Land and Environment Court of New South Wales CITATION : Leighton P v Leichhardt Counicl [2004] NSWLEC 452 APPLICANT Leighton Paul PARTIES : RESPONDENT Leichhardt Council FILE NUMBER(S) : 11610 of 2003 CORAM: Hoffman C Development Consent :- Deemed refusal of consent to demolish of one storey house and erection of new two and part three storey house Bulk and Scale Streetscape Landscape KEY ISSUES: Heritage Urban design Floor Space Ratio Future Character of Locality LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Leichhardt Local Environmental Plan 2000 CASES CITED: DATES OF HEARING: 13/04/04-14/04/04 DATE OF JUDGMENT: 07/15/2004 APPLICANT Ms M-L Taylor, solicitor SOLICITORS Taylor Kelso LEGAL REPRESENTATIVES: RESPONDENT Mr A M Pickles, barrister SOLICITORS Pike Pike and Fenwick JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Commissioner Hoffman 15 July 2004 11610 of 2003 Leighton P. –v- Leichhardt Council JUDGMENT 1. This is a class one appeal in regard to a deemed refusal of consent for the demolition of an existing one storey house and erection of new two and part three storey house at 9 Dock Road, Birchgrove. 2. The proposal was two storeyed at Dock Road, three storey in the middle of the house and towards the rear step down to two storeys and then to one storey above a garage with access to a rear street frontage called Rowntree Street. From there the proposal would look like a stepped four storey house. 3. No. 7 Dock Road was another house on the southwest side of the site. It was one storey to Dock Road and two storey above a garage off Rowntree Street at the rear of the property, although there was a three storey section in the centre point of the house. On the north eastern side of the site was another house 13 Dock Road. There was no house number 11 Dock Road. No. 13 was single storey to Dock Road and two storeys above garage on the Rowntree Street side but it appeared as three storey. 4. The area was a mix of Victorian one and two storey terraces, several nearby with a third storey in the roof, and as the evidence showed some with a fourth level. There were also some Georgian terraces in Rowntree Street, and several modern terraces. o Opposite the site in Dock Road, No. 16 that was two storey with a third storey in the roof beneath skylights. o Number 14 was a Victorian terrace and had a third storey in the roof beneath skylights also. o No. 5 Dock Road was another Victorian terrace two storey to Dock Road and three storey to Rowntree Street. o No. 1 Dock Road on the corner of Rowntree and Dock Road had original components that were perhaps Georgian. It had a third storey tastefully added and the Court was told only a year or two before this hearing. o No. 15 Dock Road was a tall two storey Victorian terrace with a third storey in the roof facing Rowntree Street. It had a tall blank brick wall on the side boundary with No. 13 and the wall was quite visible from Dock Road. 5. Having heard the evidence one of the factors in this case was that the central section of the subject proposal, which was technically three storeys, would appear as a fourth storey from Rowntree Street due to the garage beneath the level that was ground floor to Dock Road. This top storey was, as previously mentioned, stepped back from Rowntree Street elevation. It was a Study with a stairwell up to it and a deck facing Rowntree Street and due to its height would have city views across the top of the houses on the lower side of Rowntree Street. 6. The lowest step in this elevation was formed by the garage and the ground floor being the first two levels visible from the rear. On top of the ground floor level was a deck behind which was the living spaces that were on the third level. On top of the family room of the living spaces was the deck to the Study. The Study itself was actually above the Lounge and Dining room that faced Dock Road. 7. From Dock Road there were no windows to the Study and it was contained in a secondary gable that stepped above the main hipped roof facing Dock Road. There was a dormer window to the Study on each side elevation. When the elevations were seen on the plans this study level was above the roofs of both No. 7 and 13 Dock Road and about the same height as the upper storey of No. 5 but below No. 15. 1. The issues in the appeal were: (a) Whether the bulk and scale of the proposed dwelling is appropriate. Particulars: (a) The proposed dwelling does not comply with cl 19(2) of the Leichhardt Local Environmental Plan 2000. 