Australia: How is telecommunications leasing different to any other type of commercial leasing?

Last Updated: 26 July 2019
Article by Lauren Milne

Lauren Milne delves into telecommunications and specifically examines telecommunications leasing and how the requirements of a telecommunications carrier differ from those of other commercial tenants.

Telecommunications impacts every part of our life. In this hyper connected world where we are able to communicate with someone on the other side of the world at the touch of a button, it is a tool we all use but often know little about. In this article, I will delve into this subject and specifically examine telecommunications leasing and how the requirements of a telecommunications carrier differ from those of other commercial tenants.

Prior to answering the question, "How is telecommunications leasing different to any other type of commercial leasing?", I think it is important to have an understanding of how a telecommunications network functions.

The best way I have had a telecommunication network described to me is that it is like a spider web crisscrossing over the globe. Each part of the web transmits a signal from point to point and each point radiates a signal in varying diameters, picked up by our mobile phones in order for them to have network coverage and function within the mobile telecommunications network they are subscribed to.

If there is a break in one or more of these spider web links, then the network may be described as "down" in that area. We may be unable to receive or make calls and unable to use our data or, until the outage is rectified, the quality of our calls and data may be diminished. If the spacing between the webs is too large, this may also cause the quality of our calls and data to be decreased.

Technically speaking, by webs I am meaning electromagnetic radiation transmission signals. By points I am meaning telecommunication facilities in the form of monopoles, rooftops, small cells, microcells and other types of structures holding and housing transmission equipment.

A break in or interruption to an electromagnetic radiation transmission signal or a fault occurring within a telecommunications facility is, more likely than not, what causes a network outage. However, if there are other facilities close enough to the defective facility throwing out a signal wide enough, the coverage may simply be diminished rather than completely inoperative.

If facilities are too far apart and the transmission signal in a certain area is not strong enough or if a signal is blocked due to the facility being in a valley, tunnel or on a hilltop, this is often called a blackspot.

Telecommunications carriers need to construct their facilities in suitable locations and close enough together in order to create a strong and reliable telecommunications network that provides signals that are cast out wide enough and are capable of handling the volume of traffic created by the number of customers using their network in that specific area.

The Telecommunications Act 1997 ("Act") gives carriers the power to access land and buildings and install what are considered to be low-impact facilities in locations within Australia, without entering into any form of mutually binding agreement and in some circumstances, without paying compensation to the owner.

Where a carrier is installing fibre cable, they would not seek to enter into a commercial arrangement.

A carrier will attempt to come to an agreement with the owner of land or a building to install a base station facility, however where, despite their best endeavours, they are unable to come to agreement with the owner they do have the ability to install the facility by relying on the Act. Carriers go to great lengths to avoid this and will always attempt to come to an agreement before relying on their rights under the Act.

Why would the carriers be given such a right? Well, nowadays, mobile phones and the network coverage required to enable them to function would be considered a necessity, similar to how imperative electricity and water utility services are to the population as a whole. They are afforded these rights, not to be blatantly abused, but to ensure we all have the service we require to function day to day and run our businesses.

The Act also requires the carriers to share facilities wherever possible.

A low impact facility is defined in the Telecommunications (Low-impact Facilities) Determination 2018 and is determined by taking into consideration a number of factors including what type of area the facility is to be located (e.g. residential, commercial, industrial or rural), the zoning under State or Territory laws in that area and whether the area is considered to be an area of environmental significance.

As outlined in the determination, a number of facilities cannot be considered to be low-impact facilities:

"Under subsections 6 (4), (5) and (7), certain facilities cannot be low-impact facilities:

  • 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
  • an extension to a tower, if the extension is more than 5 metres high.

A facility cannot be a low-impact facility unless it is specified in this determination. Therefore, new mobile telecommunications towers are not low-impact facilities."

If you are interested in delving deeper into what is and is not considered a low-impact site, a link to the current determination is here.

Here are some images of a few different types of telecommunications facilities:

Small cell Base station Rooftop facility

Once you are aware of the different types of facilities, it is clear that our cities are covered in the technology and play a vital role in creating connected communities.

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. Madgwicks is a member of Meritas, one of the world's largest law firm alliances.

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