Electricity Feed-in (Large-scale Renewable Energy Generation) Regulation 2017

Feed‑in tariff (FiT) entitlement. This is the central economic mechanism under the Act. A large‑scale renewable energy generator is granted a right to receive a guaranteed price for electricity it feeds into the grid, typically above the wholesale price. The entitlement is created by a deed between the generator and the Territory. The regulation does not set the tariff rate or the duration - those are established in the Act and the individual deeds - but it does affect where the generator can be located (through the prescribed areas) and how the entitlement can be surrendered.

Australian capital region. This defined term in the Act’s dictionary is partially expanded by section 2 of the regulation. The Act’s definition includes the ACT itself. Paragraph (b) of that definition allows the regulation to prescribe additional areas. The regulation does precisely that by listing ten NSW council areas. The effect is that a large‑scale renewable energy generator physically located in, say, the Queanbeyan‑Palerang or Snowy Monaro region can qualify for the ACT feed‑in tariff, even though it is not inside ACT territory. This is a deliberate move to source renewable energy from a broader geographic base while maintaining some regional proximity.

Surrender notice. A generator holding a FiT entitlement may wish to give up that entitlement - for example, because the fixed tariff is below current market prices or because the project is being wound up. Under section 14 of the Act, the holder can serve a surrender notice. However, the notice does not take effect immediately; the Minister must decide when it takes effect. Section 3 of the regulation prescribes the matters the Minister must consider in that decision. The concept of “surrender” is therefore not a simple unilateral right. It is a process with ministerial oversight designed to protect the Territory’s renewable energy procurement objectives.

Deed of FiT entitlement. This is the contract between the Territory and the generator. The regulation explicitly requires the Minister to consider any such deed when deciding when a surrender notice takes effect. That means the Minister must have regard to the terms of the deed - for example, any notice periods, termination clauses, or conditions precedent. The regulation thus prevents the Minister from ignoring the generator’s contractual rights when exercising the discretion.

Objectives of the Act. The regulation refers to these but does not restate them. The Act’s objectives likely include promoting large‑scale renewable energy generation, reducing greenhouse gas emissions, and ensuring a stable and affordable electricity supply. The Minister must weigh those objectives against the other two prescribed matters. This creates a balancing test that is not purely mechanical.

Renewable energy generators. Any entity that holds or seeks a large‑scale FiT entitlement under the Act is directly affected by this regulation. If the generator’s project is located in one of the ten prescribed NSW council areas, it qualifies as being within the Australian capital region and can therefore participate in the scheme. If the generator is outside those areas, it cannot. Further, if a generator wishes to surrender its FiT entitlement, the Minister’s decision on timing will be guided by section 3. That decision affects the generator’s cash flow, contract termination timing, and ability to sell electricity elsewhere.

The ACT Government (Minister and administrative staff). The Minister is the decision‑maker for surrender‑notice timing. The regulation imposes a mandatory requirement to consider three specific matters before making that decision. This adds procedural obligations beyond what the Act alone may provide. The government also benefits from a broader catchment for renewable energy projects because the prescribed areas extend the scheme’s reach into NSW, which may help meet the ACT’s renewable energy targets without needing to build in a tightly bounded territory.

NSW local councils. The ten councils listed in section 2 are not parties to the Act, but their areas are effectively designated as part of the ACT’s renewable energy catchment. This may give those councils an interest in land‑use planning and infrastructure decisions for large‑scale projects within their boundaries. The regulation does not impose any duties on the councils, but it creates an incentive for developers to locate projects in those areas to access the ACT feed‑in tariff. This could influence local economic development, property values, and environmental outcomes.

Electricity retailers and consumers. The feed‑in tariff is ultimately paid for by ACT electricity consumers through a levy or higher retail charges. The regulation’s expansion of the eligible area to ten NSW councils means that consumers may be funding renewable generation outside the ACT, which may or may not deliver lower‑cost electricity or reliability benefits. The surrender‑notice provisions also affect the cost and timing of replacing that generation, which can feed through to consumer prices.

Other NSW councils not listed. Councils in the broader South East NSW region (for example, Wingecarribee Shire or the City of Wollongong) are not prescribed. Developers in those areas cannot access the ACT feed‑in tariff. This creates a regulatory boundary that influences investment location decisions.

