Utilities Access Act 2010

1: Title
This Act is the Utilities Access Act 2010.
2: Commencement
This Act comes into force on the day after the date on which it receives the Royal assent.
3: Purpose of Act
The purpose of this Act is to—
a: require utility operators and corridor managers to comply with a national code of practice that regulates access to transport corridors; and
b: provide for the making and administration of that code.
4: Interpretation
In this Act, unless the context otherwise requires,— Code
a: the national code of practice that is approved under section 12
b: if there is no Code approved under section 12 section 18 corridor manager
a: in relation to a road (as defined in section 315(1)
b: in relation to a motorway (as defined in section 2(1)
c: in relation to railway land, the licensed access provider who controls access to the land eligible infrastructure section 8 Minister Ministry railway land section 4 related Ministers Local Government Act 1974 Electricity Act 1992 Gas Act 1992 Government Roading Powers Act 1989 Telecommunications Act 2001 Railways Act 2005 SPV Infrastructure Funding and Financing Act 2020 transport corridor section 315(1) section 2(1) utility operator
a: in relation to electricity infrastructure, an electricity operator as defined in section 2(1)
b: in relation to gas infrastructure, a gas operator as defined in section 2(1)
c: in relation to telecommunications infrastructure, a network operator as defined in section 5
d: in relation to water and wastewater infrastructure,—
i: a local authority as defined in section 5
ii: a person acting on behalf of a local authority in relation to that infrastructure; or
iii: a responsible SPV that is responsible for the construction of eligible infrastructure under the Infrastructure Funding and Financing Act 2020
e: in relation to public letterboxes, a postal operator as defined in section 2(1) Section 4 eligible infrastructure inserted 7 August 2020 section 161 Infrastructure Funding and Financing Act 2020 Section 4 SPV inserted 7 August 2020 section 161 Infrastructure Funding and Financing Act 2020 Section 4 utility operator replaced 7 August 2020 section 161 Infrastructure Funding and Financing Act 2020
5: Act binds the Crown
This Act binds the Crown. Obligation to comply with Code
6: Obligation to comply with Code
1: Utility operators and corridor managers must—
a: co-ordinate work done in transport corridors by complying with the processes and rules set out in the Code; and
b: before applying to the court for an order under section 7
2: In setting reasonable conditions relating to access to the transport corridor, corridor managers must comply with the Code (but only to the extent that the Code is not inconsistent with any applicable criteria for reasonable conditions that are published under an enactment).
3: When carrying out work in a transport corridor, utility operators must comply with the Code—
a: except to the extent that any particular provision of the Code is inconsistent with an enactment, or any standard or other instrument that the utility operator is obliged to comply with; or
b: unless, in a particular situation, the manager of the transport corridor and all affected utility operators agree that the Code need not be complied with.
4: To avoid doubt, an agreement not to comply with the Code does not affect a corridor manager's or utility operator's obligations under an enactment, or under any standard or other instrument with which it is obliged to comply.
5: This section does not apply if there is no Code.
7: Court may order compliance with Code
1: On the application of any utility operator or corridor manager, the District Court section 6
2: The order may require the person against whom it is made to comply with it within a specified time.
3: In considering an application for an order, the court may take into account the practicality and cost of complying with the Code as compared with the practicality and cost of taking other steps that will, in the particular situation under consideration, achieve substantially the same outcome as compliance with the Code. Section 7(1) amended 1 March 2017 section 261 District Court Act 2016
8: Offence to fail to comply with order
A person who, knowing that the person is subject to an order made under section 7 Section 8 amended 1 July 2013 section 413 Criminal Procedure Act 2011 Nature of Code
9: Purpose of Code
The purpose of the Code is to enable access by utility operators to transport corridors to be managed in a way that—
a: maximises the benefit to the public while ensuring that all utility operators are treated fairly; and
b: ensures that disruptions to roads, motorways, and railways caused by work by utility operators are kept to a minimum, while maintaining safety; and
c: provides a nationally consistent approach to managing access to transport corridors.
10: Content of Code
1: In order to achieve its purpose, the Code must set out the following:
a: who it applies to:
b: the principles governing how corridor managers deal with utility operators, and how utility operators deal with corridor managers and other utility operators, on issues relating to access to transport corridors:
c: the processes and rules for co-ordinating work done in transport corridors by utility operators, or that affects utility operators' assets:
d: processes for dealing with conflicts of interest arising from the same person being both a corridor manager and a utility operator, or being the operator of different utilities:
e: how the statutory criteria for setting reasonable conditions, when utility operators have a right of access, are to be applied:
f: whether, what, and how any other conditions relating to access may be imposed by corridor managers when utility operators have a right of access:
g: how the criteria (published in accordance with a statutory requirement) for granting access are to be applied when utility operators request access:
h: processes and rules for utility operators and corridor managers to share information:
i: how compliance with the provisions of the Code is to be encouraged and provided for, including 1 or more dispute resolution procedures:
j: operational processes and rules about work done by utility operators within transport corridors:
k: if the Code refers to standards, guidelines, or other documents that are not set out in the Code,—
i: how those standards, guidelines, or other documents (including any amendments and replacements) may be viewed and how copies may be obtained; and
ii: which edition or version of the standard, guidelines, or other document is referred to and whether the reference includes subsequent amendments or replacements.
2: The Code may also—
a: provide for its provisions to be applied differently in different geographic locations, provided the variations comply with subsection (3); and
b: include any other matter that is consistent with the purpose of the Code and not inconsistent with any enactment.
