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Case Note: The application of garden area requirements to multiple lots - VCAT Red Dot decision

29 October 2019

In the recent VCAT Red Dot decision of Clayton Gardens Pty Ltd v Monash CC (Red Dot) [2019] VCAT 1138 (Clayton Gardens), the Tribunal considered the construction of the ‘garden area’ provisions in the General Residential Zone (GRZ) and their application to a planning permit application involving multiple lots.

The case concerned an application for the development of 15 dwellings over three separate lots and the provision in question was clause 32.08-4 of the of the Monash Planning Scheme which provides:

Minimum garden area requirement

An application to construct or extend a dwelling or residential building on a lot must provide a minimum garden area as set out in the following table:

Having regard to section 35 of the Interpretation of Legislation Act 1984 (the Act), the Tribunal applied a purposive approach to the construction of clause 32.08-4.  Cosnsistent with this approach the Tribunal also applied section 37 of the Act, whereby ‘words in the singular include words in the plural and words in the plural include the singular’.

The Tribunal accepted the submissions put forward by Council and the permit applicant and concluded that the correct approach to construction would result in the word ‘lot’ being read as ‘lots’ and therefore, “the garden area requirement is to be applied to the planning unit, not on a per lot basis”.

The decision in Clayton Gardens follows Amendment VC110 and departs from the Tribunal’s earlier determination in Sargentson v Campaspe SC (Red Dot) [2018] 710, whereby it concluded that the reference to ‘lot’ in clause 32.08-3 applies to each individual lot and not the combined area of lots in a permit application.

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