Energy Coordination Exemption Order 2009

This instrument rests on a few core concepts that determine who benefits and what behaviour is permitted.

Exemption from section 11G(1) and (2): The operative concept is exemption. The Order does not amend the Energy Coordination Act 1994. Instead, it declares that certain persons or activities are not caught by particular provisions of that Act (clauses 3(1), 4(1), 4(3)). It repeatedly frames the exemptions as being subject to conditions (clauses 3(2), 4(2), 4(4)), which makes the conditions integral to whether the exemption applies.

Developer constructing distribution system: The Order treats a developer who subdivides land as a distinct class. That developer may construct a distribution system to transport gas to the lots created by the subdivision without being subject to section 11G(1) of the principal Act, provided the developer complies with prescribed pre‑construction steps (clause 3(1)-(6)). The pre‑construction steps include entering an agreement with a licensed distribution network operator (a "licensee") specifying design, audit, ownership transfer and maintenance allocations (clause 3(3)) and giving the Director written technical and geographic information about the proposed system (clause 3(4)).

On‑supply and on‑property distribution: A separate model covered by the Order is on‑property supply. If a distribution system is located on a property and used solely to transport gas for consumption on that property, the person operating it is exempt from section 11G(1) (clause 4(1)). If that person sells gas to a small use customer for consumption on the property, that seller is also exempt from section 11G(2) (clause 4(3)). The instrument ties those exemptions to consumer information and pricing constraints in clause 5.

Information and price constraints: Clause 5 establishes transparency duties, requiring exempt suppliers to make accessible information to occupiers about volumes, volumetric charges and service fees (clause 5(1)-(3)). For residential properties served by exempt suppliers, the Order sets a transactional limit: the small use customer must not pay more than the volumetric charge and service fee that are "paid or payable by the exempt supplier" (clause 5(4)). The Order does not prescribe how volumetric charges and service fees are to be calculated; it states only the ceiling relative to what the supplier itself pays.

Decision‑maker roles and discretion: The Order references regulatory decision makers in the Energy Coordination Act framework, using the roles "Coordinator" and "Director" (clauses 3(3)-(5)). Those offices have discretion to accept evidence, allow further time before construction starts, and to specify construction guidelines (clauses 3(3)-(5)). The Order gives the Director power to issue guidelines which the developer must observe (clauses 3(5)-(6)), and allows the Coordinator or Director to permit time extensions for compliance steps (clauses 3(3)-(4)).

Property definitions: The Order defines "property" deliberately broadly for these purposes to include parts of parcels and two or more parcels with common boundaries that are constituted, owned or occupied as one property (clause 2A). "Residential property" is defined by intended or actual use as a principal place of residence (clause 2A). "Exempt supplier" is defined by cross‑reference to clause 4 (clause 2A).

Temporal and amendment context: The Order sets its own commencement timing (clause 2) and has a short recorded amendment history in the compilation table, signalling later insertions (notably clause 2A and the on‑supply provisions added in 2016). The precise content and interaction of the Order depends on the terms of the Energy Coordination Act 1994, in particular what section 11G(1) and (2) state and how Coordinator and Director are empowered under that Act. The Order does not itself define those powers.

The Order identifies three principal groups of actors and two classes of affected third parties.

Developers who subdivide land: Clause 3 targets people who subdivide land and who, in the course of doing so, construct a gas distribution system to serve new lots. The exemption applies specifically "in relation to the construction of a distribution system for the transportation of gas to lots resulting from that subdivision" (clause 3(1)). Those developers will be required to secure and document an agreement with a licensed distribution network holder and to notify the Director of technical, construction and locational details before construction starts, or within any further time permitted (clauses 3(3)-(4)). Developers therefore bear the costs of obtaining agreements, preparing documentation, and complying with any Director guidelines (clause 3(6)).

