Background
Efficient and accessible roads and utility services are vital for New Zealand to maintain and improve its standard of living and economic growth. The road, motorway and rail corridors provide physical space in which a variety of transport, utility, amenity and public functions take place, often in competition for space.
As the intensity of use of the corridors increases, the likelihood of the performance of one asset or network compromising the performance of another also increases (e.g. when telecommunication cables are co-located with power cables).
The right of access to private land was removed in 1987 for telecommunications utilities and 1992 for electricity. Road, rail and motorway corridors have therefore become an increasingly valuable resource which must be used in the most effective and efficient manner.
The road and utility networks all make important contributions to the public good and economic development. Unreasonable restrictions on either the road or utility systems, and their future development, would have a negative impact on communities, as would ongoing unresolved inefficiencies and uncertainty.
Utilities in the road corridor benefit from not being levied occupation fees or rentals, although they are subject to rating. No change to this approach is proposed.
It is important that works are undertaken in a manner that minimises the impact on business and the community, reduces the frequency of digging up roads, and maintains the integrity of the road and utility service assets. The need for emergency repairs to roads and utility networks, and the demand for customer service connections must be recognised.
In relation to charges and the allocation of costs it is generally intended that a money-go-round should be avoided. Consumers will ultimately wear the costs whether through utility service charges or through rates, however utility providers that are subject to competitive pressures have better incentives to minimise them.
A good degree of cooperation and coordination between interested parties already exists, particularly through the NZ Utilities Advisory Group, but inconsistencies, uncertainties and barriers to efficiency and sustainability remain. Lasting solutions for many of the issues require changes to the legislative framework - indeed a number of the issues are the result of the existing legislative provisions. The policy positions in this paper are the proposed basis for legislative change.
Legislation Options
A two stage process is proposed. The first objective is for the positions in this paper to be achieved through co-ordinated amendments to existing utility and transport statutes. It is proposed that, as a second and longer term objective, a legislative review of wider scope would be required to achieve a fully consistent approach to corridor access issues.
A significant advantage of the proposed "co-ordinated piecemeal" approach is the increased likelihood of early achievement of benefits.
The legislative amendment proposals identified in this paper should be achieved through amendment to the existing statutes, using common wording where appropriate to achieve consistency.
In the longer term the Ministry of Economic Development should consider developing a work stream with the objective of promoting an omnibus statute covering utility access to the road, motorway and rail corridors, and/or an omnibus utilities act.
It is acknowledged that a risk of proceeding with the proposed approach is that a consistent national framework would be subject to the interpretation of separate statutes with varying purposes and different industry and community contexts. Further, each statute may over time be subject to amendments that undermine a consistent and holistic approach to corridor access by utilities.
Close monitoring by MED and other interested agencies would mitigate this possible outcome. It may also be possible to draft the amendment legislation to place the legislated processes that are common to all utilities and road controlling authorities (such as the setting of reasonable standards, and dispute resolution) in a single statute, perhaps the Land Transport Act, with appropriate cross-references in the utility statutes.
Submitters on the draft position paper were clear in their view that the regime for dealing with utilities in road and rail corridors should be separate from the Resource Management Act.
Preferred Policy Positions
1. Definition of "road"
A consistent definition of "road" should be used in utilities legislation. The definitions in the Telecommunications Act 2001 and the Local Government Act 1974 incorporate areas that are not covered by the definitions in the Electricity and Gas Acts 1992, or the Railways Act 2005. One effect of the differing definitions is that telecommunications utilities have access rights to public spaces that are not roads under the jurisdiction of a local authority. This raises contention and ambiguity in the application of the regime intended to manage the access of utilities to road corridors and the setting of reasonable conditions.
It is not intended under the proposed policy framework that utilities should have rights of access to "every square or place intended for the use of the public generally" which form part of the Local Government Act definition of a road.
The definition of "road" within the Telecommunications Act 2001 should be amended to be consistent with the definition in the Electricity and Gas Acts 1992, and the application of the definition in the Local Government Act 1974 should be reviewed.
