Telephone companies need to install facilities to be able to deliver services to their customers. While current government policy allows the rollout of these facilities, one of the aims of the Telecommunications Act 1997 is to balance the needs of telephone companies with the rights of landowners and occupiers and local residents.
When installing large telecommunications facilities such as mobile phone towers, telephone companies generally need to obtain local council planning permission and comply with relevant state and territory planning laws. However, telephone companies licensed by the ACMA as 'carriers' may install a limited range of facilities without seeking state or territory planning approval. The most common of these are 'low-impact facilities'.
What are low-impact facilities?
Low-impact facilities are those which, because of their size and location, are considered to have a low visual impact and be less likely to raise significant planning, heritage or environmental concerns. The Telecommunications (Low-impact Facilities) Determination 1997 lists types of low-impact facilities. Examples of low-impact facilities are:
- small radiocommunications dishes and antennae;
- underground cabling and cable pits; and
- public payphones.
Facilities such as overhead cabling and freestanding mobile phone towers are not classified as low-impact facilities and their installation requires local council approval. However, the determination identifies certain equipment as low impact when it is mounted on existing structures such as buildings, poles or towers. It also classifies an extension of up to five metres on an existing tower as low impact, provided the tower has not previously been extended.
If a facility is to be installed in an environmentally significant area such as a World Heritage Area, it cannot be a low-impact facility. The Low-impact Facilities Determination lists the types of areas that are considered environmentally significant.
Exemption from state and territory planning laws
A carrier authorised under the Telecommunications Act to install a low-impact facility is immune from some state and territory laws, including town planning and environmental laws.
This immunity applies during the inspection of land, the installation of certain types of telecommunications facilities, including low-impact facilities, and the maintenance of facilities. However, while engaged in these activities, the carrier must comply with the requirements in the Telecommunications Act and the Telecommunications Code of Practice 1997. The Telecommunications Code of Practice only applies when the immunity from state and territory laws applies.
Immunity from certain state and territory laws does not apply to the everyday operation of low-impact facilities, for example, their operation must comply with any state restrictions on noise emissions.
Telecommunications Code of Practice
The Telecommunications Code of Practice, made by the Minister in 1997 and amended in 2002, requires that when a carrier is installing low-impact facilities, it must take all reasonable steps to:
- ensure as little detriment, damage and inconvenience as practicable is caused
- ensure that the land is restored to a condition that is similar to its condition before the installation 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
- protect the environment (including ecosystems, people and communities; resources; qualities and characteristics of locations and areas, and the social, economic and cultural aspects of all these)
- co-locate facilities with the existing facilities of other carriers or public utilities, or utilise public easements
- cooperate with any other carriers or utilities engaging in a similar activity for the same land to cause as little detriment, damage and inconvenience as possible
- find out whether it is necessary to notify the Environment Secretary of the installation.
The Telecommunications Code of Practice also requires a carrier to:
- maintain records about the type and location of certain facilities
- comply with any standard or code registered with the ACMA
- ensure that the design, planning and installation of the facility are in accord with best practice and comply with the ACMA's legislation, industry codes or standards
- comply with specified noise limits
- notify the owner and occupier of the land at least 10 business days before commencing the installation
- make reasonable efforts to consult with, and resolve the objection from, any owner or occupier who makes a written objection
- respond to such an objector in writing
- refer the matter to the Telecommunications Industry Ombudsman (TIO) if the objector requests this in writing within five business days of receiving the carrier's written response
- comply with any direction from the TIO
- if required, notify the Director of National Parks, the Heritage Chairperson and the Environment Secretary, at least 10 business days before the start of the activity
- comply with any notice given by the Environment Secretary.
Objections by land owners or occupiers
An owner or occupier of land can object to the carrier about the installation of a low-impact facility on their land under the Telecommunications Code of Practice.
Objections may be made about:
- the use of the land to engage in the activity
- the location of a facility on the land
- the date when the carrier proposes to start the installation, engage in it or stop it
- the likely effect of the installation on the land
- the carrier's proposals to minimise detriment and inconvenience, and to do as little damage as practicable, to the land.
Strict timeframes apply to the objection process. An objection under the Telecommunications Code of Practice must be made in writing to the carrier at least five business days before the commencement date for the installation in the carrier's notice.
If the objection is not resolved, the objector can require the carrier to refer the matter to the TIO. Once a carrier has considered an objection and responded to the objector in writing, the objector has five business days to request the carrier in writing to refer the objection to the TIO.
The TIO may investigate the proposal and decide whether to issue a direction to the carrier about the installation. Carriers must comply with a TIO direction. The TIO can also investigate complaints that a carrier has failed to give notice as required by the Telecommunications Code of Practice or about the manner in which the carrier has entered the 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.
Co-location of low-impact facilities
To minimise the visual impact of telecommunications facilities, carriers have extensive rights under the Telecommunications Act to place facilities in or on those of other carriers, and they are expected to cooperate with other carriers in sharing sites. A carrier may only refuse access by another carrier for technical reasons.
Mobile Phone Base Station Deployment Code
The Communications Alliance Ltd has developed a code of practice, Industry Code C564:2011 Mobile Phone Base Station Deployment, which covers community consultation requirements among other things.
The Industry Code C564:2011 Mobile Phone Base Station Deployment is available on the Communications Alliance website and the ACMA website.
The ACMA website also has responses to frequently asked questions about the code and about mobile telephones as well as fact sheets including:
Role of the ACMA
While the ACMA cannot consider an objection to a facility authorised under the Telecommunications Act, it has broad powers to investigate carrier compliance with the Act and related legal instruments such as the Telecommunications Code of Practice, and may warn or direct a carrier to comply with its obligations. Carriers who fail to comply with an ACMA direction may be subject to civil penalties.
If a particular facility is not authorised under the Telecommunications Act, it is subject to a local council planning scheme. For details about planning schemes, contact your local council. The ACMA does not authorise low-impact facility installations, nor does it assess installations to determine whether they are low-impact. That is a role for local government through its planning function.
For information about the TIO's role in dealing with low-impact facilities, contact the TIO on 1800 062 058 or see the TIO website at www.tio.com.au (enter 'low-impact' in the search facility box on the home page).
The Telecommunications (Low-impact Facilities) Determination 1997 and the Telecommunications Code of Practice 1997 are available through the ACMA website.
The ACMA has fact sheets on a range of other topics.
Please note: this document 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.