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[2003] VCAT 1120
procedural. The proceeding was struck out for want of prosecution pursuant to s 76(1) of the Victorian Civil and Administrative Tribunal Act 1998. The Tribunal did not decide the planning merits of the...
2 cited instruments linked from this judgment.
The Tribunal dismissed the review proceeding because the applicant did not follow up on the notice direction or respond to repeated requests and warnings. It also noted a possible problem with the applicant being named by what appeared to be a business name rather than the principal applicant. The Tribunal did not decide whether the three-dwelling proposal should be approved.
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2,024 words · generated 02/10/2026
In Kennedy Nolan Architects v Boroondara CC [2003] VCAT 1120, the Victorian Civil and Administrative Tribunal dealt with a procedural question, not the planning merits of a proposed development. The stated proposal was the demolition of existing buildings and construction of three dwellings at 120 and 122 Sackville Street, Kew. The land was in a Residential 1 Zone and subject to a Heritage Overlay under the Boroondara Planning Scheme.
Kennedy Nolan Architects applied under s 79 of the Planning and Environment Act 1987 for review of Boroondara City Council’s failure to grant a permit within the prescribed time. The review application was lodged on 29 April 2003, and the lodgement fee was paid on 1 May 2003 ([1]). The reasons say that information required of the responsible authority was supplied under cover of a letter dated 28 May 2003 ([1]).
On 10 June 2003, the Tribunal directed the applicant to give notice of the review application under s 83B of the Planning and Environment Act, in accordance with directions enclosed with the Tribunal’s letter. The letter said notice should be given within three weeks ([2]). On 26 June, the applicant asked for an extension until 15 July, explaining that its planning consultant was on annual leave ([3]).
The Tribunal recorded that it received no documents relating to the giving of notice. On 17 July, the Senior Registrar asked the applicant to respond within seven days. There was no response ([4]). A further letter on 28 July again sought a reply. It warned that, if no response arrived within seven days, the application was likely to be struck out for want of prosecution under s 76 of the Victorian Civil and Administrative Tribunal Act 1998, on the basis that the applicant would be presumed no longer to wish to continue ([5]).
On 11 August, the Tribunal made telephone contact with Patrick Kennedy at the applicant’s office. The file note recorded an explanation that the applicant was having difficulty obtaining advice from its client. The Tribunal advised that it should be notified within 14 days or the matter would be referred to a Deputy President with a view to being struck out ([6]). The Tribunal recorded no further communication. Acting Deputy President Russell Byard concluded, “It appears that this case is not being pursued” ([7]), and ordered that the proceeding be struck out for want of prosecution under s 76(1).
The stated reason for the outcome was the applicant’s lack of follow-up after the Tribunal had given directions and several opportunities to respond. The reasons provide a sequence: the applicant sought an extension to complete the notice process, but the Tribunal later recorded that it had received no notice-related documents ([3]–[4]). It then sent two requests for a response, the second containing an express warning of a likely strike-out ([4]–[5]). After the telephone contact, the Tribunal gave the applicant a further 14 days to notify it, but no further communication was recorded ([6]–[7]).
The decision does not set out a multi-part legal test for “want of prosecution”. Nor does it quote the text of s 76(1). Its account is narrower: it identifies the statutory provision used, summarises the procedural history, and states that the application appeared not to be pursued. The operative order says the proceeding was struck out “pursuant to s.76(1)” of the VCAT Act.
A careful reading therefore treats the repeated non-response and the absence of the requested notice material as the factual basis for the Tribunal’s assessment. It would go beyond the decision to attribute a broader rule to it about how many missed deadlines, what length of delay, or what kind of warning will always justify strike-out. The judgment gives no general threshold and does not compare the case with other decisions.
The Tribunal also raised a concern about the name of the applicant. It observed that “Kennedy Nolan Architects” appeared to be a business name and did not identify an individual or corporation. It added that the applications ought to be made in the name of the principal, not an agent ([6]). That is a notable procedural observation, but the Tribunal did not say that it was striking out the proceeding on that basis. The stated basis of the order remained want of prosecution. The reasons do not decide whether the naming issue could have been corrected or what consequence it would otherwise have had.
