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Marlborough Lines Limited v Cassels [2012] NZHC 9 (24 January 2012)

Last Updated: 1 March 2012

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

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

BETWEEN MARLBOROUGH LINES LIMITED Plaintiff

AND ALASDAIR 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] NZHC 1027; [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 it apportion responsibility for the work itself or its cost. It will be appreciated that tree trimming is an extremely important subject for a lines company like Marlborough Lines whose lines are primarily overhead. It is the

2003 regulations that define the tree and works owners‘ respective obligations regarding tree hazards. They also provide the necessary access and enforcement powers.

[8] The express purpose of the regulations is to:7

... protect the security of the supply of electricity, and the safety of the public, by—

(a) prescribing distances from electrical conductors within which trees must not encroach; and

(b) setting rules about who has responsibility for cutting or trimming trees that encroach on electrical conductors; and

_{(c) assigning liability if those rules are breached; and}

2 _{Regulation 2. Date of notification was 18 December 2003.}

3 _{Electric Power Boards Act 1925; Electricity Act 1968; Public Works Act 1981.}

4 _{Electricity Act 1968, s 19; Public Works Act 1981, s 133.}

5 Resource Management Act 1991, Part 8 (which provides a portal to the Public Works regime).

(d) providing an arbitration system to resolve disputes between works owners and tree owners about the operation of these regulations.

[9] The distance within which trees must not encroach is the growth limit zone (GLZ). There is also a wider notice zone, and a narrower dispensation zone in certain cases.

Notices

[10] The rules for cutting and trimming trees that encroach on those zones principally revolve around three sets of notices:8

(a) hazard warning notices to be given by a works owner to a tree owner, regarding trees encroaching on the notice zone (regs 6 and 7);

(b) cut or trim notices to be given by a works owner to a tree owner, regarding trees encroaching on the GLZ (regs 8-12); and

(c) no-interest notices to be given by a tree owner to a works owner, disclaiming any interest in (and therefore responsibility for) certain trees (regs 15-18).

[11] Hazard warning notices do not require a tree owner to act. They inform the tree owner about the zones, the trees encroaching on those zones, and the rights and obligations of each party.9

Cut or trim notices

[12] Once the GLZ is encroached, the works owner can issue a cut or trim notice.10 As well as providing information, the cut or trim notice triggers the tree

_{owner‘s obligation to cut or trim back to the notice zone.}11 _{Note however that it is}

8 A works owner is also permitted to act without notice in relation to trees posing an immediate danger (reg 14); and to sever and remove any tree roots to permit the safe repair or operation of an underground conductor (reg 13). Those powers are not directly relevant to this proceeding.

9 Regulation 7.

the works owner (and not the tree owner) who must pay for the first cut or trim. Thereafter financial responsibility is with the tree owner unless that owner provides a no-interest notice to the works owner (as to which see below).12 The first cut obligation is encapsulated in reg 11(2), which provides that:

The works owner must meet the reasonable costs of the cutting or trimming referred to in the cut or trim notice (whether undertaken by the tree owner or the works owner under subclause (3)) ...

[13] Regulation 11(3) provides the works owner with the power to carry out the cut or trim itself, where it has notified its intention to do so in the cut or trim notice and has obtained consent to enter the property.13 Where a works owner has exercised this power to cut or trim, the works owner owes certain further duties to the owner of any adjoining land. The works owner must:14

(a) remove or cause to be removed any resulting debris that falls on any adjoining land; or

(b) ensure that any resulting debris that falls on any adjoining land is tidied or dealt with in such a way that it does not affect the use or enjoyment of the land by its owner or occupier.

[14] The same remove or tidy obligation applies to a tree owner, where the tree owner is required to cut or trim a tree.15

[15] Hazard warning and cut or trim notices must inform the tree owner of his or her right to issue a no-interest notice and to apply for dispensation or arbitration.

No-interest notices

[16] A no-interest notice may be issued by a tree owner to the works owner in certain tightly specified circumstances.16 The effect of a no-interest notice is to cede all necessary power and responsibility for the tree to the works owner. Most

_{particularly it gives the works owner the power to remove or trim the tree at its own}

12 _{Regulation 11.}

13 _{If consent is refused, the works owner does not have to meet the reasonable costs.}

14 Regulation 11(5).

discretion,17 and shifts liability for damage to works to the works owner if it does not cut or trim the relevant trees.18 Where the works owner exercises this power to remove or trim:19

... the works owner, if so requested by the owner or occupier of the land, must either—

(a) remove or cause to be removed any debris produced in the removal or trimming of the tree; or

(b) ensure that any debris produced in the removal or trimming of the tree does not interfere with the use or enjoyment of the land by its owner or occupier.

[17] A tree owner may also apply to a works owner for dispensation in relation to a particular tree.20 It will be granted if the works owner is satisfied that the tree is unlikely to interfere with a conductor, because of the species, age or location of the tree.21 If granted, the works owner will specify a dispensation zone within the GLZ, and the tree owner need only ensure that the tree does not encroach further into the GLZ than the sub-zone covered by the dispensation.22 If the tree does cross the dispensation line, as it were, the works owner may issue a cut or trim notice and/or revoke the dispensation.23

Arbitration

[18] If a works owner refuses dispensation, or if a tree owner disagrees with the terms of the dispensation, the tree owner may apply to an arbitrator to resolve the dispute.24 Arbitrators are appointed by the Minister, ―by reason of their special

knowledge or experience‖.25 They are required to determine disputes according to

the substantial merits and justice of the case, and in doing so must have regard to the law, but are not bound to give effect to strict legal rights or obligations.26 The

17 Regulation 16(2), provided it has obtained consent to enter the property. If a land owner refuses consent, the no-interest notice is immediately rescinded: reg 17(1).

