Nottingham Forest Trustee Ltd v Unison Networks Ltd

• Jurisdiction: New Zealand
• Judge: Cooper J
• Judgment Date: 03 June 2021
• Neutral Citation: [2021] NZCA 227
• Docket Number: CA523/2019
• Court: Court of Appeal

Between

Nottingham Forest Trustee Limited

First Appellant

Roger Dickie (N.Z.) Limited

Second Appellant

Forest Management (NZ) Limited

Third Appellant

Nottingham Forest Partnership

Fourth Appellant

and

Unison Networks Limited

Respondent

[2021] NZCA 227

Court:

Cooper, Clifford and Collins JJ

CA523/2019

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Tort — appeal against a High Court decision which upheld the respondent's claim for nuisance, Rylands v Fletcher for damage to their power lines from falling trees in a forest owned and operated by the appellant — actionable nuisance — reasonable use of land — negligence

Counsel:

C T Walker QC, A L Sweeney and I J Thain for Appellants

J B M Smith QC and S B McCusker for Respondent

• A The appeal is dismissed.

• B The cross-appeal is also dismissed.

• C The appellants must pay the respondent costs on the appeal calculated for a standard appeal on a band A basis, and usual disbursements. We certify for two counsel.

• D The respondent must pay the appellants costs on the cross-appeal on the same basis, and usual disbursements. We certify for two counsel.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Cooper J)

Table of Contents

	Para No.
Introduction	[1]
Facts	[6]
Unison's claim in the High Court	[15]
The High Court judgment	[23]
The appeal	[38]
Discussion	[43]
Nuisance	[43]
Rylands v Fletcher	[72]
The cross-appeal	[87]
Result	[94]

Introduction

1 Over a period from December 2010 to August 2016 pine trees growing in a commercial forest owned and operated by the appellants (Nottingham Forest), 1 which had been planted many years earlier, fell onto two electricity lines owned and operated by the respondent, Unison Networks Ltd (Unison). There were power outages to Unison's customers while repairs were carried out.

2 Unison commenced proceedings in the High Court in relation to one of the affected lines. Its claim was advanced in nuisance, Rylands v Fletcher and negligence. It sought damages reflecting the cost of repairs and an injunction to prevent continuing falls onto the line.

3 Ellis J found in favour of Unison in both nuisance and Rylands v Fletcher. 2 The Judge considered that negligence had not been established. She awarded damages but declined injunctive relief.

4 Nottingham Forest appeals, asserting that its only potential liability was in negligence and that it could not be liable in nuisance or Rylands v Fletcher. It says that since it was not at fault in its management of the forest, Unison is not entitled to relief against it. In the circumstances that arose, Unison was itself liable to meet the costs of repair and suffer what consequences might arise from future tree falls in the vicinity of the line.

5 Unison counters that the High Court correctly found Nottingham Forest liable in nuisance and Rylands v Fletcher. It also cross-appeals, asserting that it should have succeeded on its negligence claim and on its claim for injunctive relief.

Facts

6 The essential facts can be succinctly stated. The forest comprises a little over 150 hectares and contains at least 30,000 trees. The land was in use as a beef and sheep farm before its acquisition by Nottingham Forest in the early 1990s. The trees are Pinus Radiata and were planted in 1994.

7 Unison owns two power lines that run through the forest: An 11kV line and a 33kV line. The section of the 11kV line through the forest is 495 metres long and the section of the 33kV line through the forest is 394 metres long. The proceeding concerned damage to the latter line, known as the Esk Feeder (the line). It was established in the late 1960s or early 1970s, and there was no dispute in the High Court that Nottingham Forest knew of its existence at the time the forest land was acquired. 3 There is a corridor around each of the lines, in each case approximately 30 metres wide in total, where no trees have been planted. The nearest tree to the line is planted about 15 metres away from it.

8 The trees on the edge of the corridor grew to a height that was greater than their distance from the line some time between 2002 and 2008. However, in forestry terms, Pinus Radiata are not at their optimum maturity until they reach a height of 30 metres. On average the trees were 13.8 metres tall in 2002, 20 metres in 2008 and 38 metres in 2018. Harvesting of the trees was not scheduled to start before the end of 2020. The Judge found that by 2010 the trees planted on the edge of the corridor had grown taller than the full distance between those trees and the line. In the circumstances, there was what the Judge described as “a very good chance” that the line would be hit, and damage caused by falling trees. 4 In fact, that began to happen, with trees falling and causing power outages in December 2010 and July 2011. Further, in September 2013, a windstorm resulted in a tree fall causing $20,000 worth of damage to a structure on the line. In addition, there were outages on the 11kV line as a result of tree falls in April 2012 and January and November 2014.

