Griffiths v Washington-King
[2018] ACAT 98
•15 October 2018
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
GRIFFITHS AND ANOR V WASHINGTON-KING AND ANOR (Appeal) [2018] ACAT 98
AA 25/2018 (RT 287/2018)
Catchwords: APPEAL – residential tenancies – solar panel feed-in tariff – whether the lessors must, under the National Energy Retail Law, apply the feed-in tariff to the tenants’ electricity bill – additional lease clause stating that the tenants agree they are not eligible for feed-in tariff and to pay for electricity supply and consumption charges – whether additional clause is enforceable – appeal allowed – no obligation on the lessor under the NERL to apply the feed-in tariff to the tenant’s electricity bill – additional lease clause enforceable
Legislation cited: Electricity Feed-in (Renewable Energy Premium) Act 2008 ss 6, 8, 11
National Energy Retail Law ss 2, 88
National Energy Retail Law (ACT) Act 2012 ss 6, 8
National Energy Retail Law (South Australia) Act 2011 (SA), Schedule 1
Residential Tenancies Act 1997 s 8, 9, 10 standard terms, 43, 46
Cases cited:Commissioner for Social Housing v Fowler [2016] ACAT 133
MacDonald v Melville [2017] QCATA 142
List of
Texts/Papers cited: Australian Energy Regulator (Retail) Exempt Selling Guideline, Version 5, March 2018
Tribunal: Presidential Member G McCarthy
Date of Orders: 15 October 2018
Date of Reasons for Decision: 15 October 2018
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 25/2018
BETWEEN:
KYNAN GRIFFITHS
First Appellant
PHILIPPA DAVIES
Second Appellant
AND:
JOELENE WASHINGTON-KING
First Respondent
JASON WASHINGTON-KING
Second Respondent
TRIBUNAL: Presidential Member G McCarthy
DATE: 15 October 2018
ORDER
The Tribunal orders that:
The appeal is allowed
The order dated 12 June 2018 is set aside.
The respondents pay the appellants $306.37.
………………………………..
Presidential Member G McCarthy
REASONS FOR DECISION
This appeal concerns the appellant lessors’ entitlement to an electricity feed-in tariff payable under the Electricity Feed-in (Renewable Energy Premium) Act 2008 (the Electricity Feed-in Act), and whether the respondent tenants may claim the benefit of the tariff to offset the electricity supply and consumption charges to the tenanted premises.
The opportunity to access the feed-in tariff under the Electricity Feed-in Act, in the way the appellants did, ceased on 1 June 2011.[1] Different legal and factual arrangements then operated, and now operate, concerning the use of electricity generated by solar panels and the benefits provided. Nothing in this decision should be construed as applicable to these later arrangements.
Background
[1] Electricity Feed-in (Renewable Energy Premium) Act 2008 sections 6 and 8
Sometime prior to 1 June 2011, the appellants installed solar panels on the roof of their residential property in Canberra to supply electricity to the network (or grid) and applied for periodic payments under the Electricity Feed-in Act for the electricity supplied. Under section 11 of the Electricity Feed-in Act, the periodic payments at the premium rate are payable for 20 years from the date of connection.
Under a lease dated 16 October 2017 (the Lease) the appellants leased their property (the leased premises) to the respondents. The lease commenced on 10 November 2017. Clause 46 of the Lease[2] provides as follows:
The tenant is responsible for all charges associated with the consumption of services supplied to the premises, including electricity, gas, water and telephone.
[2] Clause 46 repeats and adopts clause 46 of the standard residential tenancy terms under Schedule 1 to the Residential Tenancies Act 1997
The Lease includes an additional clause, among others, headed “Solar Panels & Feed-in tariff” (the additional clause) which states:
Solar Panels & Feed-in tariff
The property has a solar panel system installed that generates electricity and a feed-in tariff is paid by the electricity service provider to the owner of the property. The tenant agrees not to connect the electricity account in their name and that they will be invoiced for electricity supply and consumption charges under the terms of this tenancy. The tenants acknowledge that they are not eligible for the feed-in tariff and that they must pay the supply and consumption charges shown on the account when it is received. Should the tenants change or modify the connection details for the electricity services they acknowledged that they may be liable to compensate the owner for any loss, including lost feed-in tariff.
