Bonny Glen Pty Ltd & Anor v Country Energy

Bonny Glen Pty Ltd & Anor v Country Energy - [2007] NSWDC 171 - NSWDC 2007 case summary — Zoe

[39]

The following occurred at T-372-373: "Q. Then when you said "we have to get in there, we have a report of the trees being near the mains" had you formed your opinion that there wasn't a problem or not? A. No, well, the trees were near the mains. Q. Lots of trees are near mains. A. That's correct. Q. Weren't you trying to convey to this person that you needed to get in there urgently because there was a problem? A. I did explain that the trees needed to be lopped. Q. Did they need to be lopped or not? A. Yes, they did need to be lopped. Q. And the reason they needed to be lopped was because there was a real risk of them touching the wires? A. That's a possibility. Well, it is a possibility, it all depends if you've got weather factors-- Q. It's the only reason they need to be lopped, isn't it, you don't run around lopping trees if there is not a possibility of them touching wires, do you? A. Yes, we do. Q. Why do you do that? A. Because if there's a risk that they're within half a foot or say half a metre or a metre we still get a report to go and lop those trees. Q. Where did these trees stand, half a foot, half a metre, touching, what's the position? A. I can't really remember now. I don't know, I'm only surmising but it could be 300, I can't remember. Q. When you say you're only surmising that's because you don't remember at all, do you? A. Well, no, I can't remember that specific distance. Q. You're making up your evidence when you say that you formed some opinion that there wasn't urgency required? A. No, I'm not. Q. When you spoke to Mr Venner did you tell him, look, this urgent maintenance work instruction you've given us isn't really urgent? A. No, I didn't say that at all. Q. That's because you hadn't formed that opinion, I suggest to you? A. Yes. Q. You're just making it up now, aren't you? A. No, I'm not, no. HER HONOUR: I don't think he understood that question. NEWLINDS: Yes, I'll do it again. HER HONOUR: Q. Sir, look, you need to listen carefully to the questions otherwise you'll give an answer that will confuse us. NEWLINDS: Q. Can I do it this way, sir, can I ask you to go to paragraph 25 of your affidavit? A. Yes. Q. This is the conversation you say you have after you leave Bonny Glen and you speak to Mr Venner? A. Yes. Q. You don't in that conversation set out you saying anything like, by the way Bill, it's not a problem because the wires aren't anywhere near the trees, do you? A. No, I don't, no.

[54]

" Richard Wake To: Rick Chilko/People/Country Energy@CountryEnergy cc Kevin McMillan/People/Country Energy@CountryEnergy 27/02/2003 08:48 PM Subject: Re: Fire at Woodward Rd, Orange Rick, Aerial patrols were carried out in the Orange area during September / October 2002. Subsequent to the patrols a defect was raised for "Tree near line" at the property concerned. Both customers share a common substation. The trees are on Mr Hawke's property, right on the boundary to Mr Halls. The 11KV power line supplying the substation runs parallel to the trees on Mr Halls property. On the other side of the power line Mr Hall has an extensive orchard and tennis court making access to the power line extremely difficult. Staff went out to clear the defect on about Thursday 8th November in an EPV (Bucket truck). They found that the only access to the defect site was to drive between the trees and Mr Halls tennis court. Mr Hall expressed concern about the need to clear some branches from the trees to enable access, advising staff that if they cut more than 300mm from the trees they would be severely damaged. Staff decided it was not worth the risk of offending the customer and advised their supervisor that alternative arrangements would need to be made. Orange design staff attended to site the next day (Friday 9th November) to try to work through options with both Mr Hall and Mr Hawke (EG line relocation, HV ABC etc) being aware that the trees had literally been of growing concern (pardon the pun) for a number of years. The outcome of this was for design staff to come back with firm options and quotes etc. On Sunday 11th November it appears that an arc was drawn between one of the 11kv conductors and one of trees approximately 50meters [sic] from the substation. It is believed that due to the drought conditions the trees had a high amount of sap on their leaves making them both more conductive and more flammable than usual. The arcing started a fire on one of the trees which, in a matter of minutes had spread to the entire row. The heat generated from the blaze was sufficient to melt the tar on an adjacent road and possibly caused damage to a small number of fruit trees on Mr Halls property. Rural Fire service volunteers attended and extinguished the fire before any other significant damage occurred, however it is also apparent that a number of other fruit trees belonging to Mr Hall were also damaged by fire fighters needing to gain access to the fire. Aside from the extensive damage to the trees Mr Hawke suffered from some damage to fences and lost approximately 5 hectares of pasture (however no stock were apparent). I met with both Mr Hawke and Mr Hall on site on Friday 16th. I explained (and still believe) that the fire could have been avoided had Mr Hall given access to the trees and allowed staff to do their job on the day. Mr Hall was adamant that he did not prevent staff accessing the trees, he merely advised them that by doing so would significantly damage the trees. Mr Hall has some history of being rather difficult and complaining frequently about our lopping methods (hence staff reluctance to gain access and the quick response from design staff). I further advised that we would pay to get the trees examined by a qualified tree surgeon to determine if the trees could be saved and depending on that look at further options. The tree surgeons report has been returned and he has advised that the trees are completely ruined. I have not yet had further contact with either Mr Hall or Mr Hawke. Attached are some photos of the site for your reference. Please phone if you need further details. -Richard Hawke Hall Fire Pictures.dc Rick Chilko