Licensed distribution network holders (licensees): Although not the direct recipient of the exemption, licensees are pulled into the process because developers must have an agreement with a licensee covering design standards, audits, transfer of ownership, maintenance responsibilities and provision of documentation (clause 3(3)(a)-(e)). Licence holders therefore have an opportunity to set technical and contractual terms for new on‑networks, to audit constructed systems, and to acquire constructed assets. Those duties will impose transactional and due diligence costs on licence holders as they negotiate agreements and later undertake audits and asset transfers.

Exempt suppliers operating on‑property distribution systems: Clause 4 creates an exemption for persons operating a distribution system located on a property when the system is used solely to transport gas for consumption on that property (clause 4(1)). That captures, for example, owners or operators providing gas within a single property boundary. Where those persons sell gas to "small use customers" on the property, the on‑supply seller is exempt from section 11G(2), subject to clause 5 (clause 4(3)).

Occupiers and small use customers: The Order defines "occupier" and requires exempt suppliers to provide occupiers with clear information about volumes supplied, volumetric charges, and service fees (clause 2A and clause 5(1)-(3)). "Small use customer" appears in clause 4(3) and clause 5(4), but the Order does not define that term itself; it likely exists in the Energy Coordination Act 1994. Residential occupiers who are small use customers are protected by a pricing ceiling: they must not be charged more than the volumetric charge and service fee that the exempt supplier pays or is liable to pay (clause 5(4)).

Regulatory officers: The Order references the Coordinator and the Director as decision makers with practical powers: to allow extra time for compliance actions (clauses 3(3)-(4)) and for the Director to specify construction guidelines (clause 3(5)). Those officers thus determine whether timing conditions are met and prescribe technical standards that developers must observe.

Other affected parties: Property owners, multi‑parcel property managers, and parties involved in property transfers are indirectly affected because "property" is defined to include parts of parcels and multiple parcels with common boundaries and shared ownership or occupation (clause 2A). This affects strata, community title schemes and other multi‑lot arrangements where a distribution system might cross boundaries but remain within a single constituted property.

Absent groups: The Order does not itself impose direct obligations on persons who transport gas beyond property boundaries, nor does it create new licence categories. It is limited to exemptions from specific provisions of the Energy Coordination Act 1994 and therefore alters the regulatory status only for covered activities and actors as identified in the clauses above.

The Order sets out specific duties for developers and exempt suppliers, and confers discrete rights in the form of statutory exemptions from sections 11G(1) and 11G(2) of the Energy Coordination Act 1994. Rights and duties are conditional.

Rights (exemptions)

• Developers who subdivide land have a right to be exempt from section 11G(1) "in relation to the construction of a distribution system" for the lots resulting from the subdivision, provided the specified conditions are satisfied (clause 3(1)-(2)). The exemption is limited to the construction activity described.
• Persons operating a distribution system located on a property and used solely for consumption on that property have a right to be exempt from section 11G(1) in respect of that distribution system (clause 4(1)-(2)).
• A person who sells gas to a small use customer through a distribution system located on a property, where the gas is sold for consumption on the property, has a right to be exempt from section 11G(2), subject to clause 5 conditions (clause 4(3)-(4)).

