Land and Environment Court New South Wales Medium Neutral Citation: Thomas v Randwick City Council (No 3) [2019] NSWLEC 161 Hearing dates: 4 September 2019 Date of orders: 29 October 2019 Decision date: 29 October 2019 Jurisdiction: Class 1 Before: Moore J Decision: (1) The Notice of Motion is dismissed; and (2) The Second Respondent is to pay the costs as agreed or assessed of the Applicants and of the First Respondent of the costs motion. Catchwords: JOINDER - Notice of Motion seeking setting aside of costs order made concerning costs thrown away as a result of ex parte application requiring vacation of conciliation conference process - no basis to disturb costs order for costs thrown away made against moving party seeking joinder - application for joinder successful - applicant for joinder seeks costs of hearing at which joinder was granted - basis for consideration of costs application - application for costs to be determined on the basis of application of Land and Environment Court Rules 2007 requiring that it be "fair and reasonable" to make costs order in favour of successful party - not fair and reasonable to make costs order in favour of successful applicant for joinder - costs application dismissed COSTS - costs of Notice of Motion seeking costs orders - costs' proceedings not subject to "fair and reasonable" test in Land and Environment Court Rules 2007 - costs of costs applications usually dealt with on the basis that costs follow the event - no basis to depart from that position in these proceedings - applicant for joinder ordered to pay costs as agreed or assessed of the Applicant and of the First Respondent of the costs Notice of Motion Legislation Cited: Environmental Planning and Assessment Act 1979, s 8.15(2) Land and Environment Court Act 1979, s 34AA Land and Environment Court Rules 2007, r 3.7 Uniform Civil Procedure Rules 2005, r 6.24(1) Cases Cited: Anglican Retirement Villages, Diocese Of Sydney v Wollongong City Council [2013] NSWLEC 5 Direct Factory Outlets Homebush Pty Limited v Strathfield Municipal Council [2006] NSWLEC 185 Grant v Kiama Municipal Council [2006] NSWLEC 70 Grosvenor Australia Properties Pty Limited v Sydney City Council [2006] NSWLEC 267 Kavia Holdings Pty Limited v Sydney City Council (2003) 127 LGERA 293; [2003] NSWLEC 195 Mahogany Ridge Developments Pty Ltd v Port Stephens Council [2004] NSWLEC 555 Meriton Apartments Pty Limited v Fairfield City Council & Anor [No 2] [2005] NSWLEC 121 Mirvac Projects Pty Limited v Ku-ring-gai Council (2007) 151 LGERA 394; [2007] NSWLEC 113 Morrison Design Partnership Pty Limited v North Sydney Council and Director-General of the Department of Planning (2008) 159 LGERA 361; [2007] NSWLEC 802 Positive Change for Marine Life Inc v Byron Shire Council [2015] NSWLEC 147 Pro-Vision Developments Pty Limited v Ku-Ring-Gai Municipal Council [2003] NSWLEC 226 Thomas v Randwick City Council [2019] NSWLEC 124 Thomas v Randwick City Council [2019] NSWLEC 1411 Vella v Penrith City Council [2019] NSWLEC 62 Verde Terra Pty Ltd v Environment Protection Authority (No 3) [2018] NSWLEC 161 Walcha Council and Ors v Minister for Local Government and Ors [2016] NSWLEC 57 Category: Costs Parties: Shannon Thomas (First Applicant) Vivian Thomas (Second Applicant) Randwick City Council (First Respondent) Gillian Bryce (Second Respondent) Representation: Counsel: Mr A Galasso SC (Applicants) Mr J Ede, solicitor (First Respondent) Mr M Wright SC (Second Respondent) Solicitors: Mills Oakley (Applicants) Wilshire Webb Staunton Beattie (First Respondent) Dive Lawyers (Second Respondent) File Number(s): 385469 of 2018 Publication restriction: No TABLE OF CONTENTS Introduction The Joinder Applicant's costs Notice of Motion The costs hearing The evidence on the Notice of Motion The application to set aside the earlier costs order The costs' claim for the joinder hearing Costs of the costs application Orders JUDGMENT Introduction 1. On 6 December 2017, Shannon and Vivian Thomas (the Development Applicants) applied to Randwick City Council (the Council) for development consent for additions and alterations to their existing residence in Maroubra. 2. During the course of the assessment process of this development application, Professor Gillian Bryce (the Joinder Applicant) raised concerns with the Council about the impact of elements of the proposed development which she submitted would result in unacceptable view loss from various locations on her property. On 14 June 2018, the Council's Development Assessment Panel refused the development application and, as a result, on 14 December 2018, the Development Applicants commenced Class 1 proceedings in this Court, appealing against that refusal of the development application. 