Garden Area Clarification – Kind of…

1. Background

Regular planning permit applicants will be aware that March 2017 Planning Scheme Amendment VC110 amended the General and Neighbourhood Residential Zones in Victoria’s Planning Schemes. Changes included a new mandatory Garden Area requirement within these Zones.

The new requirements for Garden Areas were:

A definition of “Garden Area” was introduced to Clause 72 of Planning Schemes:

An uncovered outdoor area of a dwelling or residential building normally associated with a garden. It includes open entertaining areas, decks, lawns, garden beds, swimming pools, tennis courts and the like. It does not include a driveway, any area set aside for car parking, any building or roofed area and any area that has a dimension of less than 1 metre.

The, somewhat, ambiguous  nature of the GA definition and the provisions contained within the Neighbourhood and General Residential zones raised a number of perplexing questions, such as:

• Can applicants include area under eaves as part of the GA calculation?
• Can areas under pergolas, porches or cantilevered first floor elements be included in the GA calculation?
• What about areas covered by rainwater tank’s, rubbish bins, garden sheds and other similar services?
• If the application includes ‘subdivision’ and ‘development’, must 25% GA be designated to each new?
• and the list goes on…

Despite the ambiguity of the provisions, in our experience, Councils assessing planning permit applications were generally happy to include the area under eaves as part of the overall Garden Area calculation. However, on other questions, individual councils varied significantly in their interpretation and application of the provisions.

2. VCAT’s Interpretation

In early May two significant VCAT Decisions tested the Garden Area provisions and provided practitioners with some guidance. But, it was not all good news.

In Guler v Brimbank CC (Red Dot) [2018] VCAT 646 the Tribunal found that the areas underneath the eaves and extended roofline of the proposal must be excluded from the calculation of the ‘garden area’ because they are not ‘uncovered outdoor areas’; and because they are ‘roofed areas’ within the ordinary meaning of those terms;

In Sargentson v Campaspe SC (Red Dot) [2018] VCAT 710 the Tribunal found that the garden area had to be uncovered, and could include outdoor areas normally associated with a dwelling, such as service yards. The decision also looked at how to allocate the required 25% Garden Area in a subdivision. In its decision, the Tribunal noted that the level of interpretation required to determine what fell inside or outside of the definition of Garden Area was “perplexing” and suggested additional clarity was needed.

3. Amendment VC143

Shortly after the above VCAT decisions were published, on 15 May 2018, the Department of Environment, Land, Water and Planning (DELWP) gazetted amendment VC143. The amendment seeks to clarify the Garden Area provisions and their exemptions . The most significant changes are discussed below:

3.1 New garden area definition

The definition of a Garden Area has been changed to:

Any area on a lot with a minimum dimension of 1 metre that does not include:

1. a) a dwelling or residential building, except for:

• an eave, fascia or gutter that does not exceed a total width of 600mm;
• a pergola;
• unroofed terraces, patios, decks, steps or landings less than 800mm in height;
• a basement that does not project above ground level;
• any outbuilding that does not exceed a gross floor area of 10 square metres; and
• domestic services normal to a dwelling or residential building;

1. b) a driveway; or
2. c) an area set aside for car parking.

This definition makes it clear that the following areas can be include in the GA calculation, if they have a minimum dimension of 1m:

• Areas under an eave of 600mm width or less;
• Areas under a pergola;
• Areas under unroofed patios, terraces, decks, steps and landing less than 800mm high;
• Areas over a basement, providing the basement does not protrude above natural ground level;
• Areas under any outbuilding that does not exceed 10sqm, including sheds, pool equipment rooms and alike;
• Areas under domestic services such as air-conditioning units, hot water services, water tanks, bins and alike.

Other interesting implications of the change to the GA definition include:

• The removal of the phrase “outdoor area of a dwelling or residential building normally associated with a garden”. Clause 1 believes by deleting these words from the definition applicants can now confidently include 1m setbacks along side boundaries, even if no vegetation/garden is proposed in that area and the area includes domestic services;
• The new GA definition means that areas under balconies and canterlevered upper levels cannot be included in the GA calculation.

  3.2 Clarified subdivision requirements

Most notably the change to the GA requirements clarifies that the 25% GA requirement need only be applied to lots ‘capable of development for a dwelling or residential building’.

3.3 GA requirements can be switched off in the schedule to zones

Councils now have the ability to switch off the Garden Area requirements in the schedules to the NRZ and GRZ.

3.4 New garden area requirement exemptions contained within the zones

Both the NRZ and GRZ now include the following exemptions to the Garden Area requirements within the provisions of the zone. The GA requirements do apply to:

• An application for subdivision creating a vacant residential lot less than 400sqm, if the lot is created in accordance with an approved precinct structure plan (or equivalent) or an approved permit for development;
• The construction or extension of a dwelling or residential building if:
  • Specified in the schedule to the zone (as noted above);
  • The lot is designated as a medium density housing site in an approved precinct structure plan or an approved equivalent strategic plan;
  • The lot is designated as a medium density housing site in an incorporated plan or approved development plan; or
• An application to alter or extend an existing building that did not comply with the minimum garden area requirement of Clause 32.09-4 on the approval date of Amendment VC110.

The above new exemptions are of much interest and the following article looks in a little more detail at the potential implications of the most powerful of them.

Other smaller changes where also included in VC143. Applicants are encouraged to review both the GRZ, NRZ and new GA definition contained in Clause 72, in detail.

4. New Practice note

A new practice note has been published by the Department that is designed to assist practitioners’ understanding of these provisions.

View: Planning Practice Note 84: Applying the Minimum Garden Area Requirements
www.planning.vic.gov.au/publications/planning-practice-notes

Importantly, Clause 1’s reading of the practice note has identified interesting anomalies between the practice note and the actual wording of the exemptions from GA requirements contained within the NRZ and GRZ. We have written a separate article below that looks at this issue.

5. In closing

Amendment VC143 appears to be a response from the State Government to the concerns raised by both Councils and practitioners to the initial implementation to the Garden Area requirements.  These most recent changes are important for permit applicants to understand. Should you have any queries in relation to the Garden Area changes, please do not hesitate to contact our office.

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