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25 March 2021

Recreation in Reverse?

Among the many contentious planning matters within the Victorian Planning System, one which continues to appear relates to the suitability of [secluded] private open space for residential developments. Applicants and Councils have consistently sparred at the Victorian Civil and Administrative Tribunal (VCAT) over the dimensions, area, and configuration of what constitutes an adequate provision of private open space for the recreational needs of residents.

The well-known requirements for private open space are outlined in Clause 55.05-4 of the Victorian Planning Provisions, which states:

  • To provide adequate private open space for the reasonable recreation and service needs of residents. (Objective)

The recreational needs of Victorians are made formulaic by Standard B28 to this Clause, which quantifies the objective with the following metric:

A dwelling or residential building should have private open space of an area and dimensions specified in a schedule to the zone.

If no area or dimensions are specified in a schedule to the zone, a dwelling or residential building should have private open space consisting of:

  • An area of 40 square metres, with one part of the private open space to consist of secluded private open space at the side or rear of the dwelling or residential building with a minimum area of 25 square metres, a minimum dimension of 3 metres and convenient access from a living room, or
  • A balcony of 8 square metres with a minimum width of 1.6 metres and convenient access from a living room, or
  • A roof-top area of 10 square metres with a minimum width of 2 metres and convenient access from a living room.

Within Neighbourhood and General Residential Zones, the typical arrangement of private open space for townhouse developments is one area of secluded private open space (SPOS) to the side or rear of a dwelling. The alternative scenario, commonly known as ‘reverse living’, includes the main area of private open space in the form of balconies located above ground floor.

Certain Councils do not look favourably on the latter arrangement within lower-order zones. For example, the City of Greater Dandenong identifies the Future Character of Incremental Change Areas (with regard to SPOS), per Clause 22.09 as (inter alia):

Residential development will comprise well designed houses, townhouses, units and dual occupancies of up to two (2) storeys with main living areas generally on the ground level.

This is further qualified by the ‘design principles’ contained at Clause 22.09-3.1, which states (Private open space):

All residential developments should provide good quality, useable private open space for each dwelling directly accessible from the main living area.

Ground level private open space areas should be able to accommodate boundary landscaping, domestic services and outdoor furniture so as to maximise the usability of the space.

Private open space should be positioned to maximise solar access.

In reviewing the above, it is apparent that discretion is afforded in locating private open space areas at either ground level or at upper levels, provided it is connected to a main internal living area. The provision is neither mandatory nor explicitly encouraged, and in fact the word ‘generally’ suggests that other scenarios are anticipated.

This appears to be a surreptitious way for achieving landscaping at ground floor to the periphery of the site, which is also evidenced by way of a local variation to Clause 55.05-4 / Standard B28.

The local variation to standard B28 in the GRZ1 is:

  • An area of 50 square metres of ground level, private open space, with one part of the private open space to consist of secluded private open space at the side or rear of the dwelling with a minimum area of 30 square metres, a minimum dimension of 5 metres and convenient access from a living room; or
  • A balcony with a minimum area of 10 square metres with a minimum width of 2 metres and convenient access from a living room; or
  • A roof-top area of 10 square metres with a minimum width of 2 metres and convenient access from a living room.

Ratio Consultants were recently involved in a Tribunal hearing at No. 7 Robert Street, Dandenong (GRZ / Incremental Change Area), where Council disputed the reverse living arrangement for two of the four dwellings proposed. The Tribunal Member determined the layout as acceptable and directed Council to issue a planning permit, with relevant discussion as follows:

[para 47]          My reading of the local variation to standard B28 in the GRZ1 schedule is that the different ways in which the private open space may be provided are independent of each other.  That is, a dwelling should be provided with either 50 square metres of ground level private open space, or a 10 square metre balcony, or 10 square metre roof terrace.  The requirement for 50 square metres of private open space only applies to circumstances where the private open space is provided at ground level.

[para 51]          Even though the ‘identified future character’ statement for ‘incremental change areas’ anticipates dwellings ‘with main living areas generally on the ground level’, this does not preclude the provision of private open space at either ground level or upper levels.  The use of the word ‘generally’ in this statement indicates that other scenarios are possible.

The question which naturally arises, is whether the provision of secluded private open space in form of balconies facilitates the reasonable recreational needs of residents. The locational context undoubtedly contributes to the ambit of assessment; that is to say, inner city areas are generally better suited to private open space areas above ground, while it would be unusual in hinterland residential areas to solely rely on balconies. However, the blanket inference that all land within General Residential Zones (even those close to activity centres) requires the main provision of private open space at ground floor is unreasonable and unrealistic, particularly in the year 2021. If last year has shown us anything, it is the resilience of humans, and while landscaping is an important feature for residential developments, it seems inappropriate to conflate landscaping and private open space – they are indeed two separate issues. 

In reviewing the benefits associated with reverse living arrangements, the Member in The Town Hall Consulting Group v Greater Dandenong CC [2013] VCAT 1769[1] comments [at para 11]:

The reverse living arrangement can provide good access to daylight, optimise views and make efficient use of a site. There is nothing within the planning scheme that prevents the provision of the private open space areas in the form of balconies.

Similar issues have occurred throughout certain residential areas within Monash City Council, which was made obvious during the Planning Panel for Planning Scheme Amendment C125 to the Monash Planning Scheme. Monash Council had originally proposed ground level secluded private open space be encouraged in most residential areas to the exclusion of balconies or roof top areas as an alternative form of SPOS. The Panel for the amendment disagreed with this approach:

  • The Panel also views balconies and rooftops providing valuable alternatives to ground level private open space; it may be preferable for a variety of households (single occupant, couples, downsizers etc.) or aged care housing, where reverse living affords greater amenity (views, solar orientation, sloping site constraints). P.122
  • The Panel considers balconies should be an option for other forms of multi-unit development in all zones to be applied by the Amendment. P.123

In understanding that secondary considerations (e.g., daylight access, solar access, overlooking, screening devices etc.) must form part of the equation, there are separate amenity standards under ResCode which guide consideration of these tests. It is difficult to mount the reasonable argument that balconies are only suitable for persons living within apartment style developments, when, in fact, there are numerous examples of three storey townhouse buildings which are of a similar size to an apartment style development. In both scenarios, there can be larger and smaller family typologies. The planning scheme should not dictate that SPOS areas can only take one form.

While certain Councils can seek to vary the configuration of private open space areas under local Schedules, the provision of balconies is viable solution under the Victorian Planning Provisions, and generally remains a viable solution in the eyes of the planning judiciary in Victoria.  

Get in touch with Mitch Seach or your regular ratio: contact for advice relating to your recreational development needs.


[1] For additional Tribunal commentary please also refer Yue Shu v Maroondah CC [2020] VCAT 313 (16 dwellings in a GRZ).    

 

Author: Mitch Seach, Senior Planner

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