32/12 Copley v Logan City Council & Anor [2012] QPEC 39

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Application to strike out appellant's notice of appeal pursuant to Rule 171 of the Uniform Civil Procedure Rules 1999 (UCPR) – or, in the alternative, orders pursuant to r 293 of the UCPR that summary judgment be given for the co-respondent against the appellant in respect of all or part of the appellant's notice of appeal – tests to be applied - whether appellant's grounds of appeal disclose no reasonable cause or are otherwise frivolous or vexatious

Facts: This was an application to strike out a submitter appeal (in whole or in part), or in the alternative, seek summary judgment (in whole or in part) against the respondent / appellant. On 21 December 2011 the respondent / appellant appealed to the Planning and Environment Court against the respondent council's decision to approve the applicants / co-respondents' development application.

The respondent / appellant's grounds for appeal against the development application covered issues relating to boundaries of Crown land and public roads, the density of additional lots, the presence of parklands, koala and wildlife habitat, traffic and flooding areas. The applicants / co-respondents sought to have the appeal struck out.

The Planning and Environment Court Rules 2010 did not expressly provide for the striking out of appeals or for the granting of summary judgment.

Decision: The Court held that:

1. rules 171 and 293 of the UCPR can be relied upon in the Planning and Environment Court to strike out pleadings or give summary judgment where the grounds of appeal are manifestly unarguable and disclose no reasonable cause of action
2. with the exception of the flooding issues, the respondent / appellant's grounds of appeal were manifestly unarguable and disclosed no reasonable cause of action and therefore those grounds were struck out
3. as the grounds of appeal relating to flooding were arguable (and were not clearly doomed to failure), it would not be appropriate to give judgment in favour of the applicants / co-respondents in respect of part only of the appeal.

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