Access to Rail and Motorway Corridors
Key Issues
100. During the consultation to amend sections 24 and 31 of the Electricity Act for high voltage works, some submitters noted that the amendments to sections 24 and 31 of the Electricity Act (specific to access to roads and level crossings) could also be applied to railroads and motorways.
101. Key Issues:
Is the current legislation regarding access specific only to access to the road corridor and to level crossings?
Does the difference in legislation covering access to the rail corridor and motorways result in unreasonable delays and uncertainty in terms of the outcome for utility providers wishing to undertake works?
Discussion
Utility Access to the Rail Corridor
102. The New Zealand Railways Corporation (ONTRACK) is the owner and rail access provider for the national rail network. Only Toll, Connex (in Auckland) and Taieri Gorge Railway (in Dunedin) have access to the national rail network. Toll Holdings owns and operates the majority of New Zealand's rolling stock. ONTRACK is not the only railway infrastructure owner - the Railways Act 2005 also applies to approximately 80 licensed rail operators, many of whom own land and rail of their own, and who have all the rights and obligations of an infrastructure owner (or access provider as termed in the Railways Act 2005). The provisions of other Acts which cover the rail corridor also include these other rail corridors.
103. Section 75 of the Railways Act 2005 notes that the Act has priority over any other Act (i.e., key infrastructure Acts) with respect to managing access to the rail corridor for works that are on, over or under any railway infrastructure or railway premises. While the party proposing the works can request permission from the rail access provider, the rail access provider can refuse on the basis of "reasonable" grounds. It is noted that while section 75(7) applies to level crossings it doesn't extend to the rest of the rail corridor. The Act, unlike the Electricity and Gas Acts 1992, makes no reference to the timescale within which decisions on an application for access to the rail corridor must be carried out leading to costly delays and uncertainty, and solutions sought on a case by case basis.
104. Some submitters called for an extension of utility operator access rights to the rail corridor, suggesting that utilities should have access to the rail corridor on the same basis as they have access to the road corridor (i.e. as-of-right-access subject to notification and to reasonable conditions set by the RCA and affected parties). Utility operators cite the rail corridor as being an underutilised, cheaper option for locating cables, lines, and cellular transmitter towers. Consultation with the Ministry of Transport and the rail network operator, ONTRACK, have identified a number of issues that explicitly differentiate the rail and road corridors, making an extension of access rights to the rail corridor problematic.
105. The fundamental difference between the road corridor and rail corridor is the actual physical properties of the corridors and the vehicular movement within the corridor. The rail corridor is constrained by the fact that the network is generally made up of single track routes with auxiliary lay-bys to facilitate two-way traffic along the single line routes. While some routes are double tracked, there is, on the whole, no flexibility of route. To facilitate the safe and efficient movement of traffic along the rail network, the rail control authority, ONTRACK, operates a centrally coordinated National Train Control Centre which provides scheduling and management of all rail traffic through the network. To maintain safety for both rail traffic and utility operators working within the rail corridor, Train Control must coordinate the access and operations of utility operators so as to close the line if required and reschedule traffic, or notify rail traffic of the utility operators' activities and communicate with both the utility operator and the rail traffic as they approach the hazard.
106. Other problematic issues further relate to the physical properties of the track. For a utility operator to work within the rail corridor, they must have access to the actual track. This is problematic in that the track doesn't always follow road corridors, travels through difficult geography, is tunnelled, and the corridor itself is often very narrow (generally around 6 metres wide). Based on these features, often there is no room for utilities within the rail corridor.
107. A further issue is the fragility of the rail network - tracks upon sleepers upon ballast base. If a utility operator working within the rail corridor (i.e. laying cable via a tunnel underneath or through the ballast base) reinstated the line to a substandard quality, it could pose a serious risk of weakening the line, resulting in derailment of rail traffic and causing serious injury to staff, passengers, and passers-by, and damage to freight, plus seriously disrupting the scheduling and movement of rail traffic.
108. Of interest, however, is that some gas and water utilities are currently located in the rail corridor, but these instances are mostly historical. Fibre optic cable was laid in the North Island along the main trunk line corridor during the 1980s. These were subsequently sold to Clear Communications (now TelstraClear). Clear laid more cable in the 1990s.
109. While as-of-right access to the rail carriageway itself poses problems, utility operators have suggested that refining the definition of rail corridor to differentiate between the carriageway and corridor could provide as-of-right access (subject to reasonable conditions) to the corridor, but not the carriageway, which would satisfy utility operators.