9 On 27 February 2015, Unison sent the third appellant, Forest Management (NZ) Ltd (FMNZ), a notice referring to potential liability for damage caused by trees falling on the lines and recommending that trees be cleared to prevent further damage to the lines. This was resisted unless there was appropriate compensation.

10 Two trees fell and hit the line on 24 September 2015 (referred to by the Judge as the “First Strike”). 5 The trees were around 31 metres in height and had been growing on a slope on the edge of the corridor approximately 20 metres from the western side of the line. This event resulted in a power outage. Power was not fully restored to the last customer for some 48 hours. On 8 July 2016 another tree on the western side of the line approximately 30 metres in height and growing about 20 metres from the line at the edge of the cleared corridor fell on the line (the “Second Strike”). 6 There was a supply interruption of up to 21 hours whilst the necessary repairs were carried out. Following this event, FMNZ agreed to remove about 30 trees as a precautionary measure.

11 There was a further event on 6 August 2016 (the “Third Strike”). 7 As with the First and Second Strikes, the tree had been growing on the sloped land on the western side of the line. This caused an interruption to the supply lasting up to six days while the necessary repairs, which were delayed as a result of a snowstorm, were carried out. After these events Unison's Chief Executive wrote to the second appellant, Roger Dickie (N.Z.) Ltd (RDNZ), claiming that as a consequence of the Second and Third Strikes Unison had suffered power outages and incurred repair costs of over $133,000. It was said that Unison would hold RDNZ “liable for damage arising from the two … incidents … on 8 July and 6 August”, as the damage was:

… a wrongful interference with Unison's lawful and reasonable use of the land in circumstances where [RDNZ] has failed to exercise the care in the management of trees that a reasonably prudent forestry operator would exercise.

12 A further event occurred on 5 September 2018 (the “Fourth Strike”), 8 after the present proceedings had been filed. Three further trees fell. Once again, the trees were planted on the slope on the western side of the line. There was a supply interruption of approximately five hours while the necessary repairs were carried out.

13 The line provides electricity to approximately 380 customers. The four strikes resulted in outages affecting all customers served by the line. Each strike interrupted electricity supply until Unison repaired the line.

14 Each time the trees fell as a result of what is known as “root plate failure”, which occurs when the roots of a tree are insufficient to anchor it in the ground when the soil loosens and no longer holds up the tree, usually following adverse weather conditions. The trees that fell were healthy trees and the strikes followed periods of relatively high winds and heavy rainfall. However, even with regular inspections to identify trees at risk of falling, Nottingham Forest did not and could not identify in advance the trees which fell in the four strikes. Having assessed the relevant expert evidence before her, the Judge said:

[67] In the end, however, all that can really be taken from the expert evidence (in terms of assessing the risk of any specific tree failing) is that:

• (a) healthy plantation pine trees can fail in adverse weather conditions for a number of reasons (including root plate failure);

• (b) some risk factors are elevated where trees are grown around a cleared corridor;

• (c) each tree fall event adds to the risk that newly exposed trees will fail; and

• (d) earlier falls of trees in a particular area might suggest that future falls in that area are more likely.

Unison's claim in the High Court

15 As noted above, Unison pleaded three causes of action, in nuisance, Rylands v Fletcher and negligence.

16 In respect of the claim in nuisance it was said that the maintenance of the forest by Nottingham Forest had created and continued to create a state of affairs that unreasonably and substantially interfered with Unison's right to the use and enjoyment of the land over which the line is installed by:

• (a) allowing trees growing near the line to reach a height at which they could fall onto it;

• (b) failing to ensure that the trees were inspected and managed in a way that excluded any risk, or alternatively excluded any material risk, to the line; and

• (c) allowing trees to fall onto the line.

17 Unison claimed that its loss due to the damage caused by the four strikes was reasonably foreseeable by Nottingham Forest.

18 The Rylands v Fletcher claim alleged that one or more of the defendants...