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3 What are the Options?

3.1 Policy objective

The policy objective seeks the following outcome:

To provide for a nationally consistent planning framework for low impact telecommunications infrastructure on road reserves that will:

  • assist in network and equipment design and equipment sourcing for roll-outs

  • create a reduction in compliance costs and timeframes for service providers

  • reduce the timeframe and lower the costs for the availability of new services to consumers

  • contribute to a reduced workload to councils in processing and determining consent applications

  • set an appropriate balance between local participation in community planning and cost-effective national infrastructure investment.

The creation of a level playing field across the country would help redress a significant amount of the current uncertainties around time, costs and outcome that exist through the variability in existing district plans.

3.2 Legislative and policy context

There are several pieces of legislation that can have an influence on the deployment of telecommunications infrastructure.  When considering a solution, the effect of other relevant legislation needs to be taken into account.  In particular, where an NES is being proposed to facilitate the erection of structures alongside roads, there are several statutes that need to be considered.

3.2.1 Telecommunications Act 2001

The Telecommunications Act 2001 provides a right of tenure for certain infrastructure in roads, subject to a process being undertaken with the relevant road-controlling authority.  Telecommunications service providers have a statutory right to install lines and cabinets in roads pursuant to sections 135 and 142 of the Telecommunications Act.  What is not clear is the full range of structures that telecommunications service providers are entitled to install.  There are legal opinions suggesting that antennas and supporting poles (structures that are the subject of the NES) can be installed alongside roads pursuant to the Telecommunications Act.

Despite the Telecommunications Act providing for telecommunications structures alongside roads, such structures can still be required to obtain resource consents under RMA planning instruments.  The scope of the Telecommunications Act, which deals with rights of access, is different from the scope of the RMA, which deals with managing the environmental effects of establishing the structures.  Consequently, there is scope for establishing NESs that provide clarity and do not duplicate the purpose and functions of provisions under the Telecommunications Act.

3.2.2 Local Government Act 1974 and 2002

The majority of statutory powers and rights relating to the ownership and control of local roads continue to be those set out in Part XXI of the Local Government Act 1974, which have been carried over by the LGA 2002.  For the purposes of allowing access to roads for utilities, however, it is control of the road rather than ownership that is important.  Section 317 of the LGA 1974 prescribes control over roads, and states that all roads in a district shall be under the control of the council, except state highways, which are under the control of Transit NZ.

Section 319 of the LGA 1974 sets out the general powers of local authorities relating to roads under their control.  This section has the potential to influence the access to and operation of utilities within roading corridors, but such matters are typically dealt with under the relevant utilities legislation (eg, the Telecommunications Act 2001).

There are no appropriate provisions in the LGA 2002 that offer an alternative way to addressing the issues outlined in the previous chapter.

3.2.3 Building Act 2004

The Building Act 2004 introduced the term ‘network utility operator’ (NUO).  Under the Building Act, in specified circumstances NUOs are not required to obtain building consents.  However, the Building Act does not exempt such structures from any requirement for consents under the RMA.  Consequently, although the Building Act has helped simplify the deployment of network infrastructure, including some telecommunications structures, it does not offer an alternative means of dealing with issues outlined in the previous chapter.

3.3 Providing for telecommunications infrastructure through the RMA

Telecommunications infrastructure affects – or potentially affects – more than one region: it may involve the introduction or use of a new technology or process that affects the environment generally.  In June 2005, the Ministry of Economic Development completed a stocktake and analysis of regional and district plans and policy statements (Beca Carter Hollings and Ferner, 2005).  The study examined all district and regional plans and policy statements to determine the extent to which these documents have regard for the national benefits of network infrastructure.

The analysis identified some key trends:

  • benefits at a local and regional level are more commonly noted than that at a national level

  • network infrastructure is often considered generically

  • there is a high degree of consistency in the general approach of existing planning documents, but the detail differs in its emphasis and approach to regulation

  • avoiding, remedying and mitigating any adverse effects of network infrastructure is a key concern in existing planning documents.

