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Pynchon Pty Ltd v M C Herd Pty Ltd – Garden Area Requirements

Our office recently represented an Objector Respondent (“MC Herd”) in Pynchon Pty Ltd v M C Herd Pty Ltd [2022], a case where the Tribunal considered an application for residential subdivision within a 500 metre buffer of our client’s abattoir.

What was the relevant issue in this proceeding?

Senior Member Sibonis, with him Member West, raised a preliminary issue as to the application of clause 32.08-4 which relevantly provides:

“An application to subdivde land that would create a vacant lot less than 400sqm capable of development for a dwelling or residential building, must ensure that each vacant lot created less than 400sqm contains at least 25% as garden area.”

The subdivision proposed multiple vacant lots less than 400sqm without showing how these lots contain a garden area of at least 25%. The legal issue to be addressed was what is meant by “must ensure”?  The Applicant (“Pynchon”) avoided the issue by giving notice of an application to amend the plans such that no lot was 400sqm or greater.

What did Best Hooper think?

‘Planning Practice Note 84 – Applying the minimum garden area requirement’ inter alia states:

“Where a vacant lot less than 400sqm is proposed Council should satisfy itself as to the best way to secure the 25% minimum garden area.  Options include:

  • Requring the garden area to be included as a restriction on the plan of subdivision submitted for certification. This could be in the form a text notation.

In respect to the first dot point, our view is that restriction necessitates the application to include both permission under the zone and clause 52.02.

  • Entering into an agreement with the owner of the land under section 173 of the Planning and Environment Act 1987 (Vic) which requires the area of garden area to be implemented to the satisfaction of the Responsible Authority.”

In respect to the second dot point, our view is the section 173 Agreement needs to have been entered into by consent prior to determination of the application for permit.

In our view, it is prudent that such a plan of subdivision includes a restriction in kind (under clause 52.02) to be subsequently registered under section 23 of the Subdivision Act, such as indentifying building envelopes, driveways and the garden area.

Please contact our office should you wish to discuss the merits of your planning permit application.

Dominic Scally

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Edward Mahony

Senior Associate
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Giancarlo Romano

Principal Lawyer
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