Responding to a Land Access and Activity Notice from a Telecommunications Carrier

Recent media articles have discussed PIPE Networks (PIPE)’s ongoing expansion of its telecommunications network by installing fibre-to-the-building (FTTB) broadband services in capital city areas, including in Brisbane’s CBD and Fortitude Valley precincts. In addition, NBN Co Limited has started to roll out the national broadband network using fibre optic and other technologies.

A number of bodies corporate have recently received correspondence from PIPE which includes a Low Impact Notice (Notice) and a Land Access and Activity Notice (LAAN) for their schemes. The Notice and LAAN relate to PIPE’s proposed installation of FTTB equipment in scheme buildings by exercising its rights as a Carrier Licence holder under the Telecommunications Act 1997 (Cth) (the Telecommunications Act). PIPE have also proposed to install VDSL2 secondary equipment, in order to deliver NBN-style services to owners and occupiers in the building.

Bodies corporate understandably have concerns about receiving a Notice and LAAN from PIPE or other carriers. This article highlights a number of general issues that bodies corporate and body corporate managers should consider when they receive a LAAN from a telecommunications carrier.

What you need to know:

  • Telecommunications carriers including PIPE Networks and NBN Co are expanding their fibre optic networks in capital city areas, including by installing connections in basements of high-density residential buildings.
  • Carriers have broad powers under the telecommunications regulatory framework to enter and inspect land, and to install and maintain “low impact facilities” including some fibre optic connections.
  • A carrier must give a LAAN at least 10 days before starting their proposed activity. An owner/ occupier can object to the proposed activity, but only on limited grounds, in writing and within short timeframes before the proposed start date.
  • The carrier must pay compensation for any financial loss or damage to the property from its activities under a LAAN. However, it can be difficult for a body corporate to show real loss or damage from the activities.
  • A body corporate should not need to approve the installation of a low impact facility.
  • This article outlines several important issues and questions that that bodies corporate should consider when dealing with a carrier in relation to a LAAN and Notice for installing low-impact facilities.

Carrier powers vs body corporate responsibilities

The Telecommunications Act provides carriers with broad powers to enter and inspect land, and to install and maintain “low impact” telecoms facilities. In addition, regulatory amendments to facilitate the rollout of the National Broadband Network (NBN) and other next-generation broadband networks came into effect in 2011. These changes are intended to allow NBN Co and other carriers to more readily deploy fibre in the street, connect premises and locate equipment in multi-unit buildings (including by using low impact facilities).

Usually a body corporate would need to authorise any improvement to its common property. However, in our view a body corporate does not need to approve the installation of a low impact facility. This is because the Body Corporate and Community Management Act 1997 (Qld) is limited to improvements made by an owner or the body corporate. In this case the improvement is made by a third party, the Carrier Licence holder, relying on its authority under the Telecommunications Act.

Objecting to a LAAN

The Telecommunications Code of Practice 1997 (Code) provides for a right of objection to a LAAN and how objections must be managed. The Code provides for limited grounds for an owner/occupier to object to a LAAN, and any objection needs to be given to the carrier in writing within a short timeframe (see sidebar).

If the owner/occupier and carrier are unable to agree on how to resolve the objection, and if the grounds for objection fall within the jurisdiction of the Telecommunications Industry Ombudsman (TIO), the owner/occupier can ask that the matter be referred to the TIO (also within certain time limits).

Possible grounds for objecting to activity under a LAAN

  • using the owner’s land to engage in the activity;
  • the location of the facility on the land;
  • the date when the carrier proposes to start, engage in, or stop the activity;
  • the likely effect of the activity on the land; or
  • the carrier’s proposals about how it will minimise detriment or inconvenience and do as little damage as practicable, to the land.

Timeframes for objecting to activity under a LAAN

  • to a proposed inspection or survey activity – within 1 or 9 days of the notice, depending on whether a part of the land is in a “sensitive area” and whether the activities would cause a material disturbance to the land; or
  • to a proposed installation or maintenance activity – within 5 days before the proposed start date for the carrier’s activities.