The stocktake completed in 2005 by the Ministry of Economic Development found that the extent to which telecommunications activities are specifically referred to in any issues, objectives and policies in planning documents is extremely limited.  The majority of planning documents rely on the generic network utility provisions in their issues, objectives and policies for telecommunications.  In district and regional plans, telecommunications activities are most commonly provided for by either designation or by activity-based rules.  In total, 66 (77%) of regional and district plans contain rules relating to telecommunications facilities, with activity classifications ranging from permitted to discretionary.

The 2005 Ministry of Economic Development stocktake report considered that national environmental standards have the potential to add significant value by providing for consistency among planning documents.  Shortly after this analysis was completed, and as part of the wider RMA review process, the Government approved a work programme for scoping potential national policy statements and national environmental standards for telecommunications infrastructure.

A Telecommunications Industry Reference Group was convened in July 2005, which was tasked with scoping possible national environmental standards for telecommunications.  The Group delivered the final industry proposals to the Ministry for the Environment in June 2006 (Telecommunications Industry Reference Group, 2006).  The report stated that the desire of the major telecommunications network providers is to roll out services using standardised equipment across the country; however, the considerable variation between territorial local authority district plans in how they address and control telecommunications infrastructure makes the deployment process time-consuming, expensive and inconsistent.

The Ministry for the Environment undertook a review of all district plans to examine how they currently provide for radio-frequency fields and telecommunications facilities (Incite, 2006).  This review confirmed that provisions for telecommunications facilities in existing district plans are inconsistent, many do not have clear provisions relating to infrastructure within road reserves, and some do not contain any rules for radio-frequency fields or rely on out-of-date standards.

The Industry Reference Group recommended developing a suite of four standards to provide for specific elements of the telecommunications infrastructure.  The standards are discussed in more detail in chapter 4.

3.4 Evaluation of the objective

Section 32 requires that the evaluation must examine the extent to which the policy objective is the most appropriate way to achieve the purpose of the RMA.

The purpose of the RMA is to promote the sustainable management of natural and physical resources, which means:

... managing the use, development, and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural wellbeing and for their health and safety while –

a. sustaining the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of future generations; and

b. safeguarding the life-supporting capacity of air, water, soil, and ecosystems; and

c. avoiding, remedying, or mitigating any adverse effects of activities on the environment.

Based on the evaluation included in the following sections, it is considered that the objective represents the most appropriate way to achieve the purpose of the RMA.  Broadly, it is considered that the objective appropriately reflects the balance contained within the Act’s purpose between enabling the use and development of resources, and managing the adverse environmental effects of this use and development.

The objective seeks outcomes in relation to three elements: assisting in the roll-out of new and improved services; reducing costs for service providers, consumers and local authorities; and balancing community input (adverse effects) against national infrastructure investment (use and development).  The following evaluation considers each of these elements in turn, against the purpose of the RMA.

3.4.1 Assisting in the roll-out of new and improved services

Given the value of the new and improved telecommunications services to the nation (section 2.1), seeking recognition of it through the facilitation of the use, maintenance, upgrade and development is an appropriate objective in terms of the purpose of the RMA.

This component of the objective clearly relates to section 5 of the Act, which seeks to enable the use and development of resources, including physical resources such as telecommunications networks, so that people and communities can meet their needs.  The first element of the objective serves to build upon this broad intent within the Act’s purpose by setting specific direction in relation to a nationally significant network.  Assisting with the roll-out of new and improved services will contribute to achieving one of the Government’s top priorities of economic transformation and the aim of creating a higher-value economy.  The policy objective will help deliver on other goals including:

  • faster and more cost-effective delivery of telecommunications facilities

  • achieving top half of the Organisation for Economic Co-operation and Development (OECD) [broadband] performance by 2010

  • becoming a “... world leader in using information and technology to realise its economic, social, environmental, and cultural goals” (The Digital Strategy 2005).

Facilitating these goals through assisting the roll-out of new and improved telecommunications services will aid people and communities by providing for their social and economic wellbeing as well as for their health and safety.  Effective communication channels are considered essential to maintaining the health and safety of people and communities.

