McQuire v ActewAGL Distribution (No 2)
[2014] ACAT 58
•29 August 2014
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
MCQUIRE v ACTEWAGL DISTRIBUTION & ANOR (No 2)
(Energy and Water) [2014] ACAT 58Case Number EW 2013/996
Catchwords: ENERGY AND WATER – complaint against utility – action taken by utility to prune tree to remove interference with electricity network – whether action authorised by legislation – whether utility contravened its obligations in relation to network operations – loss and damage
Legislation:Utilities Act 2000, ss 123, 125, 172, 178, 181
Utility Networks (Public Safety) Regulation 2001, r 25
Cases:McQuire v ActewAGL Distribution & Anor (Energy and Water) [2014] ACAT 40.
Text:Australian Standard 4373-2007 – “Pruning of Amenity Trees”
Tribunal: Mr P. Sutherland – Senior Member (Presiding)
Ms L. Beacroft – Member
Date of Orders: 29 August 2014
Date of Reasons for Decision: 29 August 2014AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) EW 2013/996BETWEEN:
IAN MCQUIRE
Applicant
AND:
ACTEW DISTRIBUTION LTD (ACN 073 025 224)
AND
JAMENA NETWORKS (ACT) PTY LTD
(ACN 008 552 663) TRADING AS
"ACTEWAGL DISTRIBUTION"
Respondent
AND:
USCHI MCQUIRE
Party Joined
TRIBUNAL: Mr P. Sutherland - Senior Member (Presiding)
Ms L. Beacroft - MemberDATE: 29 August 2014
ORDERS
The Tribunal orders that:
1.The complaint applications by the Applicant and the Party Joined are dismissed.
………………………………..
Mr P. SutherlandSenior Member
for and on behalf of the Tribunal
REASONS FOR DECISION
THE COMPLAINT
1.On 16 January 2013, without notice to the Applicant Mr Ian McQuire, a contractor to ActewAGL Distribution ("ActewAGL" or “the utility”) pruned two large claret ash trees in the Applicant's backyard to remove their interference with power lines situated on public land close to the back fence of the property. A significant amount of foliage was removed from the trees and, as a result, Mr McQuire claimed that he suffered loss in the form of reduced shading of the back yard, reduced privacy for private activities in the back yard, and reduced visual amenity.
2.Mr McQuire complained to ActewAGL seeking, in particular, a half page apology published in the Canberra Times and signed by the Chief Executive Officer of the company.
3.After a lengthy complaint process, ActewAGL declined to make a public apology and, on 3 September 2013, Mr McQuire made a complaint application to the ACT Civil and Administrative Tribunal (the Tribunal) in its role as energy and water ombudsman for the Australian Capital Territory. The Tribunal’s powers in relation to such applications are dealt with in sections 172, 178 and 181 of the Utilities Act 2000.
COMPLAINT RESOLUTION PROCESS
4.In accordance with its standard energy and water complaint procedures, the Tribunal attempted to resolve the complaint by facilitating communication between Mr McQuire and the utility. The first step in this process was to invite the utility to respond in writing to the complaint.
5.On Monday 14 October 2013, ActewAGL advised that tree limbs had been identified from a helicopter survey as being dangerously close to the High Voltage network, with a minimum distance of 39 cm where a minimum clearance of 2 metres was required. The tree was identified as a "burner", meaning that it required urgent attention. An ActewAGL contractor pruned the trees as a matter of urgency, without notice to the property owner, and at the utility's expense. ActewAGL apologized for any inconvenience or distress that Mr McQuire may have suffered as a result of the matter, but declined to publish an apology in a local newspaper.
6.On 19 October 2013, Mr McQuire advised that he did not accept ActewAGL's response, contending that the utility’s ‘Rambo’ or uncontrolled 'normal practices' were illegal and "I do not want to see them get away with it".
HEARING PROCESSES
7.As it was clear that resolution of the complaint could not be achieved by further discussion between the parties, the Tribunal set the matter down for a hearing process. At a conference and directions hearing on 6 November 2013, the matter was set down for hearing in late January 2014, with the Applicant directed to provide a quantification of loss and damage by 7 December 2013, and ActewAGL to file, not later than 10 business days before the hearing, witness statements, a list of authorities, and a Response to three issues remaining in contention:
(i)whether the clearance work undertaken, and the extent of this work, was authorised by legislation;
(ii) whether the Respondent's entry onto the land of the Applicant was lawful; and
(iii) the nature and quantum of loss and damage claimed by the Applicant.
