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Telecommunication Towers and Low-Impact Facilities
Your rights to object to, or seek compensation in respect of, the installation of telecommunication infrastructure.
We rely so heavily on electronic communications these days (to conduct our professional, business and personal affairs) that we, as a society, collectively, appear to accept nothing less than absolute perfection on the issue of the speed, reliability, accessibility, and affordability, of the telecommunication infrastructure and services that facilitate such communications. We find nothing more frustrating than having our signals drop in and out during telephone conversations or other online activity/ies.
The telecommunication carriers (such as Telstra, Optus, Vodaphone and others) (the “Telcos”) know this obsession all too well, as does our government, and for this reason, so as to not incur the ridicule of other developed nations, the federal government has introduced a regulatory framework empowering the Telcos to access land to install low-impact facilities without the permission of the land owners/occupiers or the prior-approval of Council, provided that the Telcos have complied with the following stages:
- Stage 1 – Issue notice of proposed activities to the land owner/occupier;
- Stage 2 – Allow objection to proposed activities to be given by the land owner/occupier;
- Stage 3 – Engage in consultations with the land owner/occupier; and
- Stage 4 – Refer the dispute to the Telecommunication Industry Ombudsman if requested.
Bestowing such powers on the Telcos was probably an extreme step, you might be heard to say (especially when one is reminded of our theory of property law, which holds the ideals of exclusive property rights and ownership as absolutely sacrosanct). So, unsurprisingly, any attempt to alienate those rights away from the property owners/occupiers is typically met with severe criticism and rejection by our society and institutions alike, unless there is some good reason to depart from those time-honoured principles.
In this particular instance, the overriding public policy of ensuring that the advancement of our telecommunication infrastructure is not unduly impeded, if not altogether stifled, by owner objections (as the technology in this space advances so rapidly and ready access to land is essential), a decision, evidently, was made by our ruling forces to give the Telcos certain qualified powers and immunities to install telecommunication infrastructure without obstruction.
Illuminating the main qualifications placed on these Telco powers is precisely the intent of this article. A Telco, in seeking to exercise any such powers, must comply with a number of laws and codes, and afford the land owner/occupier certain rights (including without limitation the right to object to, or seek compensation in respect of, the low-impact facility) before the Telco is legally permitted to install the facility and/or equipment.
What regulatory framework governs the powers of Telcos to install low-impact facilities?
Schedule 3 of the Telecommunications Act 1997 (Cth) (the “Act“) and the Telecommunication Code of Practice 2018 (Cth) (the “Code“) set out the rights and responsibilities of Telcos to access the land of a land owner/occupier to install a low-impact facility, without the permission of the land owner/occupier or Council approval.
The Telecommunications (Low-impact Facilities) Determination 2018 (Cth) (the “Determination“) defines the type of telecommunication infrastructure and equipment considered to be low-impact facilities.
The Telecommunication Industry Ombudsman (the “TIO“) has jurisdiction to adjudicate (amongst other matters) disputes relating to the installation of low-impact facilities at first instance.
Stage 1 - Notice of proposed activities to the land owner/occupier
As the first step, the Telco must give the land owner/occupier written notice (the “Land Access Notice“) of its intention to access the land for the purpose of installing the low-impact telecommunication facility/ies (the “Activities“).
The Land Access Notice must be given to the land owner/occupier at least ten (10) business days prior to the proposed commencement date for the Activities.
The Land Access Notice must actually specify the proposed commencement date (the “Commencement Date“).
Stage 2 - Objection to proposed activities by the land owner/occupier
As the next immediate (and absolutely crucial) step, if the land owner/occupier wishes to object to the Activities proposed by the Telco, the land owner/occupier must give the Telco a written objection (containing valid grounds and supporting reasons) (the “Objection“) at least five (5) business days prior to the Commencement Date (the “Objection Timeframe“).
If the land owner/occupier fails to give a valid Objection to the Telco within the Objection Timeframe, the Telco can proceed with the Activities as proposed and the TIO will not have any jurisdiction to adjudicate the matter.
Stage 3 - Consultation period with the land owner/occupier
If the Telco does receive a valid Objection within the Objection Timeframe, the Telco must during the period of twenty (20) business days (the “Consultation Period“) make reasonable efforts to resolve the Objection with the land owner/occupier (the “Consultation“).
The Telco must start the Consultation with the land owner/occupier within the first five (5) business days of the Consultation Period.
If at the conclusion of the Consultation Period the Telco and the land owner/occupier have not been able to resolve the Objection by agreement, the Telco must then, within five (5) business days of the end of the Consultation Period, issue a final notice to the land owner/occupier advising whether the Telco intends to proceed with the Activities as initially proposed, or with changes, or at all (the “Final Decision Notice“).
If the land owner/occupier is not satisfied with the Final Decision Notice of the Telco, the land owner/occupier may write to the Telco (which must be done within five (5) business days after receiving the Final Decision Notice) directing the Telco to refer the Objection to the TIO (the “TIO Referral“).
Stage 4 - Referral to the Telecommunication Industry Ombudsman
If the land owner/occupier has validly requested a TIO Referral of the Telco, the Telco must submit a referral brief to the TIO as soon as practicable (and generally, this is expected to occur within twenty (20) business days from the date the Telco received the land owner’s/occupier’s request to make the TIO Referral).
The TIO will then reach out to the parties confirming receipt of the TIO Referral and advising any additional steps, documents and/or information, required of the parties.
The TIO will generally indicate a timeframe by which the TIO expects to issue a written decision on the Objection (the “TIO Decision“).
There is no right of appeal process set out in the Act, the Code or the Determination, in respect of the TIO Decision (and in the absence of some manifest procedural error, the TIO Decision is generally binding on the parties).
The land owner/occupier may, in certain limited circumstances, be able to have the TIO Decision reviewed by the Court (but specific legal advice must be sought about this complex point).
Is the land owner/occupier entitled to compensation from the Telco?
If the land owner/occupier suffers any financial loss or damage in relation to its property because of the Activities, the land owner/occupier may be entitled to compensation under section 42 of the Act.
Section 42(1) of the Act states, in essence, that:
- if a person suffers financial loss or damage because of anything done by the Telco (when installing the facilities) in relation to:
- any property owned by the person; or
- any property in which the person has an interest;
- then, there is payable to the person by the Telco such reasonable amount of compensation:
- as is agreed between them; or
- failing agreement, as is determined by a court of competent jurisdiction.
If you need expert legal advice or assistance in relation to objecting to telecommunication infrastructure (or related issues), please contact ADVIILAW today to speak to one of our experienced litigation lawyers.
Contact us on 07 3088 7937 or email us at [email protected].
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