Access to Rail and Motorway Corridors
Proposal: That utility operators' right of access as set out in the Electricity Act 1992 NOT be extended to include the rail corridor.
27 submissions were received. 9 supported NO right of access for utilities. 18 did not support. Of note, the Government Agencies responsible for the rail network, ONTRACK and MOT, both supported utilities having NO right of access.
Those against the proposal, who believed utility operators should have as-of-right access to the rail corridor, suggested that the use of currently underutilised rail corridors to ease the access pressure is seen as preferable to the increasingly problematic accessing of privately owned property. It was also suggested that where utilities are already in the rail corridor, or the corridor is sufficiently wide, utilities should be able to co-locate.
There was significant agreement that access must not compromise the safety of the rail system by disturbing the rails or ballast. In terms of managing utilities in the rail corridor, there was strong support for right of access being subject to the imposition of reasonable conditions by the rail access provider to protect the special nature of the carriageway and alleviate safety concerns. However, there was also support for the suggestion that conditions must be "reasonable" and not impose extreme conditions that ignore costs and technical developments.
Of note it was suggested that it must be recognised that there are two issues for access: one to lay utility services along a rail corridor and the other, gaining access across rail track to provide customer services on the other side. Often, the majority of utility requests are just to cross the corridor.
It was also suggested that consideration could be given to using disused rail corridors. Two submissions both noted that many rail corridors were originally acquired under the Public Works Act for the specific purpose, viz. a rail corridor. If a rail corridor were to be used for utilities, becoming in effect a utility corridor, would this not constitute a change of use and trigger an obligation to "offer back" the land to the original owners? If so, the land would become private land and no longer a corridor over which any utility would have any rights.
ONTRACK made a significant submission outlining the differences between rail and road corridors, justifying the need for them to retain control of access over utility operators.
Proposal: That the Rail Access Provider's (ONTRACK) rail corridor access evaluation criteria be codified, published and made accessible to utilities.
21 submissions were received. 20 were in support. 1 did not support the proposal, instead submitting that it should be legislated, not just codified and published. Of note, the Government Agencies responsible for the rail network, ONTRACK and MOT, both supported the proposal.
ONTRACK submitted that the criteria would spell out the operational, safety and other issues that are considered, and would need to be general rather than specific as different criteria apply to different utilities and the ability to provide access is situation specific. ONTRACK also noted it would need to be able to recover its costs of providing access (and of administrative tasks such as preparation and publication of criteria) from those requesting access.
It was acknowledged by several utilities that there is a considerable history of unreasonableness for access and conditions in the past by NZ Rail/ONTRACK. As a solution, it was suggested that there should be a time period requirement that ONTRACK must consider and make a determination of an application from a utility or RCA. Suggestions ranged from 5 working days to within three months.
Another solution submitted was that ONTRACK's access evaluation criteria should be subject to external overview for its reasonableness.
Proposal: That utility operators' right of access as set out in the Electricity Act 1992 NOT be extended to include motorways.
30 Submissions were received. 13 Supported no right of access. 17 did NOT support no right of access. Of note, the Government Agencies responsible for the motorway network, Transit NZ and MOT, both supported the proposal.
Utilities suggest the use of currently underutilised motorway corridors to ease the access pressure is seen as preferable to the increasingly problematic accessing of privately owned property. The broad utility view is that motorway corridors are public land and should be available for public infrastructure. It was suggested that the majority of requests are only to cross the motorway corridor not to locate within or run alongside.
Those opposed to utilities as-of-right access submitted that for reasons of safety and in order to not inhibit future improvements, utility operators should not be permitted as-of-right access to motorway corridors. Transit NZ submitted that motorways need to be treated differently to other roads because of their high traffic volumes and the high expectations of road users. Transit's primary concerns are that neither the integrity of the road nor the safety of road users be compromised. Transit submitted that it must retain absolute control of these roads, including the ability to approve or decline works by utility providers, and that the Transit NZ Act prevails over other legislation in respect of utility works on motorways.
