Written by Jisella Corradini-Bird, Partner
The design of some development incorporates open corridors, sometimes referred to as “breezeways”. Whether or not these areas are to be included in the calculation of floor space ratio can become an important consideration when a development is close to exceeding the maximum floor space ratio development standard. Whilst there is no definitive answer as to when breezeways should be included in the calculation of floor space ratio, this article explores some of the commentary made by the Land and Environment Court in a number of recent cases.
Definitions
Clause 4.5 of the Standard Instrument – Principal Local Environmental Plan sets out the requirements for calculating floor space ratio, and states:
(2) Definition of “floor space ratio” The floor space ratio of buildings on a site is the ratio of the gross floor area of all buildings within the site to the site area.
The definition of “gross floor area” as found in the Standard Instrument – Principal Local Environmental Plan states:
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—
(a) the area of a mezzanine, and
(b) habitable rooms in a basement or an attic, and
(c) any shop, auditorium, cinema, and the like, in a basement or attic,
but excludes—
(d) any area for common vertical circulation, such as lifts and stairs, and
(e) any basement—
(i) storage, and
(ii) vehicular access, loading areas, garbage and services, and
(f) plant rooms, lift towers and other areas used exclusively for mechanical services or ducting, and
(g) car parking to meet any requirements of the consent authority (including access to that car parking), and
(h) any space used for the loading or unloading of goods (including access to it), and
(i) terraces and balconies with outer walls less than 1.4 metres high, and
(j) voids above a floor at the level of a storey or storey above.
When considering breezeways, there are two critical aspects of the definition of “gross floor area” which have been the focus of decisions in the Land and Environment Court. Firstly, the meaning of the words “internal face of external walls” and secondly, how the height of 1.4 metres impacts whether an area should be included or excluded.
GGD Danks Street P/L and CR Danks Street P/L v Council of the City of Sydney [2015] NSWLEC 1521 (“GGD Danks”)
In the case of GGD Danks Commissioner O’Neill formed the view that the corridor of the building in question did not form part of the gross floor area as it was contained on either side by the external walls of the units on either side of the corridor.
The Commissioner 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. It was said that the definition of gross floor area must refer 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 circumstances where the corridor would be subject to rain along the gap, the walls containing the corridor were considered by the Commissioner in GGD Danks to be external walls, and therefore not included as internal floor space for the purpose of gross floor area and the calculation of the floor space ratio.
Landmark Group Australia Pty Ltd v Sutherland Shire Council [2016] NSWLEC 1577 (“Landmark”)
In Landmark the Danks case was referred to but it was argued by the Council’s planning expert that the “floor” of the building in the plan was the whole of the floor enclosed by the external face of the building, that being the face that surrounds the building footprint and which, notwithstanding articulation, recessing and the like within it, is generally that which presents to the street frontage and to the side and rear boundaries.
Figure 1: Applicant’s calculation of gross floor area identified in brown tone
Commissioner Morris summarised the arguments of the experts at paragraphs 35 and 36 as follows:
“35. Ms Laidlaw says that although two ends of the breezeway are open above a height of 1000mm (at each floor above ground level) these openings are proportionally insignificant in the context of the total area of the external walls of the building and are properly characterised as an architectural detail of the building, rather than a fundamental element of the building’s composition. She says that for breezeways not to be considered as floor area they would be open to the elements by having one full side or two full sides, enclosed by a standard balustrade and topped only by a roof that is sufficient to cover the breezeway itself. She differentiates the proposal as one where both sides are enclosed by walls exceeding 1400mm in height and only the narrow ends of the breezeway open above 1000mm.”
Commissioner Morris accepted the argument of the Council that the breezeways were part of the gross floor area and said:
“57. I do however recognise that individual circumstances in each case can lead to different outcomes. In Danks Street it would appear that different circumstances applied and that in particular the Commissioner had regard to the fact that the corridor would be wet during inclement weather with rain blown along the gap and the walls containing the corridor functioning as external walls….
