Regular readers and applicants will be aware of the recent changes to the General Residential and Neighourhood Residential Zones introduced in April of this year, under amendment VC110, requiring a mandatory minimum Garden Area as part of development proposals on lots greater than 400m2.
Clause 32.08-4 now provides the following requirements:
|Lot Size||Min % of lot required to be set aside as garden area|
Amendment VC110 also incorporated a definition of ‘Garden Area’ into the Victorian Planning Provisions. Since its introduction our office has been inundated with questions from applicants seeking clarification of; whether gardens above basements can be included in the calculation, the status of areas under eaves and canter-levered first floors and what exactly constitutes a ‘roofed area’ over a pergola or outdoor entertaining area?
Clarification on these issues will be provided by VCAT, overtime, as the Tribunal hears cases that require these matters to be considered. The department has also indicated that it will provide a practice note on ‘garden areas’ to assist in overcoming the current ambiguity.
In the meantime, we thought it might be helpful to publish the response we provided one applicant seeking clarification as to whether or not an area under an eave can be included in the calculation of garden area.
In response to this query we replied with the following:
Eaves are just one characteristic that has not been picked up in the definition of Garden Area. Unfortunately, a definitive answer to this question will not be available until such time it is formally tested at the Tribunal (or State Government widens the definition). Until then I would expect both, building surveyors, private and Council planners to potentially hold varying positions.
Clause 1 holds the following position:
Providing the Garden Area under the eave is part of an area with a dimension greater than 1m, it can and should be considered in the Garden Area calculation. To not include garden under an eave would be nonsensical. We note: that the primary definition of Garden Area primarily states:
“An uncovered outdoor area of a dwelling or residential building normally associated with a garden.”
The definition then goes on to give examples & exclusions:
“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 1metre”
Clause 1 is of the opinion that an area under an eave would be included as a ‘garden bed’ in the primary definition.
Importantly, “roof” and “uncovered outdoor area” are not defined within the planning scheme.
In the context of the “Garden Area” definition, we believe that any ‘roof’ or ‘uncovered outdoor area’ would need to generally prevent light and rain from penetrating in order to exclude that area from the ‘Garden Area’ calculation.
In the example of eaves and other similar structures, both light and rain can permeate – so in situations where there is garden located below them, we would strongly recommend their inclusion into any Garden Area calculation.
As mentioned earlier other practitioners and Council planners may hold differing positions – but we remain hopeful that commonsense will prevail.
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