Telecommunications assets and networks located in areas defined as road prior to the commencement of the proposed new definition, but not located in an area defined as road under the proposed definition, should continue to be treated as if the definition had not changed, including the ability to access, maintain and upgrade the assets.
2. Relative priority of uses of the road corridor
There is no explicit legislative basis for managing multiple and sometimes competing uses for space in, and access to, the road corridor. Some utility operators submitted that the road surface should be considered to be simply another utility on an equal footing with other utilities within the road reserve. The argument was also made that there was no inherent need to protect use of the road reserve for transport and the right of passage to any greater extent than use for utility services. It was argued by utility providers that trade-offs between uses should be resolved on the basis of the greater public interest at the time.
This review does not accept that the road surface and utility networks are analogous. The road facilitates free universal access day and night, including the physical access to most properties. It has been described as having the characteristics of the "commons". The characteristics of utilities vary, but generally they are not akin to roads in this respect. Further, utilities are not bound to use the road reserve (though it is generally more accessible and lower cost than private land options) while public passage and transport have little other option. In essence a bottom line should be established to protect the public interest in roads from being unduly compromised by competing uses in road reserves.
The fundamental purpose of roads for transport and the right of passage should not be undermined in utility access legislation. Road controlling authorities should retain their current mandates in respect of roads, and should have an additional mandate to manage and coordinate the occupation by utilities of the road reserve.
Utilities should retain their rights of access to the road corridor. All utilities and utility operators should have the same privileges and responsibilities in this regard. Utilities operated by the territorial authority that is also the road controlling authority should be treated in the same way as other utilities.
Where trade-offs must be made to accommodate all as-of-right uses of the corridor, the public interest in road use should not be unduly compromised by utilities.
All occupants of the road corridor should have their rights and assets protected in a fair and practical manner.
Proposals for the rail and motorway corridors differ somewhat (see later sections).
The "bottom line" protection for roads should not apply in corridors that are not roads, or future corridors established for non-road purposes.
Some submissions on the draft position paper argued for a presumption in favour of existing utilities in those cases where space, incompatibility, or other factors limited total capacity at a location. The review considers this can be dealt with, in those locations where it is necessary, by way of reasonable conditions and codes of practice or standards adopted under the processes identified later in this paper.
This proposal (in bold above) assumes that there will be a party responsible for applying these management principles and resolving competing or conflicting uses. This is addressed in the next proposal.
3. Guardianship of the road corridor
The public interest in sustainable multi-purpose management of the road corridor is not sufficiently addressed by current legislation, and a guardianship role has not been given to any appropriate public body. One submitter on the draft position paper argued that there was no need for a single body to take the guardianship role if the legislative regime established appropriate guidelines and balance. The review does not accept that this approach would provide sufficient protection for the road reserve asset, or a realistic framework for balanced, sustainable management and coordination.
Road controlling authorities (RCAs) including Transit NZ should have a clearly defined statutory responsibility for managing road corridors and ensuring balance between roads and utilities, and among utilities, in the public interest. Fair and equitable treatment of utilities should be a requirement of this role.
Responsibility for guardianship must be matched by capacity and capability on the part of road controlling authorities (or local authorities), and supported by appropriate funding/cost recovery mechanisms. The review does not support the introduction of occupation fees or rentals for space in the road reserve, but actual and reasonable costs should be recoverable.
There should be provision for road controlling authorities to collaborate with each other in the discharge of their responsibilities, and to outsource.
4. Management of the road corridor
The party charged with representing the public interest and ensuring balanced outcomes for all stakeholders of the road corridor will require certain powers and should follow certain processes in order to achieve good longer term and case by case outcomes. This includes the ability to establish and monitor conditions and standards.
Consistent decision-making, reasonableness, and certainty with regard to use of the road corridor by utility operators should be facilitated by statutory decision-making criteria and reference to a specific set of accepted standards and codes of practice.
