Posted on January 17, 2021 by Stuart Simington

Corridors in self-storage development not ‘gross floor area’

A judge of the Land and Environment Court has ruled that the corridors in a self-storage development are not within the definition of ‘gross floor area’.  The decision has potentially wide ramifications in terms of the permissible bulk and scale of a range of developments.

Background

The development in question consisted of a building containing several floors of individually lockable self-storage units.

The self-storage units were accessed by corridors on each floor of the building and the floors connected by stairs and a lift.

The development had several carparks, each of which had a dedicated loading and unloading bay.  On the ground floor, the corridors were connected to the carpark where there were trolleys to transport items to the storage units.

The particular issue arose in the context of reviewing the reasonableness of the calculation of development contributions payable under the consent issued by the council. The council’s relevant contributions plan called for the calculation of contributions to be done by reference to the gross floor area of the development. The developer argued that the contributions calculated by the Council were excessive because the calculation of gross floor area included the area of the corridors in the building.

Although not expressly defined in the contributions plan, it was agreed by the parties that the meaning of ‘gross floor area’ in the contributions plan was the same as in the Council’s local environmental plan (being the same definition as in all standard instrument LEPs) as follows:

gross floor area means 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.

The Applicant argued that the corridors in the development should not be counted as gross floor area  because of the exclusion in paragraph (h).

With respect to the self-storage units, the corridors  leading to them were either spaces used for the purpose of loading or unloading goods, or in the alternative, spaces used for access to the loading and unloading areas in the carpark.

Pepper J agreed, at least with the latter argument.

Firstly, it was not to the point that the corridors were also used for other purposes, eg pedestrian access.  This was because paragraph (h) of the definition is not expressed in terms of ‘exclusive’ use for access and this was to be contrasted with paragraph (f) that required exclusivity with respect to ‘mechanical services’ and ‘ducting’.

Secondly, accepting that the unloading and loading of goods occurred in the carpark, the corridors were the areas that provided ‘access’ to the space used for that activity.

Despite the apparent generality of these conclusions, it is not entirely clear that Pepper J intends the ruling to be of relevance outside the context of contributions calculations where the definition is applicable.  The Council argued if corridors of this development were excluded from the definition under paragraph (h), then so too, for example, would be the aisles of a supermarket but Pepper J rejected that analogy as ‘inapposite’ (apparently having regard to the particular context in which the question arose) on the basis that:

‘the calculation of contributions for that type of development [under the contributions plan] is gross lettable floor area and not GFA. This is because supermarket aisles are used for retail (and not merely business) purposes, notwithstanding the fact that from time to time it will also be used for the purpose of restocking (for example, toilet paper) shelves.’  

Nevertheless, we can see no reason why the same definition of ‘gross floor area‘ can have one meaning in a contributions plan which inherits the definition from the relevant LEP and another in the LEP itself.

Of course, if the ruling is of general application, it will permit considerably bulkier developments in certain circumstances. For example, the corridors in a typical residential flat building would also seem to be excluded by paragraph (h) as they would similarly be spaces used for access from apartments to the loading and unloading areas for a removalist van in the basement carpark.

We would not be surprised if the definition is amended to include the requirement for ‘exclusivity’ in paragraph (h).

You can read Pepper J’s decision here.