The definition of "road" is aligned in the Gas and Electricity Acts, but this differs from the definitions in the Telecommunications Act and Local Government Acts. Requirements for the notification of intended roadworks for utility or roading purposes vary, as do cost allocation regimes, and criteria for the setting of "reasonable conditions" on works in the road. Existing provisions for appeals to the district court against conditions imposed by a road controlling authority have not proven effective in resolving disputes.

The status quo will result in the regulatory failures and costs identified above continuing, and increased barriers to innovation and growth as these rely on the availability of infrastructure services and efficient transport.

A voluntary collaborative approach to resolve some of the issues through the use of "good practice guides" and "partnership agreements" has been under way, primarily through the New Zealand Utilities Advisory Group (NZUAG) which is a forum for road authorities and the utility sector. This approach has had some success but cannot address the inconsistencies in the statutory framework and the lack of authority for any party to plan and manage the multi-use of the corridors. Reliance on the voluntary adoption of codes and standards will not result in national consistency or high levels of compliance.

Dissatisfaction with the status quo by stakeholders has given rise to the current review, and there is widespread agreement among local authorities and utility operators that a legislative solution is required. The status quo option is not favoured.

Non-Regulatory Option

An option was considered under which RCAs would have been required to hold and exchange certain information about the nature and location of utility networks and installations, and who is responsible for them, in order to reduce damage to utilities from works in the road. Such a regulatory requirement was potentially very costly for RCAs, and has been rejected in favour of initiatives to establish a privately operated national system (or systems) with the same objective. In a recent development at least one internationally established provider of such services, operating in New Zealand as "DigSafe", is about to extend recent trials to encompass significant national and regional utility operators and several large local authorities. Parties proposing to undertake work in the road fund the system through application fees. This approach has been successful in other countries and is the favoured approach for dealing with information repository and exchange issues, in conjunction with the favoured regulatory option.

Regulatory Options

The policy content of options 1, 2, and 3 below would be consistent, as set out below. The options relate to the different ways the proposed legislative amendments could be achieved.

Proposed amendments to existing provisions include:

A consistent definition of "road", based on the definition in the Electricity and Gas Acts
Consistent notification requirements across all utilities, and including the notification of proposed RCA road works to utilities
Consistent statutory timeframes for processing applications are introduced
A mediation step is added to existing dispute resolution processes
The ability of utility providers to impose conditions on other utilities is removed
A nationally consistent cost allocation regime is enabled via enforceable codes or standards, once adopted by Ministers (see below).

Proposed new elements of the regulatory framework include:

Giving road controlling authorities an explicit responsibility for managing the road corridor and ensuring balance between roads and utilities, and among utilities, in the public interest
A mechanism for the Ministers of Economic Development and Transport to adopt codes of practice and standards which would be available to road controlling authorities as nationally consistent and enforceable conditions. Codes and standards could be drawn from a number of sources, including those already developed by the industry.
Establishing a statutory right for utilities to have access to the rail corridor. This right would be subject to reasonable conditions determined by ONTRACK when the proposed utility runs along the corridor and a stricter regime when it is proposed to cross the permanent way (the track). ONTRACK would be obliged to process applications according to statutory timeframes, and would be subject to dispute resolution processes.
Establishing a statutory right for utilities to have access to the motorway corridor, on a basis similar to that for rail (above) except substituting Transit NZ for ONTRACK. Compared to the regime for roads, the framework for rail and motorway corridors would be balanced more towards the public interest in safe and sustainable transport.

Option 1: A new consolidated statute covering the access by utilities to transport corridors (and consequential amendments to the existing legislation)

This option would see all utilities covered by a single statute governing their access to and occupation of space in the road reserve. This approach has been adopted in the UK and some Australian states. It would have the benefit of ensuring that future amendments to the regime would apply equally to all utility sector and land transport modes. This approach would also have greater user-friendliness for stakeholders dealing with more than type of utility or transport corridor. A drawback is that a completely new statute is likely to require greater development and parliamentary effort to achieve the same policy objectives, compared to the preferred option. Most utility providers prefer to maintain the sector-specific nature of their current legislation. This option is not favoured.

Option 2: The incorporation of all utility legislation into a single statute.

This approach would see all utility legislation - not just the road-related aspects - incorporated into a single statute. The wide scope and impact of this option is not considered to be merited on the basis of the relatively focussed issues covered by this review, and there is no policy mandate or pressing need for such a large scale change at this time. This option is not favoured.

Option 3 (Preferred Option): Coordinated amendments to existing statutes

This approach would retain the current sector-specific utility statutes but make coordinated amendments using consistent wording in each where appropriate. Other key features are listed under the Regulatory Options heading above.

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Printed: 25/11/2009