[144]

Having set out the plaintiff's schedule, I now make the following general comments about the category 1 and category 2 damages: Category 1 damages (a) The burnt apple trees had not been replaced but cut down. The defendant submits that the cost of replacement cannot be recovered. This is not correct because if they had not been replaced now, they would be in the future. Accordingly, it becomes a question of whether the appropriate cost is $20 per tree or $7.50 or $7.70; whether the trees have been replaced yet or not, as the unchallenged evidence is that this was an apple tree orchard which the plaintiff, but for the fire, would have continued to operate. (b) There is a dispute on the sales and costs prices. This is based on information provided to the expert by Mr Tim Hall. It is asserted that there is little if any documentation to support the plaintiff's contention, but in fact the cost of apples, and in particular gala apples, is the subject of prior sales and is relatively straightforward. Category 2 (a) The plaintiff submits, and I accept, that there is no real disagreement between the experts as to the appropriate methodology (see T-459.5-.55). The real focus is on prices, yields, pack out rates and sales price and costs per case with the plaintiff's expert (Mr Collette) relying on actual figures provided by Tim Hall, while the defendant's expert relies on industry averages as opposed to specific sales from Bonny Glen (T-459-460). (b) In addition, there is now no issue between the experts except that the pack out rates and sales prices and costs were at the top of the range and that the costs incurred by Bonny Glen were towards the lower end of the range, although not out of the range. (c) It was the unchallenged evidence of members of the Hall family that this was the "star" field which produced the best apples in the orchard. (d) Although an enormous amount of time was spent on the erection of a temporary windbreak or artificial structure, I accept the submissions of the plaintiff that this is a false issue. The unchallenged evidence of Mr Reg Kidd was that he had travelled most of the world looking at apple growing areas, including apple growing areas through Australia, and he had never seen an artificial windbreak anywhere, including on a research station (T-230). In addition, there was unchallenged evidence that a development application would be necessary for such a windbreak to be constructed, and there was unchallenged evidence by a member of the local council that such a construction was unlikely to be granted a development application in these days of environmental awareness. (e) Finally, and most conclusively, there is no evidence that Mr Hawke, upon whose property this windbreak would need to be built, would ever consent to the construction of such an eyesore on his property. Mr Hawke's affidavit makes it clear that the beauty of the pines was a significant plus for him, particularly since he wants to sell his two 5 acre blocks to persons who want to have hobby farms or otherwise live in a country on a large block. Finally, it was never made clear to me whether the building of this structure was even possible, given that there is a range of pines that has been growing on the spot since 2003. Accordingly, I have had no regard to the evidence concerning the construction of an artificial structure as a windbreak either on the subject of contributory negligence or failure to mitigate, or as a sensible alternative to the growing of new trees in the site of the trees destroyed by the fire. Senior counsel for the plaintiff draws to my attention the failure of the defendant to produce any evidence describing what the particular structure would look like, or to provide a plan or explain how it was to be built or the precise materials to be used. In those circumstances, the failure to replace the damaged or destroyed trees until the new pine trees have produced an adequate windbreak needs to be looked at in the light of the unchallenged evidence that it will take approximately 10 years from July 2006 before the replacement pine trees will reach the height and density required to produce a sufficient buffer.