The appellants hold an electricity account in their own name for the leased premises with an electricity service provider, ActewAGL. Each quarter, ActewAGL sends the appellants a tax invoice itemising:
(a)the amount payable by the appellants for the supply of electricity to the leased premises and the electricity consumed during the quarter; and
(b)the amount payable by ActewAGL to the appellants for electricity supplied to the network from their solar panels during the quarter.
ActewAGL’s tax invoice dated 27 February 2018 for the quarter 24 November 2017 to 22 February 2018 provided the following information:
New charges
Supply charges - 24/11/2017 to 22/02/2018
91 days at $0.874000 $87.48
Electricity consumption charges
1,006kwh x $0.197800 $218.89
New charges $306.37
Credits, rebates and discounts
Renewable energy generator payment (credit)
316.11kwh x $0.45700 $144.46 CR
440.89kwh x $0.45700 … $201.49 CR
$345.95 CR
Credits, rebates and discounts $345.95 CR
TOTAL $39.58 CR
Pursuant to clause 46 and the additional clause, the appellants’ property management agent sent a tax invoice dated 26 March 2018 to the respondents seeking payment of $306.37 for electricity supply and consumption charges for the period 24 November 2017 to 22 February 2018. The agent attached a copy of ActewAGL’s tax invoice to evidence calculation of the charge.
By application dated 17 May 2018 filed with the Tribunal, the respondents disputed their liability to pay the agent’s tax invoice. They contended that the feed-in tariff should be passed on to them, with the result that they were not liable to pay anything. They agreed however that the appellants were entitled to receive or retain the credit amount owing of $39.58. The respondents relied on two grounds in support of their claim.
First, they contended that under condition 13 of the AER (Retail) Exempt Selling Guideline (the Guideline)[3] issued by the Australian Energy Regulator (the AER), the feed-in tariff must be applied towards reduction of their electricity bill.
[3] Version 5 issued March 2018
Second, they contended that the additional ‘solar panel’ clause in the Lease is unenforceable because it is ‘prohibited by statute’, meaning the Residential Tenancies Act 1997 (the RT Act).
The original Tribunal heard the respondents’ application on 12 June 2018. At the end of the hearing, the original Tribunal gave ex tempore reasons for its decision as follows:
So I did have an opportunity to have a look at the Queensland case, [which] was on another point so it wasn’t of any use. But I had a look at the Australian electricity regulations and rules, Australian Energy Regulator law and the guideline, which takes effect as a law, and I was somewhat surprised to see that landlords can be classified as sellers of electricity. It’s not something that would intuitively occur because the tenant’s primary obligation arises out of the terms of the tenancy agreement, not a contract of sale. But the guidelines do form part of the law and they do specifically say that lessors can be regarded as sellers and in that circumstance they are required to apply a rebate to any of the amounts charged.
So I find, for that reason, that’s one of the reasons I’m finding that the tenant is not liable to pay for the full - well, for the unrebated electricity charges. They’re only liable to pay if there were to be a net debit after the rebate has been applied. They’d only be liable to that extent, and one reason is that the Australian Energy Regulator has been applied in the ACT, it’s law in the ACT, and the guidelines take effect as law and under those guidelines the lessor is a seller of energy and they are required to apply a rebate before they require the tenant to pay that amount. The second reason is that the special condition is not consistent with clause 46 under the Residential Tenancy Act and the special condition has not been endorsed and there’s a question about whether the tribunal could or would endorse it, given the first point, but it’s not endorsed and it’s not consistent because charges in clause 46, the natural interpretation of that, means what’s actually charged after the application of a rebate. But in any case either of those reasons is sufficient to say that the tenant is only liable for so much of the electricity bill that isn’t accounted for by the solar rebate. So I suppose that’s by way of a declaration because you haven’t actually paid anything.
MS WASHINGTON‑KING: No.
So it’s really a declaration that the tenant is not indebted in that amount for that reason. Okay. Thank you very much for your time this morning.[4]
[4] Transcript of proceedings, 21 June 2018, page 11, lines 32-36
Arising from its reasons, the original Tribunal made the following order:
Upon finding that the tenants are only liable for charges associated with consumption of electricity supplied to the premises after the application of the Solar Panel Feed in Tariff rebate is applied, the Tribunal declares that the tenants are not indebted to the lessor as alleged or at all in relation to the Tax Invoice dated 26 March 2018 issued by the lessor’s agent for electricity consumption.
