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This Act may be cited as the Energy Operators (Powers) Act 1979.
[Section 1 amended: No. 89 of 1994 s. 5; No. 58 of 1999 s. 78.]
The provisions of this Act shall come into operation on such day or days as is, or are respectively, fixed by proclamation.
[3. Omitted under the Reprints Act 1984 s. 7(4)(f) and (g).]
In this Act, unless the context otherwise requires —
acquisition in relation to land or any estate or interest in land includes taking or resumption, and cognate expressions have a corresponding meaning;
apparatus means any apparatus, equipment, plant, or appliance in which energy is capable of being, or is, or is intended to be transmitted, distributed, used, consumed or converted, and includes any meter, fitting, or connection;
charges includes any sum due from the consumer to an energy operator pursuant to section 62(1);
consumer installation includes all wiring, piping, apparatus and other works not being the property of the supplier of energy on any premises to which energy is, or is intended to be, supplied from the position at which the delivery of energy is made;
Coordinator of Energy means the Coordinator of Energy referred to in section 4 of the Energy Coordination Act 1994;
distribution works means any works, apparatus or system, utilised or capable of being or intended to be utilised for the purpose of transmitting or distributing energy to consumers and includes any other equipment or plant used in conjunction therewith, and any part thereof;
electricity corporation means a body established by the Electricity Corporations Act 2005 section 4(1);
energy includes electrical, hydro‑electrical, chemical, thermal, tidal, nuclear, or solar energy and all other kinds of energy however derived, of whatever form or description, or however used, and the term extends to comprise the source or sources of any such energy;
energy operator means —
an electricity corporation if regulations have not been made for the purposes of section 45(1) of the Electricity Industry Act 2004;
in a prescribed provision as defined in section 45(1) of the Electricity Industry Act 2004, a person who, under that section, is included in a reference in that prescribed provision to an energy operator;
in a provision of this Act referred to in Schedule 2 Part 1 or 2 of the Energy Coordination Act 1994, a person who, under section 11ZO of that Act, is included in a reference in that provision to an energy operator;
in a provision to which paragraphs (b) and (c) both apply, a person referred to in either of those paragraphs;
generating works means any works, apparatus or system whatsoever utilised or capable of being or intended to be utilised for the production or generation of energy, or for the manufacture or treatment or storage of energy for supply or use, or for the conversion of energy from one form into another, up to the point at which transmission or distribution commences for the purposes of making supply, and includes all land, building, structures and appurtenances pertaining thereto, any other equipment or plant used in conjunction therewith, and any part thereof;
government department or department includes any branch of the Public Service of the State established as a Department within the meaning of that term as defined in the Public Service Act 1978 1, but also means any other body established by an Act being a body that —
administers or carries out in the State functions in the public interest on behalf of the Crown in right of the State or which carries out the function of a public utility; and
is declared by the Governor, by Order in Council, to be deemed to be a government department for the purposes of this Act;
but where such an Order specifies that a body is only to be deemed to be a government department for the purposes of the provisions of this Act specified in that Order means that body in relation to those provisions but not otherwise;
inspector means a person appointed as such pursuant to section 68;
land includes land covered by water, and shall be construed in accordance with section 36;
liquid petroleum gas means a liquid or vapour which is a mixture of hydrocarbons basically consisting of butane or butene or propane or propene, or any mixture of all or any of them;
meter includes any device designed or adapted for the purpose of ascertaining a measure, and any other device used in conjunction therewith to facilitate that purpose;
officer includes any person, acting within the authorisation conferred upon him, to whom subsection (2) applies;
premises means any land, street, structure, or other place, and may include a vehicle or other thing in or in connection with which energy is or is to be supplied;
service apparatus means any works, apparatus or system which is or is capable of being or is intended to be used for the purpose of conveying, measuring, or controlling energy supplied from any distribution works to the position on any premises at which delivery of the energy is, is capable of being, or is intended to be, made to the consumer, and includes any part of the service apparatus, and any other equipment or plant used in conjunction therewith, whether or not the property of the energy operator concerned;
street includes any highway, road, thoroughfare, lane, alley, square, court, or place of public passage;
supply system may include the generating works, distribution works, and service apparatus pertaining thereto;
system emergency means any event or circumstances to which section 57(1) applies;
undertaking includes works of whatever description used or intended to be used for the purpose of enabling or facilitating the prospecting for, obtaining of, or the generation, conversion, development, storage, distribution, provision or use of energy, and also includes any necessary or convenient lands, water, mines, quarries, buildings, structures, equipment, plant, apparatus, services, facilities, and other works or means provided or used for or in connection therewith, together with any activities, studies, projects, administrative arrangements, legal entities, securities or financial arrangements, concessions, rights, patents, contracts, or other things relating thereto;
works includes any works, excavation, construction, or thing used or intended to be used for the purposes of a supply system or undertaking.
