ACTEW has started to get tough against people wanting to build under power lines. Even a minor extension to a garage under a power line is being knocked back.
This is probably a very wise move by ACTEW because before long an objector is going to test the law on the matter and we will all find that ACTEW is on very shaky ground indeed.
The basic common law position is that a landowner can do whatever they like on their own land. From there, the absolute right is whittled away by legislation and reservations of various kinds stamped on the title. Leaseholders in the ACT get all the common-law rights of freeholders subject to the lease. So the onus in ACTEW to prove they have the right, not on the landholder to prove that ACTEW is in the wrong.
Most landholders are unlikely to argue the toss with ACTEW. After all, they want to continue to get supply of their electricity. However, when ACTEW wants to prevent building under the powerlines, disputes arise. More disputes are bound to arise when ACTEW purports to give Transact permission for Transact to string its data cable along between the powerlines as a convenient way to get high-speed data and cable television cables into people’s homes. Most people will welcome the new services, but there are bound to be a few who do not want ACTEW workers plodding through the backyard. There are bound to be a few who do not want another thick black cable further wrecking their view or reducing still further the height to which they can grow their trees and shrubs.
The law has mechanisms to deal with the rights of third parties to walk over or otherwise enter and use the land of third parties. They are called easements. A typical easement will allow Farmer B to cross Farmer A’s land from the main road to the farm gate. At common law an easement must enhance one parcel of land and burden another. ACT statute law allows for gross easements which burden parcels of land without benefiting other parcels. These are provided for services like electricity and water. But it appears ACTEW has never taken them to full formality. ACTEW and the Electricity Authority before it have relied on a relationship with the building authorities to allow or disallow construction and they have relied on statutory rights for ACTEW workers to inspect electricity works and upon leasehold conditions that allow government authorities to go on to land.
It is fairly clear that ACTEW has inherited all the rights of the earlier Electricity Authority and Commonwealth bodies. However, those rights may not stretch as far as ACTEW thinks.
There are several problems. A lot of blocks in the inner south, for example, have nothing marked on the title in favour of electricity or water and sewerage authorities. Most other blocks in Canberra has deposited plans with lines on them delineating “”electricity easement”” or “”water and sewerage easement”, but there is no separate registration of land dealing that spells out exactly what rights are embodied in those easements. I suspect they might be more limited than ACTEW imagines. For example, do they permit ACTEW to grow crops on the delineated land? Obviously no. Do they permit ACTEW to demolish buildings on that land? Probably not. And now for the sixty-four million dollar question? Do they permit ACTEW to string up non-electricity cable for Transact? Probably not. Do they permit ACTEW to sell access to their easements to someone else (Transact) for a non-electricity purpose? Probably not.
If I were ACTEW I would not be aggressively ordered landholders about over what they can and cannot build. I would be politely seeking their permission to string up new cable. And it is not good asking the ACT Government to legislate to push the Transact cable through despite property rights. There might well be a question of acquiring property otherwise than on just terms, which opens up a compensation can of worms.
The Transact cable will bring enormous benefits to Canberrans, but there are bound to be squeals and workers plod though Aunt Mavis’s fish pond and Uncle Arthur’s vegie plot.