Hughes v Evoenergy (Energy and Water)
[2022] ACAT 85
•14 October 2022
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
HUGHES v EVOENERGY (Energy and Water) [2022] ACAT 85
EW 86/2021
Catchwords: ENERGY AND WATER – complaint – location of electricity network assets
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 9
ACTEW/AGL Partnership Facilitation Act 2000 s10
Utilities Act 2000 ss 55, 87, 92, 172, 176, 178
Utilities (Technical Regulation) Act 2014 ss 31, 32
Subordinate
Legislation cited: AS/NZS 7000-2016 Overhead Line Design
Evoenergy Electrical Safety Rules
Evoenergy Service and Installation Rules for Connection to the Electricity Distribution Network
Cases cited:JS v ActewAGL [2004] ACTESCC 2
Tribunal:Senior Member Prof T Foley
Date of Orders: 14 October 2022
Date of Reasons for Decision: 14 October 2022
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) EW 122/2021
BETWEEN:
JANET HUGHES
Applicant
AND:
JEMENA NETWORKS (ACT) PTY LTD (ABN 24 008 552 663) AND ICON DISTRIBUTION INVESTMENTS LTD (ABN 83 073 025 224) TRADING AS EVOENERGY (ABN 76 670 568 688)
Respondent
TRIBUNAL:Senior Member Prof T Foley
DATE:14 October 2022
ORDER
The Tribunal is satisfied that the applicant’s complaint should be dismissed pursuant to section 176(1)(h) of the Utilities Act2000.
The Tribunal finds that should the applicant make a future complaint about the matters complained of in this matter, that complaint should be summarily dismissed pursuant to section 176(1)(f) of the Utilities Act2000, as already having been dealt with adequately by the ACAT.
………………………………..
Senior Member Prof T Foley
REASONS FOR DECISION
Dr Janet Hughes (the applicant) made a complaint on 5 March 2021 about a utility, Jemena Networks (ACT) Pty Ltd (ABN 24 008 552 663) and Icon Distribution Investments Ltd (ABN 83 073 025 224) trading as Evoenergy (ABN 76 670 568 688) (the respondent) pursuant to Part 12 of the Utilities Act2000 (Utilities Act). In April 2021, the complaint was referred to the Tribunal for hearing.
Jurisdiction to hear a complaint application is conferred on the Tribunal by section 172 of the Utilities Act which is an authorising law for the purposes of section 9 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act). The Tribunal has power under section 176 of the Utilities Act to dismiss the complaint on various grounds, and power under section 178 if it is satisfied in relation to a complaint to give written directions to the respondent.
In the reasons below, a reference to ‘ACAT’ or ‘tribunal’ refers to the ACT Civil and Administrative Tribunal generally, whereas ‘Tribunal’ refers to the member who heard the application.
The hearing
The matter was heard on 21 and 22 February 2022. The Tribunal had before it the documents provided by the respondent concerning the complaint, witness statements and the written submissions of the parties. The applicant was self-represented. The respondent was represented by Mr I Male, a solicitor.
The applicant and her husband, Dr Rupert Summerson, gave oral evidence, and they were subject to cross examination. Ms Jacqueline Roper, Customer Resolution Officer, and Mr Michael Lloyd, Customer Technical Services Manager, gave evidence on behalf of the respondent and were subject to cross examination. The applicant and respondent made oral submissions and responded to questions of the Tribunal.
At the end of the second day of the hearing, the parties sought and were granted an adjournment of three months in order to allow for discussion of “a number of working proposals that are under consideration”. Regrettably those discussions came to nought.
The matter was relisted for directions on 29 June 2022. At that time, the Tribunal was advised the parties had been unable to reach a resolution (save that the wires between poles 60019 and 60020 had been re-tensioned in the interim) and the matter reverted to the Tribunal for decision. On that date, the Tribunal reserved its decision and indicated it would provide written reasons. These are those reasons.
Background
The applicant owns and resides at a property in Barton which she purchased jointly with her husband in December 1996 (the property).
Evoenergy is that part of the ActewAGL Distribution Partnership which manages the electricity distribution infrastructure in the ACT. By licence granted by the Independent Competition and Regulatory Commission on 29 June 2001 as varied, the respondent is licensed to provide electricity transmission, distribution, and connection services under the Utilities Act.
A number of the respondent’s network assets sit on or in close proximity to the applicant’s property. This is a consequence of the network layout inherited by the respondent from the Commonwealth. In this part of Barton it consists of a back yard reticulation system where overhead wires and poles are sited in and across residential properties. The matters in dispute in this matter essentially related to the same network assets on the property that were considered in two prior complaints. In 2004, a complaint was referred to the Essential Services Consumer Council.[1] That complaint concerned safety and ancillary factors relating to electricity wires and poles bordering the applicant’s property, specifically proposed work between poles 60020 and 60021. The Council found the works were necessary but conceded they would have the effect of reducing the applicant’s amenity due to visual intrusion. The Council decided the respondent had not contravened its network operations responsibilities under the Utilities Act and allowed the works.[2] In 2016, a second complaint was referred to the ACAT relating to relocation of pole 60019, the safety of support structures on pole 60021 and the respondent’s right of access for maintenance and repair.[3] Orders were made for negotiations and repair work to be undertaken and the application was subsequently dismissed by the tribunal on 8 March 2017.
[1] JS v ActewAGL [2004] ACTESCC 2
[2] JS v ACTEWAGL [2004] ACTESCC2 at [21]
[3] Hughes v Icon Distribution Investments Limited ABN 83 073 025 224 and Jemena Networks (ACT) Pty Ltd ABN 24 008 552 663 trading as ACTEWAGL Distribution ABN 76 670 568 688 EW180/2016
The applicant says this current complaint relates to “new problems arising from the positioning of the power infrastructure”.[4]
The relevant law
[4] Applicant’s initial email of complaint to the ACAT dated 5 March 2021
The Utilities Act makes a number of provisions as to the jurisdiction and powers of the ACAT with respect to complaints about a utility.
