procedural. The Tribunal ordered that by no later than 31 January 2008 the applicant must serve a copy of the application for review on any referral authorities and on any persons who lodged an objection with...
Key principles
An applicant for review who is aware that there was an objector to the permit application must serve the application for review on that objector and file a statement of service;...
A professional planning consultant acting as applicant is presumed to be aware of statutory and Tribunal procedural requirements (Planning and Environment Act 1987; Victorian...
If an applicant wishes to substitute or amend plans after lodgement, the requirements of Practice Note PNPE1 (clause 11) must be complied with in addition to service and filing...
Issues before the court
Was the applicant obliged to serve the application for review on the objector and file a statement of service?
What are the consequences of failing to comply with Tribunal directions to serve and file a statement of service?
If amended plans are proposed, what additional procedural steps are required?
Plain English Summary
VCAT ordered Coeve Design to serve its application for review on objectors and to file proof of service by 31 January 2008. Coeve, a planning consultancy acting for a developer, had failed to serve objectors despite directions and reminders; the Tribunal warned that failure to comply would result in the application being struck out for want of prosecution. The Tribunal also noted that if amended plans are to be substituted, the Practice Note PNPE1 requirements must be followed. The Tribunal gave a final opportunity rather than striking out on the papers.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
1,773 words · generated 07/08/2026
What happened
Coeve Design Pty Ltd lodged an application for review at VCAT on 31 October 2007 challenging Glen Eira City Council’s grant of a permit for student accommodation (Reasons [1]). There was at least one objector recorded against the permit at council. Because an objector existed, the applicant was under an obligation to serve the application for review upon that objector and to file a statement of service with the Tribunal (Reasons [1]).
Does failure to attend the Tribunal when directed have potential statutory consequences?
Cited legislation
No linked legislation citations have been extracted yet.
The Tribunal directed the applicant on 1 November 2007 to serve the application on the objector within seven days (Reasons [3]). The applicant did not comply. VCAT sent reminder letters on 16 and 26 November; the 26 November letter explicitly warned the applicant that failure to respond would likely result in dismissal or striking out for want of prosecution under s76 of the Victorian Civil and Administrative Tribunal Act 1998 (Reasons [3]). Despite these warnings, no statement of service was filed.
The applicant’s representative, Ms Coral De Bono of Coeve Design, corresponded on 30 November advising that negotiations with council over amended plans were underway and that the parties might agree to resolve the matter, but she gave no filing or service undertaking (Reasons [4]). The Tribunal emphasised that negotiations with council do not replace the procedural requirement to have a valid application on foot, which requires service on objectors and compliance with Tribunal practice notes for any substituted plans (Reasons [3], [5]).
The matter was referred to Deputy President Helen Gibson in mid-December for potential striking out for want of prosecution. Rather than strike out immediately, the Deputy President listed a practice day hearing to give the applicant an opportunity to explain non-compliance and to provide a final opportunity to effect service and file a statement of service (Reasons [4]). The applicant’s representative did not attend the practice day hearing as directed (Reasons [3] in later block). The Tribunal described the claimed personal circumstances (surgery) as not excusing the non‑compliance, and noted that non-attendance when directed demonstrated disrespect for the Tribunal and might constitute an offence under s133 of the VCAT Act (Reasons [3] in later block).
Ultimately the Tribunal provided one final opportunity. It ordered the applicant to serve the application for review on referral authorities and any objectors and to file a statement of service by no later than 31 January 2008; if the statement was not filed by the close of business on that date, the application would be struck out without further notice (Order and Reasons [6]).
Why the court decided this way
The decision is grounded in straightforward Tribunal procedure and the exercise of the Tribunal’s case management and dismissal powers for want of prosecution. The Tribunal relied on three core considerations:
Procedural obligation to serve objectors and file proof
The starting point was that there was an identified objector to the permit. The Tribunal emphasised that an applicant that is aware of an objector must serve that person with the application for review and file a statement of service to keep the review process valid (Reasons [1]).
