A recent decision of the Victorian Civil and Administrative Tribunal (VCAT) has emphasised the importance of satisfying the Garden Area Requirement at the application stage of the planning process.
In Win 88 Pty Ltd v Manningham CC  VCAT 499 the Tribunal held that it had no power to issue a planning permit where the plans before it did not demonstrate compliance with the Garden Area Requirement.
HWL Ebsworth Lawyers successfully acted on behalf of Manningham City Council (Council) in this matter. The decision is significant because it is now clear that even minor non-compliances with the Garden Area Requirement may not simply be remedied by way of permit condition.
Garden Area Requirement
Pursuant to all Victorian planning schemes, an application to construct or extend a dwelling or residential building on a lot in a Neighbourhood Residential Zone or General Residential Zone must provide a minimum garden area.
The Tribunal has noted in previous decisions that each lot that comprises the subject land at the time of the decision must provide the requisite garden area. When presented with minor non-compliances, some Tribunals have indicated a willingness to require the consolidation of multiple lots by way of permit condition in order to satisfy the garden area requirement prior to the development proceeding.
However, the situation has been less clear where a development does not meet the Garden Area Requirement and the consolidation of the existing lots would not necessarily achieve compliance. There has been debate as to whether the Tribunal is empowered to issue a planning permit with a condition that the development must be modified to provide the minimum garden area, or whether the Garden Area Requirement may be a condition precedent to the Tribunal’s power to determine an application for review.
The Win 88 case
The application proposed 6 townhouses across 2 existing lots. Each lot was over 650 square metres and each required a minimum garden area of 35%. Council refused the application on a number of grounds including non-compliance with the Garden Area Requirement.
The plans were revised on a number of occasions throughout the application and VCAT processes. However, at the ultimate hearing both the Council and the applicant agreed that the proposal remained non-compliant with the Garden Area Requirement by approximately 3.5 square metres, primarily due to the purported inclusion of some decks that were more than 800mm above ground.
The non-compliance was relatively small in terms of the overall area of the subject land, however the Tribunal noted that the Garden Area Requirement is a mandatory requirement and not capable of variation.
The applicant submitted that the non-compliances could be addressed by way of permit condition, but the Tribunal was unwilling to adopt that approach, partly on the basis that it could not be sure that further variations to the plans would not produce further amenity impacts, but also because of the threshold nature of the Garden Area Requirement. In this respect it is relevant that the Garden Area Requirement provides that “an application…must provide” (emphasis added).
The Tribunal was also unwilling to provide the applicant with a further opportunity to rectify the discrepancy by way of an administrative mention, on the basis that the applicant had been provided with a number of opportunities to address the non-compliances before the ultimate hearing.
How can we assist you?
Application plans must demonstrate compliance with the Garden Area Requirement. Designers should have regard to the definition of ‘Garden Area’ at Clause 73.01 of the Planning Scheme, and mark the included areas clearly, ideally on a separate sheet. If uncertainty arises during the application stage or during the VCAT process, HWL Ebsworth Lawyers can provide advice on what’s in and out.
Critically, applicants should be aware that opportunities to remedy non-compliances with the Garden Area Requirement may not be available late in the VCAT process or by way of permit condition.
It may be common practice for a Council to address minor non-compliances with the Garden Area Requirement by way of permit condition. However, there is a question as to whether there is power to issue a planning permit in such circumstances. Rather, Councils should be proactive in seeking compliance with the Garden Area Requirement in the application plans, via a Request for Further Information if necessary. HWL Ebsworth Lawyers is able to provide advice on individual applications if necessary.
HWL Ebsworth Lawyers acts on behalf of both planning applicants and responsible authorities in a range of planning, environment and government matters. Our breadth of experience brings a broad range of perspectives to difficult issues such as the Garden Area Requirement and other aspects of development. If you would like to discuss how this decision affects a proposed development, or any other matter, please do not hesitate to contact us.
This article was written by David Vorchheimer, Partner and Alex Gelber, Associate.
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