18 _{Regulation 16(3).}

19 _{Regulation 16(4).}

20 _{Regulation 19.}

21 _{Regulation 20.}

22 _{Regulation 19(2).}

23 Regulation 21(2)-(3).

arbitral decision may be made on any terms and conditions that the arbitrator thinks fit,27 and it may alter:

(a) time limits for the cut or trim obligation;28

(b) the works owner‘s power to carry out the first cut or trim and its subsequent obligation to deal with debris on an adjoining property;29 and

(c) the tree owner‘s obligation to deal with debris on an adjoining

property.30

Other aspects

[19] The works owner and a land owner may also opt out of this regime (except to the extent of the GLZ specifications) by reaching their own separate agreement on the trimming or felling of trees and associated costs.31

[20] In support of the regime, the regulations provide for summary offences for tree owners and works owners who do not comply with certain obligations,32 and for civil liability for tree owners for damage caused to conductors by non-compliance.33

[21] Finally, reg 38 expressly provides that compensation under s 58 of the Act is not affected by the regulations. Section 58 provides:

Where any tree or part of a tree or any vegetation or part of any vegetation is removed pursuant to any regulations made under section 169 of this Act, compensation, to be assessed in the manner prescribed by the Public Works Act 1981, shall be payable if the tree or vegetation was growing on the land before the construction of the works or electrical installation but not in any other case.

27 _{Regulation 31.}

28 _{Regulation 10(2).}

29 _{Regulation 11(3) and (4).}

30 Regulation 12(2).

Declarations sought

[22] The plaintiff seeks seven declarations:

Declaration 1: That it can be sufficient, in terms of reg 9(3)(b) to fairly inform the tree owner of the location and identity of the tree if the works owner plots on a map the location of the tree or trees that impinge on the GLZ and it is not always necessary to specifically identify each tree.

Declaration 2: That the obligation on a works owner in terms of reg 11(2) to meet the reasonable costs of the cutting or trimming referred to in the cut or trim notice does not, or at least does not always, include the cost of removing the debris from the property.

Declaration 3: That, in terms of reg 11(4) which deals with the removal of debris from adjoining land, the phrase adjoining land means land adjoining the property on which the tree is on, not land adjoining the tree.

Declaration 4: That a no-interest notice may only be issued in circumstances where the physical presence of the works in question predates the time of which the tree was sown or planted.

Declaration 5: That the onus is on the tree owner to prove whether a tree was naturally sown or planted, and when this occurred/That a land owner issuing a no-interest notice must provide in such notice sufficient information to establish the qualifying criteria for the issue of the notice. (Amendment sought during hearing)

Declaration 6: That, when cutting or trimming is done by a works owner following receipt of a no-interest notice and the provisions of reg 16(4) regarding removal or tidying of debris therefore apply, the decision as to whether the debris is removed or tidied is the works owner‘s and the tree owner cannot compel a works owner to remove the debris in circumstances where it can be left on the property in such a way that it does not interfere with the owner or occupier‘s use or enjoyment of the land.

Declaration 7: That the test of whether the debris will interfere with the use or enjoyment of the land by the owner or occupier is an objective one.

[23] Much of the plaintiff‘s infrastructure runs through commercial forests where obligations to trim, remove and tidy can be onerous both because of the number of trees affected and their remoteness. Understandably the plaintiff is particularly

concerned about these remote rural locations but the declarations are intended to have general effect.

[24] Mr Cassels counterclaims for four declarations that relate specifically to the live issues between himself and the plaintiff. He owns a substantial property in a remote rural location. It comprises 169 hectares in four titles, in the Marlborough Sounds. It is used as a holiday property and a base for his yacht charter business, with plans to develop a small luxury resort. The property includes residential and out-buildings, a tennis court, a swimming pool, a small vineyard, landscaping, a jetty and a walking track. This is in addition to approximately 80-100 hectares of radiata pines planted between 1976 and 1978, together with small patches of native trees. The electricity lines through his land were constructed in the early 1980s when the pines were young. In October 2009 (after earlier difficulties between the parties in identifying the correct trees for trimming), Mr Cassels received formal cut or trim notices in respect of 100 trees. In November 2009 he responded with a no-interest notice for all but five.

[25] The parties agree that the subject pine trees were planted prior to the construction and installation of the relevant power lines on the property, although some of the pine trees may have naturally self-sown. The parties also agree that, if those trees are felled, the estimated cost of removal of the debris by helicopter to a neighbouring property is in the range of $100,000-$200,000. The parties disagree, however, on whether Mr Cassel‘s no-interest notice was validly issued, and whether the plaintiff is required to remove the tree debris.

[26] Accordingly, Mr Cassels seeks the following declarations:

Declaration A: That a no-interest notice may be issued under reg 15 in circumstances where the tree or trees have been planted prior to the construction of the lines.

