Legislation & regulation

Schedule 3 of the Telecommunications Act 1997 provides carriers with the power to inspect land to determine whether the land is suitable for the carriers’ purposes; install a facility on the land; and the power to maintain a facility that is situated on the land.

The power to install a facility may only be exercised with respect to certain types of infrastructure, such as a facility defined in the Ministerial Telecommunications (Low-impact facilities) Determination 1997 or a temporary defence facility, or if the carrier holds a Facility Installation Permit (FIP). Carriers wishing to apply to the ACMA for an FIP should refer to the guide when preparing for the permit.

In exercising its powers, carriers must comply with conditions set out in Schedule 3 and in the Ministerial Telecommunications Code of Practice 1997.

The four mobile carriers that install radiocommunications facilities (frequently to expand mobile phone networks) must also comply with the Communications Alliance Ltd industry code, Mobile Phone Base Station Deployment.

• Telecommunications Act
• Low-Impact Facilities
• Telecommunications Code of Practice
• Carrier conditions
• Notification of landowners and occupiers
• Objection processes
• Deployment of Mobile Phone Network Infrastructure industry code

Telecommunications Act

The passage of the Telecommunications Act 1997 (the Act) restricted the rights of carriers to install telecommunications facilities under Australian Government authority. Previously, telecommunications carriers were able to freely site telecommunications facilities with exemption from state and territory law and, therefore, without local council planning approval. The Act now allows for only specified types of facilities, most commonly low-impact facilities, which are designed to be unobtrusive, to be installed under Commonwealth legislation. Approval for the majority of telecommunications facilities, including overhead cables and most radiocommunications towers, are now the responsibility of state and territory governments and are usually dealt with by the relevant local government authority.

Low-impact facilities

Licensed telecommunications carriers are authorised by the Telecommunications Act 1997 (the Act) to install a limited range of facilities without seeking state, territory or local government planning approval. The most common of these are known as 'low-impact' facilities which are specified in the Telecommunications (Low-impact Facilities) Determination 1997 (the Determination) and its amendment of 1999.

Low-impact facilities include small radiocommunications antennae and dishes that are erected on existing towers or buildings and that are designed to be unobtrusive. Other types of low-impact facilities include underground and above ground housing, underground cables, public payphones and temporary emergency facilities. The Act precludes certain types of facilities from being defined as ‘low-impact’. For example, aerial cables cannot be low-facilities.

The Determination specifies the maximum dimension of each type of facility. For example, a tower that is not attached to a building and which is higher than 5 metres cannot be specified as a low-impact facility, although the addition of antennas may result in the total height of a facility being greater than 5 metres. One commonly installed low-impact facility is 5.8 metres high. By contrast, mobile phone towers are generally 25 to 30 metres high. In some cases, the colour of a low-impact facility is required to be matched to its background or in a colour agreed by the carrier and the local authority.

The Determination defines where facilities may be installed based on the zoning of the site as commercial, industrial, residential or rural under state or territory laws. For example, a facility that is deemed low-impact in a rural or industrial zone may not be low-impact if it is installed in a residential area. A facility in an area of environmental significance, such as a World Heritage area or an area on the Register of the National Estate, cannot be designated a low-impact facility.

See the table below for some designated 'low-impact' facilities including dimension and zoning limitations.

*Note: This table is a guide only. Please refer to the Telecommunications (Low-impact Facilities) Determination 1997 and seek your own advice regarding compliance.

ACMA has no role in determining whether or not a particular installation is a low-impact facility. Binding determinations as to whether a facility is a low-impact facility are made by courts, typically in response to proceedings commenced by state, territory or local governments.

Telecommunications Code of Practice

The Ministerial Telecommunications Code of Practice 1997 (the Ministerial Code of Practice) and its amendment of 2002, sets out in detail carriers' obligations and responsibilities when installing low-impact facilities, inspecting land and maintaining facilities.

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Carrier conditions

With respect to the installation of low-impact facilities, the Ministerial Code of Practice replicates or expands on conditions set out in the Act, and imposes additional conditions on carriers. Under the Ministerial Code of Practice, carriers must take all reasonable steps to:

• 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;
• ensure that the design, planning and installation of the facilities is in accordance with best practice and complies with ACMA or industry codes or standards;
• minimise interference with public utilities, roads and paths, traffic and land use;
• protect the environment;

Carriers must also:

• make reasonable efforts to enter into an agreement with public utilities about the installation;
• comply with industry standards and listed international agreements;
• provide notice to road authorities and utilities; and
• maintain records about certain facilities;
• ensure that the design, planning and  installation of facilities is in accordance with best practice;
• comply with the noise limits set out in the relevant state or territory law between 10:00 pm and 7:00am;
• take all reasonable steps to co-locate facilities with the existing facilities of other carriers or public utilities or use public easements; and
• co-operate with other carriers and public utilities who are undertaking similar activities on the same land to minimise inconvenience and damage; and
• where relevant, notify the Director of National Parks, the Heritage Chairperson or the Environment Secretary of the proposed activity.

Notification of landowners and occupiers

The Ministerial Code of Practice also sets out the arrangements for carriers to inform land owners or occupiers of 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 an 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.

Objection processes

The Ministerial Code of Practice also sets out timeframes and processes for landowners and occupiers to lodge objections to proposed activities. A carrier must include in a 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:

Situation

1. The objection is resolved by an agreement between the carrier and objector.
2. A request to refer the objection the the Telecommunications Industry Ombudsman is not received by the carrier within the 5 business days.
3. The Telecommunications Industry Ombudsman deals with the objection without giving a direction to the carrier, and the Ombudsman informs the carrier in writing of that outcome.
4. The Telecommunications Industry Ombudsman gives a direction to the carrier.

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 Code of Practice, the ACMA may take enforcement action.

Mobile Phone Base Station Deployment industry code

The installation of all mobile phone telecommunications facilities are subject to additional requirements imposed by theindustry code C564:2011 Mobile Phone Base Station Deployment (the Industry Code). The Industry Code was made by the Communications Alliance Ltd and is registered by the ACMA under Part 6 of the Act.

The Industry Code supplements the regulatory regimes provided under Commonwealth, state, and territory laws. It applies a 'precautionary principle' and other obligations on all carriers with respect to facilities that are installed as low-impact under Commonwealth law and to facilities that are not low-impact and installed with local government development approval.

While any complaints about a carrier’s compliance with the industry code are directed to the carrier in the first instance, the ACMA has the power to issue formal warnings and directions to carriers to comply with the industry code.

For further information about the Industry Code, refer to the ACMA fact sheet: ‘Placement of mobile phone towers’ on the ACMA website provided on the EME web portal at: emr.acma.gov.au.

For information about regulatory arrangements see the ACMA fact sheet: Electromagnetic energy.