73Approval of additional fee payable under certain contracts relating to capital works

73 Approval of additional fee payable under certain contracts relating to capital works

(1) This rule applies if there is a contract between an infrastructure operator and one or more holders of rights of access involving the following: (a) the carrying out, within 5 years after the day on which the contract was entered into, of capital works relating to the operator’s water service infrastructure; (b) the payment, by a terminating customer, of a fee relating to the recovery of that capital expenditure. (2) A party to the contract may, within 3 months after the day on which the contract was entered into, apply to the ACCC for approval of that fee as a fee payable by each terminating customer as an additional termination fee for the purposes of rule 71. (3) If: (a) an application is made to the ACCC for approval of the fee as determined in accordance with the contract; and (b) the ACCC is satisfied that the contract: (i) relates to, or is made in anticipation of, the carrying out by the infrastructure operator, within 5 years after the contract is entered into, of capital works relating to the operator’s water service infrastructure; and (ii) provides for fees payable for access to the operator’s water service infrastructure by the holders of rights of access that reasonably relate to the recovery by the operator of expenditure on those capital works in an amount not exceeding the actual, or a reasonable estimate of, expenditure by the operator; and (iii) provides for a fee payable to the operator by a terminating customer that was agreed by each party to the contract in the course of fair and reasonable negotiation, is clearly stated, and is not subject to variation without the agreement of the holders of the rights of access; and (c) the ACCC is satisfied that the operator advised the holders of rights of access who are parties to the contract of the general effect of these Rules; and (d) the ACCC, in accordance with this rule, and having regard to the water charging objectives and principles, approves the fee referred to in subparagraph (b)(iii); the fee is payable by each terminating customer. (4) If a person makes an application to the ACCC for approval of a fee determined in accordance with the contract and gives the ACCC: (a) a copy of the contract; and (b) the contact details of the parties to the contract; and (c) such details of contracts entered into, and arrangements made, for the carrying out of capital works relating to the infrastructure operator’s water service infrastructure within the period referred to in subparagraph (3)(b)(i) as are sufficient to confirm that the works have been, are being or are to be carried out; and (d) any further information requested by the ACCC; the ACCC: (e) must decide whether or not to approve the fee; and (f) must give notice in writing of its decision to each of the parties to the contract; and (g) if it decides not to approve the fee, must include in the notice under paragraph (f) the reasons for refusing approval. (5) If the ACCC does not make a decision under subrule (4) within a period of 30 business days after the day it receives an application under subrule (1), the ACCC is taken to have made a decision, at the end of that period, to approve the fee and to have given notice of the decision under paragraph (4)(f). (6) In calculating a period of 30 business days referred to in subrule (5), disregard, if the ACCC has requested further information in relation to the application, a day during any part of which the request, or any part of the request, remains unfulfilled. (7) If the ACCC: (a) is unable to make a decision within the period of 30 business days referred to in subrule (5); and (b) within that period, gives written notice to the person who makes an application under subrule (1) explaining why the ACCC has been unable to make a decision on the fee within that period of 30 business days; the period of 30 business days referred to in subrule (5) is extended by a further period of 30 business days.