8.In December 2013 and January 2014, various documents were filed and interlocutory orders were made, including setting down the matter for hearing on 26 February 2014. In an email dated 6 February 2014, ActewAGL filed a “Submission on Jurisdiction” contesting the jurisdiction of the Tribunal to hear the matter and seeking summary dismissal of the application.
9.On 12 February 2014, the Tribunal issued Orders and Reasons for Decision denying the relief sought, taking the "Submission on Jurisdiction" as an Application for dismissal of the matter for want of jurisdiction, and stating that this issue of jurisdiction would be heard by the Tribunal at the hearing on 26 February 2014. On 19 February 2014, a Directions Hearing was held to progress the readiness of the matter for hearing on 26 February 2014. The Tribunal informed the parties that the hearing on 26 February 2014 would be limited to the issue of jurisdiction, and would not cover the issue of quantification of loss and damage. Hearing the issue of jurisdiction necessarily involved hearing all of the evidence on the utility's actions on 16 January 2013. Orders were made concerning quantification of loss and attendance of witnesses.
10.On 24 February 2014, the Applicant filed a five page document which the Tribunal accepted as a satisfactory quantification of loss and damage, being:
Mr McQuire
$6,152: $5,907 for a shade sail, $165 for a safety assessment of the trees and $80 for a toner cartridge;
$3,200: loss of privacy on 64 occasions over the next five years @ $50 per occasion;
$600: compensation for situation of emotional upset @ $50 per month for 12 months.
$9,952: Total claim for compensation in respect of Mr McQuire.
Mrs McQuire
$5,000: impact of loss of shading on family and friend gatherings at a bar-b-que, 50 occasions @ $100;
$3,200: loss of privacy, 64 occasions @ $50;
$1,300: emotional upset resulting for ActewAGL's actions and flowing over from her husband.
$9,500: Total claim for Mrs McQuire.
11.On 26 February 2014, the Tribunal conducted a hearing on jurisdiction. At the Utility’s request, the Tribunal made a non-publication order in relation to the name of the company contracted by ActewAGL to undertake the tree pruning work and the name of the crew leader employed by this company who gave evidence at the hearing. The Tribunal joined Mrs Uschi McQuire as a party to the matter as she was seeking compensation for loss and damage she suffered as a consumer in the premises.
12.The Tribunal found it had jurisdiction to hear the matter and published its Reasons for Decision on 3 July 2014: McQuire v ActewAGL Distribution & Anor (Energy and Water) [2014] ACAT 40.
13.On 31 July 2014, the Tribunal conducted a resumed hearing to determine whether the Respondent had contravened the Utilities Act 2000 (the Utilities Act), and if so, what compensation for loss and damage should be awarded to the Applicant and his wife (the Party Joined). Mrs Uschi McQuire did not attend the hearing as she was overseas at the time. The Tribunal reserved its decision.
LEGISLATION
14.The legislation considered by the Tribunal in this phase of its deliberations is the Utilities Act, the Utility Networks (Public Safety) Regulation 2001 (the Public Safety Regulation) and the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act). Part 8 "Protection of networks" of the Utilities Act sets out a utility's powers and obligations in relation to maintenance and protection of their network. Part 12 of the Utilities Act provides the Tribunal's jurisdiction and powers in relation to complaints against a utility. Table 25 in regulation 25 of the Public Safety Regulations specifies that the minimum clearance distance for high voltage (HV) wires is 2 metres and for low voltage (LV) wires is 1.5 metres.
15.The relevant sections of these Acts are set out in Attachment A.
