ROAD MANAGEMENT: Options for Reform Ministry of TransportMaurice Williamson Transport
The purpose of this paper is to stimulate debate on how to improve the way in which we manage our roads. While there are many good safety and traffic management practices in place today, there is no consistent approach across the roading network in this country.
This document sets out five options for a legal framework that would:
- Clarify and streamline existing roading legislation;
- Provide a single regime to cover local authorities, Transit New Zealand and any future private sector roading providers; and
- Put in place a formal requirement to establish a clear and accountable duty on all road controlling authorities to operate a safe and efficient roading system.
The status quo is also listed as a further option for consideration.
The five options range from a detailed legislative prescriptive regime to one based on the Health and Safety Empolyment Act approach. Some of the options would formalise and expand on some existing practices. It is possible to combine elements of most options. The Ministry does not hold a firm view as to which option or combination of options should ultimatley be adopted.
This paper does not contain specific policy recommendations nor does it deal with questions of funding.
New Zealand's roading legislation comprises two parallel regimes - Part XXI of the Local Government Act 1974 and the Transit New Zealand Act 1989. The approach, in particular that in the Local Government Act, is out dated, contains duplications and is inconsistent. The removal of Transit New Zealand's funding function to Transfund, on 1 July 1996, also raises the question of whether Transit New Zealand still requires a separate legislative regime. In the light of the review of the Local Government Act currently being carried out by the Department of Internal Affairs, it is timely to re-examine the roading provisions of the Local Government Act and those of the Transit New Zealand Act, with a view to consolidating them.
In Transport Directions 1994-1999 the Ministry set a goal to ensure that the transport sector would operate in a commercial environment. One of the initiatives toward achieving this goal was the promotion of private sector investment in, and management of, roading infrastructure. However, a Land Transport Pricing Study report has concluded that the law at present does not cater adequately for the possibility of private sector provision and management of roading. The report recommended that roading legislation should not distinguish between private and public sector roading providers.
While the Transit New Zealand Act requires Transit New Zealand to operate a safe and efficient State highway system, the Local Government Act does not impose a clear duty on territorial authorities to adopt good road and traffic management practices. The fact that much has been achieved in this area, and continues to be achieved, is thanks only to the dedication of key players. However, there are concerns that safety standards are not always as high as is desirable, and that the level of commitment to good traffic management practices varies between road controlling authorities. Privately owned roads open to the public are generally not subject to any safety standards. A mechanism is required to promote a high and consistent standard of safety.
In the strategy document Transport Directions 1994-1999 the Ministry of Transport announced its intention to:
- review the regulatory structures in order to rationalise and simplify the system. This will be carried out in conjunction with proposals for the introduction of safety audit in roading infrastructure management.
The management of New Zealand's roading system has seen a number of significant structural changes in recent years. In 1989 Transit New Zealand was established to manage the State highways and distribute road funding to local authorities. In the same year local authorities themselves were reorganised, achieving important economies of scale. Since then the system of competitive pricing procedures governing the spending of Transit New Zealand funding has been introduced on State highways and gradually extended to local authority roads. Finally, in July this year, Transit New Zealand's funding function passed to a new agency, Transfund.
Other changes may also arise if the private sector plays a greater role in the provision and management of roading.
Despite the institutional changes that have taken place the law governing roading management has remained largely unchanged. Accordingly, it is timely to review this legislation to determine whether it is still capable of meeting the demands now being placed on it and which could be placed on it in the future.
1.1 Intended Readership and Context
This discussion paper is intended for members of local authorities, managers in road controlling authorities, traffic engineers and those with an interest in the roading system, in particular road safety. The document focuses on legal issues and management systems, and does not address questions of funding.
Six other discussion documents have recently been circulated by the Ministry. Road funding and such related matters as user charges are being examined in the context of the five part Land Transport Pricing Study (LTPS). The LTPS aims are:
- To measure road costs (in particular, environmental and safety costs) for long term efficiency and sustainability;
- To enable proper cost comparisons to be made between road and other transport modes, thus allowing efficient transport use decisions; and
- To enable proper allocation of financial and other resources to roading and other transport modes within the total economy.
Outside the framework of the LTPS, a Ministry discussion document The investigation and reporting of road accidents was released in March 1996. It outlines the current system of road crash investigation and explores opportunities for improving the system, in particular by extending the jurisdiction of the Transport Accident Investigation Commission to include certain road crashes. Crash investigation is one of the tools of an effective road management system. The actions implemented as part of that review will need to be considered when formulating policy recommendations arising from consultations on this document.
1.2 Arrangement of document
Chapter two discusses current best practice in providing a safe and efficient roading system. It concludes that much has been achieved to date. It notes that the achievements aredue in the main to the pro-active attitudes of key players, as the legislation, in particular that covering local authority roads, largely ignores safety and there is little specific duty placed on managers to adopt good practices. The chapter concludes that it is risky, particularly in view of the trade-offs which some road controlling authorities may face, to leave such matters to chance.
Chapter three reviews the problems identified in the previous chapter and proposes a number of criteria for analysing possible solutions to these problems. Chapter four examines five options for enhancing the road management regime and analyses each in terms of the criteria set out in chapter three. A discussion on the status quo is also provided. Chapter five provides a summary of how well each option measures up against the principles presented in chapter three. The chapter also sets out the compliance mechanisms that could be applied to ensure that our roads are managed safely.
Chapter six provides examples of the powers and duties that road controlling authorities currently have. Consideration should be given to which of these powers and duties will need to be retained, or enhanced, in choosing the most appropriate management regime.
Finally, chapter seven and eight detail how the issues in this document will be progressed and the process for consultation.
1.3 Where to from here?
The development of a new road management regime will take some time. It is intended that, once submissions on this discussion document have been received, the Ministry, having reviewed submissions on this document, will issue a further discussion paper developing in greater detail the option, or combination of options, to be pursued. The Ministry will then be in a position to develop detailed policy recommendations for the Government.
If you or your organisation wish to make a written submission on any aspect of this Road Management Review Discussion Document, please send your comments by Thursday 31st July 1997 to:
MINISTRY OF TRANSPORT
Road Management Review
P O Box 3014
2.0 Analysis of the Existing Road Management Regime
In general terms, it is suggested that a road management regime should be capable of delivering a roading network which offers:
- To individuals, safe and efficient access to other individuals, to the workplace, to public and recreational amenities and to providers of goods and services; and
- To businesses, safe and efficient access to suppliers and markets.
In this context, "efficient" is understood to include the concept of "reasonable cost" so that safety improvements and other improvements (such as capacity) should only be provided when the benefits of providing these improvements outweigh the cost of doing so.
As a first step, this review examines whether the current regime is successfully delivering this level of service.
2.1 Delivering Safe Roading
Over the last few years a number of important initiatives have been taken in the fields of road construction and traffic management to improve the safety of the roading system. These include:
- Crash information systems;
- Crash investigation studies;
- Safety audit of construction projects;
- Safety audit in urban areas; and
- Safety management strategies.
Other initiatives include a greater recognition of safety benefits in the funding process, and the publication of Traffic Safety/ Management Guidelines for road controlling authorities. These initiatives are briefly outlined below:
2.1.1 Crash Information Systems
The Land Transport Safety Authority (LTSA), which has a statutory objective to promote safety in land transport at reasonable cost, maintains databases of road crashes, including such details as location and presumed causes. The principal source of information is the Traffic Crash Report filed by the Police. This information is made available to all road controlling authorities.
2.1.2 Crash investigation studies
On the basis of data provided from the Crash Information System databases, sites with a significant crash history (in general, five or more crashes of the same type) are identified as "accident black spots". Every three to five years, depending on the frequency of crashes, a joint crash investigation study is carried out on the roads of each road controlling authority.
A team, often led by an independent consultant and usually including the road controlling authority, and the LTSA, visit all the black spot sites within the area under the control of the authority. The team examines the sites and makes recommendations for low cost remedial work.
The LTSA monitors the effect of the remedial work on the crash sites. It reported recently that this work had been responsible for a crash reduction of 26.2% (a decrease of 2,891 crashes) at the investigated sites, resulting in a saving of around $1 billion in economic costs.
2.1.3 Safety audit of construction projects
Transit New Zealand has developed a project-based safety audit procedure to be applied to construction works. A guideline setting out the procedure was issued in 1993. The aim of the procedure was to identify potential problems and take measures to eliminate or reduce them. It was further noted that, while accident black spot investigations were beneficial, it was desirable to prevent the crashes happening in the first place.
The procedure provides for an independent audit team to review a project at four stages - identified as Feasibility Study; Project Assessment; Final Design; and Pre-Opening. The guideline document includes checklists of issues to be considered at various stages of the project.
The audit procedure is compulsory for all State highway projects of a value greater than $5,000,000 and is applied to a sample of 20% of other projects. The procedure is not binding on territorial authorities.
There is no provision for special monitoring of an audited project once it is operational. The project could be included in the general crash investigation monitoring undertaken by the LTSA as described above, and in routine post-construction audits carried out by Transit New Zealand.
