Davis v ActewAGL Distribution [2007] ACTSC 98 (12 December 2007)

Last Updated: 24 October 2008

RONALD CHARLES DAVIS v ActewAGL DISTRIBUTION
[2007] ACTSC 98 (12 DECEMBER 2007)

APPEAL – Small Claims Court – appeal dismissed – section 90(5) of the Electricity Act 1971 (ACT) is not a statutory property right – no proprietary right in nature was created – no question of law raised in the proposed grounds of appeal.

Electricity Act 1971 (ACT), s 33, s 90
Electricity (Amendment) Act 1994 (ACT)
Utilities (Consequential Provisions) Act 2000 (ACT)
Utilities Act 2000 (ACT), s 7, s 103, s 105, s 106, s 110
Australian Capital Territory (Self-Government) Act 1988 (Cth), s 23
The Macquarie Dictionary
Australian Capital Territory v Pinter & Ors [2002] FCAFC 186; (2002) 121 FCR 509

ON APPEAL FROM THE SMALL CLAIMS COURT OF THE ACT

No. SCA 84 of 2007

Judge: Gray J
Supreme Court of the ACT
Date: 12 December 2007

IN THE SUPREME COURT OF THE )
) No. SCA 84 of 2007
AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE SMALL CLAIMS COURT OF THE ACT

BETWEEN: RONALD CHARLES DAVIS

Applicant

AND: ActewAGL DISTRIBUTION

Respondent

ORDER

Judge: Gray J
Date: 12 December 2007
Place: Canberra

THE COURT ORDERS THAT:

1. The application for leave to appeal be dismissed.

1. Mr Ronald Charles Davis (the applicant) seeks leave to appeal out of time against a decision of the Small Claims Court of the ACT given on 3 August 2007.
2. In the Small Claims Court, ActewAGL Distribution (the respondent) sought to recover monies from the applicant for tree lopping work which was carried out on the applicant’s property on 2 December 2006. The matter was determined in favour of the respondent.

Background

3. In or about 1972 or 1973, the predecessor electricity supply utility to the respondent installed power lines through what was to become residential blocks. The lines generally consisted of four bare aerial conductors (wires) and insulators on wooden poles. The power lines were installed within an electricity easement.
4. In or about August 1975 the applicant purchased one of the properties with this installation on it.
5. In the late 1970’s, the applicant planted trees under and adjacent to these power lines.
6. In 1994 the respondent’s predecessor replaced the four bare aerial conductors on the applicant’s property with a single insulated cable.

The legislation which applied

7. At the time that this work took place, the Electricity Act 1971 (ACT) contained provision for the relevant Authority to act in respect of natural growth that was or might interfere with its wire cables or other apparatus.
8. In 1994, s 90 of the Electricity Act 1971 provided:

Felling etc. of trees etc. interfering with powerlines

90. (1) Where any tree, shrub or other natural growth growing on a parcel of land is interfering or may interfere with a wire, cable or other apparatus by which electricity is transmitted, the Authority may, by notice in writing by the Authority served on the owner of the parcel of land and, if the owner of the parcel of land is not the occupier of the parcel of land, on the occupier of the parcel of land, on which the tree, shrub or natural growth is growing, require that person or those persons to fell, lop, prune or trim the tree, shrub or other natural growth –
    • (a) to the extent: and
    • (b) within the period, being not less than 7 days after the date of service of the notice;

specified in the notice.

