Tree clearing (D/98/4)
Case number: D/98/4
Date of Decision: 16 April 1999
Decision accepted by the customer: Yes
A customer contacted EIOV to complain that his electricity company had removed four mature trees on an easement at the rear of the customer's property.
The customer stated that he had bought the trees, planted them and nurtured them for over 19 years. About 15 years ago, the SECV had installed a high voltage powerline across his property in order to supply his neighbour's property. Since then, both the SECV and the customer's present electricity company had trimmed and pruned the trees that were underneath and close to the powerline.
The customer stated that in recent years the pruning had become more vigorous and had resulted in the trees losing their natural shape and becoming lopsided.
In 1996, the electricity company advised the customer that the four trees had to be removed in accordance with the Code of Practice for Tree Clearing 1992 because they were too close to the powerline. The customer stated that he had reluctantly agreed to the removal of the trees because he believed he did not have a choice, and because by that point the trees had lost much of their aesthetic value because of the pruning carried out by the company.
The customer told EIOV that he was unhappy that the trees had been removed and he was dissatisfied with the pruning practices of the electricity company. He wanted compensation from the company for the removal of the trees and for the consequent loss of amenity and aesthetic value of his property.
In its investigation, EIOV requested information from the electricity company that included details of communication with the customer, the company's policy regarding the trimming and pruning of trees located near powerlines, and its responsibilities under relevant legislation, regulations and codes regarding tree clearance.
The company advised EIOV that the trees that were removed had been trimmed and pruned over the years in accordance with regulatory requirements and in recent years, in accordance with the Code of Practice for Powerline Clearance (the Code). It also advised that since the time the line was constructed, tree clearing practices had become well defined and relatively vigorous. The company further advised that because of their species and proximity to the powerline, it was not able to trim the trees and leave them with some amenity and aesthetic value and resembling their natural form, its only option therefore being to remove them.
The company stated that this was made clear to the customer at the time, and that the customer agreed to the removal of the trees, "even if reluctantly". It also advised that it had provided the customer with a voucher for 250 replacement tree tubes.
EIOV sought regulatory advice from the Office of the Chief Electrical Inspector (OCEI) about the customer's and the company's rights and responsibilities. OCEI advised that it believed the company had breached the Code through its actions, including not advising the customer of his rights under the Code in such a situation.
EIOV also sought advice from an independent aboricultural consultant, to obtain an assessment of any financial loss that the customer had experienced as a result of the trees being removed. The consultant provided his opinion as to this. He also advised that two of the trees removed were shrubs that would not have grown into the clearance space of the powerline, and further that the other two trees could have continued to have been trimmed by the company to maintain proper clearance, notwithstanding that this would continue to affect their natural shape.
As the case was not settled by conciliation following EIOV's investigation, the matter proceeded to a Binding Decision by the Ombudsman. In her determination, the Ombudsman found that the company had not fulfilled all of its obligations under the Code and had failed to meet the spirit of the Code by not undertaking proper consultation with the customer prior to removing the trees. In the absence of the company's doing this, the customer's reluctant acceptance of the tree clearing was obtained in ignorance of his rights, and did not therefore constitute "agreement" for the purposes of the Code. The Ombudsman noted OCEI's advice regarding the company's actions, and also took into account the advice and assessment of loss provided by the independent aboricultural consultant and photographic evidence provided by the customer following the tree clearing.
The Ombudsman determined that it was fair and reasonable that the company pay to the customer the sum of $2,280, which took account of the value of the tree voucher the company had given the customer.