Electricity Safety (Electric Line Clearance)
Regulations 2015 –
Regulatory Impact Statement
MAV Submission
January 2015
© Copyright Municipal Association of Victoria, 2015.
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Table of contents
1
Introduction ............................................................................................................... 4
2
The draft 2015 regulations ........................................................................................ 5
2.1 Draft provisions supported by the MAV .................................................................. 5
2.2 Draft provisions supported with amendments ........................................................ 7
2.3 Provisions missing altogether .............................................................................. 10
3
The distribution businesses..................................................................................... 10
4
Recognising environmental values.......................................................................... 12
5
The regulatory impact statement ............................................................................. 13
6
Conclusion .............................................................................................................. 14
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1 Introduction
Ever since the introduction of the 2010 version of the Electricity Safety (Electric Line
Clearance) Regulations, the MAV and councils have been advocating for a line
clearance regime that better balances safety, amenity and environmental
considerations.
A number of councils have not complied with the 2010 regulations because of the
unjustifiable negative impact the required pruning would have on the aesthetic,
environmental and social value of their street trees. In a number of areas where
distribution businesses have primary responsibility for line clearance, there has been
widespread excessive pruning, and often complete destruction, of street trees.
In seeking to achieve a safe and sensible approach to vegetation management
around powerlines, one of the key challenges the MAV and councils continue to face
is the lack of genuine acknowledgement within the line clearance regulatory regime
and from Energy Safe Victoria (ESV) and the distribution businesses of the value and
benefits of street trees.
ESV and the distribution businesses’ approach to line clearance needs to change;
moving away from an out-dated mentality that regards trees as nuisances and
towards solutions that protect and enhance our tree-lined streets while also achieving
a safe and secure supply of electricity.
Genuine effort and investment is needed from ESV and the distribution businesses to
move beyond the “prune the tree” default response. The social and environmental
costs of pruning and removing trees need to become a genuine consideration.
Just as the electricity network infrastructure is the distribution businesses’ asset, so
too are street trees council and community assets. Street trees offer a range of
tangible and intangible benefits to the community, including reduced stormwater
runoff, shading and cooling, habitat for local fauna, and carbon sequestration. In a
warming climate the importance of these benefits will only increase.
In urban areas in particular, there is a growing expectation and need to plant and
protect trees on public land because of the shrinking availability of open space on
private land. Councils and the community will not and cannot accept unnecessary
loss of vegetation.
On 20 November 2014 the MAV hosted a session to provide councils with an
opportunity to discuss the draft 2015 regulations with ESV. The session was
attended by approximately 70 council officers. This submission reflects the views
expressed at that meeting, as well as council feedback provided to the MAV both
prior to and after that session.
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2 The draft 2015 regulations
The MAV welcomes the opportunity to provide feedback on the exposure draft of the
2015 version of the Electricity Safety (Electric Line Clearance) Regulations which
incorporates the Code of Practice for Electric Line Clearance. We believe the content
of the draft regulations represents an important step in the right direction in terms of
attempting to achieve a better balance between safety, amenity and environmental
considerations when managing trees around powerlines.
The draft regulations include a number of provisions that the MAV supports in their
entirety, as well as provisions that we support with amendments. We commend
ESV’s decision not to introduce provisions relating to unsuitable species and tree
climbability. We ask that the “near the pole” provisions in the current regulations also
be included in the 2015 regulations.
2.1
2.1.1
Draft provisions supported by the MAV
Introduction of linear graphs to specify minimum clearances
The proposed 2015 regulations introduce a linear relationship between powerline
span length and the required minimum clearance space, for all classes of spans.
The MAV supports this amendment because it eliminates the existing step changes
between different span lengths, whereby a marginal increase in span length
arbitrarily leads to a significant increase in the minimum required clearance space.
This amendment will effectively reduce the minimum clearance distances required for
a number of span lengths thereby reducing vegetation loss. We expect many
powerlines for which councils have line clearance responsibilities will be affected by
this change.
