Section 45 of the Electricity Supply Act 1995
Section 45 of the Electricity Supply Act 1995 (Act) was amended with effect from 4 June 2015 with ramifications for local councils.
Electricity network operators used to be able to rely on section 45 of the Act to carry out works on a ‘public road’ or ‘public reserve’ after giving notice to the relevant council of its proposed works. Section 45 now gives network operators the power to undertake works on ‘public land’ and ‘any land’ without the need for a lease, licence or easement.
The purpose of this article is to explain the ramifications of these new powers for councils.
The categories of land caught by section 45 as ‘public land’ include not just public roads and public reserves, but also Crown land, State forests and land under the control and management of public or local authorities. However, land occupied under lease or land leased under the Western Lands Act 1901 is excluded from ‘public land’: section 45(6).
The Act defines ‘public authority’ to mean ‘a public or local authority constituted by or under an Act or a statutory body representing the Crown, and includes a Minister and a statutory State owned corporation and its subsidiaries’. Accordingly, councils are public authorities and land controlled and managed by councils (for example, as reserve trust manager) is ‘public land’ for the purpose of section 45, except where such land is occupied under a lease.
Network operators (such as Ausgrid and Endeavour Energy) can erect, install and extend electricity works on public land and can also undertake works on public land to erect, install, extend, alter, maintain or remove electricity works on any land: section 45(1).
The upshot of these amendments is a significant enlargement of the power of network operators to undertake work on council land without the need to acquire an easement, lease or licence.
The second substantive amendment to section 45 is found in section 45(1)(b) which empowers network operators to carry out works on ‘any land’ connected with the alteration, maintenance or removal of existing electricity works on any land. Such land includes any land owned by councils, not caught by the definition of ‘public land’, whether or not it is leased.
The decision of the Supreme Court of New South Wales in Rosebanner Pty Limited and EnergyAustralia  NSWSC 43 made it clear that section 45, as it was then drafted, was not confined to works on public roads and public reserves.
The new provisions in section 45(1)(b) affirm the Rosebanner decision and enable network operators to undertake work on any land to alter, maintain or remove existing electricity works on that land. As the works must be existing works, network operators cannot use this power to erect or install new works on such land.
Parliament shied away from specifying the nature of the rights granted under section 45(1)(b) so it is not clear if the right to undertake works on land in relation to existing electricity works effectively gives network operators an easement in relation to those works.
Nonetheless, it would seem that section 45(1)(b) might expand the operation of the Act by enabling network operators to keep electricity works on land where network operators do not have any proprietary or contractual rights in relation to those works and do not otherwise have the protection of the Act because the works were installed after 26 May 2006. What is clear is that section 45(1)(b) relates to existing electricity works and that network operators cannot use this section for the installation of new works.
Except for routine repairs and maintenance work, network operators must give councils 40 days’ notice of the proposed works and must give due consideration to any submissions made by the council in question. Councils would be well-advised to take advantage of this opportunity.