Mohamed v ActewAGL & Anor (Energy and Water)
[2022] ACAT 13
•17 February 2022
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
MOHAMED v ACTEWAGL & ANOR (Energy and Water) [2022] ACAT 13
EW 106/2021
EW 107/2021
Catchwords: ENERGY AND WATER – complaint against utility – unpaid premium feed-in tariff – transfer of premium tariff to new property – installation of new system resulted in cessation of premium feed-in tariff – whether new system is compliant as defined – requirement to meet all statutory criteria
Legislation cited: Electricity Feed-in (Renewable Energy Premium) Act 2008 ss 5E, 5F, 11
Utilities Act 2000 ss 172, 176
Subordinate
legislation
Cited:Utilities (Electricity Feed-in Code) Determination 2020
Cases cited:Pileggi v Australian Sports Drug Agency (2004) 138 FCR 107
Wade & Tan v Commissioner for ACT Revenue [2014] ACAT 79
Victims Compensation Fund Corp v Brown [2003] HCA 54
List of
Texts/Papers cited: Access Canberra, Installing Grid Connected Photovoltaic Systems in the ACT (Electrical Note, January 2015)
Tribunal:Senior Member K Katavic
Date of Orders: 17 February 2022
Date of Reasons for Decision: 17 February 2022
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) EW 106/2021
EW 107/2021
BETWEEN:
ABDEL-LATIF MOHAMED
Applicant
AND:
ICON RETAIL INVESTMENTS LTD AND AGL ACT RETAIL INVESTMENTS PTY LTD TRADING AS ACTEWAGL RETAIL
First Respondent
AND:
JEMENA NETWORKS (ACT) PTY LTD AND ICON DISTRIBUTION INVESTMENTS LTD TRADING AS EVOENERGY
Second Respondent
TRIBUNAL:Senior Member K Katavic
DATE:17 February 2022
ORDER
The Tribunal orders that:
The complaint is dismissed.
………………………………..
Senior Member K Katavic
REASONS FOR DECISION
Introduction
The applicant in this matter made a complaint to the tribunal regarding, among other things, whether he was entitled to a premium rate of feed-in tariff regarding a residential solar system following a request to transfer the tariff from one property to another. As a consequence of the purported transfer a new system was required to be installed at the new property resulting in a subsequent loss of the premium rate of feed-in tariff.
While the applicant is generally dissatisfied with the handling of the matter and the position taken, in particular by the second respondent, the main legal issue relates to whether the new system is a compliant renewable energy generator within the meaning of section 5E of the Electricity Feed-in (Renewable Energy Premium) Act 2008 (the Act). Determination of that issue is necessary to decide whether the applicant is entitled to reimbursement of the premium rate of feed-in tariff following its discontinuance.
Background
The applicant, Mr Mohamed, installed a renewable energy generator (a residential solar system) known as a SMA inverter model SB – 3800 with a total capacity of not more than 200 kW at his property in Fisher in the ACT (the Fisher System). The Fisher System was connected to the ActewAGL Distribution network on 19 May 2010.
At the time it was installed and approved the applicant received a premium rate feed-in tariff (a PFiT) under the Act.
In August 2016 the applicant took steps to transfer PFiT to a new property in Coombs in the ACT. He contacted ActewAGL Retail’s solar team in relation to the transfer who in turn made enquiries with ActewAGL Distribution (now known as Evoenergy) as to the details of the Fisher System.
As part of that process, the applicant was advised that the Fisher System was no longer compliant due to a change in the fire safety requirements administered by Access Canberra. The Access Canberra Installing Grid Connected Photovoltaic Systems in the ACT (Electrical Note, January 2015) publication (Access Canberra Electrical Note) states in relation to whether an existing installation can be relocated as follows:
NOTE:Since 16 July 2013, PV modules installed on buildings must be certified as Fire Safety Class C or better. PV systems installed prior to this date may not be compliant to the new standard. The Clean Energy Council maintains database and website listing of AS\NZS 5033 – compliant PV modules…
This meant the Fisher System could not be relocated and a new fire rated system with the same capacity would need to be installed at the Coombs property.