2.1.2
Expanded definition of `insulated cable’
The MAV supports the proposed definition of `insulated cable’ which has been
broadened to include cables fitted with insulating cover.
Insulating cover is relatively low cost and easy to apply and has the effect of
insulating sections of bare powerlines thereby reducing the minimum clearance
space required for those sections of the wire.
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Insulating cover has been used for a number of years by the distribution businesses
to insulate sections of conductor where vegetation is within the clearance space or
where a powerline’s existing covering is showing signs of abrasion. It is a far more
cost-effective and simple engineering solution to install when compared to the
alternatives of aerial bundled cabling and undergrounding.
The revised definition of `insulated cable’ offers councils the opportunity to costeffectively bring a significant number of street trees that are currently not compliant
with the regulations into compliance without unnecessary vegetation loss. The
successful application of insulating cover to powerlines will, however, depend on
cooperation and agreement from the distribution businesses.
Given the record of poor cooperation from distribution businesses in a number of
municipalities, we are concerned that the use of insulating cover will, in practice,
often be difficult to achieve.
In recent meetings with two distribution businesses, the MAV was advised by one
business that it does not support the use of insulating cover on its network, while the
other made clear that it considers insulating cover to be a solution of “last resort”.
The MAV understands that both businesses have used insulating cover on their
networks for a number of years.
A continued lack of cooperation from the distribution businesses will prevent councils
from bringing street trees into compliance with the regulations without the installation
of highly expensive aerial bundled cabling or extensive pruning works that simply will
not be tolerated by the community.
2.1.3
Enhanced notification and consultation requirements
The MAV supports the enhanced notification and consultation requirements included
in the draft 2015 regulations. These new requirements have become necessary
because of poor communication and excessive pruning by the distribution
businesses in a number of non-declared areas as well as on private land within
declared areas.
It is concerning that the RIS does not dispute the claim made by the distribution
businesses that they have `received no complaints from affected persons’ to warrant
the change to the notification and consultation requirements. The vegetation
management works undertaken by one particular distribution business was the
subject of many complaints made directly to ESV and to ESV via the MAV. It is also
an issue that was raised by an affected person at meetings of the Electric Line
Clearance Consultative Committee (ELCCC) where that distribution business was
represented. These complaints were not merely about the standard of pruning but
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also the failure of the distribution business to properly inform affected persons of the
intended scale and extent of their pruning.
It is our hope that the enhanced notification requirements will lead to improved
cooperation and communication between the distribution businesses and councils. A
number of councils report that the distribution businesses often fail to provide notice
of works on council land, and are slow to remove tree debris once the works have
been completed. Councils report tree debris being left for up to a week, including in
areas with high pedestrian traffic, thereby creating unsafe situations and generating
resident complaints.
In relation to clause 15(3) requiring written notification to be published in a locally
circulating newspaper, councils request that council newsletters - which are
distributed to the majority of, if not all, residents in a municipality - be accepted as a
suitable alternative.
2.1.4
Provision of alternative compliance mechanisms and exceptions
The MAV supports inclusion of the alternative compliance mechanism provision in so
far as it enables the use of new, innovative solutions for managing trees around
powerlines.
Our preliminary view is that this provision is unlikely to be used by councils because
of the detailed technical information needed in order to have a mechanism approved,
as well as the requirement to obtain written approval from the relevant distribution
business.
It is our hope that the provision might be used by distribution businesses if and when
they identify new engineering solutions that enable mature trees and powerlines to
remain in close proximity without compromising safety.
2.2
2.2.1
Draft provisions supported with amendments
Reintroduction of flexibility provisions for insulated powerlines
The MAV understands that clause 4 of the draft regulations is intended to effectively
reinstate the flexibility provisions contained in clause 9 of the 2005 version of the
Code. Clause 9 of the 2005 Code enabled leaves as well as branches with a
diameter of less than 10mm or greater than 130mm to be within the clearance space
as long as certain conditions were met. ESV has publicly committed to reinstating
these provisions, including in its Review of Statutory Provisions relating to the
Mitigation of Bushfire Risks Arising from Electricity Assets White Paper.
