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Submissions for this consultation is now closed. Please view the Dangerous Goods Amendment 2016 which will come into force on 1 October 2016. |
The Government supports the need for increased penalties for drivers or operators who transport dangerous goods on high-risk routes in breach of prohibitions or restrictions, in order to have an effective deterrent.
This document sets out a proposal to increase penalties for such breaches through amending:
Proposed amendment Rule
It is proposed to amend the Dangerous Goods Rule to require a driver or operator of a vehicle carrying dangerous goods to comply with signs which indicate a prohibition or restriction on the transport of dangerous goods on a specified road imposed by a road controlling authority by bylaw. Road controlling authorities are required to install signs indicating the existence of such a restriction.
Proposed amendment to Regulations
It is further proposed that if a driver or operator fails to comply with a prohibition or restriction, then a new penalty in the Regulations would apply.
Infringement fees have been proposed as $500 for an individual, $1000 for a body corporate. These penalties would align with similar dangerous goods offences. The maximum penalty on conviction by a court is proposed as $2,500 for individuals and $10,000 for bodies corporate but court proceedings would only be used in exceptional circumstances.
Background
Land Transport Rule: Dangerous Goods 2005 sets out the requirements for the safe transport of dangerous goods on land in New Zealand. The Rule covers the packaging, identification and documentation of dangerous goods; the segregation of incompatible goods; transport procedures and the training and responsibilities of those involved in the transport of dangerous goods. The Rule's requirements are applied according to the nature, quantity and use of the goods.
The proposed Rule amendment is intended to highlight the need to observe any restrictions on the transport of dangerous goods on roads where the risk of doing so is high, and to enable appropriate sanctions to be made in supporting regulations. The purpose is to provide an effective deterrent to operators or drivers transporting dangerous goods on high risk routes contrary to restrictions imposed by bylaws.
The planned opening of the Waterview tunnels in late 2016 or early 2017 is the catalyst for the proposal. However, the proposal would have general effect throughout New Zealand. Some, but not all, existing bylaws have low ($150) infringement fees set. For other bylaws, prosecution must be directed to a court where a maximum fine of $500 may be imposed on conviction. This is significantly out of line with penalties for breaching requirements of the Dangerous Goods Rule that address a risk to life and property.
NZ Police have noted that prosecutions taken before a court require considerable resources to manage and breaches of bylaws can, at times, be difficult to prove.
It is difficult to calculate the probability of a serious incident involving dangerous goods at a site such as the Waterview tunnels. However, such an incident could result in serious consequences for life and property. In the standard risk management approach (AS/NZS ISO 31000:2009 Risk Management – Principles and guidelines), low probability events that have high consequence need to be appropriately managed.
Restrictions on the transport of dangerous goods currently apply in specific locations, for example, the Christchurch-Lyttelton road tunnel and the Wellington tunnels on State Highway 1.
The Waterview tunnels are a key piece of infrastructure for Auckland. There are two tunnels, one for each direction, which are each approximately 2.6 kilometres long and three lanes wide. It is anticipated that there will be 90,000 vehicle movements each day through them. Modelling at a traffic speed of 80 km/h suggests there could be over 550 vehicles in each tunnel at any one time. This number could be higher during peak times with lower average speeds.
While the Waterview tunnels have fire protection systems and egress passages at 150 m intervals, the length of the tunnels, and the anticipated high volumes of traffic, still leave a risk of people being caught up in congestion during an incident that forces people to evacuate on foot. A significant fire event involving dangerous goods has the potential to result in many deaths and injuries, and could necessitate the closure of the tunnels for months to allow for repair work with significant negative impacts on the local and regional economy.
The Waterview tunnels will experience incidents. By way of comparison, the Christchurch - Lyttelton tunnel (at 1.9 km long) averages three truck fires per year and has also had three tunnel strikes (a vehicle hitting the tunnel) in a recent 12 month period. Any such incident would be further complicated if it involved dangerous goods.
Requiring vehicles transporting dangerous goods to use an alternative route may impose costs on operators. In the case of the Waterview tunnels, this cost is minor as the alternative route is just one kilometre longer than the Waterview tunnels route, although this may add an estimated 5 to 10 minutes journey time. However, it is expected to significantly reduce the risk for other road users given that any incident would occur in an open environment.
Application
The Dangerous Goods Rule makes a clear distinction between vehicles carrying significant amounts of dangerous goods and those carrying small quantities for domestic or recreational use or for use as tools-of-trade. A vehicle carrying significant quantities of dangerous goods must display signs (placards) that identify the hazard the dangerous goods present. The proposed amendment Rule would only apply to vehicles that are required to display placards.
