Introduction
1. The most telling indicator that issues exist with utilities working in the road corridor is the patchwork of resealed works on New Zealand roads and footpaths. Road controlling authorities (RCAs: Local Authorities and Transit New Zealand) have long criticised the fact that no sooner have they resealed a road or foot path, than a utility operator1 digs up the seal to access or create utility works, then reinstates the road surface, often to a substandard quality. RCAs describe the road surface as being like skin - once it is broken it is scarred and never quite the same. RCAs suggest that a significant proportion of road maintenance budgets - costs borne by taxpayers - is spent fixing roads around spots where utilities have opened the road. RCAs acknowledge a need for greater strategic planning and coordination of utility works and location within the road corridor.
2. On the other hand, utility operators are concerned with the inconsistency of the utilities legislative regime2 that prescribes them as-of-right access to the road corridor, and the interpretation and application of provisions by RCAs on utility operators. Specifically, utility operators are concerned with the inconsistency of procedures for notification of parties affected by utility works, cost sharing arrangements for works, definition and application of reasonable conditions imposed by RCAs on utility access to the road corridor, the provisions for settling disputes over reasonable conditions and cost sharing, barriers to access to rail and motorway corridors, interference and hazards caused by utilities affecting each other, and the lack of strategic planning and coordination of utility works within the road.
3. In September 2004, the Ministry of Economic Development (MED, the Ministry) consulted on proposals to amend sections 24 and 31 of the Electricity Act, to extend the access regime for electricity works above 110 kV and 100 MVA on roads and level crossings. Parties consulted on the proposed changes to sections 24 and 31 of the Electricity Act raised the various broader issues, as above, about utilities access to road and rail corridors. Accordingly, when considering the amendment of sections 24 and 31, Cabinet agreed to a review of those broader issues by 31 October 2005.
4. The New Zealand Utilities Advisory Group (NZUAG) has been working towards the resolution of issues affecting utility operators and road managers since its formation in 2001. The NZUAG has achieved much, including a Code of Practice agreement3 for working within the road. Some issues, however, remain and are at the point where progress may depend on decisions by government.
5. In line with an invitation issued by Hon Paul Swain at the April 2002 Utilities conference, the NZUAG identified three areas where consistency across the "utility statutes" could be improved, viz:
- requirements regarding providing notice of any intention to work in the road;
- the appeal and penalty provisions regarding road access issues, and
- criteria providing guidance to set reasonable conditions on working in the road.
6. The departments administering the utility statutes (Ministry of Economic Development, the Ministry of Transport and the Department of Internal Affairs), have already indicated support for legislative changes in these areas. Drawing on the objective concluded in the Government's May 2004 Infrastructure Stocktake, the Government aims "to enhance infrastructure's net contribution to economic growth and societal well-being over time, while reducing the incidence and severity of service failures and adverse effects on the environment."
7. As emphasised in the Ministry's Statement of Intent 2005-2008,4 the complexity of infrastructure issues, and the fundamental importance of infrastructure in a modern, export-led economy, make infrastructure development an on-going area of strategic importance for the Ministry. In the longer term, infrastructure presents a number of challenges for government policy. Specifically, there is a need to co-ordinate supply arrangements across different infrastructure suppliers (roading, electricity, sewerage, etc), including central and local government and the private sector.
8. In undertaking this review, the Ministry has sought to use a policy framework and analysis criteria that examines the issues at question in a just and reasonable manner, and explores solutions that provide a balanced result for key stakeholders and does not shift the balance of power so as to particularly favour one stakeholder over another.
9. Previous consultation, legal analyses, and policy analysis undertaken by the Ministry has led the Ministry to the opinion that while roads,5 superficially, provide for transport of vehicles and people, they are also a transportation corridor for utilities (electricity, gas, telecommunications, postal water, wastewater, and stormwater). While the Road Controlling Authority ((RCA) typically a local council or Transit New Zealand) has the power of control over road corridors, the utilities legal framework provides utilities with a statutory power to locate networks within the road corridor, provided they do not impair the primary function of the road. The RCA has the power to impose reasonable conditions on utilities' access to protect the safe and efficient functioning of the road and associated assets, and utilities' rights are also subject to common law rights and Resource Management Act 1991 (RMA) controls. The Ministry recognises that RCAs manage the road on behalf of many stakeholders and that this access must be managed and coordinated in a safe, efficient, and fair manner. The Ministry also recognises that both utilities and RCAs all share a common interest as they are all serving the community.
10. The Ministry of Economic Development therefore seeks comments on proposals for the resolution of issues affecting utilities access to road, rail and motorway corridors. The key issues are:
- legislative consistency - the need for harmonisation;
- defining a road;
- notification of affected parties;
- cost sharing issues;
- definition and application of reasonable conditions;
- dispute provisions;
- access to rail and motorway corridors;
- interference and hazards;
- strategic planning and coordination of utility works within the road.
11. The proposals in this document have been developed in light of the NZUAG/Standards New Zealand Code of Practice,6NZUAGModel Partnering Agreement,7 and NZUAGGuide to Best Practice,8 and the submissions received for the proposals to amend sections 24 and 31 of the Electricity Act in 2004.
12. The aim of this discussion document is to set out the key issues including for each an issue statement, identification of relevant statutes, standards or guidelines currently in place, a discussion of the issues, and solution proposals or questions to consider. The ultimate aim of this exercise is to produce a paper to Cabinet advising the outcome of the review and, if needed, making recommendations on action needed to provide consistent conditions that will ensure the efficient use of road and rail corridors by utilities.
13. The Ministry invites written submissions on any and all aspects of the proposals set out in this document for resolution of issues affecting utilities access to road, rail and motorway corridors. The Ministry requests that, where possible, any comments use the same headings as used in this discussion document.
14. Submissions on the discussion paper should be sent by Friday 5 August 2005 to:
Hamish Elliott
Resources and Networks Branch
Ministry of Economic Development
PO Box 1473
Wellington
15. In order to facilitate the review and consideration of responses, the Ministry requests that an electronic copy (in Microsoft Word) also be supplied, either on diskette or emailed to electricity@med.govt.nz.
16. The Ministry intends to publish all written submissions on its website. Please indicate clearly if you consider that all or parts of your submission should not be disclosed. The Ministry will consider any request for non-disclosure in terms of the Official Information Act 1982.
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