Electricity Network Assets (Authorised Transactions) Act 2015 No 5
Current version for 1 December 2018 to date (accessed 6 June 2020 at 12:33)
Part 6
Part 6 Operation of transacted distribution and transmission systems
30   Terminology for transacted systems
(1)  When electricity network assets comprising a distribution or transmission system are transferred to the private sector for the purposes of an authorised transaction, the distribution system or transmission system becomes, and may be referred to in this or any other Act as, a transacted distribution system or transacted transmission system.
(2)  For the purposes of this or any other Act:
(a)  an entity that controls or operates a transacted distribution system or transacted transmission system may be referred to as an authorised distributor (for a distribution system) or an authorised transmission operator (for a transmission system), and
(b)  authorised distributors and authorised transmission operators may be referred to as authorised network operators, and
(c)  the public sector agency that is the lessor of electricity network assets comprising a transacted distribution system or transacted transmission system may be referred to as the lessor or the owner of the transacted distribution system or transacted transmission system.
(3)  A reference (however expressed) in any Act or statutory rule to the distribution system, transmission system or electricity works of a network operator is (in the context of the controller or operator of a transacted distribution system or transacted transmission system) a reference to the distribution system, transmission system or electricity works controlled or operated by the network operator.
31   Rights of lessor
(1)  Ownership of electricity network assets by the lessor of a transacted distribution system or transacted transmission system is to be treated as ownership by the Crown for the purposes of any provision of an Act that confers a right, privilege or immunity on the Crown as an owner of land or other assets.
(2)  The lessor of a transacted distribution system or transacted transmission system is not a distributor, transmission operator or network operator for the purposes of the ES Act or the regulations under that Act except for the purposes of the following provisions (the relevant provisions) of that Act:
(a)  section 44 (Acquisition of land),
(b)  section 45 (Erection and placement of electricity works),
(c)  section 50 (Charges for placement of electricity works),
(d)  section 51 (Ownership of electricity works),
(e)  section 53 (Protection of certain electricity works),
(f)  section 85 (Transfer of staff, assets, rights and liabilities),
(g)  such other provisions as may be prescribed by the regulations under this Act.
(3)  For the purposes of the application of the relevant provisions to the lessor of a transacted distribution system or transacted transmission system, the lessor is considered to have the functions of an authorised distributor or authorised transmission operator.
32   Functions of authorised network operators
(1)  A reference in any Act to the functions of a network operator includes:
(a)  in the case of an authorised distributor—the functions of establishing, maintaining and operating facilities for the distribution of electricity, or
(b)  in the case of an authorised transmission operator—the functions (its electricity functions) of establishing, maintaining and operating facilities for the transmission of electricity and the functions (its telecommunications functions) of utilising and developing its facilities for the transmission of electricity to carry out telecommunications services.
(2)  Divisions 2, 2A and 3 of Part 5 of the ES Act apply to and in respect of the exercise by an authorised transmission operator of its telecommunications functions as if the references in those Divisions to electricity works included references to telecommunications works.
Note.
 An authorised transmission operator, may, for example, for the purposes of exercising its telecommunications function, exercise powers of entry under, and in accordance with, Division 3 of Part 5 of the ES Act.
(3)  Any power or right that an authorised transmission operator has under an affected easement with respect to the exercise of its electricity functions is taken to extend to the exercise of the authorised transmission operator’s telecommunications functions.
(4)  Section 44 of the ES Act authorises an authorised transmission operator to acquire land by agreement or compulsorily for the purposes of the exercise of its electricity functions (whether or not the land acquired may also be used for the purposes of its telecommunications functions) but that section does not authorise it to acquire land compulsorily solely for the purposes of the exercise of its telecommunications functions.
(5)  In this section:
affected easement means any easement (whether created statutorily or otherwise):
(a)  that was an affected easement under section 6C of the Energy Services Corporations Act 1995 immediately before the commencement of this section, or
(b)  that is acquired compulsorily after that commencement.
33   Liability of authorised network operators
(1)  If an authorised network operator of a transacted distribution system or transacted transmission system contravenes a provision of the ES Act or the regulations under that Act in the course of or in connection with the operation of the distribution or transmission system, each authorised network operator of the distribution or transmission system is taken to have contravened the same provision.
(2)  An authorised network operator may be proceeded against and convicted under a provision pursuant to this section whether or not any other authorised network operator of the distribution or transmission system has been proceeded against or convicted under that provision.
(3)  This section does not affect any liability imposed on an authorised network operator for an offence actually committed by the authorised network operator.
34   Authorised network operators as public bodies
(1)  The regulations may provide that a reference in a specified provision of any other Act or an instrument made under any other Act to a public authority includes, or does not include, a reference to the owner, controller or operator of a transacted distribution system or transacted transmission system.
(2)  In this section, public authority includes statutory authority, statutory body, public utility undertaking, government agency and other public bodies.
35   Modification of ES Act provisions conferring functions on network operators
The regulations may modify any provision of the ES Act that confers a function on a network operator for the purposes of adapting the application of the provision to or in respect of the functions of the owner, controller or operator of a transacted distribution system or transacted transmission system.
36   Land acquisition functions
(1)  The land acquisition functions of the lessor of a transacted distribution system or transacted transmission system cannot be exercised by the lessor in the lessor’s own right but can be exercised by another network operator of the distribution or transmission system on behalf of the lessor, and the other network operator has full power and authority to exercise those functions on behalf of the lessor.
