Blazey v Icon Distribution Investments Ltd and Jemena Networks (ACT) Pty Ltd Trading as ActewAGL Distribution (Energy and Water)
[2018] ACAT 10
•9 February 2018
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
BLAZEY v ICON DISTRIBUTION INVESTMENTS LTD AND JEMENA NETWORKS (ACT) PTY LTD TRADING AS ACTEWAGL DISTRIBUTION (Energy and Water) [2018] ACAT 10
EW 220/2017
Catchwords: ENERGY and WATER – location and route of a low voltage service pole and wire to neighbour’s property – whether ACAT has jurisdiction – relevant measurements at the site – trespass – whether there were safety issues – whether the respondent owed the applicant a duty of care – whether the applicant’s use of his property was impeded
Legislation cited: Actew/AGL Partnership Facilitation Act 2000 s 10
Australian Capital Territory Electricity Supply Act 1962 (Cth) s 18 (repealed)
Electricity and Water (Corporatisation) (Consequential Provisions) Act 1995 (repealed)
Electricity and Water Ordinance 1988 (Cth) (repealed)
Utilities Act 2000 ss 103, 172
List of
Texts/Papers cited: Dr P Nygh and P. Butt, (eds), Butterworths Concise Australian Legal Dictionary (Lexis Nexis, 2nd ed, 1998)
Tribunal: Senior Member Beacroft
Date of Orders: 9 February 2018
Date of Reasons for Decision: 9 February 2018
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) EW 220/2017
BETWEEN:
BOB BLAZEY
Applicant
AND:
ICON DISTRIBUTION INVESTMENTS LTD (ABN 830 730 252 24) AND JEMENA NETWORKS (ACT) PTY LTD (ABN 24 008 552 663) TRADING AS ACTEWAGL DISTRIBUTION (ABN 766 705 686 88)
Now trading as
JEMENA NETWORKS (ACT) PTY LTD (ABN 24 008 552 663) AND ICON DISTRIBUTION INVESTMENTS LIMITED (ABN 83 073 025 224) T/AS EVOENERGY (ABN 76 670 568 688).
Respondent
TRIBUNAL:Senior Member L Beacroft
DATE:9 February 2018
ORDER
The Tribunal orders that:
1.The applicant’s complaint is dismissed.
………………………………..
Senior Member L Beacroft
REASONS FOR DECISION
1.On 30 May 2017 Mr Blazey (the applicant) filed a complaint in the ACT Civil and Administrative Tribunal (the Tribunal) against Icon Distribution Investments and Jemena Networks (ACT) Pty Ltd trading as ACTEWAGL Distribution (now known as Icon Distribution Investments and Jemena Networks (ACT) Pty Ltd trading as Evoenergy) (the respondent). His complaint concerned the location and route of a low voltage service pole and wire to his neighbour’s property at a property in the suburb of Isaacs, Canberra.
2.Mr Blazey’s complaint raised the following concerns about his neighbour’s service pole and wire which he contended established that the respondent had breached various laws and requirements because:
(a)of trespasses onto his land;
(b)it is unsafe due to:
(i) its proximity to structures;
(ii) its length;
(iii) its distance from ground level;
(iv) is a fire hazard;
(c)it fails to meet a duty of care owed to the applicant; and
(d)it impedes the use of his land due to its proximity to structures and distance from ground level.
3.At the time of the hearing responsibility for the electrical service wire rested with the respondent.
4.On 11 March 1988, when the neighbour’s Isaacs property (the Property) was connected to the electricity network, the ACT was under the control of the Commonwealth of Australia and the legislation that governed electricity supply in the ACT was the Australian Capital Territory Electricity Supply Act 1962 (Cth).
5.Under the latter Act the Australian Capital Territory Electricity Authority (ACTEA) was authorised as follows:
… subject to any directions of the Minister, to supply, install, maintain or repair in the Territory, electrical equipment”[1] and “to determine the conditions upon or subject to which any electricity will be supplied by the Authority.[2]
[1] Section 18(2)(d) of the Australian Capital Territory Electricity Supply Act 1962
[2] Section 18(2)(g) of the Australian Capital Territory Electricity Supply Act 1962
6.On 1 July 1988 the Australian Capital Territory Electricity Supply Act 1962 (Cth) was replaced with the Electricity and Water Ordinance 1988 (Cth) and ACTEA was replaced with the Australian Capital Territory Electricity and Water Authority (ACTEWA). On 28 June 1995 ownership of the electricity network was passed to ACTEW Corporation Ltd.[3]
[3] under the Electricity and Water (Corporatisation) (Consequential Provisions) Act 1995
7.On 3 October 2000 the network’s ownership, including the pole and wires at issue in this case, was transferred to the respondent under the ACTEW/AGL Partnership Facilitation Act 2000.
