By Aaron Gadiel, Partner
In a new judgment, the Land and Environment Court has further clarified how the standard definition of ‘gross floor area’ should be applied.
The judgment is known as Keith v Randwick City Council [2025] NSWLEC 1011. It was handed down on 14 January 2025.
The proceedings were an appeal for a development application. The development application was for a new three-storey dwelling in Maroubra. Mills Oakley represented the development applicant (the developer).
The Council claimed that the development exceeded the maximum floor space ratio. Under the local environmental plan, the maximum floor space ratio was set at 0.65:1. The Council claimed that the development has a floor space ratio of 0.77:1. The developer argued that the development fully complied with the maximum floor space ratio.
The Court accepted the applicant’s position and rejected the Council’s case.
Floor space ratio is used to control the intensity of development (and is sometimes also used as a crude means of controlling the bulk and scale of a development).
The ratio is calculated by dividing the ‘gross floor area’ of all buildings (within a site) by the site area. For example, a development with a 200sqm gross floor area, in a site of 100sqm, yields a floor space ratio of 2:1.
This means that the precise definition of ‘gross floor area’ is important to correctly calculate the floor space ratio of a proposed development. The details of the ‘gross floor area’ definition are often disputed between development applicants and local councils. In our experience, local councils often adopt an interpretation that counts space as ‘gross floor area’ when, in truth, it should not be so counted. If a developer accepts this, it may reduce the intensity of a proposed development.
Typically, local controls require compliance with a maximum floor space ratio. Under typical local controls, a floor space ratio can be exceeded (via a ‘clause 4.6’ request). However, it can often be challenging to secure approval for such exceedances. Proposed developments that comply with maximum floor space ratio controls generally carry a lower risk of refusal.
The definition of ‘gross floor area’ that appears in the ‘standard instrument’ of local environmental plans is convoluted. Relevantly, the definition excludes the following floor space from being counted as ‘gross floor area’:
As explained above, there is a general exclusion for ‘any area for common vertical circulation, such as lifts and stairs (bold added)’.
However, it has been clear for some time that this exclusion is only relevant for stairs or lifts that service multiple occupancies (Chami v Lane Cove Council [2015] NSWLEC 1003).
In Keith, the dwelling was a single residence, but included a lift. The developer did not argue that that the lift shaft was excluded on the basis that it was part of any common vertical circulation.
Instead, the developer argued that the floor of the single lift car itself should contribute to the gross floor area, but the space of the lift shaft should not otherwise contribute to gross floor area on any level of the building.
The developer relied on paragraph (j) of the ‘gross floor area’ definition. That is, the lift shaft on each level where the lift car is not stationed is ‘void’ and, therefore, is excluded.
The Council argued that the area of the lift shaft should contribute to the gross floor area on each floor of the building.
The Court rejected the Council’s argument and accepted the developer’s case. In doing so, the Court applied a previous decision known as Connoisseur Investments v Sutherland Shire Council [2020] NSWLEC 1181.
The Court said (at [30]) that the areas in a lift shaft where the lift car is not stationed are void areas and are excluded — as per paragraph (j) of the ‘gross floor area’ definition.
The proposed dwelling also included internal stairs. Again, these could not be excluded under the ‘common vertical circulation’ provision as the stairs served only a single residence. The developer did not argue for such an exclusion.
Instead, the developer’s gross floor area drawings showed a ‘hit and miss’ approach to floor area calculation. That is, two levels of stairs were shown as being included in ‘gross floor area’ on the lower ground floor and first floor plan — and two levels of stairs on the basement level and ground floor stairs were shown as being excluded. This had the effect that 50 per cent of the space occupied by the stairs in each level contributed to the ‘gross floor area’.
The Court again applied the previous Connoisseur Investments decision and concluded that stairs are inherently part void, part stair and are not wholly floor area on every level. The Court held (at [31]) that the calculations and depictions in the developer’s gross floor area drawings appropriately accounted for the extent of void space that was to be excluded on each level.
The proposed development included sufficient vehicle manoeuvring area in the basement to provide front-in/front-out ingress/egress.
The Council said that front-in/front-out access was not required under its development control plan, so this space could not be excluded under paragraph (g) of the ‘gross floor area’ definition — ‘car parking to meet any requirements of the consent authority (including access to that car parking) (bold added)’.
The Court rejected that argument.
The Court said that the Council was interpreting ‘access to’ the car parking too narrowly.
The Court held (at [32]) that reference to ‘access to that car parking’ should not be interpreted as a reference to the access requirements of the consent authority. The ‘requirements of the consent authority’ related to the ‘car parking’ component of the definition, not ‘access to it’. Whilst the development control plan is silent in relation to preferences for cars entering and exiting the site for a dwelling, the desire to provide front-in, front-out manoeuvring space within the basement:
The Council also submitted that the minor areas of the basement that were not literally part of the manoeuvring areas of the swept paths should (in any event) contribute to the gross floor area.
The Court also rejected that argument (at [33]). The Court said that ‘access’ should not be so confined to only mean literal manoeuvring of a vehicle. The proposed space around that manoeuvring area:
The Council observed that the pedestrian stairs, lift and walkway also serve the storage areas in the basement (adjacent to the car parking). The Court nonetheless concluded (at [34]] that they primarily provided access to the car parking to and from the proposed dwelling.
The Court took a ‘broad interpretation’ of the exclusion for ‘access’ under paragraph (g) of the definition of ‘gross floor area’. (As explained above, this paragraph excludes ‘car parking to meet any requirements of the consent authority (including access to that car parking)’.)
The Court said that ‘access’ is not constrained to vehicles, swept paths/vehicular manoeuvring and driveway access.
The floor space that primarily provided access to the car parking (to and from the proposed dwelling) did not need to exclusively serve the car parking area.
Accordingly, the disputed pedestrian access areas were excluded from the calculation of gross floor area under paragraph (g) of the definition of ‘gross floor area’.
The new decision in Keith is a helpful clarification of the legal position. This should help reduce the likelihood of some disputes about the calculation of gross floor area.
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