1. This means, he says, there can be no valid imposition of a CCC under section 101, as an imposition can only be in accordance with the CCC.
2. Accordingly, he seeks an order (or perhaps declaration) that:

"the capital contribution charge imposed be deemed unlawful, as it was demonstrably calculated using the industry code when not applicable and in doing so exceeded the power under section 101."

1. In relation to whether the Tribunal can decide this matter, given there is no "live" decision before it, the applicant says:

"I contend that ACAT's right to review of Icon's decision under s.172 commenced at the time Icon made an administrative decision to impose the legislative instrument (the industry code) upon me and thereby imposing the legislative imposition on me - and the imposition must include the totality of the effects by Icon in exercising its discretion."

1. In support of this contention, the applicant cites a number of principles relating to administrative review, including guidance from the Commonwealth Attorney General's Department and a paper published by the law firm Clayton Utz about procedural fairness.

1. The respondent's primary contention is that the Tribunal does not have jurisdiction to review this matter as there is no operative decision to review, nor any remedy available.
2. The respondent has nonetheless usefully set out the background to the scheme in its materials. It is useful to summarise that here.
3. In a letter to the applicant of dated 18 August 2022 the applicant explains the background to the Code as follows:

"the purpose of the code was to eliminate an issue known as "last man standing". This issue occurred when the person who finally triggered the need for on augmentation, paid the full cost of the augmentation regardless of the size of the development or any other developments occurring before or after. Before the introduction of the code this issue led to situations where large developments and contributed to the need for augmentation but did not pay anything towards the costs of it. The full cost of an augmentation can be substantial. Where augmentation was triggered by a smaller scale development in an existing suburb (such as the addition of a second dwelling), it would be prohibitive for that person to pay for the required augmentation as the last person standing.

1. In other words, the purpose of the CCC scheme is to provide an equitable approach to the expansion of residential infrastructure resulting from increased urban development, including secondary residence and dual occupancy dwellings (such as 'granny flats'). The Code does this by ensuring that when an additional water or sewage connection is required as part of any development, an assessment is required to ensure that water and sewerage networks have capacity and capability to cate for increased loads can be accommodated within the proposed property framework.
2. As to the application of the CC Code in this particular case, the respondent explained its position in correspondence to the applicant (provided to the Tribunal as part of its submissions) as follows:

"Clause 9.1(b) of the Code is not a list of mandatory requirements, but rather principes intended to guide Icon Water. We apply these principles, giving consideration to the Code as a whole and its purpose as set out above. In any case, I note that a new connection can mean a connection that is in fact the same existing connection to the water and sewage network.

If it is determined that the existing connection size in adequate for the additional capacity we do not burden the customer with unnecessary costs to physically disconnect and reconnect to the network. The existing connection was deemed suitable and on completion of our assessment, your development as connected to water and sewage network in order to enable supply to the new dwelling.

Your development has contributed to an increase in demand or supply for the water and sewage network in Chisholm...

1. The respondent concedes that notwithstanding that the Code was in place from 2018, it was only in 2021 that "changes in personnel" revealed that the Code may not have been being applied consistently, and some approvals granted without an appropriate assessment being made. It has since sought to rectify this, and since October 2021 all applications received have been advised when a contribution is payable.
2. In summary, in the respondent's view, the obligation to pay the capital contribution code was enlivened upon the undertaking of a development that increases demand, even if the existing infrastructure is sufficient.
3. Further, in relation to the applicant's contention that there was no actual disconnection, the respondent says, "all developments are subject to a desktop connection/disconnection assessment." There is no need, any longer, to actually physically disconnect the old connection in order for there to be a new connection.

Issue 1: Is the applicant entitled to bring a claim?