2.1.4 Safety Audit in Urban Areas
The Christchurch City Council has developed its own process for auditing traffic engineering projects. This process is based on TNZ guidelines which are derived from UK and Australian models.
It involves audits at five stages of a project:
- Preliminary (prior to a design being drawn up);
- Design Stage;
- Audit of Design Plans;
- Pre-Opening Audit; and
- Post Construction Audit (this provides for monitoring up to three years after the opening of the project).
Manukau City Council has adopted a similar approach.
The safety audit procedures described above apply only to individual projects, and essentially terminate once the project has been completed.
A systems approach (as used in the rail and civil aviation sectors) requires that auditing be continuous: ie that a system be permanently in place to cover not only new projects but also operational matters. Transit New Zealand has in recent years been working on such a system.
2.1.5 Safety Management Strategies
Transit New Zealand has developed a "safety management strategy" designed to cover a network of roads as a permanent monitoring process. It is intended to be a comprehensive approach to safety issues, and instruments such as crash investigations and project safety audit will be incorporated into its framework. The strategy is the responsibility of the network management consultants - the contractors responsible for day to day management of the State highways.
The safety management strategy is based on a continuing process of inspections and performance monitoring. It comprises the following main components:
- Information requirements;
- Identification of Safety Problems;
- Work Programming; and
- Safety Intervention Strategies.
Bidders for network management contracts are required to develop a draft strategy as part of their tender proposals.
In Transit New Zealand's Canterbury district, where a version of the strategy has been in place for some years, an informal network of contacts ("a crash reporting network") has been built up to supplement the information on the LTSA crash database derived from the Traffic Crash Reports. In addition, a system has been established to anticipate the formal black spot investigations by taking low cost action if two crashes with similar characteristics are identified at one site. Problems requiring greater remedial work are reported to the road controlling authority for possible inclusion in future works programmes. The strategy provides for a "deficiency database" listing problem areas to be set up. A copy of a flow chart, setting out this version of the Safety Management Strategy is attached as Appendix one.
A significant difference between this and the project-based safety audit is that this does not rely on external checking, but requires the contractor to perform its own monitoring. This resembles the "safety system" approach used in the rail and aviation sectors.
2.1.6 Other Initiatives
Proposals for road construction projects are assessed according to a process which takes into account their potential for reducing road crash facilities and injuries. The Statistical value of life used in these calculations was increased by nearly ten fold in April 1991. This has had the effect of giving much greater priority to projects which have road safety benefits. The statistical value of life is updated regularly and now stands at $2.11 million.
The LTSA, in consultation with Transit New Zealand and local authorities, has published a set of voluntary guidelines on best practices in traffic management. It is hoped that these guidelines will improve the quality and consistency of traffic management across the country.
2.2 Performance of the Existing Regime
In 1995 there were 581 fatalities, 3,153 serious injuries, and 13,700 minor injuries on New Zealand roads. The total estimated social cost is in the order of $2.9 billion. Road factors (that is, engineering standards, the nature of signage and road furniture and traffic management generally) have been identified as a contributing cause in approximately 10% of road crashes. Therefore road crash statistics can provide an indication as to whether the road management regime, and in particular the measures described above, are successfully delivering a fair level of safety. In 1993 New Zealand ranked 11th out of 24 OECD countries in terms of deaths per 10,000 vehicles with a rate of 2.7, more than twice the top ranking country, the United Kingdom, with a rate of 1.3. There are of course many other causes of road crashes such as speeding and drink driving. Also some countries collect their statistics in a way which shows their performance in a more favourable light. Nevertheless, with a rate so much higher than the best performing country, all factors in crashes, including road factors, require close examination.
Furthermore, the Peer Review on Traffic Enforcement carried out by representatives of Australian State and Federal Police made the following comments on road markings and signage in New Zealand:
"Whilst travelling around both islands, the Group was concerned that the road markings and the signage was less than the standard that Group members were accustomed to in Australia. This included single broken lines going around blind corners and over hills with restricted vision and poor standard of speed limit signs."
2.3 Shortcomings of the Existing System
Although the statistics show that New Zealand is improving its road safety record, the existing legislative framework presents a number of risks to future performance of this country's roading system. Principally, this arises from the failure of the legislation to place a clear duty on managers involved in infrastructure management (or offer incentives to them) to give priority to safety and good traffic management practices. In fact, the measures described above are thanks only to initiatives taken by some major road controlling authorities. To that extent, these practices are vulnerable to future structural changes. There would be clear benefits in "locking in" these initiatives.
The lack of legal provision for traffic engineering standards can create other problems as well. One example is the inconsistency in the road environment that can be experienced when travelling on similar roads around the country. This often arises from managers and engineers adopting, on similar roads, slightly different approaches to signage, road furniture, shoulder width and traffic management generally. An example of this, which is often encountered, is inconsistent posting of advisory speeds for corners and other hazards. Often the posted speed allows for some margin, but occasionally the posted speed is the absolute maximum.
Each approach may be safe in itself, but the variation between them can confuse motorists and thus create hazards. There would be considerable benefits in imposing a greater degree of consistency between road controlling authorities.
There are a number of other features in the present legal regime which are not helpful to the effective management of the roading system, both now and in the future. These are:
- There is no single, clear comprehensive set of legal provisions governing roading management;
- Accountability for road and traffic management outcomes is unclear
- The approach of the legislation is generally out of date; some provisions are very cumbersome and difficult to update; and
- The regime makes no allowance for the private sector provision and management of roading, which may become of increasing importance in future.
These issues are described in greater detail below.
2.3.1 No single comprehensive set of provisions
Provisions governing safety standards and traffic management practices on our roads are a mixture of statutory requirements, regulations, rules, non-binding guidelines and informal requirements tied to funding.
There is no comprehensive body of legal provisions specifying what safe roads are and whose responsibility it is to provide them.
The fragmented and incomplete nature of these provisions contains certain risks. These are:
- Decision makers may not always take into account the safety implications of a decision or a course of action;
- The system often relies on a commitment by road controlling authorities to good practice rather than a specific obligation to meet certain standards; and
- Without a specific obligation, it may not always be possible to defend standards against conflicting interests.
A single, comprehensive set of provisions would clarify the duties of participants in the sector, and highlight accountabilities more effectively.
It could be argued that a single regime would be inappropriate, as there are a number of institutional differences between Transit New Zealand (a Crown entity), elected local authorities and private sector operators. However, experience elsewhere has shown that a single regime can be applied successfully to all participants in a sector. For example, in civil aviation the requirement to put in place a safety system (described further below), is applied to operators of all sizes, and types, and also includes the Airways Corporation and airport companies. This regime can work because it is flexible as to the nature of the safety system and does not simply impose blanket specifications.
A single regime reduces the risk of inconsistencies and distortions in the sector. An example, in the roading area is that, as mentioned above, Transit New Zealand is required to carry out safety audits on certain categories of project, while other road controlling authorities are not required to do so.
Briefly, the existing legal regime is as follows:
- The physical provision of roading is governed by the Local Government Act 1974 and the Transit New Zealand Act 1989.
Part XXI of the Local Government Act sets out territorial authorities' roading functions. It does not impose a general duty on territorial authorities to build and provide safe roads. Section 353 (General Safety Provisions as to Roads) appears to relate largely to safety during road repairs. The Local Government Act is quite specific on some aspects of road construction (for example, section 325 on road width and section 329 on gradient), but is silent on others. Overall, it does not provide a comprehensive package of provisions to address road safety.
- The Transit New Zealand Act established Transit New Zealand to manage State highways. The importance of road safety is recognised in Transit New Zealand's principal objective, which is to "operate a safe and efficient State highway system" (section 5, Transit New Zealand Act). However, the Transit New Zealand Act does not provide a detailed framework to help achieve this objective. It is concerned mostly with funding mechanisms and specific powers to build and maintain roads (largely drawn from the Public Works Act 1981 and the repealed National Roads Act 1953). An amendment to the Transit New Zealand Act in 1995 established Transfund, a separate body responsible for distributing road funding to local authorities.
- The Transport Act 1962, the Traffic Regulations 1976 and the Heavy Motor Vehicle Regulations 1974 contain provisions for restricting access to roads by weight or dimension of vehicles.
The Transport Act also contains general provisions, which provide the power for the Minister of Transport to ensure that Transit New Zealand and territorial authorities maintain roads in a safe condition. It provides the Police with the power to take such steps as may be reasonably practicable to eliminate or reduce any hazard to the safety of traffic. The Act also provides for the LTSA to approve the use of traffic control signs, lights, notices and markings for experimental purposes.
- The Electricity Act 1992, the Gas Act 1992, and the Telecommunications Act 1987 empower utilities to construct and maintain works on roads subject to any reasonable conditions imposed by the road controlling authority.
- The Traffic Regulations 1976 (Parts X to XII) set out the required specifications for road markings, traffic islands, traffic signals and traffic signs, and indicate when they may or should be used.