The applicant’s professional status and presumed knowledge
Coeve Design is a professional planning consultancy. The Tribunal said that as a professional practitioner it must be presumed to know the requirements of the Planning and Environment Act 1987, the VCAT Act 1998, and relevant rules and practice notes governing review proceedings and service (Reasons [2]). That presumption underscored the expectation of compliance.
Repeated non-compliance and case-management discretion
The applicant failed to comply with a clear direction given on 1 November and ignored reminder correspondence of 16 and 26 November that expressly warned of striking out under s76 (Reasons [3]). The Tribunal perceived that merely negotiating amendments with the council did not discharge service obligations or substitute for compliance with PNPE1 clause 11 where amended plans are proposed (Reasons [3], [5]). Faced with persistent non-compliance and the applicant’s failure to appear as directed, the Tribunal exercised its discretion to give a single final deadline rather than striking out immediately, in order to avoid prejudicing the applicant’s client if that could reasonably be avoided (Reasons [4]).
In short, the decision reflects application of Tribunal case-management powers to compel compliance with essential procedural steps, with the Tribunal balancing procedural fairness to the parties against the imperative of maintaining orderly and efficient proceedings.
Before and after state of the law
Before this decision: The relevant statutory and practice framework was already in place. The Planning and Environment Act 1987, the VCAT Act 1998, the VCAT Rules and PNPE1 practice note governed how review applications were to be served, how amended plans should be handled, and the Tribunal’s power to dismiss for want of prosecution.
After this decision: The judgment does not create a novel legal principle. Rather it applies settled procedural principles to the facts and confirms that the Tribunal will expect professional practitioners to comply promptly with directions to serve and to file statements of service. It also reiterates that obtaining council agreement to amended plans does not relieve an applicant of the Tribunal’s practice note processes (PNPE1 clause 11). Practitioners should treat the decision as a practical reinforcement of existing procedural obligations and the Tribunal’s willingness to strike out for non‑compliance after warning.
Key passages with plain-English translation
Reasons [1]: "There was an objector ... the applicant has an obligation to serve the application for review on objectors."
Plain English: If someone objected at council, you must give them the Tribunal papers for the review and prove to VCAT that you did so.
Reasons [2]: "As a professional planning consultant ... presumed to be aware of the requirements ..."
Plain English: Because Coeve is a planning firm, the Tribunal assumes it knows the laws and rules about reviews and must follow them.
Reasons [3]: Reminder quoted: "'Failure ... will most likely result in your application being dismissed or struck out for want of prosecution under section 76 ...'"
Plain English: VCAT warned Coeve that ignoring the directions could get the case thrown out under s76 of the VCAT Act.
Reasons [5]: "If the applicant intends to make an application to substitute amended plans ... requirements of clause 11 of Practice Note PNPE1 ... will need to be complied with."
Plain English: If you want to change plans after lodging, you must follow PNPE1 clause 11, not just get the council to agree.
Order and Reasons [6]: Deadline and consequence.
Plain English: Do the service and file the proof by 31 January 2008, or VCAT will throw your case out and you will have to start over.
What fact patterns trigger this precedent
This decision is directly applicable where:
A review applicant knows there are objectors recorded at council and has not served those objectors with the Tribunal application; and
The applicant fails to comply with clear Tribunal directions to effect service and to file a statement of service; and
The applicant receives explicit warning(s) that non-compliance may lead to striking out under s76; and
The applicant either does not communicate a bona fide reason or does not attend a Tribunal hearing when directed.
In such circumstances, VCAT is likely to require service and proof within a short, fixed time or to strike out the application. The decision is particularly relevant where the applicant is a professional practitioner, because the Tribunal will presume awareness of procedural requirements.
How later courts have treated it
The judgment is a short procedural VCAT decision and is of direct relevance primarily within VCAT practice and to Victorian planning practitioners. It does not purport to state new law; rather it is an internal application of the Tribunal’s powers. As such, it functions as persuasive administrative guidance for similar case‑management scenarios within VCAT. This decision will be used by practitioners and VCAT members as an example of the Tribunal’s approach to failure to serve and file statements of service, and to emphasise compliance with PNPE1 clause 11 when amending plans.
