Application by East Australian Pipeline Limited [2005] ACompT 3

Procedural Posture

Application Under S 39(1) of the Gas Pipeline Access Law for Review of the Decision of the Australian Competition and Consumer Commission to Approve Its Own Access Arrangement Pursuant to the National Third Party Access Code for Natural Gas Pipeline Systems and the Gas Pipeline Access Law / Reasons for Decision and Direction Following Submission of Short Minutes of Orders

Legal Issues

1. 1 ['Whether the tariff path proposed in the revised Access Arrangement was appropriate.' 'Whether an amount for under-recovery caused by delay in settling the Access Arrangement could be added to the capital base and treated as new capital expenditure.' 'Whether the National Third Party Access Code for Natural Gas Pipeline Systems or the Gas Pipeline Access Law authorised incorporating the under-recovery in the tariff calculation.' 'Whether future consumers should bear increased tariffs to compensate EAPL for theoretical loss of revenue caused by delay.']

Ratio Decidendi

Although the proposed tariff path was appropriate, the Tribunal rejected adding an amount for under-recovery caused by delay to the capital base or tariff calculation because the question was what part of the Gas Code or Gas Law authorised such incorporation, s 8(1)(a) of the Gas Code did not do so, and increasing future tariffs to compensate EAPL for delay would be inappropriate and would penalise future users of the monopoly pipeline.

Court Disposition

EAPL was directed to submit a revised Access Arrangement to accord with the Tribunal's reasons.

Orders

• ['EAPL submit a revised Access Arrangement.']