Powers to manage the road corridor should include the ability to set specifications and requirements on utilities in the interests of public health or safety, or the efficient and sustainable use and management of the corridor, including:
- Setting reasonable conditions on utilities, including the allocation of costs
- Specifying codes of practice and standards that apply to works and assets in the corridor (see proposal below)
- Promoting the shared use of poles, ducts, trenches etc where appropriate
- Setting policies applicable when the effective capacity of the road reserve is reached, including when additional or augmented utility services would degrade or limit existing services or the road to an unreasonable degree
- Requiring decommissioned, unused or obsolete utility assets and facilities to be removed in whole or part, and
- Requiring the maintenance, repair or relocation of utility assets and facilities
It would be appropriate to establish statutory criteria to guide these management activities, along the lines of the criteria specified in section 119 of the Telecommunications Act 2001 (these include consideration of safe and efficient traffic flows, health and safety, damage that may be caused, compensation for damage, the need to lessen disruption, and coordination of installation of networks).
The rights attaching to an asset or facility that is an existing use (pursuant to the Resource Management Act) should not be affected as a result of a requirement to move or alter that asset or facility under the proposed powers outlined in this section.
It was mooted in the draft position paper that road controlling authorities should have a new, clearly defined, statutory responsibility to publish and review road-utility management plans with appropriate short, medium and longer term timeframes (say, one, three and 10 years). The objective was to enhance and enable coordination of road work programmes with utility works and upgrades in the same localities. It was envisaged that where a road-utility management plan was in force, road controlling authorities would have the ability to place strict conditions (including reinstatement, quality of work and cost recovery) on utilities that fail to coordinate routine and planned new works with notified road works and road openings.
Submissions in response to this proposal were concerned about the cost and resource implications of a requirement to produce and maintain such a plan, particularly in smaller centres and where utility assets were less concentrated. One submission noted that it would be preferable to associate the proposal with other existing local government transport and planning requirements. It was also noted that the imposition of further requirements on local authorities would not necessarily result in improved information sharing and involvement of utility operators.
On balance, the proposal to introduce an additional level of planning and coordination requirements on TLAs has not been adopted, as it was considered it would not sufficiently target the problem. TLAs already have obligations to plan the management of their road assets, and produce Long Term Council Community Plans and annual plans. Transit NZ also has existing obligations to publish a 10-year State Highway Forecast detailing planned state highway maintenance and capital improvements. Within the 10-year Forecast the first year is a detailed programme, the next three years include current best estimates of timing and cost, and the remainder is the forecast in which costs, priorities and rankings are subject to change.
No new policy option has been identified that would cost-effectively and efficiently address planning and coordination of road and utility work programmes. This is due in part to the reluctance of service providers operating in a competitive environment to release forward plans. However it is noted that under the proposed policy framework the mechanism of local partnership agreements (between RCAs and one or more utility operators) remains available as an avenue for progress. These are established as a good practice in a number of overseas jurisdictions, and in NZ a model agreement has been developed.
Incentives for improved coordination of major road works can also be provided if reasonable conditions (or associated standards/codes of practice) are developed to establish a regime under which utility works which take place within a given period (say 12 or 24 months) of a major road reconstruction or re-sealing are obliged to reinstate or reseal to an extent that returns the road asset to the pre-work state. This mechanism is found in legislation in some overseas jurisdictions.
5. Codes of practice and standards
A mechanism is required whereby appropriate and nationally consistent standards and codes of practice can be given a status that allows them to be referenced in reasonable conditions set by road controlling authorities. The process should provide for the collaborative development and maintenance of codes and standards through industry forums such as the NZ Utilities Advisory Group, Standards NZ, and the processes used by Transit NZ, ONTRACK, and territorial authorities/road controlling authorities. Existing codes and standards could be readily adopted and re-work or duplication avoided.
The proposed approach addresses the need for a consistent national set of codes and standards, and a framework that encourages wide adoption and use, while recognising relevant codes and standards from a variety of sources. The proposal also provides for appropriate consultation and promulgation.
There should be a legislated process by which the Minister of Economic Development can adopt codes of practice and standards that would form part, where appropriate, of reasonable conditions set by road controlling authorities.
