With the passage of the Telecommunications Act 1997 (the Act), responsibility for the authorisation of most telecommunications facilities was passed from the Australian Government to state and territory governments. Previously, telecommunications carriers were able to freely site telecommunications facilities with exemption from state and territory law and, therefore, without local council planning approval. Approval for the majority of telecommunications facilities, including overhead cables and most radiocommunications towers, are now the responsibility of state and territory government and are usually dealt with by the relevant local government authority.
The Act now allows for only specified types of facilities to be installed under Commonwealth law. Most commonly these are low-impact facilities which are designed to have low visual impact. The Ministerial Telecommunications Code of Practice 1997 (the Ministerial Code of Practice) sets out in detail carriers' obligations and responsibilities when installing low-impact facilities, inspecting land and maintaining facilities.
Legislation and regulation outlines the legislative frameworks applying to the installation of telecommunications infrastructure.
- Notification of landowner/occupier
- Consultation with community
- Carrier obligations to minimise detriment
- Objections process
- Damage to facilities and property
The Ministerial Code of Practice also sets out the arrangements for a carrier to inform the land owner or occupier of the proposed installation and the processes that apply to objections to the activity.
In the majority of circumstances, carriers must provide written notice to landowners and occupiers of its intention to install a facility at least 10 business days before the activity is to take place. The notice must specify the purpose of the activity; contain a statement advising that compensation may be payable (under clause 42, Schedule 3 of the Act) if a person suffers financial loss or damage because of anything done by the carrier in engaging in the activity; and provide an explanation of the arrangements for making an objection to the activity.
The Deployment of Mobile Phone Network Infrastructure Industry Code (the Industry Code) outlines the consultation requirements that carriers must undertake prior to installing a new facility which has not been subject to state or territory development approval. A carrier must develop a consultation plan which identifies and addresses community interests. The carrier is also required to publish a newspaper notice in the affected surrounding area of the proposed activity. In general terms, the Industry Code principally addresses public health and safety. Therefore, precautions are taken to minimise exposure to radio emissions.
With respect to the installation of low-impact facilities, the Ministerial Telecommunications Code of Practice 1997, replicates and expands on conditions set out in the Act, and imposes additional conditions on carriers. Among the conditions set out under the Ministerial Code of Practice, carriers must:
- cause as little detriment, damage and inconvenience as practicable;
- ensure that land is restored to a condition similar to its condition before the activity began;
- act in accordance with good engineering practice; protect the safety of persons and property;
- minimise interference with public utilities, roads and paths, traffic and land use; and
- comply with the noise limits set out in the relevant state or territory law between 10:00pm and 7:00 am.
For a full list of the conditions that apply to carriers undertaking activities authorised by the Telecommunications Act 1997, refer to the Telecommunications Code of Practice in Legislation and Regulation.
The Ministerial Code of Practice also sets out timeframes and processes for landowners and occupiers to lodge objections to proposed activities. The carrier must include in its notice to the landowner or occupier a statement explaining the arrangements for making objections to the activity. The arrangements include the allowable reasons for objecting to the installation and the timeframes for lodging the written objection to the carrier.
If the objection complies with the objection processes, reasons and timeframes, the carrier must not engage in the low-impact activity unless the objection is resolved between the carrier and objector or the objection is referred to the Telecommunications Industry Ombudsman (TIO) for resolution within a specified timeframe.
If an objector does request that the carrier refer the objection to the TIO within 5 business days of the carrier receiving the written objection, the TIO may give a direction to the carrier about the way in which the carrier should engage in the activity. The carrier must comply with any such direction of the TIO.
The ACMA is responsible for ensuring that low-impact facilities are installed according to the Ministerial Code of Practice. Where a carrier has breached the Ministerial Code of Practice, the ACMA may take enforcement action.
Under Commonwealth law, Clause 47, Schedule 3 of the Telecommunications Act 1997, it is stipulated that a facility, or a part of a facility, that is supplied, installed, maintained or operated by a carrier remains the property of its owner.
At common law, property owners may have obligations to avoid damage to telecommunications facilities, including, but not limited to, underground cables and overhead cables.
In effect, if a carrier was able to demonstrate that a property owner, deliberately or negligently caused damage to a facility, the owner of that facility may be able to seek damages from a property owner in a court of law.
Section 42, Schedule 3 of the Telecommunications Act 1997 (the Act), deals with compensation issues. Compensation may be awarded to property owners under certain circumstances as detailed in the provisions of Section 42 of the Act. However, further to the information provided in relation to notification by landowners and occupiers, carrier notifications must provide details to property owners or occupiers of the activity they are proposing to undertake, as well as a statement which implies that if a person suffers financial loss or damage to property caused by the carrier in engaging in its activity, compensation may be payable.
The Act requires carriers to pay reasonable compensation to the property owner or occupier when, but not limited, in relates to:
- damage to a temporary or a permanent structure; and
- the taking of sand, soil, stone, gravel, timber, water and other things.
The Act also provides provisions whereby a decision can be determined by the courts if a carrier and property owner or occupier cannot agree on 'reasonable compensation'.