3. Matters Addressed by the Regulations (NES)

Clauses 4 to 9 of the regulations address specific aspects of telecommunication facilities. These are:

• RF fields in respect of compliance with the accepted New Zealand standard (clause 4)
• the activity status of telecommunication facilities located in the road reserve (clause 5)
• protection of vegetation, and historic, amenity and coastal areas (clause 6)
• antennas and existing utility structures (clause 7)
• telecommunication cabinets (clause 8)
• noise from cabinets (clause 9).

Each of these clauses of the regulations is discussed below.

3.1     Clause 4: Radiofrequency fields

Clause 4 of the regulations requires compliance with the Standards New Zealand standard NZS 2772: Part 1: 1999 Radiofrequency Fields Part 1 – Maximum Exposure Levels – 3 kHz to 300 GHz, and is relevant to all telecommunication facilities that generate RF fields, whether they are located in the road reserve or not. This standard incorporates advice on health effects and appropriate exposure levels from exposure guidelines published in 1998 by the International Commission on Non-Ionizing Radiation Protection (ICNIRP).

The Ministry of Health considers that there are no established adverse effects from exposures to RF fields that comply with the ICNIRP guidelines and the New Zealand standard. The Environment Court has similarly concluded that there are no adverse health effects arising from exposures to RF fields that comply with the New Zealand standard. Further information is available in the National Guidelines for Managing the Effects of Radiofrequency Transmitters, produced jointly by the Ministries of Health and the Environment. This can be viewed online at the Ministry for the Environment website. It is important to relay this information to anyone who expresses health concerns about the installation and operation of telecommunication equipment.

The New Zealand standard NZS 2772: Part 1: 1999 Radiofrequency Fields Part 1 – Maximum Exposure Levels – 3 kHz to 300 GHz is available for purchase from Standards New Zealand.

Clause 4 states:

Clause 4: Telecommunication facilities generating radiofrequency fields: activity status

(1) This regulation applies to the planning and operation of a telecommunication facility that generates radiofrequency fields.

(2) A telecommunication facility is a permitted activity as far as radiofrequency fields are concerned if the network operator that plans and operates the facility complies with –

(a) the conditions in subclauses (3) and (4); and
(b) the condition in subclause (5), if it applies.

(3) The first condition is that the network operator plans and operates the telecommunication facility in accordance with NZS 2772: Part 1: 1999 Radiofrequency Fields Part 1 – Maximum Exposure Levels – 3 kHz to 300 GHz.

(4) The second condition is that the network operator ensures that the relevant local authority receives, before the telecommunication facility becomes operational, the following:

(a)       written or electronic notice of where the facility is or where it is proposed to be; and
(b)       a report that –

(i)         is prepared in accordance with NZS 6609.2: 1990 Radiofrequency Radiation: Part 2: Principles and Methods of Measurement 300 kHz to 100 GHz; and
(ii)       takes account of exposures arising from other telecommunication facilities in the vicinity of the facility; and
(iii)      predicts whether the radiofrequency field levels at places in the vicinity of the facility that are reasonably accessible to the general public will comply with NZS 2772: Part 1: 1999 Radiofrequency Fields Part 1 – Maximum Exposure Levels – 3 kHz to 300 GHz.

(5) The third condition applies if the prediction referred to in subclause (4)(b)(iii) is that the radiofrequency field levels will reach or exceed 25% of the maximum level authorised by NZS 2772: Part 1: 1999 Radiofrequency Fields Part 1 – Maximum Exposure Levels – 3 kHz to 300 GHz for exposure of the general public. The network operator must ensure that the relevant local authority receives, within three months of the telecommunication facility becoming operational, a report that –

(a) is prepared in accordance with NZS 6609.2: 1990 Radiofrequency Radiation: Part 2: Principles and Methods of Measurement 300 kHz to 100 GHz; and
(b) provides evidence that the actual radiofrequency field levels at places in the vicinity of the facility that are reasonably accessible to the general public comply with NZS 2772: Part 1: 1999 Radiofrequency Fields Part 1 – Maximum Exposure Levels – 3 kHz to 300 GHz.

(6) A telecommunication facility that is not a permitted activity under this regulation is a non-complying activity as far as radiofrequency fields are concerned.

The regulation introduces more restrictive provisions for RF fields for approximately half the existing district plans. Around 25 per cent of district plans reference an out-of-date New Zealand standard for RF fields, and a number of district plans do not contain any rules relating to RF fields.

The regulation enables RF field exposures³ from mobile phone transmitters and other telecommunication structures to be controlled in a manner consistent with the national guidelines, the existing voluntary New Zealand standard and international guidance from the ICNIRP. The standard makes compliance with NZS 2772 mandatory throughout New Zealand, and overrides existing rules in district plans on this issue for network operators.

In addition, section 43E of the RMA states that a national environmental standard overrides any bylaws that may be in place relating to any activities controlled by a national environmental standard. So, for example, the Auckland City Council Bylaw Part 28 “Radiofrequency fields” will no longer apply to network operators. Instead, clause 4 of the regulations will manage RF fields for network operators.

Where a telecommunication facility does not comply with clause 4, it will require a resource consent as a non-complying activity in relation to RF fields only. This clause is therefore straightforward in that there are only three possible scenarios:

1. the facility complies with the relevant sub-clauses and the predicted exposures are < 25 per cent of the NZS 2772.1 limit = permitted in terms of RF fields, or
2. the facility complies with the relevant sub-clauses but predicted exposures are ≥ 25 per cent of the NZS 2772.1 limit = permitted in terms of RF fields but measurements are required post-installation, or
3. the facility does not comply with the relevant sub-clauses = non-complying activity in terms of radiofrequency fields. Resource consent required.

