By Anthony Whealy, Partner and James Oldknow, Associate 

How to measure the gross floor area (‘GFA’) of buildings, and what parts of a building are to be included or excluded from those calculations, goes to the very heart of the NSW planning system. That is because most (but not all) land in NSW is typically subject to a ‘floor space ratio’ (‘FSR’) control, which is designed to limit the extent of development that may occur on the land, relative to the size of the land. The price a purchaser pays for a site therefore very much depends on the expected development yield that will be achieved, and the starting point of any feasibility analysis will therefore include a solid understanding of the FSR that is applicable to the land, and how it might be calculated (and maximised).

Surprisingly though, the task of calculating GFA under the NSW planning system is incredibly complex, largely because the standard definition of GFA that applies throughout the State (which was introduced to standardise and make clear exactly what should be included and excluded) is replete with complex inclusions, exclusions, and grey areas, using terms and phrases that are not themselves defined. This has led to countless battles where councils and landowners pour over the minutiae of DA drawings, and scrutinize and debate the words in the definition of GFA, to determine what areas are to be included and excluded.  Where any GFA has been missed, this inevitably leads to demands that proposed buildings be scaled back (by deleting yield) to meet the allowable FSR control. As a result, a solid body of case law has developed, which can greatly assist in resolving these costly disputes.

The confusion on this issue is widespread. We are constantly being asked to review DA drawings and provide advice to developers, architects, and town planners alike, or to write opinions suitable to be presented to councils and various planning panels, and with disputes often needing resolution in the Land and Environment Court (‘Court’).

In this article we concisely bring together the Court’s current answers to the most common (and yet vexed) questions on calculating GFA under the Standard Instrument, including the treatment of building areas such as:

• Semi-enclosed balconies (aka ‘winter gardens’)
• Corridors, breezeways and terraces in strata buildings, boarding houses and the like
• Vertical circulation (e.g. stairs and lifts)
• Landings leading to stairs
• Car parking that is not strictly ‘required by’ the consent authority
• Motorbike parking spaces
• Rooms and areas within a basement or attic that are not ‘habitable’
• Plant rooms
• Waste and garbage storage areas (not within a basement)
• Waste Chutes
• Pool Cabanas

At the outset we remind our mailing and social lists that the relevant definition of GFA arises from the Standard Instrument – Principal Local Environmental Plan, which has been adopted by all principal Local Environmental Plans in NSW, 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—

1. the area of a mezzanine, and
2. habitable rooms in a basement or an attic, and
3. any shop, auditorium, cinema, and the like, in a basement or attic,
   but excludes —
4. any area for common vertical circulation, such as lifts and stairs, and
5. any basement—
   1.  storage, and
   2. vehicular access, loading areas, garbage and services, and
6.  plant rooms, lift towers and other areas used exclusively for mechanical services or ducting, and
7. car parking to meet any requirements of the consent authority (including access to that car parking), and
8.  any space used for the loading or unloading of goods (including access to it), and
9. terraces and balconies with outer walls less than 1.4 metres high, and
10. voids above a floor at the level of a storey or storey above.

It can be seen that the definition of GFA is broadly divided into a list of “inclusions” and then a list of “exclusions”, by reference to parts of any proposed building.

We set out below our observations on the key Court decisions which assist to understand these multiple inclusions and exclusions of GFA, and how they might be applied.

We must emphasise that each matter is likely to turn upon a close analysis of the proposed DA drawings, and we therefore recommend that specific legal advice be sought on a case by case basis, so that we can review the relevant DA drawings and confirm what areas are to be included, and advise upon how additional areas might be excluded.

We also note that some environmental planning instruments (such as State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004) have their own unique definition of GFA, which adds to the confusion. Here we address the Standard Instrument definition only.

Semi-enclosed balconies (aka ‘winter gardens’)

In Haralambis Management Pty Ltd v Council of the City of Sydney [2013] NSWLEC 1009 the Court held that the floor area inside:

• closeable bi-fold windows over solid balustrades; and
• closable aluminium framed glass louvres,

was to be included in the calculation of GFA (at [56]).

In contrast, the Court agreed and accepted that the floor area inside permanently open louvres above a solid balustrade were to be excluded from the calculation of GFA. Critically, the Court noted that “For a balcony to be open space there should be a degree of openness and exposure to the elements. An area that can by choice be permanently enclosed and used as a habitable room would not be open space.”

As such, the use of closable windows or louvres will generally create additional GFA.

