Telecommunications facilities Information for rural communities

communicating | facilitating | regulating

© Commonwealth of Australia 2010 This work is copyright. Apart from any use as permitted under the Copyright Act 1968, no part may be produced by any process without prior written permission from the Australian Communications and Media Authority. Requests and enquiries concerning reproduction and rights should be addressed to: Manager Communications and Publishing Australian Communications and Media Authority PO Box 13112 Law Courts Melbourne Vic 8010

ISBN 0642 78345 4 Disclaimer: Please note that this information is intended as a guide only and should not be relied on as legal advice or regarded as a substitute for legal advice in individual cases.

The Australian Communications and Media Authority (the ACMA) is responsible for regulating telecommunications and radiocommunications, including radiocommunications and telecommunications licensing, spectrum management, compliance with codes and standards, performance monitoring and consumer safeguards. The ACMA also administers legislative provisions relating to powers and immunities of carriers in installing communications facilities. Telecommunications companies are currently rolling out communications infrastructure, including optical fibre cable, to provide access for rural customers to broadband services and to improve competitiveness within the Australian telecommunications market. The ACMA has developed this brochure to inform rural landowners and occupiers about their rights and obligations under the current legislative regime. Significant change in laws—1997 The Telecommunications Act 1997 brought in important legislative changes governing the installation of telecommunications facilities. Under the previous legislation, telecommunications carriers were exempt from local council planning requirements and were able to freely site telecommunications facilities. Now, in some situations, carriers must seek approval for these facilities through local council planning schemes. However, there are certain activities undertaken by carriers that are exempt from state or territory laws. These exemptions are contained in Schedule 3 to the Telecommunications Act. The most common exemption applies to the installation of ‘lowimpact facilities,’ which are covered in this brochure.

1

What are low-impact facilities? Low-impact facilities are an important part of telecommunications networks. They include underground cabling such as optical fibre, as well as small antennae and radiocommunications dishes erected on existing towers or buildings. The Telecommunications (Low-Impact Facilities) Determination 1997 and its Amendment No.1 of 1999 specify the low-impact facilities regulated by the Telecommunications Act and the areas—residential, commercial, industrial or rural—where they can be installed. Importantly, a facility is not a low-impact facility if the area where it is to be installed is an area of environmental significance. An area of environmental significance includes: >> an area declared as a world heritage property (as defined in the Environment Protection and Biodiversity Conservation Act 1999) >> a place that Australia is required to protect by the terms of a listed international agreement >> an area entered in the Register of the National Estate or the Interim List for the Register >> an area under the law of the Commonwealth, a state or a territory reserved wholly or principally for nature conservation purposes >> an area under a law of the Commonwealth, a state or a territory protected from significant environmental disturbance >> an area under a law of the Commonwealth, a state or a territory that consists of a place, building or thing entered in a register relating to heritage conservation >> an area under a law of the Commonwealth, a state or a territory entered in a register or otherwise identified as being of significance to Aboriginal persons or Torres Strait Islanders in accordance with their traditions.

2

What rights do carriers have? Under the Telecommunications Act, carriers have the following rights. Right to inspect land Carriers may enter 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 the alteration, removal, repair or replacement of the whole or part of the original facility in its original location, subject to certain constraints. What are carriers’ responsibilities? Carriers seeking to install a low-impact facility must comply with Schedule 3 to the Telecommunications Act and the Telecommunications Code of Practice 1997. The Telecommunications Code of Practice covers the responsibilities of carriers, including requirements to: >> provide written notice to landowners and occupiers, outlining the objection process, before commencing installation >> attempt to resolve objections from landowners and or occupiers and where any objection cannot be resolved, refer the objection to the Telecommunications Industry Ombudsman (TIO) >> do as little damage as practicable and act according to good engineering practice >> comply with recognised industry standards >> take all reasonable steps to ensure that the land is restored to a condition similar to that before an activity began >> take all reasonable steps to use existing facilities for the activity >> when installing a low-impact facility between 10:00 pm and 7:00 am, make no more noise than is allowed under the relevant state or territory law applying to similar activities.

3

Your rights As mentioned above, the Telecommunications Act authorises a carrier or a contractor conducting work on the carrier’s behalf to enter on land and exercise the following powers: >> inspect the land >> install a facility >> maintain a facility. Before carrying out any of these activities, the carrier must give written notice of its intentions to the owner of the land and the occupier, except where landowners or occupiers have waived their right of notification, or activities need to be carried out without delay for protective reasons (refer to How much notice should I receive from a carrier? under Frequently asked questions involving low-impact facilities below). The notice must specify the purpose for which the carrier intends to engage in the activity and contain a statement that if a person suffers financial loss or damage in relation to the property because of anything done by the carrier in engaging in the activity, compensation may be payable. In most cases, notice must be given 10 business days before the carrier begins the activity. If the land is not in an area of environmental significance or sensitive area, or the activity does not cause any material disturbance to the land, at least two business days notice must be given before the carrier begins the inspection of land. The notice can be served on a person by delivering it personally, leaving it at or sending it by pre-paid post to the address of the place of residence or business of each owner and occupier of the land. In the first instance, a complaint by a landowner or occupier should be directed to the carrier. Where the carrier fails to resolve the complaint, the matter can then be raised with the TIO, provided that the strict timeframes are met. Reasons for objecting can only relate to any or all of the following matters:

4

>> using the objector’s land to engage in the activity >> the location of a facility on the objector’s land >> the date when a carrier proposes to start the activity, engage in it or stop it >> the likely effect of the activity on the objector’s land >> the carrier’s proposals to minimise detriment and inconvenience, and to do as little damage as practicable, to the objector’s land.