EVIDENCE GIVEN AT THE HEARINGS
16.The Tribunal recorded the following Exhibits:
a.Exhibit R1 - LIDAR Defect Data
b.Exhibit R2 - ActewAGL Identity Card
c.Exhibit R3 - Google Earth Picture
d.Exhibit R4 - Crew Leader's Vegetation Management Card
e.Exhibit R5 - Australian Standard 4373-2007 – Pruning of Amenity Trees
f.Exhibit A1 - Photograph C8
g.Exhibit A2 - Photograph C9
h.Exhibit A3 - Photograph C2
i.Exhibit A4 - Photograph C5
17.At the hearing on 26 February 2013, evidence for the utility was given by Mr Clinton McAlister, Manager, Works Enablement, ActewAGL Distribution and by a crew leader employed by a tree service contracted by ActewAGL to trim the trees in question. The second witness is referred to in these Reasons as "the crew leader". Evidence for the Applicant was given by Mr Ian McQuire, the Applicant, Mrs Uschi McQuire, the Party Joined, and by Mr Patrick Byrne, son-in-law of the Applicant, who assisted the Applicant in trimming the trees on Saturday 11 January 2013. The Applicant gave further evidence at the resumed hearing on 31 July 2014.
Mr Clinton McAlister
18.Mr McAlister explained that in the lead up to summer of 2012-13, ActewAGL implemented a bushfire mitigation strategy that included aerial surveying of HV wires in urban fringes to check for risks to the network. This process identified a category of 411 high risks to the network, including the Applicant's trees. Given the risk rating, ActewAGL decided to take action under section 125(7) of the Utilities Act, a provision that allows action to remove the interference to be undertaken with no notice issued to affected residents. It engaged a tree service contactor to undertake the work within a short period of time. The tree service was subject to Australian Standard 4373-2007 - “Pruning of Amenity Trees” (the Standard), and undertook the work on time.
The Crew Leader
19.The crew leader was not a qualified arborist, but had 14 years of experience and various relevant certifications. The work required on the Applicant’s trees was recorded in a spreadsheet for his use, and he attended the site on 16 January 2013 to undertake this work. He waited while the Respondent’s staff turned off the HV wires and then spent approximately 1.5 hours pruning both of the Applicant's trees. He did not notice any prior cuts and pruned the trees to meet the minimum clearances specified by the Public Safety Regulation. He pruned in a manner that was consistent with various principles of pruning which he explained. At one stage, he saw the Party Joined on the property, acknowledged her while he worked and perceived that she raised no opposition to his work.
Mr Patrick Byrne
20.Mr Byrne, the son-in-law of Mr McQuire, assisted Mr McQuire prune his two trees on Saturday 11 January 2013. He gave clear and consistent evidence that he hadn’t put the chainsaw so close to a power line as to contravene the requirements of the Public Safety Regulation. Otherwise, his recollection of many other aspects of the events on 11 January 2013 was poor due to the passage of time. Mr Byrne did the actual cutting, using a lift hired for the purpose that was moved around inside the Applicant’s yard. There were some restrictions on where it could be placed. He said he pruned as directed by Mr McQuire and that he largely cut off shrubbery and small branches that were then mostly hand cut by Mr McQuire to place on a trailer. He was not able to say if the clearances had been met after his pruning was completed on 11 January 2013.
Mr Ian McQuire
21.Mr McQuire agreed that his trees were within the minimum clearances prior to the 11 January 2013, which is why he rented a lift and arranged for his son-in-law to use the lift to prune the trees on the 11 January. He explained that mainly shrubbery and very small branches were pruned, and he then cut them up further with hand secateurs and placed them in a trailer. After they had completed the pruning he went into the public area on the other side of his fence. He observed that the trees were clear from the wires to just within the vertical line running from the fence upwards. He estimated that the fence was approximately 1.8 metres from the nearest HV wires. He wasn’t sure if the clearances had been fully met. He didn’t substantially prune a branch that was fan shaped and growing from the trunk along the fence line since it gave created a lot of shade. He said that the pruning by the tree cutter on 16 January 2013 was unnecessary and excessive, particularly the pruning back of the fan-shaped branch back to the trunk.
22.At the resumed hearing on 31 July 2014, Mr McQuire gave oral evidence which expanded on the loss and damage he suffered from the pruning of the trees, which is outlined at [10] above.
Mrs Uschi McQuire
23.Mrs McQuire agreed with the evidence of the tree cutter that, on 16 January, they had acknowledged each other and she had not raised an objection to his work. Otherwise she did not give any additional evidence relevant to whether there was a contravention by ActewAGL of its obligations under the Act.
CONSIDERATION OF EVIDENCE AND FINDINGS
24.