By application dated 10 July 2018, the appellants appealed from the original Tribunal’s order. The appellants contended (in summary):
(a)the original Tribunal erred in law by finding that the Guideline required the appellants to apply the feed-in tariff when calculating the amount payable by the respondents for electricity; and
(b)the original Tribunal erred in law by finding that the additional clause in the Lease is inconsistent with clause 46 and therefore void.
The Exempt Selling Guideline
The first ground of appeal requires, as a preliminary step, an understanding of the enforceability of the Guideline as a law of the Australian Capital Territory.
The Commonwealth Government has established the National Energy Customer Framework (the NECF) to regulate the connection, supply and sale of energy (electricity and gas) to grid-connected residential and small business energy customers. The NECF is comprised of the National Energy Retail Law (the Retail Law), the National Energy Retail Regulations and the National Energy Retail Rules. The AER monitors and enforces the NECF.
By reason of the limitations on the Commonwealth’s legislative power under the Constitution, the Commonwealth could not itself enact the Retail Law. Its operation in a State depends upon its adoption by the State as part of its domestic law. South Australia was the first to do so, in March 2011, when it passed the National Energy Retail Law (South Australia) Act 2011 (the SA Act). The Retail Law is set out in the Schedule to the SA Act, and forms part of the law of South Australia pursuant to the SA Act.
The SA Act is sometimes described as the ‘host jurisdiction’. Other States and the Territories can, as they prefer, adopt the Retail Law as part of its domestic legislation. To date, the ACT, NSW, Queensland and Tasmania have done so.
The ACT adopted the Retail Law by means of the National Energy Retail Law (ACT) Act 2012 (the ACT Act), section 6 of which states:
Application of National Energy Retail Law
(1) The National Energy Retail Law set out in the schedule to the South Australian Act as amended from time to time—
(a) applies as a territory law; and
(b) as so applying may be referred to as the National Energy Retail Law (ACT); and
(c) so applies as if it were part of this Act.
The words ‘the South Australian Act’ are defined in the Dictionary to the ACT Act as the National Energy Retail Law (South Australia) Act 2011.
Section 88 of the Retail Law, which applies as a Territory law under section 6 of the ACT Act, states:
88—Requirement for authorisation or exemption
(1) A person (the seller) must not, in this jurisdiction, engage in the activity of selling energy to a person for premises unless—
(a) the seller is the holder of a current retailer authorisation; or
(b) the seller is an exempt seller.
‘Exempt seller’ is defined in section 2 of the Retail Law as follows:
exempt seller means a person who is exempted by the AER under Division 6 of Part 5 from the requirement to hold a retailer authorisation.
The AER has published the Guideline to assist energy sellers’ understanding of the Retail Law and whether they need a retailer authorisation, are deemed to be exempt from requiring authorisation or are eligible to be exempted by the AER from that requirement. The Guideline commences as follows:
1 About this guideline
Under the National Energy Retail Law (Retail Law), any person or business who sells energy to another person for use at premises must have either a retailer authorisation or a retail exemption.
If energy selling is your main business, you are selling to large numbers of customers or selling in a number of states and territories, you will probably need a retailer authorisation. If you want to sell energy at a specific site, to customers you already have a relationship with, or have plans for small-scale selling activities, you may be eligible for a retail exemption. This guideline is for those energy sellers that need a retail exemption.
Relevant to this case, an initial question was whether the appellants were (or are) energy sellers for the purposes of section 88 of the Retail Law. Section 2 of the Guideline provides assistance as follows:
2 Are you an energy seller?
If you sell gas or electricity to a person or business for use at premises, and you itemise that cost in a separate, discrete charge, it is likely that you are an energy seller under the Retail Law.
Energy selling covers a wide range of activities, from energy retailing by authorised retailers to households and businesses to landlords recovering energy costs from their tenants.
Energy ‘sales’ do not necessarily have to be for profit—even passing on energy at cost to another person is a sale. But we do not consider energy is being sold where energy costs are only one part of another fixed charge (for example, a hotel tariff or rent that includes energy costs), or where the costs are shared (for example, in a group house or a community facility).