If consent is required, it would need to be sought from the relevant territorial authority.

3.1.1   The New Zealand radiofrequency (RF) field exposure standard

The New Zealand RF field exposure standard NZS 2772.1: 1999 Radiofrequency Fields Part 1: – Maximum Exposure Levels 3 kHz to 300 GHz is based on guidelines published by the ICNIRP, an independent scientific body recognised by the World Health Organization (WHO) for its expertise in this area. The ICNIRP guidelines, and their underlying basis, have been picked up in many countries and by other countries’ standards. A full discussion of the standard and why it is considered relevant is beyond the scope of this Users’ Guide, but further information can be obtained from the National Guidelines, the ICNIRP website, the WHO International EMF Project website or the Ministry of Health.

The standard sets exposure limits for the public that are around 50 times lower than the levels at which adverse effects might occur. In addition to compliance with these numerical limits, clause 10(d) of the standard requires:

Minimising, as appropriate, RF exposure which is unnecessary or incidental to achievement of service objectives or process requirements, provided that this can be readily achieved at modest expense.

This means that full compliance with the standard is achieved not only by satisfying the numerical limits, but also by the network operator being able to demonstrate that they have designed the site to minimise exposures in surrounding areas that are reasonably accessible to the public. So if there are different options available when designing or siting a radio transmitter, then the options resulting in the lowest incidental exposures in surrounding areas that are reasonably accessible to the public should be chosen, all other things being equal. Measures to achieve this could include:

• minimising transmitter power to that required to achieve coverage and service objectives
• selecting antennas that minimise emissions in directions not required for coverage and service objectives
• if alternative sites are available (or there are different options for mounting antennas on a given site, especially rooftop sites), selecting the option giving the lowest exposures in areas that are reasonably accessible to the public.

The network operator should consider not only exposures at ground level but also exposures in nearby houses, balconies, etc.

3.1.2   The New Zealand RF field measurement standard

New Zealand standard NZS 6609.2: 1990 Radiofrequency Radiation – Principles and Methods of Measurement – 300 kHz to 300 GHz sets out basic measurement requirements for RF fields. The standard also includes an outline of techniques that can be used for calculating exposures from a proposed site. These techniques are based on well-established principles, which generally give conservative estimates. Many software packages based on these principles are now available, and they allow cellular network operators to plot exposure contours around antennas.

3.1.3   The exposure report required by clause 4

To facilitate a local authority reviewing or assessing compliance of the reports required under clause 4(4), it is recommended that a simple standard form be used. This should be supplemented by additional information including:

• exposure information (this could be in the form of exposure contours around antennas showing where levels that are 100 per cent and 25 per cent of the limit in the standard are met, or a plot or other means showing exposure levels in accessible areas around the site)
• general technical specifications for the site (power, frequency, antenna gain, etc).

An example summary report form is presented in Appendix C.

3.1.4   Compliance with the standard

The standard specifies limits in terms of basic restrictions on the amount of RF power absorbed by the human body. Because RF power absorption is difficult to measure, the standard prescribes reference levels in terms of the more easily measured electric and magnetic field strengths, and power flux density. Compliance with the reference levels ensures compliance with the basic restrictions, and in most cases they can be regarded as “exposure limits” (although this term is not used in the standard).

The standard permits exposures to be averaged over a 6-minute period. In determining whether exposures comply with the limits, it should normally be assumed that the telecommunication facility is operating at maximum power all the time (even if, as happens with cell sites, for example, the output power is controlled dynamically so as to be just sufficient to handle the calls going through the site). On the other hand, if a transmitter operates with a fixed-duty cycle (ie, it does not transmit continuously but in bursts with fixed on/off periods), then time averaging of exposures can be considered. The standard also allows the power flux density (PFD) to be averaged over an area when making comparisons against the reference levels. It may be reasonable to apply the spatial averaging provisions if, for example, only a very small part of the body (eg, the hands) might be exposed to either the 100 per cent or 25 per cent thresholds.

3.1.5   What areas are reasonably accessible to the general public?

The standard uses the term “reasonably accessible to the general public” but does not define what this means. It is difficult to provide a precise definition, but in most cases it should be fairly easy to determine what areas might and might not be reasonably accessible. For example, it is reasonable to assume that members of the public might be in areas on the ground near a telecommunication facility that is not fenced off by the network operator. On the other hand, it is not reasonable to assume that a member of the public would hire a crane or cherry picker to position themselves right in front of a cell site antenna that is located in an otherwise vacant area.

In general, areas accessible to the public should include anywhere that might under normal circumstances be occupied by a member of the public. This could include both public and private property (eg, in the street, or on private land). Another way of thinking about it could be in terms of areas where members of the public have lawful access but may be unaware of exposures to RF fields.

The table below gives examples of areas that might be considered accessible or not.

Table 1: Examples of “reasonably accessible” and “reasonably inaccessible” areas

If the 25 per cent or 100 per cent exposure contour intersects an area where there may be room for discussion about whether it is “reasonably accessible to the public” (eg, if the contour is less than 2 metres above an adjacent rooftop, or if the contour intersects a tree that may be climbable), it would be helpful for the exposure report to state whether this area has been considered accessible or not, and if not, why not.

