines and Procedure for the Construction, Operation and Maintenance of Oil and Gas Pipelines and Facilities, and Guidelines for the Establishment of a Natural Gas Plant Facility in Nigeria collectively stipulate the requirements for obtaining of certain approvals, permits and/or licences from the DPR for the design, procurement, construction and operation of gas facilities and infrastructure, including gas processing plants

Oil Pipeline Licence and Permit to Survey: Where the power plant is to be gas-fired, a Permit to Survey and subsequently, an Oil pipeline Licence is required in order to be able to supply feedgas to the IPP facility through a pipeline. A Permit to Survey and an Oil Pipeline Licence are both granted by the Minister of Petroleum Resources.

Environmental impact assessment Approval Certificate from the Ministry of Environment;

Certificate of capital importation from an approved finance institution (where the investors are non-Nigerians) to satisfy NERC of the applicant is capable of meeting the capital requirements of the project;

Financing Agreements or letters of intent to fund the project by a reputable bank;

Foreign investment approvals from NIPC where the project involves foreign investors;

Registration certificate from NOTAP where the project involves transfer of technology;

Evidence of confirmation from the PHCN that the proposed connection point has the capacity to take the load which will be fed onto it.

The applicant will need to download an application form from the website of NERC (www.nercng.org) or obtain a hardcopy of same from the office of NERC.

Please note that the above list is by no means exhaustive. NERC may require additional permits/certifications depending on the peculiarities of each project.

(ii) Are consents capable of being secured and are transferable to the lenders?

Pursuant to the EPSRA, a license granted by NERC and the undertaking carried out thereunder or any part thereof cannot be assigned, transferred or secured "by way of sale, mortgage, lease, exchange or otherwise, without the prior consent of NERC". However, where the applicant so requests, and NERC considers that the circumstance so require, a license may be granted on terms and conditions which includes NERC's general or specific consent to such assignment or security.

(iii) Process of application for consents

The following represents the process of application for a license from NERC:

A copy of the application form downloaded from NERC's website (www.nercng.org) or obtained from the NERC's office. On completion, the form is signed and dated by the authorised representative of the applicant and delivered to NERC's headquarters. The application is required to be in two hard copies and a software copy contained in a CD-Rom.

The applicant on submission of the application forms pays the requisite processing fees which are non-refundable. The fees are graduated according to the installed generating capacity (in MW) of the plant.

In addition to the permits and certifications described above, the applicant is to furnish NERC with the following information:

(A) the identity of the applicant;
(B) nature and scope of the operations for which the license is sought;
(C) sufficient information to enable NERC make a full assessment of the suitability of the applicant to hold the license;
(D) information to satisfy NERC that the applicant has the financial capability to meet the license terms and conditions; and
(E) such other information as NERC may, in its discretion, require of the applicant.

On receiving the application together with other requisite information, NERC will send to the applicant an acknowledgement of receipt of the application.

Within 30 days of the receipt of the acknowledgement, the applicant is obliged to publish, at its own expense, a notice of the application and an invitation for any objections thereto by any interested party in two newspapers, and provide NERC with a copy of each. Any such objection is to be received by NERC within 21 days of the publication of the notice.

Where an objection has been lodged against the granting of the application, NERC must give the applicant notice of the hearing and publish its findings in writing. The hearing must be concluded within 3o days. In the event that NERC considers the objection to be frivolous, it can refuse any inquiry into the same.

At the disposal of the objection, or where no objection is received, NERC is obliged to process the application and notify the applicant of its decision within 6 months of the date of the acknowledgement of the receipt of the application.

On approval of the grant of the license, NERC must inform the applicant of such approval and the conditions to be satisfied and fees to be paid before the grant is to take effect. The license fees payable are also graduated in a sliding scale according to the proposed capacity (in MW) of the plant.

South Africa

(i) List of key licences, permits or consents

  • environmental consents (which are dealt with in more detail below);
  • approvals under the Excon legislation;
  • depending on whether the land has been rezoned, conditions and consents imposed pursuant to a rezoning of the land;
  • depending on the nature of the fuel being used, consents may be required for storage and piping of fuel, if the fuel used is a petroleum product or gas;
  • if water is being used in any large quantities on a project, then water permits will be required.