- "Rules" may be made by the Minister of Transport on roading matters, under the Land Transport Act 1993. They are drafted by the LTSA, on the Minister's behalf, in consultation with the industry and the general public. Rules are "plain English" legislation designed to be more accessible to users than traditional regulations. At present, Parliament is considering legislation to give the Minister the power to make a Rule on setting speed limits.
Rules may cover a wide range of matters in the land transport sector, in particular relating to technical requirements and standards. These may apply not only to vehicles but to the roading infrastructure. The LTSA plans to begin drafting a Rule on road signs and markings during the 1996-97 financial year. This will incorporate the provisions of the existing Transit New Zealand Road Signs and Marking Manual.
- Engineering standards in relation to roads, have been developed by Transit New Zealand in consultation with territorial authorities. They are however, not legally binding on the territorial authorities. When Transit New Zealand controlled funding to road controlling authorities, it was able to impose these and other standards as a condition of funding (for example, the road signs and marking standards mentioned above). Transfund New Zealand is adopting a similar approach, using section 35 of the Transit New Zealand Act.
- Non-binding "guidelines" for territorial authorities are issued by the LTSA. These deal with such matters as road markings and road furniture, for example lights, signs, and barriers. Approximately three guidelines per year are issued, and about a dozen have been issued so far. The LTSA audits territorial authorities and Transit New Zealand on a random basis to monitor compliance with the guidelines.
- The National Road Safety Plan, which is prepared every five years, sets out a general statement of road safety objectives for the medium term. It includes road safety goals, targets, strategies, programmes, a management framework, and the roles and responsibilities of the various road safety groups. It is drawn up by a group of central and local government officials, and non governmental organisations. Although it is not binding, it is intended to influence policy and improve performance.
- The National Land Transport Strategy, is provided for under Part IIIA of the Land Transport Act 1993. The National Land Transport Strategy sets out the Crown's goals in relation to land transport; the policies to achieve these goals; and ways of measuring progress toward these goals. The first strategy is due to be in place by the end of 1997. It is to be prepared in consultation with central and local government and road users. It will set a framework for central and local government agencies (Transit, Transfund, Police, LTSA, regional councils and local authorities and the Ministry of Transport) who will be required to ensure that their actions are not inconsistent with it. The National Land Transport Strategy may set out objectives and measurable targets for road safety.
- The Safety (Administration) Programme is approved every year by the Minister of Transport, under the Transit New Zealand Act. The programme sets out programmes, broken down into project areas, each with a performance measure. The Safety (Administration) Programme generally embodies the goals agreed in the National Road Safety Plan. It specifies funding levels in the following three areas:
- Police road safety enforcement activities;
- LTSA programmes and activities; and
- Community road safety initiatives.
The Safety (Administration) Programme does not provide money for physical road works.
- Regional Land Transport Strategies, are prepared by regional councils under Part IIIA of the Land Transport Act. The strategies set out transport needs for the region concerned, along with ways of responding to them, the role for each transport mode and the ways of achieving these goals. When the National Land Transport Strategy has been developed, Regional Land Transport Strategies must not be inconsistent with it. As in the case of the National Land Transport Strategy, central and local government agencies are required to ensure that their actions are not inconsistent with Regional Land Transport Strategies. Regional Land Transport Strategies may include safety related goals.
- Regional councils and territorial authorities produce Road Safety Action Plans, which identify areas for priority action, set road safety targets and propose strategies by which these targets may be achieved. Some regional councils still produce Road Safety Reports although there is no longer a statutory requirement for them.
District plans prepared under the Resource Management Act (1991) and roading programmes prepared under the national land transport programme, also contain road safety elements.
2.3.2 Unclear accountability for road safety and management generally
A large number of organisations are active in the roading sector, representing both central and local government and voluntary agencies. The functions of such bodies in relation to road management often overlap, while responsibilities are fragmented. As a result, accountabilities can be unclear.
Furthermore, many participants in this sector have non-roading responsibilities. A significant example is that of local authorities who have responsibilities to provide services such as water and sewerage systems and public amenities such as libraries and sports facilities.
In addition local authorities are also often keen to promote the development of their community by encouraging residential and industrial subdivisions or major shopping centres. Indeed, councils have an obligation to provide properly for population growth and have a legitimate interest in promoting employment. Clearly urban development can bring significant benefits in the form of increased jobs and improved community amenities. However, such development usually has significant transport implications.,
One view is that when the expenditure pool is limited, it is appropriate that different needs such as roading, building or public health safety be prioritized by directly elected councils in consultation with citizens through annual plans. The Resource Management Act, process, with its provisions for appeals, provides for balancing transport and other urban development needs.
An alternative view is that pressure to fund local amenities may result in important traffic management initiatives being given a lower priority than desirable from a safety point of view. Furthermore, all urban or commercial development is subject to consent from the relevant local authority, exercising its regulatory functions. Such development has significant transport implications, these may include increased truck traffic near industrial subdivisions, congestion around shopping malls and supermarkets and the impact of new development on aterial roads. Sometimes these implications are not given their proper weight, when the costs and benefits of new development projects are being assessed. These trade-offs confronting councils have the potential to compromise traffic management and safety. The opportunity to recourse to the planning tribunal available under the RMA can be protracted and expensive.
The lack of formal accountabilities has a number of implications. As mentioned above, the traffic implications of a major new development may not be taken into account. A further example is that of the crash reduction studies, whose recommendations are not binding. As at January 1996, the recommended remedial work had been reported as completed at only 64% of sites. Although in some cases it appears that the work was not carried out due to lack of funds, in other cases it has been suggested that the road controlling authority had other priorities. Occasionally the road controlling authority had simply neglected to report the completion of the job.
The principal organisations involved in the provision of road management are:
- Territorial authorities and Transit New Zealand. Territorial authorities own and manage nearly 82,000 km of public roads. Transit New Zealand manages the State highways (just over 10,000 km of roads), the majority of which are owned by the Crown.
- In July 1996 Transfund New Zealand took over from Transit New Zealand the responsibility for allocating funding to road controlling authorities. Its principal objective is to "allocate resources to achieve a safe and efficient roading system".
- The Land Transport Safety Authority develops policy on road safety generally (eg driver licensing, speed limits), promotes road safety through a range of educational programmes and develops binding land transport safety standards via the "Rules" process. The LTSA drafts the Safety (Administration) Programme.
Amongst other things, the LTSA maintains a database of crash information and assists some road controlling authorities with investigations of sites with a significant history of road accidents ("black spot investigations"). The LTSA also provides some funding for Road Safety Coordinators employed by some territorial authorities. It also contributes funding via the Safety (Administration) Programme to a number of community projects.
- Regional Councils' Regional Land Transport Committees undertake planning for future transport needs, including the development of Regional Land Transport Strategies.
- The National Road Safety Committee comprises the Chief Executives of the Ministry of Transport, Police, LTSA, Transit New Zealand, and ACC. It monitors performance toward the outcome targets contained in the Safety (Administration) Programme, and develops policy on the basis of this performance. It also has a most useful function in terms of coordinating the Safety (Administration) Programme and ensuring cooperation between the various organisations involved in delivering the Safety (Administration) Programme.
- The National Road Safety Advisory Group comprises the representatives from the organisations on the National Road Safety Committee, plus senior officials from the ACC, the Ministries of Health, Justice and Maori Development, the Local Government Association and non governmental organisations. The aim of the Group is to establish a degree of consensus amongst all the organisations with an interest in road safety. The Group reviews the National Road Safety Plan every five years.
- The Ministry of Transport advises the Minister of Transport on the content of the Safety (Administration) Programme. The Ministry also negotiates and develops the performance agreements between the Minister and the LTSA, TNZ and Transfund New Zealand. It provides policy advice on a range of matters to the Minister. It also acts as a facilitator in the development of the National Land Transport Strategy, which is intended to be in place by late 1997.
- The New Zealand Police are responsible for enforcing legislation governing driver behaviour and vehicle roadworthiness. Police traffic safety activities are specified in the Safety (Administration) Programme.
- The Minister of Transport makes Rules and the National Land Transport Strategy under the Land Transport Act, and approves the Safety (Administration) Programme, under the Transit New Zealand Act.
In all, there are seven Acts, and various regulations, Rules, standards, guidelines, safety plans and land transport strategies which form the current safety regime of our roads. These are implemented via a range of different organisations. The piecemeal nature of this system has led to a situation where there is no clear accountability and where safety issues may be over looked.
2.3.3 Outdated Approach of Existing Legislation
The Local Government Act's roading provisions contain a large amount of detail in some areas and say nothing on other matters that appear to be of at least equal importance. For example, section 319 lists the "General Powers of Councils in respect of Roads". This includes details down to a provision empowering territorial authorities to sell surplus spoil. Other similar provisions are section 330 which empowers a territorial authority to make maps of its roading network, and section 339 which empowers a territorial authority to build bus shelters. These are actions which a territorial authority would be expected to be able to undertake under general powers without being specifically empowered to do so.