2. Whether the amended objection submitted pursuant to State Environmental Planning Policy number 1 should be upheld. Particulars: (a) The development standard contained in cl 19(2) of LEP 2000 is not unnecessary or unreasonable in the circumstances of the case. (b) The proposed dwelling does not comply with the underlying object or purpose of the development standard contained in cl 19(2) LEP 2000 which object or purpose is identified in cl 17 of LEP 2000. (c) Amended objection pursuant to SEPP1 is not well founded. 3. Whether the bulk, height and scale of the proposed dwelling will have an unacceptable impact on the adjoining properties. Particulars: (a) The proposed elevated terrace will cause overlooking into neighbouring properties. (b) Whether the proposed screening devices will create excessive bulk and scale and overshadowing of neighbouring properties. 4. Whether the proposed development is consistent with the streetscape of Dock Road and Rowntree Street, Birchgrove. Particulars: (a) The proposed development does not comply with the council's building envelope guidelines at B 1.2 of Leichhardt Development Control Plan 2000. (b) The proposed development does not respect the desired future character of the Birchgrove, Elkington Park distinctive neighbourhood area as indicated at cl 10.6.6 of DCP 2000. (c) The proposed roof form and pitch is incompatible with the prevalent roof forms in the streetscape. 5. Whether the proposed development is appropriate for the site given the non-compliance with required minimum landscaped area identified in cl 19(3) of LEP 2000. 6. Whether the consent authority has power to approve the proposed development in the absence of an objection pursuant to SEPP1 in relation to non-compliance with the development standard contained in cl 19(3). 7. Whether the proposed landscape areas comply with cl 17(a), (b) of LEP 2000. Particulars: (a) The proposed landscaped areas will be incompatible with surrounding buildings. (b) The proposed landscape private open space will not ensure amenity for the existing surrounding residents and future residents as required by part B 3.2 of DCP 2000. (c) The proposed development does not comply with part B 2.8 of DCP 2000 as the landscaping has not been designed to: (i) Enhance the visual setting of the dwelling. (ii) Increase the use of native landscape species. (iii) Maximise the vegetation to regulate any increased rainwater infiltration thereby increasing nutrient recycling and reducing surface runoff. 8. Heritage. Whether the proposed development will be compatible with the identified character of the Birchgrove/Balmain conservation area, having regard to its size, form and scale. Particulars: (a) Cl 15, cl 16 (7 and 8) of LEP 2000. (b) Part A 7.0 of DCP 2000. (c) Part A 10.6.6 of DCP 2000 issues 9 and 10 were deleted. 8. Relevant to bulk and scale the floor space ratio (FSR) was calculated by both parties at slightly different figures, 1.04 or 1.01 to 1. The statutory limit under cl 19(2) of the Local Environmental Plan was 0.7 to 1. A State Environmental Planing Policy No. 1 objection was lodged. 9. The landscaped area requirement under cl 19(3) was 40% of the site area or its equivalent of which 25% was to be deep soil planting. The applicant said it was complied with, the respondent said not. 10. The evidence in the case was heard for the respondent from: o Miss A Moore town planner for the council and o Mr R Starrs heritage architect. The applicant's evidence was heard from o P Janks, architect, o Mr S Davies heritage town planner and o Mr A Smith town planner. 11. In regard to shadows Exhibit F showed the north east walls of 7 Dock Road. Windows on its middle level that currently get winter sun from 10am until about 1.30pm would lose all sun except for one corner of one window. However, number 7 and 13 Dock Road did not object to the proposal and provided letters of support. 12. Mr Staas the respondent's heritage expert had suggested some changes that would be more appropriate in the streetscape in his opinion. The applicant sought an early adjournment on the first day of the hearing to assess the proposal, which lowered the eave of the secondary gable to produce a lower wall height on the south west elevations. 13. On the second day the suggestion was not accepted as it reduced the available floor space and head room in the top floor Study. The room depended on the dormer window bays of the applicant's design to give head room and adequate floor space. 14. Mr Janks, the applicant's architect showed that the suggested change reduced the width of the Study in places to 2.2 m, which was impractical. 15. The town planners Smith and Moore had conferred and produced a joint report in Exhibit N and agreed matters of privacy, shadows and the maximum wall height of 6 m and the building envelope controls and the private open space of the yard on the Rowntree Street side all complied with the council's requirements. The side setback requirements were not met but the town planners agreed that narrow or even zero side setbacks were a characteristic of the locality and would not justify a refusal. 