Section 172 provides:
172 ACAT applications
A person (the complainant) mentioned in table 172, column 2 may apply to the ACAT in relation to a matter (the complaint) mentioned in column 3 in relation to the complainant.
Table 172ACAT applications
column 1
item
column 2
complainant
column 3
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 s 51 (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 s 101
Sections 176 and 178 provide powers to the ACAT with respect to complaints:
176 Dismissal of complaints about utilities
(1) The ACAT may dismiss a complaint about a utility if satisfied that—
(a)this part does not apply to the matter complained of; or
(b)the complaint has been withdrawn or abandoned (for example, because the complainant fails to proceed with the complaint within a reasonable time); or
(c)the complaint relates to a matter, or the last of a series of matters, that happened more than 1 year before the day the complaint was made; or
(d)if the registrar makes an inquiry under section 175 of the person making the complaint—the person has not responded to the inquiry; or
(e)the complainant has not made reasonable efforts to resolve the matter complained of with the utility, particularly in accordance with the utility’s complaint handling procedures; or
(f)the matter complained of has already been dealt with adequately by the ACAT or otherwise; or
(g)a remedy more appropriate than action under this part is readily available to the complainant; or
(h)it is otherwise appropriate to do so.
NoteThe ACAT may dismiss an application if it is frivolous or vexatious, lacking in substance or otherwise an abuse of process (see ACT Civil and Administrative Tribunal Act 2008, s 32).
(2) If the ACAT dismisses a complaint, it must give each party written notice of the dismissal, setting out its reasons for the dismissal.
178 ACAT decisions
(1) This section applies if the ACAT is satisfied, in relation to a complainant, that—
(a)the respondent has—
(i)contravened a customer contract; or
(ii)contravened section 51 (Protection of personal information); or
(iii)contravened an obligation under this Act in relation to its network operations; or
(b)the respondent has caused, or would cause, substantial hardship by failing to provide, or withdrawing, a utility service; or
(c)an authorised person for the respondent has acted improperly in relation to network operations; or
(d)a capital contribution charge, of an amount of not more than $10 000, imposed by the respondent is excessive.
2) Without limiting the orders the ACAT may make, the ACAT may—
(a)for a complaint that a capital contribution charge is excessive—give a direction under section 182 (Reviewable capital contribution charges); or
(b)in any other case—
(i)give the written directions to the respondent that it considers necessary requiring the respondent to remedy the matter mentioned in subsection (1); or
(ii)give another direction under this division; or
(iii)make a declaration under this division.
(3) A respondent must comply with a direction given to it under this division.
As to the authority of the respondent to enter property for the purposes of maintenance and servicing of its network assets, the Utilities Act and related legislation make a number of provisions.
Section 106 of the Utilities Act provides:
106 Maintenance of network facilities
(1) A utility may, at any time, maintain a network facility and, for that purpose, do anything necessary or desirable, including, for example—
(a)entering and occupying land; and
(b)undertaking any work of a kind mentioned in section 105.
(2) For subsection (1), the maintenance of a network facility includes, for example, the following work:
(a)the alteration, removal, repair or replacement of any part of the facility;
(b)the provisioning of the facility with material or information (whether in electronic form or otherwise);
(c)inspecting or otherwise ensuring the proper functioning of the facility from time to time;
(d)action to which a network protection notice relates.
NoteFor par (d)—see the Utilities (Technical Regulation) Act 2014, s 32 (Network protection notices).
(3) This section has effect in relation to a tree that is a registered tree under the Tree Protection Act 2005 subject to that Act, part 3 (Protection of trees).
Section 31 of the Utilities (Technical Regulation) Act 2014 (the Technical Regulation Act) provides:
31 Offence—interference with regulated utility networks
A person commits an offence if the person—
(a)does something that interferes with a regulated utility network, or a network facility; and
(b)is reckless about whether doing the thing would interfere with the regulated utility network, or a network facility.
Maximum penalty: 200 penalty units, imprisonment for 2 years or both.
Section 32 provides for the issue of network protection notices in circumstances where a structure or activity on property is reasonably likely to interfere with the regulated utility network or a network facility.
As to safety considerations with respect to electricity network assets, regulations made under the Utilities Act make a number of relevant provisions.
Sections 18 and 19 of the Utilities Network (Public Safety) Regulation 2001 (the Public Safety Regulation) provide minimum clearance distances:
18 Clearances from aerial lines—people
(1) A person must not, without reasonable excuse, be too close to an aerial line.
Maximum penalty: 10 penalty units.
(2) Subsection (1) does not apply to—
(a)the holder of an electricians licence under the Construction Occupations (Licensing) Act 2004 that authorises work on the line; or
(b)a person who is—
(i)carrying out work associated with the connection of premises to the relevant electricity network or varying the capacity of such a connection; and
(ii)accredited under the relevant technical code for such work.
(3) A person is too close to an aerial line if at any time the person, or any part of a thing held by or attached to the person, is within the minimum distance from any part of the line worked out in accordance with table 18.
Table 18
column 1 column 2 column 3 column 4 column 5 direction in which minimum distance must be observed minimum distance from insulated aerial cable or insulated aerial service line, where-
U £ 1 kVminimum distance from aerial conductor or covered aerial cable, where-
U £ 1 kVminimum distance from aerial conductor or aerial cable where-
1 kV < U £ 33 kVminimum distance from aerial conductor or aerial cable where-
33 kV < U £ 132 kV
Any direction 0.1m 1.5m 2.0m 4.0m 19 Clearances from aerial lines—structures
(1) A person must not, without reasonable excuse, erect or maintain any part of a structure too close to an aerial line.
