Electricity Supply Act 1995 (NSW)

Electricity Supply Act 1995 No 94 An Act to regulate the supply of electricity in the retail market; to set out the functions of persons engaged in the conveyance and supply of electricity; to make provision with respect to the management of electricity supply emergencies; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Electricity Supply Act 1995. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Objects The objects of this Act are— (a) to promote the efficient and environmentally responsible production and use of electricity and to deliver a safe and reliable supply of electricity, and Note. Customer choice and rights in relation to electricity connections and electricity supply are provided for by the National Energy Retail Law (NSW). (b) to confer on network operators such powers as are necessary to enable them to construct, operate, repair and maintain their electricity works, and (c) (Repealed) (d) to promote and encourage the safety of persons and property in relation to the generation, transmission, distribution and use of electricity, and (e) to ensure that any significant disruption to the supply of electricity in an emergency is managed effectively. 4 Definitions and notes (1) Expressions used in this Act that are defined in the dictionary at the end of this Act have the meanings set out in the dictionary. (2) Notes included in this Act do not form part of this Act. (3) Words and expressions used in this Act have the same meaning as they have in the National Energy Retail Law (NSW) but (unless otherwise expressly provided) have that meaning only in relation to the supply of electricity. 5 Act binds Crown This Act binds the Crown in right of New South Wales and, in so far as the legislative power of Parliament permits, the Crown in all its other capacities. Part 2 6–12 (Repealed) Part 3 Network operations in the retail market Division 1 Network operations 12A Meaning of "distribution system" (1) In this Act— distribution system means— (a) the electricity power lines and associated equipment and electricity structures used to convey and control the conveyance of electricity— (i) to the premises of wholesale and retail customers, up to the connection point for the premises, whether or not the connection point is on the building or land comprising the premises, or (ii) to, from and along the rail network electricity system operated by, for or on behalf of Sydney Metro, Sydney Trains, Transport Asset Manager of New South Wales or Transport for NSW, or (b) a regulated stand-alone power system. (2) A distribution system does not include the following— (a) a transmission system, (b) any of the following excluded by the regulations— (i) specified electricity power lines, (ii) specified electricity structures, (iii) specified equipment. 13 Operation of distribution systems for retail supply A person must not operate a distribution system for the purpose of conveying electricity, for or on behalf of retailers, otherwise than under the authority of a distributor's licence. Maximum penalty—5,000 penalty units. 14 Licences (1) The Minister may grant distributors' licences for the purposes of this Act. (2) Schedule 2 has effect with respect to the granting, variation, transfer and cancellation of distributors' licences. 15, 15A (Repealed) 16 Distributors to convey electricity for certain persons only It is a condition of a distributor's licence that the distributor must not operate a distribution system for the purpose of conveying electricity for or on behalf of any person unless the person is— (a) a retailer, or (b) a Registered participant within the meaning of the National Electricity (NSW) Law, or (c) a person prescribed by the regulations, or a member of a class of persons prescribed by the regulations. (d) (Repealed) 17, 18 (Repealed) Divisions 2, 3 19–23 (Repealed) Division 4 Requirements relating to customer connection services 24 Application (1) This Division applies to any person who applies to a distributor for the provision of customer connection services or to whom customer connection services are provided. (2) A distributor may refuse to provide customer connection services to a person who fails to comply with a requirement under this Division. (3) In this Division, customer connection services means connection services within the meaning of Chapter 5A of the National Electricity Rules, except as may be provided by the regulations. 25 (Repealed) 26 Service lines (1) A distributor may require the installation of such service lines, and provision for their attachment, as it considers necessary to provide a supply of electricity to or from a customer. (2) The type, construction and route of a service line and its point of connection are to be as determined by the distributor. (3) A distributor may require premises to be provided with more than one point of connection if the distributor considers it necessary to avoid interference with the supply of electricity to or from any other premises. 27 Service equipment (1) A distributor may require the installation of such service equipment, and provision for its mounting, as it considers necessary for the provision of a safe and efficient supply of electricity to or from a customer. (2) The position and standards of installation of service equipment are to be as determined by the distributor. 28 Transformers (1) This section applies if, in the opinion of the distributor, the supply of electricity required by a customer— (a) exceeds that which can be provided by a service line from its street mains, and (b) can best be given by installing transformers, switchgear or other equipment on the premises to be supplied. (2) In such a case, the distributor may require the customer to provide for use by the distributor, free of cost, a place within those premises to accommodate the transformers, switchgear or other equipment that the distributor considers should be installed. (3) The place provided must be approved by, and must be enclosed in a manner approved by, the distributor. 