16. The applicant submitted that considerable agreement had been reached since the initial development application lodgement in the year 2000. Amenity impacts on neighbours were minimised to acceptable levels and the only remaining matters were related to the character of the existing and the desired future character for the locality. The desired future character statement in the local environmental plan was for the Birchgrove/Elkington Park distinctive neighbourhood. The relevant parts put to the Court were: " Urban form : Development should follow the topography of the area and maintain a single storey scale on the mid slopes and mixed one and two storey scale at the top and bottom of the slopes. Conserve and promote the consistent rhythm within the streetscape created by regular sizes, subdivision pattern and the predominance of detached and semi detached houses with a prevalence of hipped, pitched and gable roof forms, preserve the established setbacks for each street. Building elements : Conserve the single and double storey free standing forms and materials characteristic to each street. Where a consistent pattern of architectural style and form exists preserve this consistency on each street. Maintain the diverse character of the area by ensuring new development is complementary in terms of its architectural style, built form and materials. Conserve and complement the established streetscape with regard to setback, street trees and general lack of driveway crossings. In neighbourhood controls , building envelope a maximum building wall height of 6 m applies to the neighbourhood. In urban form . New development shall maintain the use of hipped, pitch or gabled roof forms and design shall be complementary to the existing unadorned built form. Flat roofs may be appropriate where the style of architecture and view lines may be effected. Building materials used shall be consistent with the existing character of the streetscape including rendered and painted surfaces and roof materials such as corrugated iron as well as timber windows." 17. The floor space ratio exceedence was a crucial matter, unless the SEPP1 objection was justified, the proposal must fail. During negotiations with council over the last four years, the Court was told the floor space had been reduced a little. The building envelope had also been reduced, although the latter had always fitted well within the permitted height envelope. 18. Articulation of the building form and roof had also occurred to try to achieve a character that fitted the streetscape. With council staff the only remaining objection had been the 45o pitch of the roof, the council staff wanted 35o. The plans before the Court had amended the roofs to a 40o pitch. 19. The floor space ratio exceedence was not objected to by council staff as most houses in the locality on small lots exceeded the floor space ratio. 20. Mr Staas the respondent's heritage architect in evidence supported a 45o roof pitch, but he felt that the fourth level study was too obvious and emphasised the vertical proportions too much. As previously described, his suggested alternative lowered the spring line of the uppermost roof to reduce the wall height seen on the southwest elevation and this necessitated a 45o roof pitch in his alternative. 21. Ms Moore said the Study was just too much perched on top of the rather bulky three lower levels as seen from Rowntree Street and on top of the two lower levels from Dock Road. She agreed Mr Staas suggestion was a simpler form that presented better to Dock Road. 22. When pressed that No. 5 and 15 Dock Road seen from Rowntree Street were four storey in fact, and 7 and 13 were three level, if not three storey; she said: o she said No.s 5 and 15 had roof skylights in the fourth storey that were two rooms in the roof, they were not very obvious and that controlled the scale of the built form. o No. 15's dormer window could hardly be seen from either street. No. 5 and 15 were partly softened by street trees. o No. 9, the proposal, had an obvious deck on the fourth level with a jerkin head roof above, full glass doors to the deck that made it more obvious. o The dormers on the side elevations versus skylights in the neighbour's houses made the extra floor of the proposal obvious from Dock Road. 23. Ms Moore had also been concerned that a row of heritage stone terraces in Rowntree Street opposite the backs of the Dock Road houses may be affected by the proposal. She had thought they were one storey, when seen on site they were two storey and the Court concluded that all of the existing three and four storey backs of Dock Road houses facing the terraces had established long ago a relativity that the proposal would not disturb. 