71Termination fee may be levied in certain circumstances

71 Termination fee may be levied in certain circumstances

(1) A fee levied in accordance with this rule is a termination fee. (2) An infrastructure operator may levy a termination fee if a person who holds a right of access terminates or surrenders the whole or any part of that right by notice in writing given to the operator, and: (a) before the person gave the notice, the operator had given the person a termination information statement in relation to the right, or the part of the right, being terminated or surrendered within 6 months before: (i) if the notice specified a future date for the termination or surrender to take effect—the specified date; or (ii) otherwise—the date of the notice; or (b) all of the following apply: (i) the notice specified a date for the termination or surrender to take effect that was more than 6 months after the date of the notice; (ii) on receiving the notice, the operator gave the person a termination information statement that included a statement in accordance with paragraph 74(5)(e); (iii) the person has confirmed that the person wishes to proceed with the termination or surrender; or (c) all of the following apply: (i) neither paragraph (a) nor (b) applies; (ii) on receiving the notice, the operator gave the person a termination information statement; (iii) the person has confirmed that the person wishes to proceed with the termination or surrender. (3) An infrastructure operator may also levy a termination fee if the operator, by notice in writing given to a person who holds a right of access, terminates the whole or any part of that right in accordance with a contract applicable to the right on the grounds that an act or omission by the person is in breach of the person’s obligations under that contract (other than the act of trading the whole or a part of a water access right). (4) A termination fee consists of one or both of: (a) a general termination fee; and (b) an additional termination fee. Maximum general termination fee (5) If paragraph (2)(a) or (c) applies, the general termination fee must not exceed the general termination fee set out in the termination information statement. (6) If paragraph (2)(b) applies, the general termination fee must not exceed the maximum amount set by rule 72, calculated using infrastructure charges specified in the schedule of charges in effect at the time of the termination or surrender. (7) If subrule (3) applies, the general termination fee must not exceed the maximum amount set by rule 72. Maximum additional termination fee (8) The additional termination fee: (a) may be imposed only if such a fee has been approved under rule 73; and (b) must not exceed the fee approved. Exceptions to subrules (2) and (3) (9) Subrules (2) and (3) do not apply to an infrastructure operator if: (a) both of the following apply: (i) the holder of the right of access is not liable to pay charges to the operator in respect of the right; (ii) a fee in respect of the termination or surrender of the right or the part of the right is not specified in any contract or arrangement between the holder and the operator; or (b) both of the following apply: (i) the holder of the right of access is provided by the operator with a service for the storage of water using the operator’s water service infrastructure, in addition to the service for the delivery of water or drainage of water; (ii) the charges for the service for the storage of water are included in the charges in respect of the right of access.