Vehicles carrying very small quantities of dangerous goods (e.g. a private car carrying an LPG bottle) would not be subject to the proposed requirement.
Compliance
NZ Police report that there have been two bylaw offences for driving a prohibited motor vehicle through Wellington tunnels in the past two years. For the Christchurch - Lyttelton tunnel there have been no bylaw offences over the same period. While the number of offences for breaching a bylaw restricting dangerous goods vehicles in those tunnels is few, this does not mean that rates of non-compliance at Waterview will also be low.
The NZ Police and the NZ Fire Service have been consulted about the risks in the context of the Waterview tunnels and support an increase in penalties for non-compliance. NZ Police also supports using infringements as most dangerous goods vehicle offences are usually straightforward. Where there is a serious breach, NZ Police would have the discretion to prosecute through the Courts where penalties are significantly higher.
Oversize vehicles compliance
Analogies can be drawn from the incidents of oversize vehicles being driven on Auckland motorways which can incur an infringement fee of $370. Despite viable alternative routes, records for Auckland motorways since 2008 show approximately 91 incidences of bridge strikes by oversized vehicles that have required inspection or structural repairs[1]. The Transport Agency’s assessment is that some of these instances would have been the result of conscious decisions by the drivers to drive their oversized vehicles on Auckland motorways.
1 Total true as at March 2016; since then there have been further bridge strikes, with significant traffic impacts.
The Transport Agency welcomes your comments on the proposed Rule and Regulation changes set out in this overview and in the draft amendment Rule. When you provide your feedback, it would be helpful if you would consider and comment on the following:
Wherever possible, when making your comments please provide examples to illustrate your point.
This section sets out the changes that are proposed to the Dangerous Goods Rule and the Regulations.
Proposed Rule changes
The proposal is to make a rule that requires compliance with signs that indicate a restriction or prohibition on the carriage of dangerous goods on a specified road that has been imposed by a bylaw made by the road controlling authority.
A restriction or prohibition provides a means of managing risk on routes that are assessed as having a high risk of an incident involving dangerous goods. Any restriction should be made on the basis of an assessment of the identified risks to both the specified road and any alternative route for motor vehicles carrying dangerous goods. The Transport Agency provides guidance on risk analysis for prohibiting or restricting dangerous goods in tunnels.
A road controlling authority that has made a bylaw imposing a prohibition or restriction on the transport of dangerous goods on a road would be required to install signs in accordance with Land Transport Rule: Traffic Control Devices 2004 (the TCD Rule) to draw attention to the prohibition or restriction.
A multi-faceted approach, including advertising and engagement with transport operators, will be used to encourage compliance. The proposed Rule changes will be supported by other measures including driver education and the use of CCTV cameras.
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PROPOSAL 1 |
Details of proposed Rule change
This proposal is to place a duty on the driver or operator of a vehicle that is transporting dangerous goods to comply with a sign indicating a prohibition or restriction on the transport of dangerous goods on a specified road.
This duty would apply where a road controlling authority makes a bylaw that:
The proposed Rule would only apply to drivers or operators of vehicles that are required by section 7 to display placards. Vehicles transporting dangerous goods within the tools-of-trade quantity limits (excluding bulk containers of environmentally hazardous substances) and small quantities of consumer and household products (for example, the gas cylinder for the backyard barbeque) are not required to display placards and therefore are not within the scope of this requirement.
The Rule would also make it clear that there must be signs in place at the relevant location to ensure that the restriction is effective and for the purposes of enforcement.
A new clause will also be inserted to add compliance with these route restrictions to the responsibilities of the driver or operator of a road vehicle set out in section 10 of the Rule. This would link to a proposed amendment to the Regulations to specify that failure to comply with this requirement is an offence and to set an appropriate penalty.
[Reference: proposed new clauses 8.6 and 10.4(b)(v)].
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PROPOSAL 2 Require road controlling authorities that restrict the transport of dangerous goods to:
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Details of proposed Rule change
A road controlling authority, empowered by an enactment to make bylaws, can make a bylaw that prohibits or restricts the transport of dangerous goods (which could cover all dangerous goods or specified classes only) on a specified route. Following a statutory bylaw-making process would ensure that appropriate notification and consultation is undertaken by the road controlling authority, before imposing any specific restriction.
