City of Norwood, Payneham & St Peters v ETSA Utilities - [2008] SASC 114

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
CITY OF NORWOOD, PAYNEHAM & ST PETERS v ETSA UTILITIES
[2008] SASC 114
Judgment of The Honourable Justice Gray
28 March 2008
EQUITY - EQUITABLE REMEDIES - INJUNCTIONS - INTERLOCUTORY INJUNCTIONS - SERIOUS QUESTION TO BE TRIED
EQUITY - EQUITABLE REMEDIES - INJUNCTIONS - INTERLOCUTORY INJUNCTIONS - BALANCE OF CONVENIENCE
ENVIRONMENT AND PLANNING - TREES AND VEGETATION
Application for interlocutory injunction pending trial – application to restrain defendant from conducting vegetation clearance from street trees within applicant’s council area, other than in accordance with requirements of Electricity (Principles of Vegetation Clearance) Regulations 1996 (SA) and Australian Standard AS 4373-2007 “Pruning of Amenity Trees” – consideration of two stage test to be applied for interlocutory injunction – whether applicant established sufficient likelihood of success at trial to justify preservation of status quo pending trial – whether balance of convenience justifies injunction – consideration of legislative scheme of Electricity Act 1996 (SA) and Electricity (Principles of Vegetation Clearance) Regulations 1996 (SA) – consideration of affidavit evidence.
Held (refusing the application): applicant failed to establish a sufficient likelihood of success at trial to justify injunctive relief – balance of convenience favours refusal of injunctive relief.
Electricity Act 1996 (SA) s 4; s 55(1); s 55(6); Pt 1 Div 3; Electricity (Principles of Vegetation Clearance) Regulations 1996 (SA) reg 5, Sch 1, referred to.
Australian Broacasting Corporation v O’Neill (2006) 227 CLR 57; Chicco v Corporation of the City of Woodville (1990) Aust Torts Reports 81-028, considered.

CITY OF NORWOOD, PAYNEHAM & ST PETERS v ETSA UTILITIES
[2008] SASC 114
Civil
GRAY J.
Introduction