29 (Repealed) 30 Requirements as to installation and use of apparatus (1) A distributor— (a) may impose such requirements as to the installation and use of electrical appliances and equipment by the customer as the distributor considers necessary to prevent or minimise adverse effects on the supply of electricity to or from other customers, and (b) may impose requirements relating to loading of, and the balancing of the load over, the phases of the customer's electricity supply, and (c) may impose requirements as to the minimum rupture rating or minimum breaking capacity of the customer's main protective devices, and (d) may require the customer to install relays, current transformers and other protective equipment having characteristics to suit the distributor's protective system. (2) A customer must comply with any requirement imposed on the customer under this section. 31 Customer may choose supplier and contractor (1) For the purpose of complying with any requirement imposed under this Division, a customer may elect— (a) to have any required electrical or other goods provided by the distributor (in the case of goods that are available from the distributor) or by any other person, and (b) to have any required electrical or other services provided by the distributor (in the case of services that are available from the distributor) or by an accredited service provider. (2) (Repealed) 31A Accredited service providers (1) A person must not provide a contestable network service unless the person is accredited to provide services in accordance with the regulations (an accredited service provider) and the person's accreditation authorises the person to provide the contestable network service concerned. Maximum penalty—500 penalty units. (2) The regulations may exempt the provision of specified, or a specified class of, contestable network services from the requirement that the services must be provided by an accredited service provider. (3) The exemption may be unconditional or subject to conditions. (4) The regulations may make provision for or with respect to the following— (a) the accreditation of accredited service providers (including the imposition of conditions on accreditation), (b) different classes of accredited service providers, (c) the payment of fees in connection with the accreditation of accredited service providers (including the imposition of fees for applications for accreditation and renewal of accreditation). (5) In this section— contestable network service means— (a) a service provided for the purpose of complying with a requirement imposed by a distributor under this Division, and (b) any other distribution service (within the meaning of the National Electricity Rules) prescribed by the regulations. 32 (Repealed) Division 5 Levy 32A Definitions In this Division— licensee means the holder of a distributor's licence. network income of a licensee means the income derived by the licensee from the use of the distribution system of the licensee in the provision of electricity network services. 32AA Exemption for transacted distribution system This Division does not apply to a licensee in respect of a transacted distribution system under the Electricity Network Assets (Authorised Transactions) Act 2015. 32B Distributor's levy (1) A licensee must pay to the Treasurer, in respect of each financial year during which the licensee holds a distributor's licence, the levy determined in respect of that year by order of the Governor, on the recommendation of the Treasurer, applying to the licensee and published in the Gazette. (2) The Treasurer, in recommending the amount of a levy for a financial year payable by a licensee, must be satisfied that the amount reasonably represents the amount by which the network income (as estimated by the Treasurer) of the licensee in that year is likely to exceed the sum of the amounts (as estimated by the Treasurer) to be— (a) the costs of deriving the income, and (b) the taxes payable in deriving that income, and (c) a reasonable return on the capital of the licensee used in deriving that income, having regard to— (d) the likely consumption of electricity in that financial year by customers (other than customers who are specified or described in an order made under section 43E (6)) who are connected to the licensee's distribution system, and (e) such other matters as the Treasurer determines after consultation with the licensee. (3) The levy is payable for the financial year commencing on 1 July 1997 and later financial years. (4) Despite the other provisions of this section, no levy is to be determined in respect of the year commencing on 1 July 2001, or any subsequent year, unless the Treasurer, by order published in the Gazette, approves the determination of a levy. (5) An approval of the Treasurer under subsection (4)— (a) must be published in the Gazette before the beginning of a year to which it applies, and (b) may apply to one or more years as specified or described in the approval. 32C Variation of levy (1) The amount of a levy payable by a licensee in respect of a financial year may be varied by order of the Governor applying to the licensee and published in the Gazette. (2) Such an order may be made before or during the financial year concerned or during the following financial year, but not later. (3) The Treasurer, in recommending a variation of a levy for a financial year payable by a licensee, must be satisfied of the matters referred to in section 32B (2). 