This decision is a short procedural ruling. It does not purport to change or comprehensively state the law on strike-out, planning review, or applicant identity. Before the ruling, the proceeding was an application for review under s 79 of the Planning and Environment Act 1987. The Tribunal had directed the applicant to give notice under s 83B of that Act and had sought responses about progress ([1]–[5]).
After the ruling, the proceeding had been struck out under s 76(1) of the VCAT Act. The order ended this particular review proceeding. The judgment does not state whether a fresh application could be made, whether any time limit would apply to such an application, or whether any other procedural avenue was available. Those matters cannot be inferred from the order alone.
The decision’s limited contribution is its illustration of how the Tribunal dealt with this file: it documented the directions, requests, warning and final absence of communication, then concluded that the case was not being pursued. It should not be read as establishing that every failure to meet a notice direction automatically results in strike-out. The reasons describe the specific procedural history and do not formulate an automatic rule.
There is also no analysis of the merits of the planning proposal. The Tribunal did not discuss the Heritage Overlay, the Residential 1 Zone, design, neighbourhood character, amenity, or any other planning consideration. The case therefore says nothing in its reasoning about whether the proposed demolition and three dwellings were acceptable under the planning scheme.
At [2], the Tribunal says that it directed the applicant to give notice of the application under s 83B of the Planning and Environment Act, following the enclosed directions, within three weeks. In plain English, the Tribunal set a procedural step and a timeframe for notifying relevant people about the review.
At [3], the applicant asked for an extension until 15 July because its planning consultant was on annual leave. This records that an extension was requested. The judgment does not say that the Tribunal formally granted it, and it later notes that no notice documents were received.
At [5], the Tribunal’s letter warned that the application was likely to be struck out if there was no response within seven days. In plain English, the applicant was expressly alerted to the possible consequence of continued silence. The letter also explained the proposed basis: the Tribunal might presume that the applicant no longer wished to continue.
At [6], the Tribunal records that the explanation given by telephone was difficulty obtaining advice from the client. It also raises the applicant-name issue, observing that the business name did not identify an individual or corporation and that the applications ought to be made in the name of the principal, not an agent. This is an observation in the reasons, not a separate finding that the application was invalid.
At [7], the Tribunal says, “It appears that this case is not being pursued.” This is the Tribunal’s assessment of the file after the preceding history. The order then gives the formal result: strike-out for want of prosecution under s 76(1) of the VCAT Act.
The decision is most directly relevant to a procedural pattern involving an applicant who has an active review proceeding, receives a direction to take a procedural step, and then does not provide the requested material or respond to repeated communications. In this case, the relevant step was giving notice under s 83B of the Planning and Environment Act, and the Tribunal made several attempts to obtain an update ([2]–[6]).
The pattern also included a specific warning that strike-out was likely if there was no response. The Tribunal did not proceed immediately after the initial missed step. It first recorded an extension request, then sent a request for a response, followed by a further request containing a warning, and later made telephone contact ([3]–[6]). The reasons present those events as the context for its conclusion that the matter was not being pursued.
The decision may therefore be useful when identifying procedural features that the Tribunal considered relevant in this particular case: a missing notice record, more than one unanswered communication, an express warning, and no further communication after a stated period to notify the Tribunal. It does not establish that all those features are necessary in every case, or that their presence will invariably lead to strike-out.
A separate fact pattern mentioned in the reasons is an application filed in a business name rather than the name of an individual or corporation. The Tribunal’s statement about the principal and agent may alert readers to an applicant-identity issue, but the decision does not determine its consequences. It should not be treated as a ruling that resolves every question about standing, authority, correction of a party name, or representation.