(As the present deep dive is grounded only on the judgment text supplied, it does not catalogue or summarise any specific later citations of this decision. Users should search case databases for subsequent citations to see how courts or VCAT benches have cited or relied upon it.)
Still-open questions
Extent of discretion in marginal cases
The Deputy President exercised discretion to grant a final opportunity rather than striking out immediately. The judgment does not set out a detailed balancing test or threshold of culpability that would compel immediate striking out. Where non‑compliance is less clear-cut or where there are strong reasons for non‑compliance, it remains open how the Tribunal will balance prejudice to the parties, the reasons given, and proportionality of sanctions.
What constitutes adequate proof of service in contested scenarios
The decision presumes the accepted standard that a statement of service must be filed. It does not elaborate on what documentary proof will be considered sufficient in borderline cases (for example, postal vs personal service disputes).
Interaction with proposed amendments and the timing of PNPE1 compliance
The Tribunal says clause 11 must be complied with if plans are substituted. The judgement does not explore in detail whether there can be interim arrangements (for example, conditional consent to substitute plans) or whether failure to comply with clause 11 at an early stage might be cured later without striking out.
Consequences of non-attendance under s133
The Tribunal observed that non-attendance when directed "might also constitute an offence under section 133," but did not pursue that avenue. The parameters for when non-attendance reaches the threshold of s133 are not examined in the reasons.
Remedies for applicants whose representatives fail to comply
The Tribunal expressed concern for the applicant’s client and therefore gave a final extension. The decision leaves open the precise remedies available to clients where professional representatives default on procedural obligations and prejudice the client’s position.
If you want targeted assistance preparing questions for a lawyer, a timeline of what happened, or a checklist of evidence to satisfy service requirements and PNPE1 compliance, I can produce those documents as first drafts. I can make you a first draft. Treat it as a starting point, not legal advice. Before you send it, sign it, file it, or rely on it, get a qualified Australian lawyer to check it.
This is general legal information, not legal advice. I may make mistakes. Before you act on this, rely on it, or use any draft, get a qualified Australian lawyer to check it.
Judgment (11 paragraphs)
[1]
Coeve Design Pty Ltd v Glen Eira CC [2008] VCAT 31 (23 January 2008)
By no later than 31 January 2008, the applicant must serve a copy of the application for review in accordance with the Tribunal's previous directions on any referral authorities and on any persons who may have lodged with Glen Eira City Council a written objection to the grant of the permit, and file a statement of service to this effect, again in accordance with previous directions given by the Tribunal.
If the statement of service is not received by the Tribunal by close of business on 31 January 2008, this application for review will be struck out without further notice.
[4]
This application for review against the council's decision to grant a permit for use and development of student accommodation was lodged with the Tribunal on 31 October 2007. There was an objector to the permit application. Consequently, the applicant has an obligation to serve the application for review on objectors.
Coeve Design Pty Ltd is a firm of planning consultants. Whilst the permit application and the application for review were lodged in the name of Coeve Design Pty Ltd, the firm's client is the actual developer. As a professional planning consultant, Coeve Design Pty Ltd is presumed to be aware of the requirements of the Planning and Environment Act1987, the Victorian Civil and Administrative Tribunal Act1998 and respective regulations and rules in relation to applications for review.
On 1 November 2007, the applicant was directed by the Tribunal to serve the application for review on the objector within 7 days[1]. This was not done. The Tribunal sent reminder letters to the applicant on 16 November 2007 and 26 November 2007. The latter letter advised:
[5]
Failure to provide VCAT with a response within seven days from the date of this letter will most likely result in your application being dismissed or struck out for want of prosecution under section 76 of the Victorian Civil and Administrative Tribunal Act1998 as it will be presumed that you no longer wish to continue with this application.
[6]
Still no statement of service was filed by the applicant.
