Morrison Design Partnership Pty Ltd v North Sydney Council

[2007] NSWLEC 802

Reported Decision: (2008) 159 LGERA 361

Land and Environment Court

of New South Wales

CITATION:

Morrison Design Partnership Pty Limited v North Sydney Council and Director-General of the Department of Planning [2007] NSWLEC 802

PARTIES:

APPLICANT
Morrison Design Partnership Pty Limited

FIRST RESPONDENT
North Sydney Council

SECOND RESPONDENT
Director-General of the Department of Planning

FILE NUMBER(S):

11016 of 2007

CORAM:

Preston CJ

KEY ISSUES:

Practice and Procedure :- joinder of party - neighbour seeking to be joined to development appeal - statutory power to order joinder under s 39A of Land and Environment Court Act 1979 - grounds discussed

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979 s 97, s 98
Land and Environment Court Act 1979 s 34, s 38, s 39A, s 69
Land and Environment Court Rules 1996 Pt 16 r 4(2)

CASES CITED:

Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313;
Port Stephens Council v Sansom [2007] NSWCA 299

DATES OF HEARING:

29 November 2007

EX TEMPORE JUDGMENT DATE:

29 November 2007

LEGAL REPRESENTATIVES:

APPLICANT ON NOTICE OF MOTION (INTERVENER)
Mr M Staunton (barrister)
SOLICITORS
Wilshire Webb Staunton Beattie

APPLICANT
Mr N Hemmings QC
SOLICITORS
Allens Arthur Robinson

FIRST RESPONDENT
Mr A Pannuccio

SECOND RESPONDENT
Ms L McAndrew
SOLICITORS
Department of Planning

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PRESTON CJ

29 NOVEMBER 2007

11016 OF 2007

MORRISON DESIGN PARTNERSHIP PTY LIMITED V NORTH SYDNEY COUNCIL and ANOR

JUDGMENT

HIS HONOUR:

A neighbour applies to be joined as party to a development appeal

1 The proprietors of Owners Corporation of Strata Plan 46768 own a residential unit complex at Hayes Street, Neutral Bay. The unit complex adjoins to the south land at 7-11 Manns Avenue, Neutral Bay on which there is currently erected buildings used as a boarding house.

2 Morrison Design Partnership Pty Ltd lodged a development application on 20 September 2006 for a change of use from boarding house to residential aged care facility comprising 61 bedrooms, renovation and repair to existing buildings, erection of new infill building, partial demolition of buildings and excavation for basement car parking.

3 Because the development application proposes the change of use of the boarding house to residential aged care facility, North Sydney Council was only able to grant consent with the prior concurrence of the Director-General of the Department of Planning: see cl 7(3) of the State Environmental Planning Policy 10 - Retention of Low Cost Rental Accommodation.

4 The development application was publicly exhibited and submissions were received from the relevant precinct committee, the proprietors of the Owners Corporation and other residents of the neighbourhood. The development application and submissions received were considered by the Council on numerous occasions over the course of the following year. The development application and plans were amended to deal with the concerns of the Council and the persons who objected, including those of the Owners Corporation.

5 Ultimately, the Council became satisfied that all of the issues that had been raised by it and by objectors had been adequately addressed and the development application, as amended, was appropriate to be approved on conditions. The Council sought the concurrence of the Director-General under cl 7(3) of State Environmental Planning Policy No 10. However, the Director-General advised, by a letter dated 25 September 2007, that concurrence under State Environmental Planning Policy No 10 was refused. Accordingly, the Council at its meeting on 15 October 2007 was obliged to refuse development consent.

6 The sole reason the Council gave for its refusal was:

“The Director-General of the Department of Planning has refused concurrence and as such, development consent cannot be granted pursuant to cl 7(3) of State Environmental Planning Policy No 10 - Retention of Low Cost Rental Accommodation.”

7 Morrison Design Partnership had, on 9 October 2007, lodged an appeal under s 97 of the Environmental Planning and Assessment Act 1979 to the Court against the Council’s then deemed refusal of its development application. This became, in effect, an appeal against the Council’s actual refusal after the Council so determined on 15 October 2007.

8 The Director-General was joined as a second respondent to the appeal. On the return of the matter before the Court, Morrison Design Partnership, the Council and the Director-General sought, and the Registrar agreed to make, an order arranging a conciliation conference under s 34 of the Land and Environment Court Act 1979. Such conferences are presided over by a Commissioner of the Court. The conciliation conference has been arranged for 19 December 2007.