Maximum penalty: 10 penalty units.
(2) A part of a structure is too close to an aerial line if at any time it is within the minimum distance from any part of the line worked out in accordance with table 19.
(3) The minimum distance stated in table 19, column 3, item 3 does not apply to any part of a structure within that distance from the point at which an insulated aerial service line is attached to the structure by or for the responsible utility.
Table 19
column 1 | column 2 | column 3 | column 4 | column 5 | column 6 |
| item | direction in which minimum distance must be observed | minimum distance from insulated aerial cable or insulated aerial service line, where- U £ 1 kV | minimum distance from aerial conductor or covered aerial cable, where- U £ 1 kV | minimum distance from aerial conductor or aerial cable, where- 1 kV < U £ 33 kV | minimum distance from aerial conductor or aerial cable, where- 33 kV < U £ 132 kV |
| 1 | vertically, from any part of the structure normally accessible to people | 2.7m | 3.7m | 4.6m | 5.0m |
| 2 | vertically, from any part of the structure not normally accessible to people but on which a person could stand | 1.2m | 2.7m | 3.7m | 4.6m |
| 3 | any direction (other than vertically), from any part of the structure not normally accessible to people | 0.3m | 1.5m | 2.7m | 3.0m |
| 4 | any direction (other than vertically), from any window, opening balcony or other part of the structure normally accessible to people | 1.5m | 2.0m | 2.7m | 3.0m |
| 5 | any direction (other than vertically), from any window, opening balcony or other part of the structure not normally accessible to people but on which a person could stand | 1.5m | 2.0m | 2.7m | 3.0m |
| 6 | vertically, from any part of a fully extended clothes line | 1.8m | 3.7m | 4.6m | n/a |
| 7 | any direction (other than vertically), from any part of a fully extended clothes line | 1.8m | 3.0m | 3.0m | n/a |
| 8 | any direction, from an outdoor wireless or television aerial or any part of a staywire for the aerial | 1.5m | 1.5m | 1.5m | n/a |
| 9 | any direction, from the outer edge of the water container of a swimming pool or the maximum water level of the pool | 5.0m; or 3.0m (if the line is a neutral screened cable) | 5.5m | 5.5m | n/a |
(4) In this section:
neutral screened cable has the same meaning as in AS/NZS 3000 (Wiring
Rules), as in force from time to time.
21. The Utility (Management of Electricity Network Assets Code) Determination 2013 (the Asset Code) is a technical code made under Part 5 of the Utilities Act makes provisions to ensure the safe management of the respondent’s electricity network.[5] Specifically, Part 5.3 of the Asset Code provides:
5.3 Safe Design, Construction, Operation and Maintenance
(1)An electricity distributor must design, construct, operate and maintain its aerial lines, underground lines, substations, equipment and metering with reasonable care to avoid injury to any persons or damage to property or the environment and to provide a reliable and efficient power supply.
(2)The electricity distributor shall maintain a database of all installed network assets including their manufacturer and model number, manufacture date, installation/construction date, attributes, operational parameters, maintenance history and defects, and other relevant details to enable the network to be effectively and efficiently designed, operated and maintained.
(3)The electricity distributor must have an up-to-date asset management system consistent with PAS 55 Asset Management and ISO 55000 Asset Management.
(4)The electricity distributor must ensure that the earthing and protection systems of its electricity network are designed, installed, operated and maintained with reasonable care to avoid injury to any persons or damage to property or the environment.
(5)In the case of operating a low voltage system of supply, the electricity distributor must ensure that the system is earthed by means of a multiple earthed neutral system or another method consistent with AS/NZS 3000 Electrical installations.
(6)The electricity distributor must take all reasonable steps to ensure that work on or near the electricity distributor’s electricity network is carried out in a safe manner, using control measures appropriate to the risk and work performed.
[5] Disallowable instrument DI2013–222
The respondent has issued Electrical Safety Rules providing a Plain English version of these safe approach distances which include diagrams.[6] The respondent has also developed a set of Service and Installation Rules for Connection to the Electricity Distribution Network (Service and Installation Rules).[7]
[6] Available at Available at >
Section 10 of the ACTEW/AGL Partnership Facilitation Act 2000 (the Partnership Facilitation Act) provides that the Minister may make a declaration which has the effect of vesting certain network assets in a corporation, severing the assets from the land on which they sit, and giving the corporation rights that the assets remain on, under or over the land; to continue to use those assets; and to enter and occupy the land where the assets are located for the purposes of maintenance subject to any conditions imposed:
10 Facilities on non-ACTEW or non-AGL land
(1) The Minister may declare that this section applies to network facilities.
(2) Without limiting the Legislation Act 2001, section 48, network facilities may be stated in a declaration particularly or by reference to a stated class, for example, all network facilities or all network facilities apart from stated exceptions.
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
(3) A declaration is a notifiable instrument.
(4) A declaration is not valid if it would have the effect of vesting a facility in a corporation other than the corporation that had used it or for the use of which it was available.
(5) When a declaration takes effect in relation to a network facility, the facility, by force of this section—
(a) is severed from the land and remains severed; and
(b) vests in the corporation in which the declaration states that the facility vests, without any conveyance, transfer or assignment.
(6) A facility severed under subsection (5) ceases for all purposes to be a fixture.
(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.
(8) To ensure the proper provision of utility services, the Minister may determine conditions for the exercise of a right under subsection (7) (c) and, if any conditions are determined, the right may only be exercised in accordance with the conditions.
(9) A determination is a notifiable instrument.