32D Becoming a licensee during a year (1) If a person becomes a licensee during a financial year, a levy may be determined under this Division for the licensee in respect of the remaining part of that financial year. (2) The other sections of this Division apply to the licensee in respect of that financial year as if references in those sections to a financial year were references to the remaining part of that financial year. 32E Ceasing to be a licensee during a year (1) If a person ceases to be a licensee during a financial year, the amount of levy payable by the licensee may be adjusted by order of the Governor, applying to the licensee and published in the Gazette, having regard to the length of the portion of that financial year that the distributor's licence was in force. (2) Such a person is entitled to a refund of any money paid in excess of the amount of the levy as so adjusted. (3) However, a person does not, by ceasing to be a licensee, cease to be liable to a levy, or to a variation of a levy under section 32C, in respect of any period during which the person was a licensee. (4) Accordingly, a reference in this Division to a licensee includes a reference to a former licensee, but without making the former licensee liable to a levy in respect of any period after the person ceased to be the holder of a distributor's licence. (5) The other sections of this Division apply for the purpose of calculating an adjustment referred to in subsection (1) or a variation referred to in subsection (3) as if references in those sections to a financial year were references to the portion of the financial year during which the distributor's licence was in force. 32F Payment and recovery of levy (1) The levy in respect of a financial year is payable at such times (whether during or after that year) and in such manner as are— (a) determined in the order imposing, varying or adjusting it (subject to any agreement referred to in paragraph (b)), or (b) agreed on between the Treasurer and the licensee under section 182. (2) A levy under this Division is recoverable as a debt due to the Crown in any court of competent jurisdiction. 32G Operation of Division (1) It is a condition of a distributor's licence that the licensee must pay the levy in accordance with this Division. (2) Nothing in this Division affects the operation of section 5.4 (Payment of financial distributions to Treasurer) of the Government Sector Finance Act 2018. Part 4 Retail pricing for electricity Divisions 1–3A 33–43 (Repealed) Division 4 Pricing of electricity 43A Definitions In this Division— electricity network pricing determination means a determination of the distribution network service pricing in accordance with the National Electricity Rules for the provision of electricity network services by a licensee. licensee means the holder of a distributor's licence but does not include an authorised distributor under the Electricity Network Assets (Authorised Transactions) Act 2015. 43B Pricing of electricity for customers other than exempt customers (1) The price for electricity network services that are the subject of an electricity network pricing determination and that are provided by a licensee with respect to customers (other than customers who are specified or described in an order made under section 43E (6)) is increased by an amount determined by an order made by the Governor on the recommendation of the Treasurer and published in the Gazette that does not exceed 0.550 cents per kilowatt hour of the electricity supplied. (2) An electricity network pricing determination increased in accordance with this section has effect under the National Electricity Rules as if the determination included the increase. (3) An electricity network pricing determination that includes an amount determined by an order made as referred to in subsection (1) is not to be further increased in accordance with this section. 43C (Repealed) 43D Returns (1) A licensee is, within such periods as are specified or described from time to time by the Treasurer by notice to the licensee or by notice published in the Gazette, required to furnish to the Treasurer a return setting out— (a) such information relating to forecast and actual consumption of electricity by customers (other than customers who are specified or described in an order made under section 43E (6)) as is specified or described in such a notice, and (b) such other information as is specified or described in such a notice, being information that is relevant to the licensee's obligations under this Division. (2) The information in such a return is to be furnished in such manner and form as is specified or described in such a notice. (3) The Treasurer may, by notice to the licensee or by notice published in the Gazette, require supplementary or further information from the licensee at any time. 43E Operation of Division (1) It is a condition of a distributor's licence that the licensee must comply with the requirements of this Division. (2) This Division applies to customers provided with electricity network services under any contract. (3) The regulations may make provision for or with respect to phasing in the increase effected by section 43B (1) in relation to any class or classes of customers, in cases where it is not practicable to ascertain the exact amount of electricity supplied for any period commencing with the commencement of this section. (4) This Division does not apply to electricity network services provided to a customer under a contract that— (a) was entered into before 6 May 1997, and (b) contains a provision in force before that date that expressly precludes payment of additional charges for electricity network services provided under it. (5) This Division does not apply in relation to electricity network services provided during any period specified or described in an order made by the Governor on the recommendation of the Treasurer and published in the Gazette. (6) This Division does not apply in relation to electricity network services provided to customers of a class specified or described in an order made by the Governor on the recommendation of the Treasurer and published in the Gazette. (6A) This Division does not apply to transmission services within the meaning of the National Electricity Rules. (7) Nothing in this Division gives rise to any rights that are justiciable by a customer of a licensee or to any grounds that constitute a defence to proceedings for the recovery of any amount from a customer of a licensee. Divisions 5, 6 43EA–43ES (Repealed) Part 4A 43F–43P (Repealed) Part 5 Powers and duties of network operators and retailers Division 1 Acquisition of