Where a provision of this Act authorises an energy operator to enter upon, occupy, carry out works in, on, over or under, or exercise any other power in relation to, any land, premises, or thing the provision shall be construed as also authorising —
an officer or servant of the energy operator, acting on behalf of the energy operator in the course of his duty; or
a person acting at the request and on behalf of the energy operator under a contract or pursuant to an Agreement of the kind referred to in section 5(1)(b) and any employee of such a person so acting,
together with such vehicles, vessels, machinery or equipment as may be necessary for the purpose, to exercise that power for the purposes of this Act, and any reference to or liability of the energy operator may where the context so requires be construed accordingly.
[Section 4 amended: No. 101 of 1981 s. 3; No. 24 of 1986 s. 5; No. 89 of 1994 s. 6, 39 and 41; No. 14 of 1996 s. 4; No. 58 of 1999 s. 79, 83(1) and (3) and 90; No. 24 of 2000 s. 14(13); No. 33 of 2004 s. 39; No. 18 of 2005 s. 139; No. 25 of 2013 s. 41.]
In so far as the provisions of this Act would be inconsistent with the operation of that Act or the implementation of that Agreement, but subject to subsection (2) and subsection (3), nothing in this Act shall affect or be construed to derogate from the operation of —
any Act; or
any Agreement to which the State is a party and which, or the execution of which, is or has been ratified, authorised or approved by an Act,
whereby any right or power is conferred upon any person, whether corporate or unincorporate, with respect to the production, manufacture, or generation of energy, or with respect to the conversion, acquisition, provision, distribution, supply, sale, or use of energy, in the manner and for the purposes thereby authorised, or shall injuriously affect or interfere with the exercise and enjoyment of any such right or power so conferred.
To the extent that the exercise of a power vested in an energy operator by this Act would not be inconsistent with the operation of an Act or the implementation of an Agreement, or to the exercise and enjoyment of any right or power of the kind referred to in subsection (1), the power so vested in the energy operator may be exercised by the energy operator.
Where by virtue of an Agreement of the kind referred to in subsection (1)(b) an energy operator would not otherwise be authorised so to do, in so far as the energy operator is authorised pursuant to the consent of the parties to any such Agreement to acquire any undertaking or any part of any undertaking, or to exercise any power, then such authorisation may provide that the provisions of this Act or such of those provisions as are specified therein shall apply in any such case, notwithstanding subsection (1), and effect shall be given thereto according to the tenor of the authorisation.
[Section 5 amended: No. 89 of 1994 s. 7, 39 and 41; No. 58 of 1999 s. 83(1) and (3).]
This Act binds the Crown —
to the extent that the Crown is a consumer; and
in respect of its provisions relating to matters of safety; and
in relation to land vested in the Crown in right of the State,
but not otherwise.
Where in relation to a provision of this Act any question, difference, or dispute arises, or may arise, between an energy operator and any government department or local government as to the rights, powers or authority of, or the discharge of any duty by, the energy operator, or as to their respective functions or interest, then —
where the matter relates to a government department —the Minister charged with the administration of that government department may consult with the Minister;
where the matter relates to a local government — the local government shall refer the matter to the Minister charged with the administration of the Local Government Act 1995, who may consult with the Minister,
and where the Ministers so agree after such consultation the Minister shall give to the energy operator such directions as result from the consultation, but where no such consultation is concluded or if the Ministers can not agree as to the matter the matter may be finally and conclusively determined by the Governor and effect shall be given to any such determination.
The Governor may finally and conclusively determine any question, difference or dispute arising or about to arise in relation to a provision of this Act between an energy operator and any government department or local government with respect to the exercise of any right, power, or authority or the discharge of any duty whether or not referred to him under subsection (2) and whether or not the Ministers had purported to agree pursuant to that subsection, and effect shall be given to any such determination.
