The case of Waveconn Operations Pty Ltd v Melton CC [2024] VCAT 576 concerned an application to the Victorian Civil and Administrative Tribunal (Tribunal) for the review of a decision made by the Melton City Council (Council) to refuse a permit for the construction of a 30-metre high telecommunications facility (Permit Application), which if granted, would address existing and future service issues in the Mt Atkinson development area.

The Tribunal allowed the appeal and set aside the Council's decision. A permit to construct a telecommunications facility on the subject land was granted at the direction of the Tribunal.

The relevant land is located south of Grand Boulevard in Truganina, Melbourne and is comprised of a series of non-contiguous lots with a total site area of 8.2 hectares (Land). The Applicant, Waveconn Operations Pty Ltd (Applicant), sought permission for the construction of a 30-metre high slimline monopole telecommunications tower and an associated equipment compound on the eastern-most corner of the Land, which would sit approximately 90 metres east of the nearest residential property (Permit Application).

The Council refused to grant the Permit Application on several grounds. Firstly, it considered the proposal to be inconsistent with the Telecommunications Policy under Clause 19.03 of the Melton Planning Scheme (Planning Scheme). Relevantly, the policy seeks to preserve "…a balance between the provision of important telecommunications services and the need to protect the environment from adverse impacts arising from telecommunications infrastructure" (at [1]).

Secondly, the Council believed that the proposal was inconsistent with the wider planning policy framework under the Planning Scheme relating to urban design, siting, and amenity, and fails to contribute positively to local urban character without causing detrimental impact on neighbouring properties (at [1]).

The Applicant contested the Council's decision on the basis that there was sufficient demand for the facility to improve 5G technology coverage in the area, and that no alternative location was available for the necessary essential infrastructure (at [4]). It submitted that, in any event, the proposed facility would be adequately separated from the nearby residential area to avoid any detrimental impact to neighbouring properties.

In making its determination, the Tribunal considered the following two primary issues (at [9]):

1. whether the development was an acceptable response to policy?; and

2. whether the development would cause detriment to residential properties and proposed public open space through unacceptable visual impact?

In considering the surrounding policy relating to the Permit Application, the Tribunal considered the Future Urban Structure Plan in the Mt Atkinson and Tarneit Plains Precinct Structure Plan (PSP). The plan identifies the Land for "business" uses, being bordered by land for "business/large format retail" to the east and "residential" uses to the west, and forms part of a strategically integral component in achieving greater diversity of employment opportunities within the area in the coming years (at [18]).

The relevant policy pertaining to Telecommunications Facilities in the Planning Scheme is found under Clause 52.19. The purpose of the Clause is to facilitate the implementation of telecommunications services effectively while maintaining the amenity of the area and meeting community needs. Whilst the Tribunal acknowledged that the 30-metre high monopole would be conspicuous within the open landscape of the Land, and therefore posed some visual amenity impact, it also found that the consideration of "community needs" extends to the future community (at [34]).

Accordingly, the Tribunal took into account that the proposed development was an important telecommunications service and that the anticipated increase in employment opportunities in the growth corridor will demand additional telecommunications infrastructure to ensure the accessibility and reliability of network coverage for existing households and prospective businesses in the area (at [34]).

In light of this, the Tribunal was satisfied that, despite its high visibility, the proposed development would strike an acceptable balance between the provision of telecommunications infrastructure and the need to protect the environment from adverse impacts relating to it. Accordingly, the Tribunal found the proposal to be consistent with the relevant policies (at [36]).

If constructed, the proposed development would sit in an exposed area in proximity to the nearby residential area to the west of McKinley Drive. Given the context of the Land and the relative height of the monopole to its surroundings, it was contested that the structure would cause an unreasonable visual amenity impact to those residential properties (see [37] and [38]).

The Tribunal emphasised that Clause 52.19 only requires any amenity impact caused by any telecommunications facility to be "minimal" rather than non-existent (at [44]). In its assessment, the Tribunal also took into account that a permit for the construction of the Mt Atkinson Hotel had been granted and, if built, would partially conceal the prominent monopole's visual impact upon the residential properties beyond McKinley Drive (see [42] and [43]). Notwithstanding whether the hotel permit is acted on or not, the Tribunal held that the proposed development would be remote enough from the residential interface to ensure that there would be a sufficient buffer to any significant amenity concerns (at [44]).

Further to the above, the broader policy framework for the surrounding precinct is the Hopkins Road Business Precinct Urban Design Framework (Framework) (at [20]). The Framework specifically provides for public open space and, in particular, an allocated part of the land opposite the proposed development for a local park (at [21]).

Despite direction in the Framework, as it is not part of the Planning Scheme, it warrants less weight than the PSP (at [22]). Further to this, the proposed location of the park had not been confirmed and, at the relevant time, the Council did not own the relevant land and would not acquire it and deliver the park until five to ten years in the future (at [57]). Irrespective of the Framework's weight on the matter, the Tribunal was not persuaded that there was sufficient evidence to establish that the interface between the facility and the prospective local park would be unacceptable (at [59).

The Tribunal allowed the appeal and granted a permit subject to conditions.