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15 May 2018

Mandatory Garden Area Requirements - Amendment VC143

Greater clarity on the interpretation and application of the mandatory garden area requirement has been provided by today’s gazettal of Amendment VC143.

The Amendment doesn’t fundamentally change the requirement of the garden area, it remains a mandatory requirement and it will still be applicable on the same sliding scale to residential developments on lots over 400m2. However, the definition, application and exemptions have been updated.

The Definition

The definition of the Garden Area as amended by VC143 will read:

Any area on a lot with a minimum dimension of 1 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 10 square metres; and
  • domestic services normal to a dwelling or residential building;

b) a driveway; or

c) an area set aside for car parking.

This is updated from the previous definition –

An uncovered outdoor area of a dwelling or residential building normally associated with a garden. It includes open entertaining areas, decks, lawns, garden beds, swimming pools, tennis courts and the like. It does not include a driveway, any area set aside for car parking, any building or roofed area and any area that has a dimension of less than 1 metre.

The new definition clearly allows areas under eaves as well as outbuildings to be included within the garden area (provided they meet the above criteria).  This seems to be a logical and necessary change, particularly after the Tribunal recently found areas below eaves were to be excluded - Guler v Brimbank CC (Red Dot) [2018]. The definition remains silent on areas below projecting balconies, however the Practice note accompanying the amendment indicates areas below projecting balconies cannot be included in the calculation. 

It also clearly allows areas above a basement to be included, although only if the basement does not project above 'ground level' (which is defined in the planning scheme as the natural level of the site at any point). Interestingly, a basement can project up to 1.2m above ground and still be considered a basement, but it would appear the area above could not contribute to the garden area calculation.

The change in definition has definitely cleared up some issues with the original definition. However, it raises new issues such as does a swimming pool and/or tennis court count towards garden area?

Other Changes

The requirement for the area to be provided at ground level has been deleted, however upper level balconies and roof terraces are excluded as the definition states only unroofed terraces and the like that are less than 800mm in height can be included in the calculation.

The Amendment will give Councils the opportunity to remove the requirement within the General Residential Zone through amending the schedule to the zone. This is an important update given many Councils have vast areas within the GRZ and the blanket application of the Garden Area has constrained development across these areas without regard for varied physical and strategic contexts (access to shops and services, public transport and existing built form character, for example). That being said, we can envisage the difficulties that will be faced by Councils at the community consultation phase of any amendment seeking to remove or vary the garden area requirement. 

Sites with approved development plans, incorporated plans, precinct structure plans or other equivalent strategic plan have been exempt from the requirement, as it is assumed sufficient strategic work has already been undertaken in these locations to determine an appropriate built form outcome.

Sites where the existing buildings do not comply with the minimum garden area prior to the introduction of VC110 have also been exempt.

The changes also end the experiment of trying to control the size of single dwellings on a lot with the removal of the minimum garden area requirement from applying to the construction or extension of a dwelling or residential building where a planning permit is not required.

The Residential Growth Zone is also amended to move Food and Drink Premises and Shop from Section 1 (Permit not required) to Section 2 (Permit required). The justification for this change is that the allowance for Food and Drink Premises and Shop to occur without requiring a Permit in the RGZ has apparently made Councils reluctant to apply the zone (perhaps it may also have something to do with the zone’s purpose to provide housing at increased densities…).

 

Author: Claire Whelan, Senior Planner

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