Application to strike out appeal against conditions imposed by Council when granting a development permit, on the basis of want of prosecution – Appellant delays in proceeding with appeal – separate but related submitter appeal by Co-Respondent against Council decision to grant development permit.
Planning and Environment Court Rules 2010 (Qld), r 19
Planning and Environment Court Rules 2010 (Qld), rr 4 and 5
Uniform Civil Procedure Rules 1999 (Qld), r 280
Facts: On 3 October 2011 the Respondent Council approved a development application (subject to conditions) for a development permit for a material change of use for a detached house for land at 71 Seaview Terrace, Sunshine Beach.
The Appellant appealed against the Council's conditions on 4 November 2011 (Appeal Number 235 of 2011), however a number of parties joined the appeal as co-respondents: the Chief Executive administering the Coastal Protection and Management Act 1995 (Qld) (First Co-Respondent); Mr B A Ogilvie (Second Co-Respondent); Ms J Bailey and Mr J Stainton (Third Co-Respondent) and Howen Pty Ltd (Fourth Co-Respondent).
The Fourth Co-Respondent also lodged a submitter appeal against Council's decision (Appeal Number 233 of 2011).
Following the commencement of the appeal on 4 November 2011, the Appellant took no steps to progress the appeal until the court listed the matter for mention on 9 August 2012. On 9 August 2012 the Appellant was given leave to file an application. Directions Orders were subsequently made on 7 September 2012 which included the requirement for mediation. Mediation was postponed by the Appellant until 1 February 2013. At the mediation it was agreed that the Appellant would provide a response to the matters raised in mediation by 14 March 2013. The Appellant sought additional time on 4 April 2013 and 27 May 2013, which the Respondents agreed to on both occasions. The Appellant did not respond to further correspondence from the Court and the various Respondents during August and September 2013.
In light of the Appellant's continued lack of activity and failure to respond to correspondence, on 17 September 2013 the Fourth Co-Respondent sought orders that the conditions appeal be struck out and that its own submitter appeal be allowed.
Decision: The Court held, in striking out the conditions appeal that:
- The onus in both appeals rested with the Appellant, which should be assessed by reference to the Integrated Planning Act 1997 (Qld).
- The Rules of the Planning and Environment Court included the implied undertaking of all parties to proceed in an expeditious way and allowed the court to impose appropriate sanctions if a party did not do so.
- Where an applicant failed to comply with the rules or order of the court, a respondent may apply for an order to dismiss the proceeding for want of prosecution.
- There was extensive judicial precedent to guide an application to strike out for want of prosecution.
- While the Appellant's appeal against conditions was struck out, the Appellant was given additional time to consider the implications of the submitter appeal brought against it by the Fourth Co-Respondent.
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