Areas that would normally be accessed only by maintenance staff (eg, air-conditioning contractors, painters, window cleaners, lighting contractors) should not be considered “reasonably accessible to the public” even though in terms of NZS 2772.1 these people would be counted as members of the public. The reason for this is that under occupational health and safety legislation it is their employer’s responsibility to be aware of and manage possible hazards in their workplace. This would include the potential for exposures to RF fields from telecommunication facilities.

3.1.6   Which other telecommunication facilities in the vicinity should be taken into account?

Clause 4(4)(b)(ii) requires that the exposure report take into account “exposures arising from other telecommunication facilities in the vicinity”. The intention behind this requirement is that exposures from a new telecommunication facility (or new transmitters added to an existing facility) should not be considered in isolation but added to the existing contributions from other equipment at the same site or at telecommunication facilities nearby. A “site” may be a mast or pole, or it may be a rooftop or building with antennas mounted on it.

To some extent, radio engineers are already obliged, under licensing rules developed by the Radio Spectrum Management (RSM) group at the Ministry of Economic Development, to be aware of nearby sites in order to avoid radio interference. The RSM group maintains a publicly available database giving the location of transmitter sites. Most transmitters that are likely to make a significant contribution to exposures should also be easy to see on a site visit (although cell sites disguised behind other structures may be an exception). The primary use of this database would be to determine whether or not there are nearby sites that should be considered: detailed technical information on likely exposures from those sites would need to be found elsewhere. Although the RSM database does not include unlicensed band services, these are usually very low power and so unlikely to add a significant contribution to exposures.

The primary goal of clause 4 is to ensure that exposures comply with the standard. As a check on compliance, measurements are required if exposures are calculated to exceed 25 per cent of the public limit (reference level). Hence clause 4 provides a wide margin between the threshold at which measurements are required (25 per cent) and the level at which the public limits might be exceeded (100 per cent), so transmitters on nearby sites that add only a small contribution (a few per cent of the public limit) should not be of particular concern. (Put another way, if exposures from a proposed transmitter exceed the 25 per cent threshold, measurements are always required. If exposures from the new transmitter are less than 25 per cent of the limit, it would take a fairly substantial nearby source or sources to make them exceed the limit, so we shouldn’t have to worry about the relatively small contributions they might make.)

Potential contributions to exposures from transmitters that are on the same site should certainly be considered in the exposure report. Beyond that, there are no hard and fast rules to say how far away other transmitters should be before they need not be considered. Measurements made around a variety of transmitters in New Zealand suggest that under most circumstances the exposures in publicly accessible areas more than 50 metres away are less than a few per cent of the public limit and so are unlikely to make the difference between compliance with the public limits or not.

It is not necessary to make detailed calculations for every antenna nearby. The important thing is that the antenna or facility be considered, even if the result of that consideration is to conclude that it will make a negligible difference to exposures so that detailed calculations are not necessary. For example, dish antennas emit a tightly focused beam, which, to be useful, must be directed away from the ground and buildings, and so can normally be assumed to make no significant contribution to exposures in areas that are reasonably accessible to the public. Contributions from panel antennas not facing towards the publicly accessible area under consideration can also be neglected under most circumstances.

Network operators should be aware that the question of “cumulative effects” (the possibility that increasing the number of sites leads to rapidly increasing exposure levels) is often of concern to the public, so if in doubt it would be better to include consideration of a “nearby” site even if it turns out to be of little significance.

3.1.7   Good practice

3.1.7.1   Timing of the exposure report submission

Although clause 4 only requires the report to be submitted before the site becomes operational, it is good practice to submit the report to the local authority before construction commences (together with the resource consent application, if one is required). The report may constitute part of an application for a certificate of compliance, which would provide the opportunity for the council to assess whether resource consent is required, if they choose to.

3.1.7.2   Supplementary information about the facility

Clause 4 requires that the report predict whether exposures comply with the public limits in the standard, and if they will exceed 25 per cent of those limits. There is no obligation to provide any more detail than this. However, it would be good practice for network operators to supply additional information that would enable local authorities, if they wished, to independently verify the conclusions in the report. This could include technical specifications and plots showing estimated exposures. This information will already be available in order to prepare the report, so providing it should require little extra effort on the part of the network operator. It would also raise confidence in the report.

3.1.7.3   Auditing

A local authority may wish to audit reports, or monitor sites, to assess compliance. The decision to audit or monitor may depend on the council’s policies on audits and monitoring permitted activities, or may be in response to complaints or concerns raised by the public. Note that some operators commission independent monitoring of some of their sites, and so councils may wish to investigate this first to avoid any unnecessary duplication.

3.1.7.4   Future developments on adjacent sites

The report is prepared based on building developments that already exist around the proposed site at the time the report is submitted, rather than what might legally be constructed on adjacent sites in the future. The ongoing legal obligation to comply with clause 4 means that an operator would need to modify a site or apply for resource consent (non-complying activity) if future building on an adjacent site resulted in non-compliance with clause 4.

Councils may consider putting a “flag” on adjacent property files so that if new developments are planned there is the opportunity to assess whether further action is required to assess if there is a non-compliance issue with clause 4.

3.1.7.5   Community consultation

Chapter 7 of the National Guidelines highlights the importance of considering community views on transmitter sites, and how failure to do so might result in unfavourable publicity and delays in installation, whether or not a proposal complies with all the necessary regulations. The Ministry for the Environment considers that the advice to the telecommunications industry in Chapter 7 is still valid, and also constitutes good practice.

