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The rules and regulations around telecommunication facilities in
Australia are continuously evolving. Under Schedule 3 of the
Telecommunications Act 1997 (Cth) (the
Act), telecommunication carriers are provided with broad
powers to inspect land to determine its suitability to house,
install and maintain their facilities at any time. Our earlier article examined these three powers in
more detail.
The Act requires a carrier to take all reasonable steps to
ensure that they cause as little detriment and inconvenience, and
do as little damage, as is practicable. Despite this, as more and
more facilities are being installed across the country, landowners
and occupiers are frequently concerned about the broad powers which
allow carriers to easily install these facilities on their
properties.
Fortunately, the Telecommunications Code of Practice 2021
(the Code) provides clarification as to how
landowners and occupiers can protect their rights. This article
briefly sets out the Code’s regime to object to land access
activities, low-impact facility activities and maintenance
activities.
Stage 1: Notice of proposed activities
Under the Code, a carrier must first give written notice of
proposed activities. This notice is given by way of service of a
land access activity notice (LAAN). The LAAN must
specify the proposed start date for the activity and be provided at
least ten business days before this date.
Stage 2: Objections
A landowner or occupier may object to the activity. An objection
must be in writing and be sent to the carrier at least five
business days before the proposed start date of the activity.
The Telecommunications Industry Ombudsman (TIO)
provides some guidance on reasons for an objection, which include
the following:
Using the objector’s land to engage in the activity
This can be raised when an objector thinks that there is an
alternative site outside of their land which allows the carrier to
fulfil its purpose in installing the facility. An objector is
expected to explain why the use of their land is inconvenient,
problematic or not suitable, and by reason of this, propose an
alternative third party location that may be suitable.
The location of a facility on the objector’s land
This can be raised when an objector is of the view that there is
an alternative location on their land which can be used.
The date when the carrier proposes to start the activity,
engage in it or stop it.
This can be raised in circumstances where the proposed
installation date is inconvenient to the objector or if the
proposed duration of the installation activities exceed what is
reasonably required.
The likely effect of the activity on the objector’s
land
This can be raised when an objector is concerned that the
proposed activities create an ongoing risk to the land or are
likely to have a practical or physical effect on or in a building
on the land. For example, water contamination and permanent soil
erosion or where the activities compromise the structural integrity
of buildings, poles or other structures on the land.
In this regard an objector is required to identify the specific
risk that is not adequately addressed under the carrier’s
proposal to carry out the activity.
It should be borne in mind that an objector cannot rely on this
ground to object about a temporary impact on the land which will
cease once the installation activities are complete.
The carrier’s proposals to minimise detriment and
inconvenience, and to do as little damage as practicable, to the
objector’s land
This does not allow an objector to object simply because the
proposed installation activities will cause detriment,
inconvenience or damage to land, but rather, can be relied upon in
circumstances where an objector feels that a carrier has not
implemented sufficient measures to minimise detriment and
inconvenience, and to do as little damage as practicable, to the
land.
Where possible, an objection should offer up proposed
alternatives for the carrier to consider or request that the
carrier consider whether there are suitable alternatives.
Stage 3: Consultation period
Once an objection has been received by the carrier, a mandatory
consultation period commences for a period of 20 business days.
During this time, a carrier must make “reasonable
efforts” to resolve the objection by consulting with the
landowner or occupier, which includes attempting to clarify the
grounds for the objection, discussing the grounds in detail,
considering suitable alternatives and using reasonable efforts to
accommodate a land owner or occupier’s suggestions.
At the conclusion of the consultation period, the carrier must
provide a written notice which informs the landowner or occupier if
they intend to carry out the activity in the manner originally
proposed (and set out the reasons why) or that they will carry out
the activity with modifications.
If a landowner or occupier is not satisfied with the notice from
the carrier, they may request that the dispute be referred to the
TIO. A carrier has ten business days to refer the objection.
Stage 4: Referral to the TIO
During this stage, the TIO will usually invite the carrier and
the landowner or occupier to provide further information and
documents before it will commence its assessment of the objection,
which may include the TIO inspecting the subject site where the
activities are to be carried out.
Ultimately the TIO will either issue a binding direction to the
carrier about how it is to conduct the activity or give no
direction (meaning that the carrier can proceed with the
activity).
Court intervention
In situations where a landowner or carrier are unsatisfied with
the TIO’s decision, they have the option to appeal the decision
through the Courts.
In the case of State of Queensland v Telecommunications
Industry Ombudsman [2021] FCA 522, the State of Queensland
(the State) approached the TIO after Optus issued
a Maintenance Access and Activity Notice to it (being the owner of
the land) to install a fibre optic cable within an existing conduit
on a bridge owned by the State. In response, the State lodged an
objection under clause 6.29 of the Code, and when the parties could
not resolve the matter amongst themselves, the State requested that
the matter be referred to the TIO.
The TIO concluded that the State failed to substantiate its
objections as follows:
-
regarding the likely effect of the second proposed activity on
the land – the State failed to show that the proposed activity
would cause ongoing detriment; -
regarding the location of the facility on the State’s land -
the TIO observed that this was a narrow ground of objection and,
for it to be met, the State was expected to point out an
alternative location on its land that the carrier could use (which
it did not do); and -
regarding Optus’ proposals to minimise detriment and
inconvenience, and to do as little damage as practicable, to the
land – the State was required to identify a specific concern, but
Optus had adequately addressed any concerns and fulfilled its
obligations under the Act and the Code.
The State was unsatisfied with the TIO’s decision and filed
an application against it and Optus in the Federal Court of
Australia seeking judicial review of the decision for various
reasons. In relation to the State’s objection, the State argued
that:
-
The TIO made an error of law by deciding the onus was on an
objector to show an alternative location for the proposed work, as
the carrier has the relevant knowledge to determine the location of
telecommunication facilities and technical expertise under the Act.
The Court said that while in different factual circumstances there
may be an issue of onus in respect of an objection, it did not need
to make a finding on this point because the activity was
maintenance as opposed to installation on the basis that a conduit
was being installed in an existing facility; and -
The TIO made an error of law by finding that Optus’ failure
to comply with a section of the Act (clause 11 of Schedule 3 which
requires carriers to make reasonable efforts to enter into an
agreement with a public utility) could not be a basis for objecting
to the proposed activity. The Court found there was no direct link
between clause 11 and the clauses relating to the grounds for an
objection and therefore, could not find that a failure to comply
with clause 11 translated to a ground of objection.
The State appealed the Court’s decision in the Federal Court
of Appeal in State of Queensland v Telecommunications Industry
Ombudsman [2022] FCAFC 158, but once again, was
unsuccessful.
This case confirms that the Court will look to the Code when
examining an objection. It also highlights that the TIO’s
decision on a dispute is not always the end of the road for
carriers and landowners, as the Court has the power to quash or
vary a decision.
We expect that disputes concerning the Act and proposed
activities will increasingly be litigated before the Courts as
carriers continue to expand their networks across the country.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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