Waivers

A LAAN may include a request that the body corporate or owner/occupier waive their right to object to the LAAN or to seek compensation. We would caution against the committee, body corporate or an owner/occupier signing anything that could waive their limited rights to object or to claim compensation under the Telecommunications Act and regulatory framework.

Electricity consumption

A Notice typically includes a description of the carrier’s physical space requirements, electricity needs and other technical aspects of its proposed installation. For example, we have sighted documents from PIPE which indicates that its facilities will need to be continuously connected to the existing electrical supply and consume about 3‑5kW per day. PIPE have offered to pay a fixed daily rate for electricity used by its equipment.

We suggest that the body corporate would need to consider whether a proposed rate covers its current costs of electricity, and agree with the carrier on how to manage any price increases going forward. While a body corporate has no statutory right to require a separate meter be installed for the carrier’s facility, this could provide an alternative solution if the parties are unable to agree a satisfactory mechanism for managing electricity costs.

Compensation

The Telecommunications Act requires a carrier to pay compensation for any  actual financial loss or damage in relation to the property that arises as a result of the carrier’s activities under.However, in our view this statutory mechanism is unlikely to be of much assistance in relation to low-impact facilities unless the body corporate can demonstrate the actual loss or damage from the carrier’s activities.

Concern about potential impacts to choice of services or providers

NBN Co announced in April 2014 that it would soon identify the capital city precincts in which it will deploy FTTB infrastructure, and some of these are likely to overlap with PIPE’s expansion plans. In the light of this, some bodies corporate have expressed concerns that PIPE’s proposed installations in their buildings could impact owners/occupiers’ choices about future services or providers.

PIPE has stated publicly that it will offer a wholesale arrangement under which other carriers who connect their own FTTB to the MDF room can leverage PIPE’s VDSL2 in-building facilities. If other carriers accept this arrangement, then any owner/occupier should be able to choose their provider of FTTB-based telephone or Internet services.

A body corporate should seek further information about the possible impacts of any carrier’s proposed FTTB and VDSL2 facilities and management arrangements on common property, and to their owners/occupiers future choices in future services and among service providers.

Things to consider when dealing with LAANs and Notices

  • Are there relevant grounds for a body corporate or owner/occupier to object to the carrier’s LAAN? Can the objection be made in-time? And is there broad support among body corporate’s members to make an objection?
  • If the carrier has proposed to pay the body corporate’s costs of electricity for operating the facilities, is the rate sufficient to cover current costs? How might the body corporate’s electricity costs change in future? Or is it reasonable to request that separately metering be installed for the facilities?
  • What access and safety plans has the body corporate put in place, and should these be reviewed before the carrier undertakes works?
  • What is the body corporate’s exposure for unsupervised work?
  • What are the body corporate’s duties to other carriers who already have equipment in the MDF room?
  • What steps should the body corporate and carrier take to avoid and correct any damage? If the carrier has caused loss or damage through its activities, should the body corporate consider claiming compensation under Schedule 3 of the Telecommunications Act?
  • What are the maintenance arrangements for the facilities?
  • Should the body corporate seek assurances from the carrier about the possible impacts of its installation on the current and future services that are delivered to owners/occupiers?

Glossary

  • Fibre To The Basement (FTTB) – A fibre optic connection that reaches the basement or main distribution frame (MDF) room in a multi-dwelling building.
  • Low Impact Facilities include some radio-communications facilities, underground and above-ground housing, underground and some aerial cables, public payphones, emergency and co-located facilities.
  • VDSL2 – A telecommunications connection that provides very high-speeds capable of simultaneously delivering applications such as high-definition TV, phone and general Internet access on existing copper telephone lines. Often used for “last mile” connections from the MDF room to individual units is delivered using other technologies such as VDSL2. Due to technical limitations of VDSL2 and for administrative reasons (including managing the cross-connect wiring arrangements for each unit), only one provider can effectively manage the “last mile” connection to each unit within the building.