59. I do not consider the same circumstances apply in this case. I agree with the evidence of Ms Laidlaw that the calculation of GFA required the floor area to be measured from the internal face of external walls and that in this case the external walls accord to the red line detailed in the diagram included at [34]. Whether the area at ground level between the 2m high gates at either end of the building is categorised as a breezeway or corridor is irrelevant to my consideration. The fact of the matter in this case is that the area between these gates is within the internal face of the external walls of the building.”
Ceerose Pty Ltd v Inner West Council [2017] NSWLEC 1289 (“Ceerose”)
In Ceerose, Commissioner Dickson took a similar approach to Commissioner Morris in the Landmark case. The Commissioner said at paragraph 60 of the judgment:
“60. As detailed in Danks v City of Sydney [31] the definition of gross floor area requires the floor area at each level of the building to be measured at the internal face of the external walls. In the specific design considered by O’Neil, C in the above case, the corridor in question was not enclosed by a wall that acted to weatherproof the building, or that formed a part of the buildings façade. On this basis, and the practical fact that the corridor would be wet during inclement weather, she found it was appropriate to exclude the floor area of the corridor, as it could not be characterised as internal floor space. This is not the case in the current development application where, on the evidence of Mr Darroch, the louvered openings in the end walls of the corridor are proportionally insignificant (Exhibit 2). I concur with the evidence of Mr Darroch and find that the corridors as proposed are properly characterised as internal floor space, and should be included in the calculation of gross floor area.”
HPG Mosman Projects Pty Ltd v Mosman Municipal Council [2021] NSWLEC 1243 (“HPG Mosman”)
In HPG Mosman, Commissioner O’Neil was again tasked with determining whether the internal corridors on two floors of the building identified on the Applicant’s plans as “breezeways” should be included as gross floor area. Commissioner O’Neill described the corridors at paragraph [30] of her judgment:
“The corridors are long, each with an opening on one side less than half the length of the corridor, which includes a planter 1m high as a barrier. The same opening on Level 3 is enclosed with a window. If the openings on Levels 1 and 2 were enclosed with windows, the corridors would be internal spaces and the area of the corridors, measured from the internal face of the external walls, would contribute to the GFA.”
Commissioner O’Neil ultimately found that the corridors should be excluded from the calculation of gross floor area and provided the following explanation:
“36. For the same reason as the explanation given in GGD Danks Street at [31], the walls of the corridors on Levels 1 and 2 of the proposal are external walls. The breezeways, or corridors, are external spaces because they function in the same way as an inset balcony and the opening has an outer wall less than 1.4m high. An inset balcony requires the three enclosing façades of the balcony to be external walls, to create an internal or habitable space internally. The extent of the roof overhangs over the planters may keep the corridors dry during inclement weather but they do not render the corridors internal spaces. The communal corridors on Levels 1 and 2 are external spaces and the walls lining the corridors will have to be external walls in order to make the units adjoining the corridor habitable space, unless a window is added to the openings on Levels 1 and 2. For this reason, it is my view that the walls of the corridors are external walls and the area of the corridors therefore does not contribute to the GFA.”
Commissioner O’Neil included in her judgment the following commentary on the Landmark case:
“37. I respectfully disagree with the finding in Landmark Group because the corridor was unenclosed and was an external space. The test is not the “prospect of rain entering the breezeway” or whether the external space is identified as a breezeway or a corridor (at [36]). For the units adjoining the corridor to each be a dwelling, they must be enclosed on all sides by external walls or common walls. As the corridor was open at each end, the side walls of the corridor had to be external walls to the units on either side of the corridor.”
Australex Group Pty Ltd v Fairfield City Council [2022] NSWLEC 1685 (“Australex”)
In the case of Australex Commissioner Walshrecognised that different approaches had been taken by Commissioners of the Court in regard to the legal interpretation of the gross floor area definition’s phrasing “measured from the internal face of external walls” and what constitutes external walls as a factor in the interpretation of gross floor area, specifically in regard to partially open corridors or similar configurations.