A code or standard adopted by the Minister and incorporated by reference in a condition set by a road controlling authority would be considered prima facie to be a reasonable condition.
The Minister would adopt a code or standard if he or she was satisfied that it promoted the efficient, effective and sustainable use by utilities of the road corridor, and was not contrary to the public interest. A code or standard would not be adopted until it had been advertised; copies made available; submissions invited within a set timeframe; and any submissions had been duly considered by the Minister.
The Minister of Economic Development could not accept a code or standard that affected or had the potential to affect road safety or sustainable transport without the agreement of the Minister of Transport.
Any party could recommend a code or standard to the Minister.
The Minister of Economic Development could decline to adopt a proposed code or standard, giving reasons in writing. The Minister's decision would be final.
The Chief Executive of the Ministry of Economic Development should ensure that copies of adopted codes and standards were readily available, whether from the Ministry or other parties, and whether charged for or otherwise. Revised and updated codes and standards would be subject to the same process for adoption.
A party subject, through reasonable conditions, to such a code or standard would be obliged to take all practicable steps to achieve the relevant result. Accepted codes and standards would be enforceable. An enforcement regime would be included in the amended legislation.
A road controlling authority would be obliged to take all practicable steps to comply with adopted standards or codes in relation to its own works that may affect utilities.
As an acceptable alternative to referencing accepted codes and standards in setting conditions, a road controlling authority could establish a local partnering agreement.
Reasonable conditions and partnering agreements would not be restricted to adopted codes and standards. They should reflect local circumstances and establish a balance between local needs and objectives, and nationally consistent practices and standards.
A process for the adoption of standards which could serve as a model in several respects is currently being developed for inclusion in a Bill with drinking water. The process from the draft Bill is outlined in attachment 2, for information.
It is envisaged that adopted codes and standards would establish the minimum levels of performance. Reasonable conditions and partnering agreements could potentially include requirements for higher levels of performance or recognise specific situations. While this would detract from national consistency - which national utility operators strongly favour - it would seem wise to provide flexibility for unforeseen circumstances.
While the use of adopted codes and standards would not be mandatory for road controlling authorities, it is envisaged that only those adopted under the legislated process would be enforceable under the associated compliance regime in the amended statute(s).
Mandatory use of the adopted codes and standards was viewed as a concern by some road controlling authorities, while the ability to impose higher standards was a concern to utility network operators. On balance the review considers consistency should be enabled and strongly encouraged, but not imposed.
Some utilities submitted that any local partnering agreement should be required to cover all utilities operating in the area, but a full range of views on this option was not obtained, and the suggestion seems likely to work against the ready establishment of useful local arrangements. Fair and equitable treatment of all utilities is proposed as a general principle of the guardianship role of road controlling authorities.
6. Resolution of disputes
Increased certainty in the ability to resolve disputes is required. The objective is a low cost and time-bound process for resolving disputes between parties, while providing for escalation where necessary. The addition of mediation or arbitration to current processes was widely favoured. On balance, mediation is considered more appropriate than arbitration.
There should be a legislated dispute resolution process, incorporating mediation provisions. The scope should be the content and application of reasonable conditions and compliance with them, and complaints of detrimental impacts of works or co-location of networks and installations. The process should escalate to the district court if resolution by mediation fails, and subsequently the high court on points of law.
Each step in the resolution process should have a legislated maximum time period.
An acceptable alternative means of resolving disputes should be a local partnering agreement which contains a dispute resolution process.
Submissions pointed to the process established under New Zealand Standard 3910 "Conditions of contract for building and civil engineering construction" as a familiar model for dispute resolution.
According to one submission, it may be necessary to specify whether works should stop while disputes are resolved.
The intention is that existing statutory dispute resolution processes be enhanced rather than duplicated by this proposed provision.
7. Notification of affected parties
Requirements for the notification of affected parties prior to works commencing in the road corridor are not consistent. The potential benefits of consistency are widely agreed, as notification is a key step in managing potential risks from work in the road.
