10.05.2018

Garden Area Calculations and Eaves

VCAT’s Ruling determines that areas under eaves cannot be included in the garden area calculations

On Monday, 7 May 2018, the Victorian Civil Administrative Tribunal (VCAT) provided clarification as to whether garden areas located under eaves could be included in the garden area calculation. The Tribunal has determined that areas under eaves cannot be included in the garden area calculations.

This interpretation has significant impacts for all current and future planning permit applications. It is likely that most Councils will now insist that garden area calculations exclude areas under eaves. Any existing applications that include areas under eaves within the Garden Area calculation are likely to required amendments or are at risk of refusal.

For a full copy of the VCAT decision, CLICK HERE

The BDAV will continue to lobby the Minister’s Office to hopefully achieve a change to the definition of what constitutes a garden area.

If you have any further queries in relation to this matter, feel free to contact Ashley Thompson from Clause 1 Planning on (03) 9370 9599.

Background

Members should be aware of changes to the General Residential and Neighbourhood Residential Zones introduced in April 2017 (amendment VC110), requiring a mandatory minimum Garden Area as part of development proposals on lots greater than 400m2. Those zones now require the following minimum percentage of the lot to be set aside as Garden Area:

  • Lot size 400-500m2 25% dedicated to garden area
  • Lot size 501-650m2 30% dedicated to garden area
  • Lot size >650m2 35% dedicated to garden area

Amendment VC110 also incorporated a definition of ‘Garden Area’ into the Victorian Planning Provisions. Since its introduction, there have been numerous questions from applicants seeking clarification of:

  • whether gardens above basements can be included in the calculation, the status of areas under eaves and canter-levered first floors and what exactly constitutes a ‘roofed area’, for example over a pergola or outdoor entertaining area?

We have been waiting for clarification of these questions from VCAT and now one of the questions has been answered…. The latest decision from VCAT means Councils are likely to insist that eaves cannot be included in Garden Area calculations.

The BDAV thanks Clause 1 Planning for their assistance in this matter.