The Local Government Act also contains prescriptive provisions such as sections 325 and 329 which specify road width and gradient respectively. The Transit New Zealand Act contains similar detail. The Local Government Act, however, contains little in relation to road safety.
This approach is not only a reflection of an outdated legislative approach but also the consequence of the rather ad hoc way the Acts have developed over a long period.
Current practice is often to specify outcomes in legislation and leave procedures to the discretion of the organisations concerned. The current legislation is generally silent on the matter of outcomes in relation to road safety.
2.3.4 Inadequate Provision for Private Sector Roading
The Ministry of Transport strategy paper Transport Directions 1994-1999 set out a policy goal that the transport sector should operate in a commercial environment to encourage long term cost effective innovation, flexibility, customer service and replacement of assets. A number of measures are proposed to meet this goal, including the divestment (wherever possible and practical) of local authority transport operations and the introduction of National Transport Strategies.
A further measure was the promotion of private sector investment in, and management of, roading infrastructure.
The Government Strategy Statement Toward 2010 stated that "..As the economy grows, pressure on infrastructure will increase. Recognising this the Government has agreed to include land transport as a new strategic priority. Pricing and other policies will be put in place to ensure an efficient level of investment in land transport." The document also noted that "there is scope for private investment in most areas of infrastructure, including some now dominated by public investment, such as roads."
The discussion document Roading As Economic Good released by the Ministry of Transport in December 1995, as part of the Land Transport Pricing Study, included a review of the possibility of private sector involvement in the provision of roading. The document identified the following as possible benefits of private sector management over public sector management:
- Greater pressure on managers to maximise performance and manage risk;
- Greater transparency of costs;
- Better response to consumer demand;
- Less vulnerability to political interference or lobbying;
- Clearer focus on a single goal (instead of having to reconcile conflicting social and economic objectives, for example local development objectives); and
- Reduction of risk to the Crown (provided that no guarantees are offered to the private sector operator).
The document, recognising the benefits that had already been derived through contracting out construction and maintenance, noted that provision and management of roading remained exclusively a public sector responsibility. It suggested that there were benefits from private sector involvement in these areas as well, although it considered that it was unlikely that the private sector would ever play a major role.
The document concluded that these benefits would be achieved only within a regulatory framework which was neutral between the public and private sectors. In other words, a single legal regime should govern the roading activities of territorial authorities, Transit New Zealand and the private sector, to ensure that consistant outcomes are achieved.
It should be noted in passing that land use controls for roading are already largely impartial ("neutral") between public and private sectors (see sections 166 and 167 of the Resource Management Act).
Recently a number of proposals have been floated for the private sector to construct and operate roads. These proposals are being made in areas where the publicly owned network has been perceived as unable to cope with demand. The most serious proposal appears to be the joint announcement of utilities investor Infratil and the Rodney District Council to build a bridge, and approximately 7 kilometres of limited access road, linking the Whangaparaoa Peninsula and the yet to be built extension of Auckland's Northern Motorway. Suggestions are also being made for privately built roads in tourist areas funded by tolls, where the lack of economical traffic volumes is made up for by road users' greater willingness to pay for access.
However, at present, the only specific provision in legislation for privately owned roads relates to roads in subdivisions which are constructed by the property developer and are invariably handed over to the local authority as soon as possible. Aside from this the legislation ignores the possibility of the provision and management of roading by the private sector.
This lack of clarity or certainty is not conducive to the promotion of private sector involvement, as envisaged by Toward 2010. Furthermore, it is not clear what powers if any presently exist to impose safety standards on a privately owned road, if one were established.
3.0 Desired Outcomes of Reform
To review the findings of the previous chapter, the Ministry has concluded that the present regime is characterised by the following shortcomings:
- Generally no legal requirement to adopt management practices promoting safety;
- No single, clear comprehensive set of legal provisions governing roading management, and no obvious justification for separate regimes for Transit New Zealand and the local authorities;
- Accountability for road and traffic management outcomes is unclear;
- Out of date legislation; some provisions being very cumbersome and difficult to update;
- Inadequate provision for private supply of roading.
Accordingly, the Ministry proposes developing a regime to address these concerns. To assist in identifying possible solutions, it has drawn up the following assessment criteria.
3.1 Principles for Road Management Practices
Clarity, certainty, and practicality
The preferred option must have clear objectives and clear accountabilities. Above all, it must be practical to implement and operate. That option must deliver certainty for motorists as well as managers. For example, the preferred option must impose consistent standards (of traffic management systems as well as engineering quality) on comparable roads. Sudden changes in the road environment can confuse drivers and generate serious road safety risks.
While providing consistency on comparable roads, the preferred option must also be capable of being adapted to a diverse range of circumstances. For example, while the principles of the safety regime should apply to all road controlling authorities, safety factors on urban motorways will not be the same as those on lightly trafficked rural roads or suburban streets. The preferred option should also be flexible enough to take account of changes of either a technical or social nature.
Produce good safety outcomes at reasonable cost
The guiding principle of structural and regulatory reforms in the transport sector over recent years has been "safety at reasonable cost". This requires assessments of costs and benefits. The preferred option must be one where the safety benefits outweigh its costs (for example, compliance and economic costs).
Neutrality between different road controlling authorities
The preferred option should accommodate impartially all road controlling authorities or private sector providers.
Accountability for good traffic management outcomes
The preferred option must promote a "safety culture" within the road controlling authorities, and generate a sense of responsibility for safety issues. It should discourage any tendency to trade off cost effective safety and traffic management projects against other claims on resources, where these claims do not deliver greater benefits to the community.
Compatibility with the National Land Transport Strategy
The National Land Transport Strategy will guide policy and funding decisions in the land transport sector. The National Land Transport Strategy, when developed, could include some directions on road safety policy. The option chosen must be able to fit easily within the National Land Transport Strategy framework.
3.2 Transitional Issues
As mentioned above the Ministry, having reviewed submissions on this document, will issue a further discussion paper developing in greater detail the option, or combination of options, to be pursued. This further paper will address the range of transitional issues which will arise. At this early stage it is sufficient to acknowledge that whatever option is chosen, road controlling authorities will need sufficient time to start operating in the new environment. It is noted that when a requirement for a safety system was imposed on rail operators they were given three years in which to produce one.
4.0 Options for Road Management Regime
The Ministry has identified the following five options to address the issues outlined in chapter two above. For the sake of completeness, the status quo is also included:
- Legislative Prescription and Inspection;
- Safety System;
- Performance Based Funding Contract;
- Health and Safety in Employment Act Approach; and
- Status Quo.
Considering the options
Not all of the options are mutually exclusive, and some may be implemented in combination. For example, the safety system approach may be applied in conjunction either with a licensing system, as it is in the rail sector, or in conjunction with a performance-based funding contract. Further, as in the case of the aviation sector, a licensing system may be operated in conjunction with Rules (that is, a legislative element) or, as in the case of the rail sector, without Rules.
From time to time the regulatory regimes applying to various other transport modes have been held out as models for roading and some of these are explored in the following pages. However, these sectors generally have a simpler, more unified institutional structure. In the rail sector for example, one body owns and operates not only almost all of the infrastructure, but also the majority of the rolling stock (and may thus be expected to control the "system")..
By contrast the roading system in New Zealand is complex. No one organisation controls all the "rolling stock" or even a majority of it (around 3 million different motor vehicle owners are listed on the Motor Vehicle Register) and the infrastructure is split amongst at least 75 different organisations, including road controlling authorities and the Crown. An effective management regime needs to recognise this complexity.
Nevertheless, while acknowledging the inherent difference in the infrastructure of the other transport modes, there is much in the regulation of other modes that is relevant to roading.
A table summarising the following analysis is provided in Chapter five.
4.1 Option One: Detailed Legislative Prescription and Inspection
4.1.1 Description of the Model
The term "Detailed Legislative Prescription" refers to the setting in Acts and regulations of standards and procedures to be applied to whatever activity is being regulated. This approach has traditionally been used by governments when setting safety standards. Often the provisions are quite detailed. A feature of this approach is that the emphasis is on following the letter of the law, at the expense of any flexibility in achieving the desired outcomes or responding to a changing environment. "Detailed Legislative Prescription" is generally accompanied by a regime of external inspection which is often funded by the Government. It is usually backed up by a range of penalties which can be imposed by the Courts.
Rules are also a form of legislation. They are made by the Minister, under an Act, and are subject to Parliamentary scrutiny. However, they are considered to be qualitatively different in that there is a requirement that they be developed in consultation with sector groups and the wider public, and may be presented in a range of formats. The intention is that Rules will better take into account the realities of the sector and thus will be more effective in achieving the desired outcomes than the regulations which they replace.
The "Detailed Legislative Prescription" approach was widely used in the past. In recent years however, it has been criticised as being inflexible and unwieldy (See 4.1.5 below).
4.1.2 Application to other transport modes
The former civil aviation regulatory regime contained a high degree of prescriptive legislation. For example, detailed maintenance schedules were set out in regulations. There was a high degree of Government funded external inspection to monitor compliance. Inspectors were present at all large airports and some medium-sized airports.
