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Garden Area application – per lot or planning unit?

Edward Mahony
Article by Edward Mahony
What is a Garden?

This was considered in the Victorian Civil and Administrative Tribunal (‘VCAT’) decision of Sargentson v Campaspe SC (Red Dot) [2018] VCAT 710 (‘Sargentson’). The Tribunal (Member Whitney) stopped short of providing a definitive view of the garden area application given the ‘limited information provided.’ Notwithstanding this, Member Whitney commented:-

[33]  Whilst I can see the appeal of measuring the Garden area in relation to the total planning unit, this interpretation is not supported by the language used in clause 32.08-4 and as such I cannot see a justification for basing the calculation on the area of the entire planning unit, where the planning unit in this case is comprised in two lots that could conceivably be disposed of separately. As such, I do not adopt that approach.

The Department of Environment, Land, Water and Planning (‘DELWP’) Practice Note 84 released after the Sargentson decision did not provide any clarity on whether the garden area requirements apply to individual lots or the planning unit.

The line of reasoning by Member Whitney has been followed in 2426 Grenville Pty Ltd v Bayside CC (Red Dot) [2018] VCAT 1338; Dromana Beach Pty Ltd v Mornington Peninsula SC [2018] VCAT 666 and more recently in 2426 Grenville Pty Ltd v Bayside CC (Red Dot) [2018] VCAT 1338

Whilst not free from doubt, the more conservative approach is to calculate the garden area on each individual lot making up an application in accordance with the minimum percentages stipulated in the zone:-

Lot size (sqm)
Minimum of a lot set aside as garden area (%)

400 – 500

25

501 – 650

30

>650

35

Edward Mahony

Lawyer
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