2. Why Do We Need National Environmental Standards for Telecommunications?

2.1 Infrastructure and economic transformation

In May 2005 the Government released the Digital Strategy (New Zealand Government, 2005), which sets out the Government’s aspirations and priorities for ensuring all New Zealanders get the benefits of telecommunications. Through the Digital Strategy, the Government has recognised not only the direct benefits of better access to modern telecommunications, but also broader indirect environmental benefits that will assist sustainable development, such as improving the efficiency of energy use and supply (eg, flexible working styles, such as working from home, which result in reduced dependence on private motor vehicles to travel to places of employment).

In March 2006 the Government agreed that economic transformation would be one of the key priorities for the next decade. Two sub-themes of economic transformation relevant to telecommunications are world-class infrastructure and environmental sustainability. The Government’s objective is to ensure telecommunications services (including broadband) are in the top half of OECD performance by 2010.

The critical issues for telecommunications are limited competition and investment in telecommunications infrastructure, low levels of telecommunications capability, and the lack of affordable high-speed telecommunications infrastructure, all of which are constraining the development and introduction of advanced technology and business applications.

2.2 Legislative and policy context

The RMA is not the only legislation applicable to the deployment of telecommunications infrastructure. When considering whether to establish a national environmental standard, the effect of other relevant legislation needs to be taken into account. In particular, where a national environmental standard is being proposed to facilitate the erection of structures alongside roads, there are several statutes that need to be considered (Simpson Grierson, 2003).

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 proposed national environmental standards) 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 national environmental standards that do not duplicate the purpose and functions of provisions under the Telecommunications Act.

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 (LGA) 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 New Zealand.

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 provisions in the LGA 2002 that offer an alternative way to addressing the matters which are proposed to be addressed by the national environmental standards for telecommunications equipment.

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 the matters the national environmental standards for telecommunications equipment is intended to address.

2.3 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 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, telecommunication activities are most commonly provided for by either designation or by activity-based rules. In total, 66 (77%) regional and district plans contain rules relating to telecommunication 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, but that 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 every district plan from across the country 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 the road reserve, and some do not contain any rules for radio-frequency fields or rely on out-of-date standards.

The Telecommunications Industry Reference Group considered a range of possible policy options to address these inconsistencies in district plans, including doing nothing, legislative change, non-statutory methods, national policy statements and national environmental standards. After considering the various options, the Industry Reference Group considered that national environmental standards would be the most appropriate RMA-based mechanism to address the problem currently being faced, because they would be able to achieve national consistency and a greater level of certainty for both local government and the telecommunications industry.

The Industry Reference Group recommended developing a suite of four standards to provide for specific elements of the telecommunications infrastructure. The following section describes the four proposed standards in more detail.