Duties attached to the exemptions

• Pre‑construction agreement duty for developers: Before construction starts, or within any additional time the Coordinator allows, a developer must provide the Coordinator with satisfactory evidence that the developer has an agreement with a holder of a distribution licence covering five specified matters: the licensee’s design and construction requirements; the licensee’s audit arrangements after construction; arrangements for transfer of ownership to the licensee; allocation of maintenance responsibility before gas is transported; and a requirement that plans and documentation be given to the licensee (clause 3(3)(a)-(e)). The clause makes clear the Coordinator must be satisfied with the evidence (clause 3(3)).
• Pre‑construction notice duty for developers: Before construction starts, or within any additional time the Director allows, the developer must give the Director a written notice that sets out or is accompanied by specified technical and administrative information: design attributes including pipe pressure, construction materials and projected gas load; identity and contact details of the entity primarily responsible for construction; projected construction timeframe; and a map showing the distribution system location (clause 3(4)(a)-(d)). The Director therefore acquires factual notice about the proposed works.
• Compliance with Director guidelines: The Director may, by written notice, specify guidelines to be observed in construction, and the developer must ensure the specified guidelines are observed (clauses 3(5)-(6)). This creates a direct, enforceable duty to comply with any guideline the Director issues.
• Information duties for exempt suppliers: If an exempt supplier supplies gas to a property, the supplier must make available to an occupier clear information on the volume of gas supplied, the volumetric charge payable by the occupier and any service fee or charge attributable to the supply (clause 5(1)). The information must be made available in a manner that is easily accessible (clause 5(2)). If that information is not contained in an account to the occupier, the supplier must inform the occupier how to gain access to the information (clause 5(3)).
• Pricing cap for residential small use customers: If an exempt supplier supplies gas to a residential property, the amount paid by the small use customer to the exempt supplier for the gas must not exceed the sum of the volumetric charge paid or payable by the exempt supplier and any service fee or charge paid or payable by the exempt supplier (clause 5(4)).

Discretion and evidentiary standards

• Satisfactoriness and timing: The Coordinator must be satisfied with the agreement evidence provided by the developer (clause 3(3)); both Coordinator and Director have explicit discretion to permit further time for compliance steps (clauses 3(3)-(4)). The Order therefore ties the exercise of the exemption to subjective assessments and timing decisions by office holders.
• Guidelines: The Director’s power to specify construction guidelines is not constrained within the Order by detailed procedural requirements, but the requirement that developers observe specified guidelines is mandatory once issued (clauses 3(5)-(6)).

Absence of other obligations within the Order

• The Order does not itself create licensing obligations, new registration requirements, or specific penalty provisions. It operates by conditionally removing the operation of sections 11G(1) and (2) of the Energy Coordination Act 1994 for identified activities, while imposing the duties described above.

The Order does not create explicit penalty provisions or outline detailed enforcement mechanisms within its text. Instead, enforcement and any consequences for non‑compliance must be inferred from the structure of the exemptions and the wider statutory framework in the Energy Coordination Act 1994.

What the Order states about compliance and enforcement

• Exemptions are expressly declared to be "subject to the conditions" set out in the relevant clauses (clause 3(2); clause 4(2) and 4(4)). That formulation links the availability of the exemption to compliance with the stated conditions. The Order therefore makes the exemption conditional rather than absolute.
• Decision‑maker discretion is explicit: the Coordinator must be satisfied with evidence of a developer’s agreement with a licensee (clause 3(3)), and both the Coordinator and the Director may permit "further time" for meeting pre‑construction requirements (clauses 3(3)-(4)). The Director may specify construction guidelines that must be observed (clauses 3(5)-(6)). Those powers imply an administrative enforcement role for those officers, including the ability to withhold satisfaction or refuse extensions, but the Order does not itself prescribe outcomes for a failure to satisfy conditions.

No penalties in the Order

• The instrument contains no specified fines, compliance notices, remedial orders, powers of entry, or separate offences. It does not articulate the legal consequence that follows if an applicant does not provide the required evidence, fails to give the Director the required notice, breaches Director guidelines, or fails to provide the information to occupiers required by clause 5.

How enforcement is likely to be effected (as a matter of statutory logic)

• Because the Order operates by exempting certain persons from particular sections of the Energy Coordination Act 1994, the practical consequence of non‑compliance with the Order’s conditions is that the person would not be within the declared exemption. Absent the exemption, the person would remain subject to section 11G(1) or 11G(2) of the principal Act and thereby subject to whatever compliance and enforcement regime those sections impose. The Order itself does not specify any administrative process for revoking or suspending an exemption once granted, nor does it create a standalone enforcement schedule.