(2) [service of notice]
(3) If the owner or occupier of the parcel of land fails to comply with a requirement under subsection (1), a person authorised by the Authority in writing for the purposes of this section may enter on the land and fell, lop, prune or trim trees, shrubs or other natural growth to the extent specified in the notice.
(4) Where, under subsection ([3]), a person authorized by the Authority enters upon a parcel of land and fells, lops, prunes or trims a tree, shrub or other natural growth, the expenses thereby incurred by the Authority are, subject to subsection (5), payable to the Authority by the person or persons on whom the notice under subsection (1) was served on demand in writing by or on behalf of the Authority and, in default of payment, are recoverable in a court of competent jurisdiction as a debt due to the Authority from that person or those persons.
(5) Subsection (4) does not apply to or in relation to the felling, lopping, pruning or trimming of a tree, shrub, or other natural growth, that was growing on the parcel of land before the erection or installation of the wire, cable or other apparatus in, or over the parcel of land.
(6) [requirement for certificate of authorisation]
(7) [obstruction offence]
(8) [definition of “owner]

9. That provision is substantially the same as the original provision in s 33 of the Electricity Act 1971 but was renumbered and revised by the Electricity (Amendment) Act 1994 (ACT) without altering its essential import as far as this matter is concerned.
10. The Electricity Act 1971 did not contain a definition of the “erection or installation” referred to in s 90(5) of the Act. The Macquarie Dictionary gives the word “installation” the meanings:

1. something installed; 2. a system of machinery or apparatus placed in position for use; 3. the act of installing; 4. the fact of being installed.

11. Particularly having regard to the second meaning cited, it is unlikely that replacement of “wires, cables or other apparatus” would be regarded as a separate installation. Nor can the initial installation be regarded as having separate components, such that the wires that were initially part of the original “erection” should be regarded as a separate apparatus from the original combination of wires, insulators and poles that constituted the “erection” referred to in s 90.
12. It is the applicant’s submission that the actions of the respondent’s predecessor in 1994 amounted to an installation. The respondent says that the work in 1994 was a replacement of four of the wires that constituted part of the apparatus with one. That did not, in the respondent’s submission, amount to an installation. I would have thought that the respondent’s analysis is correct but in 1997, acting under s 90 of the Electricity Act 1971, the respondent’s predecessor entered the property and trimmed the trees around the power lines. After objection by the applicant, the respondent’s predecessor did not press its right to recover the cost under s 90(4). However, I do not take this as a concession that s 90(5) applied because the 1994 activity amounted to an installation but rather as a concession to the difficult relationship that the applicant and the respondent’s predecessor had over the 1994 activity and the vegetation growing in and around the powerlines at that time.
13. In any event, in 2000 the Utilities (Consequential Provisions) Act 2000 (ACT) repealed s 90 of the Electricity Act 1971. The Electricity Act 1971 was renamed the Electricity Safety Act 1971 (ACT).
14. The Utilities Act 2000 (ACT) was enacted to regulate the provision of utility services including the distribution and supply of electricity from an electricity network. The provision which relates to the lopping of trees and other grown which substantially replaced s 90 of the Electricity Act 1971 is s 110. That section provides:

110 Notice about lopping trees etc on private land
(1) This section applies to network operations to the extent that they involve—
(a) the felling or lopping of trees on private land; or
(b) the trimming of roots of trees or other plants on private land; or
(c) the clearing or removal of vegetation on private land.
(2) Before a utility begins such operations, it must give the land-holder notice of the proposed operations.
(3) [requirements of notice]
(4) [waiver of right of notice]
(5) [period of compliance with notice]
(6) If the land-holder does not carry out the activity in accordance with a requirement in the notice mentioned in subsection (3) (c)—
(a) the utility may carry out the activity; and
(b) the reasonable expenses thus incurred by the utility are a debt due to the utility by the land-holder.
(7) Subsection (6) (b) does not apply to a tree or vegetation growing on the land before a network facility was installed on the land.
(8) [urgent circumstances not requiring notice]

15. In other words, the concept in s 90(5) of the Electricity Act 1971 of the “erection or installation of the wire cable or other apparatus in, or over the parcel of land” has been replaced by the concept in s 110(7) of the Utilities Act 2000 of “a network facility [that] was installed on the land”. In the Utilities Act 2000, there are extensive definitions of the elements of this concept.
16. The Dictionary to the Utilities Act 2000 provides that, “network facility” means any part of the infrastructure of a network; and “network” as having a meaning, among others, of an electricity network.
17. Section 7 provides what comprises the electricity network:

(1) For this Act, an electricity network consists of infrastructure used, or for use, in relation to the distribution of electricity by a person for supply to the premises of another person.
(2) In this section:
infrastructure means—
(a) powerlines; or
(b) substations and equipment for monitoring, distributing, converting, transforming, or controlling electricity; or
(c) a structure supporting overhead powerlines; or
(d) wires, ducts or pipes for wires, or equipment; or
(e) any other thing ancillary to any other part of the infrastructure.
(3) ...

18. Section 103 relevantly provides that “installation”:

...of a network facility, includes—
(a) the construction or extension of the facility on, over or under any land or water; and
(b) the attachment of the facility to any building or other structure; and
(c) any activity that is ancillary or incidental to an activity mentioned in paragraph (a) or (b).

19. Section 105 provides various powers regarding the installation of network facilities and s 106 deals with the maintenance of those facilities. It is clear that the maintenance of the facilities is a different activity from the installation of the facility. Section 106(2)(a) includes as maintenance of the facility:

the alteration, removal, repair or replacement of any part of the facility;

20. The application of these provisions to the activity in 1994 when the four wires were replaced by a single wire clearly demonstrates that that activity was not the installation of a network facility under s 110(7) of the Utilities Act 2000 so as to invoke the exclusion from the landholder having to pay the expenses of lopping the vegetation provided for by s 110(6)(b).

The question of law

21. The applicant identifies as the question of law upon which he would wish to appeal, that the Utilities Act 2000 has taken away a “right” that he had under the Electricity Act 1971. He asserts that such a right “cannot be safely or fairly removed by subsequent legislation” without appropriate compensation.
22. In my view, the applicant’s submission on this aspect is quite misconceived. The submission is said to be based upon the decision of the Full Federal Court in Australian Capital Territory v Pinter & Ors [2002] FCAFC 186; (2002) 121 FCR 509.
23. That was a case which involved the power of the Legislative Assembly of the ACT to retrospectively extinguish the statutory right of applicants for criminal injuries compensation to have their claim for compensation determined. It was held in that case (by a majority) that the legislative amendments were beyond power because s 23(1)(a) of the Australian Capital Territory (Self-Government) Act 1988 (Cth) declares that the Legislative Assembly has no power to make laws with respect to the acquisition of property otherwise than on just terms.
24. The acquisition of property referred to in the section under consideration, gives rise to two primary issues. Whether the rights in question are “property” and whether the rights are subject to “acquisition” (Pinter (supra), Black CJ, at 514 [25]).
25. Fundamentally, s 90(4) of the Electricity Act 1971 provides for a right for the Authority to recover a debt due in certain circumstances. Section 90(5) excludes a circumstance from that right. Section 90(5) is not a statutory property right. If it is construed as an immunity, as the applicant would wish to characterise it, that does not make it a property right. It is not a right proprietary in nature and as such is not “property”.
26. Further, it is not a right that is acquired by the enactment of s 110(7) of the Utilities Act 2000 by extending (if, in fact, it does extend what might have been meant by s 90(5) of the Electricity Act 1971) the concept of what was comprised in “the erection or installation of the wire cable or other apparatus”.
27. This question was properly considered by the referee in the Small Claims Court and I see no error of law that he made which calls into question his judgment in the respondent’s favour.
28. There was no opposition to the application for leave to appeal out of time and that may be granted, but as the proposed grounds of appeal do not raise a question of law that I consider to be fairly arguable, I dismiss the application for leave to appeal.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Associate:

Date: 12 December 2007

Counsel for the applicant: Self litigant - Mr R C Davis
Counsel for the respondent: Mr I L Male
Date of hearing: 2 November 2007
Date of judgment: 12 December 2007