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The Planning and Development (Amendment) Act 2010 (2010 Act) has passed through the Dáil and Seanad and was signed into Irish law by the President on 26th July 2010. The main body of the 2010 Act came into force under a Commencement Order on the 28th of September. A number of other sections and related consequential amendments will commence at a later date.
The 2010 Act has the following implications on owners of network infrastructure.

1. Impact on Local Planning Procedures
In future local development plans and local area plans must be consistent with national and regional development objectives as set out in the National Spatial Strategy (NSS) and regional planning guidelines. In the past, local authorities were obliged to “have regard” to the NSS and regional planning guidelines, but not to necessarily comply with them. The 2010 Act requires local authorities to develop a “core strategy” to ensure adherence to the NSS and regional development plans, and to vary development plans where this is not demonstrated. The revision of development plans has already commenced. Telecoms operators may utilise these provisions to press for change where the telecoms policy of existing local development plans conflicts with national and regional policy. Obvious targets in this regard include Kerry County Council’s Development Plan where telecoms infrastructure is not permitted within 1km of places of human occupancy and Sligo County Council, where infrastructure is not permitted within 400m of a dwelling.

2. Default Planning Permission
Under the Planning and Development Act 2000 (2000 Act) local authorities had 8 weeks within which to decide, refuse or request further information in relation to a new planning application. Where none of these options were exercised permission issued by default. Under the 2010 Act local authorities now have a further 12 weeks in addition to the core 8 week period to remedy a failure to make a decision. The effect of this provision is to safeguard local authorities from inadvertently granting planning permissions owing to a punishing default position contained in the 2000 Act.

3. Extensions of Planning Permission
Tower developers may apply for extensions on the duration of a planning permission where the development is not completed. The 2000 Act allowed for extensions of permission only where the development was substantially completed, the 2010 Act allows for an extension where the development did not proceed due to “commercial, economic or technical” issues beyond the control of the applicant. Where operators hold unbuilt ‘live’ planning permissions with future development prospects the opportunity now exists to apply for the extension of permission. It shall not be possible to apply for an extension to the original permission earlier than 12 months from the date of expiry of that permission. An applicant may extend a particular permission on one occasion only.

4. Refusal of Planning Permission due to Prior Breach
Under the 2000 Act a local authority or An Bord Pleanála may refuse permission where an applicant has previously failed to comply with a planning permission or a condition attaching to a permission. Under the 2010 Act permission can now be refused if a person has either carried out a substantial unauthorised development or has been convicted of an offence under the 2000 Act. The applicant must receive prior notification of the intention to refuse permission affording him/her the opportunity to make submissions. The remedy is for the applicant to apply to the High Court (within eight weeks of notification) for an Order annulling the planning authority’s decision. Operators should continue to comply with planning permissions and with all conditions attaching and not to leave themselves open to the above provisions.

Kildare North TD and Minister of State Aine Brady has been informed that the EU have allocated funds from the European Economic Recovery Programme (EERP) for Rural Broadband Initiatives to cover areas that are not covered by the current Broadband Schemes.

‘The Department of Communications is currently progressing the design and implementation of a scheme which could use this EU funding to address the issue of basic Broadband availability to currently unserved rural areas, primarily due to technical and other reasons (suitability of a telephone line, distance from an enabled exchange, no line of sight etc.)’

‘Despite Government Funding in Broadband Infrastructure, through schemes like the Group Broadband Scheme, Metropolitan Network Area Programme, the National Broadband Scheme and significant investment from the private sector, we still have a small percentage of premises that do not have access to Broadband.’

‘The Funding allocated from the EU is for rural Broadband Initiatives and it will involve the identification of premises currently not capable of receiving Broadband. It is hoped to commence the scheme later this year and have it completed by 2012. Details of broadband services available in each county can be found on ComReg’s website at www.callcosts.ie and precise details of the electoral divisions throughout the State that are included in the National Broadband Scheme can be viewed on the Department’s website www.dcenr.ie.’ concluded Minister Brady.

