2.20.3  Compensation and relief

Provided Project Co has complied with its general interface requirements, Project Co is entitled to a Compensable Extension Event and Compensable Intervening Event on the occurrence of any: 

•  Proximate Interface Works but only to the extent that:

-  those works are not works of the relevant Interface Party undertaken regularly as part of its business as usual, day to day works, services or functions which ought reasonably have been foreseeable at the date of the Project Deed by a person in the position of Project Co exercising Best Industry Practice;

-  the nature, extent or impact of the works on the Project Activities were not otherwise reasonably foreseeable at the date of the Project Deed by a person in the position of Project Co exercising Best Industry Practice; and

-  those works are performed in a manner which is inconsistent with the performance standards and practices that would reasonably be expected of a prudent, experienced and competent person undertaking works, services, activities or functions similar to the relevant Proximate Interface Works; and

•  Site Interface Works but only to the extent that:

-  those works are not part of the works of the relevant Interface Party undertaken regularly as part of its business as usual, day to day works, services or functions which ought reasonably have been foreseeable at the date of the Project Deed by a person in the position of Project Co exercising Best Industry Practice; and

-  the nature, extent or impact of the works on the Project Activities were not otherwise reasonably foreseeable at the date of the Project Deed by a person in the position of Project Co exercising Best Industry Practice.

In general, Project Co's relief is limited to circumstances where the relevant Interface Works are not functions or activities that Project Co could reasonably foresee at the date of the Project Deed. This position requires Project Co to bear the risk of ordinary, day to day works or activities of Interface Parties throughout the Term. Given that Project Co controls and manages the Project Area, Project Co is seen to be in a better position to manage the interface risk for foreseeable Interface Works.

The threshold for relief and compensation for Proximate Interface Works is higher than Site Interface Works. Project Co must demonstrate that any Proximate Interface Works were performed negligently, whereas this requirement does not apply to relief and compensation for Site Interface Works. The rationale for this difference is that the level of risk retained by the State should be greater where the Interface Party is working on the Site where the risk of disruption to the Works or Services is greater.

Project Co is entitled to an extension of time (as an Extension Event) and relief from performance (as an Intervening Event) on the occurrence of any breach of a Direct Interface Deed by a Direct Interface Party to ensure that Project Co will not be in breach of the Project Deed as a result of such a breach. However, the PV Standard Project Deeds assumes that Project Co will be able to seek recourse against the Direct Interface Party under the Direct Interface Deed, notwithstanding relief from default and performance is provided by the Extension Event or Intervening Event (as applicable). Accordingly:

•  Project Co is not entitled to any compensation from the State in respect of any Direct Interface Works; and

•  during the Operational Phase, the Service Payment will still be subject to Abatement during the period of any suspension of the Services as a result of any breach of a Direct Interface Deed by a Direct Interface Party.

The differences between the various types of Interface Works are explained in the table below.