An owner of a property, or a person with an interest in a property, is entitled to compensation for any financial loss or damage caused by a carrier when entering and inspecting land, or installing or maintaining a low-impact facility. Section 42 of Schedule 3 to the Telecommunications Act provides for compensation in relation to financial loss or damage, while section 62 of Schedule 3 allows for compensation with regard to acquisition of property. A claim for compensation is not a ground for objection under the Telecommunications Code of Practice. If the amount of compensation cannot be agreed between the parties, a court may decide on what is a reasonable amount. Frequently asked questions involving low-impact facilities How much notice should I receive from a carrier? A carrier is required to give written notice to the owner of land and the occupier of the land if the land is occupied by someone other than the owner. The notice must specify the purpose for which the carrier intends to engage in the activity and must contain a statement to the effect that if a person suffers financial loss or damage in relation to the property because of anything done by the carrier in engaging in the activity, compensation may be payable. Further, the notice must be given at least 10 business days before the carrier begins to engage in the activity. Only two business days notice before a carrier begins an inspection of land is required if the land is not in an area of environmental significance. However, a notice is not required in circumstances where the activities need to be carried out without delay in order to protect any or all of the following: >> the integrity of a telecommunications network or a facility >> the health and safety of persons >> the environment >> property >> the maintenance of an adequate level of service. What can I do about maintaining paddock hygiene? A concern for carriers and property owners alike is the possibility of the transfer of weeds and diseases from one property to another or from one paddock to another.

5

Carriers are required to take all reasonable steps to ensure that they cause as little detriment and inconvenience and as little damage as is practicable. Carriers must also take all reasonable steps to protect the environment. The possibility of transferring weeds and diseases on equipment used for the inspection, maintenance or installation of low-impact facilities can be minimised by carriers taking preventative action, such as washing down equipment before entering onto land. Landowner and occupier concerns about the transfer of weeds or disease via carrier equipment should be discussed with the carrier. The landowner or occupier should make use of the written objection process if such concerns are unresolved. What can I do if I am dissatisfied with the restoration work carried out on my land? A carrier is required to take all reasonable steps to ensure that it causes as little detriment and inconvenience and does as little damage as practicable. They must take all reasonable steps to ensure that the land is restored to a condition similar to the condition before the activity began. Restoration work must commence within 10 days of the completion of the activity unless a latter date has been agreed between the owner, the occupier and the carrier. Landowners and occupiers should discuss planned restoration work and any concerns about the quality of the work with the carrier in the first instance and, if dissatisfied, raise the matter with the TIO. The Telecommunications Industry Ombudsman The role of the TIO is to receive, investigate and help resolve complaints about the provision or supply of telephone and internet services. The TIO may also investigate and help resolve certain complaints made by landowners or occupiers of land. These include, but are not limited to: >> failure by a carrier to give notice of its intention to exercise its statutory rights >> the manner in which the carrier entered on to the land >> objections to carrier notices >> failure to take all reasonable steps to cause as little detriment, inconvenience and damage as is reasonably practicable, and/or failure to repair damage >> inadequate compensation. 6

The TIO may investigate an objection and decide whether to issue a direction to the carrier about the installation. Carriers must comply with a direction issued by the TIO. Compensation may be payable to a person who suffers financial loss or damage because of the actions of a carrier when installing a low-impact facility. If the parties cannot agree on suitable compensation, the matter will need to be determined by the courts. The TIO can be contacted by telephone on (free call) 1800 062 058, by email to [email protected] or by mail to PO Box 276 Collins Street West, Melbourne Vic 8007. The Australian Communications and Media Authority The role of the ACMA is to investigate systemic breaches of the Telecommunications Act and to pursue, where appropriate, regulatory action against carriers for breaches of the Act or the Telecommunications Code of Practice. The ACMA does not have the power to make determinations or recommendations for compensation for the resolution of individual complaints.

7

Useful references Where to find Commonwealth legislation and related documents: >> The Telecommunications Act 1997 (Schedule 3) is accessible through the ACMA website at www.acma.gov.au. >> The Telecommunications (Low-Impact Facilities) Determination 1997 and Amendment No.1 of 1999 are on the Department of Broadband, Communications and the Digital Economy website at www.dbcde.gov.au. >> The ACIF C564:2004 Deployment of Mobile Phone Network Infrastructure Code is on the Communications Alliance website at www.commsalliance.com.au. Other publications The ACMA has published a range of relevant publications: >> Installation of telecommunications facilities— A guide for consumers >> Electromagnetic energy >> Placement of mobile phone towers >> Accessing and installing telecommunications facilities—A guide These are available on the website at www.acma.gov.au. Other useful websites Telecommunications Industry Ombudsman (TIO) at www.tio.com.au. Communications Alliance, previously ACIF, at www.commsalliance.com.au.

8

acma consumer

Canberra PO Box 78 Belconnen ACT 2616 T 02 6219 5555 F 02 6219 5353 Melbourne PO Box 13112 Law Courts Melbourne Vic 8010 T 03 9963 6800 F 03 9963 6899 TTY 03 9963 6948 Sydney PO Box Q500 Queen Victoria Building NSW 1230 T 02 9334 7700 F 02 9334 7799

www.acma.gov.au