4.1.3 Application to the Roading Sector
Under this option the duties of road controlling authorities would be prescribed by legislation, probably a combination of statute, regulations and Rules. The duties could include compliance with road and traffic engineering standards. Procedures for ensuring a safe roading system would also be set out in legislation. There would be frequent inspection by the LTSA as the safety regulatory body to identify breaches. The Courts would have the power to impose fines for breaches of standards.
This option should promote compliance with road and traffic engineering standards. The penalty provisions would provide a clear signal about the need to adhere to these standards. The possibility of any non-compliance with the standards being publicised would reinforce this message. Potentially such a system can bring certainty to managers, especially in the case of simple systems, as it gives detailed guidance on the standards to be followed.
Depending on how the legislation was written, this approach could be neutral between statutory bodies and the private sector.
Acts and regulations can be a clumsy tool for setting procedures and standards. It is often difficult to capture complex technical standards in such a form. Acts and regulations cannot usually be amended quickly or easily, so are likely to go out of date. For example, there have been difficulties in amending the provisions of the Traffic Regulations relating to sign posting to reflect changes in policy and practice. The risk is that roading authorities may simply ignore the regulations and implement new measures willy nilly. Alternatively, authorities respecting the legislation may find themselves locked in to outmoded technology and practices.
If a new National or Regional Land Transport Strategy requires a change in safety policy priorities, it is most unlikely that the legislation could be amended in a timely manner to reflect this. Furthermore, legislation cannot easily be tailored to local conditions and therefore, discourages innovation.
Government inspection is costly and staff-intensive. An externally imposed detailed prescriptive system does not encourage individual managers and their staff to take responsibility for safety themselves, or in other words, to "take ownership" of safety. For this reason it does not promote effective accountability for outcomes.
Prosecutions in such systems tend to focus on technical breaches of regulatory requirements. In other words the focus was on inputs rather than outcomes. This was the case under the former civil aviation regime. By contrast the new regime in the civil aviation area has had the effect of shifting the focus from these technicalities to the more substantive matters of causing danger.
As mentioned above, a high degree of legislative prescription and inspection can be an effective means of maintaining standards within simple systems. However, it is much less effective for regulating sophisticated or complex systems where a large number of (costly) inspectors would be needed and the chances of detecting errors are slight. This approach was abandoned by the civil aviation sector for that reason.
Prescribing the duties of road controlling authorities in legislation also raises the issue of what may happen if a breach of the legislation causes property damage or economic loss. Such a breach may give rise to rights of legal action against the roading entity. However, legal action can be costly and time consuming. In addition reliance on the threat of legal action may not be the most effective way of promoting good traffic management practices or encouraging staff to be accountable.
4.2 Option Two: Licensing
4.2.1 Description of the Model
Licensing is used to control entry into a wide range of sectors, from professional services (eg practising medicine or law, operating specialised equipment) to large scale commercial or industrial operations (operating an airline, prospecting for minerals). The purpose may be to safeguard the interests of the public by setting minimum levels of competency or safety standards, to protect the environment, or simply to raise revenue.
Generally the issuing body will determine eligibility for the grant of the licence and will impose duties on the licence holder. The ultimate sanction for not meeting licence conditions is the withdrawal of the licence.
A licensing system has the potential to be more flexible than the Detailed Legislative Prescription approach. The conditions of the licence can, within the limits of any empowering legislation, be negotiated between the issuing body and the applicant for the licence.
4.2.2 Application to other transport modes
Maritime, rail and civil aviation activities are all subject to licensing. In both the maritime and aviation modes, licences are called "documents." All participants in the maritime and aviation sectors must hold the required documents. Legislation does not specify the content of the documents, or the qualifications required to obtain a document, but enables Rules to be made which can do this. The documents are granted by the respective Transport Safety Authorities which have the power to suspend, impose conditions, or revoke the documents.
The Transport Services Licensing Act 1989 requires every operator of a rail service to be licensed. As a transitional measure, rail operators in existence when this provision of the Act came into effect on 1 April 1993 were allowed three years to satisfy the licence conditions. The licence is granted by the LTSA which has the power to revoke it. The legislation contains some criteria as to the eligibility to hold a licence, in particular, that the applicant is a fit and proper person, has certain qualifications, and has developed an "approved safety system" (see also Option Three below).
4.2.3 Application to the Roading Sector
Under this option road controlling authorities, including existing road controlling authorities, would be required to hold a licence. The licence could set out duties in relation to road and traffic engineering standards, including safety performance.
Certain fundamental matters may still be specified in legislation. For example, the legislation could require that certain matters be included in the licence. It could specify, as in the rail licensing regime, that an "approved safety system" be put in place. It could also require that licence holders comply with Rules (as in the maritime & civil aviation regimes). On the other hand there may be no Rules, with all standards contained within the licence itself. If a Rules system were used, in conjunction with a licence, the licences could include special variations to the Rules relating to local conditions.
Non performance of licence conditions, (for example, failure to adhere to the approved safety system), could result in:
- The cancellation or suspension of the licence; and/or
- The imposition of fines.
A licensing regime is more flexible than the "Detailed Legislative Prescription" approach, as the requirements of the licence could be tailored to local conditions. It could also recognise any differences between Transit New Zealand, territorial authorities and any other road controlling authorities.
A licence, by setting out all the obligations of the licensee, could give certainty to that person or organisation.
The priorities expressed in the National or a Regional Land Transport Strategy could be embodied in licence conditions. However, it may not be easy to change licences, once they have been issued, in response to a change in strategy).
The threat of licence cancellation, or publicity about breaches of the licence, would be an additional incentive for the road controlling authority to take more responsibility for compliance with road and traffic engineering standards. This may promote good accountability for outcomes.
A requirement for a licence would clash with territorial authorities' historical duty to provide roading and with Transit New Zealand's statutory objective to operate a safe and efficient State highway system. A licensing regime would effectively replace these duties with a conditional power to provide roading, subject to meeting licence obligations.
It is not clear what the appropriate criteria for the grant of a licence to a road controlling authority should be. For example, would the "fit and proper person" requirement in the Transport Services Licensing Act be appropriate?
It is possible that a licensing system would need to be linked to a system of external inspection if the public was to have any confidence in safety levels.
The possibility of licence cancellation also raises other issues. What would happen to the roads for which the defaulting road controlling authority was responsible? In other sectors (notably the present system of schools administration), the Government can install its own administrators. There are costs associated with this. It may also be impractical in the case of a road controlling authority.
In summary, the sanction of licence cancellation could be seen as costly and impractical. A range of other penalties would also be required. However, there are disadvantages to relying on the threat of legal action (as outlined in 4.1.5 above).
4.3 Option Three: Road Safety System
4.3.1 Description of the Model
The Safety System approach focuses on outcomes, rather than inputs. It requires those involved at each stage in a process to be aware of their responsibility for the quality of the final product and take their responsibility seriously. It is a development of the quality assurance system used in manufacturing. It is based on the principle of "building in" quality (in this case, safety and good traffic management practices) during the process, rather than relying on subsequent inspection by an external agency, such as a Government inspectorate, to identify any problems and require them to be rectified. In this way it requires all participants in the process to think about the impact of their actions on quality and safety, rather than leaving this responsibility to some other person.
The quality assurance approach involves:
- Identifying persons at key points in a process where duties have implications for the quality of that process;
- Making those persons formally responsible for the standards in their area of responsibility;
- The operator documenting the process and the responsibilities of those within it; and
- Regular checking by an independent person (the auditor) of the actual practice against the documentation.
In other words, by requiring a high level of accountability for outcomes (as apposed to simply imposing the letter of the law), this approach is designed to improve the quality of those outcomes.
4.3.2 Application to other transport modes
The rail sector
Applicants for a rail service licence are required to develop a safety system. The industry regulator (the LTSA) is responsible for checking and approving the safety system. The legislation (section 6B, Transport Services Licensing Act 1989) sets out what must be included in a rail safety system. This includes:
- Standards, including training standards;
- Procedures for ensuring compliance with these standards;
- Systems for recording and reporting details of crashes;
- The management structure to implement and maintain the safety system;
- The scope of regular audits and procedures to be followed; and
- The name and qualifications of the proposed auditor.
The audits mentioned above are not external inspections - they are carried out by an auditor employed by the railway operator itself and are an integral part of the safety system. This is in keeping with the principle of full accountability. The LTSA may however, initiate a "special audit", using its own consultant. The cost of the special audit is borne by the operator who is being audited. Generally, special audits are imposed if the LTSA has some particular concerns about safety.
The rail safety system may be amended at any time if the LTSA agrees. The LTSA may also require a safety system to be amended if it considers that this is necessary to deal with a serious safety concern.
The civil aviation regime is based on the following hierarchy:
- The Civil Aviation Act 1990;
- Rules made under the Act;
- Guidelines; and
- Aviation documents (known as "certificates").
