Summary
The Land and Environment Court of New South Wales has delivered a recent judgment considering the interpretation of the definition of ‘gross floor area’ (GFA) as set out in the Standard Instrument – Principal Local Environmental Plan.
GFA calculations are one of the more complex aspects of the NSW planning system, however, with the growing body of case law, it is becoming increasingly clear as to what will be included or excluded from this calculation. The recent decision of Dixon SC in Malass v Strathfield Municipal Council [2022] NSWLEC 1160 (Malass) has contributed to this body of case law, with the judgment clarifying the scope of item (g) in the definition of what is excluded from GFA calculation, being the space allocated to car parking and access to same.
What is GFA?
Before considering Malass it is beneficial to understand the importance of GFA calculations and why they are so often contested.
GFA calculations determine the floor space ratio of developments. The floor space ratio is a statutory control designed to limit the extent of development that may occur on land relative to its size. What this means is that the exclusion of certain areas from the GFA calculations increases the maximum amount of floor space that can be secured and utilised for a development.
The standard definition of GFA, which applies to nearly all local environmental plans, is set out in the Standard Instrument – Principal Local Environmental Plan and provides 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—
- the area of a mezzanine, and
- habitable rooms in a basement or an attic, and
- any shop, auditorium, cinema, and the like, in a basement or attic, but excludes—
- any area for common vertical circulation, such as lifts and stairs, and
- any basement—
- storage, and
- vehicular access, loading areas, garbage and services, and
- plant rooms, lift towers and other areas used exclusively for mechanical services or ducting, and
- car parking to meet any requirements of the consent authority (including access to that car parking), and
- any space used for the loading or unloading of goods (including access to it), and
- terraces and balconies with outer walls less than 1.4 metres high, and
- voids above a floor at the level of a storey or storey above.
Case Background
Malass involved a development application that proposed the construction of a new two-storey dwelling that incuded basement car parking.
The Applicant contended that (other than a 1.5m² cool room) the basement level should be excluded from the calculation of the GFA. This position was based on evidence provided by the Applicant’s planning expert that the basement comprised of:
- two 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 manoeuvring and loading/unloading next to the lift as well as plant room.
On this basis, the Applicant was of the view that these spaces were exempt from the definition of GFA in accordance with the exclusions set out in items (f), (g) and (h), therefore the basement level should excluded from the GFA calculation.
Council’s planning expert adopted a conflicting position, having the view that only the area allocated for two car parking spaces could be excluded from the GFA calculation. Briefly put, Council argued that:
- the exemption under item (g) must have some practical limit on what is necessary for reasonable access, and
- the exemption under item (h) is confined to commercial premises and that the two car parking spaces provided in the development already include space for the loading and unloading of goods normally associated with a house.
Court Findings
Dixon SC held that:
- the plant room (f) and car parking to meet any requirements of the consent authority (including access to that car parking) (g) is exempt for the purposes of this development.[39]
- any space (h) relates to commercial loading and unloading.[39]
Therefore as the exemption under item (h) did not apply, the determination of the GFA calculation was dependent on how item (g) would apply.
Dixon SC held, with reference to Part 1 cl 3.1.1 of the SDCP, that this area is identified by complying with requirements of AS2890 and the National Construction Code (NCC) – Building Code of Australia (BCA). [39]
In other words, the relevant inquiry is to determine what area within the building allocated for car parking is necessary to meet the requirements of the consent authority.
Implication
The decision of Malass, indicates that the exemption under item (g) is not an unconstrained provision and that courts are likely to accept that there is a practical limit on what area is required for reasonable access. Councils should be mindful of this when assessing the GFA for basement parking and associated areas.
The Judgment can be accessed here: https://www.caselaw.nsw.gov.au/decision/17d8e26a81495d0770fceb14
For more information on how to determine whether a floor area should be included or excluded from the GFA calculation, please contact the Matthews Folbigg Local Government team to speak with one of our local government lawyers.