24. On the Dock Road side there were substantial high walls of No. 1, 5 and 15 that would be about the same or higher than the south west wall of the proposal at No. 9. Ms Moore agreed those walls were seen in the existing streetscape and that the high wall of No. 15 was considerably higher and larger in area than the wall of No. 9's proposal. 25. She said the roof form of No. 9 was too complex, the roofs of other houses were simpler and the character statement sought designs complementary to the unadorned form. 26. She agreed No. 1 Dock Road had a complex roof form and building form, but being a corner house she thought it was justified to be emphasised. She was shown photos of various other houses nearby with complex roofs. She agreed the character of the area had diverse building forms, although there was an overall feeling of the Victorian era, but the proposal had more roof features than most. For example she said, a hip roof, a gambrel-roof, a dutch gable and a jerkin head. 27. She agreed the portions of the proposed building that did not meet the building location zone (BLZ) was a corner of the rear terrace to the Family room and below it the corner of the ground floor Bedroom No. 2 and the corner of the garage on the Rowntree Street side. However, due to the presence of No. 7 with an existing two storey non-compliance at the rear, she did not object to the building location zone of the proposal and conceded the rear yard would be acceptable for use by residents if more soft landscaping including lawn were provided. 28. She conceded the tree proposed in the Dock Road garden would soften that elevation and that the vegetation in the side setbacks did constitute landscaped area. Ms Moore sought a condition to the Study terrace for a planter box vegetation on the perimeter and privacy screens to prevent overlooking of the adjacent windows of neighbouring houses. The applicant did not object. 29. Mr Staas pressed his suggestion in Exhibit P as a simpler roof form that would fit better into the locality. He agreed there was much diversity of roof forms near the site. He agreed the street trees in Dock Road and Rowntree Street broke up the view of the houses as one passed along, but he maintained that the high walls of No. 5 and 15 Dock Road should not be used as a justification for the proposal. He thought they were not a particularly good fit into the character of the area. He agreed there was no impact on the heritage stone terraces in Rowntree Street. 30. Mr Davies, the applicant's heritage planner said Mr Staas' suggestion only lowered the ridge of the roof by 300 mm and by lowering the eave line of the south west elevation, he had made the dormer to the study larger. He thought the overall affect would be to make the roof look bigger than the proposal. The bulk and height changes would not be perceptible to the layman in the street. He said all the roof forms used in the proposal were seen on houses nearby. The design did play with traditional roof forms but it did not result in an overly complex appearance. 31. The higher wall and study roof of the proposal was set back four metres behind the Dock Road verandah so that it aligned with the front wall of No. 7. The allotments were offset at an angle to Dock Road so the front facade of each house was offset to its neighbour and offset to the street. The key streetscape view of the Study roof and higher wall of the proposal could be appreciated in Exhibit J, appendix D, photo 6. That revealed a Study roof and higher wall were hidden behind the high walls at No. 5 Dock Road and the front sections of the proposal would be silhouetted against the much higher wall of No. 15 beyond. As one walked closer, the higher section of the proposal would come into view but it would still be dominated by No. 15. 32. The diversity of building forms and roofs and buildings of different numbers of storeys in Dock Road was part of its character Mr Davies said and he believed the design would fit in. From Dock Road it would appear as two storey with a room in the roof. He said Dock Road was a little different to the average street in that many of the houses were two and three storeys, not one and two storeys as in the character statement of the Local Environmental Plan. 33. Mr Davies was taken to the future character statement saying: "Designs complementary to the existing unadorned built form." 34. He said in Dock Road forms were diverse and more complex than elsewhere in Balmain and the same character statement sought to: "Maintain the diverse character of the area by ensuring new development is complementary in style, built form and materials." 