Telecommunications facilities that are not covered by the Telecommunications Act 1997 are likely to require approval under state or territory law, usually at the local government level. The types of facilities that require local council planning approval include broadband overhead cable and all freestanding mobile phone towers.
Licensed telecommunications carriers are authorised by the Telecommunications 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 and its amendment of 1999.
The code is available on the Communications Alliance website and the ACMA website.
The ACMA website also has responses to frequently asked questions as well as fact sheets on low impacts facilities:
Exemption from state and territory planning laws
A carrier who complies with the Telecommunications Act when installing a low-impact facility is immune from some state and territory laws, including town planning, use of land, tenancy and commercial and domestic power supply laws. The Act also offers immunity from environmental assessment and protection laws, with the exception of laws pertaining to the protection of places or items of significance to the cultural heritage of Aboriginal persons or Torres Strait Islanders, for installation or maintenance of facilities.
What rights do carriers have?
Under the Telecommunications Act, carriers have the following rights.
Right to inspect land - carriers may enter onto and inspect any land, and do anything on the land that is necessary or desirable for the purpose of determining whether the land is suitable for their purposes.
Right to install low-impact facilities - carriers have the right to install a low-impact facility.
Right to maintain telecommunications facilities - carriers have the right to maintain a telecommunications facility and may do anything necessary for the purpose of maintaining a facility including an alteration, removal or repair of a facility.
The Telecommunications Code of Practice 1997 (amended in 2002) sets out in detail carriers’ rights and responsibilities when inspecting land; installing low-impact facilities, subscriber connections and temporary defence facilities; and maintaining facilities. When undertaking these activities, 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
protect the environment
minimise interference with public utilities, roads and paths, traffic and land use
act in accordance with good engineering practice and ensure that the design, planning and installation of the facilities is in accordance with best practice and complies with the ACMA or industry codes or standards
protect the safety of persons and property
co-locate facilities with the existing facilities of other carriers or public utilities or use public easements
co-operate with other carriers and public utilities who are undertaking similar activities on the same land to minimise inconvenience and damage.
The Code of Practice makes it mandatory for carriers to:
where relevant, notify the Director of National Parks, the Heritage Chairperson and the Environment Secretary at least 10 business days before the start of the proposed activity
comply with the noise limits set out in the relevant state or territory law between 7:00 am and 10:00 pm (mandatory).
Notifying landowners and occupiers of low-impact facilities installation
Carriers have obligations under the Telecommunications Act and the Code of Practice to provide written notice to landowners and occupiers at least 10 business days before the activity starts. The notice must specify the purpose of the activity; contain a statement advising that compensation may be payable if a person suffers financial loss or damage to the property; and provide an explanation of the arrangements for making an objection to the activity.
The Code of Practice also sets out timeframes and processes for landowners and occupiers to lodge objections to proposed activities. If such objections are not resolved between the carrier and the landowner or occupier, the objection can be referred to the Telecommunications Industry Ombudsman (TIO) for resolution.
The Australian Communications and Media Authority (the ACMA) is responsible for ensuring low-impact facilities are installed according to the Code of Practice. Where a carrier has breached the Code of Practice, the ACMA may take enforcement action, which may include formal warnings or directions to comply with the code.
Notifying councils and communities of low-impact facilities installation
The Communications Alliance Ltd Industry Code C564:2011 Mobile Phone Base Station Deployment places obligations on carriers to notify and consult with councils and communities about proposals to install low-impact radiocommunications facilities such as mobile phone network antennas and dishes.
The industry code places general obligations on carriers to provide to councils on request:
information to assist councils to develop their forward plans
carrier plans concerning deployment of radiocommunications infrastructure
radiocommunications service level targets
information regarding facility co-location opportunities.
The industry code places specific requirements on carriers to notify councils, in writing, of the proposed location of a new facility, a written description of that facility and a written statement setting out whether the carrier regards the infrastructure as a low-impact facility under the Low-impact Facilities Determination.
The carrier must allow 10 business days from the date of notification for the council to provide written comment about the proposed community consultation plan.
The industry code supplements the regulatory regimes provided by the Commonwealth and by states and territories. It applies a ‘precautionary principle’ and other obligations on all telecommunications 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.
What action can be taken if a carrier does not consult councils and communities in line with the code?
If a carrier has not met its mandatory obligations under the industry code, any complaints should be made in writing and directed to the carrier in the first instance. The industry code specifies mandatory processes for complaint-handling by carriers.
The ACMA has the power to issue formal warnings and directions to carriers to comply with the industry code. There are penalties for failing to comply with an ACMA direction.
How do councils and communities know whether a facility is low-impact?
The ACMA does not have powers under the Telecommunications Act to make a ruling about whether a facility is low-impact or not. Similarly, the ACMA cannot rule or make a recommendation about whether a carrier should place a facility on an alternative site or install a facility in a particular way.
Where a council does not agree with a carrier that a telecommunications facility is low-impact, the council should seek legal advice from a qualified legal practitioner. Only a court of law can make a ruling on the interpretation of legislation.
Do carriers have to co-locate facilities?
Carriers are encouraged to share sites or co-locate new mobile phone facilities in order to minimise the proliferation of facilities across multiple sites. The Code of Practice requires a carrier to take all reasonable steps to use existing facilities when installing a low-impact facility and the Low-impact Facilities Determination similarly encourages co-location.
The Communications Alliance Ltd industry code further requires carriers to have regard to any obligations and opportunities to co-locate facilities.
Part 5 of Schedule 1 of the Act also gives a carrier the right to access telecommunications towers and the underground facilities of other carriers. Carriers must comply with the conditions set out in the Facilities Access Code issued by the Australian Competition and Consumer Commission (ACCC). Generally, a carrier can only refuse access to another carrier for technical reasons.
In August 2000, mobile phone carriers established the Mobile Carriers’ Forum (MCF) to deal with social and environmental issues associated with mobile telecommunications networks. The MCF, a committee of the Australian Mobile Telecommunications Association (AMTA), the peak mobile telecommunications industry body, encourages mobile carriers to share future infrastructure rollout plans to identify co-location and joint development application opportunities.
How many radiocommunications facilities are within a council boundary?
All radiocommunications facilities must be licensed by the ACMA. The ACMA maintains a Register of Radiocommunications Licences, which lists operational facilities. Most carriers forward their registrations to the ACMA in batches at regular intervals, which means that the register may not list all radiocommunications facilities current at any particular time.
The MCF maintains an electronic Radio Frequency National Site Archive, which lists new mobile base station facilities built or upgraded since April 2003.