3.4.2 Reducing costs for service providers, consumers and local authorities

Reducing the development and operating costs of telecommunications services and associated infrastructure has direct benefits to the social and economic wellbeing of people and communities.  Access to high-speed broadband is considered not as a competitive advantage to New Zealand businesses anymore, but a prerequisite for remaining competitive in local and international market places.  It has a significant impact on economic development in regional New Zealand.

Reducing costs associated with infrastructure investment will aid deployment and help ensure students and families (our future generations) will have enhanced teaching and learning resources and the same opportunities in education, regardless of where they live.  This will help communities and people in providing for their economic and social wellbeing.

3.4.3 Setting an appropriate balance between local participation in community planning and cost-effective national infrastructure investment

The management of adverse environmental effects is addressed through the objective of setting an appropriate balance between local participation in community planning and cost effective national infrastructure.  Ensuring local participation in community planning will mean that values identified by communities as important are considered and the community can then choose whether to avoid, remedy or mitigate any adverse effects of the activities that may arise.  Cultural wellbeing is not explicitly provided for through the objective, however ensuring an appropriate level of local participation in community planning allows for the identification and management of issues important to maintaining cultural wellbeing.

3.5 Resource Management Act options

To improve the delivery of telecommunications infrastructure, a number of national policy options could be considered, including:

  • do nothing (status quo)

  • non-regulatory approaches (eg, partnership with district councils, production of voluntary guidelines, guidance notes)

  • amend the RMA

  • a national policy statement

  • a national environmental standard.

This section explains these options and assesses their appropriateness for achieving the policy objectives.

3.5.1 Status quo

Telecommunications companies wishing to install their infrastructure are currently subject to resource management consenting processes that differ widely between local authorities.  This creates costs and uncertainties for telecommunications operators seeking to roll out new services, or extend their networks and improve the capacity and quality of their services, using their right to occupy road reserves in providing utility services.

Risks

Without change, the roll-out of new services and enhanced capacity will face the costs of resource consent applications processes, increasing costs and potentially slowing the rate of roll-out and the availability of new services across the community.  This may in turn create barriers to new services, choice and competition between service providers – leading to higher costs to consumers.

3.5.2 Non-regulatory approaches

In the non-regulatory approach the Ministry for the Environment could, through the use of voluntary measures, encourage and support district councils and telecommunications companies to develop consistent plan provisions and improve the processing of resource consents.  There would be a range of measures to support local government, but no compulsion for districts to improve practice or implement guidance.

These measures could include:

  • issuing best practice guidelines on appropriate levels of permitted development for new telecommunications infrastructure, and how to develop appropriate district plan rules

  • recommended protocols for consulting with affected parties on relevant resource consents

  • partnership models to improve communication between district councils (planning and road controlling authority departments) and consent applicants

  • issuing best practice guidelines on how to assess the potential effects of new telecommunications infrastructure on the built environment, and how to develop appropriate consent conditions and/or district plan rules.

This approach could lead to greater consistency in how councils manage the consenting requirements and processing of consent applications for telecommunications infrastructure.

Risks

While this option would keep regulatory complexity to a minimum and allow greater flexibility for local decisions, it is doubtful there would be significant improvement to the current situation.  Without regulatory compulsion there is no guarantee councils would work together to provide national consistency.  In essence, the status quo would prevail through a non-regulatory approach and the objective is unlikely to be achieved.

3.5.3 RMA amendment

The RMA could be amended to make it clear that councils need to explicitly provide for telecommunications infrastructure when preparing plans and making decisions on resource consents.  However, the RMA is an enabling and broad-scale piece of legislation.  Amending the head statute to accommodate specific matters as they arise would make the legislation unnecessarily complex.  The RMA provides for more specific matters to be addressed through regulation-making powers (such as national environmental standards) for individual environmental management issues.

Risks

Legislative amendments are often more expensive and time-consuming than other options.  In addition, it is more difficult to amend legislation if changes are needed at a later date (eg, if amendments are made to the Telecommunications Act).  It could be likened to ‘using a sledgehammer to crack a nut’.