Interfaces to other statutory enforcement regimes

• The Order requires developer agreements to include an audit "to ensure compliance with the requirements mentioned in paragraph (a) and all relevant statutory requirements" (clause 3(3)(b)). That reference to "statutory requirements" imports obligations from other statutes or the Energy Coordination Act 1994. Enforcement of those statutory requirements will depend on the enforcement mechanisms contained in the relevant statutes, not in the Order.

Information duties and potential consumer remedies

• Clause 5 imposes duties to make pricing and volume information available and to cap residential small use customer charges relative to the supplier’s own volumetric charge and service fee (clause 5(1)-(4)). The Order does not provide a statutory remedy or fine for failing to supply such information or for charging above the specified cap. Any remedy would need to be sought under the principal Act, other consumer laws, or by administrative action by the Coordinator or Director as provided for under their relevant statutory powers.

In summary, the Order sets conditional exemptions and attendant duties but leaves actual enforcement measures and penalties to the principal Act and the administrative structures that underpin it. The Order itself does not enumerate penalties.

The Order operates solely by issuing exemptions from specified provisions of the Energy Coordination Act 1994 and therefore necessarily interacts with that Act and the statutory roles and licence regimes established elsewhere in that statute. The Order also potentially engages other statutory domains such as property law and consumer protection, though it does not expressly reference them.

Direct interaction with the Energy Coordination Act 1994

• Primary interface: The Order repeatedly exempts persons from section 11G(1) and, in some cases, section 11G(2) of the Energy Coordination Act 1994 (clauses 3(1), 4(1), 4(3)). The legal effect is to carve out specific activities from the application of those sections, conditional on compliance with the Order’s provisions. The substantive content of those sections of the principal Act is not reproduced in the Order, so the precise regulatory relief depends on the terms of section 11G(1) and (2).
• Coordinator and Director roles: The Order uses the words "Coordinator" and "Director" (clauses 3(3)-(5)). Those offices are created and defined by the Energy Coordination Act 1994 (not this Order). The Order draws on the statutory authority and decision‑making roles of those offices to manage timing, evidence satisfactions and construction guidelines. Thus the Order modifies administrative practice within the principal Act’s governance structures.

Interaction with distribution licensing

• The developer exemption conditions require an agreement with a holder of a distribution licence (a "licensee") that addresses design and construction requirements, audit, transfer of ownership, maintenance before gas transport, and provision of plans (clause 3(3)(a)-(e)). That ties the Order’s practical operation to the distribution licensing regime. Licensees will have contractual and technical obligations under those agreements that interact with the licence conditions that the licensee itself bears under the principal Act and any licence instrument.

Property and land law

• The Order defines "property" to include parts of parcels of land and multiple parcels with common boundaries constituted, owned or occupied as one property (clause 2A). This definition intersects with property law concepts such as strata, community titles and easements where a distribution system might pass through or be contained within parts of title. The Order relies on these property definitions to determine when a distribution system is "located on a property" and therefore eligible for the on‑supply exemption (clause 4(1)).

Consumer protection and pricing laws

• Clause 5 requires exempt suppliers to make accessible information to occupiers about volumes, volumetric charges and service fees, and it caps residential small use customer payments relative to the exempt supplier’s own costs (clause 5(1)-(4)). Those obligations intersect with consumer‑facing statutory regimes, which may be found in the Energy Coordination Act 1994 or other consumer protection statutes. The Order itself does not displace or define those other statutes but creates minimum transparency and price ceiling obligations within the exemption context.

Statutory auditing and standards

• Clause 3(3)(b) requires audit by the licensee or its nominee after construction to ensure compliance with the licensee’s design and construction requirements and "all relevant statutory requirements". The phrase "all relevant statutory requirements" imports other statutory regimes and standards, bringing the construction into conformity with the spectrum of applicable statutory obligations beyond the Order itself.