3.2 Clause 5: Activity status

This clause outlines the activity status for telecommunication facilities in the road reserve and allows activities that fall outside the regulations to continue to be managed through existing rules in district plans.

Table 2: Activity classes for radiofrequency

	NES	District plan
Permitted
Controlled
Restricted discretionary
Discretionary
Non-complying

Table 3: Activity classes for cabinets and antennas

	NES	District plan
Permitted
Controlled	(see note below)
Restricted discretionary
Discretionary
Non-complying

The possible statuses are:

• permitted – if the facility complies with regulation 4 (radio frequency fields) and the conditions in regulations 6 to 9 (NES only)
• controlled – if the facility does not comply with conditions in regulations 6 to 9 and the facility was permitted or controlled in the relevant district plan or proposed plan (see note below)
• restricted discretionary – if the facility does not comply with conditions in regulations 6 to 9 and was restricted discretionary in the relevant district plan or proposed plan
• unrestricted discretionary – if the facility does not comply with conditions in regulations 6 to 9 and was unrestricted discretionary in the relevant district plan or proposed plan
• non-complying – if the facility does not comply with conditions in regulations 6 to 9 and was non-complying in the relevant district plan (or for radiofrequency fields, if the proposal does not meet the requirements of regulation 4)
• prohibited – if the facility does not comply with conditions in regulations 6 to 9 and was prohibited in the relevant district plan.

Note that if a proposal does not comply with regulations 6 to 9, resource consent is required. The assessment of the resource consent application (regardless of activity status) should be under the terms and conditions for assessment prescribed in the relevant district plan, as if the NES did not exist.

Note also that the one exception to this is where a district plan permits something in excess of the level permitted by the regulations. In this situation, the permitted activity in excess of the regulations becomes a controlled activity. Control is limited to the aspect that does not comply with the regulations. By limiting control to regulations 6 to 9, a council need only consider the aspect that tips a proposal outside the parameters of the regulations. For example, if a plan permits cabinets up to 2 metres in height and the regulation only permits a cabinet up to 1.8 metres in height, then a 2-metre-high proposal by a telecommunications company would be a controlled activity. When assessing the application, the consent authority’s control would be limited to the height of the cabinet only (ie, the aspect of “non-compliance”).

Figure 1: Controlled activity class for district plan rules that are more permissive than the NES

 

The NES limits the permitted height to 1.8 metres. If a plan has a higher permitted height, then the activity becomes a controlled activity.

3.3 Clause 6: Conditions protecting trees and vegetation, historic heritage values, visual amenity values, and coastal marine area

Clause 6 of the regulations provides that a plan’s rules need to be complied with if consent is already required for works within the dripline of a tree, or where the adjacent site is accorded specific protection under the relevant district plan, such as for heritage or visual amenity or coastal protection. The regulations allow these rules to be more stringent than the regulations. If the plan’s rules are not complied with then resource consent may be required.

For example, where a cabinet is proposed to be located next to a site identified as having heritage or amenity values, or is in an area identified for coastal protection (ie, on the seaward side of a road), and the district plan restricts the location of telecommunication facilities within the road reserve, the proposal will be subject to both the conditions of the regulations and the relevant rules of the district plan.

Where the activity is not permitted under the regulations, the status of the application will depend on the more restrictive activity classification. For example, a controlled activity under the regulations and a discretionary activity in terms of heritage under the district plan means the application will be considered as a discretionary activity. In such instances, all relevant assessment criteria within the relevant district plan must be considered.

A number of district plans have overlays: heritage rules and urban design rules that do not directly affect utility rules and/or telecommunication facilities. It is not intended that councils apply their overlays as a new test, potentially leading to a more restrictive regime than in the past. Clause 6 is intended to preserve existing district plan rules relating to protecting trees and vegetation, historic heritage values, visual amenity values, and the coastal marine area. It is not intended to create new consenting requirements where none previously existed.

District plan rules relating to historic heritage values, visual amenity values and the coastal marine area must specifically relate to network utility structures in road reserves (not just the adjacent land) for these to be applicable under clause 6.

The following table gives a summary of district plans where such rules may apply (as at the date of publication of this guide). Further information can be found in each respective district plan, and each council will need to determine how these exceptions relate to the framework of the regulations.

Table 4:  Summary of district plans where NES rules may apply

Potential adverse effects or affected persons are not considered in the regulations and are left to the discretion of individual councils. It would be appropriate for councils to use their existing practices for determining terms of notification (if any).

The relevant sub-clauses of clause 6 are now discussed in more detail.

Clause 6: Conditions protecting trees and vegetation, historic heritage values, visual amenity values, and coastal marine area

Trees and vegetation

(1) This condition applies if the telecommunication facility is located in a road reserve within the dripline of a tree or other vegetation and the relevant district plan or proposed district plan would, if these regulations did not exist, require the network operator to obtain a resource consent for the installation and operation of the facility in such a location. The installation and operation of the facility must comply with the plan’s rules on tree and vegetation protection. The rules may be more stringent than the conditions in regulations 7 to 9.
The figure below is taken from the Auckland City District Plan (Isthmus Section) and represents a good example of a definition of dripline.

Figure 2: Definition of the dripline for differing shaped trees

 

The dripline of a tree is defined as the branch spread or half the height of the tree, whichever is the greater.

