Re: Application by ElectraNet Pty Limited (No 3) [2008] ACompT 3

AUSTRALIAN COMPETITION TRIBUNAL

Re: Application by ElectraNet Pty Limited (No 3) [2008] ACompT 3

COMPETITION LAW – review of decision of Australian Energy Regulator (AER) pursuant to s 71C of National Electricity Law – AER required to determine regulatory asset base (RAB) of ElectraNet for regulatory control period of five years from 2008 – ElectraNet the transmission network service provider for electricity in South Australia – setting RAB provides foundation for regulation of revenue during regulatory control period – provision in rule 11.6.13(b) of National Electricity Rules to allow adjustments to RAB for easements in determination – AER adjusted amount allowed for easement compensation costs (amounts paid to landowners) in RAB in determination – ElectraNet also claimed adjustment to RAB for easement acquisition or transaction costs – AER refused to make adjustment to RAB for easement acquisition or transaction costs – consideration of national electricity objective and revenue and pricing principles – consideration of ACCC Draft Statement of Principles and Statement of Principles background paper – whether AER erred in material fact in not being satisfied that RAB did not include allowance for easement acquisition or transaction costs – whether AER erred in deciding to make no allowance in RAB for those costs because no satisfactory basis for quantifying them was available – consideration of grounds of review under s 71R of the Law – Tribunal found that AER erred in material factual finding because easement acquisition or transaction costs not included in ElectraNet's opening RAB – Tribunal satisfied that material showed proper foundation for determining appropriate adjustment to opening RAB for those costs.

National Electricity (South Australia) Act 1996 (SA) National Electricity Law, ss 7, 7A, 16, 71C, 71P and 71R National Electricity Rules, rr 6A, 11 Schedule A Gas Pipelines Access (South Australia) Act 1997 (SA), s 39 Electricity Corporations Act 1994 (SA) Public Corporations Act 1993 (SA) Electricity Trust of South Australia Act 1946 (SA) Restructuring and Disposal Act 1999 (SA) ACCC Draft Statement of Principles, May 1999 ACCC Statement of Principles for the Regulation of Transmission Revenues – background paper, December 2004 National Electricity (South Australia) (New National Electricity Law) Amendment Bill (SA) National Electricity (South Australia) (New National Electricity Law) Amendment Act 2005 (SA) Australian Competition and Consumer Commission v Australian Competition Tribunal (2006) 152 FCR 33 Re Application by Epic Energy South Australia Ltd, [2004] ATPR 41-977; [2003] ACompT 5 Application by GasNet Australia (Operations) Pty Ltd [2003] ACompT 6 Application by Optus Mobile Pty Limited & Optus Networks Pty Ltd [2006] ACompT 8, at [297] RE: APPLICATION UNDER SECTION 71B OF THE NATIONAL ELECTRICITY LAW FOR A REVIEW OF A TRANSMISSION DETERMINATION MADE BY THE AUSTRALIAN ENERGY REGULATOR IN RELATION TO ELECTRANET PTY LIMITED PURSUANT TO CLAUSE 6A.13.1 OF THE NATIONAL ELECTRICITY RULES BY: ELECTRANET PTY LIMITED 1 of 2008