Australia: The rights of carriers in property transactions

When negotiating a property transaction with a carrier, there are some things that you as a landlord should be aware of.

The Telecommunications Act 1997 (Cth) (Act) grants a holder of a carrier licence (i.e. a phone carrier) broad powers to deal with land of third parties. These broad powers are often not understood by landowners. At other times landowners are aware that these rights exist, but are not aware of how extensive they really are. In a practical sense, carriers will usually negotiate on a commercial basis with landowners, but landowners should be aware of the statutory rights which negate the need for the carrier to act commercially in some situations.

The powers and immunities are mostly contained within Schedule 3 of the Act. Broadly speaking they allow a carrier to enter land and exercise the following rights:

  • inspect the land to determine whether the land is suitable for the carrier's purpose;
  • install a facility on the land; and
  • maintain a facility that is situated on the land.

These rights often mean that compliance with state and territory laws (such as planning) by the carrier may not be required. It also means that the carrier may deal with the land within the scope of these statutory powers irrespective of how the land may be classified under state or territory law. For example, a local council may be restricted in dealing with certain land that is classified as 'community land' under the Local Government Act 1993 (NSW). A carrier may exercise its statutory powers irrespective, and without regard to, this classification.
We will now look at these rights in a little more detail.

Inspect Land

The power to inspect is quite broad and allows a carrier to enter on and inspect land to determine whether the land is suitable for its purposes and allows the carrier to do anything on the land that is necessary or desirable for that purpose. The Act provides some specific examples of what a carrier may do pursuant to this section, and to the surprise of many landowners, is in fact quite broad. It includes the right to:

  • fell and lop trees and clear and remove other vegetation and undergrowth;
  • install a facility in, over or under a road or bridge; and
  • alter the position of a water, sewerage or gas main or pipe or the position of an electricity cable or wire.

Install a Facility

The power to install a facility under Schedule 3 is somewhat more limited than the broad inspection power. The power to install a facility can only be exercised in the following circumstances:

  • the carrier has a facility installation permit;
  • the facility is a low-impact facility; or
  • the facility is a temporary facility for use by, or on behalf of, a defence organisation for defence purposes.
  1. Facility Installation Permit

This process is not straightforward and there is a particular process which must be followed by a carrier. It is usually limited to very specific circumstances and is typically a last resort by a carrier to get approval to install a facility. This process is also expensive with the initial application fee to the Australian Communications and Media Authority (ACMA) currently in the amount of $6,070.

A facility installation permit is a written instrument issued by ACMA providing authorisation for that carrier to proceed with installation of one or more specified facilities in circumstances where it has not obtained all the administrative authority and approvals required under relevant state and territory legislation.

Section 27 of Schedule 3 of the Act sets out the criteria that ACMA must consider before issuing such permit. It includes evidence from the carrier that the carrier has made reasonable efforts to negotiate in good faith all the administrative authorities and proprietor approvals required for carrying out the installation of the facilities covered by the application.

  1. Low-Impact Facility

A carrier may install a low-impact facility pursuant to its Schedule 3 powers. The Minister may make a determination as to what constitutes a 'low-impact facility'. Relevantly, the Telecommunications (Low-impact Facilities) Determination 1997 (Cth) (Determination) provides for what facilities are classified as 'low-impact'. A facility cannot be a 'low-impact facility' unless it is specified in the Determination.

The Act also specifically excludes the following from ever being able to be classed as 'low-impact':

  • designated overhead lines;
  • a tower that is not attached to a building;
  • a tower attached to a building and more than 5 metres high;
  • an extension to a tower that has previously been extended; and
  • an extension to a tower, if the extension is more than 5 metres high.

Importantly, a reference to a 'tower' does not include the antenna. So in calculating the height of the tower for the purposes of deciding whether the facility is 'low-impact', the antenna part does not contribute to the height limitations.

Furthermore, the Determination also limits a facility in being classified as 'low-impact' provided that it is installed in particular areas such as rural, industrial, commercial, residential areas, and areas of environmental significance.

By way of example, by virtue of Item 7 of Part 1 of the Schedule to the Determination, an in-building coverage installation to improve cellular coverage to mobile phone users operating inside a building and wholly contained or concealed in a building is permitted in either a residential, commercial, industrial or rural area.

  1. For Defence Purposes

The other right to install a facility is where it is a temporary facility for use by, or on behalf of, a defence organisation for defence purposes. The exercise of this right is not as common but the need to have this included in the Act is self-explanatory.

Maintain a Facility

The power to maintain a facility is much broader than the power to install a facility under Schedule 3.

By virtue of clause 7 of Schedule 3 of the Act, a carrier is authorised at any time to maintain a facility.

This power is the one that landowners should take most notice of. It is particularly relevant in a situation where a facility exists on a particular parcel of land, the lease that was entered into has come to an end, and the parties are now negotiating a new lease. The carrier is in fact entitled to exercise its powers to maintain the facility under Schedule 3 of the Act without the need of having the landowner's agreement to do so. It is often for this reason that a carrier may be in no hurry to finalise such agreement, or elects to take a hard line with certain provisions in the lease document. There may be instances where a carrier may cease all negotiations and elect to rely on its statutory rights where a landowner has been unreasonable (or greedy) in its negotiations to renew a lease. In these situations, a commercial agreement may not be entered into and the landowner may end up shooting itself in the foot by missing out on any rent payments entirely. Landowner's should, therefore, act reasonably in negotiating the terms and amount of rent.

It is also worth noting that the right to maintain is fairly broad and the Act specifies additional activities that can be undertaken including the right to alter, remove or repair the original facility, and the right to replace the whole or part of the original facility in its original location provided that certain prescribed conditions are met by the carrier.

Other Requirements

Finally, it is also important to understand that there are overarching provisions which a carrier must comply with where it intends to exercise any of its Schedule 3 powers. These provisions are contained within Division 5 of Schedule 3 and includes such things as:

  • doing as little damage as practicable;
  • complying with recognised industry standards; and
  • giving notice to the owner of the land.

The giving of notice must occur before each and every exercise of the Schedule 3 powers. The notice must be given 10 business days before the carrier begins to engage in the proposed activity and must specify the purpose for which the carrier intends to engage in the activity. Compensation may be payable by a carrier where it exercises its Schedule 3 rights and the landowner suffers financial loss or damage in relation to property.

Finally, it should be noted that notice is not required in certain circumstances. For example, no notice is required where the activities need to be carried out without delay in order to protect:

  • the integrity of the telecommunications network or a facility;
  • the health or safety of persons;
  • the environment;
  • property; or
  • the maintenance of an adequate level of service.

In summary, it is important for any landowner to be aware of the Schedule 3 powers and immunities when coming to the negotiating table. Whilst many of these powers are extensive and far-reaching, a carrier will always attempt to act reasonably and negotiate in good faith where the landowner does the same.

In situations where a landowner receives notice of a carrier exercising a Schedule 3 power, legal advice should be obtained to ensure that the carrier intends to act within the scope of its legislative powers and does in fact comply with the conditions prescribed. The team at Bartier Perry have extensive experience dealing with these issues and would welcome the opportunity to assist you should you have such a matter.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions