Section 2: Accessing shared property for fibre installations

Background

The Act (Subpart 3 of Part 4) provides statutory rights to access shared property to install, maintain, repair and upgrade fibre. The framework was established in 2017 to enable greater fibre uptake. The rights to access shared property to install fibre (referred to throughout as ‘the rights’) are due to expire on 1 January 2025. The rights to undertake maintenance and upgrades do not have an expiry date.

The rights allow fibre providers to access shared property to install fibre connections in certain circumstances, where the consent of more than one party would otherwise be required. For example, the rights allow a provider to lay fibre in a shared driveway even if one neighbour, who co-owns the driveway, has not consented to the work (provided certain conditions are met, such as notification requirements and limits on invasiveness).

These rights are available to fibre providers if they are members of a designated dispute resolution scheme to address any complaints from affected property owners. Fibre providers estimate that these rights are currently used for between 10-30 per cent of fibre installations.

Issue 1: Expiry of statutory rights for fibre installations

The expiry date of 1 January 2025, and the scope of these rights, were set so that as many dwellings as possible could connect to fibre, while considering the impact on property rights. There was an expectation that most fibre installs as part of the UFB initiative would be completed by this date and the rights would no longer be needed.

Currently, 87 per cent of New Zealanders have a fibre network available to them, and uptake of fibre connections is sitting at about 75 per cent of all dwellings with fibre coverage. We expect that demand for new fibre connections to the home will continue and that in some of these scenarios, access to shared property will be needed.

Problem definition

Given our assessment that fibre uptake will continue, we are considering whether the rights should be extended beyond the current 1 January 2025 expiry date, to further enable uptake of UFB.

If there were no longer rights to access shared property for fibre installations, fibre providers would need to rely on alternative ways of pursuing access to shared property, such as easements (if possible). Some fibre companies consider that the rights are crucial to increasing fibre uptake. Without the rights, installations that require access to shared property will be more difficult, and in some cases not possible.

Options

Option 1: Status quo – statutory rights expire on 1 January 2025 with no plans to reinstate them

The rights to access shared property for new fibre installations would no longer be in place after 1 January 2025. The status quo aligns with the original intent for the duration of the rights to be effective until the completion of the UFB network. However, it does not recognise anticipated continued fibre uptake. We are also observing expansion of the fibre footprint on commercial terms, which will likely continue beyond 2025.

Option 2: Reinstate the rights for access to shared property for new fibre installs after the rights expire

Given the timeframes for legislative processes, it is unlikely there will be time to amend the Act to change the expiry date of the rights before 1 January 2025. This means that there will likely be a period where the rights are not in effect, even if it is identified that there are grounds to continue them. Under this option, we anticipate the rights would be reinstated as soon as possible after 1 January 2025 (allowing for legislative processes).

If this option were to be progressed, the rights could be reinstated temporarily for a specified timeframe, or be made permanent. We are seeking submitters’ feedback on, if the rights were to be extended, whether this should be for a set period of time or permanently.

Benefits - Temporary

• Easier to install fibre.
• More closely aligned to the original intent of the framework to be temporary, until the bulk of fibre installations are complete.

Considerations - Temporary

• An appropriate new expiry date would need to be set.
• May not be sufficiently future proofed for further fibre network expansion and increase in demand for fibre services.

Benefits - Permanent

• Easier to install fibre.
• Future proofed.

Considerations - Permanent

• Need to consider the ongoing impact on property rights.

MBIE comment

MBIE has no preferred option at this stage. We are seeking feedback on the impact of both the rights expiring as well as the implications of reinstating them. We are also interested in views on whether a reinstatement (if progressed) should be temporary or permanent.

Questions for stakeholders

Issue 2: Invoking statutory rights for high impact installations

The existing rights to access shared property can only be used for low and medium impact fibre installations. This was to balance the benefit of fibre uptake with the potential impacts on property rights from fibre installations.

There are two categories of installations that are covered by the statutory rights, as set out in the Telecommunications (Property Access) Regulations 2017:

• Category 1, or low impact method installations, have no lasting impacts on shared property (for example, a fibre cable buried in grass).
• Category 2, or medium impact method installations, have more of a lasting impact (for example, digging into and resealing a small part of a concrete drive to conceal a cable).

