Actew tells me I have to trim the trees – do I?

Under tenancy law, your landlord is responsible, but under the Utilities Act, Actew can order you to trim the trees and bill you if you don’t.  If you cannot persuade your landlord to trim the trees, and Actew bills you, you can seek compensation through the ACT Civil and Administrative Tribunal.

Why is the landlord responsible under tenancy law?

The standard residential tenancy terms don’t mention tree trimming.  They say that tenants must take reasonable care of the property and keep it reasonably clean (clause 63(c)).  They say that landlords have to carry out urgent repairs that involve dangerous electrical faults, or make the premises unsafe or likely to cause injury (clauses 59 and 60).

So, tenants are expected to do some gardening to take care of the plants and keep the garden clean.  But when trees start growing near powerlines and it becomes a safety issue, then trimming trees is a repair that the landlord is responsible for.  Also, tenants are expected to take care of the property while they are there, but they are not expected to fix problems that started before they moved in.  Tenants are not required to improve the premises (clause 65).  Trees take years to grow near powerlines, so they should be maintained by the landlord because the landlord is obliged to provide and maintain the premises in a reasonable state of repair (clauses 54 and 55).

Another reason why it is the landlord’s responsibility to comply with Actew notices is that the notices say that tree trimming must be carried out by qualified professionals.  Tenants shouldn’t have to hire professionals to meet their obligations under a tenancy.  On the other hand, landlords are normally expected to use professionals to meet their obligations for repairs and maintenance.

Furthermore, tenants would ordinarily be in breach of their tenancy agreement if they started removing parts of the premises, including plants.

Why can ACTEW order a tenant to trim trees or pay the bill?

Actew doesn’t operate under tenancy law, but under the Utilities Act.  Section 3(c) of the Utilities Act says that Actew:

“may require the land-holder to carry out the activity [tree trimming] within a stated period.”

Section 6 states that:

“If the land-holder does not carry out the activity in accordance with a requirement in the notice mentioned in subsection (3) (c)—

(a)   the utility may carry out the activity; and

(b)   the reasonable expenses thus incurred by the utility are a debt due to the utility by the land-holder.”

Under the definitions section, a “land-holder” means either an owner or an occupier of the land.

What do I do if Actew gives me a notice to trim the trees?

As a starting point, you should send a copy of the notice to your landlord, because you are obliged to notify the landlord of the need for repairs.  You should explain to your landlord in writing that it is their obligation to keep the premises safe and secure and carry out repairs.  You should set out a list of convenient times for the landlord to have the trees trimmed.  Ask the landlord to respond to your letter by a certain date, to let you know when to expect the tree trimmer.

If you want to, you can also remind the landlord that if they do not meet their obligations under tenancy law, you are entitled to compensation for any loss you suffer.  You can say that, if the landlord does not trim the trees and Actew bills you, you may (or will) make an application to the ACT Civil and Administrative Tribunal for compensation.

Call the Tenants’ Advice Service for further advice.

Reviewed: 3/12/13

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