Legislative Consistency - The Need for Harmonisation
Background
17. Under utilities legislation, utilities are granted certain rights to construct and maintain their infrastructure within the public road corridor, but are subject to two key obligations:
- to notify the Road Controlling Authority (RCA) responsible for the road (a council or Transit New Zealand) of their intention to carry out works;
- to comply with any "reasonable conditions" which the RCA may impose.
18. This legislation has evolved over many years, resulting in every utility sector being covered by sector specific statutes. For example, the rights of waste water services are governed by the Land Drainage Act 1908 (and a number of local Acts of a similar age), while telecommunications providers are covered by the Telecommunications Act 2001. The Transit New Zealand Act 1989 confers certain powers on Transit New Zealand (Transit New Zealand) to deal with utilities on State Highways, and the Railways Act 2005 confer certain powers to the Rail Access Provider (New Zealand Railways Corporation - ONTRACK) to deal with utilities on the rail network.
19. It must be noted that the issues addressed in this review are not being considered within the bounds of the Resource Management Act 1991. This review is primarily concerned with utilities legislation. The RMA stands alongside utilities legislation, prescribing what utilities must comply with in terms of environmental and amenity issues, whereas the utilities legislation prescribes health and safety, operational, and asset management responsibilities and requirements. Regardless of the powers prescribed in utilities legislation to access roads, this does not equal an RMA right. If resource consent is required, due to the environmental issues of a utility operator's intended project, it must be acquired as an exclusive process, most likely prior to giving notice to an RCA.
Key Issues
20. In consultation, stakeholders have suggested that the utilities legislative regime is piecemeal and disparate and has resulted in perceived inconsistency in the rights and responsibilities of utilities between sectors. This causes difficulties for road controlling authorities as they work with all utility sectors. Inconsistencies include the time allowed for notifying conditions, the rights of appeal against conditions, and the definition of "road".
21. Key Issues:
Is the utilities legislative regime piecemeal and disparate?
Does the legislation result in inconsistency, vagueness, and difficulties for utility operators and RCAs to work together?
Discussion
22. It is suggested that the vagueness of the law has resulted in further inconsistency, as the 75 separate road controlling authorities have had scope to evolve their own approaches to managing utility works (and their own interpretations of "reasonable conditions"). A utility with a national presence has to cope with a number of differing protocols for operating in the road corridor.
23. The New Zealand Utilities Advisory Group (NZUAG), which includes representatives of all utility sectors and is chaired by Local Government New Zealand, was set up in 2002 to improve the working relationship between councils and utilities. It has developed a Partnership Agreement9 "to provide a framework within which roading authorities and utilities can work together to achieve mutually agreed outcomes in the best interests of each organisation and the communities they serve." The NZUAG has noted that a consistent and balanced legislative approach to utilities rights and obligations, taking the best features out of existing statutes, would help to further the aims of the Partnership Agreement.
24. The NZUAG has identified six problematic issues:
- definition of road
- notification of parties affected by work in the road;
- definition and application of reasonable conditions;
- appeal and penalty provisions;
- management of utility congestion in the road corridor.
- strategic planning and coordination of utility works
25. These will be elaborated on through this discussion paper.
Proposal
A legislative regime providing a more efficient, coherent, and pragmatic framework for the relationship between utilities and road controlling authorities.
26. Such a regime could bring together the best aspects of existing statutes. Desirable features may include the requirement in the Electricity and Gas Acts for the utility proposing to undertake the work to notify, in addition to the road controlling authority, other utilities affected by the work. Another desirable feature may be the guidance for formulating "reasonable conditions" as contained in the Telecommunications Act 2001.
Questions to Consider
Should legislative consistency be achieved through amendment of current utilities legislation OR the creation of an all-encompassing specific utilities statute?
27. There are two options apparent for achieving legislative consistency. Amendments of current utilities legislation through an Amendment Bill is most likely the simpler and faster solution, however, a more consistent and all-encompassing remedy could be achieved through the creation of a single utilities in the road corridor statute. This remedy would be slower and more complex to achieve, as it would have to be designed to integrate with all other utilities legislation. At this stage, an Amendment Bill is the preferred option.
28. The Ministry seeks comment on the practicality and usefulness of such legislative change. Principally, legislative change could encompass all the issues examined in the ensuing discussion, as opposed to a piecemeal approach to remedying the issues.
29. The following sections examine the key problematic issues affecting utilities access to road, rail and motorway corridors that have arisen from previous consultation and NZUAG suggestions, and could be fully, or in part, remedied through legislative change.
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