Hearing
8.A hearing was conducted on 4 December 2017. The applicant appeared in person and the respondent was represented by Mr Michael Hope, Senior Legal Counsel of ActewAGL. The applicant and also Mr Paul Maguire, Senior Customer Service and Asset Protection Team Leader, an employee of the respondent, both gave oral evidence at the hearing.
9.Various exhibits and copies of relevant laws and cases were accepted into evidence at the hearing.
10.Before the Tribunal at the hearing were documents provided by each of the parties which had been shared with each other party prior to the hearing. The documents included submissions and witness statements filed by each party in response to an order and directions dated 29 August 2017.
Contested Issues
Whether ACAT has jurisdiction and whether there is a breach
11.The table at section 172 of the Utilities Act 2000 outlines the jurisdiction of the ACAT in relation to energy and water complaints.
Item Applicant Complaint 1 Consumer affected by contravention Contravention of customer contract, or customer retail contract or customer connection contract made under the National Energy Retail Law (ACT), by a utility 2 Consumer affected by contravention Contravention of an industry code dealing with utility service standards by a utility 3 Consumer A utility fails to provide a utility service to consumer or withdraws a utility service from consumer, and failure or withdrawal causes substantial hardship, or is likely to cause substantial hardship, to consumer 4 Person affected by contravention Contravention of s51 (Protection of personal information) by a utility 5 Person affected by contravention Contravention by a utility or a regulated utility of an obligation in relation to its network operations under this Act or the Utilities (Technical Regulation) Act 2014 6 Person affected by act or omission Act or omission of an authorised person for a utility or regulated utility in relation to its network operations under this Act or the Utilities (Technical Regulation) Act 2014 7 Person on whom charge imposed Capital contribution charge imposed under s101
12.The respondent contended during the proceedings that ACAT has jurisdiction to hear the matter only under section 172, item 5 and advised that section 103 of the Utilities Act 2000 outlines the definition of network operations.[4]
[4] Section 103 of the Utilities Act 2000, outlines the meaning of network operations as “… work carried out by a utility, or an authorised person for a utility, under this part in the exercise of its functions under this Act.”
13.However the respondent disputed that there had been a breach under section 172 for the reasons referred to later below.
Relevant measurements at the site
14.The measurements taken by Mr McGuire who appeared as a witness for the respondent were contested by the applicant. In Mr McGuire’s evidence he advised as follows:
(a)The service wire is a 415V insulated cable.
(b)He “stepped out” the measurement for the service line to the Property, as approximately 35 meters in length.
(c)Pole 14171 is offset 450mm from the centre of the pole to the adjacent side boundary.
(d)The measurements below were taken using an insulated measuring pole and where appropriate a measuring tape:
(i) at the point of attachment of the Network to the house on the Property the line is 1.75 metres from the adjacent side boundary with the applicant’s property;
(ii) at the point of attachment, the Network is 3.9 metres in height above ground level;
(iii) the lowest point of the Network from ground level is 3.45 metres;
(iv) the witness has “stepped out” the distance where the network crosses the boundary between the Property and the applicant’s property as 13 metres from the rear boundary of the Property;
(v) where the network crosses this boundary, the height of the Network from the ground is 4.5 metres; and
(vi) there is a 1.8 metre tall shed, six metres from the rear boundary of the Property. The height of the network above ground level at this point is 5.9 metres.
15.During the hearing, the applicant disputed a number of the measurements including:
(a)the measurement of the service line to the Property which he believes is 36 metres in length[5];
(b)at the point of attachment on the Property the line is 1.68 metres from the adjacent side boundary with the applicant’s property;
(c)the applicant believes that the distance where the network crosses the boundary between the Property and the applicant’s property is 14 metres from the rear boundary of the Property; and
(d)the line is just over 1 metre from his rear boundary and 2-3 metres above his natural ground level.
Is the applicant’s complaint made out?
[5] As per G9, paragraph 9 in his submission
Trespass
16.Butterworths Concise Australian Legal Dictionary[6] outlines the following definitions of trespass:
Trespass - wrongful entry on to the land of another, without the consent of the person who has rightful possession of the land.
Trespass ab initio - Trespass from the beginning. When a person who enters another's premises with lawful authority abuses that authority by committing an unlawful act outside the scope of the authority, the whole of his/her entry becomes wrongful or trespassory from the beginning.
Trespass to land - The intentional or negligent act of an individual which directly interferes with another individual’s exclusive possession of land without lawful justification.
[6] Dr P Nygh and P. Butt, (eds), Butterworths Concise Australian Legal Dictionary, 2nd Edition, 1998, pages 433 to 434
17.The Tribunal finds that there are grounds on which the respondent is able to maintain the current electricity supply arrangement at the property and accepts the respondent’s contentions in this regard as summarised below.