3. The proceedings were assigned to the residential development appeal stream of Class 1 proceedings and the Registrar set the matter down for a conciliation conference to be conducted pursuant to s 34AA of the Land and Environment Court Act 1979 (the Court Act). 4. The conciliation phase of the s 34AA process was scheduled to commence on site at 9.30 am on Tuesday 13 August 2019. As is customary with such matters (where the Commissioner will proceed to hear and determine the matter if an agreed outcome is not reached during the conciliation phase of the s 34AA process), the matter had also been set down to continue the following day, so that time was available for conducting a hearing that became necessary. 5. At 9.00 am, very shortly prior to the scheduled commencement time of the conciliation conference, Mr Wright SC, counsel for the Joinder Applicant, appeared before me, as the Duty Judge, to make an urgent application to halt the process that was shortly due to commence and to seek that the Joinder Applicant be made a party to the proceedings as the Second Respondent. That application for joinder purported to be made pursuant to r 6.24(1) of the Uniform Civil Procedure Rules 2005 (the UCPR). 6. Self-evidently at this time, the presiding Commissioner, O'Neill C, the legal representatives, the expert town planners for the Development Applicants and the Council were in the process of gathering at the site for the purpose of the conciliation conference. I was advised that the Joinder Applicant's solicitor would also be present. 7. I then proceeded to hear Mr Wright's application. Having done so, I made the following orders: (1) Vacate s 34AA conciliation conference of 13 August 2019. (2) Conciliation conference date of 14 August 2019 retained. (3) Adjourn Intervener Notice of Motion till 2.00 pm on 13 August 2019. (4) Applicant on the Motion (Gillian Bryce) to pay the costs of the Applicants (Shannon Thomas and Vivian Thomas) and the Respondent (Randwick City Council) thrown away of the s 34AA conciliation conference on 13 August 2019 on the ordinary basis, unless the Applicants or Respondent seek a different costs order at 2.00 pm on 13 August 2019. 1. The matter returned before me at 2.00 pm that day. No alternative costs order was applied for by either the Development Applicants or the Council pursuant to order (4) above. The application that the Joinder Applicant be made a party to the proceedings was opposed by the Development Applicants, with the Council taking a neutral position. At that hearing, the Development Applicants were represented by Mr White of counsel and the Council was represented by its solicitor, Mr Patterson. 2. After a short hearing, I gave an extempore judgment (Thomas v Randwick City Council [2019] NSWLEC 124) (my joinder judgment). I concluded that the Joinder Applicant should be made a party to the proceedings as the Second Respondent. I made the following orders: (1) Leave is granted to amend the Notice of Motion to add the words "or s 8.15(2) of the EP&A Act" after the term "UCPR 6.24(1)" in proposed order (1). (2) Application that Gillian Bryce be joined as Second Respondent pursuant to r 6.24(1) of the UCPR is refused. (3) Gillian Bryce is joined as Second Respondent in the proceedings pursuant to s 8.15(2)(a) of the EP&A Act. (4) Section 34AA conciliation conference date of 14 August 2019 retained. (5) Starting time of 9.30 am onsite on 14 August 2019 is vacated, 9.00 am start time is substituted. (6) The s 34AA conciliation conference is set down for further date of 15 August 2019, starting at 10.00 am in court. 1. The Joinder Applicant was made a party to the proceedings pursuant to s 8.15(2) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) rather than on the basis upon which joinder had been sought. I did this, as explained in my joinder judgment, because s 8.15(2) of the EP&A Act (having subsumed what had been s 39A of the Court Act from 1 March 2018) had ousted the applicability of the provision in the UCPR upon which the joinder application had purportedly been founded (see my joinder judgment at [3]). 2. The following morning (Wednesday 14 August 2019 - what had been scheduled as the reserve day for the s 34AA process), O'Neill C conducted the conciliation conference process at the site and, with the Joinder Applicant now participating as a party to the proceedings (as the Second Respondent), agreement was able to be reached resolving the outstanding issues. 