How to Object to a Mobile Phone Tower
If a telecommunications company is intending to install a mobile phone tower on land you own, occupy or are located nearby, it must issue a Land Access and Activity Notice (‘LAAN’).
What is a Land Access and Activity Notice?
A LAAN is a written notice issued by a licensed telecommunication carrier (‘Carrier’) (such as Telstra for example) to the owner or occupier of land specifying the purpose for which the Carrier will enter the land.
A Carrier may enter the land and exercise any of the following powers:
- the power to inspect the land to determine whether the land is suitable for the Carrier’s purposes;
- the power to install a ‘low-impact facility’ on the land (such as a mobile telecommunications tower); and
- the power to maintain a facility that is situated on the land.
For the purposes of this article, we will consider a LAAN seeking to install a ‘low-impact facility’ on the land, such as a mobile phone mast or extension to a tower.
What are the notification requirements of the LAAN?
Generally, the LAAN must specify:
- the purpose for which the Carrier intends to engage in the activity;
- details of the actions that the Carrier expects to take, as part of the low-impact facility activity, on the land affected by the activity;
- a statement explaining that if a person suffers financial loss or damage in relation to the property because of anything done by a Carrier in engaging in the activity, compensation may be payable; and
- a statement explaining the arrangements for making objections to the activity.
The LAAN must be given to the owner, or occupier, of land at least 10 business days before the Carrier begins to engage in the activity. This is a very limited amount of time and therefore if you are in receipt of a LAAN, you must act quickly in order to preserve your rights.
Installation of ‘low-impact facility’
A Carrier is empowered by the Telecommunications Act 1997 (Cth) (the ‘Act’) to enter land and install a ‘low-impact facility’ without State, territory or local government planning approval, nor the consent of the owner or occupier of the land.
Schedule 2 of the Telecommunications (Low-impact Facilities) Determination 1997 provides an exhaustive list of facilities that are low-impact facilities. However, a Minister may, by written instrument, determine that a specified facility is a low-impact facility.
The Carrier may do anything on, over or under the land that is necessary and desirable for the installation of the low-impact facility, including:
- constructing, erecting and placing any plant, machinery, equipment and goods on the land;
- felling and lopping trees, clearing and removing other vegetation and undergrowth;
- making cuttings and excavations;
- removing and disposing of soil and other material, and restoring the surface of the land;
- erecting temporary workshops, sheds and other buildings, and
- levelling the surface of the land and making roads.
However, the Act and the Telecommunications Code of Practice 1997 (the ‘Code’) impose several conditions on the Carrier before, and during, the carrying out of the installation, which require the Carrier to:
- take all reasonable steps to cause as little detriment, damage and inconvenience as is practicable;
- ensure that the land is restored to a condition similar to its conditions before the activity began;
- act in accordance with good engineering practices;
- protect the safety of persons and properly ensure the activity interferes as little as practicable with the operations of public utilities, roads and paths, the movement of traffic and the use of the land;
- protect the environment;
- engage in the activity in accordance with any industry standards recognised by the Australian Communications and Media Authority that are likely to reduce a risk to the public;
- engage in the activity in a manner consistent with obligations under any listed international agreements;
- keep and maintain records about certain facilities;
- ensure the design, planning and installation of facilities is in accordance with best practice;
- comply with specified noise restrictions;
- take all reasonable steps, before engaging in the activity, to co-locate facilities within the existing facilities or easements of other carriers or public utilities; and
- co-operate with other carries and public utilities who are undertaking similar activities on the same land to minimise inconvenience and damage.
Objecting to the LAAN
The owner, or occupier, of the land may object to the LAAN. The objection must be in writing and contain reasons for the objection.
The reasons for the objection may relate only to all or any of the following matters:
- using the objector’s land to engage in the activity;
- the location of a facility on the objector’s land;
- the date when the Carrier proposes to start the activity, engage in it or stop it;
- the likely effect of the activity on the objector’s land; or
- the carrier’s proposals to minimise detriment and inconvenience, and to do as little damage as practicable, to the objector’s land.
Time for giving objection to Carrier
The Objection must be given to the Carrier at least 5 business days before the Carrier proposes to engage in the low-impact facility activity. Once the objection is received by the Carrier, the Carrier must make reasonable efforts to consult with objector about the objection within 5 business days after receiving the objection.
The Carrier must also make reasonable efforts to resolve the objection by agreement with the objector within 20 business days after receiving the objection.
If the objection is not resolved by agreement within 20 business days after receiving the objection, the Carrier must consider whether to change the low-impact facility activity. However, the Carrier is not required to change the activity in a way that is:
- not economically feasible;
- not technically practicable;
- likely to have a greater adverse effect on the environment than engaging in the activity as originally proposed; or
- inconsistent with a recognised industry standard or practice relevant to the activity.
Within 25 business days after receiving the objection, the Carrier must tell the objector in writing:
- whether the carrier proposes to change the activity, and if so, how; and
- if the carrier does not propose to change the activity, why the carrier will engage in the activity as originally proposed.
Referral to the Telecommunication Industry Ombudsman
Within 5 business day after the objector receives the Carrier’s response to the objection, the objector may ask the Carrier, in writing, to refer the objection to the Telecommunications Industry Ombudsman (‘TIO’).
The Carrier must comply with the request.
Activity after TIO Determination
The TIO may give a direction about how the carrier should engage in the low-impact facility activity, but only if the objection is within the TIO’s jurisdiction. In making a direction, the TIO is required to have regard to the law, good practice and what is fair and reasonable.
If the TIO gives a direction to the Carrier about the way in which the Carrier should engage in the low-impact facility activity, the Carrier must comply with the direction.
If the TIO declines to give a direction, the Carrier may engage in the activity as originally proposed.
If you disagree with a direction of the TIO, and you wish to stop the activity from commencing, you may have to urgently apply to the Court for temporary relief (usually in the form of an injunction, to restrain the activity) until your matter is considered and determined by the Court.
Ultimately, the process and technology involved make it difficult for a lay person to effectively object to a LAAN. In addition, the stringent time limits provide little time for research or mistakes and re-filing.
If you have received a LAAN or are aware of a LAAN being issued in your local community, you have limited time to act. To speak to one of our expert dispute resolution lawyers experienced in objecting to LAANs, please call Certus Legal Group on 07 3106 3016 or contact us using the form on this page.
This article does not give legal advice and should not be relied upon as such. It is intended to provide general and summary information on legal topics, current at the time of first publication. You should seek professional legal advice before acting or relying on any of the content contained herein.