Duty of the Minister (under section 3). The Minister must consider the three prescribed matters before deciding when a surrender notice takes effect. This is a statutory duty. The word “prescribed” indicates that these matters are mandatory; the Minister cannot rely on other factors to the exclusion of these. In practice, the Minister must obtain evidence or advice on the objectives of the Act, review the terms of any executed deed, and obtain a forecast from the Territory’s electricity procurement arm about how long it would take to secure an equivalent quantity of renewable electricity from another source if the current entitlement is surrendered earlier or later. This duty creates a process that can be judicially reviewed if the Minister fails to give proper consideration to any of the matters.

Rights of the FiT holder. The FiT holder has a contractual right under the deed of FiT entitlement. The regulation requires the Minister to consider that deed. While the holder does not have a right to an immediate surrender effective date, they have a right to have the Minister’s discretion exercised in a manner that takes account of the deed’s terms. The deed may include provisions on termination, notice periods, or compensation. The regulation therefore elevates those contractual rights from purely private matters to factors that must be weighed in the statutory decision.

Rights of the Territory (as counterparty). The Territory has an interest in maintaining the FiT arrangement for as long as it needs the renewable generation to meet policy targets. The regulation allows the Minister to delay the effective date of a surrender notice if, for example, the Territory would face a long period without an equivalent renewable source. The matter in section 3(c) - “how long the Territory is likely to take to obtain another source” - is explicitly protective of the Territory’s procurement timeline. This may override the FiT holder’s desire for an immediate exit if the replacement is not readily available.

No duty on generators to surrender. The regulation does not impose a duty on FiT holders to surrender their entitlements. The surrender notice is voluntary. The holder may choose to remain in the scheme. The regulation only governs the timing if they do choose to surrender.

The regulation itself does not create any new offences or penalties. It is a procedural and definitional instrument made under the Act. Any penalties for non‑compliance with the Act or with deeds executed under the Act are found in the Act itself, not in this regulation. However, the republication note states that at the republication date, a penalty unit is $150 for an individual and $750 for a corporation under the Legislation Act 2001. That is the standard ACT rate for offences against a subordinate law unless the law specifies a different amount. Because this regulation contains no offence provisions, the penalty unit figure is not directly triggered here. It would be relevant if another provision in the Act or another regulation were incorporated by reference.

Enforcement of the Minister’s duty under section 3 is through judicial review, not through criminal penalty. If the Minister fails to consider the prescribed matters or makes a decision that is procedurally flawed, an aggrieved party - such as the FiT holder - could apply to the ACT Supreme Court for review under the ACT Civil and Administrative Tribunal Act 2008 or under administrative law principles. The court could set aside the decision and require the Minister to reconsider. This is a standard enforcement mechanism for statutory discretions; it is high‑cost and reactive.

Compliance with section 2 is straightforward: a generator either is or is not in a prescribed area. There is no enforcement mechanism because the section merely defines a term. Disputes would arise at the application stage when a person applies for a FiT entitlement. If a project is in a prescribed area, the entitlement may be granted; if not, it cannot. Enforcement would take the form of a refusal to grant the entitlement, which could be challenged.

The regulation also has no audit or monitoring provisions. Its enforcement relies on the integrity of the application process and, for section 3, on the Minister’s good faith and the availability of judicial review.

Electricity Feed‑in (Large‑scale Renewable Energy Generation) Act 2011. This regulation is made under that Act and cannot exceed its scope. The Act’s definition of “Australian capital region” includes a power for the regulation to prescribe areas. Section 2 exercises that power. Section 3 of the regulation is made under section 14(4) of the Act, which allows the regulation to prescribe matters for the Minister to consider. The regulation therefore fills in gaps left by the Act and is subordinate to it. If the Act is amended to remove the power to prescribe areas or matters, the regulation would become spent.

Local Government Act 1993 (NSW). The regulation explicitly adopts the NSW Act’s definitions of “area” and “council”. This means that any changes to NSW local government boundaries - such as a council amalgamation or renaming - automatically affect the composition of the prescribed areas under the regulation, without an amendment to the ACT regulation being required. For example, if the Snowy Valleys Council were dissolved and its area split, the regulation’s reference would become ambiguous until updated. This creates a degree of legal risk because the regulation does not fix the boundaries by reference to a map or specific date; it relies on a dynamic NSW statutory definition.

National Electricity Law and Rules. The feed‑in tariff scheme operates within the national electricity market. The regulation does not directly interact with the National Electricity Law, but the practical effect of section 3(c) - assessing how long it takes to obtain an equivalent source of renewable electricity - will depend on market conditions, connection timelines, and state planning approvals. These are matters governed by other laws and regulators.