Corridors, breezeways and terraces

In Anderson v City of Sydney Council No. 2 [2015] NSWLEC 1144 (‘Anderson’) the Court held that the floor area of an open roof terrace, with a balustrade along the northern side and part of the western side of 1.1m was to be excluded from the calculation of GFA (at [35]). This is not surprising given that the GFA definition expressly excludes ‘terraces and balconies with outer walls less than 1.4 metres high’. Nevertheless, the point was argued.

In GGD Danks Street P/L and CR Danks Street P/L v Council of the City of Sydney [2015] NSWLEC 1521 (‘GGD Danks’) the Court held that the floor area inside corridors/breezeways:

• open at both ends, including a wall of fixed open louvers; and
• that were exposed to the elements such as rain during inclement weather,

were to be excluded from the calculation of GFA (at [31]).

Critically, the Court determined that the external face of the wall cannot be characterised as an internal face, because an external wall has a specific function that distinguishes it, that being weatherproofing.  The definition of GFA refers to the interior surface of the wall that forms the facade or exterior of a dwelling, being the wall that weatherproofs the interior space, and cannot refer to the exterior surface of the outer wall. In essence, for these areas to be excluded, they must be designed and constructed as outdoor areas. A degree of openness to the elements is required. For example, by way of open balustrades or fixed open louvres above a solid balustrade.

Consistent with that reasoning, in JK Canterbury Holdings Pty Ltd v Marrickville Council [2016] NSWLEC 1142 the Court held that the floor area of a ‘play area’:

• with only 12m or 10% of its perimeter wall less than 1.4m in height; and
• 25% open to the sky,

was to be excluded from the calculation of GFA (at [26] – [28]).

In MGT 6 Pty Ltd v The Council of the City of Sydney [2017] NSWLEC 1211 (‘MGT 6’) the then- Senior Commissioner of the Court commented that the GGD Danks decision “has attempted to make practical sense of this problematic definition”, and held that on the facts in this separate matter, the floor area inside landings and a foyer:

• behind open battens; and
• exposed and open to the elements,

was to be excluded from the calculation of GFA. The Court specifically said “I do not accept the Council’s submission that the spaced open battens in this proposal in the foyer area or the landings (at a reduced height) are enclosed walls for the purposes of the particular definition in the LEP, because they are open to the weather” (at [71]).

In Bright Beginnings v Bayside Council [2017] NSWLEC 1425 the Court held that the floor area:

• on an upper floor terrace;
• covered by the main roof of the building;
• enclosed on two sides by a continuous full height wall;
• enclosed by a full height wall for the length of the space; and
• behind a 1.4m high acoustic barrier on the remaining side with an opening above that was not proportionally insignificant in the context of the overall area of the external space in question,

was to be excluded from the calculation of GFA (at [30] – [33]).

In Belvoir Developments Pty Ltd v City of Sydney Council [2017] NSWLEC 1702 the Court held, consistent with the decision and reasoning in GGD Danks, that floor area:

• inside breezeways;
• behind screens which consisted of vertical blades of 50mm width, separated by a gap of 250mm; and
• thus remaining open to the exterior,

were to be excluded from the calculation of GFA (at [63] – [69]).

In Parker Logan Property Pty Ltd v Bayside Council [2017] NSWLEC 1709 (‘Parker Logan’) the Court held, consistent with the decisions and reasoning in GGD Danks and MGT 6, that the floor area of unenclosed external circulation corridors were to be excluded from the calculation of GFA (at [56]).

In Primo Developments Sydney Pty Ltd v Woollahra Municipal Council [2019] NSWLEC 1380 (‘Primo Developments’) the Court held, consistent with the decision and reasoning in GGD Danks, that floor area:

• of entry terraces;
• open to the elements; and
• contained by a balustrade and low planter bed that were less than 1.4m in height,

were to be excluded from the calculation of GFA (at [67] – [69]).

It can be seen therefore that corridors and breezeways and semi-enclosed terraces will be excluded from the calculation of GFA where they are designed and constructed as external areas, and permanently open to the weather, in some meaningful way.