On 30 November 2007, Ms Coral De Bono, of Coeve Design Pty Ltd, advised the Tribunal as follows:
[7]
We refer to your letter of 26 November 2007 and apologise for the delay in getting back to you in this matter. We have been negotiating with council in this matter and we believe we are almost at agreement with the final design.
[8]
I will further advise VCAT early next week as to whether all parties are agreed and whether we can complete this application on 'papers'.
[9]
However, no further communication was received. In fact, it is entirely irrelevant whether the applicant has been negotiating with council about an amendment to the plans. The only way in which the council's refusal can be set aside is by way of an order of the Tribunal and the Tribunal can only make an order if there is a valid application for review on foot. For this to occur, there must be service of the application on the objector. If there is to be any amendment of plans, then the Tribunal's Practice Note requirements[2] must be complied with. It is not just a question of the applicant negotiating with the council and obtaining its consent to design changes. There is a proper procedure that must be followed and Ms De Bono, as a planning professional, ought be aware of this.
In mid December 2007, this matter was referred to me for the purpose of striking out the application for review for want of prosecution due to the applicant's failure to file a statement of service and to respond to the Tribunal's correspondence. Not wishing to disadvantage the applicant's client, rather than making an order on the papers, I listed this matter for a practice day hearing to give the applicant an opportunity to explain why the application for review should not be struck out for want of prosecution, and incidentally provide additional time for service. Despite this, the applicant still did not proceed to serve the objector and file the relevant statement of service.
On 17 January 2008, on the afternoon before the practice day hearing, there was a flurry of faxes and telephone calls between Ms De Bono and the Tribunal, with Ms De Bono advising that she did not wish to attend the directions hearing. She still did not appear to appreciate that the purpose of the hearing was unrelated to any agreement by the council to amended plans but related to the fundamental issue that she had failed to serve the application for review in accordance with the Tribunal directions. I directed that Ms De Bono should attend the practice day hearing to give reasons why she had failed to file a statement of service and why the matter should not be struck out. Ms De Bono did not attend the hearing as directed. Rather, she sent a fax on the morning of the hearing stating that it was her misunderstanding and "no real excuse offered". Ms De Bono referred to some surgery she had had before Christmas, but in my view, this does not explain or excuse her failure to comply with the Tribunal's directions or to protect her clients' interests. Her refusal to attend the Tribunal when directed to do so demonstrates disrespect for the Tribunal. It might also constitute an offence under of the .
[10]
[1] Rule 4.06 Victorian Civil and Administrative Tribunal Rules 1998
[11]
[2] Clause 11 of Practice Note PNPE1 - General Procedures
Parties
Applicant/Plaintiff:
Coeve Design Pty Ltd
Respondent/Defendant:
Glen Eira CC [2008] VCAT 31
AI Analysis
Outcomeprocedural
Disposition:
The Tribunal ordered that by no later than 31 January 2008 the applicant must serve a copy of the application for review on any referral authorities and on any persons who lodged an objection with Glen Eira City Council, and must file a statement of service; if the statement of service is not received by the Tribunal by close of business on 31 January 2008, the application for review will be struck out without further notice.
Still no undertaking has been given to file the statement of service. Notwithstanding all of this, I have decided to provide the applicant with one last opportunity to serve the application for review and to file the relevant statement of service. I do not consider that the applicant's client should be disadvantaged, if at all possible, by the failure of the applicant to comply with the Tribunal's directions and to comply with relevant statutory requirements.
If the applicant intends to make an application to substitute amended plans for the plans accompanying the permit application, then the requirements of clause 11 of Practice Note PNPE1 - General Procedures will need to be complied with in addition to serving the application for review.
Whilst Ms De Bono may well have misunderstood her obligations and the Tribunal's directions prior to this, there should now be no confusion as to what the applicant is required to do, namely serve a copy of the application for review on the objector and file a statement of service to this effect with the Tribunal. If this is not done and a statement of service is not filed with the Tribunal by 31 January 2008, the application for review will be struck out without further notice. This will mean that a fresh application for permit will need to be applied for.