Objections to Land Access Activity
The purpose of these Procedures is to outline the key steps involved when we consider 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 us. We decide the resolution of the Objection and tell the carrier the actions it must take or not take.
An Objection is classified as a Level 4 (Land Access) Complaint. We endeavour to reach a decision within 20 business days of receiving all relevant information from the parties.
In considering our decision we make 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 Principal Investigator or a TIO Officer under the supervision of the Principal Investigator.
If we tell a carrier how it should engage in the proposed land access activity, the carrier must comply with our direction. Otherwise the carrier is free to proceed with the proposed land access activity.
The direction is not open to review.
1.0 Receiving and reviewing an Objection
When we receive a referral of an Objection from a carrier we register a Level 4 (Land Access) Complaint within 3 business days.
1.2We send 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 given to us
- explaining our limited role to consider if the Code has been complied with and if the Objection can be upheld under the Code
- clarifying that we will only have regard to issues raised between the parties during the Objection process
- giving a timeframe for our decision to be made and communicated in writing to both parties, usually between 4 to 6 weeks, and
- confirming that our decisions about Objections are not subject to review.
1.3When the timeframe for providing relevant information has elapsed we examine all evidence provided and prepare a report addressing the following matters for consideration by the Ombudsman or Deputy Ombudsman:
- if the Objection is, in whole or part, within our 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.
When we decide the Objection should be upheld, the Ombudsman or Deputy Ombudsman will tell the carrier the actions they must take or not take with regard to the proposed land access activity.
When we decide the Objection should not be upheld, no direction is given and the carrier is free to proceed with the proposed land access activity.
We notify both parties of the decision in writing and the Complaint is closed.
When the Objection is, in whole or part, within our 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 us, 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
we may decide not to assess the Objection, but may instead register a Complaint or Enquiry according to standard procedure if we consider it appropriate to do so.
We may refer, conciliate an outcome or conduct a formal investigation of the Complaint according to standard procedure.
Effective Date: 5 July 2010
Updated on: 1 December 2015