Posted on January 24, 2018 by Liam Mulligan and Sue Puckeridge
“Significant development” – a new avenue in FSR calculations?
An important consideration in the assessment of many development applications is whether the relevant floor space ratio (FSR) controls have been complied with.
Clause 4.5 of the Standard Instrument—Principal Local Environmental Plan (Standard Instrument), which is found in many LEPs around the state, contains provisions for the calculation of FSR.
The provisions are somewhat complex and ambiguously drafted. For instance, clause 4.5(6) of the Standard Instrument provides that:
The site area for proposed development must not include a lot additional to a lot or lots on which the development is being carried out unless the proposed development includes significant development on that additional lot.
The meaning of the phrase “significant development” has been subject to limited judicial consideration. One of the few cases of which we are aware is the decision of Brown C in Antoniades Architects Pty Ltd v Canada Bay City Council  NSWLEC 1019. In that matter, the Commissioner found that the construction of an access driveway and garbage bin storage area did not constitute “significant” development for the purposes of cl. 4.5(6).
In the recent decision of TK Commercial Property Holdings Pty Ltd v Canterbury-Bankstown Council  NSWLEC 144, Robson J considered the meaning of the phrase “significant development” in the context of clause 4.5(6).
The application in this case sought consent for multi-dwelling housing, involving the construction of 9 townhouses, as well as the retention of an existing residential flat building. The development was proposed over three lots, referred to as No. 18, No. 20 and No. 22. The applicant proposed to consolidate the lots.
The works on No. 20 and No. 22 included the demolition of two existing dwellings and the construction of 9 townhouses, as well as basement car parking, landscaping, and associated development for the townhouses. The existing residential flat building was located on No. 18 and the works proposed on this lot included limited improvements, such as excavation at the rear, the construction of a masonry stairway, new pathways and ramps, and the installation of sewer and drainage infrastructure.
The parties disagreed on the appropriate way to calculate the development’s gross floor area (GFA), and therefore its FSR. Council contended that No. 18 should not be included in the calculation of the site area, as no “significant development” was to take place on that lot.
The applicant submitted that all three lots should be included in the calculation of the site area, as the lots were joined by common boundaries (in reliance on clause 4.5(3) of the Canterbury Local Environment Plan 2012) and because the works on No. 18 were significant.
In considering these submissions, Robson J found that No 18 was ‘capable of being incorporated into the site area by cl 4.5(6)’  and that the proposed works on No 18 constituted “significant development” for the purposes of cl 4.5(6)“.
Although his Honour did not provide detailed reasons for his conclusion on this point, it appears that the word “significant” in cl. 4.5(6) should not be interpreted as meaning significant in the context of the development as a whole, but rather refers to any development which could be significant when considered in isolation, that is, on the lot in question.
It is hard to tell from the judgment the full extent of the works that were proposed on No. 18 and each case will differ depending on its particular facts. The Department of Planning and Environment’s former Practice Note – Height and Floor Space (PN 08-001) suggested that a “complete refurbishment” of a lot containing an existing building was required in order for the lot to be included in the FSR calculation. Based upon this decision it would appear that something less than a complete refurbishment will be sufficient.
This would be the case even though those works are completely unrelated in substance to the substantive development being carried out.