It is expected that before making a bylaw, a road controlling authority would consider the risks of transporting dangerous goods on that route and on alternative routes if available. The proposed amendment Rule has been drafted with a requirement to undertake a risk assessment prior to the making of bylaws. The rule does not, however, specify a process for this assessment. We welcome your comments on the effectiveness of this proposal.
Once the proposed Rule comes into effect, the new penalties would also apply to bylaws currently in place, for example, the existing bylaws for the Wellington and Christchurch – Lyttelton Tunnels. The Rule would also apply to road controlling authorities making a new bylaw after the proposed Rule comes into effect.
The Rule would also require the road controlling authority to install signs, in accordance with the TCD Rule, to advise road users of a restriction. The wording of the signs would be up to the road controlling authority to determine. The format is prescribed in Schedule 1 of the TCD Rule. There is no specific dangerous goods sign in the TCD Rule, instead a general regulatory sign is employed that can contain such words as are necessary to convey a restriction or prohibition (General Regulatory sign R7-10).
[Reference: proposed new clause 10.8]
Proposed offence and penalties
A breach of the Rule requirement to comply with those signs would be specified as an offence in the Regulations and a penalty set that is similar to the penalties for comparable offences concerning the transport of dangerous goods.
The current penalty for breaching a bylaw is unlikely to sufficiently deter carriers of dangerous goods from using otherwise restricted or prohibited routes based on evidence from urban motorway tunnels in Australia. NZ Police have also advised that prosecutions for bylaw breaches often require court appearances and are complex and costly (in terms of resources) to manage.
It is proposed to amend the Regulations to set new penalties for the transport of dangerous goods contrary to a bylaw restricting or prohibiting motor vehicles carrying dangerous goods on a specified road. It is proposed that infringement fees of $500 for individuals and $1,000 for bodies corporate be set in order to provide a suitable deterrent. For the most severe offending, NZ Police can lay the matter before a court, which can impose a maximum penalty on conviction of $2,500 for individuals and $10,000 for bodies corporate.
The proposed new penalties are comparable to existing penalties for parking a motor vehicle carrying dangerous goods for longer than 18 hours unless it is in a depot (clause 10.4(b)(i) of the Dangerous Goods Rule) and failing to stop at uncontrolled railway level crossings when carrying explosives or large quantities of flammable liquids or gases (clause 10.4(b)(iv) of the Dangerous Goods Rule).
The Land Transport Act 1998 (the Act) provides the legal framework for making Land Transport Rules. Section 161 states the procedures by which the Minister makes ordinary Rules.
What are Land Transport Rules?
Land Transport Rules (Rules) are legislation made by the Minister of Transport or his delegate (‘the Minister’) under the Act.
The Act sets out principles and the policy framework; Rules contain detailed requirements, including standards and processes, for putting those principles and policy into operation. Rules cover a range of land transport issues. Among the outcomes that Rules aim to achieve are: safeguarding and improving land transport safety and security, improving access and mobility, assisting economic development, protecting and promoting public health and ensuring environmental sustainability.
Compliance with Rules is required because they form part of New Zealand transport law. The specific offences and penalties that apply to each Rule are set out in the Act or in regulations.
Most Rules are drafted by the Transport Agency, by an arrangement with the Secretary for Transport, working closely with the Ministry of Transport’s policy and legal advisors.
Rules are drafted in plain language to be easily understood. The Transport Agency undertakes consultation on proposed changes to Rules on behalf of the Minister. The issues that are raised in submissions on the draft amendment Rule will be analysed and taken into account in preparing the Rule for the Minister to sign.
Subject to the approval of the Minister, the proposed Rule would take effect later this year.
Application of Rule-making criteria
Proposed activity or service
Section 164(2) of the Act sets out the matters that the Minister must have regard to when making a rule. This includes the nature of the proposed activity or service for which the Rule is being established. The proposed activity or service that the proposed Rule addresses is the transport of dangerous goods on specific high-risk roads.
Risk to land transport safety
Section 164(2)(a), (c) and (d) requires the Minister to take into account the level of risk to land transport safety in each proposed activity or service, the level of risk existing to land transport safety in general in New Zealand, and the need to maintain and improve land transport safety and security.
The proposed Rule aims to encourage compliance with any prohibition or restriction on the transport of dangerous goods. This is an appropriate way to manage the risks associated with the transport of dangerous goods on specific routes where an incident could result in serious consequences for life and property.
Safer Journeys, the government’s road safety strategy to 2020, aims to reduce the number of deaths and serious injuries on New Zealand roads.
