ALAN HUMPHRIES ApplicantAND:ACTEWAGL RETAIL PTY LTDRespondent
[2017] ACAT 35
•5 May 2017
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
HUMPHRIES v ACTEWAGL RETAIL PTY LTD (Energy & Water) [2017] ACAT 35
EW 1067/2010
Catchwords: ENERGY & WATER – electricity supply – feed-in premium rate – customer dealt only with the electricity distributor – no application for a feed-in premium rate made to electricity supplier until after amendments to the scheme – whether applicant entitled to the higher feed-in premium rate current at the time when his solar PV system commenced generation of electricity and feed-in to the grid – respective roles of electricity distributors and electricity suppliers
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 92
Electricity Feed-in (Renewable Energy Premium) Act 2008 ss 6, 8
Utilities Act 2000 pt 12
Subordinate
Legislation:Consumer Protection Code
Electricity Feed-in Code
Tribunal: Senior Member P Sutherland
Date of Orders: 5 May 2017
Date of Reasons for Decision: 5 May 2017
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) EW 1067/2010
BETWEEN:
ALAN HUMPHRIES
Applicant
AND:
ACTEWAGL RETAIL PTY LTD
Respondent
TRIBUNAL: Senior Member P Sutherland
DATE:5 May 2017
ORDER
The Tribunal orders that:
The application is dismissed.
………………………………..
Senior Member P Sutherland
REASONS FOR DECISION
This application was originally made as a complaint application under Part 12 of the Utilities Act 2000 by the applicant, Mr Alan Humphries, on 12 October 2010. The applicant made a complaint that the feed-in tariff from his solar PV system should be paid from an earlier date, and at a higher rate, than determined by his electricity supplier, ActewAGL Retail.
The respondent initially opposed the complaint application on the basis that the ACT Civil and Administrative Tribunal (the ACAT) had no jurisdiction to consider it. This was clearly incorrect as the ACAT has jurisdiction to consider the complaint application under section 5.3 of the Electricity Feed-in Code and Part 12 of the Utilities Act 2000 (see ‘The Legislative Framework’ below).
An investigation and conciliation process conducted by the ACAT was not successful and therefore the matter was referred to a hearing process. A directions hearing was held on 14 February 2011, as a result of which subpoenas were issued to the installers of the applicant’s solar PV system. A full hearing of the application was held on 28 October 2011 and the decision was reserved.
Unfortunately, a decision in this matter was not made. The absence of a decision came to the attention of the ACAT recently. The ACAT apologises to the parties for this unfortunate oversight. Because the member who conducted the hearing is no longer appointed to the ACAT, the President of ACAT, acting under section 92(2) of the ACT Civil and Administrative Tribunal Act 2008, appointed Senior Member Peter Sutherland to constitute the Tribunal for application EW 1067/2010, replacing the member previously allocated for the application.
In these reasons for decision, the tribunal is referred to as ‘the ACAT’ and Senior Member Sutherland as ‘the Tribunal’.
The Tribunal had before it the following material and evidence:
(a) the complaint investigation file;
(b) documents submitted by the parties for the original hearing;
(c) documents provided on subpoena by the solar PV system installer; and
(d) a full recording of the hearing held on 28 October 2011.
The Tribunal is satisfied that there is sufficient documentary and other evidence available to it to make a correct decision, without any need for an additional hearing or further submissions by the parties.
Background to the complaint
In early 2010, the applicant entered into an agreement with Solargain to supply and install a 3KW solar PV system on the roof of his house in Weston Creek. He was aware of the feed-in tariff paid for domestic solar electricity generation under the Electricity Feed-in (Renewable Energy Premium) Act 2008 (the Feed-in Act) and entered the agreement with the expectation that he would receive the 50.05 cents per kWh subsidy provided at that time under that scheme for all electricity fed into the grid. He completed a number of forms provided by Solargain in March 2010 and Solargain arranged for these to be submitted to ActewAGL Distribution together with required technical documents, including a ‘Request for service – electrical works request’, ‘Special connection request’ and a ‘Certificate of Electrical Safety’.
On 27 May 2010, Michael Charlton, General Manager Networks, ActewAGL Distribution wrote to the applicant giving approval for the specified inverter to be connected to the electricity network “subject to the following important information”. The letter then advised that “in addition to ActewAGL’s approval, other regulatory notifications and approvals may be required in relation to the inverter, for example approval from the Construction Occupations and Land Regulation section of ACTPLA. It is your responsibility to ensure your contractor obtains all of the required approvals for connection of the inverter”. The letter listed other compliance requirements of a technical nature and referred to the terms of the company’s “Renewable energy generator connection contract”. The letter made no mention of the vital role that an electricity supplier (retailer) also played in the process of obtaining the feed-in tariff premium.
On 7 June 2010, the applicant paid the required fee for installation of a new meter. On 18 June 2010, after inspections by ACTPLA and ActewAGL Distribution, the inverter and meter were connected to the grid and the solar PV system commenced supplying electricity to the grid.