[148]

The history of this relationship, and the circumstances in which some changes were made to the row of pine trees, is as follows. The orchard had the benefit of the pine tree windbreak from 1973 to 1988. In about 1988 some of these trees were removed to make way for a bigger shed. That shed was, however, never actually extended as planned and there was a gap between Parkwood and Bonny Glen as a result. This gap did not concern Mr Hawke because at the time those properties were being operated as orchards so they were spraying the same sort of chemicals. After Mr Hawke decided to graze cattle instead, in 2001, he came to an alternative arrangement with the Hall family so that he could graze his top and bottom paddocks during the spraying season and only graze them opposite the portion of the property without a windbreak during Winter while Fred Hall was not spraying. This arrangement was put in place and operated thereafter. However, following the fire there was a much larger gap. Following this event, Mr Hawke's affidavit of 27 March 2007 states: "10. Following the fire on 10 November 2002 to which I have deposed in my previous Affidavits, there is now also a much larger gap in the pine trees or about 150 metres at the northern most part of the common boundary between Bonny Glen and Parkwood ("the Destroyed Windbreak"). According to the arrangement I have with Mr Hall, the area immediately to the east of the Destroyed Windbreak is part of the land upon which I graze my cattle during Bonny Glen's summer spraying season, the balance being to the south of the Removed Pine Trees. 11. After clearing the orchard on Parkwood after 2001, although I do not now recall how, I do recall that I had been told that the Orange City Council ("the Council") might soon stop approving subdivisions of land in the Orange District. 12. At about this time, so as not to miss out on my opportunity to subdivide the land on Parkwood in case I ever decided to sell part of the land for residential development, I had Parkwood surveyed and submitted a development application to the Council. There were two (2) subdivisions, one for the land on which my house is built, and the [sic] for a five acre block next to Destroyed Windbreak and a residual block. 13. Annexed and marked " A " is a copy of the development approval dated 16 July 1998. 14. Annexed and marked " B " is a copy of a Subdivision Certificate for the land to which Annexure A refers dated 23 May 2002. 15. At about the time of the fire in late 2002, I recall that the issue of spray drift had become a widely discussed topic and I attended at several community meetings on the subject with other orchardists in the Orange district, during which, I learned that the Environmental Protection Authority was going to start imposing severe penalties upon orchardists if their business practices caused pesticide sprays drifting unto other properties. 16. After the fire and the loss of the windbreak in November 2002, I became concerned about spray drift from Bonny Glen in light of the Development Approval, so I had a conversation with Mr Timothy Hall, during which i said to him words to the following effect: Me: " Tim, spray drift is a real issue now as you know. You won't be able to spray that block since I got that DA. I think you'd better tell Fred to stop spraying that block until the new pines re-grow. " Tim Hall: " Yes, I know - I'm worried about it too. I'll talk to dad about it. " 17. As well as for the reasons that I have given in my previous Affidavits, it is also because I am concerned about spray drift that I immediately replanted replacement pine trees to replace the Destroyed Windbreak. 18. I plan to continue using Parkwood as a farming property for the moment. In light of mine and my father's arrangement with Mr Hall not to graze my cattle on the Parkwood adjacent to the Removed Pine Trees, I cannot also agree not to graze my stock on the land next to the Destroyed Windbreak during Bonny Glen's spraying season because I will have almost not [sic] land left on Parkwood to use for farming purposes. 19. If, however, I choose to sell the subdivided land next to the Destroyed Windbreak then, for environmental reasons, I believe that Bonny Glen will not be able to spray its north-eastern block until the pine trees grow to an effective windbreak."

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