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24th May 2017

Garden Area Ambiguity

The recent state wide amendments to the General Residential Zone and Neighbourhood Residential Zone via Amendment VC110 included the introduction of a mandatory minimum garden area for lots 400 square metres and above ranging from between 25-35 per cent of the lot area.

The garden area requirement also applies to vacant lot subdivision and additionally requires that lots less than 400 square metres include a garden area comprising at least 25 per cent of the new lot.

The garden area requirement is intended to apply irrespective of whether a planning permit is required, which in our initial view will mean that the requirement would also apply to a building permit application under the Building Regulations.

The zone provisions outline that the garden area must be provided at ground level and the planning scheme defines garden area as follows:

‘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.’

As outlined previously, this definition is likely to be heavily debated at both council and the VCAT over the ensuing months given the ambiguity of the garden area definition and the absence of any detailed practice note to provide guidance in relation to the underlying intent of the requirement. It is understood that a practice note regarding the garden area will be released in June or July.

As driveways are not included within the garden area calculation, the development industry may shift to the increased use of basement parking to limit the potential loss of yield associated with long common driveways.

We understand that the initial view of some council officers is that land above a basement can be included in the garden area calculation if the basement is sited below natural ground level. If the basement was located above natural ground line it could not. Given that basements often project above natural ground level some clarity on this issue would be helpful.

The definitional wording that garden area does not include a ‘roofed’ area is also likely to create debate particularly where eaves or balcony overhangs sit above garden areas below. For instance some initial opinions include that a balcony overhang may not constitute a roofed area, but an eave encroachment would constitute a roofed area, despite the ability for garden area below.

It will interesting to review the first VCAT decision that critiques the definition of the garden area to understand what can and cannot be included in the garden area calculation.

ratio: will keep you informed of any further developments in relation to the garden area interpretation.

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