3. The Commissioner subsequently made orders to give effect to that agreement and published a judgment explaining why she was satisfied that the agreement was one to which she could lawfully give effect as required by s 34(3) of the Court Act (Thomas v Randwick City Council [2019] NSWLEC 1411). The Joinder Applicant's costs Notice of Motion 1. On 26 August 2019, a Notice of Motion was filed for the Joinder Applicant. This Notice of Motion sought to revisit my costs' determination concerning costs thrown away by the Development Applicants and the Council arising from my vacating of the first day for which the s 34AA conciliation conference process had been set down and seeking that the Development Applicants pay the Joinder Applicant's costs of the joinder proceedings. The terms of the orders sought in the Notice of Motion were as follows: (1) Pursuant to UCPR 36.16, the costs order is made by Moore J on 13 August 2019 on vacation of the hearing at 9.30 am be set aside. (2) The Applicants pay the Second Respondent's costs of the Notice of Motion filed 13 August 2019. (3) The Applicants pay the Second Respondent's costs of this Notice of Motion. 1. There is no dispute that, as noted in proposed order (1) sought by the Notice of Motion, the application to revisit my costs order made on 13 August 2019, was within time. The costs hearing 1. I heard the Joinder Applicant's Notice of Motion on 4 September 2019. Mr Wright again represented the Joinder Applicant. On this occasion, Mr Galasso represented the Development Applicants and Mr Ede, solicitor, represented the Council. 2. Mr Wright made submissions in support of the orders sought. 3. The position advanced by Mr Galasso was that the Notice of Motion should be dismissed and that his clients should have their costs of the costs Notice of Motion. Mr Ede did not make submissions on proposed order (2) sought by the Notice of Motion but did oppose the making of order (1) seeking to set aside my costs' determination concerning costs thrown away on 13 August 2019. In this regard, he adopted the submissions made by Mr Galasso on this point. The evidence on the Notice of Motion 1. Affidavit evidence was read on the costs Notice of Motion from the Joinder Applicant herself and from Mr Dive, her solicitor, in support of the Notice of Motion and from Mr Salon, solicitor employed by the legal representatives of the Development Applicants. Irrelevant elements of the affidavits of Mr Dive and Mr Salon were excluded. It will be necessary, later, to refer to elements of the correspondence and e-mail exchanges that were annexed to Mr Salon's affidavit. 2. Neither deponent was required for cross-examination. The application to set aside the earlier costs order 1. This aspect of the Joinder Applicant's Notice of Motion can be dealt with in comparatively short compass. There had been a lengthy series of exchanges of letters and e-mails between the legal representatives of all three of what are now the parties to the substantive proceedings. 2. Although there had been a deal of to-ing and fro-ing about the timing and extent of access to the Joinder Applicant's property for inspection by the town planning experts for the Development Applicants and the Council, I do not here need to address those matters in detail. 3. Similarly, although the Joinder Applicant now relies on the fact that the Joint Town Planning Report of the Development Applicants and the Council's consultant town planners was not available to her legal representatives until Monday 12 August 2019, I am also satisfied that, despite the heavy reliance on this fact as justification for the lateness of the joinder application being made and the necessity for the vacating of the first day of the s 34AA process, this, too, is a distraction from the fundamental basis why it is not appropriate to set aside the costs order made in favour of the Development Applicants and the Council on 13 August 2019. 4. The material appended to Mr Salon's affidavit included correspondence from Mr Dive, the Joinder Applicant's solicitor, making it clear that the Joinder Applicant intended to seek to be joined as the Second Respondent to the proceedings prior to the receipt of the Joint Town Planning Expert Report (Salon affidavit at folios 160 and 161). 5. By e-mail of 9 August 2019 at 10.20 am, Mr Dive advised Mr Salon as follows concerning the issue of joinder: Given the position stated in your letter, and the arguments you proposed making at the hearing on 13 August 2019, we seek your urgent consent to our client being joined as a party to these proceedings. Counsel is now briefed. The only thing we require is the joint expert report. To ensure there is no delay, please provide your consent to Randwick City Council providing us with a copy of the joint report. We look forward to your response by 1.00 pm today. 1. Mr Salon replied, at 2.58 pm, relevantly, in the following terms: In any event, our clients do not consent to your client being joined to the proceedings. We note that you have not even provided us with a reason for such joinder, therefore we have no basis on which to understand or agree to your request. We also note that you do not have the joint report and therefore, your application must be based on some other occurrence. 