This is an application for an interlocutory injunction pending trial.
The City of Norwood, Payneham and St Peters seeks an injunction restraining ETSA Utilities from conducting vegetation clearance work from street trees within the Council area other than in accordance with the requirements of Regulation 5 and Schedule 1 of the Electricity (Principles of Vegetation Clearance) Regulations1996 (SA), and with the requirements of Clauses 5.3, 5.4, 6.2, 7.3.2 and 7.3.6 of the Australian Standard AS 4373-2007 “Pruning of Amenity Trees”.
The Council does not seek to prevent vegetation clearance work from proceeding but seeks an order for ETSA to meet the foregoing requirements before doing so. Although expressed negatively, what in substance has been sought could be described as a mandatory injunction directing ETSA to meet its statutory vegetation clearance obligations in accordance with particular specifications and, in particular, in compliance with what is said to be the relevant Australian Standard.
The parties are agreed as to the legal principles governing the granting of an interlocutory injunction. In particular, both parties relied on the recent formulation of those principles in the High Court decision of Australian Broadcasting Corporation v O’Neill.[1]Without discussing those principles in detail, it is to be observed two questions arise for consideration. The first is that the party seeking the injunction must show a sufficient likelihood of success at trial to justify, in the circumstances, the preservation of the status quo pending trial. Further, a second inquiry is to be undertaken relating to the balance of convenience.[2]
[1] Australian Broacasting Corporation v O’Neill (2006) 227 CLR 57.
[2] Australian Broacasting Corporation v O’Neill (2006) 227 CLR 57 at [65] (Gummow and Hayne JJ).
Legislative Scheme
ETSA has an obligation, as an electricity entity, to undertake vegetation clearance work to clear around powerlines. The relevant provisions of the legislative scheme comprising the Electricity Act1996 (SA) and the Electricity (Principles of Vegetation Clearance) Regulations1996 (SA) have not been the subject of judicial interpretation. This is not the appropriate occasion to undertake a full review of the legislative scheme, however it should be observed that difficult questions of interpretation may arise relevant to the resolution of the dispute in these proceedings. It may however be noted that the obvious purposes of the legislative scheme include the ensuring of public safety, as well as the maintaining of power supply.
Section 55(1) of the Electricity Act1996 (SA) imposes a positive duty on ETSA, as an electricity entity, to undertake vegetation clearance work in accordance with the requirements of the relevant regulations. The section provides as follows:[3]
(1)     An electricity entity has a duty to take reasonable steps—
(a)to keep vegetation of all kinds clear of public powerlines under the entity's      control other than powerlines in relation to which the duty to keep vegetation      clear is conferred on a council under a vegetation clearance scheme; and
(b)     to keep naturally occurring vegetation clear of private powerlines under the                   entity's control,
in accordance with the principles of vegetation clearance.
[3] It should be noted that “principles of vegetation clearance” is defined in section 4 of the Electricity Act 1996 (SA) to means the regulations dealing with the clearance of vegetation from, or the planting or nurturing of vegetation near, public and private powerlines.
The Electricity (Principles of Vegetation Clearance) Regulations1996 (SA) are couched in terms of the clearance work to be undertaken being reasonable, having regard to the need for clearance. The regulations also provide detailed instruction about the extent of clearances and, in particular, minimum clearances.
The legislative scheme contemplates agreements being reached between electricity entities and Local Councils as to how relevant vegetation clearance work is to be undertaken. The legislative provisions provide for the engagement of a Technical Regulator to help parties resolve disputes.[4] Although the legislation has now been in force for more than a decade, it appears that there has been limited use of these provisions. In the present case, discussion between ETSA and the Council has not produced an agreement as to the vegetation clearance process to be followed.
[4] See Part 1, Division 3 of the Electricity Act 1996 (SA).
Consideration of the Application
Extensive affidavit evidence has been placed before the court by both parties and that affidavit evidence has included the provision of experts reports. There are differences of opinion between the experts as to the appropriateness of tree pruning undertaken to date in the Council area and it is not practicable to resolve these disputes through the interlocutory process. Equally, the parties’ respective contentions about the proper interpretation of the legislation will be best resolved at trial.
The identification of the status quo in the present case is not easy to define. On one view, the status quo is ETSA meeting its statutory obligations and the tree pruning work continuing. ETSA claims, and the affidavits filed in opposition to the injunctive proceedings support a conclusion that ETSA is complying with its obligations.
The Council asserts that ETSA should continue to meet its obligations with respect to vegetation clearance, but should do so in accordance with the relevant Australian Standard. A difficulty that confronts the Council is that the Australian Standard has not been, either expressly or by necessary implication, incorporated into the regulations. That is not to say that the Standard had no relevance - it plainly does have a relevance. It undoubtedly provides guidance.[5] Whether it does more is problematic. That is the question to be resolved following trial.
[5] See Chicco v Corporation of the City of Woodville (1990) Aust Torts Reports 81-028.
Both parties agreed that whatever the outcome of this application there should be a trial at the earliest available date. Fortunately for the parties, this can be accommodated, and it appears that it is probable the matter can be listed for full hearing in April of this year.
The parties have agreed that the affidavits filed and the arguments advanced on this application have put each party on notice of the other’s case. The parties have agreed that pleadings can be prepared and filed within a matter of days, that informal discovery can be made promptly, and that unless something quite unexpected arises, the action can proceed to trial in April of this year.
I have reached the conclusion that the plaintiff has not shown a sufficient likelihood of success to justify, in the circumstances. the injunctive relief sought. If the injunction sought was ordered, ETSA would be obliged to comply with the process of vegetation clearance according to a Standard that does not form part of the Electricity (Principles of Vegetation Clearance) Regulations.
In so far as compliance with the regulations is sought, the proposed injunction does no more than reiterate ETSA’s obligations at law. It is to be borne in mind that section 55(6)[6] of the Electricity Act may limit Council’s rights to proceed with respect to its complaints – it may be left to seek relief under the Electricity Act and Electricity (Principles of Vegetation Clearance) Regulations.
[6] Section 55(6) provides: “This Part operates to the exclusion of common law duties, and other statutory duties, affecting the clearance of vegetation from a public powerline or a private powerline, and so operates with respect to vegetation clearance work whether the work is carried out by the person having the duty under this Part to keep vegetation clear of the powerline or in pursuance of a delegation or by a contractor or other agent.”
I am also of the view that the balance of convenience favours the refusal of injunctive relief. The evidence filed suggests that ETSA accepts its statutory obligations and intends to meet those obligations in a responsible manner. ETSA is prepared to provide the Council with notice in advance of its pruning program so that Council officers may be able to inspect the proposed work in advance and the very process followed and undertaken.
ETSA is aware of its legal obligations, intends to meet those obligations, and is on notice that the Council will be monitoring the manner in which it does so. The extent to which any breach of duty may occur will be severely limited by the early listing of the action for trial.
Conclusion
Having regard to the foregoing reasons I order that:
-the order granting interim relief is vacated forthwith;
-the application for interlocutory injunctive relief is dismissed; and
-there be an early trial.