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This instrument exempts real estate development projects situated outside of a National Broadband Network (NBN) fixed line rollout region from the requirements to install fibre-ready pit and pipe under Part 20A of the Telecommunications Act 1997.
Administered by: Infrastructure, Transport, Regional Development and Communications
Registered 06 Dec 2016
Tabling HistoryDate
Tabled HR07-Feb-2017
Tabled Senate07-Feb-2017
Date ceased to have effect 31 Dec 2020
Ceased by Self Ceasing

EXPLANATORY STATEMENT

 

Issued by the Authority of the Minister for Communications

Telecommunications Act 1997

 

 Telecommunications (Fibre-ready Facilities — Exempt Real Estate Development Projects) Instrument 2016

 

Legislative authority                                                   

 

Paragraph 372K(1)(b) of the Telecommunications Act 1997 (the Act), together with paragraphs 372K(1)(c)-(f), allow the Minister to exempt, by legislative instrument, a real estate development project ascertained in accordance with the exemption instrument, from the scope of sections 372E, 372F, 372G and 372H of the Act. Subsection 372K(4) of the Act provides that an exemption made under subsection 372K(3) may be unconditional, or subject to specified conditions.

 

Subsection 13(3) of the Legislation Act 2003 allows specification of matters by class or classes of matters.

 

Purpose

 

The purpose of the Telecommunications (Fibre-ready Facilities - Exempt Real Estate Development Projects) Instrument 2016 (the Instrument) is to exempt real estate development projects situated outside of a National Broadband Network (NBN) fixed line rollout region from the requirements to install fibre-ready pit and pipe under Part 20A of the Act, provided the project satisfies certain other conditions relating to the average size of the street frontages and utility infrastructure.

 

Background

 

Part 20A of the Act provides for the installation of fibre-ready facilities like pit and pipe in new developments. It applies across Australia. The provisions are intended to support the installation of optical fibre cabling. Such pit and pipe can also be used for the installation of other fixed-line infrastructure, including copper cabling. In recognition that the pit and pipe requirements may not always be appropriate, Part 20A includes exemption mechanisms. The Minister may exempt developments from the requirement to install fibre-ready facilities like pit and pipe under section 372K of the Act.

 

The Minister for Communications is granting this exemption as laying pit and pipe infrastructure in some kinds of developments would be very costly and it is unlikely to be required for the foreseeable future, if ever, given the telecommunications solutions proposed and the location and nature of these kinds of developments. 

 

In many instances it is more cost-effective to deliver telecommunications to some types of developments in some bushland, rural, and remote locations using technologies that do not require pit and pipe. This includes the use of direct-buried cabling, wireless and/or satellite. While the use of pit and pipe in these scenarios would provide greater future flexibility, it may never be utilised in the locations concerned and would come at a significant cost. In these circumstances, it would not be cost-effective to require pit and pit to be installed when a development of this kind is undertaken. A number of developers and their representatives have approached the Government seeking an exemption to deal with such situations.

 

In the event that an exempt development was further developed (e.g. to increase housing density), the requirement to consider whether to install pit and pipe would need to be considered again. It would also be open to carriers to require pit and pipe as a commercial condition of servicing a development.

 

Consultation

 

A draft version of the Instrument was published on the Department of Communications and the Arts’ website and the public was invited to make comment over a period of three weeks (from 23 September 2016 to 14 October 2016). Seven submissions were received and there was unanimous support for the class exemption although some minor drafting changes were suggested. Separately, a number of people developing land in rural areas wrote concerning the impact of Part 20A of the Act on their projects. Their representations have also been taken into account in making the Instrument.

 

Regulation Impact

 

The Office of Best Practice Regulation (OBPR) considers the Instrument is minor or machinery in nature and a Regulatory Impact Statement is not required. The OBPR reference number is 21065.

 

Details of the accompanying Instrument

 

The Instrument is a legislative instrument for the purposes of the Legislation Act 2003.  Details of the accompanying Instrument are set out in Attachment 1.

 

Statement of compatibility with human rights

 

A statement of compatibility with human rights for the purposes of Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 is set out in Attachment 2.


 

ATTACHMENT 1

 

Details of the Telecommunications (Fibre-ready Facilities — Exempt Real Estate Development Projects) Instrument 2016

 

Part 1 – Preliminary

 

Section 1 – Name of Instrument

 

Section 1 provides that the title of the Instrument is the Telecommunications (Fibre-ready Facilities — Exempt Real Estate Development Projects) Instrument 2016.

 

Section 2 – Commencement

 

Section 2 provides that the Instrument commences on the day after it is registered on the Federal Register of Legislation.

 

Section 3 – Legislative Authority

 

Section 3 provides the legislative authority under which the exemption instrument is made.

