Subdivision and the Minimum Garden Area Requirement

The recent red-dot decision in Priestley v Horsham RCC [2021] VCAT 639 considered the requirement for the minimum garden area where a proposed subdivision created 4 vacant lots, each less than 400 square metres in area, in the General Residential Zone (GRZ).

Regular permit applicants will be aware, Clause 32.08-3 Subdivision of the Victorian Planning Provisions includes the following mandatory provision as part of the GRZ provisions:

An application to subdivide land that would create a vacant lot less than 400 square metres capable of development for a dwelling or residential building, must ensure that each vacant lot created less than 400 square metres contains at least 25 percent as garden area. This does not apply to a lot created by an application to subdivide land where that lot is created in accordance with:

  • An approved precinct structure plan or an equivalent strategic plan; 
  • An incorporated plan or approved development plan; or 
  • A permit for development

In Priestley v Horsham RCC, Council had issued a Notice of Decision (NOD) for the planning permit application which included a condition that each lot must include a minimum of 25 percent as garden area. The NOD was appealed by an objector. The Victorian Civil and Administrative Tribunal (the Tribunal) considered the meaning and effect of the minimum garden area requirement for subdivision.

Regularly readers will be aware that the minimum garden area requirement has been considered by the Tribunal a number of times in previous applications, but in the context of the development of a dwelling or residential building rather than a vacant-lot subdivision.

The wording of the minimum garden area requirement in the GRZ provisions differs between Clause 32.08-3 Subdivision and in Clause 32.08-2 Construction or extension of a dwelling or residential building. The Subdivision clause uses the term “An application…must ensure that each vacant lot…” whereas the dwelling requirement is “An application…must provide a minimum garden area…”. However, the Tribunal found that both constitute a ‘mandatory’ requirement and both require the provision to be met in the permit application.

Council had included a condition in the NOD that the garden area must be provided, as it had not been included in the application. The permit applicant could have included the requirement as a proposed restriction, agreement or other measure as part of the application. However, because the permit application did not include such a proposed restriction or agreement, the Tribunal deemed the permit application deficient in information. Consequently, Council should not have made a decision on an application that did not meet the requirements of the Planning Scheme.

The Tribunal decided to set aside the Council’s decision and to remit the application to the Council for reconsideration, to make a fresh decision, and to direct the Council to ensure that the applicants amend the application to comply with the subdivision minimum garden area requirement. This would then be subject to a fresh round of notice and potentially objections and Council could then make a new decision which could then be appealed.

For practitioners, this decision provides the following guidance:

  • A planning permit application for subdivision creating vacant lots under 400 square metres mustinclude provision to meet the minimum garden area requirement, in the application. This might be achieved by a proposed restriction on title, or an ongoing agreement registered against the new title(s) or other mechanism;
  • Without such provision for minimum garden area the application is incomplete and Council cannot make a decision on an incomplete permit application;
  • Council cannot ensure the mandatory garden area requirement is met by including a condition on an NOD or permit. Rather, the requirement must be embedded in the permit application.

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