Legislated notification requirements should be consistent for all utilities and RCAs. The initiator of works should have responsibility for notification of affected parties. The definition of affected parties should be specific to this process (e.g. those having assets within a specific distance of the proposed work). The need for public notification of works in the road should be at the discretion of the RCA
RCAs should be required to notify affected parties of their intent to carry out road works.
A consensus has not emerged as to whether minor road maintenance works should be exempted. This should be resolved having regard to whether minor road maintenance is a significant contributor to asset damage.
Utility operators (including TLAs) should be responsible for notifying RCAs and affected parties of their intent to carry out works in the road corridor.
It is not intended that emergency works would be subject to the normal notification regime, but submissions generally agreed that an appropriate regime for the conduct of emergency works should be developed.
8. Utility information base
There are inadequate provisions to ensure the timely lodgement, collation and availability of accurate information concerning the location and nature of works, networks and facilities, and identifying the responsible utility operator. Available information is not always used when works are undertaken.
The objective of this part of the policy framework is to ensure that damage to networks and installations, and worker injury, is avoided to the maximum possible extent, and to give road controlling authorities/local authorities the opportunity to build up comprehensive geospatial information regarding the assets in their roads. Cost effectiveness would be enhanced by the use of standardised information requirements. The draft position paper proposed an information collation and exchange regime centred on the road controlling authority in each area. Outsourcing and collaboration in the discharge of this function was envisaged.
In recent months the development of private sector service provider capability in this field has taken significant steps forward, and some submissions on the draft position paper suggested that a statutory regime was likely not to be required. At the same time, submitters expressed serious concern about the cost and resource impact on RCAs, especially in smaller centres, in developing the necessary capability and associated information systems to undertake the function themselves.
At least one service provider, operating as "DigSafe", has been trialling it's internationally proven systems in New Zealand. DigSafe has advised that during 2006 the company will extend its system to encompass significant national and regional utility providers and several large local authorities.
It appears that many of the objectives of the proposed policy will be met if third party information clearing-house operations such as DigSafe establish reliable and effective systems in New Zealand, and their use is widely promoted. Associated issues such as the accuracy of the information supplied by a utility to an excavator, or the willingness of the excavator to obtain and use the information prior to work commencing, would be applicable to any regime regardless of the service provider. DigSafe (and presumably other potential providers) are also able to offer services that enhance utilities' and local authorities' geospatial information bases (such as storing and mapping all past inquiries and associated details).
While a potential drawback of a third party service provider is the possible lack of comprehensive coverage (utilities and councils must agree to be involved) it is possible that the ready availability of a system already supported by major players (and funded by a fee per application paid by the party proposing to work in the road) may result in coverage extending reasonably rapidly. In any event, the alternative of RCAs developing their own capability would be likely to take just as long or longer to achieve wide coverage.
It is proposed that MED maintain a watching brief on the development of the third party information exchange systems and, in consultation with early users, review whether the underlying national interests (including infrastructure security) are being adequately served without further legislative development.
9. Setting reasonable conditions
Rights of access by utilities to the road corridor need to be balanced by the ability of the corridor "manager" to set conditions on such access. A consistent approach to the process and criteria for setting reasonable conditions is required. National consistency increases certainty with regard to acceptable means of compliance, and minimises compliance costs.
The purpose of reasonable conditions on works in the road (as established under the Telecommunications Act 2001) is to provide for the management of:
- Safe and efficient traffic flow
- Health and safety of workers
- Damage to property (including the road)
- Compensation for damage
- Disruption to the community, including businesses
- Coordination with other installation works
- Coordination with road construction works, and
- Timely installation of networks.
While RCAs, in their role as road corridor managers, would be the only party able to set conditions, they may require advice from applicants and affected parties as to the conditions that are reasonably required to manage the proposed works and the impact of new networks and facilities. RCAs would add value by guarding against anti-competitive conditions (proposed by utility operators) and reducing where possible the likelihood that new works and installations would damage other networks, degrade existing service capacity or quality, introduce new hazards including road safety hazards, or damage the road asset.
