Subdiv 2Disputes about schemes

Subdivision 2—Disputes about schemes 55B—Vegetation clearance scheme dispute (1) A vegetation clearance scheme dispute exists if an electricity entity and a council fail to agree on— (a) a proposal for a vegetation clearance scheme under this Division; or (b) a proposal for modification of such a scheme. (2) An electricity entity or a council may, by written notice to the Technical Regulator, ask the Technical Regulator to determine a vegetation clearance scheme dispute under this Division. (3) The notice must contain or be accompanied by the information or documents required by the Technical Regulator. (4) The party seeking a determination must give a copy of the notice to the other party to the dispute. 55C—Circumstances in which Technical Regulator not obliged to determine dispute (1) The Technical Regulator will not determine a vegetation clearance scheme dispute unless— (a) at least six months have passed since the presentation by one of the parties to the other of a written proposal for a vegetation clearance scheme between the parties or for modification of such a scheme; or (b) less than six months have passed since the presentation of such a proposal but the other party has not negotiated reasonably and constructively, or at all, on the proposal. (2) The Technical Regulator is not obliged to determine a vegetation clearance scheme dispute if the Technical Regulator is satisfied— (a) that the subject matter of the dispute is trivial, misconceived or lacking in substance; or (b) taking into account the particular circumstances of the dispute, that the party seeking determination of the dispute has not negotiated reasonably and constructively, or at all, on the proposal; or (c) on the application of a party to the dispute and taking into account the particular circumstances of the dispute, that there are good reasons why the dispute should not be determined. 55D—Determinations (1) The Technical Regulator may, on application under this Subdivision, determine— (a) in the case of a dispute about a proposal for a vegetation clearance scheme—the terms of the scheme; (b) in the case of a dispute about a proposal for modification of a vegetation clearance scheme—whether or not the scheme is to be modified and, if it is to be modified, the terms of the modification. (2) The Technical Regulator may not, in determining a scheme or modification of a scheme, confer on a council the duty to keep vegetation clear of public powerlines except— (a) with the council's consent; or (b) in a case where the Technical Regulator is satisfied that it is appropriate to do so in view of significant failure by the council or the electricity entity to carry out properly, or at all, vegetation clearance work in relation to powerlines in the area and in view of the reasons for the failure. (3) The Technical Regulator may confer a duty on a council in accordance with subsection (2) only in respect of particular powerlines in respect of which the Technical Regulator is satisfied the conferral of the duty is appropriate. (4) If the Technical Regulator proposes to confer on a council a duty to keep vegetation clear of public powerlines in circumstances in which there has been failure by the electricity entity to carry out properly, or at all, vegetation clearance work in relation to those powerlines, the Technical Regulator must consider whether the council should be given an indemnity for any liability arising from the entity's failure or whether the conferral of the duty should be postponed for a period designed to allow any necessary work to be carried out. (5) The Technical Regulator may— (a) stipulate that a scheme or modification of a scheme is to have effect at a specified future time; (b) stipulate that parts of a scheme or modification of a scheme have effect at different future times. (6) A scheme or modification of a scheme determined by the Technical Regulator under this Division has effect according to its terms and need not be executed by the parties. 55E—Principles to be taken into account (1) In determining a vegetation clearance scheme dispute, the Technical Regulator must take into account— (a) the nature of the vegetation, including its expected rate of growth; (b) the impact that the clearance work would be likely to have on the amenity of the area; (c) the historical or biological significance (if any) of the vegetation; (d) the long term effect that the clearance work would be likely to have on the health and appearance of the vegetation; (e) the controls on the planting and nurturing of vegetation applicable in the area; (f) the need to prevent damage to the powerlines and interruption to the supply of electricity and to safeguard the public against electric shock and damage to property; (g) the extent and frequency of past vegetation clearance in the area; (h) whether requirements with respect to vegetation clearance and the planting and nurturing of vegetation have been complied with in the area and, if not, the reasons for the non-compliance; (i) the existence and terms of other vegetation clearance schemes; (j) any proposal to alter, remove or underground powerlines in the area; (k) the costs of the proposals (including insurance premiums) to the council and to the electricity entity and the financial resources of the council and entity; (l) the limits on the financial and other resources of the electricity entity that may be devoted to the scheme and the schemes for the areas of other councils; (m) the desirability of preserving so far as practicable terms agreed between the parties; (n) any other matters prescribed by the regulations. (2) The Technical Regulator may take into account other matters the Technical Regulator considers appropriate. 55F—Conduct of proceedings (1) The Technical Regulator must conduct proceedings for the determination of a dispute with a view to ensuring— (a) a fair and reasonable exchange of the parties' views; and (b) the proper investigation and consideration of all matters relevant to the fair determination of the dispute; and (c) the speedy resolution of the dispute. (2) The Technical Regulator— (a) is not bound by technicalities, legal forms or rules of evidence; and (b) may obtain information on matters relevant to the dispute in any way the Technical Regulator thinks fit. (3) The Technical Regulator may require the presentation of evidence or argument in writing and may decide matters on which the Technical Regulator will hear oral evidence or argument. (4) If the Technical Regulator decides to hear oral evidence or argument— (a) the proceedings must be conducted in public unless— (i) both parties agree to have the proceedings (or part of the proceedings) conducted in private; or (ii) the Technical Regulator orders the public to be excluded from attendance in accordance with subsection (5); and (b) the parties may not be represented in the proceedings by lawyers except by leave of the Technical Regulator. (5) The Technical Regulator may order the public to be excluded from attendance at proceedings in order— (a) to consider in confidence information that has commercial value to a person or relates to the commercial or financial affairs of a person (the Technical Regulator being satisfied that it is reasonably foreseeable that public disclosure of the