Two recent entrants to the mobile phone market brings to eight the number of mobile phone services in Ireland.

eMobile, the new mobile phone brand from Eircom, will create 50 jobs in retail outlets and will be supported by a EUR2.5 million marketing campaign. The company’s existing mobile brand, Meteor, has targeted the under 25s, eMobile will target an older segment, including existing Eircom landline and broadband customers; both brands will use the 085 prefix.

Just Mobile, a new Swords-based mobile operator will begin offering its services next month. The mobile virtual network operator is partnering with Spar to operate a pre-paid mobile phone service. The service will use Vodafone’s network, it plans to be cheaper than the main four networks. It is targeting students and other price-conscious consumers.

eMobile and Just Mobile join the four main operators in addition to Tesco and Postfone in providing national mobile phone services.

BT is bringing fibre broadband to 90 percent of Cornwall by 2014. Cornwall is using £53.5m of EU funding to help finance the project, while BT is adding a further £78.5m. Under the project half the population in the county will be given up to 100Mbits/sec fibre-to-the-premises (FTTP) lines, with 35 percent given up to 40Mbits/sec via the slower fibre-to-the-cabinet (FTTC). With FTTC copper lines converge at a fibre enabled cabinet situated in close proximity to the premises. Where FTTP or FTTC is not available, the remaining premises (10%) will get their broadband via satellite or wireless. It is reported that the project will benefit tens of thousands of local businesses, create 4,000 new local jobs and protect a further 2,000.

Source: Techeye.net. 1st October 2010

In April 2009 the Telecoms and Internet Federation (TIF), an industry divisional grouping of IBEC, made a submission to John Gormely, Minister for the Environment, Heritage and Local Government where it voiced operators’ concerns regarding development contributions charged by local authorities on telecommunications base stations.

The TIF made a number of recommendations to the Minister including a call for amendment of the current planning legislation to ensure nationwide consistency on the setting of development contributions and to eliminate repeat development contributions for retention applications.

Development contribution sums for telecoms infrastructure has spiraled out of control within the past two years, in particular as Local Development Plans and Development Contributions Schemes were updated across the country. The more extreme local authorities are levying penal contribution levies, for example on December 28^th 2008 Carrickmacross Town Council signed into operation Contribution Scheme which imposes €50,000 in development contributions for new mast development plus an additional €20,000 per antenna added. This local authority is not on its own, Monaghan Town Council currently levy €54,480 per mast and €20,950 per antenna added, while North Tipperary County Council levy €20,000 per apparatus. The majority of remaining authorities have heaped significant increases in contribution levies on mobile operators over the period with the average contribution for those councils who required a specific telecommunications contribution through their plan was €11,517.53 (Source TIF 2009).

In the meantime the Minister’s department has drafted a Bill (Planning and Development (Amendment) Bill 2009) to amend existing planning and development legislation. This Bill is presently going through the houses of the Oireachtas and will, when approved, amend planning legislation. Unfortunately, the proposed bill does not address any of the issues raised by the TIF with regard to the application and quantum of development contributions applicable to telecoms infrastructure.

We recommend that mobile industry leaders take immediate issue with the TIF to ascertain now if any scope exists to influence legislation before it is signed into law.

One new way for mobile phone operators to increase their service offering is by deploying femtocells within the home and office environments. This new technology presents a large array of benefits to consumers and mobile phone providers alike. A femtocell is a small transmit/receive device installed within a household or office and connected to the internet which allows mobile phone operators to provide improved coverage for up to four mobile phones within a building.

