Marlborough Lines Limited v Cassels - [2012] NZHC 9

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CIV-2010-406-147 [2012] NZHC 9

BETWEEN MARLBOROUGH LINES LIMITED Plaintiff

ANDALASDAIR LORNE CASSELS Defendant

Hearing: 26-28 September 2011

Counsel: R D Crosby and Mr L P Radich for Plaintiff
G A Hair for Defendant
B A Scott and L M Pelly for New Zealand Fire Service
T G H Smith as Counsel to assist the Court

Judgment: 24 January 2012

JUDGMENT OF WILLIAMS J

In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 1:00pm on the 24th January 2012.

MARLBOROUGH LINES LIMITED V ALASDAIR LORNE CASSELS HC BLE CIV-2010-406-147 [24
January 2012]

Introduction

[1] The plaintiff is an electricity provider in Marlborough. It distributes electricity to consumers mostly via overhead power lines. It is required to ensure that power lines are kept clear of trees and other vegetation to avoid outages and hazards such as fire and electrocution. The legal framework for fulfilling that obligation is provided by the Electricity (Hazards from Trees) Regulations 2003 (regulations).

[2] The plaintiff says that there have been practical difficulties in applying the regulations, and no relevant judicial guidance. Accordingly, the plaintiff seeks seven declarations under the Declaratory Judgments Act 1908 as to the interpretation of certain regulations.

[3] Alasdair Cassels was served because some of the declarations sought will have consequences for his property at Erie Bay in the Marlborough Sounds. He joined as a defendant, but his defence is primarily on jurisdictional grounds. Mr Cassels also counter-claims, however, for four declarations on live issues between himself and the plaintiff.

[4] Other government and corporate bodies were served as interested parties, but have not joined. Affidavits have been received from two of these bodies: the Electricity Networks Association and the National Rural Fire Authority. Crown Counsel Tim Smith appeared as amicus, to ensure there was a contradictor on each
declaration sought.1

[5] Before turning to the particular declarations sought here, and the facts between the plaintiff and Mr Cassels, it is useful to provide an overview of the
regulations.

1 See Canterbury Regional Council v Attorney-General [2009] NZAR 611 (HC).

Overview: Electricity (Hazards from Trees) Regulations 2003

Purpose

[6] The regulations came into effect on 16 January 2004.2

[7] The regulations are authorised by s 169 of the Electricity Act 1992. They were required to fill a regulatory lacuna created by the privatisation of the electricity industry under that Act and its sister measure, the Energy Companies Act 1992. Under the reform the new privatised energy companies lost the old statutory power
to enter private property to construct and maintain electrical works,3 and to trim

trees.4 Under the new regime these matters were all to be dealt with through the Resource Management Act5 and private law processes. While a statutory right of access is maintained in relation to ―existing works‖,6 (so that the new regime is effectively only for new works) the Act does not expressly give lines companies the
power to trim trees. Nor does…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NZHC 9
Decision Date: 24 January 2012

CaseChat Overview and Summary

The case of Marlborough Lines Limited v Cassels concerned the interpretation of the Electricity (Hazards from Trees) Regulations 2003. The plaintiff, Marlborough Lines, sought seven declarations to clarify certain obligations under the regulations. The defendant, Alasdair Cassels, argued that the court lacked jurisdiction to grant the declarations as there was no active dispute between the parties. The court found that jurisdiction under the Declaratory Judgments Act 1908 was present, but the exercise of that jurisdiction should be approached with caution. The court declined to grant some declarations, finding them to be fact-specific or better suited to an arbitrator. The court granted others, finding them to be questions of statutory interpretation. The court also addressed several declarations sought by Mr Cassels, finding in favour of the plaintiff on some points and declining to grant others. The court concluded that the definition of "existing works" in the regulations should align with the Electricity Act 1992, and that tree owners must provide sufficient information to establish the criteria for issuing a no-interest notice. The court found that the parties had shared the costs of the proceeding.

Orders