Objecting to a telecommunication carrier’s land access activity notice

The rules and regulations around telecommunication facilities in Australia are continuously evolving. Under Schedule 3 of the Telecommunications Act 1997 (Cth) (the Act), telecommunication carriers are provided with broad powers to inspect land to determine its suitability to house, install and maintain their facilities at any time. Our earlier article examined these three powers in more detail. 

The Act requires a carrier to take all reasonable steps to ensure that they cause as little detriment and inconvenience, and do as little damage, as is practicable. Despite this, as more and more facilities are being installed across the country, landowners and occupiers are frequently concerned about the broad powers which allow carriers to easily install these facilities on their properties.

Fortunately, the Telecommunications Code of Practice 2021 (the Code) provides clarification as to how landowners and occupiers can protect their rights. This article briefly sets out the Code’s regime to object to land access activities, low-impact facility activities and maintenance activities.   

Stage 1: Notice of proposed activities

Under the Code, a carrier must first give written notice of proposed activities. This notice is given by way of service of a land access activity notice (LAAN). The LAAN must specify the proposed start date for the activity and be provided at least ten business days before this date.

Stage 2: Objections

A landowner or occupier may object to the activity. An objection must be in writing and be sent to the carrier at least five business days before the proposed start date of the activity.

The Telecommunications Industry Ombudsman (TIO) provides some guidance on reasons for an objection, which include the following:

Using the objector’s land to engage in the activity

This can be raised when an objector thinks that there is an alternative site outside of their land which allows the carrier to fulfil its purpose in installing the facility. An objector is expected to explain why the use of their land is inconvenient, problematic or not suitable, and by reason of this, propose an alternative third party location that may be suitable.

The location of a facility on the objector’s land

This can be raised when an objector is of the view that there is an alternative location on their land which can be used.

The date when the carrier proposes to start the activity, engage in it or stop it. 

This can be raised in circumstances where the proposed installation date is inconvenient to the objector or if the proposed duration of the installation activities exceed what is reasonably required.

The likely effect of the activity on the objector’s land

This can be raised when an objector is concerned that the proposed activities create an ongoing risk to the land or are likely to have a practical or physical effect on or in a building on the land. For example, water contamination and permanent soil erosion or where the activities compromise the structural integrity of buildings, poles or other structures on the land.

In this regard an objector is required to identify the specific risk that is not adequately addressed under the carrier’s proposal to carry out the activity.

It should be borne in mind that an objector cannot rely on this ground to object about a temporary impact on the land which will cease once the installation activities are complete.

The carrier’s proposals to minimise detriment and inconvenience, and to do as little damage as practicable, to the objector’s land

This does not allow an objector to object simply because the proposed installation activities will cause detriment, inconvenience or damage to land, but rather, can be relied upon in circumstances where an objector feels that a carrier has not implemented sufficient measures to minimise detriment and inconvenience, and to do as little damage as practicable, to the land.

Where possible, an objection should offer up proposed alternatives for the carrier to consider or request that the carrier consider whether there are suitable alternatives.

Stage 3: Consultation period

Once an objection has been received by the carrier, a mandatory consultation period commences for a period of 20 business days. During this time, a carrier must make “reasonable efforts” to resolve the objection by consulting with the landowner or occupier, which includes attempting to clarify the grounds for the objection, discussing the grounds in detail, considering suitable alternatives and using reasonable efforts to accommodate a land owner or occupier’s suggestions.

At the conclusion of the consultation period, the carrier must provide a written notice which informs the landowner or occupier if they intend to carry out the activity in the manner originally proposed (and set out the reasons why) or that they will carry out the activity with modifications. 

If a landowner or occupier is not satisfied with the notice from the carrier, they may request that the dispute be referred to the TIO. A carrier has ten business days to refer the objection.

Stage 4: Referral to the TIO

During this stage, the TIO will usually invite the carrier and the landowner or occupier to provide further information and documents before it will commence its assessment of the objection, which may include the TIO inspecting the subject site where the activities are to be carried out.

Ultimately the TIO will either issue a binding direction to the carrier about how it is to conduct the activity or give no direction (meaning that the carrier can proceed with the activity).

Court intervention 

In situations where a landowner or carrier are unsatisfied with the TIO’s decision, they have the option to appeal the decision through the Courts. 

In the case of State of Queensland v Telecommunications Industry Ombudsman [2021] FCA 522, the State of Queensland (the State) approached the TIO after Optus issued a Maintenance Access and Activity Notice to it (being the owner of the land) to install a fibre optic cable within an existing conduit on a bridge owned by the State. In response, the State lodged an objection under clause 6.29 of the Code, and when the parties could not resolve the matter amongst themselves, the State requested that the matter be referred to the TIO.

The TIO concluded that the State failed to substantiate its objections as follows:

• regarding the likely effect of the second proposed activity on the land – the State failed to show that the proposed activity would cause ongoing detriment;

• regarding the location of the facility on the State’s land – the TIO observed that this was a narrow ground of objection and, for it to be met, the State was expected to point out an alternative location on its land that the carrier could use (which it did not do); and

• regarding Optus’ proposals to minimise detriment and inconvenience, and to do as little damage as practicable, to the land – the State was required to identify a specific concern, but Optus had adequately addressed any concerns and fulfilled its obligations under the Act and the Code.

The State was unsatisfied with the TIO’s decision and filed an application against it and Optus in the Federal Court of Australia seeking judicial review of the decision for various reasons. In relation to the State’s objection, the State argued that:

• The TIO made an error of law by deciding the onus was on an objector to show an alternative location for the proposed work, as the carrier has the relevant knowledge to determine the location of telecommunication facilities and technical expertise under the Act. The Court said that while in different factual circumstances there may be an issue of onus in respect of an objection, it did not need to make a finding on this point because the activity was maintenance as opposed to installation on the basis that a conduit was being installed in an existing facility; and

• The TIO made an error of law by finding that Optus’ failure to comply with a section of the Act (clause 11 of Schedule 3 which requires carriers to make reasonable efforts to enter into an agreement with a public utility) could not be a basis for objecting to the proposed activity. The Court found there was no direct link between clause 11 and the clauses relating to the grounds for an objection and therefore, could not find that a failure to comply with clause 11 translated to a ground of objection.

The State appealed the Court’s decision in the Federal Court of Appeal in State of Queensland v Telecommunications Industry Ombudsman [2022] FCAFC 158, but once again, was unsuccessful.

This case confirms that the Court will look to the Code when examining an objection. It also highlights that the TIO’s decision on a dispute is not always the end of the road for carriers and landowners, as the Court has the power to quash or vary a decision. 

We expect that disputes concerning the Act and proposed activities will increasingly be litigated before the Courts as carriers continue to expand their networks across the country.

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.

Authors: Gavin Stuart & Rebecca Renshaw