Mandatory Height Controls and Garden Areas: VCAT’s Differing Approach

Regular planning permit applicants will be aware of the importance of ensuring that mandatory garden areas, specified in the Neighbourhood Residential Zone and General Residential Zone, are accurately included into your design response, if the site is not exempt. (see our previous article entitled “Getting an Exemption to the Garden Area Requirements” for exemption options).

A number of VCAT decisions have maintained that where the Garden Area requirements are applicable, neither Council nor VCAT can include a condition on a permit that ensures compliance.  To clarify what that means: if the garden area requirements are applicable and your proposal does not meet the minimum garden area specified, the proposal simply cannot be approved. The onus is on the applicant to ensure compliance with the garden area requirements at the time of lodgement and applicants cannot rely on a permit condition to bring their proposals into compliance.

In Clayton Gardens Pty Ltd v Monash CC (Red Dot) [2019] VCAT 1138 the Tribunal noted:

  1. I have reached this conclusion on the basis of the wording of clause 32.08-4 which applies to an ‘application’. If the ‘application’ does not meet the minimum garden area requirements, then the ‘application’ is prohibited. This may mean an amendment to the application would be required. As this is a mandatory requirement and must be met at the time of the application there is no ability to consider the application and attempt in some way to correct or bring into conformity the application by requiring a permit condition which specifies consolidation of lots….

In an a more recent case Sutherland v Bayside CC [2020] VCAT 474 the Tribunal was asked to determine whether it could impose a condition to bring a proposed building into compliance with the mandatory height controls contained the GRZ. Council argued, under the principles established in Clayton Gardens Pty Ltd, that non-compliance with the mandatory height controls rendered the proposal “prohibited” and that no condition could be imposed to rectify the issue.

In distinguishing the mandatory height controls from the mandatory garden area provisions the Tribunal noted:

  1. In Clayton Gardens, the Tribunal considered the requirements of Clause 32.08-4 that requires a mandatory garden area as follows:

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:

13 The Tribunal found that compliance with Clause 32.08-4 must occur at the time of the application. The same wording relating to “an application” does not apply to the height control as set out above. The words are that a “building must not be constructed”. I find that there is scope within the provisions of Clause 32.08-10 to use a condition of a permit (where appropriate) to ensure compliance prior to construction. Given the minor non-compliance in this case that can be simply addressed through a lowered planter height/parapet and does not affect floor levels, I find that a condition is acceptable.

So in summary, permit applicants must ensure the mandatory garden areas are accurately calculated and shown on plans at the time of lodgment (or any amended plans), because a condition cannot be imposed to rectify any shortfall and your proposal will be determined as prohibited. In contrast, any breach of the mandatory height controls will not render your application as prohibited and can be rectified via a permit condition in circumstances where it is appropriate to do so.

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