Where a telecommunication cabinet is proposed to be located in the dripline of a tree, the proposal will default to the relevant tree rules applicable in the district plan, and the status of the activity will depend on those rules. A number of councils have this restriction currently. This condition also applies where an operator wishes to install a telecommunication facility in the road reserve within the dripline of a protected tree, where the protected tree is located within private property.

Historic heritage

(2) This condition applies if the telecommunication facility is located in a road reserve that is on the same side of the road as and next to land or items that are identified as having historic heritage values in the relevant district plan or proposed district plan. The facility must comply with the plan’s rules on historic heritage values. The rules may be more stringent than the conditions in regulations 7 to 9.

From a review of district plans it is clear that only a few retain this control over facilities adjoining historic heritage sites, but some councils may choose to consider this. For example, a telecommunication company that wishes to install a 1.5-metre-high, 1.4-metre-square cabinet, complying with the rules of Section 13 (Townscape) of the Dunedin City District Plan within the Octagon Townscape Precinct of Dunedin, can currently do so as of right and continue to do so, as resource consent is not required.

A further example is Manukau City, where historic heritage has been defined as a general matter for consideration in relation to controlled activities. Under the district plan the council has reserved its control over heritage for all cabinets that are higher than 900 millimetres in height. This has enabled the council to include conditions relating to effects on adjacent heritage items that, while not physically affected, may have been affected in some other way by the siting of a cabinet.

The regulations have as a height limit 1.8 metres permitted. Unless the council changes its plan, there will be no historic heritage control over such cabinets. This is because the regulations now set a permitted cabinet size, which applies in all circumstances except where district plans expressly identify those locations/circumstances where cabinets permitted by the NES are not appropriate in terms of identified heritage values. An example might be where cabinets are proposed within heritage areas. The Manukau City rules relating to the alteration of or modification to scheduled heritage items still apply, so if a cabinet is proposed to be sited in a way that alters or modifies a scheduled heritage building or object, then the heritage rules of the district plan apply.

Visual amenity

(3) This condition applies if the telecommunication facility is located in a road reserve that is on the same side of the road as and next to land or sites that are identified as having visual amenity values in the relevant district plan or proposed district plan. The facility must comply with the plan’s rules on visual amenity values. The rules may be more stringent than the conditions in regulations 7 to 9.

The NES does not define the term “visual amenity values”, and there are limited examples found in district plans where this would apply. However, it is likely that roads that run through conservation sites or along ridge lines and hilltops may be subject to more stringent controls about the siting and placement of telecommunication apparatus. Also, some plans may control antennas within identified view shafts.

Coastal marine area

(4) This condition applies if the telecommunication facility is located in a road reserve that is on the same side of the road as and next to coastal marine area. The facility must comply with the plan’s rules that apply to telecommunication facilities. The rules may be more stringent than the conditions in regulations 7 to 9.

Many councils have roads that adjoin the coastal marine area and some choose to regulate structures on the seaward side of the road. In Wellington, roads are zoned with the centreline often defining the zone boundary. Generally, land above mean high-water mark on the seaward side is zoned conservation area, such that above-ground utilities are a discretionary activity in the road reserve.

3.4 Clause 7: Antennas and existing utility structures

Clause 7 of the regulations addresses replacements or additions to existing structures or facilities and considers the circumstances where these are permitted. This clause aims to remove the uncertainty that can exist in district plans where no definition of permitted “upgrading” exists. It will provide national consistency by specifying the conditions that must be met.

The regulations refer to both original and replacement utility structures:

• original utility structures are poles that have a primary function other than telecommunication, such as street lights or traffic lights
• replacement utility structures are poles that have been modified from the original form to include telecommunication facilities.

Clause 7: Conditions controlling antennas and utility structures

(1) This condition applies if an original utility structure in a road reserve is replaced by a replacement utility structure. The replacement utility structure must not have a diameter that is more than the original utility structure’s diameter at its largest point plus 50%.

An example of where this might occur is the replacement of an existing lighting pole with a reinforced lighting pole that can also function as a telecommunication facility. This subclause is pragmatic, with an allowance for a slightly bulkier pole without the need for resource consent (although the structure would still need to comply with any conditions relating to safety imposed under the road-opening notice).

(2) This condition applies if the addition of an antenna makes a structure into a replacement utility structure in a road reserve. The height of the replacement utility structure must be no more than the original utility structure’s highest point plus the lesser of 3 m or 30%.

In simple terms:

• if the height of the original structure is less than 10 metres, the maximum height increase is 30 per cent
• if the height of the original structure is 10 metres or higher, the maximum height increase is 3 metres.

The examples below are courtesy of Vodafone New Zealand and show typical antenna additions to lighting standards.

Figure 4: Typical antenna additions to lighting standards

 

 

Note: drawings are not to scale.

Examples of typical antenna additions to existing roadside lighting standards.

Once there is one antenna addition, you then have a replacement utility structure. New works cannot be any higher (as per condition 3 below), and any further additions increasing height would require resource consent. Note that the height measurement was not intended to include the likes of small whip antenna and GPS locators that are often located on the top of antenna installations.

(3) This condition applies if an antenna on a replacement utility structure in a road reserve is replaced. The combined height of the replacement utility structure and the replacement antenna must be no more than the combined height of the replacement utility structure and the original antenna. This essentially means that the overall height of the structure and antenna must not increase where replacements occur.

