Clause 1 recently provided readers with the findings of the Victorian Civil and Administrative Tribunal (the Tribunal) in relation to what constituted “a lot”, when calculating the total Garden area. The decision in Clayton Gardens Pty Ltd v Monash CC  VCAT 1138 found that:
…. the minimum garden area requirement to be applied is dependent upon the type of application and the composition of the planning unit. As such the garden area is to be
applied to the planning unit, not on a per lot basis, if the application includes more than one lot.
A more recent decision in 104-105 Station Street Pty Ltd v Kingston CC  VCAT 1546 made similar considerations, this time regarding whether a Cultural Heritage Management Plan (CHMP) was required. In this case the Tribunal considered an application for a three storey building containing 19 dwellings and a basement car park, over two lots (in two certificates of title). The site’s were located within an area of cultural heritage sensitivity. Regulation 10 of the Aboriginal Heritage Regulations provides an exemption for smaller sites from the need to obtain a CHMP, and states:
The construction of 3 or more dwellings on a lot or allotment is an exempt activity if the lot or allotment is –
(a) not within 200 metres of the coastal waters of Victoria, any sea within the limits of Victoria or the Murray River; and
(b) less than 0·11 hectares.
It was agreed that the land met condition (a), above. However, condition (b) was more contentious. In this instance the two individual lots were less than 0.11 hectares each, however greater than 0.11 hectares when combined. It was the permit applicant’s position that the reference in Regulation 10 to “the lot or allotment”, was a reference to the size of each individual lot and that the second part of the exemption was also met.
In its findings, the Tribunal referred to the Interpretation of Legislation Act 1984 which provides that:
… in an Act or subordinate instrument, unless the contrary intention appears –
(c) words in the singular include the plural; and
(d) words in the plural include the singular.
The Tribunal found that the proposal could not be contained on one lot and that the exemption is limited to 3 or more dwellings on a lot of less than 0.11 hectares. In this case the dwellings were over two lots, the combined area of the two lots being more than 0.11 hectares and therefore a CHMP was required.
Practitioners need to be aware that it is the size of the overall ‘planning unit’ that provides the relevant ‘site area’ when applying the CHMP exemptions, not the size of any individual lot that makes up part of the planning unit.
These tidbits are part of the regular contribution made by Clause:1 Planning to Intersect.
For more information visit www.clause1.com.au