It should be noted that councils often seek to rely upon a decision in Landmark Group Australia Pty Ltd v Sutherland Shire Council [2016] NSWLEC 1577 (‘Landmark’) to assert that corridors or breezeways should be included as GFA. We acted for the applicant in that matter, and so can categorically say that the Landmark case did not overrule or disagree with GGD Danks. Rather, the Commissioner in Landmark expressly recognised and respected the GGD Danks decision, but included the corridors in that matter as GFA based on their specific design and location (through the centre of the building).  The Court noted that “In Danks Street it would appear that different circumstances applied” and that “individual circumstances in each case can lead to different outcomes” (at [57]). As such, applicants should be wary of councils stating that GGD Danks is incorrect or has been overturned by Landmark. That is not the case.

For our part, we do not understand how at least the end sections of those corridors in Landmark were not excluded, as they were entirely open to the elements, without even louvres above the balustrades. To that extent, the decision does not sit comfortably with the extensive body of cases outlined above. Further, the Commissioner in Landmark approved that DA in any case, notwithstanding the FSR exceedance, meaning that an appeal against that decision was unnecessary.

Vertical circulation (Dwelling Houses, Town Houses etc.)

In Chami v Lane Cove Council [2015] NSWLEC 1003 the Court held that the floor area of stairs and a lift well:

• inside of a dwelling house;
• at each habitable level; and
• which were not shared between multiple occupancies;

were to be included in the calculation of GFA (at (273] – [280]).

The Court’s findings centered on the exclusion of ‘any area for common vertical circulation’ from the definition of GFA. Critically, the Court accepted the Council’s submission that on a proper construction of the exclusion, the word ‘common’ has work to do “by confining those excluded areas to only those spaces that are shared between multiple occupancies in a building (whether a residential flat building or a building of some commercial or industrial nature)” (at [273]- [276]). In other words, ‘common’ referenced common property areas.

In Dwyer v Sutherland Shire Council [2018] NSWLEC 1543 (‘Dwyer’) the Court held that the area created above stairs that lead to an attic and studio was a void and was to be excluded from the calculation of GFA (at [58]).

Similarly, in the very recent decision of Connoisseur Investments Pty Ltd v Sutherland Shire Council [2020] NSWLEC 1181 (‘Connoisseur Investments’) the Court held that the floor areas of internal stairs and lifts inside of individual townhouses that were not shared between multiple occupancies were to be included in the calculation of GFA (at [82]-[87]). However, and importantly, the Court agreed and accepted the applicant’s submissions that:

• “it is reasonable and typical to count [only] every alternate stairs flight” in the calculation of GFA;
• “stairs to the basement are excluded” from the calculation of GFA; and
• the floor area of the lift “should be counted once only” on any one level in the calculation of GFA,

(at [82] – [86]).

The Court’s reasoning in both Dwyer and Connoisseur Investments was premised on the exclusions for ‘any area for common vertical circulation’ and ‘voids above a floor at the level of a storey or storey above’ from the definition of GFA. In relation to the latter, the Court agreed and accepted that “at the level at which GFA is measured [i.e. 1.4m above a floor], stairs and lift wells appear as voids, or part voids, and do not constitute floor area that is available to be stood upon or counted” (Connoisseur Investments at [86]).

In practice, this would mean that where stairs are to be included, only every second level should be counted (as the other levels will be excluded as ‘voids’).

Common Vertical circulation (Strata Buildings, Boarding Houses etc.)

Common “vertical circulation” such as lifts and stairs are expressly excluded from GFA. That is simple enough, but it begs the question as to how the landings (which are not necessarily “vertical” but may instead be said to be horizontal areas, if looked at in isolation), are to be treated.

In Landmark the Court held that the floor area of landings to fire stairs required by a person to travel along to get to one level to the next were an integral and essential element of the common vertical circulation area and were to be excluded from the calculation of GFA
(at [63]).

In Geeves v Inner West Council [2018] NSWLEC 1601 (‘Geeves’) the Court held, consistent with the decision and reasoning in Landmark, that the floor area of landings in fire stairs were essential elements of the common vertical circulation area and were to be excluded from the calculation of GFA (at [29]-[33]).

Both Landmark and Geeves are clear confirmation that fire stairs shared between multiple occupancies in strata buildings (and boarding houses and the like) are to be excluded from the calculation of GFA based on those areas being accepted as ‘area for common vertical circulation’.

In New Street No 1 Pty Ltd v Waverley Council [2017] NSWLEC 1592 (‘New Street’) the Court took this exclusion further and held that stairs leading to the top level apartment only were to be excluded from the calculation of GFA on the basis they were a continuation of the common vertical circulation of the building (at [47]).