The benefits for the consumer are improved coverage and the convenience of being able to use the mobile phone, as well as integrating the home computers with the phone network. This offers potentially a huge array of functionality to the home: think control your TV by mobile phone, leave virtual ‘fridge notes’ to be delivered when recipient returns home, remotely control air-conditioning, synchronise music collections from phone to PC etc …

For mobile phone operators the marketing of femtocells offers a whole range of novel advantages. The first advantage is that of improved coverage within the home or work environment without the costly deployment of macro cells in low coverage areas. Secondly, it allows operators to win more market share from the fixed line operators. In deploying femtocells operators will enjoy increased and secure revenues, reduced churn, and the ability to offer cheaper services (cheap calls when making calls from home) to the consumer, not to mention all the customisable, chargeable applications the operators can offer.

At a time when mobile phone users have dramatically increased their data usage with devices like the iPhone and other Smart phones which puts significant strain on the networks, a femtocell will relieve the traffic on the main network, as the data is backhauled through the end users internet connection.

The majority of mobile phone usage takes place in the home and work environment and therefore it makes great sense to improve indoor coverage with the use of femtocells. This has the added benefit to consumers that their handset batteries last longer when used with in femtocell.

On a technical note, femtocells are small base stations within the home, capable of supporting up to four handsets at a time, all contained in a discrete unit barely bigger than a modem. Femtocells are unique in that they use the licensed spectrum which means they have to be deployed by licensed mobile phone operators.

Criticism regarding femtocells is centred on the fact that the end-user has to pay for the internet connection as well as for the coverage. Furthermore, there seems to be room for improvement regarding interference with nearby networks.

In the UK the main mobile phone operators, represented by the Mobile Operators Association, have committed to a Best Practice statement in respect of the planning and development of base stations. The aim of the Ten Commitments is to create the required level of transparency, public involvement and information with the process of building mobile phone base stations.

The high level of standardization of the planning and development process might seem like a burden to developers but the aim is to create a process which eliminates potential setbacks further down the line in the progress of site development, like local opposition, planning refusals etc.

A range of tools and standardization has been developed which supports the Ten Commitments. For example the Traffic Light Model determines the level of public consultation and the compliance with ICNIRP has been standardized to include standardized forms for ease of reference.

Below is a brief outline of the Ten Commitments

1. Improved Consultation with Communities

Develop, with other stakeholders, clear standards and procedures to deliver significantly improved consultation with local communities. The Traffic Light Model is used by the acquisition agent to determine the level of public consultation.

2. Detailed Consultations with Planners

The operators participate in obligatory pre-rollout and pre-application consultation with local planning authorities.

3. Site Sharing

Publish clear, transparent and accountable criteria and cross-industry agreement on site sharing, against which progress will be published regularly.

4. Workshops for Councils

Establish professional development workshops on technological developments within telecommunications for local authority officers and elected members.

5. Database of Base Station Sites

Deliver, with the Government, a database of information available to the public on radio base stations.

6. Compliance with ICNIRP Public Exposure Level Guidance

Assess all radio base stations for international (ICNIRP) compliance for public exposure, and produce a programme for ICNIRP compliance for all radio base stations as recommended by the Independent Expert Group on Mobile Phones (IEGMP).

7. ICNIRP Certification

Provide, as part of planning applications for radio base stations, a certification of compliance with ICNIRP public exposure guidelines.

8. Prompt Responses to Enquiries

Provide specific staff resources to respond to complaints and enquiries about radio base stations, within ten working days.

9. Support Research into Health and Mobile Phones

Begin financially supporting the Government’s independent scientific research programme on mobile communications health issues.

10. Standard Documentation for Planning Submissions

Develop standard supporting documentation for all planning submissions whether for full planning or prior approval.

While operators in Ireland are not obliged to sign up to the Ten Commitments, it being a UK standards only, they do in fact act in accordance with the commitments. For example Comreg Policy No 03/28R, essentially a signed commitment to site sharing, signed off by all operators in 2003 set out a code of practice for site sharing to which O2, Vodafone, Meteor and H3G are committed. Another common set of standards but within a planning context is the DOELG Guidelines 1996.

The difficulty is that all these strands are not pulled together under an umbrella document or standard, and for this reason we believe it is in the operators and the public interest to adopt a modified version of the Ten Commitments in Ireland.

In the UK the Mobile Operators Association (MOA) represents the five UK mobile network operators – 3, O2, Orange, T-Mobile and Vodafone – on radio frequency health and safety and associated town planning issues. This association presents single focal point for the public whereby industry issues are addressed, where the public can inspect shared industry standards. Deloitte and Touche regularly audit the UK mobile companies for compliance with the Ten Commitments.

IBEC’s telecoms industry division the ICIA (Irish Cellular Indistry Association) of the TIF (Telecoms and Internet Federation) are well positioned to provide a single focal point for the operators in the Irish jurisdiction. By increasing its website profile and by implementing a single umbrella standard such as the Ten Commitments to Ireland the operators will benefit from the increased transparency that this unified approach would bring.

The term Broadband has been newly defined by recent announcements in the telecoms industry. On the one hand Imagine backed by a consortium including Google and Intel, recently launched the WiMax network. Initially this new technology will offer customers speeds of up to 10MBs but is expected to be switched up to 40Mbs within a year.

On the other hand mobile operators are quickly moving along to increase their speeds by rolling out the 4G network, which is also known as Long Term Evolution (LTE). This new technology is expected to increase broadband speeds up to 150Mbs, but is considered to be 2 years off.

Eircom is rolling out ADSL 2+ which can deliver speeds of up to 24Mbs, which is a limiting factor for operators providing services through Eircom’s network.

The real battle is perceived to take place between the WiMax technology, as rolled out by Imagine, and the 4G technology embraced by the mobile operators on the other side.

While the mobile operators remain critical of WiMax, to the extent of dismissing its ability to break the 3G broadband platform, Imagine backers do not place much confidence in the operators delivering the rollout of the next generation network in the near future.

On a political level it is believed that the blended approach will carry the country into a fast broadband era, as communicated by Eamon Ryan, Minister for Communications.

Code Powers, are statutory rights going beyond normal security of tenure rights granted under the Landlord and Tenant Act 1954.

The Code can be used to secure rights of entry against landowners that seek to use an operators need to complete a network as a means of delaying or ransoming. To date this has only been used to lay cables spanning several land ownerships where each piece of the jigsaw must be acquired before the whole scheme can proceed. Operators may also use the Code to enter onto site and to commence build in advance of formalizing lease arrangements where permitted to do so in writing by the site owner. Once on the lands the operator may remain on site even in the absence of contractual completion.

The Code can also be used by operators as a means of remaining on site after their contractual term has expired as a means of protecting the network.

Operators generally use Code Powers as a matter of last resort where a landowner has acted in a protracted or aggressive manner. Operators may also use the Code as a means of remaining on site and on air where the contractual term has expired while a replacement site is being acquired.

Ultimately disputes and consideration/compensation are matters for determination by the courts, but much can be done to lessen the need for litigation. The secret is early communication and constant dialogue together with a willingness to see both sides’ issues.

The legislative framework supporting Code Powers is The Telecommunications Act 1984 as extended by The Communications Act 2003.

The scope for appealing hefty development contributions levied by cash-strapped councils to telecoms development is often quite narrow and limited to appealing the misapplication of the scheme.

An Bord Pleanála (ABP) recently issued a favourable order to a licensed operator who successfully appealed the levying of a contribution (and a bond) for the attachment of antennas to an existing structure in Co Mayo. ABP removed both conditions reasoning the Mayo County Council Development Contribution Scheme does not provide for a Telecommunication development category.

Where a misapplication of the development contribution scheme cannot be demonstrated ABP’s hands are tied and are likely to uphold any conditions attached to local authority grants as has been demonstrated in numerous recent ABP cases where operators appealed development contributions.

Watch out for the following County Councils: Monaghan, Leitrim, South Tipperary and Offaly charge amounts around €20,000 or more (Monaghan €30,000) per mast! And the contribution scheme does not distinguish between new structures and retention structures.