New South Wales: 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powers as are necessary to enable them to construct, operate, repair and maintain their electricity works, and (c) (Repealed) (d) to promote and encourage the safety of persons and property in relation to the generation, transmission, distribution and use of electricity, and (e) to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 Part 2 6–12 (Repealed) Part 3 Network operations in the retail market Division 1 Network operations 12A Meaning of "distribution system" (1) In this Act— distribution system means—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 mitigating any interference with the network operator's electricity works caused by the excavation work. (5) A network operator may apply for an injunction to prevent the carrying out of excavation work in, on or near its electricity works. (6) A network operator may take action under this section even if the person carrying out the excavation work owns or occupies the land in, on or over which the network operator's electricity works are situated. 50 Charges for placement of electricity works No annual or other periodic or special charge is payable by a network operator to a local council or roads authority in respect of any electricity works located in a public reserve or public road or in respect of the space in a public reserve or public road that is occupied by any such works. 51 Ownership of electricity works (1) Electricity works are owned separately from the land in, on or over which they are situated and ownership of land in, on or over which electricity works are situated does not constitute ownership of those works. (2) Electricity works are not to be taken in execution of any judgment against a person under any process of a court other than a judgment against the owner of those works. (3) The provisions of this section have effect despite anything contained in section 42 of the Real Property Act 1900. 52 Interruption to electricity supply for maintenance A network operator or retailer may interrupt the supply of electricity to a customer, at such reasonable times as the network operator or retailer determines— (a) for the purpose of inspecting, testing or carrying out repairs or maintenance work on its electricity works, or (b) for such other purpose as the network operator or retailer considers necessary for the safe and efficient operation of its electricity works. 53 Protection of certain electricity works (1) This section applies to all electricity works that, immediately before the commencement of the Electricity Supply Amendment (Protection of Electricity Works) Act 2006, were situated in, on or over land not owned by the network operator having control of those works, whether or not their presence, operation or use is supported by an agreement or other authority— (a) including any electricity works that, since that commencement, have been erected or installed on the same site for the purpose of repairing, replacing, modifying or upgrading those works, and (b) excluding any electricity works whose presence in, on or over the land is supported by a registered easement for the benefit of the network operator. (2) No action by the owner or occupier of the land lies against the network operator by reason of— (a) the presence in, on or over the land of electricity works to which this section applies, or (b) the operation or use of electricity works to which this section applies that are present in, on or over the land, and, as between the owner or occupier of the land and the network operator, the presence of those works, and their operation and use, are taken to be lawful for all purposes. (3) Nothing in subsection (2) relieves a person from any civil liability for negligence (as defined by section 5 of the Civil Liability Act 2002) to which the person becomes subject as a consequence of the way in which any electricity works to which this section applies are operated or used, are maintained, repaired, replaced, modified or upgraded or are removed. (4) In this section, registered easement means an easement that is registered— (a) in the Register kept under the Real Property Act 1900, in the case of land under the provisions of that Act, or (b) in the General Register of Deeds kept under the Conveyancing Act 1919, in the case of any other land. (5) The provisions of this section have effect despite anything contained in section 42 of the Real Property Act 1900. Division 2A Special powers for bush fire prevention 53A Definitions In this Division— aerial consumers mains means that part of an electrical installation consisting of overhead conductors and support structures between the main switchboard of an electrical installation and a support structure that is the connection point with the distribution system. bush fire prone land means land that is bush fire prone land under the Environmental Planning and Assessment Act 1979 in any area of the State. private land means any land that is not— (a) dedicated, or acquired for the purpose of dedication, under the Forestry Act 2012 or in respect of which the Forestry Corporation has obtained the benefit of a forestry right within the meaning of Division 4 of Part 6 of the Conveyancing Act 1919, or (b) dedicated or reserved, or acquired for the purpose of dedication or reservation, under the National Parks and Wildlife Act 1974, or (c) vested in, or under the control of, Rail Corporation New South Wales, Sydney Metro, Sydney Trains or Transport for NSW, or (d) within the catchment area of a water authority, or (e) unoccupied Crown land (being Crown land that is not held under a lease or licence or not vested in, or under the control of, trustees), or (f) land prescribed by the regulations as public land for the purposes of this definition. vegetation means a tree, shrub or plant. 