We also note that the definition of GFA expressly excludes ‘access to’ car parking areas. As such, landings or corridors that lead from the bottom of a stair well directly and solely to the basement (or even ground level) car parking will generally be able to be excluded under this limb, despite not necessarily being ‘vertical’ or forming a part of the stairwell itself. Even long corridors should be excluded where their sole purpose is to provide access to a car parking area.

Car parking

As per the standard definition, ‘car parking to meet any requirements of the consent authority (including access to that car parking)’ is excluded from the calculation of GFA. At first instance, the exclusion appears relatively straightforward if one assumes that all development controls for car parking are based on not exceeding ‘maximum’ numerical figures. In those circumstances, it would be clear that the consent authority’s requirements are to be met and not exceeded. However, the situation becomes convoluted when development controls for car parking are set on ‘minimum’ or ‘at least’ figures, which is a situation the Court has been asked to clarify over time.

In Theo Alexakis v City of Canada Bay Council [2017] NSWLEC 1343 the Court held that the floor area of a second car space in circumstances where the relevant car parking control within the Council’s DCP:

• required at least one (1) car parking space per dwelling; and
• considered that garaging for more than two (2) cars is excessive,

was to be excluded from the calculation of GFA (at [20] – [56]).

In reaching its decision, the Court held that the relevant car parking control allowed “a second car space (but no more)” and on that basis, the second space was able to be included in the design of a dwelling without its area being included in the calculation of GFA (at [25]).

In Parker Logan the Court held that the floor area of extra car parking spaces in excess of the minimum “at least” requirement for which a consent authority must not refuse consent under Section 29 of the SEPP (ARH) was to be excluded from the calculation of GFA (at [27] and [55]).

Critical to the Court’s decision was that the “at least” requirement did not “specify exact requirements that must be met and not be exceeded… Instead, the minimum requirement for car parking spaces that, once met, cannot be used as a reason for refusal” (at [27]).

Importantly, in Parker Logan the Council also attempted to argue that ‘motor bike’ parking was not caught by the relevant exclusion to the definition of GFA because that exclusion specifically refers to “car” parking only. However, the Court rejected this argument, noting Council’s view was “an extremely literal and narrow interpretation of ‘car parking’”. On that basis, the Court held that “car parking in [exclusion] (g) includes motorbike parking such that motorbike parking is excluded from the calculation of gross floor area” (at [55]). This seems sensible given that motor bike parking requirements are usually contained within the same controls as car parking, and indeed often under a DCP heading referring to ‘car parking’. As such, ‘car parking’ required by the consent authority includes motorbike parking required by the consent authority – all such spaces are to be excluded from GFA calculations.

Conversely, in Parking Station Pty Ltd v Bayside Council [2019] NSWLEC 1268 the Court held that the floor area of car parking provided above the quantity required by the relevant Council DCP was to be included in the calculation of GFA (at [23]). This again is straightforward, meaning that if a developer chooses to provide extra parking spaces, they will be utilising their available GFA.

Non-habitable rooms within a basement or attic

Councils often insist that any rooms in a basement or an attic are to be included in the calculation of GFA. This approach appears to be incorrect, given that the definition of GFA refers only to ‘habitable’ rooms in a basement or an attic. However, what is meant by the term ‘habitable’ is not defined in the Standard Instrument, and has left the issue open to debate. Think for example of bathrooms, laundries, end of trip facilities, and the like. Are these habitable spaces? If not, it follows that ‘non-habitable’ rooms within a basement or attic are to be excluded.

In Anderson the Court held that the floor area of a storeroom in an attic, with a maximum ceiling height of 1.6m, was not a habitable room and on that basis was to be excluded from the calculation of GFA (at [35]). In that case, the Court noted as part of the relevant planning framework that a “Habitable room is defined in the Building Code of Australia… as a room used for normal domestic activities, and excludes spaces of a specialised nature occupied neither frequently nor for extended periods” (at [18]). As such, the Court turned to the BCA in order to determine the meaning of ‘habitable’ within an LEP.

In Connoisseur Investments the Court held that the floor space of a laundry within a basement was to be excluded from the calculation of GFA (at [81]). Similarly, in that case, the applicant relied upon the Building Code of Australia (BCA) to inform the Court that a laundry is defined as a ‘non-habitable’ room on the basis it would neither be occupied frequently or for extended periods (at [80]). In reaching its decision, the Court held that “in the absence of an alternate definition in the [relevant LEP], and on a plain reading of the definition [of GFA] at (b),… a laundry is not defined as, or commonly understood to be, a habitable room and so should be excluded from the calculation of GFA” (at [81]). It therefore appears that the BCA definition of ‘habitable’ was again relied upon, as well as a common sense approach to what the term ‘habitable’ means.

