Property / Real Estate

When Electricity Lines and Trees Meet: Who is responsible for controlling the trees?

The obligations on electricity providers and land owners in controlling trees adjacent to electricity works has been clarified by the recent declarations in Marlborough Lines Limited v Alasdair Lorne Cassels. The High Court judgment, released on 24 January 2012, will be of particular interest to both forestry owners and electricity providers.

The Electricity (Hazards from Trees) Regulations 2003 include rules about the responsibility for cutting and trimming trees that encroach on electrical works.

The case was brought by Marlborough Lines Limited principally to obtain judicial interpretation on certain of the Regulations. Williams J (with limited exception) considered that the application was appropriate for declarations.

Under the Regulations, the rules for cutting and trimming encroaching trees revolve around three sets of notices: 'cut or trim notices', 'no-interest notices' and 'hazard warning notices'.

The case clarified various issues including declarations regarding the obligations on works owners in terms of the costs and the extent of works (including the removal of debris) in relation to a cut or trim notice, and issues surrounding no-interest notices.

An interesting point raised by Williams J was the limited scope of the arbitration provisions in the Regulations. Currently under the Regulations, recourse to arbitration can only be triggered in relation to a dispensation decision. Williams J considered many other issues under the Regulations would be better determined by an arbitrator with practical knowledge of electricity matters, and on a case-by-case basis, rather than by recourse to the Courts and he noted that the Court's decision should be brought to the attention of the relevant officials in the hope that appropriate amendments could be considered to make the regime more cost effective and user friendly.

Further details of the declarations are detailed below.

The declarations

A works owner must issue a cut or trim notice to a tree owner if the works owner becomes aware of a tree encroaching the growth limit zone (subject to a 'no-interest notice', see below). The tree owner must then cut or trim back the tree so that it does not encroach on the notice zone. In relation to the first cut or trim notice however, the works owner must either: (a) pay for the cut or trim; or (b) undertake the works itself at its cost (subject to any application for dispensation/arbitration and permission to enter the land having been obtained).

The Court clarified the cost obligations when the tree owner undertakes the works under the first cut or trim notice. The works owner must meet the reasonable costs of the cutting or trimming including the reasonable cost of dealing with debris not on adjoining land(emphasis added). When works owners undertake the works themselves under the first cut or trim notice, they are required to remove debris from land adjoining the property on which the tree is on, not land adjoining the tree(emphasis added).

The Court declined to make a declaration as to whether a map plotted with the location of the tree or trees that impinged on the growth limit zone and provided by a works owner to a tree owner was "sufficient information to fairly inform the tree owner of the location and identity of the tree" or trees subject to a cut or trim notice . The Court considered the obligation to fairly inform the tree owner of the location and identity of the tree was entirely fact dependent. It was, according to the Court, the sort of issue that should be addressed by arbitration but under the Regulations the arbitration provisions did not extend to such issues.

No-interest notice

A no-interest notice may be issued by a tree owners to a works owner in certain circumstances (see below). The effect of a no-interest notice is, essentially, that the tree owner cedes all power and responsibility for the tree to the works owner, including the power and liability to trim or remove the tree. If the works owner trims or removes the tree they must, if requested by the owner or occupier of the land, remove the debris or ensure that any debris that remains does not interfere with the owner or occupier's use or enjoyment of the land

The Court clarified that it was for the works owner, and not the land owner or occupier, to determine whether to remove the debris or to leave the debris and tidy it to the necessary standard. The test as to whether the debris would interfere with the use or enjoyment of the land by the owners or occupier was to be determined objectively.

The no-interest notice regime was intended to benefit tree owners whose conduct had not unduly contributed to tree hazards. The Court declared that the "existing works" (for the purpose of regulation 15) has the same meaning as in section 2(1) of the Electricity Act 1992, being 1 January 1993.

Finally, in terms of the onus to establish the qualifying criteria for the issue of the no-interest notice, the Court declared that a land owner must provide in such notice sufficient information to establish a prima facie standard that the relevant criteria are met.

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The contents of this publication are general in nature and are not intended to serve as a substitute for legal advice on a specific matter. In the absence of such advice no responsibility is accepted by Brookfields for reliance on any of the information provided in this publication.


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