We have seen a significant increase in telecommunication providers seeking to access a body corporate scheme via a land access and activity notice (or LAAN) to:
- carry out an inspection of the scheme to assess the viability of an installation; and
- carry out works to install certain types of telecommunication facilities.
In some cases the telecommunication providers are using this approach to access the body corporate to undertake works that go beyond the Telco Rights.
It is important to be aware that in certain circumstances the body corporate can seek to oppose the Telco Rights if the body corporate does not want the installation to proceed.
In the article we discuss Telco Rights and the body corporate rights to object to a LAAN in more detail.
The Telecommunications Act 1997 (Cth) and the Telecommunications Code of Practice 2018 gives Telco Rights to telecommunication providers. The Telco Rights do not need the consent of owners, occupiers or the body corporate.
However, the Telco Rights only exist if:
- proper notice has been given to the body corporate through the LAAN; and
- if the LAAN relates to an installation, it only relates to installing “lowimpact facilities”.
Any LAAN must:
- specify the purpose of the Telco Rights;
- contain certain statements to the body corporate explaining compensation and objection rights;
- be given with at least 10 business days’ notice (or 2 business days’ notice for an inspection).
For a LAAN relating to an installation, it is important that the proposed installation falls within the determination of a lowimpact facility. Otherwise, the telecommunications provider does not have any Telco Rights.
What amounts to a lowimpact facility is determined by the Minister in the Telecommunications (Low-impact Facilities) Determination 2018.
Any objection to a LAAN must:
- be made only on the basis of certain categories of reasons; and
- be given in strict timeframes after receiving the LAAN.
Upon making an objection the telecommunications provider then has a period to make reasonable efforts to resolve the objection by agreement.
If agreement is reached, the telecommunications provider must comply with the agreement.
Failing agreement, the telecommunications provider must advise the body corporate whether they propose to change the activity or why they will continue unchanged.
If the Body Corporate still objects the next step is to progress the objection with the Telecommunications Industry Ombudsman.
The Body Corporate is entitled to compensation in relation to financial loss or damage. This has been given a broad interpretation by the Courts.
What should a committee do?
If a committee receives a LAAN it is important that it acts swiftly. If swift action is not taken, the body corporate may lose any objection rights, even if such an objection would be valid.
Mahoneys has assisted numerous bodies corporate in advising on LAANs, objecting to LAANs and negotiating with telecommunication providers.