On 12 August 2016, the first respondent sent a ‘Special Connection Request’ to the second respondent for the installation of the Coombs System, which has an inverter capacity no larger than the Fisher System. The request noted as follows “customer buying new solar system for above property and moving gross feed-in tariff from previous property at … as system at previous property is no longer on CEC accredited list”.
On 12 August 2016, the second respondent approved the connection of the Coombs system to the ActewAGL electricity network. The Coombs System was installed with gross metering which is intended to identify PFiT customers but not confined to PFiT alone. The Fisher System was changed to net metering which is not associated with PFiT. Both systems are micro renewable energy generators.
The applicant received the PFiT at 45.7 cents per kilowatt between August 2016 and July 2018 when it unilaterally changed to $0.11 per kilowatt being a ‘Small Generator Buyback Scheme’ tariff. This is the rate he has been receiving since. The change was effected without notice or consultation with the applicant. It was not until November 2020 that the applicant queried the rates and the change in tariff. He was advised that the Coombs System was not compliant within the meaning of the Act and he was not eligible to receive the PFiT for that system.
The applicant complained to the tribunal in accordance with the Utilities Act 2000 Part 12.[1] The tribunal conducted an investigation and conciliation which was unsuccessful. The matter was escalated to this Tribunal and proceeded to a hearing on whether or not the Coombs System meets the definition of ‘compliant’ within section 5E of the Act.
[1] See: Utilities (Electricity Feed-in Code) Determination 2020 and Utilities Act 2000, section 172
The parties lodged various documents, which I have taken into account, in particular a statement of agreed facts/chronology dated 29 November 2021 which had 19 attachments submitted by the first respondent and five attachments submitted on behalf of the second respondent.[2] Both respondents provided written submissions and the applicant chose not to add to the matters he had already set out in previous documents.
[2] Exhibit 1
The applicant would like to see a continuation of the way things were, which effectively amounts to a finding that he was always entitled to the PFiT upon relocating to his property in Coombs.
The first respondent adopts the view that the intention of the Act is to enable a customer to transfer their entitlement to other premises if the generator is transferred and in this case the applicant should not be prohibited from continuing to receive the PFiT due to the requirements administered by Access Canberra changing and preventing the relocation of the Fisher System to Coombs. The first respondent relies in particular on the second respondent’s ‘Special Connection Request’ and ‘Approval’ dated 12 August 2016 as support for the second respondent approving from the Fisher to Coombs transfer.
The second respondent submits that the Coombs System does not meet the definition of compliant renewable energy generator because it is a new generator that was the subject of a new connection application which was not made by 29 July 2011 in order to satisfy the requirement of section 5E(1)(e) of the Act.
The statutory scheme
The entitlement to a PFiT is governed by section 11 of the Act. It states:
11 Premium rate—20 years
(1) The premium rate for the financial year in which a renewable energy generator is connected to a distributor’s network applies, if the generator remains connected to the network, in relation to electricity generated by the generator during the 20 years after the date of the connection.
(2) For subsection (1), a generator is taken to remain connected to the network—
(a)during any temporary interruption to the connection for repair or maintenance work or relocation of the connection or generator at the same premises; or
(b)if the generator is transferred with the premises to another person who is an eligible entity in relation to the premises; or
(c)if the generator is transferred to other premises in relation to which the eligible entity is also an eligible entity.
(3) For subsection (1), a micro renewable energy generator (the old generator) is taken to remain connected to the network if—
(a)the old generator was or is installed on premises that are, or are on the same parcel of land as, affected residential premises or eligible impacted property; and
(b)the affected residential premises or eligible impacted property have been or are to be demolished; and
(c)the eligible entity for the affected residential premises or eligible impacted property becomes an eligible entity in relation to other premises (the new premises); and
(d)a micro renewable energy generator (the new generator) is installed on the new premises; and
(e)the total capacity of the new generator is not greater than the total capacity of the old generator when the old generator was first connected to the network; and
(f)the new generator is connected to the network.