3: Variations referred to in subsection (2)﻿(a) may be allowed by the Code only if the variations—
a: are generally consistent with paragraphs (a) and (b) of the purpose of the Code set out in section 9
b: are in response to particular geographic factors that would result in inefficient or uneconomic outcomes if the standard requirements of the Code were adopted; and
c: have been sought and agreed to by the corridor managers and utility operators in that region; and
d: fairly balance the interests of corridor managers and utility operators. How Code made and administered
11: Preparation of Code
1: A draft Code may be prepared by the Ministry, or by any person or body of persons, using whatever processes the Ministry, person, or body considers appropriate.
2: The process for developing a draft Code must include, at a minimum, the following steps:
a: consultation with utility operators and corridor managers likely to be affected by the Code:
b: publication of a draft Code and release to the public:
c: consideration of comment received on the draft Code:
d: preparation of a revised draft Code in response to comments received.
3: A draft Code may be submitted to the Minister for approval at any time after the steps referred to in subsection (2) have been taken.
4: Any consultation done before this Act comes into force does not count as consultation for the purposes of subsection (2).
12: Approval of Code
1: Within 3 months after receiving a draft Code, the Minister must either approve or reject it.
2: The Minister may approve a draft Code only if—
a: he or she has consulted with the related Ministers; and
b: he or she is satisfied that the draft Code—
i: is capable of achieving the purpose set out in section 9
ii: adequately sets out the matters referred to in section 10(1)
iii: has been developed by a process that includes the steps set out in section 11(2)
iv: is broadly agreed to by the corridor managers and utility operators likely to be affected by the draft Code; and
v: reflects a balance between the interests of corridor managers and those of utility operators.
3: The Minister's decision under this section must be given in writing to whoever submitted the draft Code to the Minister for approval.
4: A Code is secondary legislation ( see Part 3
5: That Act applies as if—
a: the Minister were the maker of the Code; and
b: the Code were made by the Minister approving it. The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation referred to in subsection (4). Legislation Act 2019 requirements for secondary legislation referred to in subsection (4) Publication The maker must: LA19 ss 73 74(1)﻿(a) cl 14 •	notify it in the Gazette •	make it available for sale at a reasonable price at the head office of the Ministry •	publish it on an Internet site that is publicly available at all reasonable times Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 12(4) replaced 28 October 2021 section 3 Secondary Legislation Act 2021 Section 12(5) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
13: Effect of commencement or revocation of Code
1:
2:
3: It is not intended that any processes, notices, conditions, or other matters that were previously settled should be affected by the Code taking effect or by any subsequent revocation Section 13 heading replaced 28 October 2021 section 3 Secondary Legislation Act 2021 Section 13(1) repealed 28 October 2021 section 3 Secondary Legislation Act 2021 Section 13(2) repealed 28 October 2021 section 3 Secondary Legislation Act 2021 Section 13(3) amended 28 October 2021 section 3 Secondary Legislation Act 2021
14: Publication of Code
Section 14 repealed 28 October 2021 section 3 Secondary Legislation Act 2021
15: Status of Code
Section 15 repealed 28 October 2021 section 3 Secondary Legislation Act 2021
16: Amendment of Code
1: The Minister may at any time approve an amendment to the Code.
2: Sections 11 to 13
3: Proposals for amendments to the Code must include the following:
a: a statement of the proposed amendment and how it will affect the Code:
b: the reasons for the proposed amendment:
c: a description of the process used to arrive at the proposal, including a description of the parties involved and the level of agreement achieved among them:
d: a description of how the amendments will affect corridor managers and utility operators.
4: However, in the case of a minor amendment that does not materially affect the Code,—
a: section 12(2)
b: the proposed amendment need not—
i: include the matters referred to in subsection (3)﻿(c) and (d); or
ii: comply with section 11(2)﻿(b) to (d) Section 16(2) amended 28 October 2021 section 3 Secondary Legislation Act 2021
17: Revocation
1: The Minister may revoke
a: the Code no longer adequately reflects a balance between the interests of corridor managers and those of utility operators; or
b: the Code is not achieving its purpose; or
c: utility operators and corridor managers have significant concerns with, or differences over, the Code, and resolution of the issues appears unlikely.
2: A revocation under this section is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication The maker must publish it in the Gazette LA19 ss 73 74(1)﻿(a) cl 14 Presentation It is not required to be presented to the House of Representatives because a transitional exemption applies under Schedule 1 LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 17 heading amended 28 October 2021 section 3 Secondary Legislation Act 2021 Section 17(1) amended 28 October 2021 section 3 Secondary Legislation Act 2021 Section 17(2) replaced 28 October 2021 section 3 Secondary Legislation Act 2021 Regulations in place of Code
18: Power to make regulations if no Code
1: The Governor-General may, on the recommendation of the Minister given in accordance with subsection (2), make regulations regulating how access by utility operators to transport corridors is managed.
2: The Minister may not recommend making regulations under this section unless he or she is satisfied that—
a: either—
i: no Code has taken effect and no Code is likely to take effect; or
ii: an existing Code is or is likely to be revoked
b: the regulations set out a code that has the purpose set out in section 9 section 10(1)
c: the regulations are likely to improve the efficiency of utility operators' access to transport corridors, without compromising road or rail safety; and
d: the regulations reflect, as far as possible, any agreements reached by utility operators and corridor managers; and
e: the related Ministers have been consulted and concur in the desirability of making the regulations and the content of the regulations.
3: Regulations made under this section may incorporate by reference any written material that prescribes, defines, or makes other provision for goods, services, processes, or practices that are relevant to the regulations.
4: If material is incorporated by reference in regulations made under this section, the Schedule section 2
5: Regulations under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 18(2)﻿(a)﻿(ii) amended 28 October 2021 section 3 Secondary Legislation Act 2021 Section 18(5) inserted 28 October 2021 section 3 Secondary Legislation Act 2021