Theo v Logan City Council - [2011] QPEC 103

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Theo v Logan City Council & Ors [2011] QPEC 103

PARTIES:

SOL THEO
(Appellant)

v

LOGAN CITY COUNCIL
(Respondent)

and

THE CHIEF EXECUTIVE OFFICER OF DEPARMENT OF MAIN ROADS – QUEENSLAND GOVERNMENT
(First Co-Respondent)

and

THE CHIEF EXECUTIVE OFFICER OF DEPARTMENT OF TRANSPORT – QUEENSLAND GOVERNMENT
(Second Co-Respondent)

FILE NO/S:

1792 of 2007

DIVISION:

Appellate

PROCEEDING:

Application for striking out of Developer’s conditions appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

15 August 2011

DELIVERED AT:

Brisbane

HEARING DATE:

26 July 2011

JUDGE:

Judge Robin QC, DCJ

ORDER:

Appeal to be struck out for want of prosecution

CATCHWORDS:

Uniform Civil Procedure Rules r 171, r 280, r 293, r 371, r 389

Planning and Environment Court Rules 2010 r 3(2)

Developer’s conditions appeal relevantly asserted that his development application was to be assessed under a former planning regime such that impugned conditions required by the co-respondent referral agencies were unsupportable because under that regime there could be no referral agencies - court had determined to the contrary - more than 2 years delay thereafter respondent and co-respondents - apply for striking of appeal for want of prosecution, alternatively on basis it is untenable - alternative claim by them for summary judgement dismissing the appeal - circumstances in which co-respondents’ bringing appeal on for review in light of the appellant’s delay and consequential steps did not amount to a “step” - appeal judged to have no prospects of success on basis of concessions made to the appellant by the other parties being preserved.

COUNSEL:

Mr Theo (appellant ) in person

M. McDermott (Solicitor) for Respondent

M. F. Johnston for Co-Respondent

SOLICITORS:

Appellant self-represented

Corrs Chambers Westgath for Respondent

HopgoodGamin Lawyers for Co-respondent

Before the court are separate applications of the respondent Council and of the co-respondents; they acted as referral agencies in respect of a development application which the Council approved by decision notice of 13 June 2007. Each application seeks to free its maker(s) from further involvement in the appeal, which is effectively a conditions appeal by a developer. The entitlement of the co-respondents to participate by formulating conditions the Council was required to include in any approval it decided to give was challenged.

The co-respondents’ application filed on 16 June 2011 seeks:

“1.That pursuant to r293 of the Uniform Civil Procedure Rules 1999 (UCPR), summary judgment be given for the Co-Respondents against the Appellant to the extent that the Appellant appeals against the Co-Respondents’ conditions of approval or conditions of approval concerning the Co-Respondents on the basis of the conditions attached hereto and marked ‘A’.

2.In the alternative to paragraph 1, that pursuant to r171 of the UCPR, the Appellant’s Notice of Appeal be struck out.

3.That the Appellant pay the Co-Respondents’ costs of and incidental to this application and the appeal to be assessed on the standard basis.”

The conditions proposed are different from those that found their way into the development approval in consequence of concessions that have…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] QPEC 103
Decision Date: 15 August 2011

CaseChat Overview and Summary

The case of Theo v Logan City Council was heard in the Queensland Planning and Environment Court. The applicant, Theo, sought to challenge certain development conditions imposed by the respondent, Logan City Council, and co-respondents, who were referral agencies. Theo argued that the conditions were invalid because they were imposed under a former planning regime, which did not provide for referral agencies. The respondents sought to have the appeal struck out for want of prosecution, or alternatively, for summary judgment dismissing the appeal on the basis that it was untenable.

The primary legal issue was whether the conditions imposed by the respondents were valid under the former planning regime. The court had to determine if the referral agencies could impose conditions under the former planning regime and whether the delay in prosecuting the appeal affected its validity. Additionally, the court had to consider whether the co-respondents' involvement in the appeal constituted a "step" within the meaning of the Uniform Civil Procedure Rules.

The court found that the referral agencies could indeed impose conditions under the former planning regime, and that the delay in prosecuting the appeal did not render it invalid. Furthermore, the court held that the co-respondents' involvement in the appeal did not amount to a "step" within the meaning of the rules. The court concluded that the appeal had no prospects of success due to the concessions made to the appellant by the other parties. Consequently, the appeal was struck out for want of prosecution.

In light of the above, the court ordered that the appeal be struck out for want of prosecution, dismissing the applicant's claims against the respondents.

Orders

Orders of the court

Appeal to be struck out for want of prosecution

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Theo v Logan City Council & Ors [2011] QPEC 103
PARTIES:	SOL THEO (Appellant) v LOGAN CITY COUNCIL (Respondent) and THE CHIEF EXECUTIVE OFFICER OF DEPARMENT OF MAIN ROADS – QUEENSLAND GOVERNMENT (First Co-Respondent) and THE CHIEF EXECUTIVE OFFICER OF DEPARTMENT OF TRANSPORT – QUEENSLAND GOVERNMENT (Second Co-Respondent)
FILE NO/S:	1792 of 2007
DIVISION:	Appellate
PROCEEDING:	Application for striking out of Developer’s conditions appeal
ORIGINATING COURT:	Brisbane
DELIVERED ON:	15 August 2011
DELIVERED AT:	Brisbane
HEARING DATE:	26 July 2011
JUDGE:	Judge Robin QC, DCJ
ORDER:	Appeal to be struck out for want of prosecution
CATCHWORDS:	Uniform Civil Procedure Rules r 171, r 280, r 293, r 371, r 389 Planning and Environment Court Rules 2010 r 3(2) Developer’s conditions appeal relevantly asserted that his development application was to be assessed under a former planning regime such that impugned conditions required by the co-respondent referral agencies were unsupportable because under that regime there could be no referral agencies - court had determined to the contrary - more than 2 years delay thereafter respondent and co-respondents - apply for striking of appeal for want of prosecution, alternatively on basis it is untenable - alternative claim by them for summary judgement dismissing the appeal - circumstances in which co-respondents’ bringing appeal on for review in light of the appellant’s delay and consequential steps did not amount to a “step” - appeal judged to have no prospects of success on basis of concessions made to the appellant by the other parties being preserved.
COUNSEL:	Mr Theo (appellant ) in person M. McDermott (Solicitor) for Respondent M. F. Johnston for Co-Respondent
SOLICITORS:	Appellant self-represented Corrs Chambers Westgath for Respondent HopgoodGamin Lawyers for Co-respondent