The main issue in Australex related to whether certain corridors or breezeways, with a significant degree of enclosure, should count as gross floor area. The areas in dispute are shown in Figure 2 below.
Figure 2: Applicant’s calculation of gross floor area shown in yellow, areas in dispute outlined in red.
Commissioner Walsh preferred the approach in the Landmark decision rather than the Danks decision. He said:
“29. In my opinion, in a structural sense, the definition can be understood to have four parts. The first and second parts are within the chapeau to the definition. The third and fourth parts are at pars (a)-(c) and (d)-(j) of the definition, respectively.
30. The first part of the definition, in its clear expression, establishes that GFA means the sum of the floor area of each floor of a building. The second part describes from where measurement is to be undertaken (reference, relevantly, the definition’s phrasing “measured from the internal face of external walls” and “measured at a height of 1.4 metres above the floor”). The third part clarifies areas of inclusion. The fourth part clarifies areas of exclusion.
31. I see the first part as the primary element of the GFA definition. The points of central attention when determining GFA are first in understanding the building, and then the area of floor within the building at each level. The second part of the definition seems to me to be simply concerned with how to measure, nothing grander would be taken from a plain reading. It indicates that in determining floor area, you measure from the internal face of external walls of the building. This is a practical point and makes clear for example that it is wrong to measure from say skirtings, which usually partially cover the area of floor, or the external wall, which might be a particular point of argument in some building configurations, particularly given that building bulk (see below in regard to my second point of reasoning) would generally be perceived on the basis of the external wall form. Measuring at a height of 1.4 metres above the floor is of a similar vein, relating directly to the contextual objective of understanding building bulk as perceived (again see below in regard to my second point of reasoning).”
At paragraphs 36 and 37 the Commissioner concluded:
“36. The confines of a building (or structure) for this purpose can be understood as the built structure generally within roof and the outer walls of the building, albeit that there may be articulation here and there that need to be taken into account. While I acknowledge Danks takes a different view, windows and openings to horizontal communal corridors (louvred or otherwise, and whether or not associated internal corridors require waterproofing or otherwise) would both be seen the same way in my construction. Neither should be seen as obstructing (or thwarting) the interpretation of the confines of the building, generally defined by the line of outer walls. At the primary level, the floor area for each level is established by the confines of the building itself. Then this primary understanding is translated into a measurable factor by the second part of FLEP’s GFA definition. There are some points of clarity in regard to inclusions and exclusions in what I call the third and fourth parts of the definition. Clearly, there is no accounting for proportionately small openings in otherwise enclosed communal corridors in either the third and fourth parts of the definition, nor is there any consideration of (internal v external) wall construction particulars specified in the definition. In my view, the issue of how the walls function, also, does not relate to the underlying contextual question of the interpretation of building confines or building density or bulk.
37. In turn, I conclude that it would be at odds with the GFA definition, read in whole and in context, to exclude lengths of internal communal corridors which happened to have openings, at one or both ends, to the otherwise generally perceived building (and thus floor area) confines. I am more aligned with the views expressed in Landmark and, again respectfully, disagree with Danks and those judgments following it on this point.”
Key takeaways
It is clear from the above cases that there have been different approaches taken by Commissioners of the Court when considering whether breezeways should be included in the calculation of floor space ratio (and acknowledging that the cases summarised above are not an exhaustive list).
Whilst there have been a number of Commissioner decisions on the subject, these have not been subject to judicial review and are therefore not binding as legal precedent.
Given the uncertainty in the correct approach, Applicants seeking to rely on breezeways as a means of keeping below the maximum floor space ratio development standard will frequently also lodge a written request seeking to vary the development standard should the Court find that the breezeway is to be included in the calculation of floor space ratio.
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.
