40Operator may apply for variation of approval or determination in certain circumstances

40 Operator may apply for variation of approval or determination in certain circumstances

(1) A Part 6 operator may apply in writing to the ACCC for a variation of the approval or determination under Division 2 or 3 (or, if previously varied under this Division, as so varied) of its infrastructure charges in respect of a regulatory period if: (a) an event occurs during the regulatory period that materially and adversely affects the operator’s water service infrastructure or otherwise materially and adversely affects the operator’s business; and (b) for an event other than a taxation event or regulatory event—the operator could not reasonably have foreseen the event. (2) An application under subrule (1): (a) must set out details of the event; and (b) must state the Part 6 operator’s proposals for rectifying the material and adverse effects of the event; and (c) must state— (i) the total amount that the Part 6 operator anticipates will be required during the remainder of the regulatory period to rectify those material and adverse effects; (ii) whether that amount is likely to exceed: (A) for a taxation event or a regulatory event—1% of the aggregate revenue requirement; and (B) otherwise—3% of the aggregate revenue requirement; and (iii) whether it is reasonably likely (in the absence of any reduction of any other expenditure) that the total expenditure during the remaining part of the regulatory period will exceed the total forecast expenditure for that remaining part; and (d) must demonstrate that the Part 6 operator is not able to reduce its expenditure to avoid the consequences referred to in subparagraphs (c) (ii) and (iii) without materially and adversely affecting the reliability or safety of the operator’s water service infrastructure or the operator’s ability to comply with any relevant regulatory or legislative obligations; and (e) must set out details of the variation of its infrastructure charges sought by the Part 6 operator. (3) A Part 6 operator may also apply in writing to the ACCC for a variation of the determination or approval made under Division 2 or 3 (or, if previously varied under this Division, as so varied) if the infrastructure operator is of the view that the conditions specified under subrule 31(1A) in relation to a contingent project have been satisfied. (4) An application made under subrule (3) must set out: (a) the reasons for the operator’s view that the conditions in subrule 31(1A) have been satisfied; and (b) the total amount that the operator anticipates will be required during the remainder of the regulatory period to meet the prudent and efficient costs of delivering the contingent project; and (c) the proportion of the costs of the contingent project that the operator seeks to recover through infrastructure charges; and (d) the infrastructure charges the operator is seeking to vary and the amount of that variation.