Limitations and non‑displacement

• The Order does not purport to override publicly available statutory standards or the licence conditions that a distribution licence holder must observe. Instead it conditions the grant of an exemption on a contractual and administrative process that aligns constructed systems with licence holder standards and relevant statutory requirements (clause 3(3)(a)-(b)). The Order therefore operates as a regulatory accommodation within the existing legal framework, not as a free‑standing regulatory code.

In sum, the Order is designed to be read against the Energy Coordination Act 1994 and the distribution licence framework, with follow‑on implications for property arrangements and consumer information and pricing obligations. The Order’s practical effect depends on the content of the principal Act and the exercise of powers by the Coordinator and Director under that Act.

The compilation table in the Order records three primary legal events: the original Order of 2009 and two amendment Orders in 2010 and 2016. The Order’s text itself includes marginal notes indicating which clauses were amended or inserted by later Gazettes.

Original Order and commencement

• Energy Coordination Exemption Order 2009 was Gazetted 31 March 2009 (pp. 1022-4). Clauses 1 and 2 commenced on 31 March 2009, and the remainder of the Order commenced on 1 April 2009, per clause 2 and the compilation table.

2010 amendment

• Energy Coordination Exemption Amendment Order 2010 was Gazetted 24 September 2010 (pp. 5009-10). The compilation table records that clauses 1 and 2 of that amending instrument commenced on 24 September 2010, and the remaining clauses commenced on 25 September 2010.
• The Order’s clause 1 bears an amendment note indicating it was amended by Gazette 24 Sep 2010 p. 5009. The amendments appear limited and the compilation table is the record of that instrument’s operation.

2016 amendment

• Energy Coordination Exemption Amendment Order 2016 was Gazetted 23 December 2016 (pp. 5903-5). The compilation table shows clauses 1 and 2 of the 2016 amendment commenced on 22 December 2016 and the rest of that Order commenced on 24 December 2016.
• The text indicates that clause 2A and clauses 4 and 5 were inserted by Gazette 23 Dec 2016 p. 5904-5905. Specifically:
  • Clause 2A (Terms used) was inserted by the 2016 amendment (clause note: "Clause 2A inserted: Gazette 23 Dec 2016 p. 5904").
  • Clause 4 (Exemptions for on‑supply) and clause 5 (Condition applying to exemptions for on‑supply) are likewise identified as inserted in Gazette 23 Dec 2016 p. 5904-5905.

Documentary effect of amendments

• The 2016 amendment materially broadened the Order’s scope by adding on‑supply exemptions and the occupier and residential protections now found in clauses 4 and 5, together with the defined terms in clause 2A. Prior to 2016 the Order focused on the developer exemption and the Director/Coordinator process in clause 3. The 2016 amendments therefore added consumer‑facing obligations and extended exemptions to on‑property distribution and small use customer sales.

Current text status

• The Order as provided in this compilation includes all amendments up to and including the 2016 amendments. The marginal notes indicate the insertion and amendment points. No subsequent amendments are recorded in the supplied compilation table.

Practical note for implementers

• Any practitioner relying on the Order should confirm there have been no further amendments after the 2016 instrument. The compilation table included here should be treated as the record of amendments up to 2016 only; the Order’s operation should be cross‑checked with the consolidated Gazette and the Energy Coordination Act 1994 for any subsequent changes.

The text of the Energy Coordination Exemption Order 2009 supplied here does not include any case law, judicial commentary, or litigation references. The Order itself is an administrative instrument and the compilation of the Order contains no entries for litigation.

What is absent in the Order

• There are no judicial decisions cited in the instrument, no references to litigation brought under the Order, and no recorded disputes concerning the interpretation of its clauses within the text provided. The compilation table records only the amending Orders and their commencement dates.