1. In order to be able to bring a complaint, the applicant must either be "a consumer affected by contravention of an industry code dealing with utility service standards"[1] or a "person on whom [a CC] charge is imposed under section 101 [of the Utilities Act]."[2]
2. In relation to the first decision, there was some argument in this matter is whether the respondent "imposed a charge" or merely "notified of its decision to impose a charge."
3. The letter of 22 February 2022 is quite clearly a letter notifying of an intention to impose a charge, and an estimation of that charge. It provides that a charge will be finalised later. It is not a decision to impose a charge. In a broad sense, it could perhaps constitute a "imposition" of a policy, but it is better characterised as a notification to the applicant that he will be liable under the policy later. There is nothing in the notice that could reasonably be said to have a real or substantive 'affect' upon him.
4. It appears that the respondent issued "a WSCC invoice for $1,800.00" to the developer sometime after this. I do not appear to have a copy of this invoice, but its existence is acknowledged in correspondence by both parties, so I have no reason to doubt it was issued. The invoice was subsequently retracted after the developer requested a new invoice closer to the date of completion. It is evident from subsequent correspondence that Icon considered the whole decision to be revoked. Certainly, it was never paid.
5. Although made by an independent corporation, the decision to impose a CCC was made under statute. There is a body of law as to whether an administrative decision maker can revoke a 'perfected' decision[3]. However, in this case, it would appear that the decision to revoke was not a contentious one at the time - indeed, the applicant's agent asked that the invoice be withdrawn, and it was. Section 180(1) of the Legislation Act provides that the power given by a law to make a decision includes power to reverse or change the decision. If issuing the invoice amounted to a decision, withdrawing the invoice reversed that decision, and the process was done by agreement. Once the invoice was revoked, the applicant was no longer a "person on whom [a CC] charge is imposed under section 101" in relation to the first decision.
6. In the alternative, the applicant submits the "imposition upon him" of the CC Policy meant had a charge had been imposed upon him. I do not accept this argument. Being potentially covered by a policy that deals with when a charge is imposed does not amount to having a charged imposed, particularly when there is discretion whether to impose it.
7. As to the third invoice, in its submissions to the Tribunal, the respondent provided a lengthy explanation as to how the second error happened. The evidence has not been tested but there is no reason to doubt it. While unfortunate, and somewhat strange, it was clearly an error, and nothing flows from it for the purposes of this decision. I am satisfied that the third invoice was issued in error and has been revoked on the same basis. This was a clear error. At no stage was a CCC actually imposed in the sense of having to be paid.
8. As to the second decision and invoice, for the sum of "0", the question is somewhat more complicated. Is a "0" charge a "charge" imposed under section 101? Even if the charge was in contravention of the Utilities Act, could the respondent be said to be "affected" by it? These are questions for which the answer is not entirely clear, and which I was hard pressed finding comparable decisions. Nonetheless, for reasons set out below, the outcome must be dismissal of the complaint in any case.

Issue 2 - the "0" sum and the scope of the tribunal power to review

1. As noted above, the applicant cites a number of documents in support of his proposition that the Tribunal has the power to 'review' the imposition of a "0" charge.
2. The principles set out in these documents have relevance to the Tribunal in terms of procedural obligations to ensure procedural fairness, providing as they useful principles, they do not create a right of review or jurisdiction for the Tribunal. These documents refer to a process called juridical review, available in courts with federal jurisdiction Courts under the Administrative Review (Judicial Review) Act 1988 (Cth) (ie. an act at the Commonwealth level). Judicial review is concerned with the legality of a decision, including potentially the lawfulness of delegated or subordinate legislation under which it is made. The Supreme Court can make various declarations and other orders flowing from that.
3. The Tribunal does not have a general discretion to review administrative decision. It does not, for example, have a capacity to engage in administrative or judicial review of the kind a Court may under inherent jurisdiction or the Administrative Decisions (Judicial Review) Act 1988 (ACT) - these being the kind of decisions referenced in much of the material filed by the applicant_._ The only power that it has is found in the statutory instruments that bestow that power upon it. In this case, that is the limited powers in Part 12 of the Utilities Act, and particularly those in section 178 of that Act.
4. Section 178 of the Utilities Act sets out what ACAT may do when satisfied that a complaint is established. This includes where, relevantly for present purposes, where " a capital contribution charge, of an amount of not more than $10 000, imposed by the respondent is excessive". Section (2) then goes to provide that "without limiting the orders the ACAT can make", the (a) for a complaint that a capital contribution charge is excessive - give a direction under section 182 (Reviewable capital contribution charges), and then setting out the orders available "in any other case."
5. Arguably, where there is no basis for imposition of the sum (ie. if it could be established that the imposition was without basis), any amount would be "excessive" and the Tribunal could order its reduction. However, any such an order is futile in this case, when the amount payable is already zero and could not be further reduced.

Issue 3 - is the applicant affected by a "contravention an obligation under this Act in relation to its network operations"

1. The Table in Section 172 of the Utilities Act states that a "consumer affected by contravention" may make a complaint to the Tribunal about a "contravention of an industry code dealing with utility service standards by a utility".
2. The power to impose a CCC is found in section 101 of the Utilities Act. Under section 101(1) (B) a utility may impose a charge payable by customers for the development or augmentation of its network for the purpose of varying the capacity of connections to the network. Section 101(2) requires that any capital contribution charge be in accordance with the relevant industry code. A contribution that is imposed contrary to the Code is unlawful, in the sense of not being authorised. There are a range of remedies available where the Tribunal is satisfied that a complaint is substantiated, including a declaration under section 178(2)(b)(ii).
3. Industry Codes are dealt with generally in Part 4 of the Utilities Act. The relevant code is made under section 58 of the Utilities Act and must be approved by the ICRC, which it has been. The CC Code is one such industry code.
4. The purpose of the CC Code is stated to be as follows:

The purpose of this Code is to outline the principles and procedures by which a Water Utility and a Sewerage Utility may require a Customer to contribute towards the development or augmentation of the Water Network or Sewerage Network, in connection with a Development.

1. The CC Code clearly imposes a requirement to pay a CCC where there is a 'development' as defined in the code, with the amount calculated in accordance with 9.1 and 9.2.

