The National Broadband Network (NBN) rollout has placed under the spotlight the powers of telecommunications carriers (telcos) to enter private property, including strata-titled properties. Telcos can already access strata-titled land to install telecommunications equipment that bolsters existing infrastructure, increase signal strengths and of course, install the cabling necessary for the NBN. This article looks at the respective bargaining power and rights of strata-titled properties and telcos to reduce confusion in this area and drive towards better-negotiated outcomes.
Process for an Installation on Strata Property
Telcos can install facilities on residential land, which includes strata titled land, such as:
- radio facilities,
- below ground cabling; and
- equipment shelters.
The NBN uses these types of low-impact facilities (facility) to provide connections to properties or increase coverage for existing services.
Telcos do not need to comply with most state and territory planning laws when they are looking to install facilities on residential land. This means they ordinarily don’t need to obtain specific development consent. Telcos do, however, need to pay close attention to land zoning. Your Local Council manages land zoning, which is set out in particular legal instruments called environmental plans. The zones indicate what types of development can occur within particular areas. For example, a supermarket is unlikely to pop-up on land zoned for residential use only. Land zoning interacts with telecommunications laws regarding where a telco can install a low-impact facility.
Inspections and Notice
Telcos do not need permission to enter strata titled land to carry out inspections and determine the suitability for the facility. This can include surveying and some drilling activities. Although this can appear invasive, as a strata manager, owner or committee member, there is little you can do to prevent these inspections as this is a legal power the telcos have.
If a telco determines the strata titled land is suitable, they must notify the Owners Corporation of their intention to install the facility. They must provide notice ten business days before the proposed commencement date setting out the following:
- the proposed activity and its purpose;
- how the Owners Corporation can make objections to the Telecommunications Industry Ombudsman (Ombudsman); and
- any proposed compensation for the installation of the facility (commonly a lease will be offered).
If you receive notice from the telco, take note of the objections section below. Now is also a good time to inform the owners and tenants of the notice’s contents. Early communication in strata will assist with any decisions that must be made regarding the installation.
Objecting to a Notice
Owners Corporations have five business days to object to a notice.
The telco must make a reasonable effort to consult with an objecting Owners Corporation. They have 20 working days from receiving the objection to consider any changes.
If parties cannot resolve the matter, the Owners Corporation can choose to refer their objection to the Ombudsman. They have five business days from receiving a response to do so, and the telco must comply with this request.
Objections typically relate to the powers telcos have under the Telecommunications Code of Practice 1997 (the Code). The Code requires that a telco:
- do as little damage as practical;
- restore the land after operations;
- manage the activities (this includes complying with standards and using qualified persons);
- follow the rules around noise control; and
- investigate whether there are existing services, public utilities or access points for public use that the installation may affect.
The Code also sets out what Owners Corporations can object to (and what the Ombudsman will consider when reviewing an objection), including telcos:
- use of the land;
- location on the land;
- dates for the activity;
- likely effect of the activity on the land; and
- suitability of the telco’s points around minimising damage and inconvenience in relation to the Owners Corporations’ ownership of the land.
The Ombudsman has the power to reject the objection, permit the activity or direct the telco to carry out the installation in a particular way.
Using the Ombudsman can be a good way to ease owners’ fears if the telco doesn’t negotiate. As a committee, it’s then important to consider the issues owners have alongside the points you intend to raise as objections. Early and diplomatic negotiations with the telco, however, can be far more productive.
The Bargaining Powers Involved
Telcos have a great deal of power during the investigation, notification and installation of a low-impact facility. They must comply with objection procedures but can otherwise regulate themselves when choosing to install a facility. An Owners Corporation does not necessarily have a right to compensation, or to reject the installation outright.
Telcos should attempt to listen to the owners’ concerns which more commonly relate to noise, safety and insurance. It’s surprising how parties can resolve these issues early through face-to-face negotiations.
An Owners Corporations’ most prominent power is objection. However, this can lead to a binding decision by the Ombudsman, and so you should use this mechanism sparingly. Again, the best tactic is pushing telcos to early round negotiations to explain your concerns.
Conflicts Between the Telco and Strata Laws
Owners Corporations must continue to comply with the law where telcos are installing equipment onto strata titled land.
Consent to Lease Over Common Property
Owners Corporations must approve any lease the telco offers by special resolution at a general meeting. Owners can vote down the lease but the telco can still proceed with installing the facility (subject to an objection or order from the Ombudsman).
If you’re looking for compensation for the inconvenience of the telco facilities, then this feature of strata law is important. Early communication with the owners is the best way to ensure you don’t have the bizarre situation where owners would vote down a lease but have the installation carried out anyway.
Consent to Alter or Add to the Common Property
Strata laws require an Owners Corporation to pass a special resolution to alter, add to or erect a new structure on the common property. Telcos generally have the legal authority to install facilities on private land. As such, it’s likely that telco laws can override this requirement. The special resolution would effectively have no power over a telco.
Responsibility to Repair and Maintain the Common Property
An Owners Corporation is responsible for repairing and maintaining the common property. Telco laws make a facility the property of the telco, even if it’s connected to strata-titled land. This means that an Owners Corporation does not need to repair and maintain low-impact facilities. To be safe, an Owners Corporation may decide, however, to pass a special resolution specifically removing the facility from its responsibility as it’s inappropriate for owners to repair and maintain.
Insurance Obligations Over the Building
The Owners Corporation is required to insure the building. The concept of ‘building’ is broader than just the common property and bundles together both common property and lots under an insurance contract.
This definition may also capture a facility installed on the common property. Telco laws do not offer specific guidance on this point but are designed to operate alongside state laws (such as strata laws) when they can.
Owners Corporations should notify their insurer when a telco installs a facility on common property to have it removed from their coverage and premium. Your insurer or broker can help you with this.
Private property includes strata-titled property, so it’s important owners corporations, committees and managers understand the telco’s powers. Owners Corporations should understand how to raise objections and facilitate discussions during the proposed installation of a facility. Remember, providing clear, concise information with owners and occupants if the foundation of strata.