Where disputes would likely arise

• Although the Order contains no litigation history, it sets conditions that could generate disputes that would be resolved under the Energy Coordination Act 1994 and relevant administrative law processes. The likely areas for disagreement that could lead to litigation, administrative review or tribunal proceedings include:
  • Whether a developer has provided evidence "to the satisfaction of the Coordinator" that it entered into an adequate agreement with a licensee (clause 3(3)). The satisfaction standard is administrative and reviewable.
  • Whether a developer has complied with Director‑specified guidelines or whether those guidelines were validly specified (clauses 3(5)-(6)).
  • Whether a distribution system is properly characterised as being "located on a property" and "used solely for the transportation of gas for consumption on the property" so as to fall within the on‑supply exemptions in clause 4(1). The Order’s definition of "property" (clause 2A) would be central to such disputes.
  • Interpretation of the pricing cap in clause 5(4), particularly what constitutes the "volumetric charge for the gas paid or payable by the exempt supplier" and the "service fee or charge attributable to the supply" that are "paid or payable by the exempt supplier". These phrases raise questions of evidence and accounting treatment that could be litigated or adjudicated administratively if disputes arise.
  • Whether information supplied to occupiers is "easily accessible" as required by clause 5(2).

Procedural avenues for challenge

• While the Order does not specify enforcement mechanisms, challenges would likely proceed through the administrative review mechanisms and courts that have jurisdiction over decisions and statutory interpretations under Western Australian law and the Energy Coordination Act 1994. The Director’s and Coordinator’s decisions referenced in the Order (for example, permitting further time or specifying guidelines) will be subject to the administrative law standards applying to statutory decision makers.

Practical implication

• Practitioners should not rely on the absence of litigation in this instrument as evidence of the absence of interpretive risk. The Order creates discrete decision points and standards that can generate contested administrative decisions, and any factual or interpretive dispute will require reference to the principal Act and to the administrative framework governing review.

The Order appears simple at face value, but there are several textual features and practical ambiguities that create compliance and interpretive risk for practitioners, developers, licensees, suppliers and occupiers.

1. Conditional nature of exemptions

• The Order repeatedly states that exemptions are "subject to the conditions set out" in the relevant clauses (clause 3(2); clause 4(2) and 4(4)). The Order does not specify the administrative process for granting or revoking an exemption, nor does it set out the consequences of failing to satisfy a condition. Practitioners should note that the exemption is not a self‑executing right: it depends on satisfying the Coordinator and Director where those offices are referenced (clause 3(3)-(4)).

2. Undefined or externally defined terms

• "Small use customer" is used in clause 4(3) and clause 5(4) but is not defined in this Order. Its meaning will be determined by the Energy Coordination Act 1994 or other statutory instruments. Parties must check the principal Act to determine whether a particular purchaser qualifies as a small use customer for the purposes of the exemption and pricing cap.
• "Coordinator" and "Director" are not defined in this Order. Their authorities and procedural constraints sit in the Energy Coordination Act 1994. Practitioners should check the principal Act to understand appeal rights, timing constraints and evidentiary standards for decisions made by those officers.

3. Timing discretion and practical delays

• Developers must comply "before construction...starts, or within such further time as the Coordinator allows" for the Coordinator‑related evidence, and the corresponding phrase for the Director in clause 3(4). The discretion to grant further time can be valuable, but it is a discretionary concession. Failure to obtain an extension may render the exemption inapplicable. Parties should document any extension in writing and plan timelines to avoid forfeiting the exemption.

4. Multiple regulators and potential overlapping requirements

• The developer must enter an agreement with a licensee and must also meet "all relevant statutory requirements" that the licensee’s audit will check (clause 3(3)(b)). This cross‑reference imports external statutory standards without detailing them. Developers should coordinate with the licensee early to identify which statutory requirements will be audited and to obtain the licensee’s construction and design requirements (clause 3(3)(a)).

5. Ambiguities in pricing cap calculation

• Clause 5(4) caps the amount a small use customer pays in a residential property to the sum of the volumetric charge and any service fee or charge "paid or payable by the exempt supplier". That phrase raises questions: do "paid or payable" refer to amounts to a third party or supplier internal costs? What period does the supplier’s "paid or payable" refer to? The Order does not specify accounting periods, allowable pooling of costs, or whether markups are permissible. This opens the door to disputes over calculation methodology.