An example would be where a technological change requires an existing antenna to be replaced. The new antenna could be slightly heavier and require a new support structure. Under the Manukau City District Plan, resource consent would be required as a restricted discretionary activity. However, following the introduction of the NES it will be permitted.

(4)     This condition applies if an antenna is added or replaced under subclause (2) or (3). The antenna – excluding the mount, if there is one, and the shroud, if there is one, and ancillary equipment, if there is any – must fit within the dimensions of a cylindrical shape that, when measured along the centre line of the original utility structure or the replacement utility structure, is no more than 2 m high and no more than 0.5 m in diameter.

Figure 6: Example of adding or replacing an antenna under subclause (2) or (3)

 

A new or replacement antenna must fit within the maximum permitted dimensions of an envelope 2 metres high by 0.5 m in diameter.

An example of when this would be a controlled activity would be a proposal to attach an aerial to an existing utility structure in Wellington that will extend 0.7 metres from the centreline of that pole. The Wellington District Plan currently permits this activity to 1 metre from the pole, but because the NES is more restrictive at 0.5 metres, the activity becomes a controlled activity.

(5) This condition applies if a dish antenna either is added to an original utility structure in a road reserve or a replacement utility structure in a road reserve or replaces an antenna on an original utility structure in a road reserve or a replacement utility structure in a road reserve. The dish antenna must have a diameter of no more than 380 mm, must not protrude from the structure’s centre line by more than 0.6 m, and must be one of only two on the structure.

Figure 7:  Example of installing a dish antenna

 

 

Read a description of this figure

New or replacement dish antennas must number no more than two and must not protrude more than 0.6 metres from the centreline of the structure.

This condition limits the dimensions of replacement antenna structures to those that have minimal visual impact. Where a network operator has been asked by a road-controlling authority to move an existing pole slightly (eg, to improve traffic safety), and no environmental effects would arise from the movement, it is envisaged that this could be considered a replacement structure in terms of the regulations.

3.5     Clause 8: Telecommunication cabinets

The installation of telecommunication equipment cabinets in the road reserve is a permitted activity, subject to specified limitations on their size and location for residential and non-residential areas, and the proximity of cabinets to each another. Where specific values have been identified in the district plan, these will continue to be considered. This will ensure local values, such as protected vegetation, continue to be addressed.

The regulations provide for equitable allocation of space for roadside cabinets by providing a maximum footprint allowance for a location. Discussions with industry representatives indicate that the proportionate allowance for a single cabinet is large enough to provide space for co‑location of more than one service provider’s equipment within that cabinet.

Telecommunication cabinets in road reserves are permitted activities subject to the following restrictions (see Table 5).

Table 5: Restrictions on telecommunication cabinets in road reserves

1. All maximum heights refer to the height of the cabinet and do not include the height of the concrete plinth to which they are affixed.
2. The standard does not specify the site or location, because legal road is not specifically a site according to the RMA or most district plan definitions. The interpretation is that it relates to a site adjoining legal road.
3. The justification is found in the Cabinet paper agreeing to the preparation of the NES.

The regulations prescribe a maximum footprint for any one location, and any one cabinet may only take up a set proportion of that space, with the remainder of the allowance available for a further cabinet or cabinets. This aims to avoid a situation where the first cabinet installed by an operator would use up all of the permitted development allowance, thereby forcing subsequent operators to apply for resource consents before installing further cabinets. The standard is considered to be a pragmatic solution to encouraging co-location within the “first-come-first-served” framework of the RMA.

The NES provisions relating to cabinets were not intended to apply to small customer connection pedestals or pillars, which provide the connection point between the distribution cable in the road and a customer’s lead-in cable.

The term “primarily residential” is intended to capture the following situations:

• zoned residential
• predominant use residential
• residential in character.

It is not intended that the “primarily residential” provisions apply to mixed-use zones where both commercial and residential activities are provided for as a permitted activity.

The specific conditions controlling cabinets are outlined below.

Clause 8: Conditions controlling cabinets

(1) This condition applies if a cabinet is located by itself in a road reserve next to land that a relevant district plan or proposed district plan classifies as primarily for residential activities. The cabinet’s footprint must be no more than 1.4 m². The cabinet must be no higher than the height of the concrete foundation plinth, if there is one, plus 1.8 m.

Typically the cabinets will be flush with the ground, but there will be instances where this is not possible, such as where there is sloping ground. In those cases a portion of the plinth will be visible. The height should be measured from the natural ground level.

(2) This condition applies if two or more cabinets are located at the same site in a road reserve next to land that a relevant district plan or proposed district plan classifies as primarily for residential activities. Each cabinet’s footprint must be no more than 1.4 m². The total footprint of all the cabinets must be no more than 1.8 m². The distance between each cabinet and the cabinet or cabinets closest to it must be no more than 500 mm. The cabinets must be no higher than the height of the concrete foundation plinths, if there are any, plus 900 mm, with the exception that one cabinet may be as high as the height of the concrete foundation plinth, if there is one, plus 1.8 m.

Figure 8: Example of two cabinets located in the road reserve at the same site next to primarily residential land

 

 

Read a description of this figure

This diagramme provides a graphical representation of clauses 8(1) and 8(2).

The distance between two cabinets should be no greater than 500 millimetres in all instances to qualify as a permitted activity.

