Part 1 Preliminary
1 Name
of Rules
These Rules are the Water Charge (Termination
Fees) Rules 2009.
2 Commencement
(1) Part 1 and rule 8 commence on the day after these
Rules are registered.
(2) The remaining provisions of these Rules commence on
1 September 2009.
3 Definitions
Act means the Water Act 2007.
business day does not include a Saturday,
Sunday or day that is a public holiday.
civil penalty
means a civil penalty within the meaning of Division 4 of Part 8 of the
Act.
Note Subsection
92 (9) of the Act provides that the civil penalty for a contravention of a
provision of water charge rules is 200 penalty units.
Subsection 147 (3) of the Act provides that the pecuniary
penalty for a contravention of a civil penalty provision must not exceed:
(a) if
the wrongdoer is an individual — the relevant amount specified for the
civil penalty provision; or
(b) otherwise —
an amount equal to 5 times the amount of the relevant amount specified for the
civil penalty provision.
contract includes agreement.
right of access, in relation to an irrigation
infrastructure operator’s irrigation network, includes a right to the delivery
of water and a right to the drainage of water through that network.
terminating irrigator means:
(a) a person who terminates or surrenders the
whole or a part of a right of access to an irrigation infrastructure operator’s
irrigation network or services provided in relation to such a right by notice
in writing given to the operator; or
(b) a person whose right of access to an
irrigation infrastructure operator’s irrigation network or services provided in
relation to such a right is terminated by notice in writing given by the
operator in accordance with a contract or arrangement applicable to the right
on the grounds that the person is in breach of the person’s obligations under
the contract or arrangement.
total network access charge, for the purposes
of the calculation of a fee under rule 7 in respect of the termination or
surrender of a right of access to an irrigation infrastructure operator’s
irrigation network, means the total amount payable in respect of a financial
year by a terminating irrigator, including amounts payable in respect of the
recovery of expenditure on capital works, but does not include:
(a) any amount calculated by reference to the
number of units or volume of water actually delivered to the terminating
irrigator; or
(b) if a service for the storage of water is
provided in addition to the service for the delivery of water, any amount in
respect of the service for the storage of water; or
(c) any amount imposed as a fee in respect of
the costs of connecting, or disconnecting, the terminating irrigator to the operator’s
irrigation network; or
(d) any amount that exceeds an amount based on
the recovery of the costs (whether recurrent or capital) incurred by the
operator in relation to the provision of the right of access or services
provided in relation to that right; or
(e) if a fee payable under a contract is
approved under rule 8, any amount payable under the contract in respect of the
recovery of expenditure on capital works relating to the operator’s irrigation
network carried out, or to be carried out, within 5 years after the contract
was entered into.
4 Right
of access not terminated or surrendered by transfer or assignment
For the purposes of these Rules, a person who
transfers or assigns to another person the whole or a part of a right to access
to an irrigation infrastructure operator’s irrigation network does not, by
reason only of the transfer or assignment, terminate or surrender the whole or
a part of the right of access or services provided in relation to that right or
a part of that right.
Part 2 Certain fees prohibited
5 Prohibition
of certain fees and charges
(1) Except as expressly authorised under Part 3, an
irrigation infrastructure operator must not impose, demand or receive, or cause
to be imposed, demanded or received, a fee, charge or payment of any kind for
or in respect of the termination or surrender of the whole or a part of a right
of access to the operator’s irrigation network or of services provided in
relation to that right or a part of that right.
Civil penalty: 200
penalty units.
(2) Subrule (1) does not apply to:
(a) fees authorised under the Water Market
Rules 2009; or
(b) fees imposed, demanded or received in respect
of the termination or surrender, before 1 September 2009, of the whole or a
part of a right of access to the operator’s irrigation network or of services
provided in relation to that right or a part of that right.
Part 3 Termination fees
6 Termination
fee may be imposed in certain circumstances
(1) An irrigation infrastructure operator may impose a
fee calculated in accordance with rule 7 if:
(a) a person who holds a right of access to the
operator’s irrigation network terminates or surrenders the whole or any part of
that right or services provided in relation to that right by notice in writing
given to the operator; or
(b) the operator, by notice in writing given to a
person who holds a right of access to the operator’s irrigation network,
terminates the whole or any part of that right or services provided in relation
to that right in accordance with a contract applicable to the right on the
grounds that the person is in breach of the person’s obligations under that
contract.
(2) Subrule (1) does not apply:
(a) if:
(i) the holder of the right of access
to an irrigation infrastructure operator’s irrigation network is not liable to
pay charges to the operator in respect of the right; and
(ii) a fee in respect of the
termination or surrender of the right or a part of the right is not specified
in any contract or arrangement between the holder and the operator; or
(b) if the holder of the right of access to an
irrigation infrastructure operator’s irrigation network:
(i) is provided by the operator with a
service for the storage of water in addition to the service for the delivery of
water; and
(ii) the charges for the service for
the storage of water are included in the charges in respect of the right of
access.
7 Calculation
of termination fee
A fee imposed by an irrigation infrastructure
operator under subrule 6 (1) must not exceed:
(a) the amount determined by multiplying by 10:
(i) where the whole of a right of
access, or services provided in relation to the whole of such a right, are
terminated or surrendered, the total network access charge payable to the
operator by the holder of the right in respect of the financial year in
which notice of termination or surrender is given; or
(ii) where a part of a right of access,
or services provided in relation to a part of such a right, are terminated or
surrendered, the proportion of the total network access charge payable to the
operator by the holder of the right in respect of the financial year in
which notice of termination or surrender is given, being the proportion that is
applicable to that part of the right; or
(b) if the fee for the termination or surrender
of a right of access or a part of a right of access, or of services provided in
relation to the whole or a part of such a right, are provided for in a contract
or arrangement between the operator and the holder of the right, the fee
determined in accordance with the contract;
whichever is the lesser.