Where a Customer undertakes or causes a Developer to undertake a Development the Customer must pay a Capital Contribution Charge to the relevant Utility, calculated in accordance with clause 9.1 or clause 9.2 (as applicable)

1. Clauses 9.1 and 9.2 of the Code then outline s-called "principles".
2. The applicant says that an CCC can only be imposed on him under the CC Code, and if the Code does not apply he is not liable for a charge. The respondent says that Clause 9.1 of the Code "is not a list of mandatory requirements, but rather principes intended to guide Icon Water."
3. Colloquially, a "principle" is a rule or conduct, or a fixed rule or adopted method as to action[4], and the use of the word 'principle' rather than 'rule' is probably intended to import a degree of flexibility, and it is appropriate to read them in such a way.
4. However, notwithstanding the use of this term "principles" in the heading, viewed in context, the requirements are clear - a CCC must be only imposed in accordance with those "principles", not in a manner that is, for example, contrary to them. As such, I agree with the applicant that the CC Code is mandatory - any CCC imposed must be in accordance with it. Such in plain from the words of section 101(2) of the Utilities Act. If the imposition of a charge was inconsistent with the Code, the Tribunal could make a declaration to that effect.
5. However, the applicant also argues that the CC Code does not apply to him. Whether this is the case is not quite as clear.
6. The CC Code provides that where a customer undertakes a development, as defined, they must pay a CCC, as defined, calculated in accordance with clause 9.1 or 9.2, as applicable.
7. 'Development' is defined broadly as follows:

(12) "Development" means subdivision, consolidation, use, building, altering or demolishing a building or structure and Developed has a corresponding meaning;

1. It is not disputed that the applicant undertook a 'development'.
2. Of all the provisions, it would appear that only 9.1(b), which requires is a "disconnection' and either re-connection or new connection, could apply to the applicant's situation. As I understand the applicant's argument, it is effectively, that as there is no "new connection", it does not apply.
3. In the definition section on the Code, "connection" means a connection or re-connection to a Sewerage Network or Water Network or replacement of a water meter (where the water meter replacement is because of the Development) and "connected" has the corresponding meaning." This is a somewhat circular definition and, in these circumstances, not helpful.
4. On the (albeit limited) evidence currently before me, the applicant's development at no stage required a physical disconnection or other manual manipulation of the infrastructure. Rather, the respondent undertakes something called a 'desktop disconnection and reconnection'. I have no evidence about what this involves in practical terms.
5. Whether a desktop disconnection and reconnection meets the definition of "connection" in the Code is a question of mixed fact and law. Because of the need for further factual evidence, I cannot decide this on what is before me. I would need to list the matter, take evidence, and hear submissions about how the law applied to that evidence. This would usually mean that application for dismissal of the kind sought by the respondent would be premature and not appropriate.
6. However, there are other considerations at play here.
7. The applicant is not liable to pay a CCC. He is, granted, frustrated by the process, and is seeking a decision that will benefit others. The question is whether this is an appropriate use of the Tribunal's resources.
8. The Tribunal is primarily a dispute resolution forum. It does have functions that include to enhance the quality of decision making under legislation[5]; and to encourage, and bring about, compliance in decision making under legislation[6]. However, these general principles must be weighed against the Tribunal's function of hearing and resolving applications and similar matters brought before it by parties and doing so in a way that does justice. The Tribunal is not an appropriate body to undertake enquires at large.
9. In this case, even were this matter to proceed to hearing, the Tribunal is unlikely to be able to determine it in a manner satisfactory to the applicant. As best, it can offer a declaration that the applicant is not liable to pay a CC Code. He is currently not liable to do so in any case. True, this is because the EP for the applicant's development is now calculated in a way that a CCC is no longer payable, rather than it not being payable at all, but the practical result is the same.
10. Section 176 of the Utilities Act provides that the ACAT may dismiss a complaint against a utility for a range of reasons, including that the matter complained of has already been dealt with adequately by the ACAT or otherwise[7]. This complaint has been adequately dealt with. It is appropriate, on that basis, that I dismiss this matter before going further.
11. I understand that the applicant is frustrated. However, at present, he is not liable to pay a CCC charge, and therefore there is not order the Tribunal can make that would put him in a different, or better, position.
12. That said, the applicant has raised an interesting and relevant argument about the application of the CC Code, and the basis upon which a CCC may be imposed. The policy purpose is to allow infrastructure to be upgraded to meet increased need by putting some of the cost burden on consumers, yet the principle in this case focuses on the physical act of disconnection and reconnection. If one follows the proverbial rabbit down the hole, the applicant's argument, if accepted, could mean that the respondent would be required to actually disconnect and reconnect a service before charging a CCC, even where actual disconnection is not necessary. Whether the respondent would actually be minded to take such an inefficient step is not a matter for the Tribunal, but it may wish to consider clarifying some of the language used in the CC Code, and when it should apply.
13. Otherwise, however, the Tribunal application is dismissed on the basis that the matter has already been dealt with and the applicant is not, in any case, liable to pay a CCC.

[3] Eg. Semunigus v Minister for Immigration and Multicultural Affairs [2000] FCA 240; (2000) 96 FCR 533; Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597.

[4] Macquarie Dictionary, online edition

[7] Utilities Act 176(1)(g)