The review of the Electricity (Hazards from Trees) Regulations 2003: Summary of Submissions - What we heard

Submitters’ views on the overall proposal to amend the Tree Regulations

Overall, respondents recognised the importance of electricity and understood that there should be mitigations in place to reduce threats to electricity supply. Whilst most submitters agreed with the issues identified in the paper, some submitters did highlight additional issues which they felt should be taken into consideration.

Some stakeholders stressed that the focus of the regulations should be more on the security of electricity supply. They stated that the discussion document should have put greater emphasis on the safety and financial impacts of electricity outages to communities and vital civil infrastructure.

Some submitters did not agree with the 5 issues identified in the document and suggested that there was not enough evidence of a problem to justify changing the Tree Regulations. They stated that more analysis should be undertaken before any amendments are made to the regulations.

Many respondents stated that vegetation is a living asset which helps to deliver sustainable, healthy and a liveable environment. They stressed that vegetation is just as important and essential as the electrical supply infrastructure.

Some respondents expressed frustrations about the administrative burden of the Tree Regulations and advocated for simpler regulations which would reduce administrative costs.

Some respondents questioned the objective of the regulations and stated that electricity lines should be perceived as the risk, not vegetation. In general, forestry stakeholders were concerned that the costs imposed on them by electricity lines corridors had not been sufficiently considered by MBIE in the discussion document.

Submitters’ views on how the Tree Regulations interacts with Te Triti o Waitangi

Submitters acknowledged that the Tree Regulations should uphold the principles of Te Tiriti o Waitangi.

One respondent noted that forestry plays a significant role in iwi commercial activities and their ownership needs to be recognised as part of MBIEs review.

Many stakeholders emphasised that MBIE should be mindful of the impact of adding further costs and constraints in relation to land or forestry returned to Māori under Treaty settlements.

Some submitters suggested that the resolutions process should be designed with the interests of Māori and their position as kaitiaki and emphasised that land is seen as an intergenerational asset.

Submitters’ views on introducing restrictions on where trees can be planted or replanted

MBIE sought views about whether there should be restrictions on planting of trees. Many respondents were supportive of restricting the distance in which new trees can be planted or replanted in proximity to electricity lines. Stakeholders emphasised that it could prevent the risk from getting worse in the future.

One of the key themes raised by this approach was the financial implications. Forestry stakeholders argued against further restrictions to planting unless compensation was provided by the owners of the affected lines, including for Emission Trading Scheme (ETS) liabilities.

Some respondents suggested that the species of vegetation should be taken into consideration. They stated some vegetation does not grow as tall as electricity lines and could be planted closer to lines, as it does not present the same risks.

Others suggested planting restrictions should focus on the voltage and resilience of a line. If the line is of a high voltage or provides power to infrastructure where there is no back up in the network if the line was damaged, planting restrictions should be wider.

Some stakeholders stated that the discussion document focused too much on the impact on rural areas and forestry plantation businesses. Several stakeholders suggested that MBIE should consider the impact this policy may have on urban areas and horticultural businesses.

Some submitters indicated that such restrictions could be inconsistent with other national and local initiatives where vegetation growth is encouraged, such as the Emission Trading Scheme and local councils’ climate plans.

Submitters’ views on issue 1 - How should vegetation risks outside the Growth Limit Zone (GLZ) be managed?

MBIE’s preferred option

MBIE’s preferred approach was to introduce a new notice category that allowed works owners to issue vegetation owners with a notice that a vegetation hazard outside of the GLZ posed a risk to electricity lines. Failure to respond to the notice would attract penalties and create potential liabilities. This notice power would allow risks outside the GLZ (such as potential treefall) to be addressed but be more targeted than simply widening the GLZ.

The discussion document also included an option of an expanded GLZ. While it wasn’t MBIE’s preferred option, it attracted a lot of feedback from forestry owners and managers.

Cost implications

Many submitters highlighted the cost implication of expanding the footprint of vegetation management beyond the GLZ. Several stakeholders said that the discussion document needed to consider a broader range of costs. One of the key costs which lines owners said should be considered by MBIE was the impact of losing power to strategically important civil infrastructure, for example, water management and hospitals, as well as to other businesses and consumers. By contrast, forestry submitters highlighted the loss of productive land use, increased weed management costs and ETS liabilities.

Several stakeholders were concerned that the options set out in the discussion document would not balance cost obligations effectively and would increase the burden of forestry stakeholders.

Expanding the GLZ

Most forestry stakeholders perceived MBIE’s proposals to be eroding property rights beyond the scope that they considered they had been forced to accept in 1992, when the Electricity Act was introduced. Lines companies considered that many of the properties will have changed ownership since 1992. Therefore, the location of lines on the land would have been taken into account in the purchase cost of the land.

