Telecommunications Leases: what to expect when a network carrier comes knocking

Accessing private land

The Telecommunications Act 1997 (Cth) (Act) provides for Carriers to efficiently build and maintain telecommunications infrastructure to adequately service the needs of the general Australian public. To promote this efficiency, the Act grants licenced telecommunications carriers (Carriers) an ability to enter onto land to install “low-impact facilities” without the formal consent of a landowner, and without a requirement to compensate the landowner for utilising the land.

Before getting too outraged, it is important to note that a Carrier will always seek to enter into a mutually agreeable arrangement with a landowner if it intends to use a parcel of land long-term. However, if they are unable to come to an agreement, a Carrier can issue a landowner a Land Access and Activity Notice (LAAN) under the Act to allow them to enter the land and carry out the proposed works anyway.

For short-term access needs, such as installing fibre optical cabling, a Carrier is more likely to serve a landowner a LAAN from the outset, as once they complete the work the Carrier will only ever need to access the land again in case of maintenance or emergency repairs.

Entering a telecommunications lease

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When a Carrier seeks to acquire long-term access rights to a parcel of land, a landowner will be provided a proposal from the Carrier which contains key terms of a proposed leasing arrangement.

This proposal will often include terms that would ordinarily never be accepted in a usual retail or commercial lease, including:

• a right to assign or sublet the leased area without requiring the owner’s consent or providing any notice;
• having unencumbered access to your land 24 hours a day, 7 days a week; and
• requiring an 18 month overholding period at the end of the lease rather than the usual month-by-month scenario.

The terms are often very skewed in favour of the Carrier. It is important that you do not agree to terms that you are not comfortable with or are not sure of their impact.

In saying that, a telecommunications lease can be a great opportunity for a landowner to earn rental income from a part of their land that often sits at the back of a property and is completely unused and would otherwise not be valuable to any other type of tenant.

I’ve been served with a LAAN, what do I do?

If you are served with a LAAN and are concerned about its implications and think you want to object to a Carrier’s proposed works, you should do so immediately as there is a very limited timeframe for a landowner to object to a LAAN (in some cases only one business day!).

Further, there are limited circumstances where a landowner can successfully object to a LAAN, such as:

• the proposed location of the facility;
• the activity having an adverse effect on your land; or
• the proposed dates of the works being disruptive.  

If you do not raise an objection, you can probably expect to see a worker in high vis accessing your land and commencing the proposed works on the dates noted on the LAAN – at that point there is not much you can do to stop the works.

What is a “low-impact facility”?

A LAAN will describe the project activity to be conducted, which must relate to a low-impact facility. There are several factors that go into determining what can be considered a low-impact facility which are more broadly discussed in Telecommunications (Low‑impact Facilities) Determination 2018 (Cth). Factors include:

• the location where the facility is to be built (e.g. residential, industrial etc);
• certain zoning restrictions; and
• if the location is considered an area of environmental significance.

What is not considered a low-impact facility is a simpler exercise. Some examples are:

• designated overhead lines;
• a tower that is not attached to a building;
• a tower attached to a building and more than 5 metres high; and
• temporary towers unless certain conditions are satisfied.

If you have any doubts about the proposed works described in the LAAN falling with the bounds of a low-impact facility, you should take immediate action to serve an objection on the Carrier.

Conclusion

Given that the intention of the work being completed by Carriers is to improve and maintain a high standard of telecommunications networks across the country for the benefit of the community, it should not come as much of a surprise that the law has been drafted in the Carriers’ favour so that they can undertake the work quickly and without undue obstruction from landowners.

Despite this, a landowner should always:

• seek advice on a LAAN served on you to ensure you are not unfairly impacted by the proposed works; and
• aim to get the best financial and commercial outcome from a telecommunications lease with a Carrier.

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This article in no way constitutes legal advice. It is general in nature and is the opinion of the author only. You should seek legal advice tailored to your individual circumstances before acting on anything related to this article.