1. As was made clear by Mr Dive, counsel had already been retained for this purpose. 2. Whilst the joint expert report may have provided additional strength to the Joinder Applicant's case to be made the Second Respondent, it was not a critical element of the Joinder Applicant's case to be joined. 3. As can be seen from the joinder judgment, the Council's final position on the view issue remaining in contest had not been finally determined at the time of the intervention on the morning of 13 August 2019. 4. It is clear that the Joinder Applicant had determined to seek to become the Second Respondent to the proceedings prior to the provision of the joint expert report and that there was no reason why the application for joinder could not have been made on the Friday afternoon or, at the latest, on the Monday, rather than in the fashion which actually occurred, one necessitating the disruption of the process for which the Commissioner and the legal representatives of the Development Applicants and the Council had assembled at the site (as had been listed by the Registrar and in circumstances where the Joinder Applicant had been fully aware of that timing). 5. It is crystal clear that the Joinder Applicant had decided to seek joinder before Friday 9 August 2019 but did not approach the Court to seek this until a matter of moments prior to the commencement of the s 34AA process - no explanation (let alone a satisfactory one) is offered for this. 6. As a consequence, I am satisfied on the basis of this delay that it would be inappropriate to set aside the costs order I made on 13 August 2019. 7. It is to be noted that the joint planning report, at [8], says: The experts were not granted access by the owner to any part of the dwelling, other than the lowest level, however, have gained an understanding of the layout of the dwelling by review of the development consent for that dwelling. JM did make requests each time to inspect the remainder of the dwelling. 1. Had the delay discussed above not provided sufficient basis for maintaining the costs order concerning cancellation of the conciliation conference, although it has not been necessary to explore issues relating to the timing and extent of access to the Joinder Applicant's property for the town planning experts of the Development Applicants and the Council, those issues fortify me in the conclusion that I have reached concerning the maintaining of my costs order of 13 August 2019. The costs' claim for the joinder hearing 1. The second element of the Notice of Motion brought by the Joinder Applicant is that the Development Applicants pay her costs of the joinder motion. This claim is also to be dismissed. 2. In Morrison Design Partnership Pty Limited v North Sydney Council and Director-General of the Department of Planning (2008) 159 LGERA 361; [2007] NSWLEC 802, Preston CJ discussed the general position applicable to consideration of costs applications made in circumstances where a party has unsuccessfully sought joinder to a Class 1 merit appeal. Although not of direct application in these circumstances, as joinder was granted in this instance, the broad principles, nonetheless, remain relevant. His Honour said, at [62] to [67]: 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. 1. Although, in this instance, the Joinder Applicant was successful, it cannot be said that the resistance by the Development Applicants to joinder being granted was so without merit to fail the raised bar that it would be "fair and reasonable" to award the Joinder Applicant her costs of the joinder application. 2. I have earlier described the timing issues associated with the making of the ex parte application and the fact that joinder was sought "at the death", as it were. Indeed, although the matter was resolved to the satisfaction of the Development Applicants, the Council and the Joinder Applicant at the conciliation conference, such an outcome may well have been able to be achieved earlier had the Joinder Applicant been more cooperative in the arrangements for inspection of her property by the town planners retained by the Development Applicants and the Council for the purposes of these proceedings. 3. There is, as I note with respect to the overall process, nothing out of the ordinary in the circumstances here arising. 