Assisting achievement of strategic objectives for transport
Section 164(2)(e) of the Act requires that the Minister have regard, and give such weight as he or she considers appropriate in each case, to whether a proposed Rule (i) assists economic development; (ii) improves access and mobility; (iii) protects and promotes public health; and (iv) ensures environmental sustainability.
Assists economic development
The proposal is neutral in terms of economic development.
Improves access and mobility
The proposal is neutral in terms of access and mobility.
Protects and promotes public health
For the very small number of drivers or operators who might consider taking dangerous goods on high-risk specified roads (such as the Waterview tunnels), despite prohibition under bylaw, the proposal would provide a higher deterrence. This would assist in protecting public health and safety through lowering the likelihood of incidents involving dangerous goods on high-risk roads that may result.
Ensure environmental sustainability
The proposal is neutral in terms of environmental sustainability.
Costs of implementing the proposed changes
Section 164(2)(ea) of the Act requires that the Minister have regard to the costs of implementing measures proposed in a Rule. A summary of the costs, and benefits, of the proposed changes, together with links to the regulatory impact statements on the Ministry of Transport’s website, can be found on page 19.
International considerations
Section 164(2)(eb) and (f) of the Act requires that, in making a Rule, the Minister must have regard to New Zealand’s international obligations concerning land transport safety, and the international circumstances in respect of land transport safety.
New Zealand’s regulation of the transport of dangerous goods is based on the UN system of classification, identification and packaging of dangerous goods used by most of our trading partners.
Bylaws
The proposed amendment Rule refers to prohibitions or restrictions on vehicles transporting dangerous goods that are imposed by road controlling authorities by making bylaws. Road controlling authorities are empowered to make bylaws prohibiting or restricting any specified class of traffic or type of load by section 22AB of the Act.
Offences and penalties
Land Transport Rules do not contain offences and penalties for breaches of Rule requirements. These provisions are set out in the Regulations.
If the proposed amendment Rule is signed into law, government will be asked to consider and approve new infringement fees and penalties on summary conviction, which would be made by amending the Regulations.
All infringement fees are set as a proportion of the fines that could be awarded by a court. Government will consider the potential impact of any offending, and how any new offence compares with the existing range of offences and penalties. As an indication, the infringement fees are normally set at between 20% and 40% of the maximum fine available to a court, but this does vary in practice.
Access to consultation material
Copies of this consultation document may be obtained by calling the Transport Agency Contact Centre on 0800 699 000. It is also available on the Transport Agency’s website at:
http://www.nzta.govt.nz/about-us/consultations/land-transport-rule-dangerous-goods-amendment-2016/
Availability of Rules
Land Transport Rules can be purchased from selected bookshops throughout New Zealand that sell legislation. They are also available to be read free of charge at the National Office and regional offices of the Transport Agency. Rules are also available on the Transport Agency’s website at:
http://www.nzta.govt.nz/resources/rules/about/.
Information about Rules
Information about the Rules programme and process is available online at:
http://www.nzta.govt.nz/resources/rules/about/.
If you have not registered your interest in the Dangerous Goods Rule (or other Land Transport Rules), you can do so by contacting the Transport Agency at our addresses shown in the Making a submission section at the front of this publication, or at: http://www.nzta.govt.nz/resources/rules/about/registration.html(external link). This includes a form for registering an interest in Rules.
A Regulatory Impact Statement on the proposed Rule and regulation changes is available for you to read. The document can be downloaded from the Ministry of Transport’s website at:
http://www.transport.govt.nz/about/publications/ris-bccs/bymode/(external link)
A summary of the benefits and costs/risks of the Rule amendment proposals are set out in the following table.
Table 1: Summary of benefits and costs by proposal
| No. | Proposal | Benefit | Costs |
| 1 |
Amend the Dangerous Goods Rule to require compliance with a sign restricting or prohibiting the transport of dangerous goods on a specified road. This amendment would allow government to consider and approve more appropriate fine levels for a breach of a restriction or prohibition on the transport of dangerous goods on high-risk specified roads. |
The deterrence provided by increased fine levels will help to reduce the likelihood of incidents involving dangerous goods on high-risk routes and thereby assist in protecting public health and safety. |
There are no additional costs created by the proposal. The effect of the proposal is to simply allow more risk-appropriate penalties to be applied where a bylaw is created to prohibit or restrict dangerous goods transport on certain high-risk roads. |
| 2 | Require road controlling authorities that decide to impose restrictions or prohibitions, to which Proposal 1 applies, to only do so after assessing the risk, to do so by making a bylaw and to install signs. | This proposal is not expected to have any impact on costs or benefits. | No additional costs have been identified. |