Figure 9: Example showing multiple cabinets as permitted activity

 

 

Read a description of this figure

A graphical representation illustrating the maximum footprint allowance of 1.8 m2 split between four small cabinets.

The examples above show theoretical examples of co-location and the sizes that can be put in place. However, there are many different combinations that could apply so long as the total footprint is no more than 1.8 square metres, the maximum height of the first cabinet is less than 1.8 metres, with the remaining cabinets being no more than 900 millimetres, and there is a separation distance less than 500 millimetres.

Replacement of existing cabinets – temporary activities

Upgrading networks may require the replacement of an existing cabinet or cabinets with new ones. To ensure continuity of services to customers and minimise disruption, telecommunication suppliers often install a new cabinet alongside or near the existing one. The connections are then transferred from the existing cabinet to the new one in a process known as “cutting over”. The old cabinet is then removed, usually within three months of commencing construction work on the new cabinet.

There are conflicting views on whether the temporary location of two cabinets or sets of cabinets would be permitted under the regulations. In this situation a pragmatic approach is recommended.

On the face of it, the installation (albeit temporary) of new cabinets adjacent to existing cabinets to facilitate a changeover would not comply with the minimum separation distance of 30 metres for cabinets over 900 millimetres. The temporary situation could arguably require resource consent. However, there is a strong case for considering the temporary situation as ancillary to the activity of installing and operating the new telecommunication cabinet. Furthermore, it is not the intent of the regulations to require resource consent for the temporary changeover period. Requiring consent would in fact defeat the intent of the regulations, which is to provide for new or upgraded telecommunication cabinets as permitted activities where they comply with the performance specifications in the regulations.

It is suggested that the size and separation requirements be applied to the completed arrangement only. It is not intended that the regulations be applied to temporary changeover situations.

(3) This condition applies if a cabinet is located by itself in a road reserve, or if two or more cabinets are located at the same site in a road reserve, next to land that a relevant district plan or proposed district plan does not classify as primarily for residential activities. The total footprint of all the cabinets must be no more than 2 m². Each cabinet must be no higher than the height of the concrete foundation plinth, if there is one, plus 2 m.

This relates to non-residential sites where the dimensions can be larger on the basis that the road reserve adjoining non-residential sites is not as sensitive in terms of residential amenity.

(4) This condition applies if two or more cabinets are located at different sites in the road reserve, on the same side of the road as one another, and next to land that a relevant district plan or proposed district plan either does or does not classify as primarily for residential activities and are higher than the height of the concrete foundation plinths, if there are any, plus 900 mm. Each cabinet must be at least 30 m from each other cabinet that is higher than the height of the concrete foundation plinth, if there is one, plus 900 mm. The 30 m must be measured between the two closest points of the cabinets.

Figure 11: Minimum separation of telecommunication cabinets in the road reserve

 

 

A graphical representation illustrating the minimum separation distance of 30 metres required between telecommunication cabinets greater than 900 mm in height.

Note: The separation distance of 30 metres only applies between two or more telecommunication cabinets. The definition of “cabinet” in the regulations is: “Cabinet means a casing around equipment that is necessary to operate a telecommunication network”.

Failure to comply with any of the dimensions and setbacks outlined in this condition is a controlled activity infringement if the activity would have been permitted under the relevant district plan rules. If the activity was not permitted under the relevant district plan, then the relevant rules and status of that plan will apply. The heritage, amenity and tree rules of district plans are also relevant and are discussed previously in section 3.3 of this guide.

If the activity is considered a controlled activity, under the regulations control is limited to those conditions in regulations 6 to 9 with which the facility does not comply. An example of this is where two cabinets are to be constructed 15 metres from each other, both measuring 1.8 metres in height. The 30-metre separation clause of the regulations is infringed, but would otherwise be permitted in the Waitakere City District Plan. The cabinet would therefore be considered a controlled activity. Control would be limited to specifying the separation distance in the resource consent. The same infringement would, however, be considered a discretionary activity under the Auckland City District Plan (Isthmus Section).

The 30-metre separation distance only applies to other telecommunication cabinets located on the same side of the road being considered.

(5) This condition applies if a cabinet is located in a road reserve next to land that a relevant district plan or proposed district plan either does or does not classify as primarily for residential activities and requires a power supply. The power supply must be located either below ground or within the cabinet.

This condition relates to underground cabling for any power supply and is included to prevent a proliferation of the small junction boxes that otherwise could be found next to utility cabinets. These are often considered de minimis (negligible), but can present a trip hazard to pedestrians.

Where an existing cabinet gets its power supply from an existing above-ground power pillar, and that cabinet is replaced by a new cabinet, it is intended that the existing power supply would need to be relocated underground to meet this condition.

3.6     Clause 9: Noise

Noise can be an issue for the roadside location of cabinets, particularly where they are adjacent to residential sites. Clause 9 of the regulations refers to the noise emissions from the cabinets and the way that noise is measured. To ensure consistency, the relevant New Zealand standard (NZS 6801: 2008)for noise measurement must be met. Levels of noise have been taken from the reasonably accepted definitions nationwide of “daytime” and “night-time” hours.

Cooling fans within the cabinets do generate noise, the level of which is related to a combination of air temperature and usage. As a result, the noise generated will usually be greater during the day, when both air temperature and usage are higher. Depending on the receiving environment, the ambient background noise from other sources, such as road traffic, will also be at its greatest during the day.