Some examples of a sale of energy could include:
· energy sold to a long term resident of a caravan park, based on the resident’s metered consumption
· energy sold to tenants of a residential apartment block based on each residents’ metered consumption (but not included in rent)
· energy costs passed through—at no profit—from a landlord to a tenant
· unmetered energy where a commercial landlord is billed and then apportions the cost between tenants
· energy sold to builders working on a construction site, even though it’s on a temporary basis
· energy sold through power purchase agreements to supplement the energy a customer buys from an authorised retailer.
The Retail Law does not define ‘premises’. We consider it has a broad application and we take a pragmatic approach to interpreting it.
If a person is an energy seller, the person requires an authorisation or an exemption to sell energy. Section 3 of the Guidelines states:
3 Do you need an authorisation or an exemption?
If you sell energy in any state or territory where the Retail Law applies, you must hold either a retailer authorisation or an exemption from the requirement to hold an authorisation (but not both). This section of the guideline will help you decide if you need an authorisation, or if you may instead seek a retail exemption. Penalties apply for sellers of energy who do not have an authorisation or an exemption.
Section 3.1 and section 3.2, respectively, then detail the kinds of circumstances where authorisation would be necessary, or an exemption would be appropriate. Section 3.2 states, among other things,
You will likely be eligible for an exemption if you are planning to sell energy:
· ‘incidentally’ to your main business
· as a community service or at cost or
· to a defined group of customers at one site
Exemptions were developed to manage the practice of ‘on-selling’ energy. On-selling (or reselling), is when a person or business purchases energy from another person or business—usually an authorised energy retailer—and then sells it to a customer through an embedded network, such as a shopping centre, apartment building, retirement village or caravan park. The main relationship the on-seller has with their customer is not the sale of energy.
Most (but not all) exemptions are held by on-sellers. A person that sells energy to customers to supplement the energy that the customer buys from a retailer (for instance, energy that is generated by solar panels or other equipment the seller owns) may also be eligible for a retail exemption.
Like an authorisation, an exemption allows you to sell energy. However unlike an authorisation, an exemption restricts your selling activity to a defined class (or classes) of customers, usually at a specific site (or sites). These restrictions will be set out in the terms of the exemption.
Exempt sellers still have to follow strict conditions and meet a range of obligations to their customers, but generally the regulatory requirements are lighter than those of retailer authorisations.
The core conditions that an exempt seller must meet are based on customer protections under the Retail Law but will vary according to your particular operations. They cover such things as an obligation to supply, provision of key information to customers, billing and payment arrangements, disconnection and reconnection, and concessions and rebates.
The core conditions for exempt sellers are set out in Appendices A-2 and A-3.
Appendix A-2 to the Guideline contains 25 conditions, including condition 13 on which the respondents rely to contend that the appellants are required to apply the feed-in tariff to their electricity bill. Condition 13 reads as follows:
Condition 13 - Concessions and rebates
1 Where an exempt customer is eligible to receive a government or non-government energy rebate, concession or assistance under a relief scheme, the exempt person must not hinder an exempt customer’s attempts to establish eligibility.
2 If the government or non-government energy rebate, concession or assistance under a relief scheme can only be claimed by the exempt person on behalf of the eligible exempt customer, then, assuming there is no legal impediment, the exempt person must make that claim and, if successful, must apply the rebate, concession or assistance to the exempt customer’s bill.
‘Exempt customer’ is defined in the Glossary to the Guideline as follows:
exempt customer means a person to whom an exempt person sells energy and who would be a retail customer of the seller if the seller were a retailer.
‘Exempt person’ is defined in the Glossary to the Guideline as follows:
exempt person or exempt seller means a person who is exempted by the AER under a deemed, registered or individual exemption from the requirement to hold a retailer authorisation.
Section 4, in sub-sections 4.1, 4.2 and 4.3 respectively, describes the types of exemptions (deemed, registrable and individual) to help energy sellers determine what kind of exemption they need.