Declaration B: That a no-interest notice was validly issued in terms of regulations in circumstances where the tree or trees have naturally sown.

Declaration C: That a no-interest notice was validly issued in terms of reg 15.

Declaration D: That the plaintiff, in carrying out the removal or trimming of trees the subject of a No-Interest Notice must remove or cause to removed any debris produced in the removal or trimming of trees.

[27] Mr Cassels accepted that Declaration C subsumes Declarations A and B, and therefore focused his submissions on Declarations C and D.

[28] Before discussing the substance of the declarations sought by both sides, I

will deal with the primary jurisdictional point raised by Mr Cassels.

Jurisdiction to grant declaratory relief

[29] Mr Cassels said that the declaratory relief sought by the plaintiff should be refused, as a matter of jurisdiction, on the basis that there is no active inter-parties dispute or lis in relation to those declarations, and the court is prohibited from giving advisory opinions on hypothetical issues.

[30] This argument is best split into two separate questions: first, whether there is jurisdiction under the Declaratory Judgments Act 1908; and second, whether, if there is, that jurisdiction should be exercised.

[31] The plaintiff did not specify the basis for its application under the Declaratory Judgments Act, but I consider that s 3 is the most appropriate provision. Section 3 relevantly provides that any person who:

(a) has done or desires to do any act the legality of which depends on the construction of any statute or any regulation; or

(b) claims to have acquired any right under any such statute, regulation, or to be in any other manner interested in the construction or validity thereof;

may apply to the High Court by originating summons for a declaratory order determining any question as to the construction or validity of such statute or regulation.

[32] Here, both the plaintiff and Mr Cassels seek to check the legality of certain of their acts under the regulations, and their rights and obligations as determined by those regulations.34 There is thus jurisdiction to hear the application.

[33] The more difficult question is whether that jurisdiction should be exercised.35

The court will generally refuse relief where it is asked to answer hypothetical questions or interpret statutory powers in the abstract.36

[34] This reflects the general principle that it is not the function of a court in our legal system to give advisory opinions. This principle was discussed in the appellate context (the issue on appeal was moot) by the Supreme Court in Gordon-Smith v R.37

Importantly, the Supreme Court confirmed the application of the House of Lords decision in R v Secretary of State for the Home Department ex Salem;38 and held that it had discretion to hear a moot appeal where ―there is an issue involving a public authority as to a question of public law‖ or in analogous situations and where there was good reason to do so.39

[35] The Supreme Court gave leave to appeal the moot issue – in that case whether it was appropriate for the police to obtain and provide to Crown counsel non-disqualifying criminal history information relating to a jury panel and whether that information should be disclosed to the defence. The court held that this issue was, or was analogous to, a public law issue for the purpose of Salem. The court also assessed the facts of that case against the three key reasons for avoiding

essentially advisory opinions. Those reasons are:40

(a) first, the importance of the adversarial nature of the appellate process; In Gordon-Smith, the issue on appeal was not fact dependant. There

_{was unlikely to be any new matter raised in another appeal that would}

34 And while this proceeding was not commenced by originating application, r 18.4 of the High Court

_{Rules allows for its commencement by statement of claim.}

35 _{Declaratory Judgments Act 1908, s 10.}

36 See Secretary for Internal Affairs v Kilbirnie Tavern Ltd HC Wellington CIV-2007-485-1988, 14

_{November 2008 at [33].}

37 _{Gordon-Smith v R [2008] NZSC 56, [2009] 1 NZLR 721 from [13].}

38 _{R v Secretary of State for the Home Department ex Salem [1999] 1 AC 450 (HL).}

39 Gordon-Smith at [15] and [29].

not be raised in this, and the hearing would be appropriately adversarial, through counsel for the parties and amicus if necessary.

(b) second, the need for economy in the use of limited resources of the courts;

The issue was of significant public importance and was highly likely to come before the court again at some point. Dealing with it now would avoid the possible disruption of another trial through adjournment while the issue is resolved.

(c) third, the responsibility of the courts to show proper sensitivity to their role in our system of government.

The issue was not one which was more appropriately left to legislation.

[36] More recently in Mandic v Cornwall Park Trust Board Inc,41 the Supreme Court rejected the ‗requirement‘ of an active dispute, or lis.42 The issue was not material to the outcome in that case, however the Chief Justice (with whom the majority judgment concurred)43 felt it necessary to disagree with the Court of Appeal.44 The Chief Justice said:45

The Court of Appeal prefaced its determination with observations about the scope of the jurisdiction under the Declaratory Judgements Act, suggesting that it was one of ―limited availability‖. The Court of Appeal considered that an applicant for declaratory judgment would normally have to ―establish the existence of a genuine dispute or a lis‖ and overcome the ―threshold‖ of being able to point to ―an actual controversy between the parties which cannot be more appropriately determined in another forum, such as by arbitration.‖ Its subsequent separate discussion of discretion indicates that the Court was not simply emphasising the discretionary nature of the jurisdiction, or that application for declaratory order is inappropriate when there are questions of fact to be determined (as is implicit in the terms of

41 The judgment was released between the date of hearing and the delivery of this judgment. I thank counsel for drawing it to my attention.