Utility Access to the Motorway Corridor
110. Sections 2 and 71 of the Transit New Zealand Act 1989 explicitly differentiate motorways from roads with the main proviso that a motorway must be declared as such by the Governor-General in Council (See Appendix A for full text), and while including all bridges, drains, culverts, or other structures or works forming part of any motorway so declared, does not include any local road, access way, or service lane (or the supports of any such road, way, or lane) that crosses over or under a motorway on a different level.
111. Sections 2 of the Electricity and Gas Acts 1992 and section 4 of the Railways Act 2005 all explicitly exclude a motorway from falling within the definition of road and access as-of-right for utility operators. The Telecommunications Act 2001 does not explicitly cite or define the term motorway, but it may fall within Section 5's definition of road as being "any other place to which the public have access, whether as-of-right or not".
112. In terms of extending the access rights of utility operators to the motorway corridor, it must be recognised that motorways possess quite different features to roads. Motorways are generally primary arterial routes servicing major cities with a very large volume of traffic compared with roads, and the speed limit is generally higher than roads or streets (100 km/h). The kind of irregularities in the road surface caused by trenching for underground cables, while tolerable on relatively low speed urban streets, would cause a grave safety hazard on motorways which are intended for high speed traffic. Further, due to the restricted access to motorways via on/off ramps and with motorways operating so close to capacity, traffic flow is easily disrupted and any physical or visual disruption (i.e. work alongside or in the carriageway) can cause major delays. As traffic volume grows over time, increased capacity may be required, which involves a major construction project to increase lanes.
113. It is these differences that make utility access to motorways a more serious issue requiring deeper analysis. Based on these differences, Transit New Zealand is of the view that as-of-right access to motorways, such as applicable for local roads and State Highways, is inappropriate. This does not mean that Transit New Zealand refuses access outright, but considers the costs and benefits of individual applications. In this consideration, Transit New Zealand now applies two criteria:
- utility works must not, either during construction or maintenance, affect the structural integrity of the carriageway and bridges (utilities to pay for any brackets etc. needed to attach cables, pipes to bridges); and
- utility works must not, either during construction or maintenance, affect traffic flow.
114. Discussion with Transit New Zealand suggests that if an application from a utility meets this criteria it will be approved. Often this involves tunnelling under the motorway, from a starting point outside of the motorway reserve. Tunnels must be a minimum of 10 metres deep to avoid subsidence of the carriageway. Attaching cables and pipes to the underside of bridges and viaducts is permitted providing that they don't overload the bridge or affect its load bearing capacity.
115. While as-of-right access to the motorway carriageway itself poses problems, utility operators have suggested that refining the definition of motorway to differentiate between the carriageway and corridor could provide as-of-right access (subject to reasonable conditions) to the corridor, but not the carriageway, which would satisfy utility operators.
Proposals
116. Due to the safety issues and requirements for centrally coordinated tight control of the rail network, access to the rail corridor has to be more discretionary and closely managed than that of the road corridor. With these differences in mind, it is considered that extending the as-of-right access for utility operators to include the rail corridor would not be in the interests of public safety. However, it is proposed that there would be benefits of having greater transparency and more certainty for utilities if these criteria were codified and published somewhere easily accessible to utilities. Therefore it is proposed:
That utility operators' right of access as set out in the Electricity Act 1992 NOT be extended to include the rail corridor.
That the Rail Access Provider's (ONTRACK) rail corridor access evaluation criteria be codified, published and made accessible to utilities.
117. In principle, motorways are a different category of road and for that reason, access to the motorway has to be more discretionary and closely managed. Considering the differences in safety requirements of motorways, it is proposed that extending the rights of access of utility operators to include motorways would not be in the interests of public safety. However, it is proposed that there would be benefits from having greater transparency and more certainty for utilities if these criteria were codified and published somewhere easily accessible to utilities. Therefore it is proposed:
That utility operators' right of access as set out in the Electricity Act 1992 NOT be extended to include motorways.
That Transit New Zealand's motorway access evaluation criteria be codified, published and made accessible to utilities.
Questions to Consider
Should the definitions of rail and/or motorway corridors be refined to differentiate the carriageway from the corridor?
Should utility operators be permitted as-of-right access to the rail and/or motorway corridors (subject to reasonable conditions), BUT NOT to the "carriageways"?
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