The Applicant contested that ActewAGL’s pruning of the two trees contravened its obligations under the Utilities Act. The Tribunal considered the following issues in order to make a determination on this question:
(i) Was there an "interference" with the network?
(ii) Were there "urgent circumstances", as defined in section 125(10)?
(iii) Were the actions of the Respondent justified under section 125(7)?
(iv) Was the Respondent's entry onto the Applicant's land lawful?
25.The evidence on these issues and the Tribunal's findings are set out below. In summary, the Tribunal finds that the Respondent did not contravene its obligations under the Utilities Act in relation to its network operations and that there was no unlawful entry on the Applicant's land.
Was there an "interference" with the network?
26."Interference" with a network includes activities that impact on “safe or efficient” operations and also those that obstruct “lawful access” to the network (section 123, Part 8). The definition also includes activities that are “likely to have” the latter effects; actual breaches in safety or actual obstruction do not have to have occurred (section 123, Part 8). In this case, the utility provided evidence that there was an interference caused by the Applicant's trees encroaching within the required clearances of the HV wires on 13 December 2012, and the Applicant's evidence did not contradict this evidence. The key contested issue was whether the interference caused by the Applicant's trees remained on 16 January 2013, being the date that the tree service company undertook its pruning of the trees, and after the Applicant pruned them on 11 January 2013. The Tribunal finds that the interference caused by the Applicant's trees remained on 16 January 2013 as set out below.
27.In December 2012, ActewAGL commissioned aerial surveys in urban fringes of Canberra to check for interference with HV electricity lines. This survey was part of a wider bushfire mitigation program being progressively undertaken by ActewAGL. The Light and Infra-red Detection and Radar (LIDAR) Report[1] received by ActewAGL in late December 2012 provided evidence, to an error margin of 2 cms, that the two trees located on the Applicant's property were vertically 1cm above the HV wires and horizontally 35cms from the HV wires, well within the required clearance of 2 metres. Mr McAlister, gave evidence that vegetation does not need to touch a wire to cause a risk since wires can sway, and as a result touch vegetation intermittently, and, in any case, electricity can jump into metal or other wires, with HV power able to jump further (Transcript, p 15). While the LIDAR and other reports did not assess clearances for the LV wires, the fact that the HV wires in this case were adjacent to LV wires increased the risk arising from the breach of the required clearances for the HV wires. (Transcript, pp 14-15)
[1] Exhibit 1, data for Pole 33780.
28.The Applicant's trees were among 411 situations that were categorised as “high” risk to the network requiring an “immediate response” (Transcript, p 13), being the second highest risk level because the trees were within 50 cms of a HV wire. In late December 2012, due to the level of risk and forecast high temperatures for January 2013, ActewAGL contracted an appropriately accredited tree service to scope and undertake the remedial work for these 411 situations (including the Applicant's trees) by 19 January 2013. After scoping the work, on 4 January 2013 the tree service requested that the Respondent arrange to have the HV wires turned off for the work on the Applicant's trees to be undertaken on the 16 January 2013 (Transcript, p 17). There was no further assessment of the Applicant's trees by the utility or the tree service until the day the work was undertaken (Transcript, p 37).
29.The Applicant confirmed in his evidence that there was a level of encroachment by his trees into the required clearance distances from the wires prior to his pruning them: “I was late in getting into my trees…. those trees of mine were getting too close, and I’ll admit, they were” (Transcript, p 116). The Applicant provided evidence that, on Saturday 11 January 2013, he and his son-in-law, Mr Byrne, pruned the trees, and, on this basis, he contested that the subsequent pruning by the tree service was no longer necessary and was excessive in scope.
30.Mr Byrne did the actual cutting. He said he was on a lift, and stayed in the Applicant's property, with the base of the lift abutted to a brick retaining wall but not immediately next to the fence when pruning the trees at the fence line (Transcript, p 91). All of the prunings fell onto the Applicant's property and none needed to be collected from the public area under the wires. ActewAGL argued that, on this basis, the Applicants could not have pruned the trees to be outside the minimum clearances. On the basis of this evidence, and the extensive foliage of the trees which is evident from the overhead photograph taken in December 2012, the Tribunal is persuaded that the trees remained within the minimum HV clearance after the pruning on 11 January 2013.