3.5.4 National policy statement

Part 5 of the RMA provides for the Minister of the Environment to issue national policy statements “to state objectives and policies on matters of national significance that are relevant to achieving the purpose of this Act”.  [To date, only the mandatory New Zealand Coastal Policy Statement, and the National Policy Statement on Electricity Transmission have been issued in New Zealand.  Several other NPSs are under consideration at the time of writing.]

National policy statements take effect in one of four ways.  Local authorities must:

  • give effect to the NPS by amending a regional policy statement or plan (in line with the timeframe specified in the NPS, or ‘as soon as practicable’)

  • when making a decision on a resource consent application, have regard to an NPS

  • when making a recommendation on a notice of requirement, have particular regard to
    an NPS

  • take any other action specified in an NPS.

For example, an NPS could be prepared stating that enabling the provision of telecommunications infrastructure and services is a matter of national significance.  This would give clear guidance to consent authorities that they need to make provision for this when making decisions on resource consents, and when preparing plans and regional policy statements.

Risks

However, there are limitations to the certainty about decision-making that could be achieved by an NPS alone.  An NPS will not ensure there is national consistency at the required level of detail.  This is because it can only state objectives and policies, not how to achieve them.  As a result, an NPS alone cannot be sufficiently specific to ensure national consistency in the approach to allowing low impact development in road reserves.

An NPS would need to be incorporated first into the regional policy statement then district plans to give effect to it.  National policy statements establish objectives and policies; they do not establish methods or rules (ie, they do not establish how the objectives and policies are to be achieved).  Therefore, there could be a wide variation of interpretation of the NPS requirements at the individual council level.  This may not achieve sufficient consistency or certainty to ensure the roll out or provision of telecommunications infrastructure and services around the country and it is unlikely that the policy objective would be achieved.

3.5.5 National environmental standard

The RMA enables the Minister for the Environment to prepare national environmental standards.  These have the force of regulation and are binding on local authorities.  Standards can prescribe methods or requirements and be either quantitative or qualitative.  Section 43 of the RMA outlines the matters that can be covered by an NES (Appendix 6).

National environmental standards can be more prescriptive instruments than national policy statements and legislation.  This provides some key benefits over other options.  An NES would fulfil the policy objectives by providing certainty about the levels of permitted development provided for telecommunications infrastructure in road reserves in every local authority area in New Zealand.  The NES requirements would remove any ambiguity over whether or not a particular piece of equipment would require resource consent or not.

The national environmental standards will substitute the existing rules in every district plan in New Zealand.  The new rules will permit radio-frequency fields generated by telecommunications antennas and the construction and operation of certain types of telecommunications infrastructure – subject to requirements and limitations including height, size, density and noise limits.  The NES would override any existing district plan rules on the subject material.  A plan change is not required for the NES to become part of a district plan, although some local authorities may choose to undertake a plan change process specifically to incorporate the new rules into their plan.  Alternatively, the new rules can be incorporated into a district plan as an administrative change by ‘piggy-backing’ them on another unrelated plan change or as part of the forthcoming review of all district plans required by the Resource Management Act.  The NES effectively reduces the stock of existing regulation by replacing the variability or absence of rules in 73 district plans with one set of nationally consistent provisions for telecommunications infrastructure.

Risks

Local authorities could use their road controlling authority powers to impose conditions on the installation of infrastructure that had been addressed in the NES, effectively ‘double-dipping’, thereby reducing the impact of the NES’s permitted activity status of those facilities.  However, an NES and the current work on a legally binding code of practice for utilities working in the road will clarify the extent of the roles and requirements of the two separate processes.

3.6 Comparison of alternatives

Of the options considered, the only two that are appropriate to meet the policy objectives are RMA amendment and a national environmental standard.

None of the other options are considered appropriate: they would not satisfy the policy objectives of providing for consistent and certain regulatory planning provisions that apply on a national basis to assist in network and equipment design and equipment sourcing for roll-outs; and for a reduction in compliance costs and timeframes.  A national environmental standard was considered a more appropriate instrument than a RMA amendment for the following reasons:

  • An NES is a more specific instrument.  It allows for more prescriptive requirements than the legislative amendments suggested.  It is less open to interpretation, providing more direction and certainty to practitioners.  This means there is a decreased likelihood of the intention of the policy being diluted.