Section 12(4) of the Civil Aviation Act obliges certificate holders to establish and follow a safety management system if required to do so by a Rule. Rules cover various aspects of the sector: not only aircraft but also infrastructure, such as air traffic control systems. In general the Rules require safety procedures and systems to be put in place but do not specify the type of procedure or system. For example, the following are extracts from the Rule on "Air Traffic Service Organisations":
"Each applicant for the grant of an air traffic service certificate for an air traffic control service ... shall establish procedures and criteria for the prevention of excessive fatigue of staff on operational duties."
"Each applicant for the grant of an air traffic service certificate for an aerodrome control ... unit shall establish procedures to ensure that each unit is kept informed of operationally significant conditions on the movement area ..."
The CAA may issue guidelines suggesting what the procedures and /or criteria might be, but the guidelines are not binding. Therefore the type of procedures and systems is left to the discretion of the applicant. However, the safety systems must be documented and then approved by the CAA before it will grant a certificate to the applicant.
The holder of the certificate must also have in place an internal audit system to monitor the safety aspects of its business. In addition, the CAA conducts an external safety audit as part of its regulatory responsibilities. The CAA audit checks whether the safety system is being properly followed by the certificate holder.
4.3.3 Application to the Roading Sector
As outlined in Chapter two, the safety system approach is already known in the roading sector in the form of the "safety management strategy." What is proposed here would build on what is already being achieved and formalise it in a legal requirement for all road controlling authorities.
Road controlling authorities' safety systems would be negotiated with the LTSA. The safety systems would be tailored to reflect the individual characteristics of the road controlling authority involved. There may need to be some standards which are not negotiable - these could be set by way of Rules, with a requirement that they be adopted in every safety system.
This principle could be introduced in stages. For example, as a first step all road controlling authorities might be required to ensure that their contractors have in place a safety management strategy. Subsequently an explicit duty would be imposed on road controlling authorities themselves to adopt a safety system.
The advantage of this option over the "Detailed Legislative Prescription" model is that a safety system can be designed to suit the individual circumstances of a road controlling authority and can be changed in response to changing conditions.
A merit of the safety system approach is that it is designed to increase an organisation's commitment to safety. Placing an obligation on all staff of a road controlling authority to consider the safety implications of their decisions should bring significant safety benefits. The possibility of any non-compliance with the safety system being publicised provides an added incentive.
In so doing, the safety system clarifies the responsibilities of staff in a more effective way and gives a greater degree of certainty than would be possible by means of detailed regulations. As a result, the safety system approach promotes a high level of accountability for outcomes on to the monitoring body on behalf of road users.
The safety system approach could ensure that local authorities fully consider road safety needs as well other, possible competing, objectives in determining expenditure and policies. As local authorities have competing objectives, the question arises as to whether road safety issues will be given sufficient weight to influence the decision making process. Consideration will need to be given to how this will affect council discretion in prioritising.
There will be some initial costs in documenting procedures and systems. This may be a particular problem for small road controlling authorities where staffing resources are not great and few specialist roading engineers are employed. In the rail sector existing operators were allowed three years to develop a safety system . A similar transition period could be designated for road controlling authorities.
One disadvantage of this option is that it simply requires a safety system to be adopted and makes no provision for penalties for poor performance. This is one of the reasons that a safety systems approach is usually incorporated with another management regime, such as licensing.
4.4 Option Four: Performance Based Funding Contract
4.4.1 Descriptionof the Model
A contract is a very flexible instrument and can be used to regulate many activities. Generally contracts are used to specify the nature of a service or goods to be provided in return for payment, with penalties if the service or goods are not up to standard. In the health sector, the Regional Health Authorities, on behalf of the Crown, contract health providers to provide specified services, in accordance with specified performance measures. In the transport sector regional councils contract for public transport services on routes which are not commercially viable but which one considered to be socially desirable.
A contract based approach could include a requirement for a safety system, combining the benefits of both.
4.4.2 Application to other transport modes
The Minister of Transport contracts with the Meteorological Service (a State Owned Enterprise) to provide weather forecasts and warnings.
4.4.3 Application to the Roading Sector
The principle of contracting for services is not new to the roading sector. Road controlling authorities are required to contract out construction and maintenance work. Transit New Zealand contracts out the day to day management of the State highways to "network management consultants". Furthermore, Transfund this year is introducing a system of contracts designed to commit road controlling authorities to meet certain standards in respect of projects which involve Transfund funding. These contracts will require adherence to certain engineering standards, procedures for assessing the eligibility for funding of proposed projects, and procedures for contracting out work.
This option would expand on the work that Transfund is now doing. It would replace the existing statutory relationship between Transfund and the existing road controlling authorities with a contract setting out the responsibilities of each party. Funding would be linked to performance of the contract.
The enabling legislation could indicate in general terms what matters the contract would address, in particular a requirement for an approved safety system or other requirements in respect to safety. The detail however, could be included in the contract and any non negotiable principles included in the Act or Rules.
The contract could be negotiated between the road controlling authority and funding agency, with significant input from the LTSA (representing the public interest in road safety). There would be scope for some variation according to territorial conditions. It could also recognise the differences between Transit New Zealand, territorial authorities and other road controlling authorities.
One option would be to negotiate contracts every year. Alternatively, contracts could be valid for a longer period, such as three years, along the lines of contracts for network management consultants. A longer duration would reduce costs for the parties to the contract.
The LTSA would monitor safety performance. It would have certain rights to intervene to maintain safety standards if these were being breached. Ultimately it would have the power to seek remedies (such as, a reduction in funding or a recovery of monies already paid) from road controlling authorities which did not meet their contractual obligations.
A contract-based system has great flexibility. It can be updated regularly. It does not undermine territorial authorities' duty to provide roads as the licensing option does. A contract would give certainty as all the duties of a roading entity would be set out in its contract. Transfund advises that the contract system it is implementing will impose greater accountability on road controlling authorities and make the task of monitoring adherence to the standards set out in the contract more straightforward.
Reduction of funding, which exists under the present system and has proved to be effective, allows a graduated response to poor performance, rather than the drastic remedy of licence cancellation or Court action. The possibility of a reduction in funding will promote a greater degree of attention to performance by the roading body. As mentioned above Court action can be expensive and time consuming.
If a new National or Regional Land Transport Strategy introduced new priorities, these could be taken into account when the contracts are reviewed.
As this option provides for a safety system it includes all the benefits of that option, namely:
- increased accountability for safety and good management generally
- consequently less scope for conflicts of interest
- clarification of responsibilities.
Negotiating a contract and monitoring performance will incur costs. The size of the costs will depend inter alia on the frequency of reviews of the contracts. However, these costs should be more than offset by improved safety outcomes.
The use of severe penalties, without any other prior intervention, could be counterproductive. The regulatory body would have to exercise great care before imposing severe penalties.
Including safety matters in contracts rather than legislation may diminish their status. It is also unclear in this system how the LTSA will be a party to the contract.
There is also the cost of setting up a safety system.
4.5 Option Five: Health and Safety in Employment Act Approach
4.5.1 Description of the Model
The Health and Safety in Employment Act 1992 sets a broad objective which is backed up by heavy penalties. The Act takes a non-prescriptive approach as it, for the most part, leaves employers free to decide how to meet the requirements of the legislation.
The objective takes the form of a "General Duty of Employers", which is to take all practicable steps to ensure the safety of employees at work (section 6, Health and Safety in Employment Act). There are also a number of more specific duties, which are nonetheless couched in fairly broad terms. These include:
- Duties of Employers in relation to Hazard Management;
- Duties of Employers in relation to Information; and
- Duties of Employers in relation to Training and Supervision.
The legislation provides for codes of practice. Although these are not generally compulsory many employers have adopted them. This enables an employer, if he or she comes before a Court, to demonstrate that he or she was actively trying to fulfil the duties set out in the Act. A court must have regard to the code of practice.
4.5.2 Application to other transport modes
This approach has not generally been used in the transport sector.
4.5.3 Application to the Roading Sector
There could be a general duty on road controlling authorities to take all practicable steps to ensure the safety of road users with heavy penalties where it can be shown that the breach of the duty has caused an crash.
The approach is flexible, simple and non-prescriptive. It includes clear enforcement measures.
There is ample scope to reflect changing priorities of a National or Regional Land Transport Strategy. As the regime is so broad, it would be able to easily accommodate a range of different road controlling authorities.
The regime may be too general for road management, and it gives no guidance to managers beyond the threat of large fines. As a result managers may lack certainty as to their precise obligations. Consequently they might adopt an excessively cautious approach which is likely to incur unnecessary costs and reduce safety expenditure in other sectors such as public health.
This disadvantage could be mitigated to some extent by the issue of codes of practice (which would operate as evidence of good practice, as explained above). Court action can be slow and expensive, and reliance on the threat of Court action could add costs to the management of the system.
The broad regulatory regime can be justified in the context of the Health and Safety in Employment Act in that the variation between workplaces is large, therefore legislation covering all workplaces has to be correspondingly flexible.
It is, however, arguable that road management is a more specialist activity and that the broad scope of the Health and Safety in Employment Act is not really necessary.
