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There have been a number of recent VCAT decisions which have provided more clarity around when a development site may be exempt from the mandatory Garden Area requirement.   

Relevant to residential development under the General Residential Zone and Neighbourhood Residential Zone, this mandatory control can have a significant bearing on the yield, scale and form of residential development.

There are some exemptions to the Garden Area requirement, including (inter alia, our emphasis):

• The lot is designated as a medium density housing site in an approved precinct structure plan or an approved equivalent strategic plan;
• The lot is designated as a medium density housing site in an incorporated plan or approved development plan.

Previously there has been a degree of uncertainty around the application of the first exemption in relation to what constitutes an “approved equivalent strategic plan” in the context of residential infill development within established urban areas across Victoria, where there are often structure plans, urban design frameworks and/or Design and Development Overlays (DDOs) that could reasonably be argued as being ‘equivalent strategic plans.’

There are now several VCAT decisions that assist in interpreting this exemption in differing contexts and circumstances as follows:

• The first of these decisions is Terrigal Crescent Development Pty Ltd v Yarra Ranges SC [2018], where the Applicant argued that the Shire of Yarra Ranges Housing Strategy 2009 coupled with a DDO constituted an “approved equivalent strategic plan” and therefore the development was exempt from the Garden Area requirement. The Tribunal found that the housing strategy did not have the same function as a precinct structure plan and rather its function was a broad overarching strategy from which such plans are developed. It was determined that the site did not benefit from having an “approved equivalent strategic plan”, and thus the Garden Area requirement applied. 
• In Demant v Darebin CC [2019], the Tribunal found that an Urban Design Framework and DDO constituted an “equivalent approved strategic plan” and was exempt from the Garden Area requirement. The Tribunal determined “Notably, it is important for our purposes here that both the UDF2015 and the DDO16 are quite prescriptive documents (with more of a master-planning flavour to them) which focus on a very particular urban area (The St Georges Road and Plenty Road Corridor)”.
• In the more recent decision of Barnes Capital Pty Ltd v Surf Coast SC (No. 1) [2020] the Tribunal considered the exemption in the context of both the Torquay and Jan Juc Structure Plan 2007 and Clause 21.08 (Torquay Jan Juc Strategy) and found that the these documents did combine to constitute an equivalent strategic plan. In comparing its findings with the earlier Terrigal Crescent Development Pty case, the Tribunal noted the Structure Plan applied to a discrete part of Surf Coast Shire, rather than a broad Housing Strategy applicable to the whole planning scheme in the Terrigal decision. 

Consideration of whether the Garden Area exemptions apply to a site will be determined on a case-by-case basis and will turn on the particular facts of each situation. 

Read together, each of these decisions provide a clearer picture of the circumstances when a site may benefit from the exemptions to Garden Area, in particular the more recent legal findings in Barnes Capital Pty Ltd, and we have already observed instances where Councils have applied the Garden Area exemption having regard to the above directions of VCAT. 

We anticipate this trend will continue as the exemptions to the Garden Area requirement will be tested particularly in and around activity centres, where there might be applicable structure plans/urban design frameworks coupled with DDOs.

However even if a site is exempt from the Garden Area requirement, a development must still appropriately address other applicable requirements/policies in the planning scheme relating to landscaping, site coverage and amenity based on the urban context.

Should you wish to clarify or discuss any information in this article please get in touch with Henry Johnstone or Robbie McKenzie, or your existing contact at ratio:

Author: Henry Johnstone, Senior Planner

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