ACT Planning and Development Act. Large‑scale renewable energy projects in the ACT require planning approval. For projects in NSW, the relevant NSW planning laws apply. The regulation does not override or harmonise those laws, but it creates a link between the ACT’s feed‑in tariff scheme and the location of projects in NSW, so developers must comply with two separate regulatory regimes.

Commonwealth Renewable Energy Target. The ACT feed‑in tariff supplements the federal RET. The regulation’s prescribed areas and surrender provisions do not directly affect federal law, but they influence the quantity of renewable generation eligible for the ACT scheme, which in turn affects the overall mix of certificates and obligations.

The regulation was originally made as part of the Planning, Building and Environment Legislation Amendment Act 2017 (No 2) (A2017‑20). That Act inserted a new section 26 into the parent Act, which provided authority to make this regulation. The regulation itself was given a notional notification date of 15 June 2017, with section 1 commencing on that date and the remainder commencing on 16 June 2017. It was thus made and took effect in mid‑2017.

The only subsequent amendment was made by the Electricity Feed‑in (Large‑scale Renewable Energy Generation) Amendment Act 2017 (A2017‑35), part 3. That amendment was notified on 8 November 2017 but was taken to have commenced retrospectively on 14 September 2017. It inserted section 3 into the regulation, which prescribes the matters for the Minister to consider under section 14(4) of the Act. The retrospective commencement means that any surrender notice decision made between 14 September 2017 and the date of notification on 8 November 2017 would have been subject to the regulation’s new requirements, even though those requirements were not yet legislated at the time of the decision. This creates potential issues of retrospectivity and reliance, though the amendment was likely intended to clarify existing practice rather than impose new burdens.

The regulation currently has only one republication (R1) that covered the period 16 June 2017 to 13 September 2017, before the amendment. Republication No 2 (current) gives effect to the amendment. There have been no other amendments. The endnotes show that no editorial changes under part 11.3 of the Legislation Act 2001 are included in this republication.

Given the regulation’s brevity and specificity, it is not expected to undergo frequent amendment unless the list of NSW councils needs updating (for example, if a council changes its name or boundaries) or if the Act’s surrender provisions are revised.

The regulation itself is not recorded as having been the subject of any reported litigation, at least up to the republication date of 8 November 2017. It is a relatively new instrument and, as a regulation, it is unlikely to be the primary subject of a dispute; litigation would more likely challenge decisions made under the parent Act, such as a refusal to grant a FiT entitlement or a Ministerial decision on a surrender notice. The regulation would be drawn into such a case as part of the legal framework.

Potential grounds for litigation could include:

• A challenge to the validity of the prescribed areas. For example, a generator outside the ten councils could argue that the regulation impermissibly restricts the definition of “Australian capital region” in a way that is inconsistent with the Act. The Act’s definition is not provided in the regulation, but if it sets criteria for prescription (such as proximity or interconnection), a generator might argue the regulation fails to meet those criteria.
• A dispute over whether the Minister properly considered the three matters in section 3 when setting the effective date of a surrender notice. The Minister’s decision could be judicial reviewed for failure to take into account a relevant consideration, taking into account an irrelevant consideration, or for unreasonableness.
• A contractual dispute under a deed of FiT entitlement could interact with the regulation, for example, if the deed contains a termination clause that conflicts with the Minister’s power to delay the effective date. The regulation requires consideration of the deed, but the Minister is not bound to follow it. That could give rise to an argument that the Minister’s decision impairs the generator’s contractual rights.

No cases are cited in the regulation itself or its endnotes. The absence of litigation history may reflect the small number of FiT entitlements in the ACT large‑scale scheme, the clarity of the regulation’s language, or the fact that disputes are resolved commercially rather than in court. Lawyers advising generators should nevertheless be aware of the potential for a challenge if the Minister acts arbitrarily.

Retrospective amendment. Section 3 was inserted with retrospective effect from 14 September 2017, even though the amending Act was notified on 8 November 2017. This means that any surrender notice served and decided in that two‑month window was legally required to be determined in accordance with a regulation that did not exist at the time. While the retrospective operation may have been intended to clarify the law, it creates a risk that a Ministerial decision made during that period could be quashed for failing to consider matters that were not yet prescribed. Generators or their lawyers should check whether any surrender decision was made in those dates and, if so, whether the now‑prescribed matters were actually considered. If not, that decision may be vulnerable.

