Transurban Limited

Transurban’s undertaking

On 30 August 2018, the ACCC announced it had accepted an undertaking (the Transurban Undertaking) from Transurban pursuant to s 87B of the Competition and Consumer Act 2010 (Cth) in connection with Sydney Transport Partners’ proposed acquisition of a majority interest in the WestConnex motorway (the Proposed Acquisition).  The Sydney Transport Partners are made up of Transurban, AustralianSuper, CPPIB and Tawreed (the later three referred to as the STP Consortium members).

The ACCC concluded that, in the absence of the Transurban Undertaking, the Proposed Acquisition raises competition concerns that may have the effect, or be likely to have the effect, of substantially lessening competition for future toll road concessions in NSW.

The ACCC’s concerns are that:

1. Transurban Group, through its interests across an extensive network of toll road concessions in NSW, has competitive advantages compared with firms without an established network who face barriers to competing successfully for future NSW toll road concessions. These competitive advantages would be enhanced through the Proposed Acquisition;

    

2. those competitive advantages include:
    
   1. access to traffic data not generally available;
   2. greater confidence in its traffic modelling and forecasting accuracy; and
   3. an enhanced ability to satisfy the NSW Government’s uniqueness criterion for assessing unsolicited proposals that provides Transurban with an enhanced ability to be successful with unsolicited proposals for new toll road concessions; and
       
3. in the absence of the Proposed Acquisition, an alternative acquirer of WestConnex would establish a significant presence in NSW for the operation of toll roads, with comparable competitive advantages to Transurban Group, and would have the ability to compete aggressively against Transurban for Future NSW Toll Road Concessions.

The objective of the Transurban Undertaking is to address the ACCC’s competition concerns as set out above that would otherwise arise as a consequence of the Proposed Acquisition. In particular, the objective of the Transurban Undertaking is to provide other bidders who compete for future toll road concessions in NSW with access to traffic count data that Transurban Group has as a result of its extensive interests in toll road concessions, and ensuring that any entity which is a potential bidder or bidder for a Future NSW Toll Road Concession (including its advisors and consultants) has free and timely access to, and a right to use, Specified Traffic Data collected by Transurban Group from the Transurban NSW Toll Roads sufficient to support the development and operation of a model for forecasting future traffic and revenue in respect of that Future NSW Toll Road Concession.

The Transurban Undertaking aims to achieve this objective by placing obligations on Transurban to:

1. publish Specified Traffic Data on a quarterly basis;
2. update the Specified Traffic Data, in the event the NSW Government announces a Future NSW Toll Road Concession Sale Process six or more weeks before Specified Traffic Data is due to be published under the quarterly process;
3. correct any identified errors in the published Specified Traffic Data;
4. provide for the effective oversight of Transurban’s compliance with the Transurban Undertaking; and
5. provide for regular reviews of the Transurban Undertaking to ensure that the it continues to meet its objectives.

Transurban publishes Specified Traffic Data pursuant to the Transurban Undertaking at https://nswtollroaddata.com. 

The STP Consortium members’ undertakings

In order for Transurban to access, use and publish the category a) Specified Traffic Data (as defined in the Transurban Undertaking) for WestConnex, Transurban required consents from each of the other STP Consortium members.

Consents from the STP Consortium members have been secured by way of section 87B Undertakings to the ACCC. Accordingly, on 29 August 2018, the ACCC accepted separate undertakings from each of AustralianSuper, CPPIB and Tawreed pursuant to section 87B of the Competition and Consumer Act 2010 (Cth).

The objective of the STP Consortium members’ undertakings is to support the operation of the Transurban Undertaking, by ensuring the STP Consortium members enable and facilitate, and do not hinder or prevent Transurban’s compliance with the Transurban Undertaking.

The STP Consortium members’ undertakings achieve this objective by placing obligations on the STP Consortium members to:

1. consent to Transurban accessing and using Specified Traffic Data for WestConnex in accordance with the Transurban Undertaking;
2. consent to Transurban publishing Specified Traffic Data for WestConnex in accordance with the Transurban Undertaking;
3. not prevent or hinder Transurban accessing and using Specified Traffic Data for WestConnex in accordance with the Transurban Undertaking;
4. not prevent or hinder Transurban publishing Specified Traffic Data for WestConnex in accordance with the Transurban Undertaking; and
5. provide for the effective oversight of the STP Consortium member’s compliance with their individual Undertaking.

The CPPIB undertaking applies the above obligations to CPPIB in relation to the Westlink M7 Motorway and NorthConnex (in addition to WestConnex).

On 20 September 2021, the NSW Government announced that the STP Consortium was the successful bidder for the successful bidder for the remaining  49 per cent interest in WestConnex (the Completed Acquisition).  Caisse de dépôt et placement du Québec (CDPQ) subsequently became a member of the STP Consortium.

To support the Transurban Undertaking (outlined above) the ACCC accepted undertakings given by CDPQ and The Trust Company (Australia) Limited as trustee of C Roads Asset Trust and C Roads Project Trust pursuant to s87B of the Competition and Consumer Act 2010 (Cth) in connection with the Completed Acquisition.

The undertakings given by CDPQ and The Trust Company (Australia) Limited are consistent with the undertakings given by the other STP Consortium members.