9 The Owners Corporation, by notice of motion dated 23 November 2007, seeks an order pursuant to s 39A of the Land and Environment Court Act to be joined as a party to these proceedings as a third respondent. This motion came before me today for hearing.

The evidence of the neighbour

10 The Owners Corporation relied on the affidavit evidence of Mr David Pugh, the chairman of the executive committee of the Owners Corporation and the joint owner and occupier of unit 8 in the residential unit complex. Mr Pugh notes that vehicular access to and from the underground car park of the residential unit complex is via a strip of land which is owned by the Owners Corporation and connects the complex with Ben Boyd Road. This strip of land is burdened by a right of carriageway and footway. Properties benefiting from the right of way include the properties at 7-11 Manns Avenue, namely the proposed development site.

11 Mr Pugh notes that the proposed development by Morrison Design Partnership does not comply with certain development standards under the applicable environmental planning instrument, North Sydney Local Environmental Plan 2001, in respect of height, landscaped area and number of storeys.

12 Mr Pugh expresses the opinion that the proposed development would have “major impacts” on the residential unit complex generally and on his unit 8 in particular. These impacts are stated by Mr Pugh to be:

“(a) no definitive traffic construction plan has been considered by Council which is likely to lead to unacceptable levels of construction vehicles in the driveway (estimated up to 960 vehicle movements for excavation alone) and this critically important issue has been left as a deferred commencement condition;
(b) increased use of the driveway both pre-and post-construction;
(c) the bulk and scale of the south-west elevation on the three units of the unit complex fronting that elevation;
(d) overshadowing and loss of privacy, particularly to units 7, 8 and 9 of the unit complex;
(e) overshadowing of the primary north facing landscaped terraces of units 7, 8 and 9 of the unit complex;
(f) increased noise impacts on the adjoining units in the unit complex from:
• increased traffic from the proposed residential aged care facility;
• increased service deliveries;
• air conditioning units;
• the proposed turntable.”

13 Mr Pugh expresses concern, having regard to communications between the Council, himself and representatives of the Owners Corporation, the Council officer’s reports assessing the development application and the resolutions of the Council, that the Council and the Director-General will not defend the appeal brought by Morrison Design Partnership on any of the issues of concern to Mr Pugh or the Owners Corporation that I have outlined above.

14 Mr Pugh notes that the Owners Corporation have engaged a number of independent experts to advise on these issues. These experts include a traffic consultant, Mr Rudd of Masson Wilson Twiney, and an overshadowing expert, Mr Mills of J M Computer Modelling. Each of those experts have prepared expert reports. The expert reports have previously been submitted to the Council and were considered by the Council.

15 Mr Pugh expresses his belief that the Owners Corporation is able to raise relevant issues that should be considered in the appeal and that are not likely to be raised at all or sufficiently addressed by the Council or the Director-General unless the Owners Corporation is joined as a party. Mr Pugh also expresses his belief that because of the large number of other users of the driveway, the issue of traffic management and intensification of use of the driveway, are important considerations of wider public interest.

The evidence of the applicant for development consent

16 Morrison Design Partnership oppose the joinder of the Owners Corporation as a party to the proceedings. The Council and the Director-General neither consent to nor oppose the joinder of the Owners Corporation as a party.

17 Morrison Design Partnership relied on affidavit of Mr John Wynne, a director of the consultant town planning firm, Urbis. Mr Wynne, both in his affidavit and by reference to the exhibited documents from the Council’s file, sets out the history of the Council’s consideration of the development application.

18 Mr Wynne was retained by Morrison Design Partnership in about March 2006 to prepare a statement of environmental effects to accompany the development application. Mr Wynne noted that Morrison Design Partnership held pre-lodgement meetings with the Council to discuss the proposed development on 2 March, 29 July and 2 August 2006.

19 Mr Wynne noted that Morrison Design Partnership undertook community consultation with surrounding residents and the local precinct committee. This included representatives of Morrison Design Partnership meeting with owners of the adjoining properties including the proprietors of the Owners Corporation at 2 Hayes Street, including Mr Pugh, as well as with the Hayes Street Precinct Committee.

20 Mr Wynne noted at the time he lodged the development application for the proposed development, Morrison Design Partnership had received five letters of support from surrounding residents and a letter of support from the precinct committee.

21 Mr Wynne noted that the development application was referred by the Council to the Department of Planning on 21 September 2006 because of that Department’s role under State Environmental Planning Policy No 10.