The industry refers to installations beyond category 2 as ‘high impact’. This could include methods of install such as needing to dig up a significant portion of a driveway to install a fibre cable or digging an extra-long trench to lay a fibre cable. The rights to access shared property for fibre installations cannot currently be invoked for these types of installs.

Problem definition

As the rights to access shared property cannot be invoked for high impact installs, consent from all affected property owners or other legal remedies are needed to progress the installation. We understand that in this scenario, the fibre install request is often cancelled because another owner will not consent and the options for trying to overcome this can be time consuming or costly.

Options

Option 1: Status quo – the rights (if reinstated) are not expanded to include high impact installs

No changes would be made to the statutory rights. Rights could not be used to access shared property for high impact fibre installations. Fibre providers would need to use other available legal remedies if they cannot get consent from all affected property owners for these installs.

Option 2: Expand the scope of rights (if reinstated) to cover some high impact installs

This option would expand the scope of the rights to enable access to shared property for some high impact installations, without needing to get consent from all affected parties.

For clarity, this would allow for some high impact installs, not all high impact installs. This is because we consider it is still appropriate to limit the extent of the impact that can be caused from installing fibre where there is not consent from all affected parties. We are seeking feedback that would allow us to clearly define what types of ‘high impact’ install methods should be allowed. For example:

• if increasing the length of trenches allowed to lay cables (currently 3m for each dwelling it passes), how much should the length be increased by?
• if increasing the square meterage of a driveway that can be impacted (currently 30 per cent of a driveway’s width), by how much should this be increased?

Benefits

• Fibre providers could use the rights in more scenarios, increasing the number of fibre installations they can progress without relying on other legal remedies.
• May reduce instances of property owners cancelling installation requests.

Considerations

• Definition of what types of installs should be permitted (ie how to describe the ‘high impact’ installs).
• Likely to increase instances of the property access provisions being used so more shared property owners will be impacted.

MBIE comment

We do not currently have a preferred option in relation to this issue. We are seeking feedback on the costs and benefits of enabling the rights to be invoked for some high impact fibre installations, if the rights were reinstated.

Questions for stakeholders

Issue 3: Invoking the statutory rights without a retail connection order from an internet service provider

The use of the rights to access shared property to install fibre includes a requirement that these rights may only be invoked if a person has ordered a fibre broadband product from an internet service provider.

This means that if there is no tenant or homeowner who wishes to order a retail internet connection, the rights cannot be invoked to access shared property for installation.

This can pose problems, for example, for landlords and property developers who want to make their properties ‘fibre ready’. Since landlords and property developers are not planning to live in the property themselves, they do not want to order a fibre broadband product from an internet service provider. We note that if there is no dispute over shared property, or no need to access shared property for the fibre install, these properties can still be made ‘fibre ready’. The rights do not need to be relied upon in those cases.

Problem definition

The need to have a fibre broadband order made to an internet service provider to access the rights can be problematic and may disincentivise connection to fibre.

Options

Option 1: Status quo – retain requirement for a retail service order before statutory rights can be invoked (if reinstated)

No changes would be made to the rights. The statutory rights to access shared property to install fibre would only be invoked if a retail connection order is placed.

Option 2: Allow rights (if reinstated) to be invoked without a retail connection order

This option would allow the statutory rights to access shared property for fibre installations to be invoked without a retail connection order being placed. The rights (if reinstated) could be invoked if a property developer or owner wishes to make their property ‘fibre ready’ (ie installing fibre before anyone moves in).

Benefits

• Could result in increased uptake of fibre services and reduce waiting times for services (eg a tenant is able to move in and immediately take up a fibre service).

Considerations

• Likely to increase instances of the property access provisions being used so more shared property owners will be impacted.

MBIE comment

MBIE has no preferred option on this issue. We are interested in feedback on the impacts of each option so that we can better assess if there is a need for regulatory change, if the rights were reinstated.

Questions for stakeholders

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