land 44 Acquisition of land (1) A network operator may acquire land (including an interest in land) for the purpose of exercising its functions under this or any other Act or law. (2) Land that a network operator is authorised to acquire under this section may be acquired by agreement or by compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act 1991 for the purposes of this Act. (3) A network operator may not give a proposed acquisition notice under the Land Acquisition (Just Terms Compensation) Act 1991 without the approval of the Minister. (4) Despite the Land Acquisition (Just Terms Compensation) Act 1991, section 55, a strategic benefit payment to which a person is entitled must be disregarded in determining the amount of compensation to which the person is entitled under that Act, Part 3. (5) In this section— strategic benefit payment means a payment required to be made by the holder of a transmission operator's licence under a condition imposed on the licence by the Minister under Schedule 2, clause 6(2)(i). Division 2 Powers and duties relating to electricity works 45 Erection and placement of electricity works (1) For the purpose of exercising its functions under this or any other Act or law, a network operator may carry out any of the following work— (a) work comprising the erection, installation or extension of electricity works on public land, (b) work on any land comprising or connected with the alteration, maintenance or removal of existing electricity works on any land, (c) work on public land that is connected with the erection, installation, extension, alteration, maintenance or removal of electricity works on any land. (2) Work carried out by a network operator for the purpose of exercising its functions under this or any other Act or law and comprising the erection, installation, extension, alteration, maintenance or removal of electricity works on any land is exempt from the requirement for an approval under the Local Government Act 1993, except in relation to buildings. (3) (Repealed) (4) However, no such work (other than routine repairs or maintenance work) may be carried out unless— (a) written notice of the proposal to carry out the work has been given to the local council, and (b) the local council has been given a reasonable opportunity (being not less than 40 days from the date on which the notice was given, or a shorter period agreed to in writing by the council) to make submissions to the network operator in relation to the proposal, and (c) the network operator has given due consideration to any submissions so made. (5) Subsection (4) does not apply to the carrying out of work to cope with emergencies. (6) In this section— public land means— (a) a public road, or (b) a public reserve, or (c) Crown land or Crown managed land within the meaning of the Crown Land Management Act 2016, or (d) State forest, or (e) land under the control and management of a public or local authority, but does not include— (f) any land (other than State forest) that is occupied under any lease or other arrangement for private purposes that confers a right to exclusive possession of the land, or (g) (Repealed) 46 Damage to be made good (1) If a public road or public reserve is damaged by any work carried out by a network operator, the local council or roads authority may require the network operator to make good the damage without delay. (2) If the network operator fails to carry out appropriate work in accordance with any such requirement, the local council or roads authority may carry out the work itself. (3) The cost of carrying out the work may be recovered by the local council or roads authority in a court of competent jurisdiction as a debt owed to it by the network operator. 47 Altering position of conduit (1) A network operator may serve a written notice on a person if— (a) the network operator needs an alteration to be made in the position of a conduit owned by the person, and (b) the alteration would not permanently damage the conduit or adversely affect its operation. (2) The notice— (a) must specify the work to be carried out, and (b) must specify a reasonable time within which the work is to be carried out, and (c) must include an undertaking by the network operator to pay the reasonable cost of carrying out the work. (3) If the work is not carried out as required by the notice, the network operator may carry out the work in a manner that does not permanently damage the conduit or adversely affect its operation. (4) In this section, conduit means anything that is in or under a public road (or any other land on which no building or other structure is located) and is used for the conveyance of a substance, energy or signals. 48 Interference with electricity works by trees (1) This section applies if a network operator has reasonable cause to believe that a tree situated on any premises— (a) could destroy, damage or interfere with its electricity works, or (b) could make its electricity works become a potential cause of bush fire or a potential risk to public safety. (2) In those circumstances, a network operator— (a) may serve a written notice on the owner or occupier of the premises requiring the owner to trim or remove the tree, or (b) in an emergency, may, at its own expense, trim or remove the tree itself. (3) A notice under subsection (2) (a)— (a) must specify the work to be carried out, and (b) must specify a reasonable time within which the work is to be carried out, and (c) must include an undertaking by the network operator to pay the reasonable cost of carrying out the work. (4) Subsection (3) (c) does not apply in either of the following circumstances— (a) if, after the electricity works were first laid or installed, an owner or occupier of the premises planted the tree, or caused or permitted the tree to be planted, in circumstances in which the owner or occupier ought reasonably to have known that destruction of, damage to or interference with the works would result, (b) the land in or on which the tree is located, and on or over which the works are