Subsection 4.1 concerning deemed exemptions states that a full list of deemed exemption classes is set out in Appendix A-1 (Table 1). Class D2 in Table 1 refers to “persons selling metered energy to fewer than ten residential customers within the limits of a site that they own, occupy or operate.” It states that it applies to “lessors”, provided that the “energy is used for premises within the limits of a site owned, occupied or operated by the person” but excludes sites where embedded networks are retrofitted after 1 January 2015.
The respondents contended that because the appellants are “requesting payment for electricity consumption, they are considered to be selling energy”. They contended that the appellants are therefore subject to the Retail Law and must therefore “pass on the solar rebate tariffs” to them pursuant to condition 13.
In my view, the submission does not withstand scrutiny. On the facts, there are two energy supplies: electricity supplied from the appellants’ solar panels to the network (or grid) and electricity supplied from the grid to the leased premises.
Regarding the electricity supplied to the network, I accept that the appellants are selling energy, but I am not persuaded that they are ‘energy sellers’ for the purposes of the Retail Law and Guideline because they are not selling energy “to another person or business for use at premises”. They are supplying energy to an electricity distributor for it to use as it wishes. On application, they receive a payment from the retailer (in this case ActewAGL) calculated under sections 6 and 8 of the Electricity Feed-in Act referable to the electricity they have supplied.
Regarding the electricity supplied from the network, whether the appellants are selling energy is less clear. On one view, the appellants are ‘energy sellers’ because the electricity account is in their name. ActewAGL sells the electricity to the appellants, and they ‘on-sell’ it to the respondents. On another view, to characterise the arrangement as ‘on-selling’ is misconceived: the appellants are simply seeking reimbursement of the supply and consumption charges. Much would seem to depend on the fact that the appellants have kept the electricity account in their own name, unlike usual landlord-tenant arrangements where the tenant connects the electricity in their own name and the electricity provider contracts directly with the tenant.
I have concluded that the appellants are ‘energy sellers’ in relation to electricity supplied from the network to the leased premises. The costs of this electricity are, to refer to section 2 of the Guideline, “energy costs passed through - at no profit - from a landlord to a tenant”. The appellants also fall within the class of persons described as Class D2, meaning they are energy sellers but deemed to be exempt from obtaining authorisation to sell electricity to the respondents.
It follows that they are required to comply with the conditions in Appendix A-2 to the Guideline, including condition 13, but I am not persuaded that condition 13 requires them to apply the feed-in tariff to the respondents’ bill.
Condition 13(1) addresses a circumstance where an exempt customer, meaning the respondents, are “eligible to receive a government or non-government energy rebate, concession or assistance under a relief scheme”. Condition 13(1) is not applicable because there is no suggestion that the respondents, directly, are entitled to such a rebate, concession or assistance or that the appellants are hindering them from obtaining it.
Condition 13(2) addresses a circumstance where the exempt customer (i.e. the respondents in this case) is entitled to “the”[5] energy rebate, concession or assistance under a relief scheme but can only claim it via an application made by an exempt person (i.e. the appellants) on their behalf. In such a case, condition 13(2) requires the exempt seller to make the claim and, if successful, apply it to the exempt customer’s bill. That is not this case. There is no suggestion that the respondents are entitled to a rebate, concession or assistance, even if they could only access it via an application from the appellants. The entitlement to the feed-in tariff is with the appellants: they have been able to claim it, presumably, for many years prior to commencement of the Lease and can continue doing so for 20 years from when the solar panels were connected to the network. That the premises are presently leased to the respondents is irrelevant.
[5] in my view, the word ‘the’ is a reference back to ‘the’ rebate, concession or assistance described in condition 13(2)
Condition 13 is not applicable for another reason. It refers, relevantly, to a rebate. The original Tribunal found that the respondents were liable only for what was “actually charged after the application of a rebate” and are “only liable for so much of the electricity bill that isn’t accounted for by the solar rebate.” In my view, the original Tribunal erred when referring to and characterising the feed-in tariff as a rebate.
In Commissioner for Social Housing v Fowler[6] the Tribunal commented on the meaning of ‘rebate’ in the context of rent rebates as follows:
73 .… The Macquarie Dictionary defines the word ‘rebate’, relevantly, as follows
noun 1. a return of part of an original amount paid or due for some service or merchandise; repayment, as of a part of charges
...
–verb (t) (rebated, rebating)
3. to allow as a discount.