 

Section 4 – Expiry

 

The instrument will cease to have effect on and from 31 December 2020. This aligns with the projected date for the completion of the National Broadband Network. This is seen as an appropriate point at which to reassess the exemption from Part 20A of the Telecommunications Act 1997.

 

Section 5 - Definitions

 

Subsection 5(1) provides definitions of key terms used in the Instrument.

 

The term, ‘electrical supply network infrastructure’ does not include any infrastructure directly forming part of an electrical transmission grid as this does not form part of the electricity distribution network.

‘NBN Co’ means NBN Co Limited (ACN 136 533 741), as the company exists from time to time (even if its name is later changed).

‘NBN Co fixed-line network’ is defined by reference to the Telecommunications (Migration Plan Principles) Determination 2015. It means any fixed line telecommunications network that is owned or controlled by, or operated by or on behalf of, NBN Co or a related entity of NBN Co including fibre-to-the-premises, fibre-to-the-basement, fibre-to-the-node and hybrid fibre-coaxial cable access technologies, but excludes any telecommunications network deemed under the 2015 Determination to form part of the copper network or the hybrid fibre-coaxial network.

‘region ready for service date’ means the date published by NBN Co on its website as the disconnection commencement date for a particular rollout region.  In turn, ‘rollout region means’ a geographic region with an ascertainable boundary that has been determined by NBN Co within which the NBN Co fixed-line network is deployed or planned to be deployed. NBN Co typically publishes information about its rollout on its website and operates an online pre-qualification tool for new developments. NBN Co has been asked to provide developers with information where this is necessary to meet the requirements of the exemption.

Note 1 reminds readers that other words and expressions (such as, building lot, facility, real estate development project etc.) have the meaning given by section 7 of the Act. These are basic concepts used in the Instrument to identify real estate development projects and constituent building lots to which the exemption applies.

Note 2 reminds readers that section 372Y of the Act defines the term ‘proximity’.

Subsection 5(2) provide three rules on the street frontage distance of a building lot (an exemption criterion) is to be calculated. The first rule relates to building lots which are battle-axe blocks. The second rule relates to building lots with multiple street frontages (e.g. corner blocks). The third rule covers all other types of building lots.

 

Section 6- Exempt real estate development projects

 

Section 6 specifies the kinds of real estate development projects which are exempt from the requirements in subsections 372E, 372F, 372G and 372H. In addition to meeting the criteria in the table, the reporting requirements under subsection 6(2) must also be satisfied in order for the exemption to apply to the particular real estate development project.

 

The table accompanying subsection 6(1) sets out the four distinguishing characteristics of the real estate development project (and its associated project area) that must all be satisfied at the relevant time. The criteria, together, are intended to identify real estate development projects that are highly likely to be in areas that will be serviced by telecommunications technologies that do not require pit and pipe infrastructure, and the provision of which would be unduly costly and inefficient. The criteria draw heavily on long standing industry practices.

 

‘At the relevant time’ is the point in time at which the exemption is claimed and notified. If the locality concerned is further developed in future, that new development would need to be assess in terms of whether it was subject to Part 20A of the Act or would be exempt under the Instrument. For example, if blocks with street frontages of 60 metres or more were further subdivided into blocks with 30 metres street frontages the first exemption criteria would not be met.  

 

Firstly, only above-ground electricity lines are installed or planned to be installed in proximity to each building lot or there are no networked utilities installed or planned to be installed. That is, the development does not have mains water, sewerage, gas or underground electricity, indicating it is likely to be in a non-urban area.

 

Networked utilities are those provided to a property remotely by a supplier whose business is typically that of providing the services concerned using a network servicing multiple premises in the area. Examples are electricity, water and gas distribution companies. Networked utilities can be contrasted to utilities that may be provided directly on the property, for example, by way of on-site solar power, tank water or septic tank sewage treatment. The provision of such onsite utilities is not intended to invalidate the exemption.

 

Item 1(a) of the table sets out two alternative criterion relating to the availability of networked utilities to the building lots. Item 1(a)(i) of the table covers the availability of above-ground electricity alone. This recognises that many rural and remote premises may be serviced by overhead electricity but may still not warrant the installation of fibre-ready pit and pipe. The criterion does, however, recognise that even if electricity is supplied to a property above-ground, in some instances a small part of the infrastructure (e.g. on property cabling like the lead-in) could be buried (i.e. ‘substantially above-ground electricity lines’). While overhead electricity may also be used in urban areas where the installation of fibre-ready pit and pipe is warranted, the other remaining criterion in the table also needs to be satisfied in order for the exemption to be available. 

 

While it could be inferred from item 1(a)(ii), item 1(a)(ii) of the table covers the alternative scenario relating to network utilities. It explicitly refers to the situation where there are no networked utilities at all installed , or planned to be installed, at the property, not even above-ground. This could be, for example, a bush block that has no networked utilities due to its remoteness and all utilities will be provided on-site. Provided that the other remaining criteria and reporting condition are satisfied, a development comprising blocks with only on site utilities will still be able to claim the exemption.

