Queensland’s new solar regulations – invalidity is confirmed
WHO SHOULD READ THIS
- Solar farm owners, operators and contractors.
THINGS YOU NEED TO KNOW
- The Electrical Safety (Solar Farms) Amendment Regulation 2019 (Qld), which came into effect on 13 May 2019 was challenged in the Supreme Court of Queensland, with the Supreme Court ruling on 29 May 2019 that it is invalid.
- The Court of Appeal upheld this decision on 25 June 2019, affirming that section 73A of the Regulation is invalid.
WHAT YOU NEED TO DO
- Licensed electricians are not required to perform certain types of work in relation to the installation of PV modules on solar farms.
On 29 May 2019, the Supreme Court of Queensland handed down its decision in response to an application brought by Maryrorough Solar Pty Ltd (Maryrorough), which sought a declaration that section 73A of the Electrical Safety Regulation 2013 (Qld) (the Regulation) is invalid. The decision was subsequently upheld by the Court of Appeal on 25 June 2019.
Background
On 13 May 2019 the Electrical Safety (Solar Farms) Amendment Regulation 2019 (Qld) inserted section 73A into the Regulation, which requires work on solar PV modules to be performed by licensed electrical workers and for the installation of PV modules to comply with AS/NZS 3000.
Importantly, under section 73A (3) of the Regulation, ‘work’ on a PV module is broadly defined and includes:
- work on the PV module that would be electrical work, if the PV module were electrical equipment;
- locating, mounting or fixing the PV module in place at a solar farm; and
- removing the PV module from a place at a solar farm.
Note: the definition of ‘work’ does not include moving, packing or unpacking the PV modules.
Section 73A (3) of the Regulation applies to solar farms that generate electricity with a total rated capacity of at least 100kW or are operated for the purpose of conducting business.
Maryrorough’s Application
Maryrorough owns the project rights to develop, build, connect and operate the Brigalow solar project (the Project) and brought an application in the Supreme Court of Queensland to contest the validity of section 73A of the Regulation.
Part of the Project involved the location, mounting, fixing and installation of 104,690 PV modules. Maryrorough had previously contracted for this work to be undertaken by workers that were not licensed electrical workers and accordingly, was impacted by section 73A of the Regulation, as licensed electrical workers were now required to locate, mount and fix the PV modules.
As a result of the Regulation, Maryrorough was to incur an additional cost of $2,626,000 to locate, mount and fix the PV modules on the Project using licensed electrical workers.
Decision of the Supreme Court of Queensland
Bradley J found in favour of Maryrorough, determining that section 73A was invalid, stating that:
‘.. [section 73A could not] properly be characterised as a provision that achieves the general purpose of the [Electrical Safety Act 2002 (Qld) (the Act)] by imposing a duty on persons who may affect the electrical safety of others by their acts or omissions…’[1]
His Honour further held that the Regulation could not properly be characterised as a ‘benchmark’ aimed at ensuring electrical safety and could not otherwise be construed as a separate way of achieving the Act’s general safety purpose alongside the specific licensing provisions.[2]
It was concluded that section 73A was made beyond the Queensland Government’s power and therefore, the entire section of the Regulation was invalid.[3]
Decision of the Court of Appeal
The Queensland Government appealed the decision handed down by the Supreme Court of Queensland.
On 25 June 2019, the Court of Appeal upheld the decision of Bradley J and affirmed the invalidity of section 73A of the Regulation.
Responses to the decision
The decision is viewed as a victory by many stakeholders in the renewable energy sector in Queensland and Australia more broadly, as there were widespread concerns in relation to the increased sourcing and labour costs that flowed from section 73A of the Regulation.
The recent decision of the Court of Appeal provides stakeholders involved in solar PV projects with greater certainty regarding the obligations imposed by the Regulation.
Any participants in the Queensland construction and infrastructure sector should be aware of the licensing requirements that exist, and that there are sanctions imposed for non-conformance. Our specialist team at McCullough Robertson can assist with specific queries in this regard.
The decisions of the Courts are available for download here:
For further information on any of the issues raised in this alert please contact our Authors below.
This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.