8 Approval
of additional fee payable under certain contracts relating to capital works
(1) If, under a contract between an irrigation
infrastructure operator and 1 or more holders of rights of access to the
operator’s irrigation network in relation to the carrying out, within 5 years
after the entering into of the contract, of capital works relating to the
irrigation infrastructure operator’s irrigation network, provision is made for
the payment by a terminating irrigator of a fee relating to the recovery
of that capital expenditure, a party to the contract may, within the period
referred to in subrule (2), apply to the ACCC for approval of that fee as a fee
payable by each terminating irrigator in addition to the fee determined under
rule 7.
(2) The period within which an application may be made
under subrule (1) for the approval of a fee under a contract referred to in
that subrule is:
(a) the period commencing on the day after these
Rules are registered and ending at the expiration of 6 months after that day;
or
(b) the period of 3 months after the date on
which the contract was entered into;
whichever is the later.
(3) If:
(a) an application is made to the ACCC under
subrule (1) for approval of the fee as determined in accordance with a contract
referred to in that subrule; and
(b) the ACCC is satisfied that the contract:
(i) relates to, or is made in anticipation
of, the carrying out by the irrigation infrastructure operator, within 5 years
after the contract is entered into, of capital works relating to the operator’s
irrigation network; and
(ii) provides for fees payable for
access to the operator’s irrigation network by the holders of rights of access
that reasonably relate to the recovery by the operator of expenditure on those
capital works in an amount not exceeding the actual, or a reasonable estimate
of, expenditure by the operator; and
(iii) provides for a fee payable to the
operator by a terminating irrigator that was agreed by each party to the
contract in the course of fair and reasonable negotiation, is clearly stated
and is not subject to variation without the agreement of the holders of the rights
of access; and
(c) the ACCC is satisfied that the operator
advised the holders of rights of access who are parties to the contract of the
general effect of these Rules; and
(d) the ACCC, in accordance with this rule, and
having regard to the water charging objectives and principles, approves the fee
referred to in subparagraph (b) (iii);
the fee is payable by each terminating irrigator.
(4) If a person makes an application to the ACCC under
subrule (1) for approval of a fee determined in accordance with a contract
referred to in that subrule and provides the ACCC with:
(a) a copy of the contract; and
(b) the contact details of the parties to the
contract; and
(c) such details of contracts entered into, and
arrangements made, for the carrying out of capital works relating to the
operator’s irrigation network within the period referred to in subparagraph (3) (b) (i)
as are sufficient to confirm that the works have been, are being or are to be
carried out; and
(d) any further information requested by the ACCC;
the ACCC:
(e) must decide whether or not to approve the
fee; and
(f) must give notice in writing of its decision
to each of the parties to the contract; and
(g) if it decides not to approve the fee, must
include in the notice under paragraph (f) the reasons for refusing approval.
(5) If the ACCC does not make a decision under subrule
(4) within a period of 30 business days after receiving an application under
subrule (1), the ACCC is taken to have made a decision, at the end of that
period, to approve the fee and to have given notice of the decision under
paragraph (4) (f).
(6) In calculating a period of 30 business days referred
to in subrule (5), disregard, if the ACCC has requested further information in
relation to the application, a day during any part of which the request, or any
part of the request, remains unfulfilled.
(7) If the ACCC:
(a) is unable to make a decision within the
period of 30 business days referred to in subrule (5); and
(b) within that period, gives written notice to
the person who makes an application under subrule (1) explaining why the ACCC
has been unable to make a decision on the fee within that period of 30 business
days;
the period of 30 business days referred to in subrule (5) is
extended by a further period of 30 business days.
9 Liability
to pay termination fee
(1) A person who, by notice in writing given to an
irrigation infrastructure operator, terminates or surrenders the whole or any
part of a right of access, or services provided in relation to the whole or a
part of a right of access:
(a) unless subrule 6 (2) applies, must pay
the fees (if any) imposed by the operator under rule 7; and
(b) if any fees are payable by that person under
rule 8, must pay those fees.
(2) A person whose right of access, or services provided
in relation to a right of access, are terminated in whole or in part by an
irrigation infrastructure operator by notice in writing given to the person:
(a) unless subrule 6 (2) applies, must pay
the fees (if any) imposed by the operator under rule 7; and
(b) if any fees are payable by that person under
rule 8, must pay those fees.
Part 4 Disconnection fee
10 Disconnection
fee
(1) Subject to subrule (2), nothing in these Rules
prevents an irrigation infrastructure operator imposing a fee in respect of the
reasonable costs incurred by the operator by reason only of removing or
disabling a physical connection between the operator’s irrigation network and
the infrastructure of a person who holds or has held a right of access to that
irrigation network.
(2) A fee imposed for the purposes of subrule (1) must
be identified as a disconnection fee, whether or not it is payable at the same
time as a fee under Part 3.
Part 5 General
11 Right
to terminate right of access not affected
Nothing in these Rules affects the right of an
irrigation infrastructure operator to terminate the whole or any part of a
right of access to the operator’s irrigation network or services provided in
relation to such a right in accordance with a contract or arrangement
applicable to that right or those services but a fee, charge or payment of any
kind is not payable in respect of such a termination except as expressly
authorised under Part 3.