Reliance on NSW definitions. Section 2 uses the definitions of “area” and “council” from the Local Government Act 1993 (NSW). This is dynamic incorporation: if the NSW Act changes, the meaning of the prescribed areas changes automatically. For example, if a council is abolished or a new council is created, the regulation may cease to include that area or may include an area that was not originally intended. The regulation does not specify a cut‑off date, so the current NSW law governs. This creates uncertainty: the ACT regulation can be altered by laws of another jurisdiction without any ACT legislative process. A developer relying on the regulation to qualify its project might find that a later NSW council amalgamation removes its location from the list.

No explicit hierarchy among prescribed matters. In section 3, the three matters are listed equally. There is no indication of weighting or priority. The objectives of the Act might conflict with the deed (for example, the deed might allow immediate surrender, but the objectives favour long‑term renewable energy supply). Similarly, the replacement time assessment might be highly uncertain. The regulation gives no guidance on how to resolve such conflicts, which could lead to inconsistent Ministerial decisions or legal challenges.

Narrowness of the area list. Only ten NSW councils are prescribed. This means that large‑scale renewable projects in other adjacent NSW areas - such as Wingecarribee, Shoalhaven, or the City of Wollongong - cannot access the ACT feed‑in tariff, even if they are physically connected to the same grid. This limits the competition for projects and may increase the cost of procuring renewable energy for the ACT. The choice of which councils to include appears to be based on proximity and historical ties, but the regulation does not explain the criteria, which could be challenged as arbitrary.

No transitional provisions for surrender notice decisions. The Act and regulation do not set a maximum or minimum period for the Minister’s decision. A generator who serves a surrender notice may face indefinite delay if the Minister believes replacement is difficult. The regulation’s third matter invites the Minister to consider how long the Territory will take to obtain a replacement, but it does not constrain the Minister from deciding that the surrender notice takes effect only after that full period, potentially years. This gives the Minister significant leverage.

Compliance with this regulation is largely passive for most parties. The two active compliance obligations fall on the ACT Minister (or the relevant decision maker) and on any entity applying for a FiT entitlement.

For a proposed generator. Before applying for a FiT entitlement, the generator must ensure its project is located within one of the ten prescribed NSW council areas listed in section 2. Without this, the project cannot qualify as being in the Australian capital region, and the application will fail. The generator should verify the current status of each council using the NSW Local Government Act 1993 definitions, because council boundaries and names may change. A practical step is to obtain a certificate from the relevant council confirming the property is within its area, and to keep that certification on file. If the generator is located in the ACT itself, the regulation does not apply - the Act already includes the ACT in the definition - so compliance is automatic.

For a FiT holder surrendering an entitlement. The holder must serve a surrender notice under section 14 of the Act. The holder cannot unilaterally set the effective date; that decision rests with the Minister. To facilitate a smooth process, the holder should provide the Minister with information relevant to the three prescribed matters in section 3. Specifically, the holder should:

• Provide a copy of the deed of FiT entitlement (the Minister must consider it).
• Explain how the surrender aligns with or does not conflict with the objectives of the Act (for example, if the project will be replaced by another renewable source, that may support a quicker effective date).
• Offer an assessment of how long it might take for the Territory to obtain an equivalent source of renewable electricity. This could be based on market data, connection queue status, or the holder’s own knowledge of potential replacement projects. Even though the regulation refers to the Territory’s likely replacement time, the holder can provide its own analysis to influence the Minister’s view.

The holder should also ensure the surrender notice itself is validly served under the Act, and should keep records of all communications with the Minister.

For the Minister (or delegates). When an application to set the effective date of a surrender notice is received, the decision maker must consciously consider the three prescribed matters before making a decision. This means obtaining or requesting information on:

• The objectives of the Act (which may be stated in the Act’s objects clause).
• The terms of the relevant deed (from the FiT holder or from government records).
• An internal assessment of how long the Territory would take to procure an equivalent quantity of renewable electricity from another source. This assessment should be documented, including assumptions about market conditions, grid connection timelines, and planning approval timeframes.

The decision maker should record the consideration of each matter in a written statement of reasons. Failure to do so risks a successful judicial review. The decision should also be made within a reasonable time, although no specific time frame is prescribed.

For NSW councils. The regulation imposes no compliance obligations on the councils themselves. They are merely the geographical units that define the Australian capital region. However, councils may wish to be aware that large‑scale projects in their area may become subject to ACT feed‑in tariff arrangements, which could affect local planning, infrastructure, and community expectations. Councils do not need to take any action.