Some stakeholders advocated for expanding the GLZ to a larger area, but this attracted limited support. Those in favour of expanding the GLZ argued that a larger GLZ would reduce the number of complex issues and risks associated with managing vegetation around lines. One stakeholder submitted that it was difficult, even for expert arborists, to anticipate which trees were most at risk. Another respondent suggested that in an extreme weather events even healthy trees could be brought down.

Many submissions argued that overhang from vegetation present risks to lines and workers and promoted a “clear to the sky” version of the GLZ, which limited such overhang.

It was also noted by many stakeholders that vegetation debris blown in from outside of the GLZ caused many of the outages, and that this would not necessarily be dealt with by expanding the zone.

Environmental impacts

Some stakeholders claimed that the paper did not assess the amenity and environmental value of vegetation enough. They stressed that vegetation offers benefits to the environment, and these should be considered as part of MBIEs assessment criteria.

Several stakeholders stressed the impact of amending the regulations on diminishing canopy coverage in urban spaces and suggested that MBIE should take this into consideration.

Different Categories

Some stakeholders suggested different categories of regulated persons or assets to manage the risks:

1. Differentiating between the type of vegetation owner. Some respondents suggested distinguishing between commercial and residential vegetation owners, as these groups have differing capabilities and interests.
2. Resilience of the electricity line. Some stakeholders proposed treating types of lines differently under the Regulations, to recognise that some lines were at greater risk of an outage, or would in an outage, have worse consequences for consumers and vital infrastructure. For example, where there is no backup in the network if the line is damaged, there could be justification for a wider corridor.
3. Applying wider corridors to transmission lines. It was argued that a wider corridor should be applied around transmission lines because a transmission outage would affect more people than a distribution outage.
4. Applying different regulations for urban and rural areas. Expanding the vegetation management footprint might not be suitable in urban spaces due to the compact nature of infrastructure.

Submitters’ views on issue 2 - How can the Trees Regulations prevent the over-trimming of hazardous vegetation?

MBIE’s preferred option

Out of the four options outlined as ways to address issue 2 in the discussion document, MBIEs preferred approach was to apply a risk-based approach to support new notice powers outside of the GLZ. The intention was to reassure vegetation owners that the expansion of the scope of the notice power would be reasonably exercised, and not result in over-trimming or felling of vegetation.

Submissions feedback

Some submitters considered over-trimming to be a significant risk, and several examples were given of disputes which had arisen over this issue.

Many respondents supported a risk-based approach which all relevant stakeholders would be able to participate in developing. They stated that this would ensure fair and robust criteria. Some stakeholders stressed that environmental values, impact on the surrounding land, and cost allocation should be considered within the criteria to fairly assess the impact on the works, land, and vegetation owners.

Some respondents thought a risk-based approach would be relatively easy to adopt and would be beneficial in circumstances where there is a high value tree in the vicinity of lines. It was suggested that the role of the arbitrator could be expanded to include resolving disputes over the interpretation of the risk-based approach.

It was stated that the risk-based approach would not only be helpful in identifying vegetation that may present a hazard but also a way in which to justify the retention of the vegetation.

Furthermore, the use of technology (such as Light Detection and Ranging (LiDAR) surveys) could be used to prevent the over trimming of vegetation as it can provide accurate data on if trimming is required and to what extent.

Several respondents stated that the management of vegetation should be left to negotiation by works and landowners.

Most respondents recognised the risk of fires and agreed that this should be considered within the scope of a risk-based approach. Many forestry submitters considered that the proximity of lines to their forests contributed to the risk of fires. .

Some respondents felt they could not comment on the suitability of a risk-based approach as the parameters were not clearly outlined in the discussion paper.

Submitters’ views on issue 3 - How should the Regulation balance the responsibility of vegetation owners and works owners?

MBIE’s preferred option

Works owners are obliged to provide the initial trim of problematic vegetation and meet the costs (the “first trim”).

MBIE’s preferred approach was to retain the first trim obligation but to limit the circumstances in which the works owner is responsible for the “first trim”.

Landowners and occupiers can opt out of responsibility under the Regulations by giving a “no interest” notice to works owners. MBIE did not have a preferred option specifically dealing with this provision, but some submitters commented on it.

Submissions feedback

The existing Trees Regulations allocate the cost and responsibility for identifying risk to works owners (through the notice system). Most respondents considered this was appropriate. Some stakeholders considered that commercial forestry owners and managers could also perform this role.

