With the government’s increased effort to fulfil its National Broadband Network (NBN) promise, telecom carriers have been quick to approach landowners to install telecommunication equipment on their property. Often, they will do this in the form of a telecommunications lease. Should a telecom carrier (such as Telstra, NBN Limited, Vodafone or Optus) approach you, this article provides insight into the laws surrounding your rights as well as theirs.
Types of Telecom Carriers
A telecom carrier is categorised by the type of telecommunication and infrastructure. A carrier is exempt from some state laws (including local planning laws) if their equipment is classified as:
- Low-Impact Facilities;
- Temporary Facilities for use by the defence force; or
- Facilities for which the Australian Communications and Media Authority (ACMA) has granted a Facility Installation Permit.
If a telecom carrier’s equipment facility does not fall within the above three categories, then it must comply with state laws and planning regulations.
Low-Impact Facilities Telecom Carriers
The most common type of telecom carriers that require access to private property and buildings are those with low-impact facilities.
The Telecommunications (Low-Impact Facilities) Determination 1997 (Cth) (‘the Determination’) contains the meaning of the term “low-impact facility”. The Determination specifies the types of telecommunications equipment and infrastructure (‘facilities’) which are low-impact.
‘Low-impact facilities’ includes underground cabling such as optical fibre and small antennae and radio communications dishes erected on existing towers or building.
Whether a particular facility that a telecom carrier proposes to install is a ‘low-impact facility’ will depend on both the types of facility and the type of land.
A facility is not a ‘low-impact facility’ if the area is one of environmental significance, such as:
- World Heritage property;
- A place that a listed international agreement requires Australia to protect;
- An area under state and Commonwealth law which is reserved for nature conservation purposes or protected from significant environmental disturbances; or
- An area under state or Commonwealth law entered into a register or otherwise identified as being of significance to Aboriginal persons or Torres Strait Islanders by their tradition.
The Law Governing Carriers
Collectively, the Telecommunications Act 1997 (Cth) (the Act), Telecommunications Code of Practice 1997 (the Code) and the Determination regulate the rights and obligations of telecommunications carriers for low impact facilities equipment. The combined effect of Schedule 3 of the Act and the Code is that a Carrier can exercise the following rights on private property:
- Enter and inspect any land, and do anything on the land that is necessary or desirable to determine whether the land is suitable for their purpose;
- Install low-impact facility on the land; and
- Maintain a telecommunications facility and may do anything necessary for the purpose of maintaining a facility including the alteration, removal, repair or replacement of the original facility in its original location, subject to certain constraints.
Carrier’s Responsibilities Under the Law
A Carrier must comply with the requirements under the Telecommunications Code of Practice which includes:
- Providing landowners and occupiers with written notice and outlining the objection process before commencing installation;
- Attempt to resolve objections from landowners and occupiers and refer unresolved objections to the Telecommunications Industry Ombudsman (TIO); and
- Take all reasonable steps to ensure that the land is restored to a condition similar to that before an activity began.
You cannot object to a Carrier wishing to exercise their statutory rights discussed above. However, if you do have any specific objections or complaints, you must first raise them to the Carrier. If you don’t reach a resolution, the matter may be referred to the TIO for the following matters:
- The location of the Carrier’s proposed facility;
- The date when the Carrier proposes to start the activity, engage in it or stop it;
- The likely effect of the activity on your land.
Common Disagreements Between Carriers and Landowners/Occupiers
You may be a land owner or occupier and are concerned that a Carrier is seeking to access your land to install a telecommunications facility that is not a low-impact facility or you may wish to raise an objection to TIO.
The NBN’s rollout will increase activity involving the installation of a broad range of telecommunications facilities on private land. Remember that the NBN facilities do not automatically qualify as low impact – they will only be considered as such if they meet the requirements of the Determination. If you think that a Carrier is installing a facility on your land that is not a low-impact facility, you should approach the TIO for more information. Some of the types of objection raised before the TIO are set out below.
The location of the Carrier’s proposed facility
A valid objection would be if you object to the carrier using your land to install the facility and you proposed a suitable alternative. For example, the neighbouring land that already has an existing facility that could be used to co-locate the proposed cabling.
The location of a facility on the land owner’s land
If your objection is to do with the location, you need to explain why the proposed location is not suitable for you. For example, if the Carrier proposes to run the conduit through your property, you could object and ask the carrier to run the conduit around the perimeter of the property instead. The Carrier in this circumstance will need to consider your request.
The date when the Carrier proposes to start the activity
You can object to the timing of the proposed installation activities and suggest an alternative date or duration. For example, if the Carrier approaches you with an indefinite future date to install its facility equipment, you can raise an objection on the basis that the Carrier has not provided you with enough certainty about the dates. The Carrier would then need to work with you to determine specific access dates that are mutually accepted.
The likely effect of the activity on your land
If you think that the proposed activities of the Carrier will have an impact on the condition of your land you may raise an objection to the TIO. For example, water contamination and permanent soil erosion – particularly if the proposed activity creates an ongoing risk to the land. Note that land owners cannot object to a temporary impact on the land that will be fixed once the installation activities are completed.
Does A Carrier Need to Enter into a Licence or Lease and Pay Rent for Using My Land?
Importantly, a Carrier is not required by law to enter into a financial agreement, licence or warranty of tenure (such as a lease) with a land owner/occupier to install and maintain a low-impact facility. This means that while the parties are free to enter into negotiations for access and tenure (and more often than now, the Carrier offers a licence of the lease agreement), the TIO cannot direct Carriers to enter into such an agreement.
As part of the Government’s telecommunication policy, the NBN will result in Carriers increasingly requiring access to private land to install the necessary equipment and facilities. Understandably, it may appear unsettling to private land-owners that the Carriers can do so without any right of objection unless permitted under the TIO.
It is, however, considered standard practice for Carriers to offer a landowner a lease or licence agreement (usually prepared by the Carrier’s lawyer). If you would like assistance in reviewing a telecommunications licence or lease or to discuss any of the issues raised above, get in touch with our commercial leasing lawyers on 1300 544 755.