Land and Environment Court: Danks decision

On the 25th of November 2015, Commissioner O’Neill of the Land and Environment Court released a decision in the case of GGD Danks Street Pty Ltd and CR Danks Street Pty Ltd v Council of the City of Sydney which provides some direction in relation to the calculation of gross floor area (GFA) and floor space ratio (FSR), in corridor areas, where both ends of the corridor are open to the elements.

This matter was an appeal pursuant to section 97 of the Environmental Planning and Assessment Act 1979 with respect to the refusal of a development application for a five storey mixed use development in Danks Street, Waterloo. One of Council’s main issues in this matter was that the proposal was an overdevelopment of the site because it exceeded both the FSR and the height development standards for the site.

Notably, the parties planning experts disagreed on the application of the definition of GFA in the Sydney Local Environmental Plan 2012 (LEP 2012). The definition in the LEP 2012 provides that the GFA is measured from the internal face of external walls, or the internal face of wall separating the building from any other building. Specifically, the experts disagreed as to whether or not the floor area of the corridor in the proposal, which was open at both ends, should be included in the GFA for the FSR calculation.

While nothing turned on the Commissioner’s comments on this issue because the FSR development standard was exceeded regardless, it is useful to highlight the Commissioner’s approach with regard to GFA calculation. In the Commissioner’s view, the corridor in question did not form part of the GFA as it was contained on either side by the external walls of the units on either side of the corridor. As the Commissioner pointed out, 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. It was said that, “the definition of GFA must refer to the interior surface of the wall that forms the façade or exterior of a dwelling, being the wall that weatherproofs the interior space, and cannot refer to the exterior surface of the outer wall”.

Given that the corridor would be subject to rain along the gap, the walls containing the corridor were considered to be external walls and therefore not included as internal floor space for the purpose of GFA and the calculation of FSR.

The discussion by the Commissioner is helpful and instructive on this often vexed issue.


Stan Kondilios

Stan is an Environmental and Planning Law litigator with over 25 years' experience as a NSW Local Government adviser.

Maurice Doria

Maurice is a property & projects lawyer with more than 25 years’ experience delivering legal services for clients.

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