4. to deduct (a certain amount), as from a total.
74. In other words, a ‘rebate’ is a return or repayment, but it may also reflect a practice of discounting or deducting an amount from a total. This is not inconsistent with the view of the parties that the rebate was a form of subsidy.
[6] Commissioner for Social Housing v Fowler [2016] ACAT 133 at [66] – [86]
In Fowler, the parties agreed that the rent rebate operated as a subsidy or discount from the market rent that would ordinarily be payable. In issue was whether that subsidy or discount should be regarded as a ‘payment’. The Tribunal commented as follows:
76. Both parties initially denied that the granting of the rebate could take the form of ‘payment’ of the rent. Later during the hearing, however, the Commissioner appeared to concede that the rebate might be characterised as a payment made on the tenant’s behalf:
Tribunal: the commissioner agrees to pay, on behalf of the tenant, an amount of rent?
Ms Tarbet: Yes
This, in the Tribunal’s view, is much closer to the actual meaning of the term rebate – that is, a return, deduction or discount of monies otherwise payable. (emphasis added)
This reasoning is consistent with other kinds of rebates. For example, where a patient is liable to pay a doctor’s fee, the patient becomes entitled to a ‘Medicare rebate’ from the Commonwealth as a contribution towards payment of the fee.
The concept of rebates has no bearing on the circumstances of this case. To describe the feed-in tariff as an energy rebate is incorrect. The appellants do not receive a discount or subsidy on the amount payable for electricity consumed. They receive a payment of $0.457 per kwh calculated solely by reference to the amount of electricity they supply to the network. The amount payable by ActewAGL to the appellants has no bearing upon the amount payable by the appellants to ActewAGL for electricity provided to the leased premises. All that can be said is that the amounts payable are offset against each other to arrive at a net amount owing by one party or the other depending on which party has the greater debt.
For these reasons, the first ground of appeal is allowed.
Standard residential tenancy terms, clause 46
The original Tribunal’s second reason for finding that the respondents were eligible to receive the benefit of the feed-in tariff, at least to the extent of an offset against the cost of electricity consumed, arose from sections 8 and 9 of the RT Act. The relevant parts of those sections state:
8 Standard residential tenancy terms
(1) A residential tenancy agreement—
(a)must contain, and is taken to contain, terms to the effect of the standard residential tenancy terms mentioned in schedule 1; and
…
(d) may contain any other term—
(i)that is consistent with the standard residential tenancy terms; or
(ii)that is inconsistent with a standard residential tenancy term if the term has been endorsed by the ACAT under section 10.
9 Inconsistent tenancy terms void
(1) A term of a residential tenancy agreement is void if—
(a)it is inconsistent with a standard residential tenancy term; and
(b)it has not been endorsed by the ACAT under section 10.
Section 10 of the RT Act sets out a mechanism for endorsing a term of a residential tenancy lease that is inconsistent with a standard residential tenancy term. The parties agreed that the additional ‘solar panel & feed-in tariff’ clause has not been endorsed by the Tribunal.
The original Tribunal reasoned that by applying a “natural interpretation” of clause 46, the charges payable are “what’s actually charged after the application of a rebate”.[7] The original Tribunal then reasoned that the additional clause is not consistent with clause 46 because it required the respondents to pay the supply and consumption charges, rather than the amount actually charged to the appellants after allowing for the ‘solar rebate’. It was implicit from the original Tribunal’s earlier comments that because, in its view, the additional clause is inconsistent with clause 46 and has not been endorsed by the Tribunal under section 10 of the RT Act, section 9 renders the additional clause void.
[7] Transcript of proceedings, 12 June 2018, page 11, lines 30-32
In my view, the original Tribunal erred. As discussed above, ActewAGL’s liability to pay the appellants for electricity supplied to the network and the appellants’ liability to pay ActewAGL for electricity supplied from the network are independent liabilities. Put another way, referring to clause 46, ActewAGL’s liability to pay the appellants for electricity supplied to the network is not “associated with the consumption of [electricity] supplied to the premises”.
It follows, in my view, that the additional ‘feed-in tariff’ clause is not inconsistent with clause 46. In relation to liability for charges associated with the consumption of electricity, the additional clause does no more than repeat that which is already provided for under clause 46.