located, was the subject of an easement for the benefit of the network operator (or a predecessor of the network operator) when the tree was planted. (5) If the work is not carried out as required by the notice, the network operator may carry out the work itself. (6) The cost of carrying out the work may be recovered by the network operator in a court of competent jurisdiction as a debt owed to it by the owner of the premises on which the tree is situated, but only in the circumstances referred to in subsection (4). (7) This section applies despite the existence of a tree preservation order or environmental planning instrument (other than a State environmental planning policy), but does not apply to any tree within a protected area or to any tree that is the subject of or is within an area that is the subject of— (a) an interim heritage order, or a listing on the State Heritage Register, under the Heritage Act 1977, or (b) an order in force under section 136 of the Heritage Act 1977, or (c) an interim protection order under the National Parks and Wildlife Act 1974, or (d) a protection conferred by any similar law. (8) Nothing done for the purpose of carrying out the work required by a notice under this section constitutes an offence against any law under which a tree preservation order or environmental planning instrument (other than a State environmental planning policy) relating to the land is made. (9) In this section— protected area means an area that is within— (a) a national park or nature reserve within the meaning of the National Parks and Wildlife Act 1974, or (b) land that is reserved or zoned for environmental protection purposes under the Environmental Planning and Assessment Act 1979, or (c) a public reserve within the meaning of the Local Government Act 1993. tree includes shrub and plant. 49 Obstruction of electricity works (1) This section applies if a network operator has reasonable cause to believe that any structure or thing situated in, on or near its electricity works— (a) could destroy, damage or interfere with those works, or (b) could make those works become a potential cause of bush fire or a potential risk to public safety. (2) The network operator may serve a written notice on the person having control of the structure or thing requiring the person to— (a) modify or remove the structure or thing, or (b) do either of the following— (i) modify or remove the structure or thing, (ii) engage an accredited service provider to move the electricity works away from the structure or thing. (2A) Work undertaken in accordance with a requirement in a notice served under subsection (2) is at the expense of the person served with the notice. (2B) The network operator may, in an emergency, modify or remove the structure or thing itself, instead of serving a notice under subsection (2). (3) A notice under subsection (2)— (a) must specify the work to be carried out, and (b) must specify a reasonable time within which the work is to be carried out. (4) If the person fails to carry out the work in accordance with the requirement, the network operator may carry out the work itself. (5) If the network operator carries out the work after issuing a notice under subsection (2), the costs of— (a) carrying out the work, and (b) repairing any damage done to the network operator's electricity works by the structure or thing, may be recovered by the network operator in a court of competent jurisdiction as a debt owed to it by the person. (6) A network operator may apply for an injunction to prevent a structure or thing being placed in, on or near its electricity works. (7) A network operator may take action under this section even if the person having control of the structure or thing owns or occupies the land in, on or over which the network operator's electricity works are situated. (8) Subsection (5) does not enable the network operator to recover costs from a person referred to in subsection (7) if the structure or thing was lawfully placed in its present position— (a) before the installation of the electricity works, or (b) with the agreement of the operator, or (c) in the case of electricity works to which section 53 applies—before 26 May 2006. (9) In the circumstances referred to in subsection (8)— (a) the costs referred to in subsection (5) are to be borne by the network operator, and (b) the network operator is liable to the owner of the structure or thing for any loss or damage suffered by the owner as a consequence of the work referred to in subsection (4). 49A Excavation work affecting electricity works (1) This section applies if a network operator has reasonable cause to believe that the carrying out or proposed carrying out of excavation work in, on or near its electricity works— (a) could destroy, damage or interfere with those works, or (b) could make those works become a potential cause of bush fire or a potential risk to public safety. (2) In those circumstances, a network operator may serve a written notice on the person carrying out or proposing to carry out the excavation work requiring the person— (a) to modify the excavation work, or (b) not to carry out the excavation work, but only if the network operator is of the opinion that modifying the excavation work will not be effective in preventing the destruction or damage of, or interference with, the electricity works concerned or in preventing those works becoming a potential cause of bush fire or a potential risk to public safety. (3) A notice under subsection (2) must specify the excavation work that is to be modified or not carried out. (4) A network operator may recover the following costs in a court of competent jurisdiction as a debt owed to it by a person who carried out excavation work the subject of a notice under subsection (2)— (a) the costs incurred in replacing any of the network operator's electricity works destroyed by the excavation work, (b) the costs incurred in repairing any damage to the network operator's electricity works caused by the excavation work, (c) the costs incurred in remedying or mitig