On 1 July 2010, a new, reduced, feed-in tariff premium rate of 45.7 cents per kWh commenced and continued to be available to new customers until 30 June 2012 when new entry to the Government feed-in tariff scheme was closed. Customers will continue to receive the feed-in premium, at the relevant rate for their supply, for 20 years after connection.
In early September 2010, the applicant received an electricity account and quickly made a complaint to his electricity retailer, ActewAGL Retail, that he was not receiving the feed-in tariff and also about other aspects of the account. He was advised that he could not be paid the feed-in tariff until an ‘Application for Electricity Feed-in Renewable Energy Generation scheme’ was received by ActewAGL Retail. The applicant completed this application form on 22 September 2010 and ActewAGL Retail advised him that his payment per kWh exported energy would be 45.7 cents (GST exclusive) from 30 August 2010.
The Legislative Framework
The Feed-in Act provides for an additional payment to an electricity customer for electricity generated by the customer’s rooftop solar installation and exported to the grid. Section 6 of the Act, in its form between 2009 and 2011, provided:
6. Feed-in from renewable energy generators to electricity network
(1)This section applies to—
(a)an electricity distributor licensed to distribute electricity through an electricity network; and
(b)an electricity supplier licensed to supply electricity from the network.
(2)It is a condition of the distributor’s licence that the distributor must, on application by the occupier of premises at which there is an NEL compliant renewable energy generator—
(a)connect the generator to the distributor’s network to enable electricity generated by the generator to be supplied to the network; and
(b)reimburse the utility that is the electricity supplier to the premises the difference between—
(i)the amount payable under subsection (3) for electricity generated by the generator; and
(ii)the normal cost of that electricity; and
(c)pass on to the occupier any additional metering costs in relation to electricity generated by the generator.
(3)For the electricity supplier mentioned in subsection (2), it is a condition of the supplier’s licence that the supplier must, on application by the occupier of premises at which there is an NEL compliant renewable energy generator connected to the electricity network, pay the occupier in accordance with section 8 (Payment for electricity from renewable energy generators) for the total amount of electricity generated by the generator on or after the day the application is made.
Section 8 of the Feed-in Act provides for the rate of payment, as determined in an instrument made under section 9.
The Electricity Feed-in Code (the Feed-in Code) is an applicable industry code under Part 4 of the Utilities Act 2000. It was originally determined on 27 February 2009 by the Independent Competition and Regulatory Commission (the ICRC) and has since been repealed and substituted on several occasions. Part 4 of the Code at the relevant time (2010) outlined ‘Distributor Obligations’, including:
4.1 Distributor to detail arrangements to supplier
The electricity distributor must,
(a) upon request, provide to an electricity supplier a statement of the terms on which it will provide the relevant distributor actions. The Network Use of System Agreement will apply to the distributor actions so far as relevant.
(b) upon application from an occupier, which may be received via the occupier's chosen electricity supplier, provide the relevant distributor actions in accordance with a negotiated contract with the occupier, either directly or via the electricity supplier as agent of the electricity distributor for that purpose.
4.2 Distributor to alert supplier and occupier of start dates
The electricity distributor must, as part of its response to an application for distributor actions, inform the electricity supplier and the electricity supplier must inform the occupier of the date from which the 20-year period for the payment of a premium rate as provided for in section 11 of the Electricity Feed-in Act commenced.
Part 5 ‘Supplier Obligations’ of the then Code included the following provisions:
5.1 Supplier to detail arrangements to occupiers
The electricity supplier must, by a separate negotiated contract or through amendment of an existing contract, provide a statement of the terms on which it will provide the supplier actions to an occupier from whom an application has been received. Items (a) to (c) are the minimum requirements for inclusion:
(a) the information that will be provided to occupiers when a payment for renewable energy is made, including the amount and value of any energy generated from the premises
(b) the frequency of payments
(c) the method and circumstances of payment to occupiers.
A contract may provide that payments can be by way of an offset against the occupier's electricity account.
…
5.3 Dispute resolution-occupier disputes
Disputes between electricity suppliers and occupiers of premises in relation to the Electricity Feed-in Scheme will be resolved in accordance with the Utilities Act and the Consumer Protection Code.
Submissions by the parties
The applicant submitted that the feed-in tariff premium paid for his supply of solar electricity into the grid should be 50.05 cents per kWh, the rate applying when his system was connected to the grid in June 2010. He identified several reasons why the respondent should accept this position.
Firstly, he completed all the documents provided by Solargain in March 2010, including an ‘Application for Electricity Feed-in Renewable Energy Generation scheme’.
Secondly, he received the letter dated 22 May 2010 from ActewAGL confirming approval of his feed-in tariff. The company was under an obligation to inform him at that time if any further paperwork was required, particularly as he telephoned the company after receipt of the letter and asked if anything else was required. The applicant submitted that no distinction should be drawn between the distributor, ActewAGL Distribution, and the supplier, ActewAGL Retail, as all of their company promotion suggested it was one organisation. The letterheads were visually very similar, with only small type at the bottom of the page naming separate entities; one telephone number was advertised for both companies; and each entity was in an agency relationship with each other. Section 4.2 of the Consumer Protection Code made a utility responsible for the conduct of its agents.