(2)  The following provisions apply to the exercise of land acquisition functions by a network operator of a transacted distribution system or transacted transmission system on behalf of the lessor:
(a)  the exercise of any such function by a network operator on behalf of the lessor is subject to any agreement between the network operator and the lessor concerning the exercise of those functions and to any agreement between network operators as to which of them is to exercise the function on behalf of the lessor in a particular case,
(b)  land (including an interest in land) that is acquired in the exercise of land acquisition functions by a network operator is acquired on behalf of and vests in the lessor,
(c)  the lessor has no liability in connection with the exercise of any land acquisition function on its behalf by a network operator (other than a liability to the network operator arising under an agreement between the lessor and the network operator as to the exercise of those functions) and any such liability that the lessor would otherwise have becomes instead a liability of the network operator,
(d)  the lessor cannot be made a party to any proceedings in connection with the exercise of any land acquisition function on its behalf by a network operator (other than proceedings in connection with an agreement between the lessor and the network operator as to the exercise of those functions).
(3)  A network operator of a transacted distribution system or transacted transmission system cannot exercise a land acquisition function in its own right (and can only exercise that function on behalf of the lessor as provided by this section) if the function relates to land of which the lessor of the transacted distribution system or transacted transmission system will become the owner.
(4)  The approval of the Minister under section 44 (3) of the ES Act in respect of the acquisition of land on behalf of the lessor of a transacted distribution system or transacted transmission system is not to be given unless the Minister is satisfied that all reasonable steps have been taken to enter into an agreement with the owner of the land to acquire the land and those steps have not resulted in any such agreement.
(5)  In this section, land acquisition functions means any of the following functions to the extent that they may be exercised for the purposes of or in connection with the functions of a network operator:
(a)  functions under section 44 (Acquisition of land) of the ES Act,
(b)  any function that concerns the creation, assurance or extinguishment of an interest in land.
37   Protection of electricity works
(1)  Section 53 of the ES Act applies in respect of electricity works that form part of a transacted distribution system or transacted transmission system as if:
(a)  a reference in that section to the commencement of the Electricity Supply Amendment (Protection of Electricity Works) Act 2006 were a reference to the completion of the authorised transaction as a result of which the electricity works form part of that transacted distribution system or transacted transmission system, and
(b)  a reference to the network operator included a reference to a network operator after the completion of that authorised transaction.
(2)  Section 53 of the ES Act does not apply to prevent an action lying by the owner of a transacted distribution system or transacted transmission system against a network operator that controls or operates the system.
38   Licensing
(1)  The Treasurer may for the purposes of an authorised transaction request the Minister under the ES Act to grant a licence referred to in section 13 or 93A of that Act to an entity nominated by the Treasurer as the new operator of a transacted distribution system or transacted transmission system.
(2)  The Minister under the ES Act is to grant a licence in accordance with the Treasurer’s request. The licence is to be granted on terms and conditions approved by the Treasurer and as may be required by or under the ES Act.
(3)  Clauses 2, 3 and 4 of Schedule 2 to the ES Act do not apply in respect of the grant of a licence pursuant to a request under this section.
39   Boundaries of distribution districts
(1)  The boundaries of the distribution district for a transacted distribution system cannot be varied under section 84 of the ES Act except with the consent in writing of the authorised distributor.
(2)  If the boundaries of the distribution district for a transacted distribution system are varied under section 84 of the ES Act, the power of the Minister under section 85 (Transfer of staff, assets, rights and liabilities) of the ES Act to order the transfer of staff, assets, rights or liabilities of a distributor includes the power to order the transfer of staff, assets, rights or liabilities of the owner or controller of the distribution system concerned.
40   Land tax
(1)  The exception provided for a sublessee in section 21C of the Land Tax Management Act 1956 does not apply to a sublessee under an authorised transaction sublease and the sublessee is liable for land tax accordingly.
(2)  An authorised transaction sublease is a sublease entered into for the purposes of an authorised transaction.
41   Planning laws
(1)  For the purposes of any environmental planning instrument, the supply of electricity by an authorised network operator is a public utility undertaking carried on by the authorised network operator as an electricity supply authority.
(2)  For the purposes of any relevant planning law provision, the carrying out of development by or on behalf of an authorised network operator for the purpose of an electricity transmission or distribution network (within the meaning of State Environmental Planning Policy (Infrastructure) 2007) constitutes the carrying out of that development by the authorised network operator as an electricity supply authority and public authority.
(3)  After a distribution system or transmission system becomes a transacted distribution system or transacted transmission system, a reference in an environmental planning instrument to the former network operator is to be read as a reference to the authorised network operator that operates the transacted distribution system or transacted transmission system.
(4)  In this section:
environmental planning instrument has the same meaning as in the Planning Act.
former network operator means the electricity network SOC that was the network operator of the distribution or transmission system concerned before the authorised network operator became the network operator.
relevant planning law provision means:
(a)  any provision of an environmental planning instrument that permits specified development to be carried out with or without development consent, or
(b)  any provision of an environmental planning instrument that deals with the obligations of a public authority in connection with the carrying out of development by or on behalf of the public authority that may be carried out without development consent (including the carrying out of an activity to which Part 5 of the Planning Act applies).
42   Coastal protection
Nothing done for the purposes of an authorised transaction requires the concurrence of the Minister under section 38 or 39 of the Coastal Protection Act 1979.