53B Application of Division This Division applies only to bush fire prone land but does not prevent the taking of action under section 48 in relation to premises on bush fire prone land. 53C Power to give directions for bush fire risk mitigation work on private land (1) A network operator may by a written notice given to the owner or occupier of any premises on bush fire prone land that is private land direct the owner of the premises to do bush fire risk mitigation work on vegetation or aerial consumers mains on the premises if the network operator has determined that— (a) the vegetation could make the network operator's electricity works become a potential cause of bush fire, or (b) the vegetation fails to satisfy the requirements of any standard (adopted by the network operator for the purposes of reducing the risk of bush fire) as to required clearances between vegetation and electricity works or aerial consumers mains, or (c) the vegetation could make aerial consumers mains on the premises become a potential cause of bush fire, or (d) a fault or defect in the aerial consumers mains could make them become a potential cause of bush fire. (2) The work that can be directed to be done as bush fire risk mitigation work is— (a) for vegetation, the trimming or removal of the vegetation, or (b) for a fault or defect in aerial consumers mains, the repair of the fault or defect. 53D Responsibility for cost of bush fire risk mitigation work under direction (1) The owner of premises is responsible for the cost of bush fire risk mitigation work that is the subject of a direction to the owner under this Division unless the network operator is responsible for the cost of the work. (2) The network operator is responsible for the cost of the following bush fire risk mitigation work that is the subject of a direction under this Division— (a) work on vegetation that the network operator has determined could make the network operator's electricity works become a potential cause of bush fire, (b) work on vegetation that the network operator has determined fails to satisfy the requirements of any standard (adopted by the network operator for the purposes of reducing the risk of bush fire) as to required clearances between vegetation and the network operator's electricity works. (3) The network operator is not responsible for the cost of work 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 vegetation, or caused or permitted the vegetation 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 vegetation 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 vegetation was planted. 53E Contents of direction (1) A direction under this Division to the owner of premises to do bush fire risk mitigation work is to specify the following— (a) the particular work required to be done (the required work) and a statement of the reason the work is required to be done, (b) that the owner must do the required work within 60 days after the direction is given and must within 30 days after the direction is given notify the network operator (in the manner required by the direction) that the required work will be done within that 60 days, (c) that the owner may (as an alternative to doing the required work) comply with the direction by requesting the network operator within 30 days after the direction is given to disconnect the supply of electricity to the premises, (d) that the network operator is authorised to enter the premises and do the required work on behalf of the owner if the direction is not complied with, (e) if the network operator is responsible for the cost of the work—that the network operator undertakes to pay the reasonable cost of doing the work, (f) if the network operator is not responsible for the cost of the work—that the network operator can recover the reasonable cost of doing the work if it is not done by the owner. (2) The direction must also include the following— (a) to the extent that any standard adopted by the network operator is relevant to the required work—information sufficient to identify the standard and facilitate access to its contents, (b) a statement that the network operator has a policy for assisting persons who are experiencing difficulties due to hardship in connection with payment of the cost of doing the work required by the direction, (c) information that explains how a dispute or complaint about the direction can be referred to the Energy and Water Ombudsman NSW. (3) The regulations can make provision for or with respect to the form and contents of a direction, including provision for or with respect to— (a) prescribing a standard form of direction, or (b) specifying standard wording for any aspect of the direction, or (c) requiring the inclusion in a direction of matter in addition to the matter required by this section. 53F Compliance with direction (1) To comply with a direction under this Division, the owner of the premises must— (a) within 30 days after the direction was given either notify the network operator that the required work will be done within 60 days after the direction was given or request the network operator to disconnect the supply of electricity to the premises, and (b) (having notified the network operator that the work will be done within 60 days after the direction was given) do the required work within that 60 days. Note. The owner must within 30 days after the direction is given either notify the network operator that the required work will be done or request disconnection. If the owner does neither of those things within that 30 days, the network operator can take action immediately for a failure to comply with the direction. (2) If the owner of premises does not comply with the direction, the network operator may do the required work and (unless the network operator is responsible for the cost of the work) may recover as a debt owed by the owner the reasonable cost of doing the work in an efficient and competent manner. (3) Any dispute about the reasonable cost of doing the work may be referred to the Energy and Water Ombudsman NSW for resolution. (4) A network operator can by notice in writing to the owner or occupier of premises, increase any period for compliance with a direction. 