Body Corporate Pays the Price for Refusing Access

The court has recently hit a body corporate with costs after a telecom provider obtained an injunction against them for refusing to allow the provider access to the body corporate’s land (Satellite & Wireless Pty Ltd v Body Corporate for Brighton on Broadwater Sundale North 1 Community Titles Scheme 48640 [2018] FCA 723 (4 May 2018)).

The applicant, a licensed telecommunications carrier under the Telecommunications Act 1997 (Cth) (the Act) filed for the injunctive relief when the body corporate in question refused them access to their land.

What prompted the case was the applicant’s need to expand its radio signal coverage for its network in and around the area surrounding the body corporate’s premises. The provider sought to make arrangements with the body corporate for its staff to conduct an inspection of the premises in order to determine whether it would offer a suitable location for better coverage to its existing and new customers.  Complying with necessary procedures of the Act, the applicant gave notice to the body corporate of its proposed inspection. Following this, their representatives attended the land and were denied access to the roof of the building.

The applicant’s resulting concern was a commercial one, claiming it was at risk of losing existing customers and not being able to gain further customers due to the deficiency in signal coverage. In modern times, it is simply fact that consumers have come to expect immediacy and adequacy of telecommunication signal coverage in major metropolitan areas, so it is understandable why an apprehension to insufficient coverage might give rise to such a concern.   That said, as an owner of land the body corporate could feel justified in taking the view that it did not need to submit to works to benefit some third party commercial telecom operator.

The body corporate failed to make an appearance at the court application and injunctive relief was ordered against the body corporate.

It is critical that Bodies Corporate realise that the Act confers (subject to particular statutory conditions) a right of access for the purpose of inspecting particular premises so as to determine their suitability for the placement of telecommunications equipment and some rights to install that equipment.

With the required notice given in this case, and the body corporate refusing to allow the inspection without any reasonable cause, the judge ruled that on these circumstances, the applicant was entitled to injunctive relief to force the body corporate to allow the inspection and the body corporate was made to pay the applicant’s legal costs.

An expensive day for the Body Corporate, which could have been averted had the Committee simply sought proper legal advice in respect of the notice (and it is assumed the committee did not seek that advice).  Heaven help the Committee members once the lot Owners become aware of the increase in their levies to fund the payment of those legal costs – those Committee members might have unwittingly exposed themselves to personal liability for the cost….

The case is a salient reminder that body corporates ought to obtain legal advice whenever they receive a land access notice from a telecommunications carrier.

If your body corporate receives a land access notice and would like to know its rights and obligations – please do not hesitate to contact us.

As always, the team at Active are here to help.