22 Mr Wynne noted that the Council’s assessment officer sent letters to Morrison Design Partnership on 16 and 26 October 2006 raising issues regarding drainage and access. Morrison Design Partnership responded to those issues by letters dated 19 and 30 October 2006. Mr Wynne noted that thirteen submissions were received from individual residents of 2 Hayes Street raising a number of issues. Those issues included the issues that the Owners Corporation now seek to agitate if joined as a party to these proceedings.

23 The issues raised by the residents of 2 Hayes Street were set out and considered in the report of the Council’s Executive Assessment Planner who reported to the Council meeting on 26 February 2007.

24 Mr Wynne noted that further submissions were received by the Council from experts retained by the Owners Corporation. These expert submissions were from Moody & Doyle, town planners and Masson Wilson Twiney, traffic and transport consultants. One of the submissions from Masson Wilson Twiney was a letter dated 31 October 2006, which is the report to which Mr Pugh referred in his affidavit and which the Owners Corporation seeks to rely upon if leave is granted to it to be joined as a party to the proceedings.

25 A further submission was received by the Council from the Owners Corporation on 24 January 2007.

26 One of the issues that the Owners Corporation raised was in relation to the right of carriageway. This was raised both as a matter of law (the right of the dominant owner to use the right of way for construction traffic) and as a matter of fact concerning the traffic implications. As to the former, Morrison Design Partnership provided a legal opinion to the Council addressing that issue. As to the latter, the traffic expert engaged by Morrison Design Partnership, Transport and Traffic Planning Associates, responded to the Masson Wilson Twiney report. Both letters were provided to the Council.

27 As I have noted, the Council’s Executive Assessment Planner reported to the Council meeting on 26 February 2007. That report addressed each of the issues raised by the objectors, including the Owners Corporation. The Council officer recommended approval be granted to the development application, on the basis that the Council delegate to the General Manager, in the event that concurrence was received from Director-General of the Department of Planning, authority to grant consent to the proposed development.

28 However, the Council at its meeting on 26 February 2007 resolved that the matter should be deferred to allow inspection of the site by the Council.

29 The Council undertook an inspection on 3 March 2007. Representatives of the Owners Corporation were in attendance at the Council site inspection on that day.

30 Mr Wynne notes that on 16 March 2007 he lodged with the Council amended plans for the proposed development. The amended plans incorporated changes to address the issues that had been raised by the Owners Corporation, including a further 500 millimetre setback of the external at first floor level, further setback of between 2.4 metres and five metres of external wall at second floor level, and alterations to the internal layout. Revised shadow diagrams were lodged with the Council on 21 March 2007 and a copy provided to the Owners Corporation.

31 Mr Wynne notes that an in-house Council meeting was held on 27 March 2007. Representatives of Urbis and Morrison Design Partnership attended the meeting along with representatives of the Owners Corporation. A range of issues were discussed at this in-house Council meeting including overshadowing and legal access to the site and the use of the right of way during and after construction. Both of these issues were issues that had been raised by the Owners Corporation.

32 Mr Wynne states that on 29 March 2007 Morrison Design Partnership met with Council officers to discuss further the matters that had been raised at the in-house meeting. On 11 April 2007, Morrison Design Partnership provided a draft construction management plan and amended shadow diagrams that had been requested by the Council.

33 Mr Wynne notes that the amended development application was referred to a full Council meeting on 23 April 2007. The Council’s Executive Assessment Planner provided another comprehensive report to the Council. The report assessed the amended plans that had been lodged with the Council as well as issues that had been raised by the Owners Corporation, including that of access and overshadowing. Mr Wynne notes that the Owners Corporation’s consultant town planner, Mr Moody, made a presentation to the Council on behalf of the Owners Corporation, raising a range of planning issues, including compliance with planning controls, impacts on neighbouring properties, overshadowing, traffic and access issues.

34 Mr Wynne notes that by the time of the second Council meeting on 23 April 2007, both Morrison Design Partnership and the Owners Corporation had provided a significant amount of additional information to the Council, including on traffic, overshadowing, heritage and planning assessment. Morrison Design Partnership had amended the development application in response to the issues that had been raised by the Council and by the Owners Corporation.

35 At the meeting of 23 April 2007, the Council resolved to grant delegation to the General Manager to approve the development application, subject to concurrence being received from the Director-General of the Department of Planning, and if concurrence was not received, the application be referred back to the Council for determination.

36 On 21 September 2007, the Director-General of the Department of Planning refused to grant concurrence under State Environmental Planning Policy No 10. Notification of that refusal was received by the Council by letter dated 25 September 2007.