On 29 June 2000, the Minister made a declaration pursuant to section 10 of the Partnership Facilitation Act in favour of ACTEW Corporation and vested all of its electricity distribution network assets (including those sited on and running across the property) in the ActewAGL Distribution Partnership of which the respondent forms part.[8]
The applicant’s claim for relief
[8] Respondent’s submissions dated 11 June 2021 at [35]-[38]
The applicant contends that the location, siting, and design of the respondent’s network assets on the property are unsafe in terms of the safety and design requirements of the applicable regulatory instruments and legislative provisions. The respondent denies this is the case.
In her application for interim or other orders, the applicant seeks the following orders:
1.Evo to make the powerlines safe for normal and necessary activities on our block, including repairs and maintenance to our house, the garage roof, access by tradesmen, emergency vehicles and similar requirements.
2. Evo to move powerlines that run over our driveway and garage between poles 60019 and 60020 noting this causes the powerlines to run over our garage.
3. Evo to remove stay to rear pole 60021.
4. Evo to confirm that access to the rear pole 60021 should not be made through our property.
5. Evo to remove front pole 60019.
6. Evo to include consideration of undergrounding of powerlines on the registered electricity easement at [the right neighbouring property] as part of the feasibility request (Document 2 of response to orders of 17 June 2021).
Each of the orders sought, bar number four, relate to questions of the safety of the network assets owned by the respondent on the applicant’s property. In the course of the hearing, the applicant accepted that the respondent had legislative entitlement to access pole 60021 by entering through their property for the purposes of maintenance and servicing of its network assets as authorised by section 106 of the Utilities Act and ancillary provisions. This disposed of the fourth order sought and the Tribunal made an interim order on 22 February 2022 noting this acceptance.
In considering whether the Tribunal has power to make all or any of the remaining orders, a number of matters arise for preliminary determination. These can usefully be considered and decided first.
Matters for preliminary determination
Two threshold issues of fact arise:
1.The historical sequence of existence of the buildings on the property and the operations network assets connection to and over the property.
2.The status or existence of any undertakings given by the respondent with respect to the removal of the stay on pole 60021 on the applicant’s property.
Findings on preliminary matters
Historical sequence of buildings v operations network
A core matter at issue is what came first in point of time, the electricity assets, including the poles and wires, or the structures erected on the property – the house, and more specifically the garage.
The applicant’s evidence was based on enquiries she had made with ACT Archives and various other searches. From these, she obtained a copy of the Federal Capital Commission Property and Tenancy Register for the property. This register was accepted into evidence. It records a house being erected on the property with a completion date of 31 August 1927. It further records a “garage and fuel store” being added and completed on 10 September 1929. At this time, the property was owned and leased out by the Commonwealth. The property passed into private hands in 1957, and the applicant and her husband purchased it in 1996. I accept this as evidence that structural improvements existed on the property from 1927, in the form of the existing house from August 1927 and in the form and location of the existing garage from September 1929.
Ms Roper gave evidence as the commissioning of the respondent’s relevant network assets on the property which is held in its Electricity Network Information and Maps System accessed through its Cityworks Management System. Initially and up to 1987, this information was contained in hand drawn maps. At that date, the maps were transferred to microfiche for field use and to a GDS document storage management for office use. The original maps were not retained. The information stored in the GDS underwent further transfer in 2002 when they were moved to a GIS system, and again in 2015 when they were transferred to the current storage system ArcFM which is accessible through the Cityworks system.[9]
[9] Ms Roper’s evidence was that the GDS, GIS and ArcFM are each electronic systems that store network asset management information.
From this last source, the respondent generated two system maps of the power line location and commissioning dates of the wires between poles 60019 and 60020 and poles 60020 and 60021. These maps were accepted into evidence. The maps record a commissioning date of 30 June 1927 for each of these assets. I accept this as evidence that the relevant network assets were commissioned into use in their current location from June 1927.
On the available evidence, and in the absence of any earlier documentary evidence, the Tribunal finds the historical sequence is that the poles and wires came first. That is to say the relevant poles and the wires between them were in situ before the house on the property was completed and two years before the garage was added.
Whether an undertaking was given for the removal of the stay on pole 60021
Pole 60021 is erected on the rear boundary of the applicant’s property. A metal stay supporting that pole sits on the applicant’s property, and the pole and its supports are accessed by the respondent for service and maintenance through the applicant’s property.
The applicant says the question of the support in the form of the stay on their property and access to it by the respondent has been the subject of earlier proceedings and contemporaneous discussions then and since. Specifically, the applicant says the respondent gave an undertaking to remove all support stays from pole 60021 on the applicant’s property at the time the pole was replaced with a steel pole in 2005 (the previous pole having been condemned after 40-50 years of service). The respondent denies such an undertaking.
The applicant’s evidence of the undertaking is an email to her husband dated 28 April 2005 from Ms Robyn Oliver, then the respondent’s Customer Liaison Officer, Electricity Network. The email was admitted into evidence. The email says in part, “2. Redundant stay in garden bed. This will be removed when pole is replaced.”[10] It was accepted this referred to one stay only and that this stay has been removed.
[10] Document 11, Hughes’ submission, dated 21 May 2021
The email also states:
3. Stay still in use.
I requested this stay to be removed when we attended and replaced the second pole. I was advised this work has bene completed, however, did not expect the incorrect stay to be removed. This work will obviously be completed when the pole is replaced.[11]
[11] Document 11, Hughes’ submission, dated 21 May 2021
It was accepted this referred to the stay in issue and that this stay has not been removed.
The email of the 28 April 2005 and the conversations that took place on and off site clearly gave the applicant an expectation that there was an agreement to remove the subject stay. The question is whether this amounts to an undertaking by the respondent which the Tribunal should consider directing it to adhere to pursuant to section 178(2)(b) of the Utilities Act.
