Notification of Affected Parties
Key Issues
43. Utility operators opening the road to install, maintain or alter their assets could affect the other utility services in the road. The definition of an affected party and the procedures applied for notifying an affected party are believed to be inconsistent.
44. Key Issue:
Is there inconsistency regarding the procedure to provide notice of an intention to carry out work to other utilities whose services could be affected?
Discussion
45. Utility owners or others proposing to carry out any work on a public road must apply for a Road Opening Notice (RON) from the RCA. A RON is a permit from the RCA to carry out works within the public road. The RON system aims to minimise disruption to residents and ensure that roads are returned to an acceptable standard when utility companies and various contractors complete their work. The onus is on the "road opener" to check with or advise other service utilities of their proposed plans.
46. Table 1 illustrates the variation in statutory requirements for giving notice for utilities working within the roads.
Table 1: Statutory Requirements to Give Notice of Intention for Utility Works within the Road| Legislation | Relevant Section | Parties that notice is required to be given to | Notice period for conditions/before works may commence |
| Electricity Act 1992 | s24/25 | Road Owner and owner of other utility works that might be affected | 15 working days |
| Gas Act 1992 | s25/26 | Road Owner and owner of other utility works that might be affected | 15 working days |
| Postal Services Act 1998 | s41 | Local authority or other body with jurisdiction | 15 working days from receipt |
| Telecommunications Act 2001 | s136 (lines) | Road Owner | 20 working days from receipt |
| s142 (cabinets) | Road Owner | 20 working days from receipt |
| Local Government Act 2002 | No express provision | No notice required for works in local roads where Council owns road | |
| 14th Schedule to the 1974 Act (notice) | Road owner and/or owner of another work only where this is not the council | 1 month for road owner/owner of another work to object |
| Railways Act 2005 | s88 Notice of alteration to railway lines or works on roads | Road Owner and owner of other utility works that might be affected | 10 working days |
47. The Telecommunications Act 2001 appears to focus only on the need of the telecommunications operator to notify the local authority (or RCA) "…the network operator must give to the local authority or other person who has jurisdiction over the road written notice of the intention to carry out the work." This neglects to address the advising of other affected parties.
48. The Electricity Act 1992 indicates that electricity operators may "…alter the position of pipes, telecommunications lines or other such works that are constructed in, on, along, over, across, or under that road (as part of upgrading or maintaining their lines) in accordance with reasonable conditions set out by the local authority and the owner of the pipe, telecommunications line or other works."
49. The Electricity Act also requires the electricity operator to give notice of the intention to undertake the work to the local authority and the other potentially effected parties. The onus is then on these parties to impose "reasonable" conditions on the electricity operator in an attempt to protect their assets. The use of the text "alter the position of" may be of significance, as while electricity operator works may not physically alter the position of an asset, they may affect the quality of the service it provides. The Gas Act 1992 follows the same line as the Electricity Act.
50. Section 52 of the Transit New Zealand Act 1989 notes that any local authority or other person having lawful power to execute or maintain works on, under, or over any road shall not commence any works or maintenance essentially without the consent of the local authority. In addition, section 53 notes that "…a pole or tower…shall not be erected or re-erected on any road outside the urban area of a district of a territorial authority otherwise than adjacent to the frontage line of the land adjoining the road, or as near thereto as is practicable, having regard to---…(b) The necessity of ensuring that any telecommunications line or electricity transmission line is not susceptible to instability or to damage by, or interference from, natural causes, or trees or structures or other lines or transmission lines."
51. The Railways Act 2005 indicates in section 87 that "a licensed access provider may maintain railway infrastructure in, on, along, over, across or under a road", and may open the road, and alter the position of pipes and cables. The access provider must do so in accordance with any reasonable conditions prescribed by the owner of the utilities, or RCA. Before undertaking this work the access provider must give written notice, and the person (utility) affected has 10 days after receipt to notify any conditions. If work is urgent, no notice is required before commencement, but as soon as practicable (s88).
52. Under the Local Government Act 2002, there is no provision for RCAs to notify utility operators and affected parties of any work the authority intends to undertake in the road corridor. This may involve the operation of roading and water services utilities that are operated by the local authority. In this case, it is other utility operators whose networks are located within the road corridor that are the effected parties, but are not protected by a requirement for the local authority to notify them. This issue of when it is the local authority's works affecting other utility operators also extends to utility operators having no rights to impose reasonable conditions or cost sharing arrangements upon the local authority.
53. While this review is principally concerned with utilities legislation, there may be RMA notification requirements. If so, Section 93 of the Resource Management Act (Notifications of Applications) indicates that if a consent authority is satisfied that it has received adequate information, it shall ensure that notice of every application for a resource consent made to it in accordance with this Act is (amongst other requirements) "…(e) Served on such persons who are, in its opinion, likely to be directly affected by the application, including adjacent owners and occupiers of land, where appropriate." It is considered that if an application for works is considered a non-notified activity in the council's District Plan, potentially affected parties may not be advised or consulted about the proposed works.
54. To resolve the inconsistencies, the New Zealand Utility Advisory Group (NZUAG) has developed a code of practice12 for working in the road which outlines a responsible approach. This guide indicates that the "road opener" must submit copies of the RON to other utility operators likely to be affected by the construction or maintenance works proposed. When undertaking any major work, written notification must be given to affected parties at least 5 days prior to the commencement of works.
55. The guide notes that utility operators are permitted to install and maintain their services in and on roads with notice to the RCA. The RCA has statutory right to impose "reasonable" conditions that relate to their responsibilities and risks. The objective is to provide for conditions and requirements of works to be met by the "road opener" and their contractors and notes a number of matters that may be included when imposing conditions.
56. Of note, is that under the Electricity and Gas Acts 1992 and Railways Act 2005 the onus is on the utility operator to notify effected parties. Is this responsibility being undertaken effectively? The issue for consideration is, do utility operators know who all the affected parties are? Is there a need for a register (database) of the locations of all utility networks within the road corridor, maintained by local authorities and accessible by utilities for the purpose of planning works and notification? Or, for reasons of commercial sensitivity, should the system involve the utility operator notifying the RCA of intended works and the RCA then notifying affected parties? Would this, however, make RCAs liable for utility operators' work? This will be elaborated on in the section addressing strategic planning and coordination of utility works within the road.
Questions to Consider
57. The Ministry offers no proposals for this issue at this stage. Instead the Ministry calls for submissions on the following questions:
Is there good reason for the legislative differences for required notification of affected parties?
Should they be consistent?
Should the RCA be required to notify affected parties and other utility operators of its intention to carry out works within the road corridor?
Should the RCA or the Utility Operator be responsible for notifying affected parties?
Should the RCA take on a coordination role and administer the notification process?
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