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Garden area requirement gets a clipping

Amendment VC143 (Amendment) was gazetted on 15 May 2018. It seeks to improve the operation of the minimum garden area (introduced by Amendment VC110 in March 2017) by (among other things):

  • amending the current definition of ‘garden area’ to clarify inclusions and exclusions
  • enabling the garden area requirement to be ‘switched off’ within the General Residential Zone (GRZ) by amending the schedule to the zone
  • clarifying the application of, and exemptions to, the minimum garden area requirements for subdivision and development in the GRZ and the Neighbourhood Residential Zone (NRZ)
  • exempting applications to alter or extend existing buildings not complying with the minimum garden area before VC110 was introduced from having to satisfy the requirement.

Revised definition of ‘Garden Area’

The definition of ‘garden area’ as amended by VC143 reads:

Any area on a lot with a minimum dimension of one metre that does not include:

  • 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
    • domestic services normal to a dwelling or residential building
  • a driveway
  • an area set aside for car parking.

The amended definition is more detailed than the former definition. It reads:

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 one metre.

The amended definition makes clear areas underneath eaves, fascias and gutters, basements and outbuildings may be included in the garden area provided they meet the above criteria.

The amended definition provides much-needed clarity in determining the scope of inclusions and exclusions when calculating the garden area. This follows the Tribunal’s recent Red Dot decision in Guler v Brimbank CC (Red Dot) [2018], in which Member Halliday determined the areas underneath the eaves and extended roofline of a proposal were excluded from calculating the garden area because they did not constitute ‘uncovered outdoor areas’ and were ‘roofed areas’ within the ordinary meaning of those terms.

While the amended definition is silent on ‘swimming pools’ and ‘tennis courts’ (both included in the former definition), the Amendment is accompanied by Planning Practice Note 84: Applying the Minimum Garden Area Requirement (Practice Note) clarifying these issues. It states:

The minimum garden area requirement allows the construction of buildings and works that are typically associated with the use and enjoyment of the outdoor areas of a dwelling or residential building.

Consequently, outbuildings and structures such as garden sheds, covered barbeque areas, swimming pools, tennis courts and paved areas including pathways and outdoor entertaining areas can be included in the garden area.

The Amendment removes the requirement for the garden area to be provided ‘at ground level’ from the GRZ and NRZ. Despite this, the amended definition clarifies that only ‘unroofed terraces’ (and the like) less than 800mm in height may be included in the garden area. It follows upper level balconies and roof terraces cannot form part of the garden area. The Practice Note further clarifies any area under a balcony or upper storey building projection forming part of the dwelling cannot be included in the garden area.

The Amendment also removes the minimum garden requirement from applying where a planning permit is not required to construct or extend a dwelling or residential building on a lot.

Ability for a Council to remove the requirement in the GRZ

The Amendment allows planning authorities the opportunity to ‘switch off’ the minimum garden area requirement from areas within the GRZ identified for more intensive residential development by amending the schedule to the zone. It is intended this will better achieve housing diversity and affordability objectives in locations close to jobs and services, urban renewal and strategic redevelopment sites.

This is a significant revision given the mandatory application of the garden area had in some instances constrained development opportunities on sites without having particular regard to their strategic and physical context.

Exemptions to the requirement for subdivision and development in the GRZ and NRZ

The Amendment clarifies the application of, and exemptions to, the minimum garden area requirements for subdivision and development in the GRZ and NRZ.

Lots identified for more intensive housing outcomes such as medium density housing sites in approved precinct structure plans, incorporated plans, development plans or equivalent strategic plans will be exempt from the requirement. This is because significant strategic planning has already been undertaken in these locations to determine appropriate built form outcomes.

The Amendment further clarifies the requirement that an application to subdivide land creating a vacant lot less than 400 square metres capable of development for a dwelling or residential building must ensure each vacant lot created less than 400 square metres contains at least 25 percent as garden area.