53G Compensation No compensation is payable by a network operator for or in connection with the exercise in good faith and without negligence of a function under this Division. 53H Effect of other laws (1) An environmental planning instrument under the Environmental Planning and Assessment Act 1979 cannot prohibit, require development consent for or otherwise restrict the doing on any land of work that is required to be done by a direction under this Division. (2) Part 5 of the Environmental Planning and Assessment Act 1979 does not apply to or in respect of the doing on any land of work that is required to be done by a direction under this Division. (3) Work that is required to be done by a direction under this Division may be done on land despite any requirement for an approval, consent or other authorisation for the work made by the Biodiversity Conservation Act 2016, Part 5A of the Local Land Services Act 2013, the National Parks and Wildlife Act 1974 or any other Act or instrument made under an Act. 53I Hardship policy for cost recovery (1) A network operator must have and implement a hardship policy that has been approved by the Tribunal for assisting persons who are experiencing difficulties due to hardship in connection with payment of the cost of works done by the network operator when the person fails to comply with a direction under this Division. (2) The policy must provide flexible payment options for the payment of the cost of works that the network operator is entitled to recover from a person under this Division. (3) The policy must be publicly available on the network operator's website. Division 3 Powers of entry 54 Powers of entry (1) An authorised officer of a network operator may enter any premises for the purpose of exercising any function conferred or imposed on a network operator by or under this or any other Act or law, including— (a) carrying out preliminary investigations in connection with the proposed installation or extension of electricity works, or (b) installing, extending, maintaining, repairing or removing electricity works, or (c) reading electricity meters, or (d) checking if the network operator's conditions relating to tariffs and the use of electricity are being complied with, or (e) ascertaining whether an offence against this Act or the regulations has been committed, or (f) inspecting or disconnecting an electrical installation that the network operator is required or permitted to inspect or disconnect by or under this or any other Act or law, or (g) monitoring any excavation work in accordance with regulations under section 63Z, or (h) exercising any function conferred on the network operator by section 48, 49 or 49A or Division 2A. (1A) An authorised officer of a retailer may enter the premises of a customer for the following purposes— (a) reading, testing, maintaining, inspecting or altering any meter installed at the premises, (b) calculating or measuring energy supplied or taken at the premises, (c) checking the accuracy of metered consumption at the premises, (d) replacing meters, (e) any other purpose prescribed by the regulations relating to metering. (2) A power of entry to premises under this section may be exercised only during daylight hours except— (a) in an emergency, or (b) in the case of an authorised officer of a retailer—if there is a problem with a meter on the premises that poses a risk to safety. 55 Notice of entry (1) Before an authorised officer of a network operator or retailer exercises a power of entry under this Division, the network operator or retailer concerned must give the owner or occupier of the land written notice of the intention to enter the land. (2) The notice must specify the day on which the authorised officer intends to enter the land and must be given before that day. (3) This section does not require notice to be given— (a) if entry to the land is made with the consent of the owner or occupier of the land, or (b) if entry is required for the sole purpose of reading an electricity meter, or (c) if entry is required in an emergency, or (d) if entry is for the purpose of doing work in the exercise of a function under Division 2A. 56 Use of force (1) Reasonable force may be used for the purpose of gaining entry to any land (other than such part of a building as is being used for residential purposes) under a power conferred by this Division, but only if authorised by the network operator or retailer concerned in accordance with this section. (2) The authority— (a) must be in writing, and (b) must be given in respect of the particular entry concerned, and (c) must specify the circumstances that must exist before force may be used. 57 Notification of use of force or urgent entry (1) An authorised officer— (a) who uses force for the purpose of gaining entry to land, or (b) who enters land in an emergency without giving written notice to the owner or occupier of the land, must promptly advise the network operator or retailer concerned of that fact. (2) The network operator or retailer must give notice of the entry to such persons or authorities as appear to the network operator or retailer to be appropriate in the circumstances. 