42 _{Mandic v Cornwall Park Trust Board Inc [2011] NZSC 195.}

43 _{At [82].}

44 At [4].

s 3). Rather, it seems to have been suggesting a narrower jurisdiction than is suggested by the language of s 3 of the Declaratory Judgments Act.

[37] The Chief Justice emphasised that s 3 contains its own threshold for jurisdiction. Once that threshold is met, ―[a]ccess to the jurisdiction does not depend on there being an existing dispute. Nor is it necessary that there be a lis.‖46

[38] So, without reading additional requirements into s 3, the courts will approach applications for declarations on hypothetical scenarios with caution. In this case, I intend to consider each declaration against the considerations identified by the Supreme Court in Gordon-Smith.47 As will be seen, I do not think it is appropriate to treat the declarations sought as a job lot for the purposes of the exercise of the s 3 discretion.

Declaration 1: That it can be sufficient, in terms of reg 9(3)(b) to fairly inform the tree owner of the location and identity of the tree if the works owner plots on a map the location of the tree or trees that impinge on the GLZ and it is not always necessary to specifically identify each tree.

Arguments

[39] Regulation 9(3)(b) requires that a cut or trim notice contain sufficient information to fairly inform the tree owner of the location and identity of the tree.

[40] The plaintiff contended that it is neither necessary nor always possible to identify each tree to which an encroaching branch belongs. The plaintiff had in mind a rural setting, and large stands, commercial plantings or areas of bush. It provided as an example, Mr Cassels‘ situation, where the trees had to be identified by expensive survey positioning because of their remoteness.

[41] Mr Cassels argued that declaratory relief was not appropriate in this case. Mr Smith joined in that submission, on the basis that the declaration concerned a highly-fact dependent, hypothetical scenario.

[42] In any event, Mr Smith said that the language of the regulation is plain; the tree owner needs to be able to identify the encroaching tree. The tree owner faces a significant obligations in response to a cut or trim notice (and is subject to summary criminal liability if he or she fails in that respect), and therefore it would be unfair to leave him or her in position where he or she is not sure which tree requires work.

Analysis

[43] I do not think declaratory relief is appropriate in relation to Declaration 1. While Mr Cassels‘ situation provides some factual basis for this declaration, it is no longer a live dispute. The plaintiff was able to identify the encroaching trees, to the satisfaction of Mr Cassels. Beyond that, specificity of identification is not an issue that can be determined in the abstract. The language of the regulation is plain; the works owner is required to ―fairly inform‖ the tree owner of the location of the tree. Whether the works owner has met that obligation is going to be entirely fact dependent. Granting this declaration would not provide any useful general guidance and could well lead to further confusion.

[44] That said, I also accept that this is not the sort of issue that an electricity provider can or should have to bring to the court for decision on a case-by-case basis (where it cannot be resolved between the works and tree owners). Nor should the electricity provider have to incur excessive expense out of an abundance of caution.

[45] This is exactly the sort of issue that the arbitration regime established by the regulations should be expressly empowered to address. As the regime presently stands, the arbitrator‘s decision can affect a range of matters, but the arbitration itself can only be triggered by a dispensation decision. This is much narrower than the situation under the old Trees (Electric Lines) Regulations 1986, for example, which

were replaced by the current regulations.48 There the tree owner or the Authority

could seek arbitration ―[w]henever there is a dispute between a tree owner and an

_{Electrical Supply Authority as to the interpretation or application of the Code of}

48 The Trees (Electric Lines) Regulations 1986 were more limited in scope. They did not themselves set standards for tree hazard management; instead, they required compliance with, and provided for enforcement of, a Code of Practice for Shelter-belt Trees.

Practice for Shelter-belt Trees‖.49 A wider role for arbitrators is not precluded by s 169 of the Act, which generally empowers regulations providing ―for arbitrators for the purposes of this Act or any regulations made under this section‖.

[46] This is an issue that I will return to throughout this judgment. Most, if not all, of the difficulties being experienced by the plaintiff would be better determined by an arbitrator, with practical knowledge as to electricity reticulation, and on a case- by-case basis.

[47] Accordingly, while relief is declined, this decision should be brought to the attention of the relevant officials in (I presume) the Ministry of Economic Development in the hope that appropriate amendments can be considered to make the regime more cost effective and user friendly.

Declaration 2: That the obligation on a works owner in terms of reg 11(2) to meet the reasonable costs of the cutting or trimming referred to in the cut or trim notice does not, or at least does not always, include the cost of removing the debris from the property.

Declaration 3: That, in terms of reg 11(4) which deals with the removal of debris from adjoining land, the phrase adjoining land means land adjoining the property on which the tree is on, not land adjoining the tree.

[48] As these declarations both relate to regs 11 and 12, I will consider them together.

[49] Regulation 11(2) provides that:

The works owner must meet the reasonable costs of the cutting or trimming referred to in the cut or trim notice (whether undertaken by the tree owner or the works owner under subclause (3)).

[50] Regulation 11(4) provides that:

If a works owner exercises the powers conferred by subclause (3), the works owner must—

(a) remove or cause to be removed any resulting debris that falls on any adjoining land; or

(b) ensure that any resulting debris that falls on any adjoining land is tidied or dealt with in such a way that it does not affect the use or enjoyment of the land by its owner or occupier.