The applicant correctly identifies later correspondence from the respondent of 6 and 27 July 2016 as indicating the respondent’s view that no undertaking had been given. It seems there were conversations between the parties on a site visit on 13 May 2016 to the effect that the stay had been in situ for a very long time than an alternative less intrusive stay was inadequate for the loading, and that removal of the stay would necessitate substantial re-design of the network in the vicinity. The respondent confirmed the substance of these conversations in the following question and answer in the 27 July 2016 letter replying to the applicant:
Regarding the pole stay, why did ActewAGL previously agree to its removal if you now decline to remove it?
ActewAGL has never agreed to remove that stay. In May 2016, ActewAGL attended your property to see if a “side walk stay” was feasible as a replacement. It was determined that a side walk stay was not appropriate due to load on the pole.
I do not find that the email 28 April 2005 is supportive of the applicant’s contention that the respondent had given an undertaking to remove the remaining metal stay on pole 60021. I do not have evidence of any other conversations that took place to support such a contention. The email did raise an expectation in the mind of the applicant that replacement was possible but there was no binding promise to that effect. I find no undertaking was given.
The core issue of safety
The core remaining issue for determination is the question of the safety of the network assets owned by the respondent which are located on, or adjacent to, the applicant’s property. This question relates to three specific issues which can be dealt with in turn:
1.The safety of the placement and design of pole 60019.
2.The safety of the stay on pole 60021.
3.The safety of the powerline passing between poles 60019 and 60020.
Safety matter 1
Evidence introduced by the applicant as to the safety of the placement and design of pole 60019
The applicant in her evidence said the driveway entrance to the garage on the property is a paired driveway with a single verge crossing of one car width shared with the right neighbouring property. She said paired driveways with a single verge crossing are characteristic of the design of driveways in the Barton Heritage Precinct. The crossing outside their driveway is narrow and curved. Pole 60019 which is a steel-reinforced pole is situated about one metre south from that verge crossing and just west of the footpath. Its position partly blocks access to their driveway by about one metre and is difficult to see when reversing because of the curved nature of the driveway. She said this siting makes the pole a collision hazard for a vehicle reversing into or out of their driveway. The pole has been struck multiple times by visitors, as is evident from photographs tendered in the hearing. She said from her own close observation pole 60019 is the only pole in the Barton Heritage Precinct placed in such a hazardous location in close proximity to both the verge crossing, and the driveway and footpath. She said its current location also creates a safety hazard for cyclists and e-scooters using the pedestrian footpath.
Dr Summerson confirmed in his evidence that he had observed the risks created by the location of pole 60019 over more than 20 years.[12]
The respondent’s evidence as to the safety of the placement and design of pole 60019
[12] Dr Summerson’s witness statement at [2]
The respondent’s evidence is that pole 60019 has been in its current location since its commissioning date by the Commonwealth in June 1927. The pole was in its current location in 1988 when it became an ActewAGL asset. It was in its current location when the applicant and her husband purchased the property in 1996. An inspection as part of the 2016 proceedings examined the adjacent area for an alternative pole stump site, and none was found.
The respondent denies pole 60019 blocks the applicant’s safe use of the driveway. The respondent contends the applicant and others using the driveway owe a duty to it to take care and keep a proper lookout when using the driveway so as not to damage its electricity infrastructure.
Mr Lloyd’s evidence was that relocating the pole closer to or within the existing easement corridor at the right neighbouring property would necessarily place it more into the joint verge crossing. This would exacerbate rather than alleviate any driveway issues. His evidence was that its current placement was the best possible location in terms of safety compliance.
The applicant’s submissions on the safety of the placement and design of pole 60019
The applicant submits that Evoenergy is required to meet its safety obligations under the Utilities Act, specifically sections 105, 106, 109, 112 and 113. She says the proximity of the pole to the verge crossing (less than a metre), to the driveway (obstructed by about a metre) and to the footpath (less than a metre) creates a safety hazard which fails to meet these standards.[13] She says from her own observations and enquiries it is the only pole in Barton in such a hazardous location.[14] The next nearest pole-driveway distance she has observed is 1.5 metres.[15]
[13] Applicant’s submission dated 21 May 2021, page 1 at [8]-[9] and Document 6
[14] Applicant’s submission dated 21 May 202, page 1 at [10]
[15] Applicant’s submission dated 21 May 2021, page 5 at [4c]
The applicant contends that because of its location there is a significant collision hazard. She cites one recent example on 8 May 2021 where a car reversing slowly out of the driveway collided with an e-scooter being driven on the footpath across the verge.[16] She contends that even though the pole has been in its current location the whole of the time she and her family have lived in the house, the more recent use of the footpath by cyclists and e-scooters has heightened the safety concern.
[16] Applicant’s submission dated 21 May 2021, page 5 at [4a]
The applicant further contends Evoenergy has failed to comply with the mandatory standards with respect to safety and design practice. She cites in particular section 32 of the Technical Regulation Act, specifically 32(5), 32(6) and 32(9). She contends Evoenergy has also failed to comply with the obligation set by part 5.3 of the Asset Code to consider the needs of residents in meeting its obligation to ensure the safe management of its electricity distribution assets.[17]
[17] Applicant’s submission dated 21 May 2021, page 2
The applicant contends that it is the positioning of pole 60019 that gives rise to the related safety issue with the powerline passing between poles 60019 and 60020 traversing the garage.[18]
The respondent’s submissions on the safety of the placement and design of pole 60019
[18] Applicant’s submission dated 21 May 2021, page 6 at [4e]
The respondent denies there are any safety or construction requirements adversely affecting the current location of pole 60019.[19]
[19] Respondent’s submission dated 15 July 2022 at [4] in accordance with Order 1 of 29 June 2022
The respondent says pole 60019 in its current location allows its workers to access the pole for service and maintenance from a safe area on the verge away from the driveway of the applicant’s property which minimises risk and ensures the respondent meets its work health and safety duty of care.[20]
[20] Respondent’s submission dated 15 July 2022 at [13]-[18] in accordance with Order 1 of 29 June 2022
The respondent says it is the applicant and other users of the driveway’s entrance and exit who owe a duty of care under section 31 of the Technical Regulation Act not to do anything to damage or interfere with its network assets. This extends to all drivers of motor vehicles entering and leaving the driveway who bear a responsibility to take reasonable care around its network assets. Mr Lloyd’s evidence had suggested moving pole 60019 to a location within the existing verge or easement between the applicant’s and the right neighbouring property would be likely to exacerbate rather than improve safety issues.
