The 300mm width eave…2017’s new weather protection.

By Jonathan Halaliku.
(Source: Good Housekeeping).
The anticipated ambiguity around the calculation of the garden area stemming from VC110 is now coming into fruition. Whilst the Tribunal is still another 3-4 months away from considering the garden area requirements in earnest, we are now starting to see the breadth of variations in interpretations between by Responsible Authorities. What we are seeing is worrying.

We have been engaging in numerous running discussions with RA’s in relation to what constitutes a roofed area for the purposes of calculating the garden area provision. We are being informed that any area under an eave cannot be calculated as part of the garden area – why? because it is regarded as a ‘roofed area’.

Whilst this may seem harmless in the overall scheme of things, it can be, and is becoming, a moot point which detrimentally impacts development footprints. The current definition within the VPP’s for garden area is:

An uncovered outdoor area of a dwelling or residential building normally associated with a garden. It includes open entertaining areas, decks, lawns, garden beds, swimming pools, tennis courts and the like. It does not include a driveway, any area set aside for car parking, any building or roofed area and any area that has a dimension of less than 1 metre.

To me, whether a literal or purposive approach to interpretation is taken in the calculation of a garden area, the area under the eave must be included within the calculation. I am confused by the exclusion of the area under eaves from the calculation.

For example, an uncovered outdoor area normally associated with a garden, includes open… (insert examples) and it does include ‘a driveway’ (because you cannot plant on a driveway), it does not include an area set aside for car parking (because a car cannot[1] park on a garden), or ‘any building’ (because you cannot plant in a building[2]). Also, it does not include ‘an area less than 1 metre’ (because this sized area traditionally cannot by planted with significant landscaping that can contribute to “The green open character of our neighbourhoods”).[3]

It does not include a ‘roofed area’ [4] because[5];

a) Planting under a roof is generally not visible to the wider area
b) Planting under a roof is limited by i) species, ii) size iii) visibility (and therefore contribution to the character of the area), and;
c) According to the Collins Dictionary[6]:

The roof of a building is the covering on top of it that protects the people and things inside from the weather.

In our mind, whilst you can source variations of roof definitions the key to defining if a horizontal overhang or eave constitutes a roof, is the extent of enclosure and protection. A standard sized eave does not provide enclosure and only negligible protection from the weather. We further note;

d) Planting under an eave remains commonplace and can continue[7]
e) The eave is an aesthetic extension to the main roof structure
f) An eave does not, on its own, constitute a roof for the purposes of reasonable protection from the elements to the area directly below it.

The discrepancies within the garden area requirements, and particularly what constitutes a roof area in the absence of a definition within the VPP’s have been identified early by many planners and lawyers alike. Identification of this issue is old ground, but the impact and results of incorrect interpretation is a new phenomenon which we are observing and the implications on approvals and permit conditions is frustrating to say the least.

Why is it that we as an industry need a Tribunal ruling or Practice Note to iterate the obvious? I am not surprised by the disparity in interpretations, more so disappointed. It is nonsensical to regard an area under an eave to be a) roofed and b) not normally associated with a garden area.

The keep it simple question is; if you stand under an eave, can you get wet?

I have come up with a very simple, but telling test. At the equinox I will stand under an eave of my house (trampling the unkept agapanthus) with my son. If it rains, I will ask him if he is wet. If he says, ‘yes dad I am wet’ I will simply reply– no you are not son…we are standing under a roofed area.

Sarcasm aside, our take is that weather (sic) a certain method of statutory interpretation or simple common sense prevails, the golden rule of application is one which avoids absurdity.





[1] Should not.
[2] Well, you can, but that planting cannot contribute to the neighbourhood characteristic as is perceived to be the purposes of the garden area provisions.
[3] Reformed Residential Zones, https://www.planning.vic.gov.au/__data/assets/pdf_file/0009/32130/New-minimum-garden-area-requirement_Web.pdf
[4] Which is notably grouped with a building in the definition i.e. ‘…building OR roofed area”
[5] This list is by no mean exhaustive but the obvious which we are increasingly in need to point out.
[6] https://www.collinsdictionary.com/dictionary/english/roof
[7] Common sense informs us that a garden bed can continue to be planted under an eave. Common sense also tells us that an eave forms part of a roof but does not protect the area from elements directly under the eave as per the area under the ceiling joist and rafters on the inside of a wall.

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