58 Care to be taken (1) In the exercise of a power under this Division, an authorised officer must do as little damage as possible. (2) As far as practicable, entry onto fenced land is to be made through an existing opening in the enclosing fence or, if entry through an existing opening is not practicable, through a new opening. (3) Any new opening is to be properly closed when the need for entry ceases. (4) If, in the exercise of a power under this Division, any pit, trench, hole or bore is made, the network operator or retailer concerned must, if the owner or occupier of the land so requires— (a) fence it and keep it securely fenced so long as it remains open or not sufficiently sloped down, and (b) without unnecessary delay, fill it up or level it or sufficiently slope it down. 59 Recovery of cost of entry and inspection If an authorised officer enters any land for the purpose of making an inspection and, as a result of the inspection, the network operator or retailer concerned requires any work to be carried out on the land, the network operator or retailer may recover the reasonable costs of the entry and inspection from the owner or occupier of the land. 60 Compensation The network operator or retailer concerned must pay compensation to the owner or occupier of any land in respect of which a power has been exercised under this Division for any loss or damage arising from the exercise of the power but is not so liable to the extent to which the loss or damage arises from— (a) work done for the purposes of an inspection which reveals that there has been a contravention by the owner or occupier, as the case requires, of any provision of this Act or the regulations, or (b) work done in the exercise of a function under Division 2A. 61 Certificates of authority to enter land (1) A power of entry under this Division may not be exercised by an authorised officer unless the authorised officer— (a) is in possession of a certificate of authority issued by the network operator or retailer concerned, and (b) produces the certificate when required to do so by the owner or occupier of the land. (2) The certificate of authority— (a) must state that it is issued under this Act, and (b) must give the name of the person to whom it is issued, and (c) must describe the nature of the powers conferred and the source of those powers, and (d) must state the date (if any) on which it expires, and (e) must describe the kind of land to which the power extends, and (f) must be under the seal of the network operator or retailer or must bear the signature of the principal officer of the network operator or retailer, of a prescribed officer of the network operator or retailer or of an officer belonging to a prescribed class of officers of the network operator or retailer. 62 Entry to residential premises A power of entry conferred by this Division is not exercisable in relation to such part of a building as is used for residential purposes except— (a) with the consent of the occupier of that part of the premises, or (b) for the sole purpose of reading an electricity meter, or (c) under the authority conferred by a warrant of entry. 63 Warrants of entry (1) A network operator or retailer may apply to an authorised officer within the meaning of the Law Enforcement (Powers and Responsibilities) Act 2002 if it is of the opinion that it is necessary for an authorised officer within the meaning of this Act to enter and inspect any land (including any building used for residential purposes) for the purposes of this Act. (2) An authorised officer within the meaning of the Law Enforcement (Powers and Responsibilities) Act 2002 to whom such an application is made may, if satisfied that there are reasonable grounds for doing so, issue a warrant of entry authorising an authorised officer named in the warrant to enter and inspect the land for the purposes of this Act. (3) Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 applies to a warrant of entry under this section in the same way as it applies to a search warrant under that Act. (4) (Repealed) 63A Other powers of entry unaffected This Division does not apply to any power of entry that an authorised officer has apart from this Division, such as a power arising under a customer connection contract or customer retail contract. Part 5A Market operations 63B Definition In this Part— market operations rule means a rule approved under section 63C. 63C Market operations rules (1) The Minister may approve rules for or with respect to the following matters— (a) (Repealed) (b) procedures for measuring electricity consumption or generation of customers, (c) (Repealed) (d) provision of services and equipment relating to the measurement and control of customers' electricity consumption or generation and persons who may or may not provide such services, (e) requirements for equipment used to measure and control customers' electricity consumption or generation, (f) the circumstances in which ownership of any such equipment may be transferred and the procedures for the transfer, (g), (h) (Repealed) (i) any other matter prescribed by the regulations, (j) matters ancillary to or consequential on the matters set out in paragraphs (b), (d)–(f) and (i). (2) A rule may make provision for or with respect to a matter by applying, adopting or incorporating, with or without modification, the provisions of any Act or statutory rule or any other publication, whether of the same or of a different kind. (3) A rule may— (a) apply generally or be limited in its application by reference to specified exceptions or factors, or (b) apply differently according to different factors of a specified kind, or (c) authorise any matter or thing to be from time to time agreed, determined, applied or regulated by any specified person or body. (4) The Minister may from time to time approve amendments to the rules or the revocation of rules. (5) If a rule, or a rule amending or revoking a rule, is approved by the Minister— (a) written notice of the approval of the rule must be published in the Gazette, and (b) the rule takes effect on the day on which notice is so published or, if a later day is specified in the rule for commencement, on the later day so specified, and (c) the Minister must make available a copy of the rule to each retailer or distributor. (6) A rule must be consistent with this Act and the regulations. A rule is unenforceable to the extent of any such inconsistency. (7) Subject to subsection (6), a rule may be approved for the purposes of both this Act and any other Act or law. 63D Obligations under rules (1) A person must not contravene the market operations rules. Maximum penalty—200 penalty units. (2) (Repealed) (3) It is a condition of a distributor's licence that the distributor must comply with the market operations rules. (4) Subsection (1) does not apply to a person in the person's capacity as a customer of a retailer. 