(ii) Are consents capable of being secured and are transferable to the lenders?

Not all of these consents are capable of being the subject matter of security taken by the lenders or transferred to the lenders. Many of these consents need to be held by the company undertaking the relevant activities (such as shipping gas). Certainly, none of them can be sold on the open market place and transfer of these consents is only with the consent of the issuing authority, who will need to be satisfied that the transferee has the resources and capability of undertaking the activities detailed on the consent and the resources to fulfil the obligations and conditions contained in the consent.

(iii) Process of application for consents

The process for application of the various permits is detailed in the relevant legislation. In addition, the relevant authority usually has details of the application procedures and forms on their website. The fees payable for the various consents will be detailed in the relevant legislation and on the website of the relevant authority.

The exception to the usual manner of proceeding is in respect of approvals under the Excon legislation managed by the Exchange Control Authority of the South African Reserve Bank ("Excon"). Only authorised dealers (namely banks appointed as such by Excon) can approach Excon for approvals under the Excon legislation. In addition, the rules and procedures applicable to such consents are not available on Excon's website, so it is essential to obtain the advice of an authorised dealer in respect of any application to Excon for approval.

Tanzania

(i) List of key licenses, permits or consents

Environmental Impact Assessment approved by the National Environmental Management Council.

Electricity generation, transmission, and distribution licences.

Business Licence.

Tax Identification Number Certificate.

Value Added Tax Certificate.

Wayleave certificate.

Building permits.

Foreign Contractor's Registration.

Working permits.

Insurance.

(ii) Are consents capable of being secured and are transferable to the lenders?

Generally, a generation, transmission, and distribution licencee can not transfer its licence to any person without the prior written consent of EWURA.

In the event that the licencee seeks to transfer its licence, it will apply to EWURA for authorisation to do so.

Similarly in the event that the licencee seeks to contract out or lease the operation of the licensed facility or part thereof, it shall notify EWURA in writing.

EWURA has the mandate to cancel or revoke licences. EWURA shall specify the grounds upon which a licence may be cancelled or revoked and these grounds may differ from one licence to another depending on the terms and conditions of each licence. However, the common grounds for revocation or cancellation of a licence include: failure by the licencee to comply with the terms and conditions of a licence; failure by the licencee to comply with any Orders issued by EWURA in respect of the licence; when the licencee is declared insolvent or when the licencee abuses its market position.

EWURA shall consult its responsible Minister, and the relevant sector Minister before cancellation of a major or exclusive licence having a term of five or more years.

(iii) Process of application for consents

EWURA has standard forms for generation, transmission, and distribution licences, as required which can be obtained from its website http://www.ewura.go.tz/applicationforms.html. The licence application fee is about USD 100.

Uganda

(i) List of key licences, permits or consents

  • The environmental clearances under the National Environmental Act, 1995;
  • The Construction permit and the Surface Water Permit also referred to as the Abstraction permit under the Water Act 1995;
  • An Investment licence issued by the Uganda Investment Authority;
  • Licence/concession for use of land under the Land Act, 1998 and
  • Riparian consents where the project impacts on water flow to other countries within the Riparian region.
  • Trading Licence
  • Electricity licences for generation, transmission and distribution.
  • Municipal Consents.

(ii) Are consents capable of being secured and are transferable to the lenders?

The licences obtained under the Electricity Act, 1999 may only be transferred with the express consent of the ERA. This requirement for consent may extend to the decision to deposit the licences as security.

(iii) Process of application for consents

There are standard forms for the application.

Zambia

(i) List of key licences, permits or consents

EIA approval decision letter (Under the Environmental Protection and Pollution Control Act, Cap 204, 1990 and approval for construction under the Town and Country Planning Act CAP 204. There is also need for Water rights under the Water Act. An Investment Certificate required for ownership of land by companies with less than 75% Zambian shareholders or foreign companies (Under the Zambia Development Act No 11 of 2006. Licences (under the Energy Regulation Act).

(ii) Are consents capable of being secured and are transferable to the lenders?

Yes. However, licences issued by the ERB cannot be transferred without its approval.

(iii) Process of application for consents

There are prescribed forms to be completed under each of the statutes and fees for each license are prescribed from time to time. The costs and timing is variable.

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