35. The character statement allowed for flexibility depending on particular precincts in Balmain and the proposal accommodated the Dock Road and Rowntree Street character. He said very close to the proposal at the corner of Bay Street and Dock Road, No. 2 Bay Street had multiple roof forms, in fact more roof forms than the proposal and yet it fitted in quite well. 36. No.'s 1 and 28 Dock Road also had multiple roof forms and fitted in quite well. He said he accepted exhibit 6 draft conditions, No.'s 1A regarding the living room windows, 1B regarding the privacy screens but not 1C that sought to impose Exhibit P. He accepted the condition 1D regarding the front and back fence and 1E regarding balustrades. 37. Except for condition 1B he did not think these conditions needed to be the subject of deferred commencement consent as the council sought them to be. He accepted condition 35 that the side setback hedging be Lilli Pilli. Exhibit D the landscape plan was amended to suit. He thought condition 20 about planter boxes and screen vegetation to the study terrace was not possible if condition 1C applied. They could go in if the applicant's roof design was approved. 38. He agreed to change Exhibit D to show lawn in the backyard to Rowntree Street where a ground cover spider lilly, liriopea and variegated jasmine and other border shrubs were shown. He said that would make the backyard useable for recreation and drying area. He said the landscaped area requirement of the Leichhardt town plan LEP2000 was complied with and no SEPP1 objection was needed. 39. The standard for the landscaping, as mentioned previously, was to be an area of 40% of the site area, and 25% of that was to be natural or unpaved ground and be appropriate for substantial deep planting. 40. The landscaped area is defined in the Local Environmental Plan as "Useable for recreation, lawns, gardens and substantial planting and excludes balconies, driveways and parking areas." 41. Council staff, in a report of 7 April 2003, agreed the landscaped area was 42% and of that 33% was natural or unpaved ground. That included the side setbacks where the lilli pillies were to be planted as substantial vegetation because having front and rear street access, the side setbacks were not needed for access. Ms Moore had excluded the side setbacks from her calculations because they could not be used for recreation. 42. Mr Smith contended that de facto areas for deep rooted substantial vegetation could not be used for recreation because the vegetation prevented it. So the definition must anticipate different parts of the landscaped area would be used for either recreation or lawns or gardens or substantial planting. The side setbacks were for substantial planting and the rear yard lawns, the front yard to Dock Road, had more landscaped area and another tree. The landscaped area requirement and the purpose for the standard had been met, Mr Smith said. 43. Mr Smith agreed with Mr Janks that to make Exhibit P work, the eave level and ridge would have to go up higher than Mr Staas thought to give headroom and reasonable width to the study. That would result in a roof as high as the proposal at a steeper pitch and less articulation, which would make it look more bulky than the proposed roof in Exhibit S. 44. In response to a question from the Bench Mr Janks said he favoured the design in Exhibit S plans with the Jerkin head roof over the study on the Rowntree end having a 40o pitch as marked in red. This eliminated an awkward transition from the main roof to the jerkin head. 45. Mr Smith said the Exhibit P option also did not reveal the true appearance of the 45o pitch Mr Staas had suggested versus the 40o pitch of the main roof in the proposal. Exhibit P did not show that its lower eave line would create the need for a partial parapet on the Study terrace due to the south west elevation having a lower eave line than the north east elevation. 46. It would create an awkward shape that would be seen from Rowntree Street versus the neat step back of the roof of the Family room sloping up to the Study terrace balustrade. The side of the parapet would be seen from Dock Road. That would not look as good as the proposal he said. 47. The diversity of built form was an important part of the local character of Dock Road Mr Smith said. Many of the houses were floor space ratio of 1:1 on the smaller lots, such as the subject site. Although the other houses on larger lots may have a smaller floor space ratio, they were in the "grand terrace" style and built to similar heights and proportions as the ones at floor space ratio of 1:1. Many were in rows of attached terraces that formed a large bulky mass of building. If the council was serious about the statutory floor space ratio of 0.7 to 1 then many of the existing houses would need to have parts removed. 