Reasonable Conditions
Proposal: That the provisions in s119 of the Telecommunications Act 2001 outlining the criteria for setting reasonable conditions be adopted by other utilities legislation.
33 submissions were received on this proposal. 28 Supported. 2 were Against. 3 submitted that utilities legislation should adopt the reasonable conditions prescribed in the NZUAG Code of Practice.
RCAs felt they should have strengthened rights to set reasonable conditions over a number of issues such as reinstatement, location, and restrictions. There was noticeable support for reasonable conditions prescribed in the NZUAG Code of Practice to be legislated. There was also support for strengthening and adding to the Code of Practice and developing national guidelines for reasonable conditions to support any legislative prescriptions.
Utilities felt reasonable conditions imposed by RCAs should be related to their operational and asset management role, rather than as part of some wider regulatory role. It was suggested that it is clear from the utilities statutes that the functions being exercised by an RCA in imposing conditions should be related to their ownership or control of the road as an asset, and to the primary function of the road as a transport resource, not amenity or RMA issues. It was widely felt that reasonable conditions must be fair and equitable to all, and recognise the balance of costs.
Of note, was the issue of redundant assets. RCAs have called for wider powers to set requirements or bonds for the removal or re-usage of redundant assets located in the road corridor. Another suggestion of note was that all utilities with assets in the road corridor should have the ability to impose reasonable conditions requirements on work that other utilities undertake that may affect their assets. It was proposed that the ability to impose reasonable conditions should not just be confined to RCAs.
Question: How can the interpretation and application of reasonable conditions be defined and tested?
35 submissions were received in response to this question.
It was certainly evident that there is disparity between the RCAs' and Utilities' perceptions of "reasonable". National utilities also called for national consistency as dealing with different degrees of reasonable conditions across the spectrum of RCAs is an issue.
There was a strong preference for non-legislative definition through the development of national criteria, models, or guidelines. It was felt that NZUAG was the best party to do this. Others felt that the current NZUAG Partnering Agreements and Code of Practice sufficed and just required greater adoption.
In terms of legal definition and testing, it was felt that mediation or arbitration was preferable, as was final determination through the court. It was suggested that the best means would be test cases in court to determine judicial interpretation and set case law precedents.
There was significant agreement from RCAs that the TLA/RCA should be the only authority/party with the power to prescribe reasonable conditions. There was some agreement that any guidelines or conditions must include reinstatement and the needs of the safe and efficient flow of traffic against the needs of the community to access utilities in a timely, reliable manner at a price they can afford.
A significant additional issue raised by respondents, is that of road traffic safety and the RCA's requirement for undergrounding and not poles. RCAs argue that this requirement is for road safety purposes. Utilities suggest RCAs are using it more to achieve amenity outcomes. The major issue for utilities is the significant cost undergrounding poses. The Ministry believes this is an issue that requires further review in conjunction with Ministry of Transport and Land Transport New Zealand.
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