Arguments

[51] The plaintiff contended that:

(a) the works owner does not have to pay for removal of debris under reg

11, except to the extent that reg 11(4) applies. It said that is the plain meaning of reg 11, and the policy of the first cut responsibility does not require any other interpretation; and

(b) ―adjoining land‖, in reg 11(4), means land in a different allotment or title. The plaintiff also went further and suggested that the adjoining title should also be owned by someone other than the tree owner before the works owner‘s obligations in this respect are triggered.

[52] Mr Cassels maintained his general objection to jurisdiction, on the basis that the active dispute between himself and the plaintiff does not require these declarations. Mr Cassels‘ argument is weakened, however, by the Supreme Court‘s decision in Mandic.50

[53] In earlier correspondence with the plaintiff, Mr Cassels took the position that

―adjoining land‖ meant land adjoining the tree.

[54] Mr Smith did not stress the jurisdiction point. Rather, he argued that cutting and trimming necessarily results in debris, and therefore it is unfair and artificial to separate cost of debris from cost of the cut and trim; and that the works owner should be obliged to remove any debris that it causes (whether it falls on one title or another).

Analysis

[55] I am satisfied that this is an appropriate case to exercise the declaratory jurisdiction. The regulation of tree hazards, and the balance between property rights, public safety and the commercial interests of energy companies, has important public law aspects. While there is no live factual scenario, the issues raised by the plaintiff are able to be dealt with as a question of statutory interpretation in a way that is not fact-dependent. Without a broad-based arbitration mechanism in the regulations, it is not reasonable to leave these issues unresolved. A live factual scenario will add little, if anything, to any future consideration. Mr Smith has effectively provided the counter-view, as indicated by Mr Cassels in correspondence with the plaintiff.

[56] Turning then to substance, I note that reg 11 (which imposes the first cut obligations) is obviously an exception to the usual rule that the tree owner is responsible for cutting and trimming.51 Regulation 12(1) applies after the first cut, and almost identically provides:

If a tree owner is required by these regulations to cause a tree to be cut or trimmed, the tree owner must either—

(a) remove or cause to be removed any resulting debris that falls on any adjoining land; or

(b) ensure that any resulting debris that falls on any adjoining land is tidied or dealt with in such a way that it does not affect the use or enjoyment of the land by its owner or occupier.

[57] Regulation 12, in my view, is the answer to both of the questions raised by the declarations sought.

[58] As to the meaning of adjoining land, the terms of reg 12 are inconsistent with construing that phrase to mean land adjoining the tree. The regulations would not need to set requirements around the tree owner removing debris from his or her own property; the tree owner would simply deal with that him or herself. Accordingly, adjoining land must at least be land adjoining the property on which the tree is growing. This interpretation is also consistent with reg 15(2)(c), which contrasts ―on

_{the land on which the tree is growing, or on the adjoining land‖. There, clearly,}

51 Regulation 10.

adjoining land is the land adjoining the land on which the tree grows (and not the land on which the tree grows).

[59] As an aside, I note that the plaintiff raises a further issue: whether the adjoining land must be adjoining land that is not also owned by the tree owner. While I have considerable sympathy for the stance taken by the plaintiff here, I do not think it is appropriate for any declaration to extend into such detail. Although the drafter was probably concerned for innocent third parties whose land might become littered with debris from next door, ‗adjoining land‘ is not a particularly apt phrase to distinguish between different owners; I consider that it would be a matter

of amendment, rather than interpretation, to establish that distinction.52 In any event

the effect of common ownership on the merits of a land owner‘s position, along with other possibly difficult factual scenarios, would be better addressed on a case-by- case basis by arbitrators. My comments at [45]-[47] therefore apply equally here.

[60] As to responsibility for debris, my interpretation of adjoining land explains the distinction created by sub-regs 11(2) and (4). Regulation 11 effectively provides that the works owner must step into the tree owner‘s shoes for the first cut or trim: either by paying the reasonable cost of that cut or trim ((2)), or by carrying it out ((3)). In the former case, the tree owner does the work, and reg 12(1) obliges that person to deal with any mess he or she leaves on an adjoining property. In the latter case, the tree owner has no duty, and so the obligation is transferred to the works owner; enter reg 11(4). Accordingly, the separation of sub-regs (2) and (4) does not mean that debris removal is conceptually separate from the cut or trim: it simply recognises that debris removal on adjoining land needs to be separately provided for, to protect third parties. I would add that the phrase ―reasonable costs of the cutting or trimming‖ in reg 11(2) does not itself require the narrow interpretation suggested by the plaintiff: debris is a necessary result of that cut or trim, and so it is not artificial to say that the cost of dealing with debris is a cost of that cut or trim. Accordingly, under reg 11(2), the reasonable cost of the first cut or trim includes the reasonable cost of dealing with debris.

[61] Finally, I do not consider that reg 14 is helpful. Regulation 14 applies where there is immediate danger to persons or property. The works owner is under an obligation to cut or trim ((1)), and is expressly responsible for the removal of debris ((4)). The tree owner is liable for reasonable direct costs of ―work‖ performed under sub-reg (1) in certain cases ((5)). ―Direct costs‖ includes ―the costs of the removal of any debris‖ ((6)).