information could cause significant damage to a person or the interests of a person or confer an unfair commercial or financial advantage on a person); or (b) to ensure that the Technical Regulator does not— (i) breach any law, order or direction of a court or tribunal constituted by law, or other legal obligation or duty; or (ii) unreasonably expose himself or herself to any legal process or liability. (6) The Technical Regulator may give directions about who may be present at proceedings during any period when the public is excluded from attendance having regard to the wishes of the parties and the need for commercial confidentiality. (7) A person must comply with a direction under subsection (6). (8) The Technical Regulator may— (a) give procedural directions; (b) make orders requiring— (i) the delivery of documents clarifying the issues between the parties; (ii) the discovery and inspection of documents; (c) sit at any time or place; (d) adjourn the proceedings from time to time and from place to place; (e) refer a matter to an expert for report, and accept the expert's report in evidence; (f) appoint a mediator to facilitate resolution of the dispute by conciliation; (g) fix and enforce time limits for steps in the proceedings and do anything else necessary for the expeditious and fair hearing and determination of the dispute. (9) The Technical Regulator may proceed in the absence of a party or on failure by a party to provide written evidence or argument if the party has been given notice of the proceedings or of the requirement to provide written evidence or argument. (10) The Technical Regulator may engage or appoint a lawyer to provide advice on the conduct of the proceedings and assist the Technical Regulator in drafting the determination. 55G—Giving of relevant documents to Technical Regulator A party to the dispute may give the Technical Regulator a copy of documents (including confidential documents) the party considers to be relevant to the dispute. 55H—Power to obtain information and documents (1) If the Technical Regulator has reason to believe that a person is in a position to give information, or to produce documents, that may be relevant to the dispute, the Technical Regulator may, by written notice— (a) require the person within a period stated in the notice— (i) to give the Technical Regulator a written statement of specified information; or (ii) to produce to the Technical Regulator specified documents or copies of specified documents; or (b) require the person to appear before the Technical Regulator at a specified time and place to give evidence. (2) A written statement must, if the Technical Regulator so requires, be verified by statutory declaration of the person providing the information or, if the person is a body corporate, an appropriate officer of the body corporate. (3) If documents (whether originals or copies) are produced to the Technical Regulator, the Technical Regulator may— (a) take possession of, make copies of, and take extracts from, the documents; and (b) keep the documents for as long as is reasonably necessary for the purposes of the determination. (4) A person must— (a) comply with a requirement of the Technical Regulator under subsection (1) or (2); and (b) if the person is required to appear as a witness before the Technical Regulator—comply with further requirements to make an oath or affirmation, or to answer questions. (5) However, a person need not give information or produce a document if— (a) the information or the contents of the document is the subject of legal professional privilege, or would tend to incriminate the person of an offence; and (b) the person objects to giving the information or producing the document by giving written notice of the ground of the objection to the Technical Regulator or, if the person is appearing as a witness before the Technical Regulator, by an oral statement of the ground of objection. 55I—Confidentiality of information (1) A person who gives the Technical Regulator information, or produces documents, may ask the Technical Regulator to keep the information or the contents of the documents confidential. (2) The Technical Regulator may, after considering representations from the parties (or the other party), impose conditions limiting access to, or disclosure of, the information or documentary material in order— (a) to consider in confidence information that has commercial value to a person or relates to the commercial or financial affairs of a person (the Technical Regulator being satisfied that it is reasonably foreseeable that public disclosure of the information could cause significant damage to a person or the interests of a person or confer an unfair commercial or financial advantage on a person); or (b) to ensure that the Technical Regulator does not— (i) breach any law, order or direction of a court or tribunal constituted by law, or other legal obligation or duty; or (ii) unreasonably expose himself or herself to any legal process or liability. (3) A person must not contravene a condition imposed under subsection (2). 55J—Termination of proceedings for determination The Technical Regulator may terminate proceedings for a determination if— (a) the parties request or consent to the termination; or (b) the Technical Regulator forms the opinion that— (i) the subject matter of the dispute is trivial, misconceived or lacking in substance; or (ii) the party seeking determination of the dispute has refused or failed to negotiate reasonably and constructively with the other party. 55K—Procedure for giving determination (1) Before the Technical Regulator makes a determination, the Technical Regulator must give each party to the dispute a copy of the draft determination and may take into account representations that either of them may make on the proposed determination. (2) A determination must be in writing. (3) If the Technical Regulator does not give reasons in writing for a determination under this Division when the determination is made, the Regulator must do so on request made by a party affected by the determination within one month of the making of the determination. (4) The Technical Regulator must, within seven days after a determination is made give a copy of the determination to the parties to the dispute. 55L—Costs (1) The Technical Regulator's costs in determining a vegetation clearance scheme dispute are to be borne by the parties to the dispute in proportions decided by the Technical Regulator and, in the absence of a decision by the Technical Regulator, in equal proportions. (2) The costs will include the costs of any mediation or expert's report. (3) The amount of the costs will be as determined by the Technical Regulator. (4) The Technical Regulator may, but is not required to, hear submissions from the parties as to apportionment of the costs. (5) The Technical Regulator may recover the costs as a debt. (6) In any proceedings— (a) a document signed by the Technical Regulator certifying as to the amount of the costs of a determination payable by a specified electricity entity or council constitutes proof of the matters so certified; and (b) an apparently genuine document purporting to be such a certificate of the Technical Regulator is to be presumed to be such a certificate in the absence of proof to the contrary.