4. The starting point is that, pursuant to r 3.7(2) of the Land and Environment Court Rules 2007 (the Court Rules), costs are only to be awarded in substantive elements of Class 1 proceedings (relevantly) when it is "fair and reasonable" to do so. 5. In these substantive proceedings, O'Neill C conducted a conciliation conference on 14 August 2019 pursuant to the orders that I had made on the afternoon before when I had made the Joinder Applicant a party to the proceedings. That conciliation process resolved the issues in contention. 6. As the conciliation process is a confidential one, the nature of the process and the compromising which took place during its conduct is not and cannot be made known to me. It is sufficient, however, merely that I know that agreement was reached and that, by her decision published on 4 September 2019, O'Neill C gave effect to that agreement after she had concluded that she was lawfully able to do so. 7. The Court Rules (at r 3.7(3)) set out some matters that may give rise to the conclusion that it would be "fair and reasonable" to make a costs order in proceedings such as these. Similarly, in Grant v Kiama Municipal Council [2006] NSWLEC 70, Preston CJ discussed, in the context of an earlier statutory regime (but one where the same "fair and reasonable" test applied), a broadly similar range of circumstances. It is, however, clear that these expositions of potential circumstances giving rise to it being "fair and reasonable" for a costs award to be made are not exhaustive but are merely illustrative of the types of matters potentially engaged. There is nothing in these proceedings that could conceivably demonstrate any of those factors or any additional factor being engaged to warrant it being "fair and reasonable" that a costs order he made against the Development Applicants. 8. As a consequence, there is no basis why I should conclude that it would be "fair and reasonable" to require the Development Applicants to pay the Joinder Applicant's costs of the joinder application. 9. I also observe that I have looked at all of the Class 1 joinder decisions I have been able to find where joinder has been ordered. That analysis is set out below: 1. I have discovered one case where joinder was ordered with each party to bear their own costs. This case was Mirvac Projects Pty Limited v Ku-ring-gai Council (2007) 151 LGERA 394; [2007] NSWLEC 113 (Jagot J) 2. I have discovered eight cases where joinder was ordered with costs being reserved. There is, for each of these cases, no indication that there was any subsequent costs' adjudication requested by any party to the proceedings. These cases were: 1. Anglican Retirement Villages, Diocese Of Sydney v Wollongong City Council [2013] NSWLEC 5 (Pain J) 2. Direct Factory Outlets Homebush Pty Limited v Strathfield Municipal Council [2006] NSWLEC 185 (Pain J) 3. Kavia Holdings Pty Limited v Sydney City Council (2003) 127 LGERA 293; [2003] NSWLEC 195 (Pain J 4. Mahogany Ridge Developments Pty Ltd v Port Stephens Council [2004] NSWLEC 555 (Bignold J) 5. Positive Change for Marine Life Inc v Byron Shire Council [2015] NSWLEC 147 (Craig J) 6. Pro-Vision Developments Pty Limited v Ku-Ring-Gai Municipal Council [2003] NSWLEC 226 (Lloyd J) 7. Verde Terra Pty Ltd v Environment Protection Authority (No 3) [2018] NSWLEC 161 (Moore J) 8. Walcha Council and Ors v Minister for Local Government and Ors [2016] NSWLEC 57 (Moore J) 1. I have also discovered two cases where joinder was ordered and costs did not appear to have been raised. These cases were: 1. Meriton Apartments Pty Limited v Fairfield City Council & Anor [No 2] [2005] NSWLEC 121 (Pain J) 2. Grosvenor Australia Properties Pty Limited v Sydney City Council [2006] NSWLEC 267 (Pain J) 1. I have discovered one of my own cases where joinder was ordered and costs were not raised. This case was Vella v Penrith City Council [2019] NSWLEC 62. 1. Whilst there are no obvious examples of costs being sought and refused where joinder has been ordered, this general pattern demonstrates that the conclusion that I have reached in these proceedings is not out of step with past practice. 2. There is no conduct, in a r 3.7(3) or Grant v Kiama sense, that could enliven a costs order in the joinder proceedings. 3. This aspect of the Joinder Applicant's Notice of Motion must also be dismissed. Costs of the costs application 1. Costs of costs applications in Class 1 proceedings ordinarily follow the event. There is no basis to depart from that proposition in these Notice of Motion proceedings. It therefore follows that the Joinder Applicant should pay the costs of the Development Applicants and of the Council on this Notice of Motion. Orders 1. It therefore follows that the orders of the Court are: 1. The Notice of Motion is dismissed; and 2. The Second Respondent is to pay the costs of the Applicants and of the First Respondent of the costs motion as agreed or assessed. ********** 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. Decision last updated: 30 October 2019