48. It was put to him the proposal was in part four storeys where the study was located and there were few, if any, other houses with a fourth storey nearby. He agreed it would, if noticed, look like a fourth level but in the form of a room in the roof. 49. It was put to him on the Rowntree Street end it had walls on three sides above the jerkin head roof. He agreed it did but that part was a small component, only 980 mm wide like a dormer window or a bay window in the Rowntree Street end of the main roof. The other 4.5 m length of the stairwell and study were beneath the main roof. 50. He said the size of the roof balanced the wall heights, none of which exceeded the applicable height limits. They nearly all were well below the applicable envelope control shown in Exhibit N. Only a small corner of the main roof at the eave line above the entry door penetrated the envelope control, as referred to in Exhibits N and O, and Ms Moore had not objected to that. 51. He thought the freestanding nature of the detached dwelling with the chosen materials, roof forms and articulation was a comfortable fit into the other built forms of the streetscape and retained the diversity that was part of the acknowledged character of the area. Mr Smith had prepared the State Environmental Planning Policy No. 1 objection on the floor space ratio exceedence. 52. In coming to conclusions on this appeal the Court needs to deal first with the SEPP 1 objection on floor space ratio. The Court has concluded the landscaped area, given the amended landscape plans, does comply with the statute and the SEPP 1 lodged in that regard is not required. 53 The Leichhardt Local Environmental Plan 2000 had been amended during the four years of the applicant and council's negotiations. The original Local Environmental Plan and the amendment did not state specific objectives of the floor space ratio standard. The objectives of all standards related to housing was set down in cl 17. The relevant objectives put to the Court from Amendment No. 11 regarding floor space ratio and landscaped area, were: Cl 17(a): "to provide development standards to ensure that the density in landscaped areas of new housing are complementary to and compatible with the style, orientation and pattern of surrounding buildings, works and landscaping and to take into account the suite of controls in Leichhardt Development Control Plan 2000 to achieve the desired future character." Cl 17(b): "To provide landscaped areas that are suitable for substantial tree planting and of a size and location suitable for the use and enjoyment of residents." 54. One can see from this the existing and future character of the surroundings of No. 9 Dock Road and its fit within them are determinative to the State Environmental Planning Policy No. 1 objection. 55. There is considerable flexibility built into the objective which must be read with the desired future character in the Development Control Plan, page A265 and following, for the Birchgrove, Elkington Park distinctive neighbourhood. Take for instance the section on building elements. The first point states: "To conserve the single and double storey freestanding form, style and materials characteristic to each street." 56. It is to be noted Dock Road has a large proportion of large attached terraces, not freestanding, and they are two and three storeys which immediately contradicts the first point. Rowntree Street on its downhill side, has rows of two storey terraces whilst the uphill side has three and four storey rear facades of the Dock Road freestanding houses. 57. The second point states: "Where a consistent pattern of architectural style and form exists, preserve this consistency in each street." 58. The evidence is that Dock Road and Rowntree Street have great diversity of attached and detached and one and two and three storey forms with some fourth storey rooms in the roof. 59. The fourth point states: "Maintain diverse character of the area by ensuring new development is complementary in terms of its architectural style, built form and materials." 