In setting conditions, RCAs will be able to utilise adopted codes and standards, as established under the process proposed in this paper. RCAs are not expected to identify potential technical issues or adjudicate technical matters outside their road controlling role (e.g. interference and hazards) - such issues should be covered by accepted standards and codes, or other regulatory regimes.
Consistent statutory criteria for setting reasonable conditions, including a timeframe for the process, should be established based on s119 of the Telecommunications Act 2001, as modified by section 2.3 of the NZUAG model partnering agreement.
[The model partnering agreement removes the specific reference to the telecommunications network, adds a reference to the need for network connections, and adds the expression "robust and efficient" in relation to the manner in which a network may be established and maintained.]
Road controlling authorities should have the ability to set and enforce reasonable conditions in respect of their own road-related interests and their wider (new) responsibilities for multi-purpose sustainable use of the corridor.
Utility operators should lose the power to set and enforce conditions in their own right. However they should be responsible for monitoring notices, and advising the applicant and/or the RCA of specified information concerning their interests in the vicinity.
Affected utility operators should identify reasonable conditions they consider are required to adequately manage risks to their interests, and advise these - within a set timeframe - to the applicant and the RCA. In doing so they should refer, wherever possible, to codes and standards adopted by the Minister, or local partnering agreements. Utility operators should remain responsible for protecting the public from hazards arising from their installations.
RCAs should set and monitor reasonable conditions in respect of parties (including the public if applicable) that have notified the RCA that they may be affected by proposed works.
It is not intended that existing statutory regimes for compensation should be affected.
Utility operators and RCAs should be fully accountable for the actions of their contractors.
Codes and standards to support the "reasonable condition" process would be those adopted by the Minister of Economic Development.
It was submitted in response to the draft position paper that reasonable conditions could also include those established under local partnering agreements, provided that all the utility operators in the area (at the time of the agreement) were party to the agreement. It was also submitted that widespread local customisation of standards and codes would increase the uncertainty and costs of compliance with reasonable conditions. The review considers that enforceable reasonable conditions should be restricted to those adopted by Ministers.
The legislation should provide that the process of RCAs setting reasonable conditions includes an opportunity for the party(ies) affected by such a condition to request reconsideration by the RCA of the conditions, and for the RCA to take such requests into account (to the extent they are compatible with the legislated criteria for reasonable conditions). This process should be time-bound.
Disputes arising from the application/notification/reasonable condition process should be considered under the legislated dispute resolution process.
Time limits under the proposed approach should run from the point at which all necessary information has been provided by an applicant.
A form of separation of the roles and interests of TLAs as RCAs and utility operators may be required.
It is not intended that reasonable conditions under the proposed framework would replace existing regulations, such as those applying to gas and electricity networks.
It was submitted that enforcement in support of reasonable conditions will require meaningful penalties, and perhaps performance bonds.
10. Cost sharing
Consistent national guidelines for cost sharing are required, and a legislative framework that ensures equity and the ability to appeal disputed cost sharing conditions. The cost sharing concept relates to the impacts on assets of the works, upgrading etc, of another party, such as the need to relocate or replace one party's asset due to another party's initiative. It does not refer to administration and processing charges.
Cost sharing provisions should be one of the reasonable conditions covered by the proposed legislative provisions and incorporated in the above framework. The dispute resolution process should apply to such conditions.
A cost allocation code of practice should be one of the matters that can be adopted by the Minister of Economic Development, and incorporated by reference into reasonable conditions set by RCAs.
An acceptable alternative would be a partnering agreement which defined cost allocation between the parties.
Any code of practice for cost-sharing that is developed in the future and recommended to the Minister for adoption would be expected to have regard to the principles of "causer pays" and equitable recognition of betterment. Such a code or codes would also be an appropriate place to define whole-of-life costs - an issue raised in earlier consultation rounds.
11. Access to the rail corridor
The nature of the access right of utilities to the rail corridor, and the extent to which ONTRACK can condition or determine the access and location of assets and works needs to be defined. Like the road, the rail corridor is a potential utility corridor of increasing importance. Utilities consider that access along and across the corridor is unduly restricted and subject to delays, and should be enhanced in the national interest.