31.In any case, Mr Byrne gave evidence that he was not sure about the required clearances at the time he did the pruning, so he could not say if the pruning successfully met the clearances, and he followed Mr McQuire’s “pedantic” instructions (Transcript, p 86). The Applicant's evidence was contradictory about whether he had pruned his trees outside the clearances for LV and HV wires. He said he wasn’t going to argue about whether he had met the clearances to within 20-30 cms, suggesting that he wasn’t sure if he had met the clearances or not. The Applicant and his son-in-law pruned the trees to “just within the fence line”, to “something like 1.8 metres to the nearest HV line” (Transcript, p 20). The Tribunal notes that this evidence suggests that their pruning resulted in the trees remaining within the required 2 metre clearance distance for the HV wires.
32.The Applicant's evidence was that his pruning removed "shrubbery mainly" (Transcript, p 116) and some “very small branches” of “one centimetre maybe two centimetres” (Transcript, p 117), and in doing so they aimed to maintain the shading provided by the trees. However, the aerial photo of the trees encroaching into the HV wires taken by ActewAGL in December 2012 and subsequently provided to the Applicant demonstrated to the Tribunal that more sizeable branches than those described by the Applicant and his son-in-law would have to have been removed to meet the required minimum clearances from the HV wires. Further evidence of the size and nature of the branches necessarily removed to meet the minimum clearances is shown in photos taken after 16 January 2013 and submitted by the Applicant (Exhibit A3).
33.The crew leader of the tree service team gave evidence that, when he arrived on 16 January 2013 to do the work on the trees, they were significantly encroaching the HV and the LV minimum clearances (Transcript, p 50). His evidence was that he needed to prune some of the trees’ lower branches for “epicormic growth”, in order to gain access to prune the trees away from the HV wires (Transcript, p 71), and also because they were within the minimum clearances of the LV wires. He said he did not notice any previous cuts (Transcript, p 46), which the Tribunal regards as consistent with the Applicant’s and Mr Byrne's evidence outlined above that they only removed shrubbery and very small branches.
34.Given this evidence, the Tribunal finds that the Applicant's trees were within the required minimum clearances for HV wires on 16 January 2013. Lower branches, including a leafy epicormic shoot branch, constituted an interference since they obstructed the tree cutter’s access to the HV wires and his pruning work there, and therefore also had to be pruned. The Tribunal finds that an "interference" (as defined in s 123) existed on 16 January 2013.
Were there "urgent circumstances"?
35.Urgent circumstances under section 125(7) refers to circumstances where it is necessary to protect four listed factors which are very broad in scope, including “the integrity of the network”, “safety of people” and to protect the “environment” (section 125(10)). However, urgent circumstances under section 125 do not require any time-critical factors to be present.[2] The Tribunal finds that the interference occurred in "urgent circumstances" for the reasons set out below.
[2] McQuire v ActewAGL Distribution & Anor (Energy and Water) [2014] ACAT 40 at [27].
36.ActewAGL decided that urgent circumstances existed in this case because of the significant encroachment of the Applicant's trees within minimum clearances from HV wires. This presented risks for the integrity of the network and also for public safety. ActewAGL was concerned to reduce the risk to the environment by mitigating the risk of bushfire in urban fringes. Given the significant level of encroachment of the trees and the forecast hot summer, protecting the environment was also a factor relevant to the utility determining that there were urgent circumstances.
37.The Applicant contended that this risk was not present on 16 January 2013, since his pruning had removed the risk. However, the Tribunal finds that the trees were within the required minimum clearances for HV wires on 16 January 2013 and lower branches also needed to be pruned since they were obstructing the tree cutter from safely pruning the trees encroaching the HV wires. The extent to which the trees encroached the required clearances on 16 January 2013 was disputed by the parties and was not able to be exactly determined by the Tribunal on the available evidence. It is likely, given the pruning on 11 January 2013, that the level of encroachment had been reduced. However, it is also likely that the trees were still within 2 metres of the HV wires in places. Accepting that the encroachment had been reduced by the Applicant's pruning, the Tribunal is satisfied that some level of encroachment remained on 16 January 2013. The Tribunal finds that the work remained urgent on the 16 January 2013 considering that the initial risk assessment was reasonable in all the circumstances and assessed to be "high".
