What is a Garden?

John Cicero
26 February 2018

In early 2017, the Government introduced further changes to the residential zone provisions.  Significantly, the restriction of the number of dwellings in the Neighbourhood Residential Zone of 2 was removed.  This was a sensible reform.

However, to perhaps counter any political fallout from that decision, the Government, without prior consultation with relevant stakeholders, introduced mandatory garden requirements applying in the Neighbourhood Residential and General Residential Zones.

Barely five months into the operation of those provisions, the Government announced a review of them.  This is in response to the uncertainty around the interpretation of the provisions and the absurd results produced in many circumstances. Because of their mandatory nature, they apply irrespective of the site or site context.

These provisions effectively treat every site in metropolitan Melbourne and Victoria zoned Neighbourhood Residential or General Residential as the same in determining the extent of development that should be permitted.

In addition, a number of issues have arisen in relation to their interpretation, particularly the subdivision provisions. For example if you are applying concurrently for a development and subdivision permit, do you apply the garden requirement area that would apply in the event of the creation of a lot or do you apply the garden area to the whole of the lot prior to subdivision?  In our view, it is the latter but there is uncertainty about it.

There is uncertainty and, indeed, impracticalities in seeking to apply the garden area requirements to the redevelopment of sites where there is an existing body corporate subdivision or where it is proposed to extend or alter buildings on existing lots.

Some Councils are refusing to count Garden Area created as part of a redevelopment where the natural ground level has been altered; for example, sunken courtyards.

A consultative working group has been established by Government which has met now on two or three occasions and it is understood that the outcomes of that consultative process will result in a report being prepared to the Minister.  It is to be expected that there will be changes made to the garden area requirements.

In our view, they should be removed as mandatory requirements and potentially be included as ResCode (Clause 55) requirements with standards and objectives.  Politically this might be too difficult for the Government. Time will tell.

For further information, contact either Edward Mahony or John Cicero.