 

Secondly, there must be no kerb and/or channelling constructed (or planned to be constructed) on the street frontage. Again, this would suggest the locality is not urban.

 

Thirdly, the average length of the building lots’ street frontages must be 60 metres or greater in length. Again, this would suggest the locality is not urban. As this is an average distance, it is possible for some of the building lots of the particular project area to have a frontage of less than 60 metres in length, however, the average of all the lots considered together must be greater than or equal to 60 metres. For example, if the total frontage of a development was 200 metres and it consisted of four lots, it would not satisfy the criterion (i.e. average of 50 metres); however, if there was only three lots, the criterion would be satisfied (i.e. an average of 66.6 metres).

 

In a battle-axe block scenario, the average length of the building’s street frontage is the distance of the rear side of the building lot running parallel to the public street and the same rules as above apply. In regards to building lots with more than one street frontage (e.g. corner blocks), the average street frontage should be taken from the longest side of the boundary facing the public street.

 

Finally, the project area for the real estate development project must be located outside of a current or announced rollout region for NBN Co’s fixed-line network. This would be demonstrated by reference to material either published by NBN Co or based on written information which NBN Co has directly provided to the developer about its current or announced rollout region for NBN Co’s fixed-line network. NBN Co currently publishes an interactive online map of its areas of rollout at: www.nbnco.com.au/learn-about-the-nbn/rollout-map.html. NBN Co also operates an online pre-qualification tool for new developments and has been asked to provide developers with information where this is necessary to meet the requirements of the exemption.

 

Subsection 6(2) sets out an additional reporting condition that needs to be complied with in order for the real estate development projects that meet the criteria in subsection 6(1) to be exempt. The developer (or a person on its behalf) must provide written notice to the Secretary of the Department of Communications and the Arts setting out the following details about the projects for which an exemption under the Instrument is claimed:

a)      the development’s name (if available);

b)      the stage name or number of the development (if available);

c)      the type of development, in terms of whether it is ‘residential’, ‘commercial’, ‘industrial’, ‘mixed development’, ‘public/private institution’ or ‘other’;

d)     how many building lots/building units that will be in the development; and   

e)      the average length of the street frontages of the building lots within the      development; and

f)       location information.

 

A building lot is an area of land as defined in the Act; a building unit includes both a single dwelling building and also unit within a multi-unit building (like a business park or apartment block).

 

The written notice under subsection 6(2) is for transparency, monitoring and planning purposes. It is not an application for approval to the Department. It is envisaged that the written notices will be sent to the Secretary of the Department via an online system that will be created by the Department. The system will also be used to provide a public register of projects which developers have reported as exempt under the Instrument.

 

Developers should retain evidence of the notification to the Secretary of the Department and the information on which it is based to substantiate that their particular real estate development project met the conditions of the exemption under subsection 6(1) at the relevant time. This should include the information indicating the development is not in a current or announced rollout region for NBN Co’s fixed-line network, for example, taken from NBN Co’s website or information given by NBN Co to the developer. In the event that the regulator identified that a development did not satisfy the exemption criteria, and no passive infrastructure had been installed as otherwise required by the Act, there would be a contravention of section 372E or 372F.


 

ATTACHMENT 2

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the  

Human Rights (Parliamentary Scrutiny) Act 2011

 

Telecommunications (Fibre-Ready Facilities - Exempt Real Estate Development Projects) Instrument 2016

 

The Telecommunications (Fibre-Ready Facilities - Exempt Real Estate Development Projects) Instrument 2016 is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 Overview of the Instrument

The Instrument has been made by the Minister for Communications (the Minister) under paragraph 372K(1)(b), together with paragraphs 372K(1)(c)-(f) of the Telecommunications Act 1997 (the Act).

The Instrument exempts classes of real estate development projects from the requirements under Part 20A of the Act to install fibre-ready facilities like pit and pipe.

Pit and pipe facilities are not required for real estate development projects developments which satisfy the four criteria set out in the table at subsection 6(1) of the Instrument. This is because such developments are most likely to be serviced by telecommunications facilities (such as direct buried cable, wireless and/or satellite) that do not require pit and pipe and any pit and pipe provided may not be used in the foreseeable future, if ever. In these circumstances, it would not be cost-effective to require pit and pipe to be installed when a development of this kind is undertaken. Not installing pit and pipe in these kinds of developments will reduce development costs. Occupants of the developments will nevertheless have access to both voice and broadband services via technologies that do not need pit and pipe. Alternatively, a carrier can require pit and pipe as a commercial condition of servicing the development.

No human rights issues were raised during consultation on the proposed Instrument.

Human rights implications

This Instrument does not engage any of the applicable rights or freedoms.

Conclusion

This Instrument is compatible with human rights as it does not raise any human rights issues.