37 Mr Wynne notes the development application was then referred back to the full Council on 15 October 2007. The Council’s Executive Assessment Planner wrote a third report to the Council. That report recounted the history of the matter and recommended that the Council refuse development consent for the reason that the Director-General of the Department of Planning had refused concurrence under State Environment Planning Policy No 10. The Council adopted that recommendation and resolved to refuse development consent for that sole reason.

The submissions of the neighbour

38 The Owners Corporation submits that the Court should order the joinder of the Owners Corporation as a party to the appeal because:

(a) The Owners Corporation is able to raise issues (being the ones Mr Pugh raised set out earlier) that should be considered in relation to the appeal but would not likely be sufficiently addressed if the Owners Corporation were not to be joined as a party (see s 39A(a) of the Land and Environment Court Act ); and

(b) It is in the interest of justice that the Owners Corporation be joined because of the forthcoming s 34 conciliation conference where the Owners Corporation should be able to participate on an equal footing as a party and with the rights that come from being a party (including declining to reach agreement as to the terms of a decision in the proceedings under s 34(3)(a) of the Land and Environment Court Act ) (s 39A(b)(i) of the Land and Environment Court Act ).

The submissions of the applicant for development consent

39 Morrison Design Partnership submits that:

(a) The issues sought to be raised by the Owners Corporation are not issues that “should” be raised because they have previously been raised by the Owners Corporation, have been considered by the Council properly and thoroughly on numerous occasions, have been addressed by Morrison Design Partnership making amendments to the plans and have been resolved to the satisfaction of the Council;

(b) It is not in the interest of justice that the Owners Corporation be joined as a party as the Owners Corporation has had numerous and meaningful opportunities to be heard on all of the issues it now wishes to raise in the proceedings. The Owners Corporation, the individual proprietors of the residential unit complex, and their experts (including the ones the Owners Corporation now wishes to rely on in the proceedings) have made numerous submissions to the Council, have attended Council meetings, have attended site inspections and have discussed the development application and their objections with Council’s planning officers. The Council has properly and thoroughly considered all of these submissions and representations. Furthermore, the local precinct committee and other members of the public have also been afforded a full opportunity to be heard and have made submissions to the Council, all of which submissions have been considered properly and thoroughly by the Council;

(c) It is premature to join the Owners Corporation before the s 34 conciliation conference has been held. Morrison Design Partnership, the Council and the Director-General should be given the opportunity to participate in the conciliation conference. As a result of the conciliation conference, the matter may be able to be resolved or Morrison Design Partnership may determine not to proceed to a hearing. Either way, there may be no hearing by the Court at which the Owners Corporation would need to be heard; and

(d) The Owners Corporation has been invited and may attend the s 34 conciliation conference and address each of the issues about which it has concern and which it wishes to agitate on the appeal.

The statutory power to order joinder

40 Section 39A of the Land and Environment Court Act provides:

“On an appeal under s 96 (6), 96AA (3), 96A (5), 97 or 98 of the Environmental Planning and Assessment Act 1979, the Court may, at any time, on the application of a person or of its own motion, order the joinder of a person as a party to the appeal if the Court is of the opinion:
(a) that the person is able to raise an issue that should be considered in relation to the appeal but would not be likely to be sufficiently addressed if the person were not joined as a party, or
(b) that:
(i) it is in the interests of justice, or
(ii) it is in the public interest,
that the person be joined as a party to the appeal.”

Joinder should not be ordered

41 In my opinion, the Owners Corporation should not be joined as a party to the proceedings at this stage, by reference to either limb (a) or (b) of s 39A.

Some introductory remarks

42 I note at the outset that s 39A is facultative in the sense of enabling the Court to join a person to proceedings under the Environmental Planning and Assessment Act of the types listed in s 39A of the Land and Environment Court Act who would not otherwise have a right to be a party to such proceedings. Under the Environmental Planning and Assessment Act, persons who object to development proposed in a development application or to a modification of a development consent, have no right to be joined as a party to proceedings unless the development is classified as designated development. Objectors to development applications for designated development do have a right of appeal under s 98(1) of the Environmental Planning and Assessment Act and have a right to be joined to an appeal in respect of such development by the applicant for development consent under s 97(4).