[62] Regulation 14 can be distinguished. Regulation 11, although an exception, is part of the usual regime established by the system of notices, and governed by the various zones. It requires the works owner to foot the bill for the first cut, either by carrying out the work or by paying for it. Regulation 14 is a completely separate regime; no notices are issued, the trigger is danger and the extent of the cut is only to alleviate that danger. The tree owner cannot carry out the work, only the works owner. And finally, the list of ―direct costs‖ are of the ―work‖ (not the cut or trim), includes such things as ―remedying any damage to works‖. I do not consider that the express reference to removal of debris in reg 14(4), requires a different interpretation of reg 11(2).

[63] The parties also referred to statements (or the absence of them) in Cabinet (or Cabinet-related) preparatory material in support of their arguments. I do not need to rely on those statements, as the answer can properly be found in the words and structure of the regulations.53 In any event I am concerned about the way this material was admitted: there was insufficient explanation of what these documents were, when they were prepared and by whom, how they fit into the decision-making

process, and whether the record was complete. The material was simply admitted as part of the common bundle, with only handwritten citations identifying some of the documents. It is difficult to have confidence in that material in those circumstances. In my view such material should only be admitted as evidence through an appropriately senior official who is able to explain what it is, how it fitted into the drafting process, what is missing and why.

[64] Finally, however, I accept the plaintiff‘s argument that it would be strange to place a greater obligation to deal with debris on non-adjoining land than on adjoining land. Given that the regulations are silent on this issue, I have amended the declaration to refer to ―dealing with debris‖ rather than simply ―debris removal‖. I have also slightly amended the plaintiff‘s Declaration 3 for grammatical correctness.

[65] Accordingly, I make the following declarations:

(a) That the obligation on a works owner in terms of reg 11(2) to meet the reasonable costs of the cutting or trimming referred to in the cut or trim notice includes the reasonable cost of dealing with debris not on adjoining land.

(b) That, in terms of the removal of debris from adjoining land, the phrase adjoining land means land adjoining the property on which the tree is on, not land adjoining the tree.

Declaration 6: That, when cutting or trimming is done by a works owner following receipt of a no-interest notice and the provisions of reg 16(4) regarding removal or tidying of debris therefore apply, the decision as to whether the debris is removed or tidied is the works owner’s and the tree owner cannot compel a works owner to remove the debris in circumstances where it can be left on the property in such a way that it does not interfere with the owner or occupier’s use or enjoyment of the land.

Declaration 7: That the test of whether the debris will interfere with the use or enjoyment of the land by the owner or occupier is an objective one.

Declaration D: That the plaintiff, in carrying out the removal or trimming of trees the subject of a No-Interest Notice must remove or cause to removed any debris produced in the removal or trimming of trees [if requested by the land owner].

[66] It is useful to consider these declarations together, at this point, as they relate more to debris than to no-interest notices.

[67] Regulation 16(4) provides that:

If a works owner causes a tree to be removed or trimmed under subclause (2), the works owner, if so requested by the owner or occupier of the land, must either—

(a) remove or cause to be removed any debris produced in the removal or trimming of the tree; or

(b) ensure that any debris produced in the removal or trimming of the tree does not interfere with the use or enjoyment of the land by its owner or occupier.

Arguments

[68] The plaintiff contended that the land owner can request that debris be addressed by the works owner, but the works owner gets to decide how to deal with it in terms of the two options contained in reg 16(4). The plaintiff contended that an objective, rather than subjective, test must apply; otherwise Parliament‘s intention to limit the cost of debris removal would be rendered futile, because an owner could insist on removal regardless of cost.

[69] Mr Cassels argued, in support of his counter-declaration, that the land owner is able to request either option, on the basis of his or her subjective belief in interference. He referred to his own situation, and his belief that visible debris impacts on the scenic and aesthetic value of his property as a holiday home now and as a luxury resort in the future.

[70] Mr Smith, as the contradictor, joined in Mr Cassels‘ argument. He also argued that the corollary of the plaintiff ‘s argument is that the works owner could always insist that debris removal was not required and that tidying did not interfere with the land owner‘s use and enjoyment.

Analysis

[71] As these are issues of statutory interpretation, with a live dispute as illustration, and with effective contradiction, I consider that this is an appropriate case in which to consider declaratory relief.

[72] Substantively, I accept that plaintiff‘s argument that ―if so requested by the [land] owner‖ refers to the obligation to deal with debris, not the method of dealing. Regulation 16 must be seen in the context of the no-interest notice: but for the no- interest notice, the tree owner would have been required to cut or trim that tree, and deal with debris. Although he or she has ceded responsibility for the danger posed by the tree to the works owner, it does not follow that he or she has taken the same

view in respect of the debris.54 Given the burden already transferred to the works

owner, I think it is reasonable, in that scenario, for the works owner to assume that the land owner does not require debris to be dealt with, unless the land owner requests otherwise. I also note that the adjoining land owner does not get to choose between debris options under regs 11(4) and 12(1). I agree with the plaintiff that a no-interest land owner should not be placed in a superior position to the (usually) more deserving adjoining land owner.

[73] Once the land owner requests the tree owner to address debris, the plain words of reg 14 gives the work owner the choice between removing or tidying the debris that remains. The test then as to whether the debris can be tidied so as not to unduly interfere in the land owner‘s use and enjoyment will necessarily be objective.

[74] The plaintiff will be entitled to declarations 6 and 7 accordingly. Mr Cassel‘s

application for Declaration D is dismissed.