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The MAV supports clause 4 of the draft regulations, however we are concerned that
the text as currently drafted does not deliver the promised flexibility for leaves and
small tree branches with a diameter of less than 10 millimetres. The MAV has raised
this concern with ESV and it is our hope and expectation that the final version of the
2015 regulations will extend the flexibility provisions to include leaves and small tree
branches with a diameter of less than 10 millimetres. This is essential in order to
reduce unnecessary vegetation loss.
2.2.2
Introduction of an exception to maintain minimum clearance distances around
uninsulated low voltage powerlines in low bushfire risk areas
Clause 5 of the proposed Code offers a 200mm reduction in the minimum clearance
space around uninsulated low voltage powerlines in low bushfire risk areas. The
reduction only applies to branches with a diameter of less than 10 millimetres or
greater than 400 millimetres and is conditional on a range of other requirements
being met. Branch diameter dimensions are measured at the point at which the
branch enters the clearance space.
While the MAV welcomes the move towards some flexibility for vegetation
management around uninsulated powerlines, the clause as currently drafted offers
negligible benefit in practice. These branch diameter requirements mean that there
are very few, if any, eligible branches (in the case of branches with a diameter
greater than 400mm) or the outcome simply doesn’t justify the means (spreaders
would be too expensive and difficult to arrange for a branch less than 10mm in
diameter).
In order to be of some utility the provision should be amended to apply to branches
with a diameter of less than 10mm or greater than 130mm. This would make the
branch diameter dimensions consistent with those used for the flexibility provisions
for insulated powerlines (see 2.2.1 above).
The regulations have for some time treated branches with a minimum diameter of
130mm as major structural tree branches. There is no explanation within the RIS as
to why a branch diameter of 400mm is now preferred. We believe the conditions
attached to the 200mm reduction in the clearance space – including the fitting of
cable spreaders and annual risk assessments – mean the provisions can safely be
applied to branches with a diameter of at least 130mm.
We also ask that ESV consider increasing the 200mm reduction to a 500mm
reduction. This would effectively reflect the current management approach adopted
by several councils for structural branches near uninsulated powerlines in lowbushfire risk areas. There is no evidence to suggest that this approach has resulted
in increased outages or fire ignition incidents.
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2.2.3
Duty of distribution businesses to assist councils
The MAV supports the inclusion of Clause 19 of the proposed Code which provides
that if a council has concerns about the safety of cutting or removal of a tree, council
may consult the relevant distribution business and the distribution business must
render assistance. We note that this is very similar to a clause contained within the
1996 Code which set out distribution businesses’ duty to assist other responsible
persons and the public.
As mentioned above, and discussed in detail below, several municipalities have had
significant difficulty obtaining reasonable and timely responses from distribution
businesses, including in relation to live line works. It is the MAV’s hope that this
clause will provide the distribution businesses with the impetus to work more
cooperatively with councils.
Given the problems councils have experienced with the distribution businesses in
relation to issues other than tree pruning and removal works, such as obtaining
quotes for engineering solutions, we ask that the draft clause be expanded to include
council requests related to the general management of vegetation around
powerlines.
2.2.4
Mandatory adoption of the Australian Standard for Pruning of Amenity Trees
(AS 4373-2007)
The MAV supports the proposed mandatory adoption of the Australian Standard for
Pruning of Amenity Trees (AS 4373-2007). As noted in the regulatory impact
statement (RIS), councils already require their vegetation management staff and
contractors to prune in accordance with the Standard. Councils do this not only to
minimise unnecessary pruning and vegetation loss but also to prevent structural
defects in trees and other safety issues that can result from poor pruning.