6. Information obligations: scope and format

• Clause 5(1) requires that an exempt supplier "make available to an occupier" information that "clearly sets out" volume, volumetric charge and service fee or charge. Clause 5(2) requires the information to be made available in a manner that is "easily accessible". Neither clause specifies formats, timeframes nor frequency. Clause 5(3) requires a supplier to inform the occupier how to access the information if it is not included on an account. Practical issues arise where occupancy changes frequently, where multiple occupiers occupy a property, or where digital access is limited.

7. Property definition can broaden or narrow coverage

• "Property" includes part of a parcel and two or more parcels with common boundaries that are constituted, owned or occupied as one property (clause 2A). That definition can produce surprising outcomes: a distribution system that spans multiple adjoining titles but is functionally treated as one property may be within the exemption, while a system that crosses a public road may not. Determination of whether lots are "constituted, owned or occupied as one property" may be fact‑sensitive and give rise to disputes.

8. Director guidelines without procedural constraints

• The Director has an unfettered power to specify construction guidelines that developers must observe (clauses 3(5)-(6)). The Order does not require notice and comment, nor does it impose minimum standards for the guidelines. Developers must assume the Director can issue binding technical requirements and should seek early engagement with the Director to identify guideline expectations.

9. Transfer of ownership obligations

• Clause 3(3)(c) requires arrangements for transfer of ownership of the distribution system to the licensee. The Order does not specify timing, financial terms, or conditions for transfer. Developers and licensees must negotiate those arrangements, which may affect project financing and long‑term asset ownership.

10. No express regime for dispute resolution

• The Order prescribes duties and references satisfaction standards but contains no internal dispute resolution or appeal path specific to the exemptions. Parties should therefore prepare for contractual mechanisms and rely on statutory administrative review procedures under the Energy Coordination Act 1994 for disputes with the Coordinator or Director.

Taken together, these features mean that although the Order’s core exemptions appear straightforward, careful pre‑contractual planning and early engagement with licensees and regulatory officers are essential to manage timing, technical, accounting and legal uncertainties.

This section translates the Order’s text into a compliance checklist and practical steps, divided for developers constructing distribution systems and for exempt suppliers engaged in on‑property supply and sales to small use customers.

For developers who subdivide land (clause 3)

1. Identify whether the work is "construction of a distribution system for the transportation of gas to lots resulting from that subdivision" (clause 3(1)). If yes, the developer may seek the section 11G(1) exemption, but must satisfy conditions.

2. Engage early with a holder of a distribution licence (licensee):

   • Negotiate and finalise an agreement with a licensee before construction starts, or be prepared to obtain a written extension from the Coordinator permitting later submission (clause 3(3)).
   • Ensure the agreement addresses the five specified matters: a. Licensee’s design and construction requirements for the distribution system (clause 3(3)(a)). b. Audit arrangements by the licensee or its nominee after construction to ensure compliance with the licensee’s requirements and "all relevant statutory requirements" (clause 3(3)(b)). c. Arrangements for transfer of ownership of the distribution system to the licensee (clause 3(3)(c)). d. Allocation of responsibility for maintenance of the distribution system before gas is transported (clause 3(3)(d)). e. A requirement for the licensee to be given plans and other documentation relating to the distribution system (clause 3(3)(e)).
   • Prepare the evidence package that will satisfy the Coordinator that such an agreement exists (clause 3(3)).

3. Prepare and deliver the Director notice before construction starts, or obtain a Director extension (clause 3(4)):

   • Draft a written notice that sets out or is accompanied by: a. Information about design and attributes including pipe pressure, construction materials and projected gas load (clause 3(4)(a)). b. The name and contact details of the entity with primary responsibility for construction (clause 3(4)(b)). c. The projected timeframe for construction (clause 3(4)(c)). d. A map showing the distribution system location (clause 3(4)(d)).
   • File the notice with the Director and keep proof of lodgement and any Director correspondence about extensions or guidelines.

