• VCAT
Why the correct minimum garden area is essential for permit approval

May 1, 2019

Why the correct minimum garden area is essential for permit approval

The minimum garden area requirement is a planning rule which applies a mandatory percentage to a residential lot that must be used as garden area. Being a mandatory requirement, it is essential that the rule is adhered to during the planning of a residential development. Failing to follow the rule even by a few square metres could see your development being refused.

A recent VCAT case is a useful example of why it is essential this requirement is met and what happens when it isn’t. Win 88 Pty Ltd v Manningham was an appeal against Manningham council after they had refused a planning permit for six new houses at Brindy Crescent in Doncaster East. The case was heard over seven months with three separate hearings on 12 September 2018, 15 February 2019 and 4 March 2019.

On April 5th the VCAT member announced their decision and the appeal was refused and the permit not granted. This was a severe blow for the applicant who engaged two town planners to represent them along with a landscape architect as an expert witness.

Manningham council’s refusal was based on the following

•             Does not comply with the minimum garden area requirement of the GRZ1.

•             Is fundamentally inconsistent with the existing neighbourhood character.

•             Has had limited regard to the natural topography of the review site and surrounds.

•             Fails to manage overlooking and visual bulk from properties and the public.

•             Fails to respond to the Reserve in terms of visual and pedestrian connectivity.

•             Provides a poor level of accessibility to dwellings.

•             Fails to provide appropriate or acceptable secluded private open space (SPOS).

•             Fails to provide a resolved car parking design.

Does The Proposal Comply With The Minimum Garden Area Requirements?

The most contentious issue was whether the development complied with the minimum garden area requirement. It was established that it didn’t and this is what ultimately lost the case for the permit applicant. 

During the design stage the architect had not allowed enough garden area for each house. The site consisted of two separate lots in the general residential zone each over 650sqm.  The proposed development fell under the provisions of clause 32.08-4 which required a minimum 35% garden area at ground level for each lot.

At the first hearing amended plans where substituted for the original plans to alleviate some of the planning concerns raised by Manningham council.  But this was not enough to convince the VCAT member to approve the permit for the six dwellings. 

It was identified in the amended plans that the deck areas and the porch entrance, which were thought to make up the percentage, were above 800mm from ground level and therefore could not be included in the calculation of minimum garden area. Therefore the revised plans submitted by the applicant was short of garden area by around 3.5sqm and the appeal was refused.

The decision can be seen as a hard line from VCAT as the proposal was less than 4sqm under the minimum requirement. This shortfall could have easily been corrected through a condition attached to the permit imposing that the garden area must be increased to meet the requirement. This is most likely what the applicant and their representatives were assuming would happen and is why they didn’t fully meet the requirement in their amended plans.  The VCAT member stated in their order that there was ‘ample time and multiple opportunities to properly address this issue’ and thus decided to refuse the permit. 

The council did acknowledge that the absent 3.5sqm was not a large area given the overall site size of 1557sqm. However it submitted that the clause does not provide for a variation to the required minimum garden area. It simply requires the relevant percentage to be met as part of the preparation of the application.

The decision echoes the council’s submission and reaffirms the mandatory and definitive nature of the garden area rule. A development either meets the requirement or it does not. There is no measure given to how close it comes to the requirement and if not met then the development will be refused.

Below are three tips on how to meet the minimum garden area requirement and make sure your development is approved.

1.Make sure you are aware of how much garden area is required. This is calculated based on the size of the lot. The larger the lot the more garden area is required.

Lot size                                                                 Minimum percentage of the lot 

400 – 500 sqm                                                                                    25%

Above 500 – 650 sqm                                                                         30%

Above 650 sqm                                                                                   35%

2.Know what can be included as garden area and what is exempt.

Understanding what can be included in garden area is very important and is where many development designs face problems. Including areas such as a driveway or a roofed alfresco to meet the minimum garden area will not be accepted by council. By including areas that are in fact exempt will lead to plans having to be revised. 

Garden area is defined in Clause 72 of all planning schemes as:

Any area on a lot with a minimum dimension of 1 metre that does not include:

a) 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; and

• domestic services normal to a dwelling or residential building;

b) a driveway; or

c) an area set aside for car parking.

3.Clearly show the garden area

When submitting plans to council as part of a planning application make sure they clearly detail the garden area of the site and include the percentages. Clearly demonstrating the garden area when submitting your application will minimize any discrepancies as to whether you have met the requirement when the council review the proposal.