Both Transit NZ and utilities did provide some consensus on compromise solutions. Utilities noted that motorways are special and acknowledged Transit's safety concerns, submitting that access must not compromise the safety of the motorway by disturbing the integrity of the road surface, or disrupting traffic. It was, however, suggested that the motorway corridor, as opposed to carriageway, is often the best place to locate utility equipment. It was submitted that utilities should have rights of access to the motorway corridor - but not the carriageway - in situations where the key concerns such as public safety, integrity of the motorway surface, flow of traffic, etc have been adequately addressed. There was significant agreement that the special nature of the corridor and concerns of Transit NZ can be dealt with by setting reasonable conditions.
Transit submitted that it is not entirely opposed to works on motorways; stating that it can and does approve works, e.g. for crossing under motorways and attaching to motorway bridges where traffic and safety is not compromised.
Proposal: That Transit NZ's motorway access evaluation criteria be codified, published and made accessible to utilities.
22 submissions were received. 20 supported the proposal. 2 did NOT support the proposal, instead submitting that it should be legislated, not just codified and published. Of note, the Government Agencies responsible for the motorway network, Transit NZ and MOT, both supported the proposal.
It was acknowledged by several utilities that there is a considerable history of unreasonableness for access and conditions in the past by Transit NZ. As a solution, it was suggested that there should be a time period requirement that Transit NZ must consider and make a determination of an application from a utility or RCA. Suggestions ranged from 6 weeks to within three months.
Another solution submitted was that Transit's access evaluation criteria should be subject to external overview for its reasonableness. It was also submitted that Transit NZ must consult with utilities at the planning and development stages of motorways to ensure motorway corridors include utility space.
Question: Should the definitions of rail and/or motorway corridors be refined to differentiate the carriageway from the corridor?
19 submissions were received. 13 responded YES, while 6 responded NO.
It was submitted that the carriageway should be defined to a specific depth (if only qualitatively), so as to allow for as-of-right underground crossings, which do not affect the structural integrity of the carriageway.
Question: Should utility operators be permitted as-of-right access to the rail and/or motorway corridors (subject to reasonable conditions), but not to the "carriageways"?
19 submissions were received. 13 responded YES, while 6 responded NO.
There was a general view from many respondents that the use of these corridors would be for the benefit of the national good. For example, the use of rail or motorway land to bring utilities (especially significant higher volume networks) into city areas may take pressure of local roads and shorten the overall network involved.
The general feeling from utilities was that they did not want blanket exclusion from the carriageway. It was submitted that access to corridors only is acceptable where utilities only need to run parallel to the corridor (and where the corridor is sufficiently wide to accommodate both utilities and a carriageway). However, where utilities need to cross from one side of a corridor to the other, access across the carriageway is obviously also required. The arterial nature of most rail and motorway corridors means that "going around" the corridor is not a feasible option. In these circumstances, options are limited to crossing the rail or motorway corridor or refusing to service the consumer's property. Accordingly, it was felt that while as-of-right access to the corridor (but not the carriageway) would be useful in some situations, it would not address circumstances more frequently of concern to utility operators.
It was suggested that there are legal difficulties in distinguishing the carriageway from the verge (i.e. what would be the status of a gravel shoulder?). This could impede future realignment or widening of a road; allow the installation of poles and other roadside hazards; and create possible traffic disruption when utility service vehicles need to park in the motorway or rail corridor to undertake maintenance.
There were concerns expressed that as-of-right access to corridors would still cause significant safety issues. There was, however, significant agreement that the special nature of the corridors and carriageways, and the safety concerns of the access providers can be dealt with by setting reasonable conditions.
An alternative compromise submitted by several respondents, would be to allow utilities access to the rail and motorway corridors only for the purpose of bulk transmission. This would help minimise work in the road and motorway corridor and help address concerns expressed by ONTRACK and Transit NZ. For example, in the case of undergrounded transmission or sub-transmission electricity cables, the utility does not require access to those cables for approximately 60 years after installation.
It was also noted that the contractors used to lay cables and pipes are often the same contractors used by (for example) Transit NZ to construct and maintain motorways and are, therefore, well aware of Transit NZ's requirements with respect to safety and traffic control.
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