[Section 6 amended: No. 24 of 1986 s. 6; No. 89 of 1994 s. 39 and 41; No. 14 of 1996 s. 4; No. 58 of 1999 s. 83(1) and (3).]
[7‑15. Deleted: No. 89 of 1994 s. 8.]
[16. Deleted: No. 24 of 1986 s. 13.]
[17‑19. Deleted: No. 89 of 1994 s. 8.]
[20‑25. Deleted: No. 24 of 1986 s. 15.]
[26, 27, 27A. Deleted: No. 89 of 1994 s. 8.]
[(1), (2) deleted]
An energy operator may —
[(a), (b) deleted]
enter upon and occupy any land or other premises and there, without being bound to acquire the same or any estate or interest therein (except where otherwise provided by this Act or such as may be required by a claimant to be taken under Part 9 of the Land Administration Act 1997) by the best available route and in a practicable manner, construct, extend, or improve works, maintain and conduct undertakings and facilities, and carry on undertakings or works requisite, advantageous, or convenient to the exercise and performance of the functions of the energy operator or any such function;
acquire by agreement any land, either as to the whole of the interest of the grantor or by way of an estate or interest less than the title, estate, or interest of the grantor;
compulsorily acquire land, or any estate or interest in land, under Part 9 of the Land Administration Act 1997, for the purposes of a public work carried out or to be carried out by the energy operator.
[Section 28 amended: No. 101 of 1981 s. 12; No. 36 of 1984 s. 2; No. 24 of 1986 s. 17; No. 89 of 1994 s. 9 and 41; No. 31 of 1997 s. 26(1) and 142; No. 58 of 1999 s. 83(2) and (3).]
[29‑35. Deleted: No. 89 of 1994 s. 10.]
For the purposes of this Act, and in Part 9 of the Land Administration Act 1997, when construed for the purposes of this Act, a reference to land shall be read as extending to any land, or to any portion of any land, or to the subsoil, surface or airspace relating thereto, and to any legal or equitable estate, right, title, easement, lease, licence, privilege, or other interests in, over, under, affecting, or in connection with that land or any portion, stratum or other specified sector of that land (whether or not that interest is an interest recognised by the Common Law) the extent of which is ascertainable by reference to the documents purporting to relate thereto.
[Section 36 amended: No. 31 of 1997 s. 142.]
Where, whether by way of agreement or by way of a compulsory taking under Part 9 of the Land Administration Act 1997, an energy operator seeks to acquire an estate or interest in or relating to any land that is less than is held by the person from whom the acquisition is sought, the energy operator may, subject to section 45(12), acquire such lesser estate or interest and shall not be required to acquire the whole of the estate or interest held by that person.
Where the estate or interest of an energy operator is recorded on, or by way of memorial in the register relating to, the title to the land —
that estate or interest shall enure for the benefit of the energy operator and run with the land notwithstanding any sale, subdivision or other dealing with that land by the owner or occupier for the time being, but any such estate or interest may be relinquished by the energy operator; and
the benefit of any right, restriction or covenant in relation to the use of land granted to or held by the energy operator may be enforced by the energy operator to the like extent as if the energy operator were possessed of adjacent land for the benefit of which the same was to enure.
Except where the estate or interest to be acquired under this section is one of a particular kind prescribed by reference to a standard form or abbreviated description pursuant to section 38, a description sufficient to identify that estate or interest shall be set out in any notice served under Part 9 of the Land Administration Act 1997, or any document of transfer when that notice or document of transfer is read together with any plan or other document to which that notice or document of transfer refers.
[Section 37 amended: No. 89 of 1994 s. 39 and 41; No. 31 of 1997 s. 26(2) and 142; No. 58 of 1999 s. 83(1) and (3).]
Regulations made under this Act may, subject to the approval of the Minister administering the Transfer of Land Act 1893, make provision for the use of a standard series of forms describing the more frequently occurring particular kinds of estate or interest less than fee simple which an energy operator acquires pursuant to this Act, and where the estate or interest to be acquired by an energy operator is of one of the particular kinds so prescribed it may, —
subject to subsection (2), be described in the prescribed abbreviated manner in any transfer under the provisions of the Transfer of Land Act 1893, or in any notice served under the Public Works Act 1902 or the Land Administration Act 1997, for the purposes of this Act; and
where the estate or interest is of a kind that is not required to be transferred in accordance with the provisions of the Transfer of Land Act 1893, be transferred in the prescribed manner,
by reference to the appropriate prescribed standard form.
