Defining a "Road"
Key Issues
30. Consultation with stakeholders has suggested that within various legislation, the term "road" is subject to disparate and inconsistent definitions. This creates ambiguity, confusion, and contention when applying utility access rights to "roads" under the different legislation.
31. Key Issue:
Are definitions of "road" in various legislation disparate and inconsistent, and what problems do they cause?
Discussion
32. The Local Government Act 1974 and the Transit New Zealand Act 1989 are the two major pieces of legislation that define the ownership, rights, and powers of road controlling authorities over roads. The Local Government Act 1974 legally defines roads in section 315 as including carriageways and unformed areas, footpaths and pedestrian accessways (berms and other grassed areas), and as the total area from boundary to boundary, customarily referred to as "Road Reserve" (Refer Appendix A for the full text).
33. Section 316 of the Local Government Act 1974 essentially prescribes that the property rights of all roads are vested to the council of the district of which they are located in, except for State Highways. Section 317 adds that all roads shall be under the control of the local council, except for State Highways which are under the control of Transit New Zealand. For the purposes of utility access to roads, control of the road rather than ownership is the imperative factor as the controlling entity has the power to grant entry and conditions.
34. A further definition of "road" is prescribed in section 43 of the Transit New Zealand Act 1989 which encompasses roads owned or controlled by the Crown, particularly, major strategic roads such as State Highways and motorways. "Road means a public highway, whether carriageway, bridle path, or footpath…" and includes a number of clauses relating to types of land allotments (Refer Appendix A for full text) "…and all bridges, culverts, drains, ferries, fords, gates, buildings, and other things thereto belonging, upon the line and within the limits of the road". Section 44 of the Transit New Zealand Act 1989 vests State highways and Government roads in the Crown, and sections 48 and 61 of the Transit New Zealand Act 1989 prescribe the Ministerial powers and control.
35. Under section 85 of the Transit New Zealand Act 1989, a "motorway"10 is deemed to be a "road", but section 73(k) prescribes that the Transit Authority may "exercise the powers, rights, duties, and liabilities vested in or imposed on the Minister as if the motorway were a Government road for the purposes of section 48 of this Act". Section 5 of the Land Transport Management Act furthers the definition by adding that a road "includes toll booths and other toll-related infrastructure on a road".
36. Adopting the tenor of these three acts, sections 2 of the Electricity and Gas Acts 1992, and section 4 of the Railways Act 2005 all define road as having:
the same meaning as in section 315 of the Local Government Act 1974; and includes a road under the jurisdiction of any local authority; [and also includes a public footpath;] and also includes a State highway within the meaning of section 2(1) of the Transit New Zealand Act 1989; but does not include-
(a) A private road within the meaning of section 315 of the Local Government Act 1974; or
(b) A motorway within the meaning of the Transit New Zealand Act 1989; or
(c) Any roadway laid out by order of the Māori Land Court under [sections 315 to 327 of Te Ture Whenua Māori Act 1993] or under any former Act, except where that order has been cancelled, or where the roadway has been declared under [section 320] of that Act to be a road; or
(d) Any level crossing.
37. These definitions have been accepted as reasonable and promoted by the NZUAG as the appropriate definition of "road" for utilities legislation. The inconsistency and contention lies in the definition of "road" as prescribed in the Telecommunications Act 2001, which adopts a much wider scope and incongruence with the tenor of definitions contained within related utilities and roading legislation (Refer Appendix A for full text). Fundamentally, the contention lies in the wording "…any place to which the public has access…" which provides Telecommunication operators with the right to treat parks and reserves and other public places, essentially as "roads", which infers the right to use these places for the purpose of utility networks.11
38. The definition used in the Telecommunications Act is drawn from the Transport Act 1962 and Land Transport Act 1998 that had the purpose of legislating for driver behaviour and driving offences in order to facilitate enforcement by Police of traffic law. The wider coverage of this definition was most likely intended to cover driver behaviour in motor vehicles both on and off the road. The issue has been considered by the Courts on a number of occasions over the years and they have found that a road in a motorcamp, an aeroclub carpark and a parking building are roads for the purpose of prosecuting traffic offences. In terms of utilities legislation, this is quite incongruent with all other legislative definitions of a "road" and it is proposed that this is not commonsense and extends the powers of utility operators beyond what is reasonable.
Proposal
Amend the definition of "road" within the Telecommunications Act 2001 to that of the definition of "road" provided within the Electricity and Gas Acts 1992.
39. It is considered that amending the definition of "road" within the Telecommunications Act 2001 to the definition of "road" within the Electricity and Gas Acts 1992 would provide more coherence and consistency between the utilities legislation and reduce ambiguity, confusion, and contention over the definition of "road". This would also curtail the possibility of Telecommunications providers testing the definition of "road" within the Telecommunications Act as extending to "any public place" and setting precedence contrary to the original intentions of the law.
Call for submissions outlining the extent of any disputes over rights to "public places" claimed within the definition of road.
40. The Ministry would like to examine any cases where disputes have arisen due to utility providers claiming as-of-right access to "public places" as defined as a road in the Telecommunications Act 2001, and as not commonly defined as a road within other utilities legislation.
Questions to Consider
41. An option has also been identified to construct an exclusive definition of "road" expressly for the purpose of utilities legislation. A concern raised by some stakeholders is the current legislative definitions exclude road traffic as a further utility usage of the "road corridor", instead viewing the "road" as primarily for the movement of vehicular traffic, and view utility access within the corridor as supplementary. For example, the RCA has the power to prescribe reasonable conditions for utility access, however, utility operators do not have the power to impose reasonable conditions on the RCA for road works that may affect their assets.
42. It has been expressed by some parties that the physical "road" itself upon which vehicles travel, is a further utility within the wider "road corridor" and should be treated alongside other utilities (e.g. electricity, gas, telecommunications) as a separate utility within the road corridor. There is a perceived imbalance of power possessed by the RCA in its ability to dictate to other utility operators so as to maintain road traffic functions, but the inability of utility operators to hold similar power on any works carried out by the RCA that may affect utility networks in the road.
Should the road surface (upon which vehicles travel, and including footpaths) be considered an individual utility alongside other utility operators (e.g. electricity, gas) within the road corridor?
Should the principal objective of the road corridor be to carry vehicular and pedestrian traffic, or provide a corridor for the location of utility networks (including vehicular and pedestrian traffic as a utility)?
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