The rail corridor, because of its legal, physical and operational characteristics, is not considered by the review to be analogous to the road corridor. Particular protection should be in place for the rail track, and for the rail corridor in locations where space is particularly restricted or activities in the corridor are subject to additional risk factors.
Legislation should provide that utilities have access to the rail corridor as of right, but not to the rail track (or the space above and below it). Access should be subject to reasonable conditions. The reasonable conditions should be specific to the rail corridor context.
Reasonable conditions set by ONTRACK would not be deemed unreasonable solely by virtue of an outcome that the utility network or facility was considered by the utility operator to be unfeasible or impractical as a result.
It is not intended that ONTRACK's ability to levy occupation charges or rentals should be affected by the proposed policy changes.
Crossing the rail track should be subject to ONTRACK specification of the location of works and assets in the corridor. Legislated criteria for such specifications should apply. [To be developed]
Utility networks proposed to run along the rail corridor should be subject to ONTRACK specification of the location and nature of works and assets in the corridor in those locations where ONTRACK considers there are particular space restrictions or additional risk factors. Legislated criteria should apply. [To be developed]
The legislated process (described earlier) by which the Ministers of Economic Development and Transport can adopt codes of practice and standards that would form part, where appropriate, of reasonable conditions and specifications, should apply in the rail context.
A code or standard adopted by the Minister and incorporated by reference in a condition or specification by ONTRACK would be considered prima facie to be a reasonable condition.
ONTRACK consideration of applications should be subject to legislated timeframes. ONTRACK should be able to charge for the consideration of applications.
Reasonable conditions should include cost allocation in the rail context (e.g. where utilities are required to be moved). Where lack of space or other limiting conditions apply, reasonable conditions may include defining classes of utility (such as telecommunications networks of national significance) with priority access.
The dispute resolution process, modified if required for the rail context, should apply.
Submissions on the draft position paper identified an existing contract between ONTRACK and a utility provider under which certain rights and privileges have been granted. Further analysis is likely to be required in respect of possible conflicts between the proposed policy framework and the contract.
12. Access to motorway corridors
The nature of the access right of utilities to the motorway corridor, and the extent to which Transit NZ can condition or determine the access and location of assets and works, needs to be defined. The motorway corridor, because of its legal, physical and operational characteristics, is not considered to be analogous to the road corridor. Additional protections should be in place for the motorway carriageway, and for the corridor in locations where space outside the carriageway is particularly restricted or subject to additional risk factors.
Legislation should provide that utilities have access to the motorway corridor as of right, but not to the carriageway. Access should be subject to reasonable conditions. The reasonable conditions should be specific to the motorway corridor context.
Reasonable conditions set by Transit would not be deemed unreasonable solely by virtue of an outcome that the utility network or facility was considered by the utility operator to be unfeasible or impractical as a result.
Crossing the carriageway should be subject to Transit specification, in conditions, of the location and nature of works and assets in the corridor. Legislated criteria should apply. [To be developed]
Utility networks proposed to run along the corridor should be subject to Transit specification of the location and nature of works and assets in the corridor in those locations where Transit considers there are particular space restrictions or additional risk factors. Legislated criteria should apply. [To be developed]
The legislated process by which the Minister of Economic Development can accept codes of practice and standards that would form part, where appropriate, of reasonable conditions and specifications, should apply in the motorway context.
A code or standard accepted by the Minister and incorporated by reference in a decision by Transit would be considered prima facie to be a reasonable condition.
Transit consideration of applications should be subject to legislated timeframes. Transit should be able to recover costs incurred in the application process.
Reasonable conditions would include cost allocation. The dispute resolution process, modified if required for the motorway context, should apply.
It is not intended under this framework to create any new ability to charge for occupation of the motorway corridor.
13. Interference and hazards
It is not proposed to make new legislative provision for the mitigation of interference and hazards, however the power of RCAs to set reasonable conditions should include the ability to require adherence to the relevant national codes and standards.
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