63E (Repealed) Part 5B 63F–63J Part 5C Removal of electricity structures 63K Secretary may direct distributor to remove structure (1) The Secretary may, by notice in writing served on a distributor, direct the distributor to remove or relocate an electricity structure specified in the notice if— (a) the structure is erected within the distributor's distribution district, and (b) the structure is on or adjacent to a public road that is— (i) a traffic route, or (ii) a public road that the Secretary has, for the purpose of traffic safety and having regard to the volume and nature of the vehicular traffic carried on it, determined requires the removal or relocation of the structure. (2) A distributor must comply with a notice served on it under subsection (1). (3) In this section— electricity structure means a structure erected or maintained by a distributor for 1 or more of the following purposes— (a) the generation of electricity, (b) the storage, transmission or distribution of electricity, (c) public lighting. Part 5D Electricity safety Division 1 General 63L Interpretation (1) For the purposes of this Part, place includes land (whether or not covered with water), premises, buildings and other structures. (2) For the purposes of this Part, a person or thing is in a place if the person or thing is located in, on, over or under the place. Division 2 Inspectors 63M Inspectors (1) The Tribunal may appoint any person as an inspector for the purposes of any or all of the provisions of this Act or the regulations. (1A) (Repealed) (2) The Tribunal may at any time and for any reason revoke a person's appointment under subsection (1). (3) An inspector is to be provided by the Tribunal with a certificate of identification. (4) An inspector must, when exercising in any place any function of the inspector under this Act or the regulations, produce the inspector's certificate of identification to any person apparently in charge of the place who requests its production. 63N Obstruction of inspectors (1) A person must not— (a) without reasonable excuse, refuse or fail to comply with any notice given or requirement made, or to answer any question asked, by an inspector under this Act or the regulations, or (b) provide information or give evidence in purported compliance with a requirement made or question asked by an inspector under this Act or the regulations knowing the information or evidence to be false or misleading in a material particular, or (c) wilfully delay, hinder or obstruct an inspector in the exercise of the inspector's functions under this Act or the regulations, or (d) falsely represent himself or herself to be an inspector. Maximum penalty—500 penalty units (in the case of a corporation) and 150 penalty units (in any other case). (2) (Repealed) (3) It is sufficient defence to a prosecution for an offence arising under subsection (1) (a) by reason of the failure of a defendant to answer a question asked by an inspector under a power conferred by this Act or the regulations if the defendant satisfies the court that the defendant did not know, and could not with reasonable diligence ascertain, the answer to the question. Division 3 Electrical equipment 63O (Repealed) 63P Examination and testing of electricity delivery equipment (1) The Tribunal may from time to time cause any electricity delivery equipment, and the operation of that equipment, to be examined and tested by an inspector for the purpose of determining whether the equipment can be, and is being, operated— (a) safely, and (b) in accordance with any relevant safety management system. (2) A relevant safety management system is any system of the network operator concerned that is for the purpose of ensuring the safe operation of the network operator's transmission or distribution system. (3) An inspector may enter any place at any reasonable time for the purpose of exercising functions under this section in connection with electricity delivery equipment that is in the place. 63Q Orders prohibiting the unsafe operation of electricity delivery equipment (1) If the Minister is satisfied that electricity delivery equipment cannot be operated safely, the Minister may, by order served on the network operator that operates or proposes to operate the equipment, prohibit the operation of the equipment. (2) An order under this section may permanently prohibit the operation of the electricity delivery equipment concerned or prohibit the operation of the equipment until such time as it is repaired or altered, or its operation is rectified, to the satisfaction of the Minister. (3) The Minister may make an order under this section only on the recommendation of the Tribunal. (4) A person must not use or operate any electricity delivery equipment in contravention of an order made under this section. Maximum penalty—7,500 penalty units (in the case of a corporation) and 5,000 penalty units (in any other case). Division 4 Accident reporting and investigation 63R Notification of serious electricity works accidents (1) A serious electricity works accident must be notified in accordance with subsection (2) to the Tribunal by the distributor or transmission operator that owns, controls or operates the distribution system or transmission system of which the electricity works concerned forms part. Maximum penalty—500 penalty units. (2) A notice of an accident must be given within 7 days after the accident in such manner as may be prescribed by the regulations. (3) The regulations may exclude a person, or a person belonging to a class of persons, prescribed by the regulations from any requirement under this section to notify the Tribunal of a serious electricity works accident. (4) This section does not apply to a serious electricity works accident involving a motor vehicle accident on land not owned or controlled by a network operator if— (a) a fault or failure in electricity works did not contribute to the motor vehicle accident, and (b) electricity did not contribute to an injury or death. 63S Investigation of serious electricity works accidents The Tribuna