The respondent contends that a declaration made under section 10 of the Partnership Facilitation Act in regard to ACTEW electricity network assets has the effect of granting it a legal right for pole 60019 to have remain in situ. The respondent says the same provision does not impose in any respect, as the applicant contends, an obligation to relocate the pole as she wishes.[21]
[21] Respondent’s submissions dated 11 June 2021 at [30]-[37]
The respondent further contends that while its current network design requirements for designing or altering a network asset do not apply retrospectively to the design of pole 60019, they would apply to any relocation.[22] These design requirements are based on the AS/NZS 7000 standard. It may be that a relocation of the pole as desired by the applicant may not meet these design standards. The respondent contends the wires that running between poles 60019 and 60020 and specifically running over the garage measure 4.5 metres clearance from the ground and are in compliance with AS/NZS 7000-2016 Overhead Line Design.
Safety matter 2
Evidence introduced by the applicant as to the safety of the stay on pole 60021
[22] Evoenergy, Overhead Line Distribution Design Manual dated 23 March 2015
The applicant said pole 60021 is sited on a rear neighbouring property but the stay connected to the pole extends approximately 2.5 metres into their property from the boundary fence. She says the positioning of the stay on the pole is unsafe as it has a large and exposed bolt at eye level which has proven hazardous when walking nearby. She says attempts to enclose the bolt with protective covers have proved temporary and ineffective. She says the respondent’s previous proposal to fence the stay will simply have the effect of further reducing their use of the land. She says the stay should be removed. An adjacent pole, 60020, which supports significantly more hardware has no stay.
The respondent’s evidence as to the safety of the stay on pole 60021
Mr Lloyd’s evidence is that a stay on pole 60021 is a requirement for network safety given the weight of the conductors and other hardware on the pole. He has inspected the position of the stay and says it is required to secure pole 60021 so as to meet the respondent’s obligation to maintain a safe electricity network.[23] As to the safety of the stay at ground level he said it is in good condition, it is not frayed and is protected by a plastic sheet. He conceded it could be a trip hazard. He said stays are commonplace in both residential and commercial settings. He said the respondent had offered to fence the stay, but the applicant did not want this.
The applicant’s submissions on the matter at issue
[23] Statement of Michael Lloyd dated 21 June 2021 at [6]
The applicant contends that a stay on one property connected to a pole on another property is not acceptable best practice and does not meet the respondent’s safety obligations under the Utilities Act. She contends the stay on her property can be removed without safety concerns.[24]
The respondent’s submissions on the matter at issue
[24] Applicant’s submission date 21 May 2021 page 6, at [5d]-[5e] and Document 6
The respondent contends the while the positioning of the stay may constitute an amenity loss for the applicant, it does not constitute a safety issue. The respondent contends the placement of the stay for pole 60021 on the applicant’s property is not arbitrary.[25] It is placed in a location necessary to safely support the weight of the network hardware on the pole and is needed to meet its obligation to maintain a safe electricity network under the Utilities Act.
Safety matter 3
Evidence introduced by the applicant as to the safety of the powerline passing between poles 60019 and 60020
[25] Respondent’s submissions dated 11 June 2021 at [86]
The applicant’s evidence is that the span of wires between poles 60019 and 60020 is in excess of 40 metres running along the driveway and over the garage. She says this length of span produces observable sag and sway of the wires between the poles. She says both the respondent’s wires and TransACT cables traverse that span. She says given the length of the span the wires have required regular re-tensioning requests for the respondent to de-energise the line to re-establish the necessary clearances above ground level, but this only provides temporary compliance. She says significant sway is observable during even moderate winds which brings the wires worryingly close to the house perimeter.
Dr Summerson said he had significant concerns about the safety of the power line between poles 60019 and 60020, particularly as they traverse their driveway and run low over the garage which has a metal roof. The wires also come close to the north-west wall of the main house into close proximity with the northern gable of the house. He says storm debris produces an accumulation of fallen leaves in the gutters of the garage and occasional branches fallen onto the roof. To use a ladder to climb up to the roof to remove the debris creates a hazard as walking on the roof for this purpose places a person of average height in close proximity to the live wires. He says this routine problem was further exacerbated in the January 2020 hailstorm in Canberra which caused significant damage to the house and garage. The fitting of tarpaulins to the damaged house roof was dangerous with the sag and sway of the lines bringing the wires within approximately 1.5 metres of the house during installation. The garage roof was pitted by hail and requires replacement. They have been unable to carry out the repairs to date because of the risks arising from the proximity of the power lines and the time and expense required to arrange for the de-energising the line and coordinate the three separate agencies (in addition to the respondent, the Territory streetlights and TransACT cable). He further says the placement of the power lines in their current position traversing the driveway means any large vehicle entering along the only access for delivery, collecting waste skips or making emergency repairs produces a significant and unreasonable detriment to their use of their property.
The respondent’s evidence as to the safety of the powerline passing between poles 60019 and 60020
The respondent’s evidence is that the wires passing between poles 60019 and 60020 meet required safety standards. As to the wires that traverse the garage the respondent agreed that a person of average height standing on the roof of the garage would be within the minimum clearance distance required by section 19 of the Public Safety Regulation (2.7 metres clearance required)[26] and would breach that requirement and be potentially subject to penalty.
