New Garden Area Changes: Puts a lid on one can of worms & opens another

Leading on from the above article, we wanted to discuss the potential impact of the new exemptions from the Garden Area Requirements contained in both the NRZ and GRZ.

Amendment VC143 goes a long way to provide much-needed clarity to some of the issues practitioners have faced when interpreting the GA requirements. However, Clause 1 expects that the new exemptions will open an entirely new can of worms.

Of note are the exemptions contained in both 32.08-4 and 32.09-4, specifically the following exemption that specifies that the Garden Area requirements do not apply to:

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;

We note that there is currently no definition within the Victorian Planning Provisions as to what constitutes:

  1. medium density housing” or;
  2. “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.

Clause 1 has formed the opinion that an equivalent approved strategic plan could include policy and strategic plans already contained within State or Local Planning Provisions that identifies areas:

  • Suitable for increased housing density;
  • As incremental or substantial change areas;
  • As housing diversity areas; or
  • Areas suitable for increased density due to proximity to activity centres or the principle public transport network;

If such a definition was excepted by Councils (or VCAT) it would mean the exemptions from Garden Area requirements would be widespread on land already identified within Victoria’s Planning Schemes as suitable for medium density housing.

Permit applicants should review the Local Planning Provisions effecting their land. In circumstances where the land is designated as a medium density site, the above exemption should be discussed with Council. However, do not expect them to be keen to apply it.

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.

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