Several stakeholders did not agree with MBIE’s proposal that the allocation of the first cut or trim should remain with improvements to its application. Many lines owners said it was not fair that the financial burden remained with them. They also said that it was difficult to administer on a tree-by-tree basis, as required by the Regulations. To remedy this issue, some respondents proposed applying the first cut notice by area, (for example, between poles) or by properties.

Others who submitted said that there are simple methods to administer the rules on a tree-by-tree basis, such as the use of Global Positioning System (GPS).

There was support from forestry stakeholders for keeping the first cut provision without making any amendments. It was argued that the land in which lines are located is on private land, and that the landowners receive no ongoing compensation for the use of their land by works owners, which are commercial interests.

Some respondents said that they feared amendments to the regulations would remove incentives for works owners to move lines to more efficient locations or use new technology to reduce the risk to their assets.

Some submitters considered that no-interest notices should only be available as an option for domestic (rather than commercial) tree owners.

Submitters’ views on issue 4 - What should the process be for works owners to access vegetation on private land?

MBIE’s preferred option

MBIE’s preferred approach was to introduce changes to the notification wording in regulation 11(3)(e) to make it easier for works owners to notify vegetation owners about land access.

Submissions feedback

Several stakeholders argued that further government intervention is not required, and the status quo works. Some respondents stated that the discussion document did not adequately differentiate between they type stakeholders and their varying rights. One stakeholder considered that all the options would result in delays and frustrations until works owners have access to information concerning the identity of vegetation owners, landowners and occupiers.

Many stakeholders didn’t support any of the options outlined in the discussion paper. They stated that the notice system was impractical as they stated landowners and vegetations owners were often uncontactable, leading to “dead ends” in the process despite the risks. There were suggestions that greater clarification should be given to what would constitute ‘reasonable steps’ taken to notify land and vegetation.

This point was challenged by some stakeholders that claimed ownership of larger areas of land and vegetation do not change often and so it is reasonable for works owners to have the contact details for the relevant parties if they require access to the land.    

Some stakeholders considered that if the first cut or trim policy and the no-interest notice was removed, access to private land by works owners would be significantly reduced.

Numerous stakeholders advocated for bringing provisions in line with section 23 of the Electricity Act 1992 in relation to obtaining access to land. They argued that it is illogical to grant a power in the Act which allows access to work owners for a range of routine tasks, but then give less access to deal with risky vegetation.

Some respondents raised the importance of being mindful of Māori landowners’ interests and their kaitiakitanga principles.

Submitters’ views on issue 5 - How should disputes between vegetation and works owners be resolved?

MBIE’s preferred option

MBIE’s preferred approach was to give the Tree Arbitrator jurisdiction to resolve any dispute between parties. With the scope of the Arbitrator’s jurisdiction extended, vegetation owners would be able to apply to the Arbitrator once a notice detailing the identified hazardous vegetation has been received and they disagree with the works owner’s assessment.

Submissions feedback

Respondents were mainly split between advocating for the status quo or MBIE’s preferred option to extend the scope of the arbitrator’s remit.

It was recognised by some respondents that widening the scope of the arbitrator’s jurisdiction could ensure the costs of resolving disputes are kept to a minimum, which was seen as advantageous.

There was support for utilising the services of the Utilities Disputes Limited (UDL) as this is a well-known and accessible service within New Zealand. MBIE received feedback that UDL already resolves disputes regarding the Tree Regulations which are outside of the Tree Arbitrator’s remit. They argued that the UDL could provide independent resolution, which is more suitable.   

Many stakeholders emphasised the need to have qualified experts involved in the process. One said that opting for an independent tree expert as the decision maker may be a way to minimise costs as each party would not be required to pay for the advice.

One stakeholder suggested the appointment of regional arborist as this would offer regional knowledge and the ability to visit sites where there are disagreements.

Submitters’ views on the Tree Regulations offences and penalties regime

Some stakeholders did not consider there was a need to change the penalties regime as it has not been used.

However, several respondents claimed that the penalties are not used as they create too much of an administrative burden to pursue and can be perceived as too severe and damaging to long term relationships with forest owners. Some stakeholders suggested different penalties dependant on the land use and type of vegetation owner (for example, steeper penalties for commercial tree owners as it was argued they have greater capacity to manage their obligations).

One stakeholder stressed that if the Tree Regulations included provisions for timely dispute resolution, penalties would not be necessary.

It was proposed by a couple of stakeholders that educating parties of the risks of vegetation interfering with lines and how to mitigate them is a better way forward.

Some stakeholders recognised that the penalties are a deterrent and should remain within the regulations. Some stakeholders stated that a penalties framework provides clarity on who is liable if a line is damaged by vegetation, which is important for all stakeholders. Providing clear rules and regulatory certainty would help manage customer relationships.

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