The Health and Safety in Employment regime also involves an element of external inspection to identify breaches of the employer's duties, which has the disadvantages associated with Option One above.
4.6 Option Six: Status Quo
4.6.1 Description of the model
This option assumes that the existing legislation would be left in place, and existing administrative arrangements would not be changed in any way.
There would be no immediate and visible costs as no change would be implemented.
The difficulties outlined above would remain. In addition, if no changes to the status quo were made, there is a risk that over time the lack of a clear duty on local authorities to provide a safe and efficient roading system could impose significant costs.
If the private sector was discouraged by the present legislation from providing roads, there would be an opportunity cost - alternatively there is a risk that the private sector might provide roads to a standard inconsistent with the public roading network.
5.0 Overview of Options
5.1 Compliance mechanisms for the various road management regimes
The previous chapter has examined the options for enhancing road management practices. Regardless of what options are deemed to be appropriate there needs to be a range of compliance mechanisms to ensure management practices comply with the requirements of the regime. Various mechanisms are available and these are set out in the following table.
|Detailed Legislative Prescription||Licensing||Road Safety System||Performance Based Funding Contract||Health & Safety in Employment Act Approach||Status Quo|
|Court order and Fines.||
|Removal of licence.||
|Imposed special conditions of operation.||
|Removal of funding.||
|Publication of non-performance with National Standards||
|Intervention at operators expense.||
|Appointment of a Commissioner||
|Suing for civil damages.||
5.2 Principles for assessing options
Chapter three outlines the various principles that the Ministry believes should be used when assessing the various options. In reading the table below, reference will need to be made to these principles (see Chapter three).
The following table provides an assessment of how well each option performs against these principles, based upon the Ministry of Transport's experience with these regimes.
It is acknowledged that this is a subjective assessment and it is provided simply to provide assistance in assessing each option as to its suitability to provide New Zealand with safer roads.
|Detailed Legislative Prescription||Licensing||Road Safety System||Performance Based Funding Contract||Health & Safety in Employment Act Approach||Status Quo|
|Clarity, certainty and practicality||Only for simple systems||Yes||Yes||Yes||Yes||No|
|Produce good safety outcomes at reasonable cost||No for complex systems||No||Yes||Yes||Possible||Possible|
|Neutrality between different road controlling authorities||Possible||Possible||Possible||Possible||Possible||No|
|Accountability for good traffic management outcomes||Maybe||Maybe||Yes||Yes||Maybe||Unclear|
|Compatible with NLTS||Difficult because inflexible||Possible||Possible||Possible||Possible||Yes|
6.0 Powers and duties of road controlling authorities
Various options for road management have been presented in Chapter 4. Whichever option or mix of options are finally chosen, road controlling authorities will need the power of operational management over the roads they are responsible for. The existing statutory powers and duties of road controlling authorities have been reviewed to check whether they are appropriate or sufficient. For convenience they have been grouped in this chapter into three categories:
- Safety powers and duties;
- Land and asset management powers and duties; and
- Other powers and duties.
Whilst this chapter sets out the powers and duties of road controlling authorities the list is not comprehensive. Comment is invited on the appropriateness of the powers and duties of road controlling authorities set out in this chapter and on other powers and duties that road controlling authorities currently have. A number of specific questions are asked. Comment is also sought on whether the existing powers and duties in legislation are necessary.
In reviewing the powers and duties consideration should be given to the need for:
- Safety at reasonable cost;
- A consistent and neutral regime for all road controlling authorities;
- Clarity and certainty.
6.1 Safety Powers and Duties
Safety powers are those powers that road controlling authorities need over the activities of others to help achieve the safe operation of the roads for which they are responsible. Safety duties are the legislative duties a road controlling authority has to ensure public safety.
6.1.1 Setting of speed limits
The Land Transport Law Reform Bill No 2 has been introduced into Parliament to allow road controlling authorities to set speed limits for the safety of all road users by following guidelines and procedures set by the LTSA. It is proposed in this legislation that if a road controlling authority does not follow the correct procedures or applies an inappropriate speed limit the LTSA will have the power to rescind that speed limit.
6.1.2 Requirement to provide for the needs of pedestrians with disabilities
Pedestrians often require access alongside or across the roading corridor.
The needs of pedestrians with disabilities are recognised by legislation which places a requirement on Transit New Zealand and territorial authorities when forming a road. This requirement seeks to ensure that reasonable and adequate provision is made for the kerb and channel of any footpath so as to permit safe and easy passage from kerb to kerb of any mechanical conveyance normally and lawfully used by a disabled person. Section 331 of the Local Government Act allows the Director-General of Social Welfare to give exemptions from these requirements.
Are these powers still required, or are the provisions of the Human Rights Act 1993 sufficient?
6.1.3 Requirement to provide safe and physically separate access for specific groups, for example pedestrians; cycle users; motor vehicle users.
The roading corridor is shared by a number of user groups such as cyclists, car users and heavy motor vehicles.
Currently territorial authorities and Transit New Zealand have powers to:
- Construct public cycle tracks on any road or land vested in or under their control (section 332 of the Local Government Act and section 61(2) of the Transit New Zealand Act);
- Create lanes on road reserve and build dividing strips for special classes of motor vehicles, for example public transport, heavy commercial vehicles (section 333 of the Local Government Act).
Should any new legislation be enabling, or should it place a definite duty on the road controlling authorities to provide for these modes of transport?
If road controlling authorities have a duty to provide for each mode should this extend to a requirement to provide separate facilities and, if so, in what cases?
6.1.4 Access to properties for safety, eg trees; lights.
Territorial authorities and Transit New Zealand have the ability to require a land owner to remove, lower or trim any tree or hedge overhanging or overshadowing a road, to prevent damage to the road or obstruct traffic. They do not have the same ability to address these concerns on the grounds of public safety. This need may arise, for example, where the shade from trees could, in winter, cause icing which would make conditions treacherous for road users. (Sections 355 Local Government Act & 55 Transit New Zealand Act)
Should all road controlling authorities have these existing powers?
Is there any need for these powers to be enhanced?
6.1.5 The power to declare roads limited access
There is a general requirement for all properties to have direct access onto a "public" road or onto a private road which has access to a "public" road (Section 321 Local Government Act). However, where Transit New Zealand or a territorial authority is concerned that the safe operation of an existing road may be compromised through the creation of additional access points (for example, through a subdivision) onto that road, they may declare the road to be a "limited access road" (Section 346 Local Government Act, Section 88-98 Transit New Zealand Act). Such a declaration gives Transit New Zealand or the territorial authority additional control over the approval, design and location of such access points.
Where a landowner is refused access onto a territorial authority limited access road, or is unhappy with the conditions attached to the approval, that landowner may appeal to the Planning Tribunal against the decision of the council. The decision of the Planning Tribunal on any such objection shall be final.
However, there is no right of appeal against a decision by Transit New Zealand on access to one of its limited access roads.
Should all road controlling authorities be able to declare roads to be limited access roads?
Should there be a right of appeal against a road controlling authority declaring a road to be limited access road or should the road controlling authority have the power to make the final decision?
Should State highways be treated any differently or should any differences be based solely on road hierarchy?
6.1.6 Police access for enforcement of road safety
The present Transport Act has a wide definition of road, so that Police can enforce road safety laws. We need therefore, to ensure that appropriate provision is made for the Police to have access to all roads to which the regime applies.
Are any changes required?
6.2 Land and Asset Management
Road controlling authorities have certain powers to ensure that they can protect their roads from activities that may cause physical damage or may reduce the utility of the roads. Detailed below are those powers that road controlling authorities have for land and asset management.
Under existing legislation road controlling authorities have duties placed upon them to provide for certain types of activities. These duties are also outlined.
6.2.1 Restricting access to roads by weight or dimensions of vehicles
Road controlling authorities have power to protect the roads for which they are responsible from damage caused by overweight and/or over dimension vehicles and loads. They also have power to ensure that the safe use of their roads is not jeopardised by the operation of these vehicles.
The provisions for restricting access to roads by weight or dimensions of vehicles are contained in the Transport Act 1962, the Traffic Regulations 1976, and the Heavy Motor Vehicle Regulations 1974. These provisions are confusing and vary depending upon who the road controlling authority is. In addition to the various provisions outlined above, a territorial authority has the ability to make bylaws for either closing a road to all heavy motor vehicles or reducing heavy motor vehicles over a specified weight. This mix of powers can lead to inconsistency and further confusion. Details of these provisions are provided in Appendix two.
Over dimension vehicles
Where a person wishes to construct or modify a vehicle in such a way that it does not conform to standard dimensions, the approval of the LTSA must be sought. In giving any approval the LTSA may impose certain conditions including restrictions on where a vehicle may operate.
Over dimension loads
Where a person wishes to operate a vehicle or transport a load which is over dimension they must obtain a written "over dimension" permit from the Police. The criteria for road controlling this activity is determined by the LTSA and based on safety - to ensure that the vehicle can safely transport the load and that the safety of other road users is not compromised.
