As technology continues to evolve in the modern world and society relies upon telecommunications systems in their daily life, it's not surprising to learn that telecommunication facilities are being installed in all shapes and sizes across Australia.
The Telecommunications Act 1997 (Cth) (the Act) governs the existence of these facilities and provides broad powers and immunities for licensed carriers to deal with and use land which is owned by third parties. More specifically, the Act allows carriers to install a 'low-impact facility' on land without the need to obtain approvals from local, state or territory governments, and in some circumstances, without the consent from the landowner.
The main objectives of the Act include providing a regulatory framework that promotes the long-term interests of end-users of carriage services, the efficiency and international competitiveness of the Australian telecommunications industry and the availability of accessible and affordable carriage services that enhance the welfare of Australia.
This short update examines the kinds of disputes which can arise in relation to the Schedule 3 powers contained in the Act and the position taken by the Courts in respect of them. Our earlier article examines these powers. In summary, Schedule 3 of the Act allows a carrier to:
- Inspect land to determine its suitability - a broad power which allows carriers to enter on and inspect land to assess its suitability, including conduct such as felling or lopping trees, removing vegetation and undergrowth, or altering the position of a water, sewerage or gas mains or pipes.
-
Install a telecommunications facility on the land - this power
is only exercised in three circumstances:
- if a carrier has a facility installation permit;
- if the facility is defined as 'low-impact' under the Act; or
- if the facility is a temporary facility for use by or on behalf of a defence organisation for defence purposes.
- Maintain the facility on the land - a carrier can maintain a facility at any time.
The powers under Schedule 3 are closely intertwined. In the case of NBN Co Limited v Pipe Networks Pty Limited [2015] NSWSC 475, the Court stated that the Schedule was purposely constructed into separate divisions which give the parts of the schedule a logical form that reflects practical realities. A carrier first determines whether land is suitable for its purpose, installs its facilities on the land and is then entitled to maintain those facilities. The step between installation and maintenance is the operation of a facility.
Inspection
Before a carrier can inspect a potential site to install a facility, there are certain conditions to be met.
In the case of The Summit Group (Australia) Pty Ltd v Owners Corporation 1 Plan No PS746020J [2020] FCA 1847, the Summit Group (Summit) made an application to install radio communication antennae and associated equipment on common property of a strata plan building. In May 2020, Summit gave notice of its intention to access the property.
The Owners Corporation opposed the installation for various reasons, including an argument that the proposed installation was not a 'low-impact' facility and that proper notice had not been provided to them. Summit sought a declaration from the Court that they would be entitled to access the common property to carry out their inspection.
The Federal Court found that although the proposed installation met the definition of a low impact facility, Summit's application should be dismissed because they did not provide sufficient and valid notice to the Owners in accordance with the rule provided by the Telecommunications Code of Practice.
More specifically, the Court said that the notice was invalid because it notified a date for the proposed activities that did not also provide a statement explaining how to make an objection to the proposed activity.
Although carriers have a broad power to carry out certain things when inspecting land, the requirement to issue a notice gives substantive protections to landowners in circumstances where the Act authorises a substantial interference with private rights to real property.
Installation - a low-impact facility?
In the case of Melbourne City Council v Telstra Corporation Ltd [2020] FCAFC 200, Telstra proposed to install new payphone cabinet facilities within cities around the country which they classified to be a "low-impact" facility under the Act.
Melbourne (and also Brisbane) City Council opposed the installation on the basis that they weren't low impact because Telstra wanted to use them to display third party commercial advertisements. Under the Act's Telecommunications (Low-impact Facilities) Determination 2018 (the Determination), a public payphone must be 'used solely for carriage and content services' and cannot be used 'to display commercial advertising other than advertising related to the supply of standard telephone services'.
On appeal before the Federal Court, the Court agreed with Council and found that in accordance with the Determination, Telstra's phone booths would not be used 'solely for carriage and content services,' and therefore did not fall within the definition of a low-impact facility.
It is relevant to note that the Telecommunications (Low-impact Facilities) Amendment Determination 2021 has been enacted to amend the Determination in order to improve the operation of the telecommunications deployment framework to assist the rollout of 5G infrastructure and other facilities1. One key change includes the introduction of a 'certifiable facility'These changes will hopefully assist in navigating the Act in relation to the installation power and whether a facility can be installed under the 'low-impact' facility definition.
Maintenance - A trespass?
Although the powers under the Act can be quite broad, it's not always that simple for carriers to freely claim a piece of land or a tower for their facility.
The law of trespass, a cause of action which arises under common law as opposed to legislation, prevents unjustified interference with property (including land) without the consent of the owner or other lawful authority.
In the case of Hurstville City Council v Hutchison 3G Australia Pty Ltd [2003] NSWCA 179, Council owned a light pole which illuminated a local park. Hutchinson, a communications company, sought to replace the light pole and then install, maintain and operate a low-impact facility by attaching three antennae and a communications dish to the new pole. The carrier sought to undertake these works as a "maintenance activity" under the Schedule 3 provisions on the basis that the right of maintenance could rest upon the objective nature of the existing light pole as a structure suitable for use in the network.
Council opposed the proposed installation and the Court found in its favour, stating that the maintenance power should be construed as operating only in situations where the carrier's maintenance of an original facility would not constitute a trespass or other wrong. In summary, Council's ownership of the original pole armed it with the right to prevent interference with it by virtue of the law of trespass.
Where to from here?
Although the powers and immunities under the Act remain broad, it's comforting to know that carriers are now required to follow the newly enacted Telecommunications Code of Practice 2021 which has replaced the Telecommunications Code of Practice 2018.
The Code has confirmed and introduced provisions to protect landowners such as the requirement for carriers to:
- notify affected landowners and occupiers of any intended activities,
- provide them with the opportunity to object to those activities on certain grounds; and
- provide installation certificates to landowners after installing "certifiable facilities" which verify that a facility has been installed safely.
On the flip side, the Code also provides carriers with a conditional power to lodge objections by landowners with the Telecommunications Industry Ombudsman (TIO) if a carrier has made reasonable efforts to resolve the matter in good faith.
Watch this space! As we see more activity in the telecommunications space driven by a desire to move towards smarter cities, such as the rollout of further generations of the mobile network, there is no doubt that there will be more changes to the legislation governing this evolving area.
If faced with the possibility of a facility being installed on your land, you must ensure that a carrier is properly complying with the Act and the Code, so that you can determine whether the carrier's inspection, installation or maintenance is lawful.
If you require any advice in relation to the Act or this area of law generally, reach out to Bartier Perry's Commercial Disputes or Property, Planning and Construction team for assistance.
Footnote
1 Section 3.2(1) of the Telecommunications (Low-impact Facilities) Determination 2018 (Determination) provides that a certifiable facility is a facility described in column 2 of Items 3 to 8, 12 and 13 of Part 1 to the Schedule of the Determination and a solar panel described in column 2 of Item 7 of Part 3 to the Schedule. A facility is not a certifiable facility if it is located on the ground or attached to a structure which is owned by the carrier.
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.
