On 15 May 2018 the Minister for Planning gazetted Amendment VC143. The amendment includes two primary changes: (1) clarification of the recently introduced Garden Area requirement within the General Residential Zone (GRZ) and Neighbourhood Residential Zone (NRZ) and (2) Changes to the uses permitted within the Residential Growth Zone (RGZ).
1. Garden Area – Summary
The Definition of Garden Area is redefined under Clause 72 as:
A notable change is the inclusion of areas under eaves to a maximum width of 600mm. From a sustainability perspective this is a positive result as many applicants were deliberately removing eaves from their design – removing an important shading mechanism on dwellings.
The remaining changes are somewhat logical – they allow for normal areas / structures typically found in gardens to be included in the Garden Area calculation.
However, the changes clearly differentiate between a pergola and an unroofed deck, patio or terrace. These are words which are not defined within the planning scheme.
From my research, it appears that a pergola could be described as a semi-roofed structure, the degree to which it is open to the outside elements is now left to interpretation.
The Federal Government publication ‘Your Home’ references the use of a pergola to allow shading of internal and external areas of a dwelling – clearly this document interprets that it is not an open structure.
My advice to designers who want to provide shading and sun protection to their patio, deck and terrace is to clearly label a pergola structure as part of these areas.
It is important to note that if you wish to include the following within the Garden Area calculation; a raised deck, patio, stepped area and the area above a basement, the finished level of those areas must not exceed 0.8m above natural ground level.
Particularly note the difference between the definition of a basement under Clause 72 which allows the level to project up to 1.2m above natural ground level.
The amendment also provides each Council the mechanism to exempt certain sites or areas zoned GRZ (only) from the Garden Area requirement. This would require a formal amendment of planning schemes and we may wait a long time before we see this option utilised. This mechanism should be embraced by Councils, and as we previously discussed, could provide more sustainable planning outcomes if applied to the following sites:
- Those which have less than the required percentage garden area on-site at the time of an application;
- Those located adjacent to a Road Zone Category 1 (generally more robust character and include bus routes);
- Those located within 300m direct distance of a train station, tram stop or designated Activity Centre.
Sites with approved development plans, incorporated plans, precinct structure plans or other equivalent strategic plan are now exempt from the requirement, as it is assumed sufficient strategic work has already been undertaken in these locations to determine an appropriate built form outcome.
The amendment also provides clarity for subdivision proposals, including subdivisions where a development permit has been issued.
A final exemption which we believe should have been worded clearer is; the Garden Area does not apply to:
- An application to alter or extend an existing building that did not comply with the minimum garden area requirement of Clause 32.08-4 on the approval date of Amendment VC110.
The policy uses the word ‘building’ and not ‘site’. We assume this is to allow existing dwellings and residential buildings to be extended / altered without having to comply with the Garden Area requirement. Does this open the possibility of extending existing buildings to provide more dwellings? A clear reading of the policy may allow this in certain scenarios: such as sites with existing apartment buildings and adjacent car parking. Such cases would more than likely end up at VCAT for interpretation; we assume Council’s will require a new multi-unit development application, on those sites, to comply with the Garden Area requirement.
2. Residential Growth Zone – Summary
The Residential Growth Zone is amended to relocate Food and Drink Premises and Shop from Section 1 (Permit not required) to Section 2 (Permit required). The justification for this change is that allowing these uses to occur without requiring a Permit in the RGZ has apparently made Councils reluctant to apply the zone.