(4) In this section:
affected residential premises means premises, or a part of premises—
(a)that—
(i)are a class 1 or class 2 building; and
(ii)contain or have contained loose-fill asbestos insulation; or
(b)that are included in the affected residential premises register.
affected residential premises register—see the Dangerous Substances Act 2004, section 47P (1).
class, of building—see the Building Act 2004, dictionary.
eligible impacted property—see the Civil Law (Sale of Residential Property) Act 2003, section 9A (1).
loose-fill asbestos insulation—see the Dangerous Substances Act 2004, section 47I.
Pursuant to section 11(1) of the Act, the PFiT applies to electricity generated by a renewable energy generator which is connected to a distribution network if it remains connected to that network during the 20 years after the date of the connection.
Subsection 11(2) sets out three circumstances in which a generator is taken to remain connected to the network.
Subsection 11(3) sets out the criteria which must be met for a micro renewable energy generator to be taken to remain connected to the network.
‘Eligible entity’ is defined by section 5F of the Act, and relevantly for this matter means the occupier of premises on which a compliant renewable energy generator is installed:[3]
[3] The Act, section 5F(1)(a)(v)
5F Meaning of eligible entity
(1) In this Act:
eligible entity—
(a)means—
(i)if an incorporated association owns the premises on which a compliant renewable energy generator is installed—the incorporated association; or
(ii)if a co‑operative owns the premises on which a compliant renewable energy generator is installed—the co‑operative; or
(iii)if a person owns commercial or retail premises on which a compliant renewable energy generator is installed—the person; or
(iv)if a person (the lessee) leases premises, or a part of premises, to install or operate a compliant renewable energy generator—the lessee; or
(v)in any other case—the occupier of premises on which a compliant renewable energy generator is installed; but
(b)does not include—
(i)a territory agency; or
(ii)a territory-owned corporation; or
(iii)the Commonwealth or a Commonwealth authority; or
(iv)an entity determined by the Minister.
…
Section 5E of the Act defines what a compliant generator is:
5E Meaning of compliant
(1) For this Act, a renewable energy generator is compliant if—
(a)the generator is installed on premises in the ACT; and
(b)when connected to the electricity distributor’s network, it complies with the service and installation rules; and
(c)the total capacity of the generator, or the total capacity of all renewable energy generators installed on the premises, is not more than—
(i)200kW; or
(ii)if the Minister determines another capacity under subsection (2)—the applicable determined capacity; and
(d)if the generator is a micro or medium renewable energy generator—the generator is connected to the electricity distributor’s network before the total capacity of all micro and medium renewable energy generators connected to the network reaches—
(i)30MW; or
(ii)if the Minister determines another capacity under subsection (3)—the determined capacity; and
(e)if the generator is a micro renewable energy generator—the distributor received the application for the connection of the generator by 29 July 2011; and
(f)if the generator is a medium renewable energy generator—the distributor received the application for the connection of the generator by 13 July 2011; and
(g)the generator is installed on premises and connected to the electricity distributor’s network before 31 December 2016.
(2) The Minister may determine a total capacity for the following:
(a)micro renewable energy generators installed on premises;
(b)medium renewable energy generators installed on premises;
(c)all renewable energy generators installed on premises.
(3) The Minister may determine the total capacity for all micro and medium renewable energy generators connected to the electricity distributor’s network.
(4) A determination is a disallowable instrument.
NoteA disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act.
(5) In this section:
service and installation rules means the service and installation rules for connection to the electricity distribution network, as in force from time to time, made under a technical code, as in force from time to time, made under the Utilities (Technical Regulation) Act 2014.
NoteTechnical codes made under the Utilities (Technical Regulation) Act 2014 are accessible at The service and installation rules are accessible at the Coombs System compliant?
