Posted on June 23, 2022 by Katie Mortimer and Stuart Simington 24

A Reminder: The Correct Approach to Calculating Gross Floor Area

A recent decision of the Land and Environment Court is a useful reminder as to how the definition of ‘gross floor area’ (GFA) in the Standard Instrument LEP operates, and what should properly be excluded when calculating GFA particularly when considering ‘car parking’ and ‘access to that car parking’.

Gross Floor Area

GFA is defined in the Standard Instrument LEP (and therefore nearly all local environmental plans) to mean:

… the sum of the floor area of each floor of a building measured from the internal face of external walls, or from the internal face of walls separating the building from any other building, measured at a height of 1.4 metres above the floor, and includes—

(a)   the area of a mezzanine, and

(b)   habitable rooms in a basement or an attic, and

(c)   any shop, auditorium, cinema, and the like, in a basement or attic,

but excludes—

(d)   any area for common vertical circulation, such as lifts and stairs, and

(e)   any basement—

(i)   storage, and

(ii)   vehicular access, loading areas, garbage and services, and

(f)   plant rooms, lift towers and other areas used exclusively for mechanical services or ducting, and

(g)   car parking to meet any requirements of the consent authority (including access to that car parking), and

(h)   any space used for the loading or unloading of goods (including access to it), and

(i)   terraces and balconies with outer walls less than 1.4 metres high, and

(j)   voids above a floor at the level of a storey or storey above.

A Dispute as to the Calculation of GFA

In a recent case determined by Senior Commissioner Dixon, there was a dispute as to the correct calculation of GFA.

The issue was important as it is GFA that determines the floor space ratio (FSR) of developments. In this case, the correct calculation of GFA impacted on whether the FSR development standard was breached and a clause 4.6 request was required.

The Applicant’s planner considered that the basement level of a proposed new dwelling should be excluded from the calculation of GFA, on the basis the basement did not contain any habitable space other than 1.5m² associated with a cool room.

The Applicant’s position was that save for that cool room, the basement was totally occupied by spaces excluded from the definition of GFA, being:

• 2 car parking spaces,
• access to the car parking,
• vehicular and pedestrian access (including stairs and lift from this level to the ground floor), and
• associated vehicle maneuvering and loading/unloading next to the lift as well as plant room.

The Applicant’s planner considered these spaces were caught by items (f), (g) and (h) of the GFA definition extracted above.

The Council disagreed arguing that the FSR development standard was exceeded given that the entirety of the basement (save for the cool room) should have been included as GFA.

In particular, the Council argued that the exclusion in item (g) that exempts ‘access to car parking’ must have a practical limit on what is calculated ‘as necessary for reasonable access’. The Council’s planner considered that only the area occupied by two car parking spaces that were required by Council’s DCP, and access to that parking that was required to comply with the requirements of AS2890 and the National Construction Code (NCC) – Building Code of Australia (BCA) should have been excluded from the GFA calculation given “the definition of GFA would serve no purpose if you provide 2 parking spaces and then omit the rest of that level because every other portion of that level can be claimed to be ‘access to that car parking’”

The Council’s planner also considered the exclusion in item (h) of the definition only related to commercial premises in the circumstances of the case.

The Court’s Finding: What should Properly be Excluded from GFA

Dixon SC held that the plant room in the basement (being item (f)) and car parking to meet any requirements of the consent authority (being item (g)) were not counted when calculating GFA, but otherwise accepted that item (h) of the definition only related to commercial loading and unloading of goods, therefore could not be relied on for the purpose of the subject residential development.

The necessary inquiry was to identify the area within the building as a whole that was excluded by item (g): car parking to meet any requirements of the consent authority (including access to that car parking).

Dixon SC agreed with the Council that the DCP provided for two car parking spaces for this type of development, and only that area should be excluded. Those car parking spaces provided a sufficient area for the loading/unloading of goods associated with the dwelling.

Dixon SC also agreed that the words ‘access to that car parking’ in the GFA definition was an area defined by AS2890, the NCC – BCA. It could not constitute the entirety of the basement. Dixon SC applied the Court of Appeal’s reasoning in Ku-ring-gai Council v Buyozo Pty Ltd [2021] NSWCA 177, in accepting the Council’s argument.

You can read the decision the subject of this post here: Malass v Strathfield Municipal Council [2022] NSWLEC 1160

You can also read our earlier post on the decision in Ku-ring-gai Council v Buyozo Pty Ltd [2021] NSWCA 177 here.

If you wish to discuss the issues raised in this post, please contact Katie Mortimer on 8235 9716 or Stuart Simington on 8235 9704.