The Amendment follows the Tribunal’s comments in the recent Red Dot decision of Sargentson v Campaspe SC (Red Dot) [2018] VCAT 710. In this case, the permit applicant and Council submitted two divergent approaches in determining the meaning of the term ‘lot’ in the context of the minimum garden area requirement. The application sought planning permission for both the development of the land and an associated subdivision. The Council submitted the minimum garden area should be assessed based on each resulting lot accommodating a dwelling or residential building, whereas the permit applicant argued the requirement should be assessed based on the entire planning unit at the time the application was lodged.

The Tribunal disagreed with both interpretations. Rather, the Tribunal determined the correct approach is to assess the requirement against each lot as at the time the application for a planning permit is lodged. However, Member Whitney observed these various interpretations and highlighted the lack of clarity surrounding the intention of the requirement. She observed it is unclear whether the requirement should be measured against the area of the resulting lot that is to contain the dwelling or residential building, or the area of the original lots when it is clear the location and layout of the dwelling or residential building will not align with those original lots.

The Practice Note states where an application proposes two or more dwellings on a lot and an associated subdivision of the land, the application will be assessed against the requirement to construct the dwellings and not the subdivision.

Exemptions regarding existing buildings pre-dating Amendment VC110

The Amendment exempts applications to alter or extend an existing building not complying with the minimum garden area requirement before introducing Amendment VC110.

Other changes

The Amendment also amends the Residential Growth Zone (RGZ). It does this by removing ‘Food and Drink Premises’ and ‘Shop’ from section 1 uses (no permit required) to section 2 uses (requiring a permit subject to conditions). This is intended to address a perceived reluctance of planning authorities to apply the RGZ and ensure it is appropriately applied to encourage increased housing densities in highly accessible locations close to public transport and other community services and facilities.

Responsible authorities should have particular regard to the amended definition of ‘garden area’ and Practice Note when assessing applications against the minimum garden area requirement.

If you have any questions about any issue raised in this e-alert, please contact:

Authors
Mimi Marcus | Partner
T +61 3 9258 3871
E mimi.marcus@maddocks.com.au
Simon D’Angelo | Lawyer
T
+61 3 9258 3021
E
simon.d’angelo@maddocks.com.au

Amendment VC143 (Amendment) was gazetted on 15 May 2018. It seeks to improve the operation of the minimum garden area (introduced by Amendment VC110 in March 2017) by (among other things):

  • amending the current definition of ‘garden area’ to clarify inclusions and exclusions
  • enabling the garden area requirement to be ‘switched off’ within the General Residential Zone (GRZ) by amending the schedule to the zone
  • clarifying the application of, and exemptions to, the minimum garden area requirements for subdivision and development in the GRZ and the Neighbourhood Residential Zone (NRZ)
  • exempting applications to alter or extend existing buildings not complying with the minimum garden area before VC110 was introduced from having to satisfy the requirement.

Revised definition of ‘Garden Area’

The definition of ‘garden area’ as amended by VC143 reads:

Any area on a lot with a minimum dimension of one metre that does not include:

  • 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
    • domestic services normal to a dwelling or residential building
  • a driveway
  • an area set aside for car parking.

The amended definition is more detailed than the former definition. It reads:

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 one metre.

The amended definition makes clear areas underneath eaves, fascias and gutters, basements and outbuildings may be included in the garden area provided they meet the above criteria.

The amended definition provides much-needed clarity in determining the scope of inclusions and exclusions when calculating the garden area. This follows the Tribunal’s recent Red Dot decision in Guler v Brimbank CC (Red Dot) [2018], in which Member Halliday determined the areas underneath the eaves and extended roofline of a proposal were excluded from calculating the garden area because they did not constitute ‘uncovered outdoor areas’ and were ‘roofed areas’ within the ordinary meaning of those terms.

While the amended definition is silent on ‘swimming pools’ and ‘tennis courts’ (both included in the former definition), the Amendment is accompanied by Planning Practice Note 84: Applying the Minimum Garden Area Requirement (Practice Note) clarifying these issues. It states:

The minimum garden area requirement allows the construction of buildings and works that are typically associated with the use and enjoyment of the outdoor areas of a dwelling or residential building.

