Purpose

Introduction

1.0 Receiving and Reviewing an Objection

2.0 Exceptions to Receiving and Reviewing of Objections

Purpose

The purpose of these Procedures is to outline the key steps involved when the TIO considers an Objection to a carrier engaging in land access activity.

The rights and obligations of carriers in respect of owners and occupiers of land affected by land access activity are governed by Schedule 3 of the Telecommunications Act 1997 (the Act), the Telecommunications Code of Practice 1997 (the Code) and the Telecommunications (Low-impact Facilities) Determination 1997 (the Determination).

Schedule 3 of the Act attempts to balance certain powers and immunities enjoyed by carriers to carry out land entry, low impact facility and maintenance activities, with the rights of owners and occupiers of the land. The Code regulates the processes by which this balance is to be achieved. The Determination specifies what facilities can be characterised as low-impact and may be installed as an exercise of a carrier’s powers.

The combined effect of Schedule 3 to the Act and the Code is that in order to exercise its rights, a carrier must give written notice of its proposed land access activity to an owner or occupier of the affected land.  In turn, an owner or occupier has limited rights of Objection to the proposed land access activity.

Where the parties are unable to resolve their differences regarding the Objection within the timeframes required by the Code, and the owner or occupier requests it, the carrier must refer the Objection to the TIO for a direction.

An Objection is classified as a Level 4 (Land Access) Complaint. The TIO endeavors to reach a decision within 20 business days of receiving all relevant information from the parties.

In considering whether to give a direction the TIO makes an independent assessment of the Objection and the carrier’s response to it in accordance with the requirements under the Act, the Code, the Determination and any other relevant law. Decisions are made by the Ombudsman or Deputy Ombudsman on the advice of the Investigations Manager – Complex Cases or a TIO Officer under the supervision of the Investigations Manager – Complex Cases.

If the TIO gives a direction about the way a carrier should engage in the proposed land access activity, the carrier must comply with the direction. If the TIO gives no direction, then the carrier is free to proceed with the proposed land access activity.

The direction is not open to review by the TIO.

1.1

When the TIO receives a referral of an Objection from a carrier, the TIO Officer registers a Level 4 (Land Access) Complaint within 3 business days.

1.2

The TIO Officer sends written notification to the Objector and carrier:

• confirming receipt of the Objection
• requesting additional relevant information from either party if it has not been provided with the referral
• providing both parties an additional 5 to 10 business days to ensure that all relevant information has been provided to the TIO
• explaining the limited role of the TIO to consider if the Code has been complied with and if the Objection can be upheld under the Code
• clarifying that the TIO will only have regard to issues raised between the parties during the Objection process
• giving a timeframe for the TIO’s decision to be made and communicated in writing to both parties, usually between 4 to 6 weeks, and
• confirming that TIO decisions about Objections are not subject to review.

1.3

When the timeframe for providing relevant information has elapsed the TIO Officer examines all evidence provided and prepares a report addressing the following matters for consideration by the Ombudsman or Deputy Ombudsman:

• if the Objection is, in whole or part, within TIO jurisdiction
• if the land access activity is with regard to a low-impact facility according to the definition in the Determination
• if both parties have adhered to the timeframes, methods for Objection and consultation as outlined in the Code, and
• if the grounds for Objection are valid under the Code.

1.4

When the TIO determines that the Objection should be upheld, the Ombudsman or Deputy Ombudsman gives a binding direction to the carrier about the way the carrier should engage in the proposed land access activity.

1.5

When the TIO determines that the Objection should not be upheld, the Ombudsman or Deputy Ombudsman gives no direction and the carrier is free to proceed with the proposed land access activity.

1.6

The TIO notifies both parties of the decision in writing and the Complaint is closed.               

2.1

When the Objection is, in whole or part, within TIO jurisdiction, but where, for example:

• the Objection has not been made in accordance with the Code
• the procedures for Objection under the Code have not been exhausted
• the carrier has not issued a notice to the Objector
• the Objector has contacted the TIO, not the carrier
• the Objector is seeking information and advice about how to make an Objection
• the Objector is not the owner or occupier of the affected land
• it is clear from first contact that the facility in question is not a low-impact facility

the TIO may decide not to assess the Objection, but may instead register a Complaint or Enquiry according to standard procedure if the TIO considers it appropriate to do so.

2.2

The TIO may refer, facilitate an outcome or conduct a formal investigation of the Complaint according to standard procedure.

Updated on: 22 October, 2010