[75] That said, this is another issue where an independent arbitrator to resolve disputes would be of great assistance to the official guarantor of the regulations. The absence of provisions for arbitration over treatment of debris leaves land owners with no practical recourse if they disagree with works owners. This seems

_{inappropriate.}

54 The preparatory material filed refers to a belief among officials at least, that tree owners would want the debris for firewood purposes.

Declaration 4: That a no-interest notice may only be issued in circumstances where the physical presence of the works in question predates the time of which the tree was sown or planted.55

Declaration A: That a no-interest notice may be issued under reg 15 in circumstances where the tree or trees have been planted prior to the construction of the lines.

Declaration B: That a no-interest notice was validly issued in terms of regulations in circumstances where the tree or trees have naturally sown.

Declaration C: That a no-interest notice was validly issued in terms of reg 15.

[76] Regulation 15 provides that an owner or occupier of any land on which a tree is growing may give a no-interest tree notice to a works owner in three situations:

(a) the tree was naturally sown in the vicinity of an existing works;

(b) the tree was planted in the vicinity of an existing works before

16 January 2004 and at the time of planting, the tree owner believed on reasonable grounds that the tree, when fully grown, would not interfere with any conductor;

(c) the tree was planted in the vicinity of an existing works on or after

16 January 2004, and at the time of planting, the tree owner believed on reasonable grounds that the tree, when fully grown, would not encroach into the GLZ.

[77] ―Existing works‖ is defined by the Act, but not by the regulations. Section 2(1) provides that existing works means:

... any works constructed before the 1st day of January 1993; and includes any works that were wholly or partly in existence, or work on the construction of which commenced, before the 1st day of January 1993:

55 I have accepted the amendment of this declaration from the statement of claim. While Mr Cassels opposed that amendment, his submissions accept that the plaintiff ‘s position - in relation to Mr Cassels - has always been that reg 15 did not apply to trees planted before the installation of the relevant electricity works. Accordingly, there is no prejudice.

[78] If existing works has the same meaning in the regulations as in the Act, then the trees in this case would satisfy scenario (b) above.

Arguments

[79] The plaintiff argued that the Act‘s definition of existing works is not appropriate for the regulations: the purpose and context of the regulations requires that ―existing works‖ means works existing at the time the tree was planted or sown. The plaintiff argued that the focus of reg 15 is the tree owner‘s conduct in relation to the risk of damage, not an arbitrary line at 1 January 1993. The plaintiff also pointed to the foresight requirements of reg 15: it said that these assume that works are in place (existing) at the time of planting.

[80] Mr Cassels, on the other hand, argued that the definition in the Act is appropriate and can be applied. He referred to s 34 of the Interpretation Act 1999, which provides a rebuttable presumption56 that ―a word or expression used in a regulation ... has the same meaning as it has in the enactment under which it is made‖. He said that that rule was not rebutted in this case. In particular, he said that the plaintiff‘s definition – not the Act‘s – would result in absurdity; on plaintiff‘s

definition, trees sown or planted prior to the construction of the works – without any knowledge or foresight of the works – could not be the subject of a no-interest notice, despite it being the works owner‘s decision to construct the lines in the vicinity of those trees that creates the conflicts.

[81] Mr Smith joined in that submission. He also said that the pre- and post-1993 distinction can be explained by the particular concern of the regulations, according to the preparatory material, to keep trees clear of existing (pre-1993) works. Works constructed since 1992 are subject to the Resource Management Act mechanisms and ―rights‖ around works corridors are better provided by resource consents and easements.

[82] He also argued that reasonable foresight does not require that works predate the trees – if no works exist, then the tree owner will automatically meet the foresight requirement.

[83] Finally, Mr Smith proposed a third alternative: that ―existing works‖ could be read very broadly, to include all works ―existing‖ at the time that the no-interest notice is issued. He said that this definition would best meet the purpose of the regulations to disallow no-interest notices where the tree owner reasonably foresaw the danger posed by the trees to electricity works.

Analysis

[84] It is clearly appropriate that I consider this issue for declaration. It is a live issue in the plaintiff‘s dispute with Mr Cassels, and Mr Cassels and Mr Smith combine to provide effective contradiction. And of course the definition of ―existing works‖ is a matter of construction of the regulations in terms of s 3 of the 1908 Act.

[85] At the outset, I reject Mr Smith‘s third definition: if ―existing works‖ meant works that ‗existed‘ at the time the notice was issued, the regulation would simply have said ―works‖.57 ―Existing‖ must mean something. Accordingly, there are two realistic possibilities for the definition of existing works in the regulations:

(a) works constructed before the 1st day of January 1993, in accordance with the Act; or

(b) works constructed prior to the planting of the trees, in accordance with the particular context of the regulations.

I prefer option (a) above for the reasons outlined below.

[86] First, I note that there seems to be nothing on the face of the no-interest regime that sheds any light on the definition of existing works. The parties all accept that the regime was intended to benefit tree owners whose conduct has not unduly

contributed to tree hazards. However, that purpose does not explain the existing works requirement, because both definitions advanced are capable of producing in counterintuitive results: in the former case, because the regime is not available to trees in the vicinity of post-1992 works; and in the latter case, because the regime does not apply to trees in the vicinity of works constructed after the trees were planted. In neither case reflects undeserving conduct by the tree owner yet it is the tree owner who suffers.