Were the actions of ActewAGL justified under section 125(7)?
38.ActewAGL, argued that it was authorised by section 125(7) to “do whatever is necessary to stop the interference or to remove the likelihood of the interference”, and implied that there were no restrictions on its actions.
39.ActewAGL’s license requires it to comply with Australian Standard 4373-2007 – “Pruning of Amenity Trees” (the Standard), and that Standard includes clause 6.2: “When pruning a tree, the minimum necessary to achieve the aim of pruning should be removed”. Other limits on the exercise of powers by ActewAGL under section 125(7) arise from administrative law principles, which allow a number of grounds for reviewing the exercise of powers by an authority, such as improper exercise of power and unreasonableness. The Tribunal finds that the latter grounds are not made out in this case, and that the utility met the requirements of the Standard, for the reasons set out below.
40.The Applicant and his son-in-law are not arborists. The Applicant gave evidence that he was not familiar with the Standard, however he had spoken to a friend who was an arborist some years before about the need for “aggressive pruning” of his trees (Transcript, p 134). The Applicant disputed that the tree contactors needed to cut off major branches back to the trunk, thus significantly reducing shading in their back yard (Transcript, p 130). When asked what criteria he used to decide if the clearances had been met, the Applicant said he looked up along an imaginary “line” that was “just inside the fence line” to make sure the clearances had been met (Transcript, p 120).
41.The crew leader gave evidence about his experience and his familiarity with principles and techniques covered by the Standard, consistent with the requirements for a tree-cutter under the Standard (Clause 3.46). He explained that he had exercised his judgement and cut the trees’ branches back to a “growth point” (Transcript, p 54); in some cases this was the trunk, in line with good pruning practices. The crew leader's evidence about the necessity of pruning back to growth points is supported by various clauses of the Standard. The Standard includes clauses about pruning for “line-clearance” (Clause 7.3.6), which is a form of “reduction pruning” (Clause 7.3.2), and it is noted that aspects of recommended pruning practices may be difficult to apply in line clearance work (Note 1, Clause 7.3.2). Reduction pruning involves cutting stems and branches back to growth points being more central stems, branches or indeed trunks. The Standard explicitly says that “lopping” and “topping”, where stems and branches are cut between the growth points or nodes are “unacceptable” (Clauses 3.31, 3.44 and 8.1).
42.Given this evidence, the Tribunal finds that the actions of ActewAGL were justified under section 125(7) in this case.
Was ActewAGL’s entry onto the Applicant's land unlawful?
43.On the evidence, the Tribunal concludes that the tree cutting team did not enter onto the Applicant's land. However, it is likely that the crew leader worked on a platform which extended over the Applicant's land, particularly in order to cut the epicormic growth low down on the trees.
44.Section 125(7) authorises ActewAGL and its agents to do "whatever is necessary to stop the interference or to remove the likelihood of the interference". This subsection clearly authorises the tree cutter to operate as he did, and, in the Tribunal's opinion, would have authorised work conducted on the ground at the base of the tree, if this was reasonably necessary to complete the work.
Loss and damage
45.In view of the above conclusions, it is not necessary for the Tribunal to consider the issue of loss and damage claimed by the Applicant and the Party Joined.
Orders
46.The Tribunal determines that the complaint applications made by the Applicant and the Party Joined should be dismissed.
………………………………..
Mr P. Sutherland – Senior MemberFor and on behalf of the Tribunal
ATTACHMENT A
ACT Civil and Administrative Tribunal Act 2008
Part 12Complaints to ACAT about utilities
172ACAT 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.
NoteIf a form is approved under the ACT Civil and Administrative Tribunal Act 2008 for the application, the form must be used.
Table 172ACAT applications
NoteItems 3 to 5 do not apply to NERL retailers (see s 75B).
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 of an obligation under this Act in relation to its network operations 6 person affected by act or omission act or omission of an authorised person for a utility in relation to network operations 7 person on whom charge imposed capital contribution charge imposed under s 101
178ACAT 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.
181Payment for loss or damage
(1)If the ACAT is satisfied that a complainant suffered loss or damage because of an act by the respondent, or an authorised person for the respondent, of a kind mentioned in section 178 (ACAT decisions), the ACAT may give the respondent a written direction to pay a stated amount to the complainant for the loss or damage.
