Australia: Facilities access case sets precedent that could help carriers avoid costs

Key Points:

Carriers' powers to access multi-storey office buildings to install telecommunications facilities have been clarified by the Federal Court.

The powers of carriers under Schedule 3 of the Telecommunications Act 1997 (Cth) to install telecommunications facilities have been given important clarification by the Federal Court's judgment in PIPE Networks Pty Ltd v Commonwealth Superannuation Corporation [2013] FCA 444 (16 May 2013).

Land Access and Activity Notices are issued

In 2011, PIPE Networks Pty Ltd (PIPE) issued Land Access and Activity Notices (LAAN) to both Commonwealth Superannuation Corporation (CSC) and 101 Collins Street Pty Ltd (101), the owner and manager respectively of the office building at 101 Collins Street, Melbourne.

The LAAN informed CSC and 101 that PIPE intended to install two optic fibre cables in the building, in reliance on the installation power in clause 6 of Schedule 3 of the Telecommunications Act 1997 (Cth). The installation was required in order to provide communication facilities sought by a tenant in the building. The cable was a "low-impact facility" (as defined in clause 6(3) of Schedule 3) and would connect PIPE's existing wall box in the building's main distribution frame room, via the building's communications riser, to the server room in the tenant's office.

101 objected to the LAAN and proposed installation, but did not request PIPE to refer its objection to the Telecommunications Industry Ombudsman.

PIPE applied to the Federal Court for declarations that it was entitled to carry out the installation of the cables and associated equipment at the building and that, for that purpose, its employees and contractors were entitled to enter and occupy the building. It also sought orders restraining CSC and 101 from refusing or preventing such access.

CSC and 101 contended that Schedule 3 did not empower PIPE to install the cable, for the three reasons discussed below.

First issue: does the Installation Power enable access to a multi-storey office building?

The first issue was whether the authority, conferred on a carrier by Schedule 3 to enter "land", applies to a carrier wishing to have access to a multi-storey office building.

Justice Tracey held that clause 6(1)(b) of Schedule 3 authorised PIPE to carry out the installation whether or not the building, the main distribution frame room or the communications riser constituted "land" within the meaning of clause 6(2). He found that "[t]he language of clause 6(1)(b) is clear and unambiguous. It empowers a carrier to "carry out" the installation of such a facility. This power is unconfined as to time and place. It is available if the facility is one which (as here) falls within the meaning of a "low-impact facility"". On this basis PIPE was entitled to access the building and install the cables.

Interestingly, Justice Tracey went on to express a view (albeit unnecessary to do so) that clause 6(2) did not provide authority for PIPE to undertake the installation work it wished to pursue in the building. In this regard, he considered that various clauses in Schedule 3 drew a distinction between a building or structure and the land on which it is located. As a result, Justice Tracey formed the view that clause 6(2) permitted work at ground level rather than in structures built on the ground.

Second issue: was PIPE required to give notice to the tenant?

The second issue was whether PIPE had complied with all of the notification requirements prescribed by Schedule 3.

CSC and 101 contended that PIPE was not entitled to install the cables in the building because it had failed to give written notice of its intention to do so to the occupier of the land on which it wished to carry out the work (as required by clause 17(1)(b) of Schedule 3). It was suggested that the tenant was that occupier, and PIPE had not notified it of the proposed work.

Justice Tracey held that PIPE was not required to give notice to the tenant under clause 17(1)(b). That clause deals with entry on "land". As outlined above, he had already held that the building and the part of it leased to the tenant was not "land" within the meaning of Schedule 3.

Third issue: whether the installation right under Schedule 3 was subject to Part 3 of Schedule 1

The third issue was whether, even if Schedule 3 authorised the carrying out of the work which PIPE wished to undertake, it was precluded from doing so by provisions of Schedule 1 which applied to the exclusion of Schedule 3 to the extent of any inconsistency between them.

CSC and 101 contended that:

• the building, the main distribution frame room and the communications riser were each "facilities" within the meaning of clause 17(1) of Schedule 1;
• Property Communications Management International Pty Ltd (PropertyComm) – appointed by CSC to exercise "operational control" over the communications facilities in the building – was a "first carrier" for the purposes of clause 17(1) of Schedule 1; and
• Part 3 of Schedule 1 required PIPE to enter into an agreement with PropertyComm to install the cabling before that could occur (and PropertyComm wished to make it a condition of giving PIPE access that PIPE pay PropertyComm a fee).

Justice Tracey concluded that, while PropertyComm may be a "first carrier" for the purposes of clause 17(1) of Schedule 1 and all of the relevant structures were facilities to which clause 17(1) applied, no relevant conflict existed between the provisions of Schedules 1 and 3.

This was because he did not consider that the giving of a notice of intention to carry out installation work under clause 17(1) of Schedule 3 could be equated with a request for access to facilities within the meaning of clause 17(1) of Schedule 1.

In other words, PropertyComm was not a first carrier with which PIPE was required to deal under Schedule 1 because PIPE had made no relevant request of PropertyComm.

Implications for carriers and building owners

Subject to any appeal, this decision is an important clarification of the powers of carriers under Schedule 3 of the Telecommunications Act 1997 (Cth).

For carriers seeking to exercise the Installation Power, it means that there is a clear basis under clause 6(1) to enter multi-storey office building, with activities not confined to intrusions on, under or immediately above ground level.

It also means that notice does not need to be given to affected upper-storey tenants and, perhaps most significantly, carriers do not need (although it may still be desirable to seek) the agreement of a building owner before installing low-impact facilities. This should lessen the level of delay and costs that carriers incur when rolling out networks or installing facilities.

For building owners, managers and companies appointed to operate communications facilities in multi-storey office buildings, the decision is less positive. Their ability to insist on consent before access occurs, and thus to extract a fee from the carrier, is effectively neutered. However, a negotiated agreement may still be preferable for all parties to enable swifter access for the carrier.

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.