A recent Victorian Civil and Administrative Tribunal “RED DOT” decision has provided clarity on the definition of “lot”, where there are multiple titles involved in one planning permit application, for example, building multiple dwellings over two titles. The decision in Clayton Gardens Pty Ltd v Monash CC [2019] VCAT 1138 considered whether the mandatory garden area requirement applies to each single lot or to the whole application area if there are multiple titles in an application. It also considered whether, if it applied to the multiple titles, whether it was reasonable to include a condition on the permit requiring the lots to be consolidated as part of the approval.
We note Clause 32.08-4 of the VPPs provides:
‘An application to construct or extend a dwelling or residential building on a lot must provide a minimum garden area as set out in the following table’. The Tribunal considered that
On the question of whether the Garden Area requirement applies to each single lot (in an application that incorporates multiple lots) or to the whole application area (planning unit) the Tribunal found that:
…. the minimum garden area requirement to be applied is dependent upon the type of application and the composition of the planning unit. As such the garden area is to be applied to the planning unit, not on a per lot basis, if the application includes more than one lot.
On the question of whether it was reasonable to include a condition on the planning permit requiring the lots to be consolidated as part of the approval. The Tribunal provided the following, significant commentary:
Compliance with clause 32.08-4 must occur at the time of the application. There are therefore no reasons to impose a condition requiring consolidation either before or after consideration of the application.
The answer to this second question has been widely-interpreted as meaning, that if applications do not incorporate the required Garden Area – a permit condition cannot be imposed to require compliance. Practitioners need to be aware that such non-compliance may result in applications being summarily refused or struck-out.
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