The contention between the parties is whether the installation of the Coombs System in 2016 fails to meet paragraph 5E(1)(e) which states that for a micro renewable energy generator, the distributor received the application for the connection of the generator by 29 July 2011. There is no dispute regarding the remaining criteria in the provision.
The applicant contends that he did not make a new application for the connection of the Coombs System. He says he had already applied to have the connection for the purposes of the PFiT and wanted to transfer the Fisher System. He could not do so due to the change in fire requirements and installed a new generator under the same connection application. He submits this is continuous.
The first respondent says that but for the Access Canberra requirement regarding fire ratings, the applicant could have simply relocated the Fisher System to Coombs. The first respondent submitted the intention of the legislation was to enable transferral of generators in certain circumstances without customers losing their entitlement to the PFiT. It accepts that the applicant’s circumstances do not neatly fall within the provisions of the Act, but nonetheless the PFiT continues to apply because the reason for the new generator was beyond his control. It says that the second respondent was aware of the reason for the new generator and approved it by reason of the ‘Special Connection Request’ notation and the ‘Approval Letter’.
The second respondent submits that for the purposes of section 5E(1)(e) the application for the Coombs System was not received by 29 July 2011 and that the Coombs System is the generator referred to in that provision. It is only one generator.
Section 5F(1) provides alternative circumstances any of which if met, would qualify as being an ‘eligible entity’. The legislation provided these to be alternatives by reason of the use of the disjunctive ‘or’ in this subsection. As the tribunal observed in the following passage from Wade & Tan v Commissioner for ACT Revenue:
62. The crucial provision is subsection (5). There are two ways to read this subsection. The first is disjunctive: if the condition in paragraph (b) is met, then only paragraph (b) applies. The second is cumulative: if the condition in paragraph (b) is met, then both paragraphs (a) and (b) apply. The normal English usage is for ‘or’ to be used disjunctively. The word ‘and’ instead of the word ‘or’ would give it the conjunctive meaning. The provision should be presumed to be disjunctive – either (a) or (b) applies but not both. This presumption is rebuttable, and it was rebutted in cases such as Pileggi v Australian Sports Drug Agency.[4]
63. Despite this presumption, principles of statutory interpretation require a ‘purposive approach’. In the ACT, this is provided by section 139 of the Legislation Act 2001. That section requires the interpretation that would best achieve the purpose of the Act to be preferred to any other interpretation. This is the ACT equivalent to s 15AA of the Commonwealth Acts Interpretation Act. In fact, section 138 may operate to strengthen the purposive approach by “displacing the apparent meaning of the Act”. [5]
[4] (2004) 138 FCR 107
[5] Wade & Tan v Commissioner for ACT Revenue [2014] ACAT 79 at [62]
A purposive approach to interpreting this provision is consistent with ‘or’ being disjunctive.
Section 11(2) of the Act provides alternative circumstances in which a generator remains connected to the network. Each addresses a different scenario. The first references the same premises. The second again references the same premises but deals with a situation where the premises are sold and a new eligible entity assumes the entitlement to the PFiT at that premises for the same generator. Neither contemplates a change to the generator and neither are applicable.
Only the third situation in section 11(2)(c) contemplates a change in premises. It references the generator in the same way sub-sections 11(2)(a) and (b) do. It requires the eligible entity to remain an eligible entity at the new premises. That means the status as an eligible entity must be maintained and met at the new premises. Again, the generator contemplated is the original generator.
Section 5E(1) defines what is a compliant renewable energy generator by setting out a list of criteria. Each of the criteria must be met in order to meet the definition by reason of the conjunctive use of ‘and’.