Over weight vehicles
If a person wishes to operate a vehicle or transport a load which is in excess of the allowable weight, a written permit must be obtained. "Over weight" permits are issued by Transit New Zealand and approved road controlling authorities for local roads. The criteria for issuing a permit is based upon preventing damage to road infrastructure. In some cases Transit New Zealand may need to restrict vehicles over a certain weight from using a section of road due to:
- The state or standard of the road; or
- A bridge not safely capable of supporting some heavy motor vehicles.
Piloting of over dimensional vehicles and loads
Pilots may be required to escort overweight and over dimensional vehicles. At present, criteria are set by Transit New Zealand and the LTSA on when a pilot should be used. Transit New Zealand is currently reviewing its requirements so they are more in line with the criteria set by the LTSA.
Is the present process of imposing conditions on the use of over dimension vehicles sufficient to ensure they operate safely?
Should the criteria for both over weight and over dimensional permits be set by one organisation?
Should the issuing of permits also be done by one organisation?
If so, which organisation should have responsibilities in this area?
Does the criteria for deciding when pilots should be used also need to be set by one organisation?
Could there be a simplified system where all that would be required is for pilots to be licensed and made accountable should anything go wrong?
Territorial authority powers
Under section 72 of the Transport Act territorial authorities and Transit New Zealand have bylaw making powers which allow them to control and restrict not only heavy motor vehicles but also stock, the erection of signs etc. These bylaw making powers are covered below (see 6.3.5).
Are these bylaw powers necessary?
Should all road controlling authorities have these powers?
In addition to the powers territorial authorities have for restricting access to roads due to weight and dimension (see Appendix three), they also have the ability to restrict use for environmental reasons such as noise. A number of territorial authorities have used their bylaw making powers to prohibit the use of heavy motor vehicle engine brakes in urban areas.
Are these bylaw powers necessary?
Is the placing of restrictions on the use of roads for environmental reasons more appropriately dealt with through the Resource Management Act?
6.2.2 Provide reasonably appropriate infrastructure for public transport
Legislation dealing with the erection of bus stops and shelters is very prescriptive, especially in terms of detailing the consultative process that is required to erect a bus stop.
The power to erect shelters associated with bus stops and taxi stands is given to territorial authorities under section 339 of the Local Government Act. Similarly section 68 of the Transit New Zealand Act provides Transit New Zealand with powers to construct parking places and other facilities of benefit or advantage to users of the land transport system or for improving public safety.
Current legislation states that the siting of stops, stands, depots, or other facilities required for public passenger transport operations should be in accordance with accepted principles of town planning and sound traffic management (section 594ZZI Local Government Act).
Currently regional councils are responsible for the approval of all bus routes. Some control of the provision of public passenger transport infrastructure could be exercised through approved regional land transport strategies (section 24 Transit New Zealand Act).
Are legislative provisions such as section 339 of the Local Government Act and section 68 of the Transit New Zealand Act necessary?
Should the road controlling authority have the final say over the location of stops, stands or other facilities for public passenger transport?
Who should be responsible for the erection of bus stops?
6.2.3 Designation and the compulsory acquisition of land for roads
Protecting land for future roading purposes, or existing roads from inappropriate adjoining land use, can be achieved under the provisions of the RMA (1991). These provisions (see Appendix four) already provide for a neutral regime across all road controlling authorities.
Similarly, the provisions contained in the Public Works Act (1981) allow for all road controlling authorities to compulsorily acquire land provided certain consents are obtained.
Is it appropriate for all road controlling authorities to have access to these provisions?
6.2.4 Action for damage to roads and for disruption to the public
If road controlling authorities are to be responsible for the condition of the roads under their control, as well as the safety of all road users using those roads, then they must have powers to deal with any situation that has or could result in damage being caused to any section of road. These powers could be similar to those that currently apply to rail service operators and contained in the Rail Safety and Corridor Management Act 1992. A brief outline of some of the provisions contained in that Act is set out in Appendix five.
Is a legislative right to damages necessary?
Do road controlling authorities have sufficient protection under the general law?
Some road controlling authorities have highlighted problems that have arisen as a result of the changes in the management of public utilities. When the present regime was originally developed utilities were almost all publicly owned; many were local authorities themselves. Their rights to use, free of charge, public property such as the road reserve and to dig up the road itself derived from their status as public bodies. Disruption to the public caused by excavations was controlled by negotiation between officials, often within the same organisation, who could also ensure that utilities coordinated their works.
Although the utilities have moved into the private sector they have still retained their rights to the road and the road reserve. However, now that they operate in a fully commercial environment, they are obliged to put the interests of their shareholders before those of road users and rate payers. Territorial authorities find that they have limited power to control a utility company which wishes to assert its rights. One example of a problem arising from this situation is where utility companies are now wanting to erect structures on footpaths rather than face the cost of purchasing adjoining land.
Another common example is where road safety can be compromised by utility companies digging up a stretch of road, often many times in one year. The quality of the pavement once it is reinstated, can also give rise to safety concerns.
These changes in circumstance raise the question as to whether it is appropriate for a privately owned organisation to enjoy the right to occupy the road reserve.
Should the power of road controlling authorities in relation to utility access and activities be modified?
6.3 Other Powers
There are other miscellaneous powers that road controlling authorities have that are not strictly related to road safety or land and asset management. This section looks at whether such powers are needed.
6.3.1 Powers to remove abandoned vehicles
In 1992 an amendment was made to the Local Government Act 1974 to deal with the removal, storing and disposal of abandoned vehicles from a road. The objective of the amendment was to streamline the procedures to allow for a more effective and efficient system for the removal of abandoned vehicles.
A territorial authority may authorise any person to remove an abandoned vehicle but, before doing so, that person must notify a member of the Police of their intention to do so.
Should the powers for removing abandoned vehicles be available to all road controlling authorities?
6.3.2 Limited enforcement activities
Parking enforcement is carried out for three principle reasons:
A road controlling authority may need to establish no parking areas (eg, clearways, and the marking of double yellow lines, etc.) for the safe flow of traffic. No parking areas may also be established as a means of reducing traffic congestion. This has an environmental as well as a safety benefit.
Road controlling authorities use parking meters to raise revenue.
Parking wardens currently check the status/road worthiness of parked vehicles on behalf of the LTSA and Police. Fines are issued for non-compliance with vehicle safety standards. At present territorial local authorities get 50% of any fines from tickets issued by a parking warden for a stationary offence. Some territorial local authorities operate a diversion scheme whereby the fine is waived if registration is completed within a month.
At present there are three levels of enforcement officers who can deal with parking enforcement activities. There are the Police and territorial authority parking wardens. In the case of the Lyttleton harbour tunnel, there are privately employed traffic officers who have certain powers in relation to road controlling the use of the tunnel. These officers are contracted to Transit New Zealand.
Should checking for stationary offences be carried out by individuals other than the Police?
Should all road controlling authorities have the ability to undertake parking enforcement including issuing tickets for stationary offences and should there be an obligation on them to do so?
Should there be national consistency in the provision of diversion schemes?
Is there scope for rationalising current parking enforcement provisions?
Should all road controlling authorities be able to make bylaws and collect revenue in this area?
If bylaws are not to be used what other powers of enforcement should be available to a road controlling authority?
6.3.3 Information requirements
At the moment road safety data currently flows between territorial authorities, Transit New Zealand, Transfund, LTSA, Police and the Ministry of Transport. This is done for a number of reasons, eg, identification of black spots, funding applications, national provision of crash information etc.
Would a new regime need enhanced provisions for the sharing of road safety data?
Should there be a legislative requirement to provide certain types of data?
Should one agency have an overview of this process?
6.3.4 Bylaws approach may be made redundant in this scenario
Bylaws may be made under section 72 of the Transport Act 1962 by territorial authorities or Transit New Zealand in respect of the management of roads under their control. Bylaws may be made for a whole range of purposes including: regulating the weight of loads passing over bridges; prescribing routes for stock; prohibiting any class of traffic; restricting signage; prescribing fines etc.
It is arguable that only public bodies should have access to bylaws, especially where fines are collected for non-compliance.
An alternative approach is that road controlling authorities might be authorised under legislation to do such things as mark roads, place signs, prescribe stock routes subject to the overall guidance of rules made under the Land Transport Act 1993.
Should all road controlling authorities have the power to make bylaws?
Could bylaws be replaced by other specific powers, or are there areas where bylaws would be still be needed?
7.0 Next steps
This document does not set out detailed proposals for legislative change as these will be developed once submissions have been received and analysed. However, should you believe there are specific legislative provisions which are working particularly well and must be retained, or are not and should be removed, then you may wish to detail these.
Ministry officials will be meeting with interested groups following the release of this document. A further round of consultation will also take place after the receipt and analysis of submissions, and before Cabinet is asked to approve any changes in principle. Once this approval is obtained the Ministry will then be in a position to develop proposals for detailed legislative change, which will be then be put to the Government.
If you or your organisation wish to make a written submission on any aspect of this Road Management Review Discussion Document, please send your comments by Thursday 31st July 1997 to: