Amended Garden Area Requirement – Clarity or Further Confusion?

Emily Marson
22 May 2018

Amendment VC143 was gazetted on 15 May 2018 which revises the garden area requirement contained in the General Residential Zone and Neighbourhood Residential Zone.

This follows the introduction of the original garden area requirement via Amendment VC110 in March 2017.

A new definition of “garden area” is included at Clause 72 of the planning scheme that appears to deal with some of the issues with the old definition.

However, the amendments potentially raise new issues that will no doubt come before the Tribunal in due course.

New Garden Area Requirement

The new garden area requirement provides that the minimum garden area must be provided in an application to construct or extend a dwelling or residential building on a lot, as follows:

The garden area requirement now expressly excludes an application to construct or extend a dwelling or residential building on a lot if that lot is a designated medium density housing site in:

• an approved precinct structure plan;
• an approved equivalent strategic plan;
• an incorporated plan; or
• an approved development plan.

The garden area requirement does not apply to an application to extend or modify an existing dwelling or residential building that does not currently meet the garden area requirement.

A schedule can now exclude the garden area requirement in the General Residential Zone.

Subdivision applications

Subdivisions which relate to approved developments are expressly excluded from the garden area requirement.

Subdivisions creating lots less than 400sqm which do not trigger a planning permit must provide at least 25 percent of those created lots as garden area. Express exclusions apply where a lot is created in an approved precinct structure plan or equivalent strategic plan, an incorporated plan or approved development plan or addressed under a permit for development.

New garden area definition

Garden area is now defined at Clause 72 as:

Any area on a lot with a minimum dimension of one metre that does not include:

a) A dwelling or residential building, except for:

• An eave, fascia or gutter that does not exceed a total width of 600mm;
• A pergola;
• Unroofed terraces, patios, decks, steps or landings less than 800mm in height;
• A basement that does not project above ground level;
• Any outbuilding that does not exceed a gross floor area of 10sqm; and
• Domestic services normal to a dwelling or residential building;

b) A driveway; or
c) An area set aside for car parking.

Implications going forward

Eaves, fascias & gutters

Eaves, fascias and gutters not exceeding 600mm in width can now contribute to the garden area.

This presents a departure from the old garden area definition, which excluded the areas under eaves and roof projections recently discussed in the Tribunal decision of Guler v Brimbank CC (Red Dot) [2018] VCAT 646.

Sheds & water tanks

Outbuildings less than 10sqm in floor area and domestic services normal to a dwelling or residential building can be included in garden area.

Interestingly, Planning Practice Note 84 (Practice Note) provides that garden sheds, gazebos, arbors, pool houses and covered barbeque areas can contribute towards garden area.

According to the Practice Note, water tanks can also be included in the garden area as domestic services normal to a dwelling or residential building.

It is noted that the Practice Note is only relevant as an aid to statutory interpretation where the words of the clause are not clear.

Subterranean and elevated garden areas

The deletion of the requirement for garden area to be provided at ground level now contemplates garden areas being provided above or below ‘ground level’.

This is important for proposals that provide garden areas at subterranean or elevated levels.

For elevated areas to be included in garden area, they must be less than 800mm in height. It is not clear where this height is to be measured from.

Protruding basements

The definition of garden area now excludes basements projecting above ground level from the definition of garden area. This may be problematic for a number of developments given the definition of ‘ground level’ at Clause 72 as “the natural level of a site at any point”. This may make calculations more difficult.

Questions remain

While Amendment VC143 has gone some way to addressing concerns with the previous definition of garden area, there remains some uncertainty in the drafting of the revised garden area requirement. For example:

• where is the height of elevated uncovered terraces and outdoor areas measured from?
• what if a basement only slightly projects above natural ground level or part of a basement is above ground level?is a terrace above a basement that protrudes above ground level a basement or a terrace for the purposes of the garden area requirement?
• is the whole area under an eave in excess of 600mm in width excluded from the calculation?

The Tribunal will likely be required to consider the new definition in the future, noting that there are no transitional provisions to the changes made by Amendment VC143. However, the transitional provisions that were introduced in Amendment VC110 (with some amendments following Amendment VC143) still remain.

Again, in the fast paced world of planning it is a case of “watch this space”.