Garden area requirement revisited

Edward Mahony
8 August 2019

The interpretation of the garden area requirement in General Residential and Neighbourhood Residential Zones was recently considered as a preliminary legal question in the Victorian Civil Administrative Tribunal (‘VCAT’) decision before Senior Member Jeanette Rickards in Clayton Gardens Pty Ltd v Monash CC [2019] VCAT 1138 (‘Clayton Gardens’). The following legal questions were asked:-

1. Is the meaning of and interpretation to be given to clause 32.08-4 dependent upon the context and facts of the application under consideration, in which case the way that the minimum garden area requirement is to be applied is dependent upon the type of application and the composition of the planning unit?
2. If the answer is Yes, then how is clause 32.08-4 to be applied in the following example?
   The subject land in the application comprises one or more lots (planning unit). The application is for a multiple townhouse/unit type proposal.
   Specifically, is the garden area requirement to be applied to the planning unit or is each lot comprising the planning unit required to meet the minimum requirement as they existed at the time of the application?
3. If the answer to Question 2 is that the garden area is to be applied to each lot (rather than the planning unit), can the minimum garden area requirement be met with a permit condition requiring consolidation of multiple lots?
4. Can the minimum garden area requirement be met if the application proposed a permit condition requiring consolidation of multiple lots?

The question of whether the application of garden area applied to per lot or per planning unit was previously considered at VCAT by Member Susan Whitney in Sargentson v Campaspe SC (Red Dot) [2018] VCAT 710 (‘Sargentson’) where the following was held:-

[33] “Whilst I can see the appeal of measuring the Garden area in relation to the total planning unit, this interpretation is not supported by the language used in clause 32.08-4 and as such I cannot see a justification for basing the calculation on the area of the entire planning unit, where the planning unit in this case is comprised in two lots that could conceivably be disposed of separately. As such, I do not adopt that approach.”

This line of reasoning by Member Whitney has been followed by VCAT until the recent Clayton Gardens decision where Senior Member Rickards held that the minimum garden area of requirement is to be assessed on the planning unit, rather than requiring it be met on each individual lot. The assessment is based on lot configuration at the time of the application.

In answering questions 1 and 2, it followed that the answer to questions 3 and 4 must be answered ‘No’ based on the conclusions reached in question 2.

In summary, Senior Member Rickards held:

[31] “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 the planning permit which specifies consolidation of lots. By assessing the ‘application’ as the planning unit it is unlikely that there would ever be a scenario that would require consideration of the imposition of a condition requiring consolidation of lots.”

On the face of it, the two positions appear contradictory. However, since the Sargentson decision, there has been a change to the relevant VPP provisions and relevantly what the zone now provides is that

‘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…’

We think that the new language does provide an opportunity to revisit the decision in Sargentson as the Tribunal has done in this decision. We think that it was open to the Tribunal to apply the Section 37 of the Interpretation of Legislation Act 1984 and read the reference to ‘lot’ as including the reference to ‘lots’

Nevertheless, there are still two decisions which could be argued are in conflict with each other.