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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):
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:
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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