Apartment owners are often faced with aggressive Telcos that are determined to install broadband infrastructure in their buildings whether residents want them or not.
Bodies corporate usually first become aware of this situation after receiving letters from internet service providers demanding access to install their equipment and warning them not to try to stop them or face dire legal consequences.
To many, it seems absurd to be forced to let a company access their buildings to install unwanted broadband services and have no rights to stop them, but unfortunately though flawed legislation that is exactly what is allowed in Australia.
What does the Law say?
The Telecommunications Act 1997, reviewed and updated in 2021, was originally intended to ensure all apartments residents had internet access. The act gives private Telcos or internet service providers the right to enter apartment buildings to install their service infrastructure.
The thinking was, rather than respond to consumer demand, Telcos would install their infrastructure in buildings first, then letterbox residents advertising their presence and their services.
Even after the NBN roll-out nationally, there are may Telcos that still demand the right to install their own infrastructure too. Often these companies go about this in a confrontational manner with threats of legal action if the body corporate does not comply.
Issues with the Act
Aside from being forced to give people access their buildings that are a variety of issues that can stem from Telcos installing their own infrastructure in buildings.
- The structural integrity of things like membranes in the buildings can be affected.
- There may be architectural codes that will be broken.
- The new installations removing, blocking or downgrading existing services.
- Damage to common property common property during the work, with no responsibility accepted by the companies involved.
The Property Council of Australia has stated to the Government that it had come across, in the past, unsafe cabling installed resulting in fire, electrical and work health and safety risks, that can also affect the reliability of the services.
An additional issue is that when the legislation was drafted there were only 3 carriers of these services in Australia – all tier 1 companies with trusted reputations. Now there are over 300 registered carriers with varying levels of competence and service ability.
However flawed, current legislation permits what amounts to a significant interference with common and private property by these companies and there is little recourse for the body corporate to prevent this.
Telco Rights
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 a land access and activity notice (the LAAN); and
- if the LAAN relates to an installation, it only relates to installing “low impact facilities”.
LAAN
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).
So, What Can Your Body Corporate Do?
Under current legislation, assuming all technical requirements have been met by the telco, a body corporate cannot formally prevent it from accessing its common property and installing its equipment.
However, these companies must fulfil the relevant technical standards and compensate the apartment owners or managers for any loss and damage.
Owners can object to the installation on limited grounds and within a very short time frame. Pay attention to all deadlines set out in the notice and seek urgent legal advice if you believe there are grounds to object.
The key thing for bodies corporate is that its rights to object may be lost if it does not object within the required timeframe. Therefore, it is important for anyone who receives an access notice to deal with it immediately.
Even if you have no option but to give them access to your building it is important to invoke the Telcos own legal responsibilities to ensure that common property is protected during “improvements”.
These might include guarantees about the competence of the installers, maintaining existing installations or possibly even asking for bonds against accidental damage.
Simply demanding from the Telco detailed plans on the how, what and where they plan to install equipment can be enough for them to lose interest and at the very least will ensure a more acceptable outcome for your body corporate.
Stonewalling
Another strategy is to simply ignore the Telco’s letters and allow them to decide the next action.
While they have the legal right to access, they cannot physically break down doors etc. to enter body corporate property.
Especially if you live in a secure building, where access must be provided, do everything in your power to stonewall this process.
When it comes to Telcos in apartment buildings, many of the “cowboy’ operators are seeking only the lowest hanging fruit, who will simply give in to their demands. By putting up roadblocks at every turn many of these Telcos will move simply move on.
And while many will threaten legal action, the effort, time, and expense of seeking court orders may send them off to find easier options in less resilient buildings.
However, this can be a risky strategy as the body corporate may lose any objection rights, even if such an objection would be valid.
Before you act is important to seek appropriate advice from your body corporate manager and legal experts.