[26] Table 19 of the Public Safety Regulation Item 1or 2, Column 3 as the garage is a structure not normally accessible and the powerline above the garage is an aerial cable £ 1kV, a low voltage line.
As regards the applicant’s evidence about restrictions to delivery vehicles accessing the driveway because of the location of overhead wires, the respondent says the same powerline continues westerly from pole 60019 across her street to pole 60017 at an approximately similar height above ground and that street is used by varied traffic, including trucks, daily without apparent hazard.[27]
[27] Respondent’s submissions dated 11 June 2021 at [85]
Mr Lloyd’s evidence was that sway and sag of the wires passing between poles 60019 and 60020 was within allowable tolerances. He said the sway observable in high winds is in a horizontal direction only and presents no discernible safety risk. He says wires do naturally sag over time due to hot weather and other weather conditions. He said this can be remedied by a re-tensioning request. Request for localised outages is routine and the respondent would receive five or six such requests per day. He said as to the length of the wire span between poles 60019 and 60020, that while it is at the longer end of the permitted span it is still within limits.
Ms Roper’s evidence was that the respondent’s records do not bear out the applicant’s assertion that they have made regular re-tensioning requests for the wire span between poles 60019 and 60020. Those records disclosed the applicant has not requested tensioning annually as asserted. There has been one request dated 3 August 2020 to de-energise the line to facilitate repair work to the garage.
The applicant’s submissions on the matter at issue
The applicant contends the long span between poles 60019 and 60020 which crosses the driveway and the garage roof (over 40 metres) results in sagging in summer and significant swaying in moderate winds constitutes a safety risk and does not meet the respondent’s safety obligations under the Utilities Act.[28] The location of a powerline which crosses the driveway and traverses the garage roof prevents the applicant and/or any tradespersons she engages from being able to safely access the garage roof for routine maintenance or emergency repairs. Carrying out such maintenance or repairs with the powerline in its current position presents a significant safety risk which breaches the respondent’s safety obligations under the Utilities Act.[29]
The respondent’s submissions on the matter at issue
[28] Applicant’s submission dated 21 May 2021 page 5, at [3f] and Document 6
[29] Applicant’s submission dated 21 May 2021, page 5 at [3g]-[3j]
The respondent denies there are any safety requirements adversely affecting the location of the wires passing between poles 60019 and 60020. The respondent contends the length of the wire span between poles 60019 and 60020 is within acceptable span limits. The respondent says the swag and sway of the lines between these poles is similarly within acceptable safety parameters.
Tribunal’s consideration and conclusion on the safety matters at issue
The Tribunal has jurisdiction under section 172 of the Utilities Act to deal with the applicant’s complaint. The applicant is a complainant with the status to make an ACAT application being “consumer(s) affected by contravention” in column 2 of Table 172 and her complaint is in relation to a “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” as per column 3 of Table 172, specifically her assertion that the network assets on her property are not safe.
The Tribunal has power under section 178 of the Utilities Act if it is satisfied that the respondent has contravened its obligation in relation to its network operations to give written directions to the respondent to remedy its breach. As section 178(3) provides, the respondent must comply with such a direction. It is a direction, not a request as Mr Lloyd seemed to assume in his evidence on behalf of the respondent.[30]
[30] Statement of Michael Lloyd dated 21 June 2021 at [9]
The applicant had contended throughout that the garage and house on the property predated the construction and commissioning of the electricity network assets. I have found that this is not the case. The electricity assets were in place and in commission before the improvements were completed on the land. The applicant then contended that if this was the case, the location and placement of those network assets were unsafe. She contended they should be removed or relocated at the cost of the respondent and not at her cost.[31]
[31] Applicant’s submission dated 21 May 2021, page 4 at [2h]
The respondent has contended throughout the current and two previous complaints made by the applicant that she and her husband purchased the property in 1996 either knowing full well, or with the capacity to know full well, the location of all of the subject electricity network assets on the property and their likely effect on its use and enjoyment. The respondent says the applicant and her husband have over time become cognizant of what they consider is a detriment to their amenity and convenience due to the presence of those assets. There may well be amenity losses but these are not issues of safety. There may well be inconvenience, but not unsafe location of those assets. The respondent contends that if the applicant wishes to remedy her perceived amenity loss by way of removal or relocation it should be at her cost not the respondent’s.[32]
Safety matter 1: The safety of the placement and design of pole 60019
[32] Respondent’s submissions dated 11 June 2021 at [77]-[79]
The applicant has not been able to point to any safety breaches by the respondent with respect to the placement and design of pole 60019 as to its obligation under the Utilities Act or ancillary regulation or standards. The need for all drivers entering and existing the property driveway to exercise vigilance is heightened because of the placement of the pole but the safety obligations are those of drivers, not the respondent. The Partnership Facilitation Act vests network assets in the respondent and gives it various rights over those assets, including a right to enter land to repair. But I am not satisfied it adds any additional safety obligations. The Asset Code makes provision to ensure the safe management of the respondent’s network, but again I am not satisfied that part 5.3 of the Code imposes any specific further requirement to consider the needs of residents in meeting this obligation.
Safety matter 2: The safety of the stay on pole 60021
The placement of the stay for pole 60021 in the backyard of the applicant’s property is an inconvenience. It constitutes a loss of amenity given its visual and spatial intrusion. It does not constitute a safety hazard. If the applicant considers it does, it can be fenced as proposed by the respondent. Any such fencing should be at the respondent’s expense.
