In May 2018 we wrote two Tidbits on Amendment VC143, Garden Area Clarification-Kind of… and New Garden Area Changes: Puts a lid on one can of worms & opens another. Practitioners may recall VC143 sought to clarify, the previously ambiguous definition of what constitutes part of the mandatory ‘Garden Area’ (GA). Amendment VC143 also introduced new GA exemptions into the Neighborhood and General Residential zones.
The exemptions to the GA requirements at Clause 32.08-4 include:
An application to construct or extend a dwelling or residential building on a lot if:
- 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;…
In May 2018 we wrote:
We note that there is currently no definition within the Victorian Planning Provisions as to what constitutes:
“medium density housing” or;
“an approved equivalent strategic plan”
We expect the interpretation of these two terms will have significant ramifications for how widely this exemption to the Garden Area requirements will be cast.
…
We are hopeful that VCAT will be given an opportunity to clarify the definition of “medium density housing”, “an approved equivalent strategic plan” and the extent to which this exemption can be applied, sooner rather than later.
In a recent VCAT case Barnes Capital Pty Ltd v Surf Coast SC (No. 1) [2020] VCAT 449, the Tribunal provided the clearest guidance, yet, on this issue.
In Barnes the Tribunal was asked to provide a legal interpretation confirming whether or not a site was exempt from the mandatory Garden Area requirements specified in Clause 32.08-4 of the GRZ.
The application was for a residential hotel, which would normally be subject to the mandatory GA requirements. Council refused the application on a number of grounds, one of which was that the application did …not provide the mandatory minimum garden area required by Clause 32.08-4.
The permit applicant contested that the application fell within the exemption at 32.08-4, and that the mandatory GA requirements were not relevant to the application.
The following question of law was put to the Tribunal:
Is the review site exempt from the minimum garden area requirement in clause 32.08-4 of the Surf Coast Planning Scheme on the basis that the subject land is designated as a medium density housing site in an approved precinct structure plan or equivalent strategic plan?
The permit applicant argued that the Torquay and Jan Juc Structure Plan 2007 was an approved equivalent structure plan. Council and a number of objectors opposed this submission.
Finding in favor of the permit applicant, and determining that the site was exempt from the mandatory garden area requirements the Tribunal provided the following useful insights into what constitutes “an approved equivalent strategic plan” and a “medium density housing site” (as required by the exemption).
Approved Equivalent Strategic Plan
In looking to provide some clarity as to what constitutes an approved equivalent strategic plan the Tribunal noted that the main function of a ‘precinct structure plan’ is as follows:
23 I therefore accept that the main function of a PSP is to address housing and employment demands for particular greenfield areas created by population growth as part of broader urban consolidation objectives.
The Tribunal then looked at the ‘purpose’ of the exemption and noted:
31. In construing the Exemption, I should have regard to its purpose. Its stated purpose is:
[To c]reate exemptions where significant strategic planning has been undertaken and areas or sites have been identified for more intensive housing outcomes on smaller lots or designated medium density housing sites. This includes, precinct structure plans, incorporated plans and development plans.
The changes … recognise sites identified for more intensive residential development should be exempt from the minimum garden area requirement to ensure an adequate supply of housing opportunities across Melbourne.
32. The author of the Exemption therefore intended the Exemption to apply if an approved equivalent strategic plan consisted of ‘significant’ strategic planning. They also intended that the plan could identify ‘areas’ as well as sites for ‘more intensive housing outcomes’. Neither the Exemption nor the purpose sought to limit the size of an area or the degree of intensity in an equivalent plan that might qualify as an equivalent plan. the exemption and noted:
Turning to what could be considered ‘equivalent’ to a PSP for the purpose of the exemption the Tribunal provided:
37‘ Equivalent’ is neither defined in the Exemption nor defined for any other purpose in the Scheme or PE Act. Its relevant ordinary meaning is equal in force, effect or significance, or corresponding in function.
The Tribunal goes on to note that to be ‘equivalent’, the relevant document/plan:
- Must be equivalent in function to a PSP
- Does not need to relate to a greenfield site
- Does not need to be incorporated into the relevant scheme
- Should be approved by Council and ideally identified in the scheme as a reference document or background document
- Should apply to a distinct area or precinct, rather than the entire municipality
- Should allow the reader to ascertain the planning-intention for the subject site
- Would ideally inform (and permeate through) the local policy and other relevant provision such as overlays, that effect the site
Regarding the facts in this case the Tribunal noted:
57. The Structure Plan adopts a hierarchy of activity centres, adopts a hierarchy of roads and a pathway network, identifies environmentally significant sites, identifies community and recreation facilities and includes an infrastructure distribution plan. It also facilitated the preparation of an approved development contributions plan for the Structure Plan area.
In summary the Tribunal found:
79. … the Structure Plan in conjunction with clause 21.08 of the Scheme is an approved equivalent strategic plan for the purposes of the Exemption.
Medium Density Housing Site
Turning now to what the tribunal said when determining if the site was designated as a ‘medium density housing’ site under the equivalent plan. Our interpretation of the main points from the decision are listed below:
- ‘Medium density housing’ is not a defined expression in the Scheme
- The Structure Plan identifies the subject land as an area for ‘urban consolidation’ and such an area is generally suitable for medium density development
- Even if the permit application is not for medium density housing, the relevant consideration (under the exemption) is whether the ‘land’ is designated for medium density housing
- Just because a site is not suitable for medium density housing, doesn’t mean that the exemption will not apply to the lot.
- Support in local policy and other site-specific controls, may add weight to the land being designated as a medium density housing site
The Tribunal concluded:
100. The subject land is a lot designated as a MDH site in the Structure Plan.
Like in all decisions, the Tribunal was careful to emphasise that the outcome in this matter, was based on the facts of this matter. And each case will be determined on its own merits.
In addition, just because a site may be exempt from the ‘mandatory’ garden area requirements, considerations such as neighborhood character and landscaping are still relevant to the decision maker.
However, permit applicants should consider carefully the principles used to apply the garden area exemptions in Barnes. Clause 1 is of the view that the reasonably flexible interpretation given to the term ‘an approved equivalent strategic plan’ may have significantly wider application. Most notably: locations within or adjacent activities centers, areas that have been included in strategic framework plans, structure plans, outline development plans, master plans and similar may meet the exemption test. Applicants should look carefully at reference, incorporated and Council approved documents to confirm if the exemption can be applied.
For further information regarding the garden area exemptions please do not hesitate to contact our office.
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