Dispute Provisions
Key Issues
90. Under the main utilities Acts (electricity, gas and telecommunications), the only recourse available for disputes around conditions imposed or charges made is to the District Court.
91. Key Issue:
Does current legislation provide a satisfactory appeal mechanism to cover disputes around "reasonable" conditions and penalty provisions?
Discussion
92. Section 27 of the Electricity Act 1992 and section 28 of the Gas Act 1992 provide an appeals provision for electricity and gas operators against "all or any of the conditions imposed by the local authority or other body or person having jurisdiction over the road; or the owner of any pipe, telecommunications line, or works." This includes both local authorities and Transit New Zealand as RCAs. The Postal Services Act 1998 and the Railways Act 2005 have a similar provision for appealing conditions imposed on access to the road. Recourse is to the District Court and must be lodged within 40 working days after the date of notification of the conditions imposed, or a period set by the court upon application from the utility operator. The District Court has the power to confirm, modify, or cancel any or all of the conditions imposed.
93. Under the Electricity and Gas Act 1992 and the Railways Act 2005, District Court decisions can be appealed to the High Court only over questions of point of law. Table 3 illustrates the various provisions for appealing to a court.
Table 3: Current Provisions for Appealing to a Court| Legislation | Relevant Section | Appeal Period | Courts Available |
| Electricity Act 1992 | s27 | Within 40 working days after the date of notification | District Court
High Court: Appeals on point of law |
| Gas Act 1992 | s28 | Within 40 working days after the date of notification | District Court
High Court: Appeals on point of law |
| Postal Services Act 1998 | s43 | Within 40 working days after the date of notification | District Court |
| Railways Act 2005 | s89 | Within 40 working days after the date of notification | District Court
High Court: Appeals on point of law |
| Telecommunications Act 2001 | s141 | Within 45 days after the date of notification | District Court |
94. Section 141 of the Telecommunications Act 2001 provides an appeals provision for telecommunications operators against "all or any of the conditions imposed by the local authority or other body or person having jurisdiction over the road; or the owner of any pipe, telecommunications line, or works." Appeals are to the District Court and must be lodged within 45 working days after the date of notification of the conditions imposed, or a period set by the court upon application from the utility operator. The District Court has the power to confirm, modify, or cancel any or all of the conditions imposed. Under this section, the decision of a District Court over an appeal is final.
95. The question at issue is does this legislation provide a satisfactory dispute resolution process? It has been expressed by parties that the current legislation is not satisfactory. A possible remedy is the inclusion of an alternative dispute resolution process that promotes mediation as the first remedy for disputes, then if that fails, arbitration, and then failing that, recourse to the District Court.
96. Mediation and arbitration are an attractive alternative to court dispute resolution as they are confidential, which ensures future business relationships are not tarnished by publicly aired disputes. Industry stakeholders suggest business relationships and integrity are extremely valuable and publicly aired disputes in the court are damaging. Mediation and arbitration are also substantially cheaper than court resolution. The cost of appealing to a court may be a current disincentive for utility operators. A further disincentive for appealing to court is the precedent effect that court decisions have and the risks that precedents pose to the broader industry and local government stakeholders. Mediation and arbitration do not have a precedent setting effect.
97. Due to the disincentives of appealing to the court, and the apparent advantages of mediation and arbitration, the Ministry, therefore, invites submissions on whether an alternative dispute resolution process involving mediation and arbitration be considered as a means to resolve disputes over conditions imposed.
98. The Ministry considers that final recourse should be to a court. However, a number of Councils have identified the Environment Court as a preferred appeal body. The Environment Court is available for appeals on RMA and District Plan issues, but is not legally available for a "reasonable" conditions appeal under current utilities legislation.
99. It seems the rationale for the current legislative arrangements is that the District Court is a more appropriate body for final recourse for dispute resolution as financial, operational, and business matters are within its prerogative. Whereas, the Environment Court is the appropriate body for amenity and RMA issues, not the business and operational issues of utilities, which as discussed earlier, is a quite separate issue. The Ministry, however, would like to gauge stakeholders' views on this matter.
Questions to Consider
Should mediation and arbitration be the primary means for dispute resolution?
Should there be a prescribed timeframe for mediation and arbitration? If so, what should it be?
Is the District Court the appropriate body for final recourse? Should it be the Environment Court?
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