Developers can therefore place non-habitable areas within a basement or attic, without utilising GFA, albeit the definition of GFA expressly includes ‘any shop, auditorium, cinema, and the like, in a basement or attic’.

Plant rooms

Again, what is meant by the term ‘plant room’ is not defined in the Standard Instrument, and has left the issue open to debate.

In New Street the Court held that the floor area of plant rooms:

• on the ground floor; and
• designated on the architectural plans for such use,

were to be excluded from the calculation of GFA (at [46]).

The Court was clear in its reasons that plant rooms are captured by the exclusion at (f) of the definition of GFA, which excludes ‘plant rooms, lift towers and other areas used exclusively for mechanical services or ducting’. In reaching its decision, the Court did not accept an argument put forth by Council that the plant rooms should have been included in the calculation of GFA because it was “unlikely they [would] be exclusively for mechanical services or ducting” (at [46]). Rather, the Court placed weight on the fact that the architectural plans designated the relevant area for plant room use and in the event that consent was to be granted, that was to be the use and purpose authorised for those areas in the floor plate (at [45] – [46]).

Similarly, in Parker Logan the Court held that the floor area of a water tank was to be excluded from the calculation of GFA on the basis it was considered part of the ‘plant’ as consistent with the exclusion at (f) to the definition of GFA (at [55]).

Nevertheless, even this week we have seen a Council arguing that a large internal OSD tank should be included as GFA. We consider that approach to be incorrect.

Waste and garbage storage areas (not within a basement)

In Landmark Group the Court held that internal garbage storage areas not within a basement were to be included in the calculation of GFA (at [63]). In that case, the specific garbage storage areas were located adjacent to the lift and fire stairwell landings at each floor of the proposed 5 level residential flat building. In contrast, the exclusion at (e) to the definition of GFA, excludes only floor area within a ‘basement’ for ‘vehicular access, loading areas, garbage and services’.

In Glenn McCormack v Inner West Council [2017] NSWLEC 1559 the Court held that the floor area of waste management and storage areas:

• contained within a basement; but
• in an area of the basement 1m or more above the ground level,

were to be included in the calculation of GFA (at [103]). In reaching its decision, the Court took into consideration the definition of ‘basement’ as defined by the relevant LEP to confirm if the exclusion at (e) was enlivened. Put simply, areas more than 1m above ground level are not a ‘basement’ as defined.

In Dwyer the Court held that the floor area of storage under stairs:

• on the ground floor; and
• greater than 1.4m in height,

was to be included in the calculation of GFA (at [35] and [60]).

In Gerrale Group Investments Pty Ltd v Sutherland Shire Council [2020] NSWLEC 1042 (‘Gerrale Group’) the Court held that the floor area of a temporary waste holding area and bulky goods storage area:

• enclosed by a 1.4m high wall;
• inside a full height open batten screen extending from the base of the 1.4m wall to the underside of the upper floor slab; and
• exposed to the elements of weather,

was to be excluded from the calculation of GFA (at [66]-[67], [144]).

Critical to the Court’s decision was the fact it accepted “the screen around the garbage store [was] not a “wall” and therefore, that area… does not constitute GFA” (at [144]).

Waste Chutes

In Gerrale Group the Court held that the area inside of a waste chute which contained no physical floor in the relevant chute or duct area was to be excluded from the calculation of GFA (at [143]).

Pool cabanas

In Unsworth v Northern Beaches Council [2019] NSWLEC 1591 the Court held that a pool cabana and an adjacent courtyard not enclosed by external or outer walls were to be excluded from the calculation of GFA (at [8]).

Summary

As stated at the outset, we have attempted to bring together the answers to the most common (and yet vexed) questions on calculating GFA as treated by the Courts in recent times. However, the above list is not exhaustive. And as can be seen, the case law on this topic is rapidly evolving.

Need further assistance?

If you need further assistance to determine whether a floor area should be included or excluded from the calculation of GFA we are ready able to assist. As mentioned, we are often asked to provide our opinion on this subject in a format suitable to be presented to councils and various planning panels. Of course, we also specialise in development application appeals should any dispute arise with Council on this topic needing resolution in the Court.