The ordinary meaning of ‘and’ is conjunctive. That is to say, all of the criteria must be met in order to qualify. It should be construed conjunctively as it appears in this provision. Even adopting a purposive approach to the interpretation of the provision does not provide a convincing reason to depart from the ordinary meaning of ‘and’ in a conjunctive sense. This is particularly reinforced by the legislative deploying the use of the word ‘or’ in a disjunctive sense elsewhere, in particular subsections 5F and 11(2). The use of ‘or’ in these provisions is an important interpretation tool. It provides a textual purpose in the drafting of the legislation, particularly where ‘and’ is also used. Where there is no convincing textual reason emerging from the rest of the Act and the word ‘or’ is used elsewhere in the Act to provide a disjunctive use, the word ‘and’ should be given its ordinary meaning.[6]
[6] Victims Compensation Fund Corp v Brown [2003] HCA 54 at [12]-[16]
Section 11(3) of the Act is framed in a similar fashion as it provides criteria which determines whether a micro renewable generator remains connected to the network. ‘And’ is used between each of the listed criteria. Again, there is no convincing reason to depart from the use of ‘and’ in the conjunctive sense in section 11(3) where ‘or’ is used elsewhere in the Act disjunctively. The circumstances set out in section 11(3) are very specific and contemplate a situation where premises are demolished, and a new generator is required to be installed at new premises. This is not so in the applicant’s case.
Adopting this approach to the interpretation of the relevant statutory provisions means the Coombs System is not a micro renewable energy generator for which the distributor received the application for the connection of the generator by 29 July 2011 as required by section 5E(1)(e). The generator for the purposes of section 5E is the Coombs System. The Fisher System becomes irrelevant given it is no longer the generator that is the subject of determining whether the applicant is an eligible entity at the new premises. It is not compliant which therefore means the applicant is not an eligible entity as defined in section 5F(1)(a)(v). The Fisher System was the relevant generator for the purposes of the PFiT entitlement in section 11(1). The applicant’s status as an eligible entity changed upon the introduction of a new system and does not fall within the circumstance established in section 11(2)(c).
I agree with the second respondent’s submission. I cannot accept that there was continuity in circumstances where a new generator was installed at new premises. The prohibition occasioned by the change in fire requirements resulted in the applicant needing to install a fire compliant generator, but it is not a compliant generator for the purposes of section 5E. I accept that had the fire requirements not changed, the applicant might have been able to relocate the Fisher System and transferred the PFiT.
While the applicant’s particular circumstances may have been an unintended consequence, the legislature did not make amendments to the scheme following the introduction of the fire requirement in July 2013 to allow for circumstances such as the applicant’s. It is unfortunate it did not. However, rules and requirements change periodically and, in some circumstances, changing the status quo may affect various entitlements that would not otherwise be enjoyed going forward. That is regrettably where the applicant finds himself. Had he been made properly aware of the requirements and the change, I accept he may have made a more informed decision.
I do not accept that the ‘Special Connection Request’ and ‘Approval Letter’ suggest the second respondent agreed to transferring the PFiT or acknowledged the Coombs System was ‘compliant’ under section 5E. It is merely approval of the connection of the Coombs System to the network. The applicant is rightly aggrieved by the handling of this matter in particular the initial payment of the PFiT until 2018 and then without notice to him it being reverted to a lesser tariff. This lack of communication is poor. Even if he had been made aware of the issue at that stage however the outcome regarding his entitlement is the same. The utility providers should ensure information about the transferability of any PFiT system is correct and communicate correct information to the owners of PFiT systems if contemplating relocation.
Conclusion
The Coombs System is not compliant within the meaning of section 5E of the Act and therefore the applicant is not entitled to the PFiT for that generator at that premises. I am therefore satisfied that it is appropriate to dismiss the complaint pursuant to section 176(1)(h) of the Utilities Act 2000.
The applicant’s complaint is dismissed.
………………………………..
Senior Member K Katavic
| Date of hearing: | 14 December 2021 |
| Applicant: | In person |
| Solicitor for the First Respondent: | Ms S Truesdale, ActewAGL Retail |
| Solicitor for the Second Respondent: | Mr M Hope, Evoenergy |
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