There has, however, been a lack of consistency among councils regarding the maximum permitted levels of noise and where the noise is to be measured. The regulation has set the limits for noise, the method of measurement (NZS 6801: 2008) and where the measurements will take place.

Clause 9: Conditions controlling noise

(1) This condition applies if a cabinet is located in a road reserve in an area in which a relevant district plan or proposed district plan allows residential activities. The noise from the cabinet must not exceed –

(a)     50 dB LAeq (5 min) between 7 am and 10 pm;
(b)     40 dB LAeq (5 min) between the 10 pm referred to in paragraph (a) and the following 7 am;
(c)     65 dB LAFmax between the 10 pm referred to in paragraph (a) and the following 7 am.

(2) This condition applies if a cabinet is located in a road reserve in an area in which a relevant district plan or proposed district plan does not allow residential activities. The noise from the cabinet must not exceed –

(a)     60 dB LAeq (5 min) at any time;
(b)     65 dB LAFmax between 10 pm and the following 7 am.

Sub-clauses 1 and 2 set noise rules for cabinets based on whether or not the cabinet is located in a road reserve, in areas where a district plan allows residential activities. It is intended that “allowing residential activities” means a residential zone. It is not intended to capture situations in business zones where there is provision for a caretaker or manager’s residence on a commercial/industrial site, or in mixed-use zones where commercial and residential activities are permitted and/or where noise rules require insulation for noise-sensitive activities, including residential uses. The intention of sub-clause 1 is that it only applies where residential activity in general is allowed for (and not other more noisy activities), and the relevant district plan objectives and policies seek to maintain and enhance residential amenity values, or similar, as a principle objective. See Appendix D for descriptions of the terms LAeq and LAFmax.

In Wellington, for example, the central area and suburban centres, as well as residential zones, allow residential activities as of right. It is intended that sub-clause 1 capture the residential areas only and not the central area or suburban centre mixed-use zones, which have higher permitted activity noise levels and permit commercial and industrial activities in addition to residential activities. This will ensure the noise provisions of the NES correspond with most plans’ distinctions between the expectation for lower noise in sensitive areas and the higher expectations for town centres and industrial areas.

The maximum noise level stipulated in the regulations is 50 dB LAeq (5 min) during the day, reducing to 40 dB LAeq (5 min) at night (between the hours of 10 pm and 7 am), with that level having an additional control of 65 dB LAFmax. A 50 dB LAeq (5 min) and 65 dB LAFmax means that the noise levels measured and averaged over a 5-minute (LAeq 5 min) period must not exceed 50 dB, and that a single noise event effectively measured instantaneously (LAFmax) must not exceed 65 dB. The definitions of LAeq and LAFmax have been reproduced from NZS 6801: 2008, and a further explanation is included in Appendix C.

However, some people have difficulty understanding what 50 or 65, or the associated letters, mean. By way of comparison, a level of 60 dB is a normal speech level, and a quiet office or home at night is roughly 40 dB. NZ Occupational, Safety and Health provides further guidance.

Having set noise levels will ensure national consistency and will avoid instances where acoustic barriers may be required in order to meet the rules of the district plan but may be detrimental to the visual amenity of an area.

(3) The noise from the cabinet must be measured and assessed at one of the following points:

(a)     if the side of a building containing a habitable room is within 4 m of the closest boundary of the road reserve, the noise must be measured –

(i)      at a point 1 m from the side of the building; or
(ii)     at a point in the plane of the side of the building:

(b)     in any other case, the noise must be measured at a point that is –

(i)      at least 3 m from the cabinet; and
(ii)     within the legal boundary of land next to the part of the road reserve where the cabinet is located.

Where district plans required noise readings to be taken from the front boundary of the site it has been difficult for the cabinets to meet the maximum noise levels, particularly the night-time noise levels, which are generally lower than during the day. Furthermore, most district plans require a front-yard setback of around 3 to 4 metres in residential areas, usually to ensure dwellings do not dominate the street. In rural areas that setback is even further and generally not less than 10 metres. In many of these rural settings a notional boundary within the site is used to measure noise. This concept has been transferred to the regulations.

A practical approach has been taken whereby noise can be measured at least 3 metres inside the boundary of the residential property adjacent to the location of the cabinet.

There are instances, particularly in older suburbs and high-density areas, where dwellings currently exist or are permitted to be constructed closer than 4 metres from the boundary. In those instances, noise measurements will be taken 1 metre from the dwelling or the plane (front façade) of the dwelling. This applies only if that closest point is a habitable space. An example of where this could occur would be in Residential 2, 3 or 4 of the Dunedin City District Plan, where 3 metres is the front-yard setback.

The point of measurement for noise is to be in either the vertical or horizontal plane, to address the situation where habitable rooms may be one or more storeys above street level, but in plan view adjoin the boundary. The measurement point used where there is commercial or car-parking activity on lower floors in an apartment building constructed up to the front boundary and a cabinet is constructed close to the property boundary will be a point 1 metre from the closest habitable room within the upper levels of the apartment building.

(4) The noise from the cabinet must be measured in accordance with NZS 6801: 2008 Acoustics – Measurement of Environmental Sound, the measurement must be adjusted in accordance with NZS 6801: 2008 Acoustics – Measurement of Environmental Sound to a free field incident sound level, and the adjusted measurement must be assessed in accordance with NZS 6802: 2008 Acoustics – Environmental Noise.

The New Zealand standards for measuring noise have been accepted by the acoustic community and the Environment Court, and adherence to them ensures consistency across the country.