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
Planning and Environment Court Rules 2010 (Qld), rr 4
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
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
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
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