Safety matter 3: The safety of the powerline passing between poles 60019 and 60020
The powerline passing between poles 60019 and 60020 constitute a major inconvenience for the applicant and her husband and any persons they invite onto the property. It is an inconvenience that calls out for remedy. They cannot reconstruct the badly damaged and dilapidated garage which is heritage listed in any form other than in its current envelope. They cannot raise up the level of the driveway to overcome drainage problems in the garage. They are restricted in carrying out routine maintenance and major or minor repairs to the garage given the need to pre-organise and coordinate temporary disconnections to comply with the minimum clearance distances when work on the roof is required. They need to be alert to seek regular re-tensioning of the wires between poles 60019 and 60020. All of these things are major inconveniences. But these inconveniences are not the product of a contravention by the respondent of an obligation under the Utilities Act in relation to the powerline passing between poles 60019 and 60020.
Conclusion
The Tribunal concludes there are no safety issues referrable to the respondent with respect to the three safety matters identified. The location and structure of the respondent’s network assets do detract from the applicant’s amenity of the property and do cause inconvenience, and at times, the inconvenience is significant. This is not due to any non-adherence by the respondent to its obligations under the Utilities Act or elsewhere. I do not consider the respondent has contravened an obligation in relation to its network operations under that Act as would give rise (pursuant to section 178) to the need to issue written directions to the respondent to remedy any breach. It therefore follows that the complaint must be dismissed under section 176. It also follows that should the applicant make a future complaint about the matters complained of here, that such complaint should also be dismissed as already having been dealt with adequately by the ACAT as section 176(1)(f) provides.
Alternative remedies
The Tribunal will exercise its powers under section 176 to dismiss the applicant’s complaint. Under section 176(1)(g), one ground for dismissal is if is satisfied that “a remedy more appropriate than action under this part is readily available to the complainant”. The possibility of such an alternative remedy formed part of the discussions between the parties about a number of working proposals during the adjournment allowed by the Tribunal. It is useful to set out those possible alternatives that relate to safety matters 1 and 3.
Undergrounding
The Tribunal encouraged the applicant in its directions of 30 April 2021 to request an investigation by the respondent as to the feasibility of undergrounding the powerline running between poles 60019 and 60020. It had been indicated the fee for this study would be $2,500 but this fee was subsequently waived. The applicant made such a request in June 2021. She sought an assessment of two options, firstly undergrounding the lines on her property, and secondly undergrounding the lines on the right neighbouring property where an easement for services is noted on title. She asked that the study identify whether each of the options were technically feasible given the location of improvements on the property and the location of other underground services, and that it provide an indicative cost.
On 30 July 2021 the respondent provided a cost estimate for underground relocation of $69,988.72. Excluded from this estimate was the cost of removal of poles 60019 and 60020 and removal of non-Evoenergy assets from those poles, being streetlight conductors and telecommunication cables. This additional work would incur further costs of some magnitude. Though the written estimate does not specify which of the applicant’s options it relates to, it is based on the respondent’s drawing SKP 20009010-001 which suggest it relates only to the applicant’s first option. Assuming this is the case, the costs to adopt option one is substantial. The applicant was reluctant to bear the full cost of undergrounding when the verbal estimate was $50,000, that total is now more now likely to be twice that amount based on the respondent’s written estimate.[33] The applicant has long contended that undergrounding on her property may not be feasible in that the siting may not accommodate the requirements of Evoenergy’s Service and Installation Rules.[34] Regardless, she considers it is likely to be prohibitively expensive. But as regards the complaint before it, these are not matters for the Tribunal.
Relocation
[33] Applicant’s submission dated 21 May 2021, page 7 at [viii]
[34] Applicant’s submission dated 21 May 2021, page 7 at [v]
The applicant made a proposal to relocate pole 60019 from its current location to a location between the driveways of the right and rear neighbouring property. Visual inspection on a site visit during the adjourned period suggested the proposed location may place the pole, or at the very least the crossarm of the pole, on the right neighbouring property. The applicant would need to provide a boundary survey to confirm this. The applicant would also need to seek the consent of the owner of the right neighbouring property to any such encumbrance. Pole 60019 holds a Territory streetlight and carries telecommunication services that flow across the applicant’s street to pole 60017. The applicant would need to notify these utilities and obtain their consent. Any relocation would be classified as an “alternative control service” under the Australian Energy Regulator’s Evoenergy Distribution Determination which provides the householder is required to pay the full cost of the service provided in that Determination.[35] The Tribunal cannot identify a specific fee for relocation but the fee for replacement of one span of LV wires is in vicinity of $10,000 which suggests a substantial amount for full re-location. Finally, the applicant would need to lodge (and pay any required fees for) an ‘Application for Miscellaneous Electrical Works’ for detail design consideration to be given to the proposed relocation. These then are the several steps the applicant must take to see if her proposal for relocation is feasible. She has done none of these things which is disappointing. The respondent does raise safety and compliance issues with respect to the proposed location site in its submissions on safety issues.[36] But as regards the complaint before it, these are not matters for the Tribunal. They need to be explored by the parties independently and cannot adequately be explored until the applicant takes the necessary steps.
[35] Australian Energy Regulator, Final Decision Evoenergy Distribution Determination 2019-2024
[36] Respondent’s submission dated 15 July 2022 at [19]-[23] and [29]-[41] in accordance with Order 1 of 29 June 2022
Regrettably, neither of these alternative remedies may provide a lasting solution but they should be explored.
Decision
The Tribunal is satisfied that the applicant’s complaint should be dismissed pursuant to section 176(1)(h) of the Utilities Act 2000.
The Tribunal finds that should the applicant make a future complaint about the matters complained of in this matter, that complaint should be summarily dismissed pursuant to section 176(1)(f) of the Utilities Act 2000, as already having been dealt with adequately by the ACAT.
………………………………..
Senior Member Prof T Foley
Date(s) of hearing: 21 and 22 February 2022 Applicant: In person Solicitor for Respondent: Mr I Male
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