CAN UTILITY SERVICE PROVIDERS ENTER INTO A LOT WITHOUT NOTICE?

Disputes over access to utility services in community titles schemes commonly arise, leading to uncertainty and tensions between those involved. But, there are ways to resolve the issue.

Example

A summary of one recent example we were involved in is:

1. the infrastructure needed to be accessed by a licensed service carrier to connect an occupier to the NBN, was situated in another owner’s lot;
2. that other owner is a caretaker;
3. that other owner refused, on two occasions, to grant access to the lot by the licensed service carrier;
4. that other owner threatened to sever the NBN wires;
5. the reasons for the refusal provided were about unrelated allegations regarding the payment of rent and utilities;
6. the occupier wanting to connect to the NBN looked to the Body corporate for assistance.

Legislative Powers

Section 163 of the Body Corporate and Community Management Act (Qld) 1997 (BCCMA) grants power to a Body corporate to enter lots for prescribed purposes.

Those purposes are:

1. to inspect the lot and find out whether work the Body corporate is authorised or required to carry out is necessary;
2. to carry out work the Body corporate is authorised or required to carry out.

However, in the recent example, those powers were unlikely to apply as the purpose of the entry differed from that outlined in this section.

Section 316 of the BCCMA grants entities authorised under another Act the right to enter lots, including common property, for purposes such as inspections or carrying out necessary work.

One of those other Acts is the Telecommunications Act 1997 (Cth) (TCA).

Schedule 3 of the TCA provides licensed service carriers with the authority to enter land and exercise powers related to inspection, installation, and maintenance of telecommunications facilities. The TCA defines the relevant terms broadly and sets out the general requirements for carriers before engaging in activities related to inspection, installation, or maintenance on land, including giving written notice to the landowner and occupier.

Interference consequences

Section 166 of the BCCMA prohibits interference with utility infrastructure or services within community title schemes, imposing penalties for non-compliance. The maximum penalty for interference with utility services is equivalent to 100 penalty units (currently about $15,000). This consequence can be pursued through the Magistrates Court in a similar way to the enforcement of a by-law contravention notice.

What does this mean?

Licensed service carriers, including those responsible for NBN installations, have legal entitlements to access lots within community title schemes for the purpose of connecting telecommunication facilities.

Lot owners must recognise their obligations to grant access to licensed service providers for the installation and maintenance of utility infrastructure, while service providers must adhere to relevant notice requirements outlined in legislation prior to entering a lot.

It is important to seek legal advice in the event entry to a utility service infrastructure is being refused by a party. In the event of wrongful refusal to grant access to a licensed service carrier or tampering with utility infrastructure or services, serious legal consequences may apply.

Article contributed by Brendan Pitman, Partner, Grace Lawyers