4. Monitor for Director guidelines and comply:

   • The Director may specify guidelines in writing for construction (clause 3(5)). Obtain, record and implement any such guidelines.
   • Ensure construction teams and contractors are aware of and adhere to the guidelines (clause 3(6)).

5. Coordinate audit timing and documentation transfer:

   • Coordinate with the licensee on audit scheduling after construction completion (clause 3(3)(b)).
   • Prepare plans and documentation to be handed over to the licensee under the agreement (clause 3(3)(e)).
   • Plan asset transfer processes consistent with the agreement (clause 3(3)(c)).

6. Recordkeeping:

   • Retain copies of the agreement with the licensee, the evidence provided to the Coordinator, the Director notice and any correspondence regarding extensions or guidelines.
   • Maintain audit reports and evidence of compliance with statutory requirements.

For exempt suppliers supplying to occupiers on a property or selling to small use customers (clauses 4 and 5)

1. Confirm eligibility for on‑supply exemption:

   • Ensure the distribution system is located on a "property" as defined (clause 2A) and that it is used solely for the transportation of gas for consumption on that property (clause 4(1)). If selling to a small use customer on the property, ensure the sale is "for consumption on the property" to rely on clause 4(3).

2. Information obligations (clause 5(1)-(3)):

   • Prepare clear statements detailing: a. The volume of gas supplied to the occupier. b. The volumetric charge for the gas payable by the occupier. c. Any service fee or charge attributable to the supply payable by the occupier.
   • Ensure information is made available in a manner that is "easily accessible" (clause 5(2)). Practically, this may mean:
     • Including the information on regular accounts or invoices.
     • Where not included on an account, providing explicit instructions to occupiers on how to access the information (clause 5(3)).
     • Keeping records of when and how information was provided and any subscriptions or portal access arrangements.
   • Consider multiple access channels (paper account, emailed statements, online portal, or a physical information point) and document the supplier’s process for information delivery.

3. Residential pricing cap (clause 5(4)):

   • For residential properties, calculate the maximum amount a small use customer may be charged as:
     • The volumetric charge for the gas paid or payable by the exempt supplier, plus
     • Any service fee or charge attributable to the supply paid or payable by the exempt supplier (clause 5(4)).
   • Document the basis for "paid or payable" calculations and retain supporting invoices or contractual terms showing the supplier’s costs.
   • Review pricing structures to ensure that total charges to residential small use customers do not exceed the specified sum.

4. Contractual clarity with occupiers:

   • Provide occupiers with clear contractual terms or supply agreements that set out how volume is measured, how charges are calculated, frequency of billing, and how to access supply information.
   • Ensure transfer of occupancy is addressed so that information duties continue to be met when occupiers change.

5. Cross‑check with the principal Act and licence obligations:

   • Confirm that being an "exempt supplier" under clause 4 does not inadvertently leave other statutory obligations unmet (for example, safety or environmental requirements). The Order does not create licences or displace "all relevant statutory requirements" referenced elsewhere (clause 3(3)(b)).

General recommendations

• Early engagement: Developers should engage with licensees and the Coordinator and Director early to reduce timing and technical risk and to secure written confirmations of any time extensions.
• Contract drafting: Agreements with licensees should explicitly allocate risk, set clear transfer terms, and identify who is responsible for maintenance prior to supply.
• Accounting and audit: Exempt suppliers and developers should maintain clear accounting records that show the supplier’s costs and support any cap calculations for residential small use customers.
• Legal review: Before commencing construction or supplying under an on‑property system, obtain legal advice to confirm whether the intended activity falls within the exemptions and to draft the necessary agreements and notices in compliance with clauses 3 and 5.

Following these steps will align a project or supply arrangement with the Order’s written conditions and reduce the risk of losing an exemption due to procedural or substantive failure to comply.