Legal Insights

Garden area reversed in Red Dot Decision

By Terry Montebello

• 21 August 2019 • 4 min read

VCAT has ruled that the minimum garden area requirements in the General Residential Zone and Neighbourhood Residential Zone are to be applied to the planning unit, not on a per lot basis.

In Clayton Gardens Pty Ltd v Monash CC (Red Dot) [2019], the Victorian Civil and Administrative Tribunal (VCAT), has ruled that the minimum garden area requirements in the General Residential Zone and Neighbourhood Residential Zone are to be applied to the planning unit, not on a per lot basis.

Senior Member Rickard’s decision effectively reverses VCAT’s former position on the interpretation of the minimum garden area requirements in Sargentson v Campaspe Shire Council (Red Dot) [2018].

Clayton Gardens has immediate implications for the manner in which councils ought to approach the assessment of permit applications in the GRZ and NRZ.

Relevant Statutory Provision

The provision at the heart of VCAT’s consideration in Clayton Gardens is at clause 32.08-4 of the Monash Planning Scheme.

It provides:

Minimum garden area requirement

An application to construct or extend a dwelling or residential building on a lot must provide a minimum garden area as set out in the following table…

Question of law

The matter was brought before Senior Member Rickard to respond to a number of questions of law.

Essentially, the key question was whether the garden area requirement was to be considered on the basis of each lot as in existence when the application was lodged, or whether it was more correct to apply the requirement to the planning unit (that is, the whole of parcel of land in respect of which the application was made)?

The facts

In Clayton Gardens, the planning unit comprised three individual, separately owned lots as shown in the diagram below.

The permit applicant sought permission to construct 15 dwellings across the three lots, as illustrated on the site plan below.

Position of the parties

Both Monash City Council (Council) and the permit applicant advocated for the planning unit approach rather than the former Sargentson approach.

For Council, Maddocks argued that the correct approach to the interpretation of clause 32.08-4 is to apply the requirement to the planning unit because that approach better served the mischief the provision was aimed at.

Council relied on s 35 of the Interpretation of Legislation Act 1984 (IL Act) in support of its argument that a purposive approach should be applied to interpreting clause 32.08-4.

With respect to Council’s position, VCAT noted:

[21] Council submits, the provision seeks to increase the allocated area for garden purposes as part of any residential development. What is of more concern to the policy makers is the resultant outcome and not the starting point of the application. This is consistent with ensuring that the garden area requirement applies to the resultant outcome being the ‘planning unit’ and not each individual lot in the application.

To achieve this outcome, both Council and the permit applicant argued that adopting a purposive approach, VCAT should interpret the word ‘lot’ in clause 32.08-4 as if it read ‘lots’ (that is the singular should be read as including the plural) also relying on s 37 of the IL Act. By adopting this approach, the reference to ‘lots’ in clause 32.08-4 rather than lot (in the singular) had the effect of enabling ‘an application for a permit’ to apply to either one or multiple lots; that is to say, the planning unit.

Outcome

VCAT accepted these submissions.

The decision in Clayton Gardens settles the law on garden area, at least for now.

If you wish to discuss any aspect of the above, please contact the authors, or a member of the Planning and Environment team.

Download a copy of the decision, and for context, download a copy of Council's submission.

By Terry Montebello

  • Share

Related articles

Online Access