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Re: Application by ElectraNet Pty Limited (No 3)

Re: Application by ElectraNet Pty Limited (No 3)

Case [2008] ACompT 3 30 September 2008

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AUSTRALIAN COMPETITION TRIBUNAL
Re: Application by ElectraNet Pty Limited (No 3) [2008] ACompT 3
COMPETITION LAW – review of decision of Australian Energy Regulator (AER) pursuant to s 71C of National Electricity Law – AER required to determine regulatory asset base (RAB) of ElectraNet for regulatory control period of five years from 2008 – ElectraNet the transmission network service provider for electricity in South Australia – setting RAB provides foundation for regulation of revenue during regulatory control period – provision in rule 11.6.13(b) of National Electricity Rules to allow adjustments to RAB for easements in determination – AER adjusted amount allowed for easement compensation costs (amounts paid to landowners) in RAB in determination – ElectraNet also claimed adjustment to RAB for easement acquisition or transaction costs – AER refused to make adjustment to RAB for easement acquisition or transaction costs – consideration of national electricity objective and revenue and pricing principles – consideration of ACCC Draft Statement of Principles and Statement of Principles background paper – whether AER erred in material fact in not being satisfied that RAB did not include allowance for easement acquisition or transaction costs – whether AER erred in deciding to make no allowance in RAB for those costs because no satisfactory basis for quantifying them was available – consideration of grounds of review under s 71R of the Law – Tribunal found that AER erred in material factual finding because easement acquisition or transaction costs not included in ElectraNet’s opening RAB – Tribunal satisfied that material showed proper foundation for determining appropriate adjustment to opening RAB for those costs.
National Electricity (South Australia) Act 1996 (SA)
National Electricity Law, ss 7, 7A, 16, 71C, 71P and 71R
National Electricity Rules, rr 6A, 11 Schedule A
Gas Pipelines Access (South Australia) Act 1997 (SA), s 39
Electricity Corporations Act 1994 (SA)
Public Corporations Act 1993 (SA)
Electricity Trust of South Australia Act 1946 (SA)
Restructuring and Disposal Act 1999 (SA)
ACCC Draft Statement of Principles, May 1999
ACCC Statement of Principles for the Regulation of Transmission Revenues – background paper, December 2004
National Electricity (South Australia) (New National Electricity Law) Amendment Bill (SA)
National Electricity (South Australia) (New National Electricity Law) Amendment Act 2005 (SA)
Australian Competition and Consumer Commission v Australian Competition Tribunal (2006) 152 FCR 33
Re Application by Epic Energy South Australia Ltd, [2004] ATPR 41-977; [2003] ACompT 5
Application by GasNet Australia (Operations) Pty Ltd [2003] ACompT 6
Application by Optus Mobile Pty Limited & Optus Networks Pty Ltd [2006] ACompT 8, at [297]
RE:APPLICATION UNDER SECTION 71B OF THE NATIONAL ELECTRICITY LAW FOR A REVIEW OF A TRANSMISSION DETERMINATION MADE BY THE AUSTRALIAN ENERGY REGULATOR IN RELATION TO ELECTRANET PTY LIMITED PURSUANT TO CLAUSE 6A.13.1 OF THE NATIONAL ELECTRICITY RULES

BY: ELECTRANET PTY LIMITED
1 of 2008
JUSTICE MANSFIELD, DEPUTY PRESIDENT, MR ROBIN DAVEY, DR JILL WALKER , MEMBERS
30 SEPTEMBER 2008
MELBOURNE

GENERAL DISTRIBUTION

AUSTRALIAN COMPETITION TRIBUNAL

1 OF 2008

RE:

APPLICATION UNDER SECTION 71B OF THE NATIONAL…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re: Application by ElectraNet Pty Limited (No 3)

Details

AGLC: Re: Application by ElectraNet Pty Limited (No 3) [2008] ACompT 3
Case: [2008] ACompT 3
Decision Date: 30 SEPTEMBER 2008

CaseChat Overview and Summary

This case involved a review of the Australian Energy Regulator's (AER) determination of ElectraNet's regulatory asset base (RAB) for the regulatory control period 2008-09 to 2012-13. ElectraNet sought an adjustment to its RAB to include $52.8m for easement transaction costs, while the AER only allowed an adjustment for easement compensation costs of $29.1m. The Australian Competition Tribunal (Tribunal) found that the AER erred in not being satisfied that the claimed easement transaction costs were not included in ElectraNet's RAB and that there was a proper foundation for determining an appropriate adjustment to ElectraNet's RAB for those costs. The Tribunal varied the AER's determination by increasing the opening RAB of ElectraNet Pty Limited by the sum of $36.1m for easement transaction or acquisition costs, such sum to be adjusted for CPI movements from 1 July 2000 to the commencement of the said determination.

Orders