With the Government’s efforts to roll out the National Broadband Network (NBN), telecommunications carrier companies (carriers) will have requested many landowners enter into a telecommunications lease. This type of lease allows the carriers to access and install equipment on your land. If the carrier has asked you to enter into a lease or licence arrangement, you should understand your rights under the law and what to look out for in your lease.
Do Carriers and Landowners Need to Enter into a Telecommunications Lease?
Interestingly, the answer is no.
A carrier is not required by law to enter into any financial arrangement (such as paying a fee or rent) or telecommunications lease to access your land for the purpose of installing and maintaining their equipment for a fixed duration of time.
Carriers are perceived by the government to provide the necessary transmission infrastructure to which the public can access carriage and content services.
In recognition of this role, the law allows carriers the freedom to engage in the competitive market. The law does this by doing away with restrictions such as conforming with local planning laws and allowing unfettered access to private property.
Despite the lack of legal restrictions, a lot of carriers have offered to enter into a lease or licence arrangements with landowners as a show of good faith. They have offered to pay a licence fee or rent in return for access to the land.
Given the carrier’s legal representative prepares the telecommunications lease or licence, it would be unsurprising if the provisions of these agreements are favourable to the carrier. Below is a cheat sheet of what you should look out for in a carrier’s lease/licence documents:
1. The Proposed Location
Ask to see a plan of where the carrier is intending to install their equipment. Will they be running any underground cabling across your property that can affect your above ground use?
2. Term (Length) of the Telecommunications Lease/Licence
Is the telecommunications lease for a fixed duration or does the carrier have a right to exercise a further option or holding over the lease/licence?
Does the carrier need to notify you when the term ends or can they quietly stay on?
You should ensure that any licence fee or rent offered during the term also carries over the option or holding if the carrier does stay on your property.
It is worthwhile to ensure that there is an appropriate mutual indemnity provision in the lease/licence agreement to cover for unforeseen circumstances.
For example, you might want to ensure there is an adequate indemnity provision where the carrier’s equipment causes damage or contamination to your land.
4. Out of Pocket Costs
You should make sure that you factor all of your out of pocket costs and that the carrier reimburses you for these expenses and any future costs.
With the new rollout of the National Broadband Network (NBN), carriers have been active in requesting access to private land. If you find yourself being approached by a carrier with the offer to enter into a telecommunications lease or licence, be sure to read over the agreement carefully. Importantly, if you are unsure of your rights, ask! You can get in touch with our commercial leasing team on 1300 544 755.