43 This is relevant to note because the legislature has drawn a distinction between the two types of development, designated and other development, and the rights of public participation, including the right to be a party to an appeal to the Court for the different types of development. This needs to be kept in mind when considering exercising the power under s 39A. The power under s 39A is not intended to be a plenary power to allow, in each and every circumstance, objectors to non-designated development to become a party to appeals under ss 96, 96AA, 96A and 97 by dissatisfied applicants for or holders of development consent. Rather, the circumstances in which the Court may order a person to be joined as a party to proceedings of the types listed in s 39A are limited to the circumstances set out in paragraphs (a) and (b) of s 39A. It is to those paragraphs, therefore, that I turn.

Issues can be sufficiently addressed without joinder

44 In relation to the first limb in paragraph (a), I am not satisfied that the issues proposed to be raised by the Owners Corporation (and set out above as raised by Mr Pugh) would not be likely to be sufficiently addressed if the Owners Corporation were not joined as a party to the proceedings. Each of these issues has been raised repeatedly before the Council, are discussed in the Council officer’s reports, and are addressed in the submissions of the Owners Corporation and in the reports of the experts engaged by the Owners Corporation (including the reports to which Mr Pugh referred).

45 These Council reports, submissions and expert reports are all contained in the Council documents. Such material would be provided to the Court on any appeal and would be considered by the Court in determining the appeal. The current parties, Morrison Design Partnership, North Sydney Council and the Director-General of Planning, have agreed to representatives of the Owners Corporation and its experts attending the forthcoming s 34 conciliation conference and addressing each of the issues about which the Owners Corporation is concerned and which it wishes to agitate on the appeal.

46 Accordingly, the issues will be addressed at the forthcoming s 34 conciliation conference. If the matter proceeds to a hearing, representatives of the Owners Corporation and their experts may also be called by the Council at that hearing. This would be so even if the hearing becomes a consent order hearing. It is the practice of the Court, as set out in the Practice Note Class 1 - Development Appeals, that on a consent order hearing, the consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. The consent authority is required to demonstrate that it has given reasonable notice to all persons who objected to the proposed development and advise them that will have an opportunity to be heard before the Court: see paragraph 36.

47 Each of these matters support a conclusion that the issues sought to be raised by the Owners Corporation are likely to be sufficiently addressed even if the Owners Corporation was not to be joined as a party.

Interests of justice do not require joinder

48 The second limb in paragraph (b) has two grounds: the interests of justice and the public interest.

49 In relation to the first ground, it is not necessary to join the Owners Corporation in the interests of justice. As Morrison Design Partnership submitted, the Owners Corporation has been given numerous and meaningful opportunities to be heard through the year long process of consultation and consideration by the Council. The Owners Corporation and individual proprietors, and the experts engaged by them, have had many opportunities to express, both in writing and orally, their concerns as to each and every one of the issues that the Owners Corporation now wishes to raise. There is no suggestion that they have not had adequate opportunity. Furthermore, as I have said, there will be further opportunity for the Owners Corporation to participate firstly in the forthcoming s 34 conciliation conference, and if a hearing is to occur, at that hearing.

50 To some extent, the application of the Owners Corporation misunderstands the purpose of public consultation and public participation. Meaningful community involvement can, of course, be beneficial in the development assessment process. It can provide members of the community with an understanding of what is happening in their area and how the proposed development may impact particularly on their interests; enable members of the community to participate by making submissions to the consent authority; inform the consent authority; and improve planning decisions.

51 Community consultation and public participation should not be viewed as being adversarial. The community and affected persons have no entitlement to be an adversary to the applicant for development consent in a contest as to whether or not development consent should be granted.

52 Community consultation and public participation under the Environmental Planning and Assessment Act are not intended to give the community or affected persons who object to development any entitlement to veto development. The planning scheme established by the Environmental Planning and Assessment Act vests in the relevant consent authority, and on an appeal this Court exercising the functions of the consent authority, the tasks of determining the matters of relevance to the development application; taking those matters into consideration as well as any submissions made in response to the consultation process; according weight to the matters as is considered appropriate; and reaching a merit determination.

53 A mere dissatisfaction with the merit outcome of a determination by a consent authority does not entitle a person who objected to be joined as a party so as to be able to continue arguing its particular submission.

54 The process of community consultation and public participation should also not be seen as an end in itself or as being more important than the ultimate merit outcome of a determination by a consent authority. The process of the community and affected persons being heard and making submissions is important, but there must be a limit to how long and detailed that process should be. Provided there is adequate opportunity for the community and affected persons to put forward issues, that concern them and those issues are addressed by the consent authority, and can be addressed by the Court on appeal, it is not necessary in the interests of justice to join a person who wishes to continue the process of objection on those issues to be a party to proceedings.