For the purposes of section 170(5)(b) of the Land Administration Act 1997, the copies of the notice shall be accompanied by a description of the estate or interest to be acquired and by a copy of any plan or other documents referred to in the notice.
[(3) deleted]
Where an energy operator acquires an estate or interest in any land less than is held by the person from whom it was so acquired, then there shall be endorsed upon the deed, certificate, or other instrument evidencing the title to the land from which the estate or interest acquired is derived a note, whether or not by way of a prescribed abbreviated description, as to the estate or interest acquired and that deed, certificate, or other instrument shall be returned to the person from whom it was received or to any person entitled to receive it on his behalf.
The description of an estate or interest acquired pursuant to section 37 which the energy operator does not require to be recorded on, or by way of memorial in the register relating to, the title to the land in question may be delineated by reference to a plan other than a survey plan.
[Section 38 amended: No. 89 of 1994 s. 39 and 41; No. 31 of 1997 s. 26(3)-(6); No. 58 of 1999 s. 83(1) and (3); No. 33 of 2004 s. 40.]
In order to facilitate the acquisition of, or dealing with, land to be acquired, an energy operator may enter into agreements relating to incidental matters and things necessary to give effect to the powers of the energy operator.
Where the fee simple of, or any other estate or interest in, any land is vested in an energy operator but the energy operator for the time being does not require the exclusive use and occupation of the land then —
section 191 of the Land Administration Act 1997 shall not have effect in relation to that land notwithstanding that it is not being used for a public work where the energy operator certifies to the Minister administering the Land Administration Act 1997 that the land —
will in the future be required to be used for a public work within the meaning of the Public Works Act 1902; or
is presently or may in the future be so required but the requirement does or may not extend to a requirement for exclusive use and occupation;
and
the energy operator may grant to any person —
a lease or licence to occupy the land or any part of the land, either exclusively or concurrently with the energy operator; or
any other interest in or right to use that land or any part of that land.
Where a lease, licence or other interest or right granted in relation to land under subsection (2) is stated in that grant as being by way of consideration for the acquisition of the land, or an estate or interest in the land, by an energy operator the grant shall not be revoked without compensation unless the parties otherwise agree.
Where an energy operator exercises the powers conferred by subsection (2), then unless an agreement entered into between the energy operator and the person to whom the lease, licence, interest or right is granted otherwise provides, the grant —
shall be deemed to be subject to a condition that the energy operator shall be indemnified against any costs, damages, claims, or expenses arising therefrom; and
subject to subsection (2a) may be terminated without any liability for compensation thereby arising, on not less than 21 days prior written notice.
[Section 39 amended: No. 24 of 1986 s. 18; No. 89 of 1994 s. 11, 39 and 41; No. 31 of 1997 s. 26(7) and 143; No. 58 of 1999 s. 83(1) and (3).]
Subject to subsection (2) but otherwise in accordance with Part 9 of the Land Administration Act 1997, an energy operator may sell or otherwise deal with any land, or any estate or interest in land, acquired by or vested in the energy operator for the purposes of the performance of its functions where —
that land, or that estate or interest, is no longer required for such purposes; or
that estate or interest is of a kind not considered by the energy operator to be necessary or appropriate for a particular purpose, notwithstanding that the land, or an estate or interest in the land, is required for such purposes.
Where any such land, estate or interest acquired by or vested in the energy operator was not acquired by way of compulsory taking for any public work sections 187, 188, 189, 190, and 191 of the Land Administration Act 1997 shall not have effect in relation thereto.
[Section 40 amended: No. 24 of 1986 s. 19; No. 89 of 1994 s. 12, 39 and 41; No. 31 of 1997 s. 26(8) and 142; No. 58 of 1999 s. 83(1) and (3).]
For the purposes of section 135 of the Planning and Development Act 2005, an energy operator may submit to the Western Australian Planning Commission plans of a subdivision of land acquired, or to be acquired, by the energy operator notwithstanding that the energy operator is not the owner of the land, and approval under that Act may be given thereto.
[Section 41 amended: No. 84 of 1994 s. 46; No. 89 of 1994 s. 39 and 41; No. 58 of 1999 s. 83(1) and (3); No. 38 of 2005 s. 15.]