(2)The direction may not be given in relation to a punitive amount.
(3)The amount payable under the direction is a debt due to the complainant in whose favour the direction is given.
(4)In giving the direction, the ACAT must take account of the extent (if any) to which the complainant—
(a)caused, or contributed to, the loss or damage; or
(b)obstructed, or interfered with, the exercise of the respondent’s functions under this Act.
(5) The amount stated in a direction may not be more than—
(a)$10 000; or
(b)if another amount is prescribed by regulation—the prescribed amount.
(6)The registrar must, if asked by the complainant in whose favour a direction is made, give the complainant a copy of the direction certified by the registrar.
Dictionary
complainant, for part 12 (Complaints to ACAT about utilities)—see section 172.
complaint, for part 12 (Complaints to ACAT about utilities)—see section 172.
consumer, in relation to a utility service, means—
(a) a customer for the service; or
(b) an occupier of a customer’s premises to which the service is provided;
customer—see section 17 (Customers).
network facility means any part of the infrastructure of a network.
network operations, for part 7 (Network operations)—see section 103.
network protection notice—means a notice under section 125 (Network protection notices).
Utilities Act 2000
Part 8Protection of networks
Division 8.1 General
123Meaning of interference
In this part:
interference, with a network or network facility, includes an action that—
(a) interferes with the safe or efficient operation of the network or facility; or
(b) inhibits or obstructs lawful access to the network or facility;
or is likely to have that effect.
125Network protection notices
(1) This section applies if a responsible utility is satisfied that a structure or activity on, under or over land or water interferes, or is reasonably likely to interfere, with the network or a network facility.
(2) The utility may give the land-holder written notice to take whatever action is necessary to stop the interference with the network or facility, or to remove the likelihood of that interference.
(3) The notice must—
(a)indicate the structure or activity; and
(b)require the land-holder to take stated action to stop the interference, or remove the likelihood of the interference, within a stated period; and
(c)contain a statement about the effect of subsection (5).
(4) The stated period must be no less than 14 days starting on the date the notice is given to the land-holder.
(5) If the land-holder does not comply with the notice—
(a)the utility may do whatever is necessary to stop the interference or remove the likelihood of the interference; and
(b)the reasonable expenses thus incurred by the utility are a debt due to the utility by the land-holder.
(6) Subsection (5) (b) does not apply to a structure that was, or an activity that commenced, on, under or over the land before the installation of the network or facility to which the interference relates.
(7) In urgent circumstances, subsection (2) does not apply and the utility may do whatever is necessary to stop the interference or to remove the likelihood of the interference—
(a)without notice to the land-holder; and
(b)at the expense of the utility.
(8) If—
(a)a utility acts under this section in relation to a structure that was, or an activity that commenced, on, under or over the land before the installation of the network or facility to which the interference relates; and
(b)a person suffers loss or damage because of the utility’s action;
the amount of the loss or damage is a debt due to the person by the utility.
(9) 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).
NoteUnder the Tree Protection Act 2005, pt 3 it is an offence to damage a registered tree (or do prohibited groundwork in the tree’s protection zone) unless the damage or groundwork is allowed under that Act. Application may be made to the conservator for approval of tree damaging activity or prohibited groundwork (including in urgent circumstances).
(10) In subsection (7):
urgent circumstances means circumstances in which it is necessary to protect—
(a) the integrity of the network or facility; or
(b) the health or safety of people; or
(c) public or private property; or
(d) the environment.
Utility Networks (Public Safety) Regulation 2001
25Clearances from aerial lines—vegetation
(1) A lessee of territory land must not, without reasonable excuse, allow any part of a tree or other vegetation on the land to be too close to an aerial line.
Maximum penalty: 10 penalty units.
(2) A person must not, without reasonable excuse, prune or clear a tree or other vegetation if any part of the tree or vegetation is likely to fall too close to an aerial line.
Maximum penalty: 10 penalty units.
(3) A part of a tree or other vegetation 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 25.
Table 25
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 kVany direction 1.0m 1.5m 2.0m 3.0m NoteSymbols used in table 25 are defined in the dictionary.
0