On 29 July 2014, ActewAGL sought leave from the Australian Competition Tribunal (Tribunal) to apply for a review of the AER's final cost pass through decision.

Subsequently, it was identified that the transitional Chapter 6 of the NER, not the current Chapter 6, applied to ActewAGL’s pass through application. Relevantly, the transitional Chapter 6 of the NER does not contain the same provisions allowing the AER to extend the 60 business day period in which it is to make a cost pass through determination. The transitional Chapter 6 provides that if the AER has not made a decision within this period, it is deemed to have accepted the application.

As ActewAGL submitted its pass through application on 1 November 2013, the AER was required to make its determination by no later than 30 January 2014. As the AER did not do so, clause 6.6.1(e) of the transitional Chapter 6 operates to deem the acceptance of the pass through, and the decision made by the AER on 4 July 2014 is of no effect.

Consequently, on 25 August 2014, the Tribunal granted ActewAGL leave to withdraw its application to review the AER’s decision.