The proposed clause within the 2015 regulations needs to be strengthened by
attaching a penalty for unreasonable failure to prune in accordance with the
Standard. As ESV is well aware, over the last few years one distribution business in
particular has done irreversible damage to countless trees, predominantly in rural
areas, under the pretence of meeting their regulatory obligation to keep trees clear of
powerlines. Had there been a requirement to prune in accordance with the Australian
Standard, and also a penalty for unreasonably failing to do so, it is probable that the
distribution business would have ceased this practice which has caused significant
environmental and amenity loss.
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We note that the 1996 Code of Practice stated that it was essential that pruning be
done in accordance with recognised industry standards, such as the Australian
Standard. This requirement should never have been removed from the regulations.
2.2.5
Cutting or removal of specified trees must be minimised
Clause 9 of the proposed Code provides that native trees; ecologically, historically or
aesthetically significant trees; and culturally or environmentally significant trees (as
defined by the regulations) must not, as far as is practicable, be pruned more than is
necessary to ensure compliance with the minimum clearance distance or to make an
unsafe situation safe. This mirrors clause 2(3) of the current Code except that it also
includes historically or aesthetically significant trees listed in planning schemes,
which the MAV supports.
Due in part to the cost and time involved in achieving planning scheme amendments,
a number of councils have established local laws to protect significant trees within
their municipality. The MAV requests that clauses 9(3) and 14(1)(d) of the Code be
amended to include significant trees defined under a municipal local law.
2.3
2.3.1
Provisions missing altogether
“near the pole” provisions
The “near the pole” provisions that were included in the 2005 and 2010 Code have
been omitted from the draft 2015 Code. These provisions apply to the 1/6th of the
span closest to the pole. The omission of these provisions from the draft 2015 Code
means an increase in the minimum clearance distance required around aerial
bundled cable greater than 40 metres in length and uninsulated powerlines greater
than 45 metres in length. In the absence of any data to support these increased
clearances, the MAV requests that the “near the pole” provisions be reinstated so as
to prevent any unnecessary pruning or vegetation loss.
3 The distribution businesses
While the MAV supports the draft 2015 regulations as an important step in the right
direction, it concerns us that a significant number of trees that are not compliant with
the current regulations will remain non-compliant under the new regulations unless
an engineering solution is applied.
The successful installation of an engineering solution depends on cooperation from
the relevant distribution business. As ESV is aware, many councils have over the last
several years found it extremely difficult to achieve engineering solutions because of
the failure of the distribution businesses to respond appropriately to council requests.
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Where councils have sought quotes for engineering solutions, they’ve had significant
difficulty obtaining timely and accurate information from the distribution businesses
and costs have varied markedly from one distribution business to another.
There is a notable lack of transparency about how the distribution businesses
determine their engineering solution costs. The quotes provided are often excessive
and do not reflect the scope of the works. Furthermore, significant portions of the
prices quoted are not contestable, thereby preventing councils from seeking cost
effective alternatives.
While we are hopeful that the inclusion of insulating cover within the definition of
`insulated cable’ will provide councils with ready access to a low-cost engineering
solution, councils’ success in this regard will again be dependent on cooperation from
the distribution businesses.
As discussed at 2.1.2 above, the MAV is aware of at least two businesses that have
indicated that they will resist councils’ use of insulating cover on its network. This is
hardly surprising when the alternative is for councils to pay for aerial bundled cabling
which effectively achieves an asset upgrade for the distribution business at
ratepayers’ expense.
In relation to lack of cooperation from the distribution businesses more broadly,
several councils have had, and continue to have, unacceptable difficulties securing
shutdowns and live line work approvals. These approvals are necessary in order to
remove vegetation that has grown too close to powerlines.
In relation to live line works, the distribution businesses generally require councils to
use the distribution business’ own authorised live line workers. Apart from the
questions this raises around inappropriate market power, this has also led to
councils being presented with exorbitant and inconsistent quotes and lengthy
delays to secure these workers’ services.