60. Complementary means a design does not have to repeat or copy existing buildings. The streetscape building forms in this case are diverse but are consistent Victorian, mixed with Georgian theme. The proposal is a freestanding house, as is the existing house on the site and some others in the street. The proposal is in the form of a freestanding terrace which complements the existing buildings. The evidence shows it complies with the last point of the building element section list and does "Conserve and complement the established streetscape with regard to setbacks and street trees in both frontages and general lack of driveway crossings in Dock Road." 61. The experts, when considering all their evidence, really only disagreed about the Study and Terrace on the top level of the house. The respondent's experts obviously felt that with the Study deleted the floor space ratio exceedence was acceptable. The respondent's experts felt the Study and terrace was just too much and made the design too high and too complex in form to achieve a character fit into the setting. 62. Mr Staas' alternative was pressed as acceptable. Mr Janks had done an accurate drawing in Exhibit P of the Staas' sketch and Mr Davies and Mr Smith had carefully looked at that alternative. They convinced the Court by their comments mentioned previously in this Judgment, that the Staas' alternative would have as much bulk and some awkward features that the proposal did not have. The Staas' option necessitated a 45o pitched roof, whilst the applicant's was 40o. The lower slope was much more in character with the locality and closer to the 35o pitch that the other council officers had wanted. 63. conclusion is therefore, that the applicant's design is to be preferred in achieving a fit into the character of the streetscape. The question remains, is the standard floor space ratio of 0.7 to 1 reasonable in the circumstances of this case and does it hinder the achievement of sections 5(a)(i) and (ii) of the Environmental Planning and Assessment Act 1979. 64. The applicant's expert calculated in some cases and estimated in others that many of the dwellings in Dock Road and Rowntree Street were just above or below a floor space ratio of 1 to 1 as is the proposal. The respondent pointed out that the dwellings from No.s 1 to 13 Dock Road on the east side of the street were on small lots of about 200 sq m. Others were on larger lots and probably did not reach a floor space ratio of 1 to 1. Nevertheless Dock Road was host to substantial dwellings, often referred to as "grand terraces", many exceeding in visual bulk and visual impact the appearance of the proposal. 65. The computer generated perspectives in Exhibit L and the streetscape photos in Exhibit J demonstrated this and were verified during the view. The Court has concluded the objective of the floor space ratio standard is met, and does ensure the density and landscaped areas of the new house is complementary to and compatible with the style, orientation and pattern of surrounding buildings, works and landscaping. It will achieve in the context of Dock Road and Rowntree Street, the applicable parts of the desired future character statement of the Leichhardt Development Control Plan and does not hinder section 5(a)(i) and (ii) of the Act. 66. As a result it is unnecessary to comply with the floor space ratio standard in this case and the State Environmental Planning Policy No. 1 objection is upheld. 67. Given the evidence on the other issues there was nothing sufficient to justify refusal subject to appropriate conditions being imposed. In the draft conditions, condition 1(c) is deleted but the other deferred commencement conditions remain as it involves details that are important to the final appearance of the proposal and should be subject to council's satisfaction. 68. In view of Mr Janks' agreed amendment to the jerkin head roof to the Rowntree Street end of the study, as shown in red on Exhibit S, amended plans for that should also be subject to deferred commencement. Condition 2 will therefore need adjustment. The landscaped plan in Exhibit D requires amendment to substitute lawn vegetation for the locations in the Rowntree Street rear yard currently shown as planted in spider lily, variegated jasmine, liriopea, buxus sempervivums and an unnamed border planting shown as 12BJ. This could be achieved by adding the applicant's conditions in Exhibit R to condition 19. The other conditions in Exhibit 6 were not disputed. 69. Therefore the orders of the Court are: 1. The appeal is upheld. 2. Deferred development consent is granted to demolish the existing house at No. 9 Dock Road, Birchgrove, and to erect a new free standing house as shown in Job No. 99.04 Drawing Nos. DA01A, DA02A, DA03B as amended in red in Exhibit S of this appeal and drawn by Peter Janks Architect and landscape plans project No. 2303 bray Drawing Nos. L01B and L02B by Nicholas Bray Landscapes all as further amended by and in accordance with the conditions in Annexure "A" hereto. 3. The exhibits are returned to the parties except Exhibits C, D, J, L, R, S, 4 and 6. _______________________ K G Hoffman Commissioner of the Court ljr DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.