Cheney & Anor v. Southern Downs Regional Council

[2009] QPEC 44

[2009] QPEC 44

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 3 of 2008

LINDA TERESA CHENEY & ANOR	Appellants
and
SOUTHERN DOWNS REGIONAL COUNCIL	Respondent

BRISBANE

..DATE 07/05/2009

ORDER

CATCHWORDS:  Developer appeal against refusal of reconfiguration - no step for more than a year - on a reference by the registrar, adjournment to a fixed day ordered, the appellants to be notified the appeal may then be struck out for want of prosecution

HIS HONOUR:  This appeal comes on as a result of reference by the Registrar, nothing whatever having been done in it by the appellant since the 29th February 2008 when the appeal against the Council's refusal of a reconfiguration application was filed in Warwick.

The Council entered an appearance on the 27th March 2008.  The Registrar in consequence of a review of the files has caused the appeal to be transferred to Brisbane and further has written to the solicitors for the parties adverting to there being no action taken within the previous 12 months and the matter having been set down for review this morning.

The letters have produced an attendance by the Council by its solicitors but not by the appellants who've been called by the Bailiff.  The Registrar's communications of 14th April 2009 don't in terms place the appellants on notice of being at risk of their proceeding being struck out for want of prosecution.

Rule 389 of the UCPR applies. At this point one month's notice must be given by the appellants, or, indeed, any party who wishes to proceed. Once the delay reaches 2 years from the last step no further step may be taken without the order of the Court to permit it. Such an order's likely to be refused.

In principle, it seems to me that the Court is already in a position to strike the appeal out for want of prosecution but that shouldn't be done without notice to the appellant's solicitors and, indeed, to the appellants themselves, perhaps,  the notice of appeal nominating an address at Scarborough for them which is different from the address for service, namely the solicitor's office.

Now, I've suggested to Mr Favell, without presuming to make any direction in that regard, that it may be that the Council can garner some information to place before the Court should the situation be that the appellants aren't interested in their proposed development or the appeal any more.

It may be that when the matter comes on again, on the date which I'll fix, such information may encourage the Court to put an end to this proceeding.  The orders are that (1) the appeal is adjourned to the 15th July 2009;

(2)  the Registrar is directed to write to the appellants at their address shown on the notice of appeal and to their solicitors to advise that if the appeal is to be prosecuted further they should appear on the adjourned date, when the appeal may be struck out for want of prosecution.

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