Thirdly, ActewAGL had a duty to inform him that they did not have an application form from him.[1] For example, the applicant specifically asked the ActewAGL technician who installed the meter in June 2010 whether there was anything else and the technician replied “you should be getting paid for your power now”.
[1] Section 6 of the Feed-in Act and section 2.2 in Part 5 of the Consumer Protection Code
Mr Male for the respondent submitted that ActewAGL Distribution and ActewAGL Retail were two separate companies with very distinct roles under the National Electricity Law (NEL). The distributer is a regulated monopoly which is required to deal evenhandedly with all retailers licensed to supply electricity in the ACT. Strict ring fencing protocols are in place, and ActewAGL Distribution generally does not know who is the retailer for a particular customer, except where the customer divulges this information to them. There is no agency arrangement between the two companies and any such arrangement would be a serious breach of the NEL. In addition, the two entities have a distinct separation arising from a 50% ownership difference.
Mr Male submitted that the primary issue was that the applicant had failed to submit an application to a retailer before 1 July 2010. The applicant relied on his agent, Solargain, and they caused the problem. ActewAGL Distribution had no obligation to chase up outstanding paperwork and its staff, because of ring fencing obligations, are not allowed to refer customers to ActewAGL Retail.
Consideration and findings
The key issue in this case is whether an application was made to an electricity retailer before 1 July 2010. Section 6(3) of the Feed-in Act makes it clear that payment of a premium to a customer must be made “on application by the occupier of premises at which there is an NEL compliant renewable energy generator connected to the electricity network” and that payment is for electricity generated “on or after the [retail] application is made”. This application could be made by an authorised agent (such as the solar installer), but it cannot be deemed to be a responsibility of the distributor.
The applicant was “absolutely” sure that he completed a retailer application form at the time that he was signing paperwork with Solargain in March 2010. I accept this evidence, but it does not show that the form was received by ActewAGL Retail. Other outcomes are far more likely: the applicant retained the form and it was not lodged; Solargain mislaid or did not post the form to ActewAGL Retail; the form was given to ActewAGL Distribution but they did not convey it to ActewAGL Retail; or the form was lost in the post. While it is possible that ActewAGL Retail received the first application form but failed to action it, I consider this to be unlikely when compared with the other possibilities.
On the basis of the documents and the evidence given at the hearing, I find that ActewAGL Retail did not receive an application for feed-in tariff until September 2010, and it is that application which establishes the applicant’s entitlements.
On the basis of these findings, I conclude that applicant was correctly paid the feed-in premium rate of 45.7 cents per kWh from a commencement date in September 2010.
Additional observations
The above findings and conclusion means that I do not have to consider the several cogent submissions made by the applicant. However, understanding the difficult position in which the applicant was placed, and acknowledging the unfortunate delay in finalising this complaint, I wish to make some additional observations about the applicant’s submissions.
In my opinion, it is likely that a breakdown in communication occurred in the original meeting with Solargain. The documents provided on subpoena do not include a copy of the retail application form, however this is of little evidentiary value in determining whether such a document was completed but not actioned by Solargain. It is regrettable that Solargain appears not to have had clear procedures for advising clients of the full range of documentation required and who would take responsibility for each required action.
I strongly sympathise with the applicant’s submission that the presentation of ActewAGL Distribution and ActewAGL Retail as complementary businesses meant that he did not understand their respective roles. This confusion of identity has continued to be a problem which, hopefully, will be addressed by the forthcoming “rebranding” of ActewAGL Distribution. One instance of this confusion of identity even occurred in the course of the hearing when Mr Male, the representative of ActewAGL Retail, appeared to start speaking on behalf of both entities when he commented that it was “neither ActewAGL Distribution’s or ActewAGL Retail’s fault that the application never made it to ActewAGL Retail”.
However, I cannot accept the applicant’s submission that ActewAGL Distribution was required to advise him of the need for an application to ActewAGL Retail. The distributor and the retailer are separate entities, subject to strict ring fencing requirements under the NEL. In particular, it would not be appropriate for a meter technician employed by ActewAGL Distribution to refer the applicant to a particular retailer. Having said this, it is regrettable that ActewAGL Distribution’s written communications, such as the letter dated 27 May 2010, did not advise generically about the retailer role in obtaining a solar feed-in tariff.
………………………………..
Senior Member P Sutherland
HEARING DETAILS
FILE NUMBER: | EW 2110/2010 |
PARTIES, APPLICANT: | Alan Humphries |
PARTIES, RESPONDENT: | ActewAGL Retail Pty Ltd |
COUNSEL APPEARING, APPLICANT | N/A |
COUNSEL APPEARING, RESPONDENT | Mr Ian Male, Deputy General Counsel |
SOLICITORS FOR APPLICANT | N/A |
SOLICITORS FOR RESPONDENT | ActewAGL |
TRIBUNAL MEMBERS: | Senior Member Peter Sutherland |
DATES OF HEARING: | 28 October 2011 |
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