Public interest does not require joinder

55 In relation to the second ground in paragraph (b), it is not necessary to join the Owners Corporation having regard to the public interest. As I have said, each of the issues that the Owners Corporation wishes to raise have been adequately canvassed throughout the course of the Council’s consideration of the development application. The issues will continue to be addressed in the conciliation conference and at any hearing, by consideration of the Council documents that will inevitably be tendered and by the practice of the Court to which I have already referred.

56 In respect of other persons, the local precinct committee has been consulted and they have made submissions to the Council. Those submissions have been considered by the Council. They are recorded in the Council documents. Other members of the public have also been given an adequate opportunity to be heard. They have made submissions to the Council. Their submissions have been considered and are recorded in the Council documents. All of these views of other persons will be taken into account through the Council documents that will be put before the Court. There is no reason in the public interest why further persons need to be joined in order to re-canvass these issues.

57 This is not a case where the Court would be deprived of meaningful assistance if the Owners Corporation were not be joined. Sometimes, by reason of agreement being reached between an applicant for development consent and the consent authority, there may be no meaningful contradictor and important issues that the Court needs to consider in order to give a proper and lawful decision, will not be available to the Court.

58 It was this desire to obtain meaningful assistance that led to the Court allowing persons to be heard on an appeal under s 38(2) of the Land and Environment Court Act in what came to be known as a Double Bay Marina order after the name of the case in which such an order was first made: Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313. Subsequently, the Land and Environment Court Act was amended to include s 39A which expressly allows the joinder of parties.

59 One of the purposes of s 39A, particularly reflected in paragraph (a), is to allow the joinder of a person as a party to enable issues to be sufficiently addressed and hence to inform the Court so that it can give proper consideration to the issues.

60 I do not consider in this case that the Court, if the matter does proceed to a hearing, would not be able to obtain meaningful assistance as to the issues arising in this case, including the issues which the Owners Corporation has raised and which are evident in the material that would be before the Court.

Conclusion

61 For all of these reasons, I conclude that this is not a proper case to order the joinder of the Owners Corporation as a party to the proceedings. Accordingly, I dismiss the notice of motion of the Owners Corporation.

Costs

62 Morrison Design Partnership, having been successful in opposing the application of the Owners Corporation to be joined as a party to the proceedings, seeks an order that the Owners Corporation pay Morrison Design Partnership’s costs of the notice of motion.

63 The notice of motion is brought within the proceedings which is an appeal under s 97 of the Environmental Planning and Assessment Act in Class 1 of the Court’s jurisdiction. Although the Court has a discretion under s 69(2) of the Land and Environment Court Act in relation to costs, such discretion is regulated by the Rules. For proceedings of the type involved in this case, the relevant rule is Pt 16 r 4(2) of the Land and Environment Court Rules 1996. That rule provides that no order for the payment of costs will be made in proceedings to which the rule applies unless the Court considers that the making of a cost order is, in the circumstances of the particular case, fair and reasonable.

64 The structure of the rule is that the Court starts from the position that no order for the payment of costs will be made unless the Court forms the opinion of satisfaction that, in the circumstances of the particular case, it would be fair and reasonable to make a cost order. As to what constitutes fair and reasonable, see the Court of Appeal’s recent decision in Port Stephens Council v Sansom [2007] NSWCA 299.

65 In the circumstances of this case, I do not consider that it is fair and reasonable to make an order for costs. The motion by the Owners Corporation, although I have determined should not be upheld, nevertheless was not without merit. There were reasons which the Owners Corporation put forward justifying its joinder as a party.

66 The forthcoming s 34 conciliation conference was a catalyst for the Owners Corporation to make the application. If the Owners Corporation were to be joined as a party, it was understandable that it would want to be joined prior to the s 34 conciliation conference so that it could exercise the rights that a party would have in that s 34 conciliation conference. I do not consider that there is any conduct of the Owners Corporation which would make it fair and reasonable that there be a cost order against it.

67 Accordingly, having regard to the fact that the application itself was reasonable and there was no unreasonable conduct by the Owners Corporation, I do not consider that there are circumstances which would make it fair and reasonable to order the Owners Corporation to pay Morrison Design Partnership’s costs.

Orders

68 Accordingly, I make the following orders:

1. The notice of motion of Owners Corporation of SP 46768 dated 23 November 2007 is dismissed.

2. There be no order as to costs of that motion.

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