[87] Second, the phrase ―existing works‖ is not used anywhere else in the regulations. It plays an important role in the Act, however. As I have said, prior to the Act, electricity power boards had a statutory right to enter private property to construct and maintain electrical works,58 and to trim trees.59 In 1992, privatisation

of the electricity industry saw boards become energy companies60 and lose their

statutory rights of access in favour of Resource Management61 and private law processes, except in relation to existing works.62 Even in the case of existing works, however, the right of access did not extend to prevention of tree hazards. This is where the regulations come in.

[88] Third, keeping in mind my misgivings as to the way it was admitted,63 the Cabinet preparatory material, as far as it goes, supports the argument that the Act‘s definition of existing works was intended. ―Existing works‖ played a greater role in early proposals as the regulations were initially intended to be more limited in their application. For example, in 1995 the Minister proposed that the regulations apply:64

... in full to trees near existing works, and trees planted or permitted to be planted near new works after their construction. In the case of new works they would apply only in respect of clearance distances. (The construction of new works is governed by the consents process in District Plans under the Resource Management Act 1991, and where they are on private land distributors are expected to obtain easements.)

58 _{Electric Power Boards Act 1925; Electricity Act 1968; Public Works Act 1981.}

59 _{Electricity Act 1968, s 19; Public Works Act 1981, s 133.}

60 _{Energy Companies Act 1992.}

61 _{Resource Management Act 1991, Part 8 (which provided some access to the Public Works regime).}

62 _{See Electricity Act 1993, s 23.}

63 _{See [63].}

64 Cabinet Paper ―Electricity Act 1992: Proposal for Regulations for the Control of Trees near

Electricity Lines‖ CIE (95) 232 at [10].

[89] Here ―existing works‖ is clearly used in contradistinction to ―new works‖, and by reference to the changes to the access regime brought about by the Act and privatisation. While the limited application at some stage lost favour, it seems likely to have led to ―existing works‖ being adopted in the no-interest notice regime.65 And while overall this material is vague, it is sufficient to assure me that the presumption that the Act‘s definition flows through the regulations has not been rebutted in this

case. That definition may be counter-intuitive in some situations, and may have been an unintended hangover from earlier abandoned proposals, but that is for the executive to consider, not me. There is, in short, no good reason to deviate from the direction contained in the Interpretation Act.

[90] I have adjusted the wording of Mr Cassels‘ declaration to limit it to my

conclusion and to provide more general assistance. Accordingly, I declare that:

That ―existing works‖ for the purpose of reg 15 has the same meaning as in

s 2(1) of the Electricity Act1992.

Declaration 5: That the onus is on the land owner to prove whether a tree was naturally sown or planted, and when this occurred/That a land owner issuing a no-interest notice must provide in such notice sufficient information to establish the qualifying criteria for the issue of the notice (amendment sought in the course of hearing).

Arguments

[91] Finally, the plaintiff argued that a land owner cannot simply assert that the reg 15 criteria apply: he or she needs to provide some basis for this. The Works owner does not have the necessary information to determine the validity of the claim (i.e. planting history and/or the land owner‘s belief at the time of planting), and therefore it is fair to require the land owner to provide it.

[92] Mr Smith argued that a rebuttable presumption of validity best met the purpose of the regulations. Regulations 15 and 24 provide detailed requirements for

_{the issue of a no-interest notice, yet do not require the issuer to produce supporting}

65 Later material is of little assistance. There is nothing to suggest that another definition of ―existing works‖ was intended.

evidence. A requirement of evidence is onerous, and is not consistent with the short time for issuing a notice (10 days). And finally, unless the works owner is required to provide an evidential basis for invalidity, it has an incentive to deny validity in all cases.

[93] Mr Cassels challenged jurisdiction only.

Analysis

[94] The requirements for a no-interest notice under reg 15, as far as I see them are:

(a) the relevant encroachment or interference relates to an ―existing work‖ (as I have defined it above); and

(b) the tree was:

(i) naturally sown; or

(ii) planted before 16 January 2004 and there was no reasonable apprehension of eventual interference with a conductor at the time of planting; or

(iii) planted after 16 January 2004 and there was no reasonable apprehension of eventual encroachment on a GLZ.

[95] For the no-interest notice system to function properly, it will be necessary for the tree owner to provide sufficient particulars to establish that one or other of these requirement pathways is satisfied. Thus: ―These are wilding pines‖, will be sufficient, as would ―The trees were planted before the works‖. On the other hand,

―I had no idea that kahikatea could grow that tall,‖ would probably fail the reasonable belief or apprehension test. In short, sworn affidavits or lengthy particulars would seem to be quite unnecessary, but the provision of some information directed at the criteria is required.

[96] Once again though, the absence of an independent and cost effective arbiter when the parties fall into dispute over entitlement to issue no-interest notices, seems to be a significant flaw which should be remedied.

[97] The plaintiff will be entitled to a declaration as follows:

A land owner issuing a no-interest notice must provide in such notice sufficient information to establish to a prima facie standard that the relevant criteria are met.

Costs

[98] The parties have shared the spoils in this proceeding. There will be no order for costs as between the named parties. The plaintiff will meet the Crown‘s

_{reasonable costs.}

Williams J