The additional clause also provides that the respondents must not connect the electricity account in their own name, and will be invoiced for electricity supply and consumption charges. In my view, neither of those aspects of the additional clause are inconsistent with anything in the standard residential tenancy terms.
Regarding the first aspect, under clause 43(2) of the standard residential tenancy terms a tenant “is responsible for the connection of all services that will be supplied in the tenant’s name”, but that clause has no application in relation to electricity in this case because the respondents have agreed under the additional clause not to connect the electricity in their name.
Regarding the second aspect, there is nothing inconsistent about the respondents’ agreement to be invoiced for supply and consumption of electricity. Liability for both follows as a matter of course under ordinary lease agreements whenever a tenant arranges for electricity to be supplied to leased premises in their own name. This of course contrasts with the costs of supplying water and sewerage which, under clause 44, the lessor must pay.
For these reasons, the second ground of appeal is allowed.
Other matters
At hearing, Ms Washington-King stated that in Western Australia (where she and her husband ordinarily live and own a house) a lessor of residential premises with solar panels must pass on the financial benefit of those panels to their tenant. I am not doubting Ms Washington-King’s statement, but I was unable to give it any weight because I was not taken to the legislative or factual basis for why this occurs. I also doubt the arrangements in Western Australia would be relevant. As mentioned, this case concerns a feed-in tariff scheme under ACT legislation: the Electricity Feed-in Act.
Ms Washington-King also took me to an article published on a website ‘ that comments on three decisions of the NSW Civil and Administrative Tribunal (NCAT) concerning tenant entitlements to benefits from solar power systems. The article provided the case numbers, but not the names of the decisions. Ms Washington-King was not able to give me copies of the decisions. I too was unable to locate any of the decisions. I presume they were not published. I was not prepared to extrapolate from comment in an article about the relevance of these decisions, especially where they concern a scheme (or schemes) in New South Wales about which I did not have any detail.
I also considered the ‘Queensland case’ to which the original Tribunal referred in its ex tempore reasons: MacDonald v Melville.[8] I agree with the original Tribunal that the decision “wasn’t of any use”. It concerned a claim by the tenants of a residential property against the lessors’ agent alleging that the agent misled them about whether “the rebate payable for surplus energy generated by solar panels installed at the premises would be passed on” to the tenants. Also, the facts are different. Justice Carmody who wrote the decision described “the context” in which the case was brought as follows:
The premises are powered by solar energy generated by rooftop panels installed by the owner and metered electricity services supplied from the grid by Ergon Energy.
The tenants only had to pay Ergon for the electricity they consume over and above that supplied by the panels. To encourage energy conservation, the government buys any surplus power generated by the solar panels and adds it back to the grid under a rebate scheme.
The Electricity Act 1994 (Qld) confers the entitlement to the rebate on the electricity account-holder.
[8] MacDonald v Melville [2017] QCATA 142
In this case, none of the energy generated by the appellants’ solar panels is used to power the premises: all that energy is supplied to the network. All the energy used to power the leased premises is bought from the retailer. Also, the decision gives no detail about the ‘rebate scheme’ or how it functions under the Electricity Act 1994 (Qld).
Conclusion
For these reasons, the appeal will be allowed, and the decision under appeal will be set aside. The respondents are required under the Lease to pay the appellants an amount equal to the electricity supply and consumption charges as invoiced from time to time by the electricity service provider.
Relevant to this appeal which concerns the respondent’s liability for supply and consumption charges for the quarter 24 November 2017 to 22 February 2018, I will order that the respondents pay the appellants $306.37.
………………………………..
Presidential Member G McCarthy
HEARING DETAILS
FILE NUMBER: | AA 25/2018 |
PARTIES, APPLICANTS: | Kynan Griffiths and Phillippa Davies |
PARTIES, RESPONDENTS: | Joelene Washington-King and Jason Washington-King |
COUNSEL APPEARING, APPLICANT | N/A |
COUNSEL APPEARING, RESPONDENT | N/A |
SOLICITORS FOR APPLICANT | N/A |
SOLICITORS FOR RESPONDENT | N/A |
TRIBUNAL MEMBER: | Presidential Member G McCarthy |
DATE OF HEARING: | 7 September 2018 |
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