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Can a Telco install their services without body corporate approval?

Yes, but… In the past number of years, we’ve been involved in some matters where a telecommunications company may want to install their services on body corporate property. Some have involved mobile phone towers or satellite dishes, and others have installed fibre as an alternative to the NBN. In some cases, we have heard that some members of the public have had these services arranged by caretakers and letting agents. (It should be made clear that it is only the right of the body corporate to deal with these matters, and never a caretaker, letting agent, or body corporate manager. We have heard of these parties arranging telecommunications facilities in buildings which may be a conflict of interest, but that is a different topic for a different time.)

Can a telco just waltz in and install property? In general, yes, but there are a few caveats. The body corporate can and should protect itself to ensure it gets the best deal possible. We will briefly discuss the powers that Telcos have under Schedule 3 of the Telecommunications Act 1997 (Cth) and what a body corporate should be aware of.

Under Schedule 3 of the Act, a Telco has certain powers and immunities. Chiefly, a Telco has the power to inspect land, install facilities on that land, and maintain those facilities. This may involve body corporate land. For example, a Telco may want to install a mobile phone tower on the roof of a tall body corporate complex, or they may want to run cabling through a building to provide alternative telecommunications services.

However, these powers come with responsibilities that a body corporate should be aware of. This power can only be exercised by a Telco in three ways:

1. If the Telco holds a permit to install their facilities;

2. If the facility is a “low-impact facility”; or

3. If it’s a temporary facility for defence purposes.

What usually happens is a Telco will seek to install a low-impact facility, which is defined by regulations from time to time. Low-impact facilities are generally those that have a low visual impact and do not have much impact on planning and environmental concerns. Examples of these include satellite dishes, antennae, and cabling. This is an easier process for the telco, as they don’t have to apply for a permit with the Australian Communications and Media Authority (ACMA).

If a Telco has a permit, then that means the Telco will have complied with their obligations under the Telecom Act. This includes giving the body corporate notice of their intention, negotiating in good faith, and providing appropriate compensation for any loss the body corporate may incur.

What is of concern is the installation of a low-impact facility. For example, if cabling is installed in a building, this innocuous activity may go unnoticed. We have been made aware by a member of the public where a number of buildings have had low-impact facilities installed before the body corporate was even made aware of it happening and is now negotiating after the fact.

If a Telco is wanting to install low-impact facilities in a body corporate complex, these are the issues that a body corporate should be aware of. The two main issues are that of notice, and compensation.

Notice must be given. This is the most important part. A telco must give the body corporate at least 10 business days’ notice before installing or maintaining facilities. For inspection, they can give 2 business days’ notice, but only if the inspection has no impact. An example of this could be walking around and inspecting cabling. However, in some urgent situations to protect things like people, property, services, or the environment, no notice needs to be given.

In the case of a body corporate, this notice must be given to the body corporate. Often, the address for service for a body corporate may be the office of the body corporate manager for the complex. It’s important to note that although the body corporate manager may receive the notice, only the body corporate may make any decision in relation to that notice – not a caretaker, a letting agent, nor an owner, but only the body corporate.

Compensation for acquisition of property.

In certain circumstances the body corporate may claim compensation from the telco. If compensation is payable and the amount not not agreed upon, it must be decided by a court.

It’s important to note that a body corporate cannot refuse the installation of a low-impact facility. However, if the facility is installed on common property, then that is an acquisition of property – it’s effectively renting out part of the common property. Because of this, the Telco must negotiate reasonable compensation. One option we have dealt with in the past is a registered lease which governs the installation and maintenance of facilities on body corporate property, including rent being payable as a form of compensation. This is an attractive option, as it provides protection for both the Telco and the body corporate. Other forms might be, say, a lump-sum payment or an ongoing fee.

Although the Telco may install low-impact facilities at will, they must cause as little interference as possible. A Telco needs to do its utmost to ensure that any inspection, installation, and maintenance is done with as little damage, detriment and inconvenience as possible. This includes ensuring that no roads or paths are blocked. Further, a Telco must restore land to a similar condition that they found it in. This must be done within 10 business days of finishing their activity on the land.

There are two cases that have been heard by the Commissioner’s Office on this issue. The first is Auchen Towers [2000] QBCCMCmr 585. One-Tel wanted to install facilities at the back of the property, and organised a lease of common property. The body corporate voted, but it was not a resolution without dissent. As One-Tel was going to install the facility under the Telecom Act with or without a lease, the votes in dissent were held to be unreasonable, and the motion was passed.

The second is Burleigh Surf [2008] QBCCMCmr 78. Allegro wanted to install facilities and wanted to organise a lease on common property. With or without the lease, they were going to install the facilities anyway under the Telecom Act. However, the proposed lease was voted on by the committee, and not the full body corporate. It was held to be a restricted issue, and the resolution by the committee was held to be void.

Can a Telco install their services on body corporate common property? Yes, they have that full power. But, they must negotiate reasonable compensation with the body corporate, and cause as little interference as possible. The body corporate as a whole should vote on the issue, and not just the committee. A body corporate should be aware of these issues so that if it ever happens in their complex, they know their rights.

This is general information only, and is not legal advice. The rules and requirements under the Telecommunications Act 1997 (Cth) are complex and if you have concerns about Telcos installing property in your complex, you will need proper legal advice specific to your situation.


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