Definition and Application of Reasonable Conditions
Key Issues
78. The NZUAG has identified the definition of "reasonable" conditions as a term that is applied inconsistently and the need for it to be addressed by legislative change to provide a consistent policy formula across all utilities legislation. The term "reasonable" is subjective and prone to legal interpretation.
79. Key Issue:
Does the current legislative framework create inconsistency and incompleteness regarding the criteria providing guidance to set "reasonable" conditions on working in the road corridor?
Discussion
80. The criteria for setting "reasonable" conditions are prescribed in section 119 of the Telecommunications Act 2001 and are generally accepted as the norm for road opening activities. These have been adopted in the Railways Act 2005. Under most utility Acts the RCA has the right to impose "reasonable" conditions on networks for the purpose of their digging in the road activities through the RON application process. Typically the conditions relate to safety and damage to property, coordination, and compensation (refer Appendix B for reasonable conditions), but the interpretation of reasonable conditions in current legislation is difficult to implement in practice.
81. The Electricity Act 1992, the Gas Act 1992, and the Railways Act 2005 all note that "operators" (electricity, gas and railway14) can only access their works in the road corridor in accordance with reasonable conditions as may be prescribed by the local authority and the owner of a pipe, telecommunications line or works that will be affected, or are likely to be affected by their works. Similarly, section 40 (2) of the Postal Services Act 1998 prescribes that postal operators must comply with any reasonable conditions prescribed by the local authority or RCA, and that "a public letterbox must not be so placed as to interfere with ordinary traffic". This does not appear to cover other utilities that might be affected by the work.
82. The Telecommunications Act 2001 prescribes that "network operators" (telecommunications) must use their powers of access to lines within the road corridor "in accordance with any reasonable conditions that the local authority or other person who has jurisdiction over that road requires."
83. The role of a local authority as a road controlling authority is provided for under section 24 of the Electricity Act where they are able to set "reasonable conditions". Concerns usually relate to reinstatement of the carriageway, the safe and efficient flow of traffic and minimising disruption to the local community as set out in the Telecommunications Act 2001. The imposition of "reasonable" conditions by RCAs, as suggested in utilities legislation, is the exercising of a public law function and should not encompass conditions on matters which relate to private law commercial or contractual arrangements, except to the extent that it is within the RCA's statutory powers.
84. Many local authorities appear to rely on the "reasonable" conditions provisions in the legislation to control utility activities' amenity effects. It is the Ministry's opinion that the express purpose of utilities legislation is not to achieve amenity outcomes, but provide "reasonable conditions" that pertain to utilities' operational and asset management role. In terms of addressing amenity effects, the RMA process and District Plan provisions are a more appropriate means. Further, District Plan provisions are usually an effective means of controlling overhead reticulation and the RCA's role is more effective in managing the roading asset, underground installations and resolving coordination issues with other utilities.15
85. An example of the statutory use of "reasonable conditions" is found in the Resource Management Act 1991. The Ministry for the Environment publication Effective and Enforceable Consent Conditions: A Guide to Drafting Conditions under the Resource Management Act 1991 notes that the general power set out in section 108(1) of the RMA is subject to established principles relating to the validity and scope of conditions. These principles note the obligations an authority has when imposing conditions on a consent; one of which is "reasonable". It notes that a condition should not be so unreasonable that a reasonable planning authority duly appreciating its statutory duties could not have approved it. The publication also notes that a Court would examine whether in the circumstances it considers that no reasonable consent authority could have imposed a condition of this type. The test of "reasonable conditions" is an objective one and would involve the Court exercising judgement as to the appropriateness or otherwise of the condition. However, the threshold for the Court overturning such conditions is high and it is rare that a condition would be overturned on this basis.
86. Taking the view that utilities legislation prescribes the exercising of "reasonable conditions" by RCAs for the purpose of operational and asset management, NZUAG16 suggests that, for utility works in the road, "reasonable conditions" may relate to (inter alia):
- The location of works in roads (e.g. to avoid conflict with other utilities, to facilitate maintenance etc);
- Interference with, or damage to, council assets within the road such as street trees or furniture;
- Timing of works (e.g. outside peak traffic periods);
- Requiring that works not unduly interfere with vehicular and pedestrian traffic movement and safety, and access to private land from a road;
- Public safety generally (e.g. placing cones or barriers to restrict access to work areas); and
- Requiring reinstatement of roads or berms where the surface is broken up and/or plants disturbed.
87. Under the Railway Safety and Corridor Management Act 1992 there was no restriction on the conditions that could be specified by a rail operator (no defined criteria of reasonableness). However, under the new Railways Act 2005, this has been amended to ensure that any charge imposed must be "reasonable" (clause 75(4)) (although "reasonable" is not defined). It is noted in the Act the requirement for permission is imposed in section 75 "despite anything in any other Act", which negates rights under the other key infrastructure Acts, including the Electricity and Gas Acts 1992.
88. One of the principal concerns of RCAs is the reinstatement of roads or berms where the surface is broken up and/or plants disturbed by utility operators. Reasonable conditions can prescribe quality standards for reinstatement, but often the actual quality is substandard. This results in significant maintenance costs by RCAs to repair road surfaces damaged by utility works. Road corridors are often left looking like patchwork after various utility operators open and reseal the road. The notion of strategic coordination and planning of utility works and road opening is addressed in a later section.
Proposals
That the provisions in s119 of the Telecommunications Act 2001 outlining the criteria for setting reasonable conditions be adopted by other utilities legislation.
89. Given the lack of consistency of definitions of "reasonable conditions" within utilities legislation and the resultant inconsistency of application, the Ministry believes that other utilities legislation should include the provisions set in the Telecommunications Act 2001.
Questions to Consider
How can the interpretation and application of reasonable conditions be defined and tested?
14"Operator" in the Railways Act means "rail operator", so section 88 refers only to the work being undertaken by the licensed access provider (ONTRACK), while section 86 covers when the utility is doing the work within the rail corridor.
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