Councils also report that the distribution businesses frequently refuse shutdown
requests, leaving councils with no option other than to pursue live line works. This
effectively leaves councils in the perverse situation of being prevented by the
distribution businesses from doing what the regulations require of them.
Councils have records of multiple live line and shutdown requests that have taken
months, and sometimes years, to resolve. Many of these requests remain
outstanding despite repeated efforts by councils to have them actioned.
In order for councils to come into compliance with the 2015 regulations,
cooperation from the distribution businesses will be critical. Where such
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cooperation is not forthcoming, it will be essential that a fair and robust dispute
resolution process is in place.
As responsible persons under the Electricity Safety Act, councils are entitled to
expect the distribution businesses to respond to council requests for information
and assistance in a timely and reasonable manner. Given councils’ accountability
to their ratepayers, any quotes for engineering solutions and live line and shut
down works should be detailed, transparent, and accurately reflect the scope of
works.
Distribution businesses should not be permitted to seek to unreasonably profit
from council efforts to meet their obligations under the line clearance regulations.
4 Recognising environmental values
Although the proposed 2015 regulations represent a step in the right direction in
terms of achieving a more balanced approach to the management of vegetation
around powerlines, it is disappointing that they do not explicitly acknowledge the
value and importance of trees and vegetation.
One of the stated objectives of the 1996 Code of Practice for Powerline Clearance
was `to ensure that management procedures minimise the effect of powerlines on
vegetation and establish strategies to progressively achieve a sustainable
environment unaffected by the presence of powerlines.’ The terms `conservation’
and `community conservation values’ appear repeatedly.
The 1996 Code also makes clear that pruning and clearing of vegetation is just one
of a number of methods to maintain clearances between powerlines and vegetation.
The use of construction methods such as aerial bundled cabling and
undergrounding; the selection of powerline routes that avoid vegetation; and the use
of engineering solutions such as taller poles for low growth vegetation areas, are all
specifically nominated as alternative methods. These elements of the 1996 Code
should be included in the 2015 Code.
In a warming climate, it is highly questionable that distribution businesses should
still be permitted to install uninsulated powerlines in tree-lined streets in urban
areas. The requirement to maintain greater clearance distances around
uninsulated powerlines means their ongoing use often necessitates significant
vegetation loss. There should be an obligation on the distribution businesses to
invest in powerline construction that minimises impact on environment and amenity.
The installation of new uninsulated low voltage powerlines should be banned.
A number of councils report dealings with distribution businesses where the
businesses have refused to discuss the possibility of using a construction type in an
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urban area that minimises the need for pruning and tree removal. This is a shortsighted approach that is costly economically, socially and environmentally. In the
case of declared areas, it is also effectively a cost shift to councils.
5 The regulatory impact statement
The RIS that accompanies the exposure draft of the 2015 regulations includes
extensive discussion about the rationale, costs and benefits of the existing line
clearance regulations and of possible future regulatory options.
It is concerning that the RIS focuses very much on costs to distribution businesses,
as if the removal and pruning of street trees, and the use of engineering solutions to
avoid pruning and removal, do not also incur real costs to councils and to the
community.
The RIS makes only limited reference to the environmental benefits of street trees,
and fails to acknowledge the social benefits at all. There is no mention of climate
change.
It is also concerning that the RIS relies heavily on data provided by the distribution
businesses without any proper discussion about the veracity of that data, and the
regulatory drivers that possibly influence the distribution businesses’ responses to
certain information requests. When assessing the success of the 2015 regulations,
any distribution business data related to outages and fire starts should be data that
has already been shared with and verified by councils.
As far as the MAV is aware, Jemena is the only distribution business in Victoria that
provides councils with detailed monthly reports setting out vegetation-related outages
recorded across their network in the preceding month. The reports include details of
the address of the incident and whether the vegetation involved was compliant or
non-compliant with minimum clearance distances.