Consequently, outbuildings and structures such as garden sheds, covered barbeque areas, swimming pools, tennis courts and paved areas including pathways and outdoor entertaining areas can be included in the garden area.

The Amendment removes the requirement for the garden area to be provided ‘at ground level’ from the GRZ and NRZ. Despite this, the amended definition clarifies that only ‘unroofed terraces’ (and the like) less than 800mm in height may be included in the garden area. It follows upper level balconies and roof terraces cannot form part of the garden area. The Practice Note further clarifies any area under a balcony or upper storey building projection forming part of the dwelling cannot be included in the garden area.

The Amendment also removes the minimum garden requirement from applying where a planning permit is not required to construct or extend a dwelling or residential building on a lot.

Ability for a Council to remove the requirement in the GRZ

The Amendment allows planning authorities the opportunity to ‘switch off’ the minimum garden area requirement from areas within the GRZ identified for more intensive residential development by amending the schedule to the zone. It is intended this will better achieve housing diversity and affordability objectives in locations close to jobs and services, urban renewal and strategic redevelopment sites.

This is a significant revision given the mandatory application of the garden area had in some instances constrained development opportunities on sites without having particular regard to their strategic and physical context.

Exemptions to the requirement for subdivision and development in the GRZ and NRZ

The Amendment clarifies the application of, and exemptions to, the minimum garden area requirements for subdivision and development in the GRZ and NRZ.

Lots identified for more intensive housing outcomes such as medium density housing sites in approved precinct structure plans, incorporated plans, development plans or equivalent strategic plans will be exempt from the requirement. This is because significant strategic planning has already been undertaken in these locations to determine appropriate built form outcomes.

The Amendment further clarifies the requirement that an application to subdivide land creating a vacant lot less than 400 square metres capable of development for a dwelling or residential building must ensure each vacant lot created less than 400 square metres contains at least 25 percent as garden area.

The Amendment follows the Tribunal’s comments in the recent Red Dot decision of Sargentson v Campaspe SC (Red Dot) [2018] VCAT 710. In this case, the permit applicant and Council submitted two divergent approaches in determining the meaning of the term ‘lot’ in the context of the minimum garden area requirement. The application sought planning permission for both the development of the land and an associated subdivision. The Council submitted the minimum garden area should be assessed based on each resulting lot accommodating a dwelling or residential building, whereas the permit applicant argued the requirement should be assessed based on the entire planning unit at the time the application was lodged.

The Tribunal disagreed with both interpretations. Rather, the Tribunal determined the correct approach is to assess the requirement against each lot as at the time the application for a planning permit is lodged. However, Member Whitney observed these various interpretations and highlighted the lack of clarity surrounding the intention of the requirement. She observed it is unclear whether the requirement should be measured against the area of the resulting lot that is to contain the dwelling or residential building, or the area of the original lots when it is clear the location and layout of the dwelling or residential building will not align with those original lots.

The Practice Note states where an application proposes two or more dwellings on a lot and an associated subdivision of the land, the application will be assessed against the requirement to construct the dwellings and not the subdivision.

Exemptions regarding existing buildings pre-dating Amendment VC110

The Amendment exempts applications to alter or extend an existing building not complying with the minimum garden area requirement before introducing Amendment VC110.

Other changes

The Amendment also amends the Residential Growth Zone (RGZ). It does this by removing ‘Food and Drink Premises’ and ‘Shop’ from section 1 uses (no permit required) to section 2 uses (requiring a permit subject to conditions). This is intended to address a perceived reluctance of planning authorities to apply the RGZ and ensure it is appropriately applied to encourage increased housing densities in highly accessible locations close to public transport and other community services and facilities.

Responsible authorities should have particular regard to the amended definition of ‘garden area’ and Practice Note when assessing applications against the minimum garden area requirement.

If you have any questions about any issue raised in this e-alert, please contact:

Authors
Mimi Marcus | Partner
T +61 3 9258 3871
E mimi.marcus@maddocks.com.au
Simon D’Angelo | Lawyer
T
+61 3 9258 3021
E
simon.d’angelo@maddocks.com.au