18.The ACT Treasurer made a declaration under section 10(7) of the Actew/AGL Partnership Facilitation Act 2000 concerning all network facilities forming part of the ACTEW Electricity Distribution Infrastructure that are affixed to non ACTEW land and that vest in ACTEW Corporation Limited. Section 10(7) of the Actew/AGL Partnership Facilitation Act 2000 provided:
(7) A corporation in which a facility has vested has, by force of this section, the following rights in relation to a network facility to which this section applies:
(a) to have the facility (including any lines, pipes, equipment and any other thing ancillary to any other part of the facility) remain on, under or over the land for the provision of utility services;
(b) for that purpose, to use, or continue to use, the facility:
(c) to enter and occupy land on, above or under which the facility is located, and to undertake work on that land, to maintain the facility.
19.Given the above, the applicant’s contention that the line trespasses his land is not made out as the respondent has lawful grounds for its assets to remain in situ.
Safety issues
20.The applicant contended that the service line to the property does not adhere to the current Service and Installation Rules which were released on May 2015, and therefore the line is unsafe.
21.The applicant’s concerns included that the line is longer than the current standard of 30 metres and the line dips to an unacceptable height from the ground. Further the applicant contended that the wire is too close to existing structures.
22.The measurements by Mr McGuire indicated that the service line is approximately 35 metres in length; the applicant’s measurements put the length of the service line at 36 metres. The relevant part of Rule 4.2 of the Service and Installation rules (the rules) states:
Underground services will also be required where: The service would be greater than 30 meters in length.
23.The respondent provided evidence at Annexure C of their affidavit, that the current requirements for the height of the wire is 2.7 meters from ground level. The measurements of Mr McGuire indicate that the lowest height of line is 3.45 metres from ground level, while the applicant states at point 7 in his submission that “the height of the line is only around 4 metres for half its length …”.
24.In the end any dispute about exact measurements are not relevant since the current Service and Installation Rules were not in force when the wire was installed at the Property, and due to the legislative provisions and instruments summarised earlier (for example, the Actew/AGL Partnership Facilitation Act 2000[7]) the rules do not apply to the existing pole and wires in this case.
[7] Section 10(7) of the Actew/AGL Partnership Facilitation Act 2000
25.The applicant further contended that the line poses a fire risk and other risks to properties. Mr Blazey advised during the hearing that the wire had deteriorated in the past. However, Mr Blazey did not provide evidence of safety issues, he only asserted that safety was an issue. If there was evidence of safety issues the Tribunal would have considered these carefully and considered its jurisdiction to make orders to overcome these. However, this was not necessary in this case.
Duty of care
26.This aspect of the complaint raises issues of jurisdiction under the Utilities Act 2000, although the Tribunal may have jurisdiction under other legislation. As discussed earlier, the property was connected to the electricity network on 11 March 1988, and the legal entity of the respondent did not exist at that point in time.
27.In order to make out an argument that the respondent holds a duty of care to the applicant, the negligence of the respondent would need to proven – however, the respondent was not the responsible entity at the time that the electricity network was installed. Further, given the length of time (now 30 years) an argument of laches and that the limitation period had expired.
28.In any case, the Actew/AGL Partnership Facilitation Act 2000[8] and related laws and instruments summarised earlier allow the respondent to maintain the line in its current location. Further, the Tribunal accepts the respondent’s argument that these latter laws and instruments had the effect of curing any defects at the time of installation, if indeed there were any. The Tribunal therefore dismisses this aspect of the applicant’s complaint due to a lack of jurisdiction under the Utilities Act 2000 and due to the absence of evidence to make out negligence against the respondent.
Impeding the use of the applicant’s property
[8] Section 10(7) of the Actew/AGL Partnership Facilitation Act 2000
29.The applicant contended that due to the issues he raised about the wires, he was impeded in using his property fully. However, by the end of the proceeding he advised that he had been able to build a carport towards the rear of his property. The Tribunal finds that this aspect of the applicant’s complaint is not made out due to lack of evidence.
Decision
30.The complaint is not made out, and therefore no remedy is available to the applicant.
Order
31.The applicant’s complaint is dismissed.
………………………………..
Senior Member L Beacroft
HEARING DETAILS
FILE NUMBER:
EW 220/2017
PARTIES, APPLICANT:
Bob Blazey
PARTIES, RESPONDENT:
Icon Distribution Investments Ltd (ABN 830 730 252 24) and Jemena Networks (ACT) Pty Ltd (ABN 24 008 552 663) trading as ACTEWAGL Distribution (ABN 766 705 686 88)
Now trading as:
Jemena Networks (ACT) Pty Ltd (ABN 24 008 552 663) and Icon Distribution Investments Limited (ABN 83 073 025 224) t/as Evoenergy (ABN 76 670 568 688).
COUNSEL APPEARING, APPLICANT
N/A
COUNSEL APPEARING, RESPONDENT
N/A
SOLICITORS FOR APPLICANT
N/A
SOLICITORS FOR RESPONDENT
Michael Hope, ActewAGL
Distribution
TRIBUNAL MEMBERS:
Senior Member L Beacroft
DATES OF HEARING:
4 December 2017
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