Two Telecommunications Discussions Underway

This year there have been two Discussion Documents released by Government relating to the telecommunications sector on: the National Environmental Standard for Telecommunications Facilities (NESTF); and Land Access for Telecommunications Installations. 

Recently announced are the proposed changes to the NESTF foreshadowed in the first Discussion Document. By way of background, the existing NESTF came into effect in 2008. It aimed to ensure a consistent planning framework for low environmental impact installations in the road reserve, as well as radiofrequency fields for all facilities operated by network operators licensed under the Telecommunications Act 2001.

Since the existing NESTF was passed, there have been rapid developments in the sector. Significant telecommunications infrastructure rollouts include the Ultra-Fast Broadband, 4G mobile and the Rural Broadband Initiative. These rollouts have been somewhat constrained by the need to obtain resource consents for a range of infrastructure and activities not covered by the NESTF, including telecommunication cables, deploying fibre, upgrading and co-locating antennas and masts, installing new rural sites, and earthworks associated with those.

Unfortunately, a majority of submissions received on the Discussion Document were not on the proposals contained within it. Rather, many submissions focussed on the perceived health effects of radiofrequency exposure. They sought review of the maximum radiofrequency field exposure limit incorporated by reference in the NESTF. The current exposure limit had already been confirmed in a 2013 review of the NESTF. The Discussion Document had made it clear that the radiofrequency limits were not within scope for this current review. The only change proposed in the radio frequency area is to reference a new updated international exposure standard in the new NESTF.

The most common ‘in scope’ submissions related to the adverse visual effects of telecommunications infrastructure. As a result, the proposed changes seek to limit the effect of cumulative infrastructure in the road reserve and include maximum size envelopes for ancillary type infrastructure. Ultimately, if there is a clash between the NESTF and the district plan rules on visual amenity values, then the district plan rules will prevail.

Another area where the new NESTF allows district plans to prevail is where the plan provides more stringent rules than the NESTF to manage areas of historic heritage significance including areas of cultural significance. Iwi submitters were concerned about the inadequacy of district plans to provide protection for particular cultural concerns. However, a cultural report recently commissioned found this was unlikely to be a widespread issue and confirmed that the potential for significant adverse cultural effects would vary from area to area. Ultimately, it was not considered possible for an NES to resolve concerns with the adequacy or otherwise of district plans to provide protection for cultural concerns. However, to assist parties an updated User Guide providing guidance on this issue will accompany the new NESTF.

The current NESTF has no provision for earthworks. Earthworks will become permitted under the new NESTF provided certain controls dealing with sediment, dust, and erosion can be met. The current NESTF does not apply to telecommunication cables. Provided restrictions on diameter can be met, aerial cabling where it already exists will be permitted. Underground telecommunications cables, as well as any ancillary equipment required, will also be permitted. Due to its minor visual effects, most district plans have already incentivised underground installation.

The crossover of electricity and telecommunications network operators, the subject of industry submissions, was considered not to be significant at this time. Therefore, this issue has been deferred for the next NESTF review due in 5 years.

Overall, the proposed changes are aimed at streamlining the NESTF to reduce the need for telecommunications operators to obtain a range of resource consents. It is important to note that this NESTF only deals with infrastructure in the road reserve, not private land. The NESTF still requires the consent of the land or building owner. It is this aspect that led to Chorus requesting regulatory change from Parliament earlier this year, and led to a second Discussion Document being released.

Chorus seeks assistance to streamline its UFB rollout to multi unit complexes (MUCs) and properties sharing a driveway where a significant percentage have experienced severe delays in and denial of UFB installation. The proposal to facilitate efficient connections is to change the way permission to access private property is sought by effectively limiting the grounds a landowner can prevent a UFB connection.

To help extend the UFB network to rural areas, the Discussion Document proposes the Government be allowed to expand the network by way of a new statutory right in rural or remote communities where obtaining easements over private land would otherwise be uneconomic.  

Another proposal to increase the deployment of fibre is allowing fibre to utilise existing utility infrastructure such as electricity poles to avoid the need for new negotiations about access with private owners where the impact will be low.

Similarly, rights to access private property for the purposes of ongoing maintenance of UFB are proposed to be brought into line with copper infrastructure.

An efficient dispute resolution process is proposed for application of the new rules.

Submissions are now closed on the second Discussion Document. We will keep you updated on the ensuing proposals, and of any legislative changes in this sector as they progress.

Posted on September 30, 2015 .