Jemena’s monthly reports enable councils to verify the data, to understand and
measure the impacts of their vegetation management practices, and also ensure
regular communication between the business and councils. We commend Jemena
for taking this approach and ask that the other distribution businesses replicate it.
The MAV is aware of one other distribution business that on one occasion provided
councils with a list of outages attributed to council trees. Upon investigation by the
councils involved, councils found that, almost without exception, the trees alleged to
have caused the incident were either on private land, well outside the clearance
space or simply did not exist. In response to complaints from the councils, the
distribution business reportedly acknowledged that their data collection methods fail
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to accurately identify the cause of each outage. This raises some concerns regarding
how this distribution business’ data was used to inform the RIS and whether the data
provided was any more credible than the data that was provided to councils.
The Victorian Competition and Efficiency Commission’s advice on the adequacy of
the RIS notes that ESV has committed to conducting a more rigorous evaluation of
the effectiveness of the Code over the next five years. The MAV and councils would
welcome the opportunity to work with ESV in determining the appropriate measures
of effectiveness given that the findings will almost certainly influence the content of
the 2020 version of the regulations. It would be concerning, for example, if
effectiveness was measured by compliance rates alone without any consideration of,
and credible data to identify, the effects of that non-compliance.
In crediting the existing regulations with achieving significant reductions in fire starts
and power outages, the RIS fails to consider that a substantial number of trees in
declared areas, and possibly not an insubstantial number of trees in non-declared
areas, remain non-compliant with the regulations. In the absence of any specific and
verifiable data from the distribution businesses proving otherwise, it would appear
that this non-compliant management of trees has not led to an increase in fire starts
and outages, and in fact has effectively contributed to a decrease in incidents.
6 Conclusion
When managing trees around powerlines, safety is councils’ paramount concern,
with community environmental and social wellbeing, as well as the preservation of
amenity also key priorities.
While the draft 2015 regulations represent a step in the right direction in terms of
achieving a better balance of safety, environmental and amenity considerations,
more change to the regulatory regime is needed in order to achieve sensible
outcomes for the community.
In a warming climate, and recognising the many social and environmental benefits of
trees, the regulatory regime needs to focus on solutions that protect and enhance our
tree-lined streets while also ensuring community safety and reliability of power
supply. The 2015 regulations would be strengthened by explicitly acknowledging the
value of trees.
It is concerning that the 2015 regulations as drafted may leave many councils still
unable to comply with the regulations without installation of extremely costly
engineering solutions or extensive pruning (and often removal) of a significant
numbers of trees.
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The success of councils in achieving compliance with the regulations will largely be
dependent on the level of cooperation they receive from the distribution businesses.
A fair and robust dispute resolution process will be critical if councils continue to have
the same problems engaging with distribution businesses that they have had over the
last several years. A triple bottom line framework needs to underpin any dispute
resolution determination.
In order to avoid significant unnecessary vegetation loss in the short term, there is an
urgent need for greater flexibility for the management of structural branches close to
low voltage uninsulated power lines in low bushfire risk areas. Responsible persons
should have more discretion to determine how to manage low risk situations, which is
what many councils have been doing in practice for years.
It is concerning that there continues to be a dearth of data to justify the current and
proposed minimum clearances for vegetation around powerlines. When assessing
the success of the 2015 regulations, any distribution business data related to outages
and fire starts should be data that has already been shared with and verified by
councils.
Finally, noting that councils and the distribution businesses are the two predominant
responsible persons under the Electricity Safety Act, we ask that the membership of
the Electric Line Clearance Consultative Committee be reviewed to enable greater
local government representation on the committee. Currently the Act provides for the
appointment of one committee member to represent 79 councils while there are three
positions for the five distribution businesses and one position for the transmission
businesses. Given the committee’s important role in providing advice on the Code to
ESV, this imbalance needs to be addressed.
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