  • An NES can be more readily and quickly amended than legislation if later changes are required.

  • Alterations to legislation are likely to be more expensive and take longer than the promulgation of an NES, since the steps to be followed are more numerous and arduous than for implementing an NES.  There may also be regulatory inconsistency between districts, depending on how councils interpret instructions such as ‘recognise and provide for’.  Implementation is likely to be protracted, so changes may not be made until the time of scheduled plan reviews.

Having considered the available alternatives, a national environmental standard was considered the most appropriate means of achieving the policy objective.

Table 1: Assessment of options for achieving policy objective

Criteria

Alternative options that did not satisfy the selection criteria

Preferred option

Status quo

Non-regulatory approaches

Amend RMA

National policy statement

Permitted activities NES

National consistency

N

N

Y

Y

Y

Manage effects of telecommunications infrastructure

P

P

Y

P

Y

Certainty of outcome

N

N

Y

N

Y

Local input

Y

Y

N

Y

P

Enables telecommunications activities

P

P

Y

P

Y

Cost-effective

N

N

N

P

Y

Timeliness of process

N

N

Y

N

Y

Reduced workload for councils and industry

N

N

P

P

Y

Key to table:

Y Meets the criterion
N Does not meet the criterion
P Partly meets the criterion

3.6.1 Balancing community input (adverse effects) against national infrastructure investment (use and development)

The statement in the objective on managing the adverse effects of telecommunications infrastructure is appropriate in terms of the purpose of the RMA, which refers, among other things, to “avoiding, remedying, or mitigating any adverse effects of activities on the environment”.

The general intent of the statement within the objective offers a degree of appropriateness in relation to the purpose of the RMA.  It provides a balance to recognising the importance of the telecommunications against the need to minimise any adverse effects on the environment.  The statement in the objective recognises both the potential of the infrastructure to create adverse environmental effects and the need to balance these with recognition and provision for its benefits, and to facilitate sustainable development.

While the policy objective’s statement on managing the adverse environmental effects is general and, to an extent, simply implies the requirements of the Act, the methods contained in the national environmental standards specifically address how adverse effects will be managed:

  • the standards would only apply to low-impact activities

  • the standards provide for the protection of matters of national importance and values identified by communities through district plans.

To this extent, the standards contain links to district plan provisions.  Where specific values such as amenity or historic heritage have been identified as a local issue by the community, these values will be preserved.  This provides a mechanism to avoid remedy or mitigate potential adverse effects of development on the built environment.

3.6.2 What are the risks of acting if there is uncertain or insufficient information about the NES subject?

Section 32(4)(b) of the RMA requires an evaluation to take account of the risk of acting or not acting if there is uncertain or insufficient information about the subject matter.  Through the discussion above, the following risks have been identified.

Risks of not acting

Configuration of telecommunications networks may be redirected from an otherwise optimal route by the stringency of some local provisions, resulting in increased inefficiencies and risks to the ongoing network operation.

There is potential for delays in rolling out new services, as resources used in additional compliance activity are diverted from new investment (regulatory compliance crowding out investment expenditure).

The status quo is compounded for new entrant operators, who have no existing network to build on and are particularly dependent on rapid deployment of new facilities to provide viable services and competition against incumbent operators.

In short, variable planning provisions both reduce the level of investment, and delay any occurring.  The risks of not acting are well defined and cannot forseeably be mitigated by continuing with the status quo.

Risks of acting

The risks of acting, identified in previous sections, can be effectively mitigated.  The key risks are:

  • the potential of new infrastructure to create adverse environmental effects

  • the loss of local input in the decision-making process for telecommunications infrastructure.

The methods contained in the standards specifically address how adverse effects will be managed:

  • the standards would only apply to low-impact activities

  • the standards provide for the protection of matters of national importance and values identified by communities through district plans.

To this extent, the standards contain links to district plan provisions.  Where specific values such as amenity or historic heritage have been identified as a local issue by the community, these values will continue to be preserved.  It is appropriate that local input into identifying issues of importance to communities is through the plan process, and not on an ad hoc or case-by-case basis.

 

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