The supplied judgment contains no discussion of later decisions and cites no other judgments. On the material provided, it is not possible to say whether later courts or tribunals followed, distinguished, applied, or otherwise treated Kennedy Nolan Architects. No claim about its subsequent precedential treatment can be grounded in this text.
The judgment itself identifies s 76(1) of the VCAT Act and ss 79 and 83B of the Planning and Environment Act. It does not analyse statutory amendments, later authority, or the continuing operation of those provisions. A current assessment of the decision’s status or later treatment would require sources beyond the judgment supplied here.
For research purposes, the reliable points extractable from this decision are therefore confined to the order and reasons: the proceeding was struck out for want of prosecution after the particular sequence of non-response recorded by the Tribunal, and the Tribunal separately commented on the applicant’s naming. The decision alone does not establish how later courts have interpreted or extended those points.
Several questions remain unanswered because they were not necessary to the order or were not addressed in the reasons. First, the judgment does not set out the text of s 76(1), or explain the full legal test governing strike-out for want of prosecution. It records the provision invoked and the conclusion reached, but not a detailed statutory analysis.
Second, it does not resolve the status of the extension request. The applicant sought extra time until 15 July ([3]), but the reasons do not expressly say whether that extension was granted, refused, or treated as unnecessary after the later requests for a response. Nor do they explain whether the applicant completed any part of the notice process outside the documents received by the Tribunal.
Third, the consequences of striking out are not discussed. The decision does not address whether the applicant could seek reinstatement, commence another proceeding, or face a time-bar. Those issues cannot be answered from the order and reasons alone.
Fourth, the applicant-identity concern is left open. The Tribunal remarked that the applications should have been in the principal’s name rather than an agent’s ([6]), but did not determine whether “Kennedy Nolan Architects” was legally capable of being an applicant, whether an identified principal could have been substituted, or what evidence of authority might have mattered.
Finally, the judgment does not decide any substantive planning issue. It gives no findings about the development’s design, heritage impact, or planning merits. Its value is as a concise record of a procedural strike-out, not as authority on the acceptability of the proposed dwellings.
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This proceeding is struck out for want of prosecution pursuant to s.76(1) of the Victorian Civil and Administrative Tribunal Act 1998.
Application under s.79 of the Planning and Environment Act 1987 (PE Act) for review of the failure of the Responsible Authority to grant a permit within the prescribed time.
Residential 1 Zone and subject to a Heritage Overlay under the Boroondara Planning Scheme.
1. This application for review was lodged with the Tribunal on 29 April 2003 and the lodgement fee was paid on 1 May 2003. Information required of the Responsible Authority was provided under cover of a letter dated 28 May 2003.
2. On 10 June 2003 a letter was sent to the Applicant directing the giving of notice of the application pursuant to s.83B of PE Act in accordance with directions enclosed. The letter added that this should be done within three weeks of the date of the letter.
3. On 26 June 2003 a letter was received from the Applicant asking for an extension of time because of the absence of a planning consultant on annual leave. The extension sought was until 15 July 2003.
4. On 17 July 2003 the Senior Registrar wrote to the Applicant noting that no documents in relation to giving notice had been received and asking for a response to the letter of the Tribunal dated 10 June 2003 within seven days. There was no response.
5. On 28 July 2003 a further letter was written seeking a reply. This letter contained a warning that if no response was received within seven days it was most likely that the application for review would be struck out for want of prosecution under s.76 of the Victorian Civil and Administrative Tribunal Act 1998 on the basis that it would be presumed that the Applicant no longer wished to continue with the application. Again no reply was received.
6. On 11 August 2003 telephone contact was made with Patrick Kennedy of the applicant's office enquiring about the matter. A note on the file of the Tribunal indicates that the explanation was given that difficulty was being experienced in obtaining advice from the client. In this connection I note that the application for review, and the permit application, were made in the name "Kennedy Nolan Architects". That would appear to be a business name. It does not identify any individual human person, or corporation, as the applicant. Furthermore, these applications ought to be made in the name of the principal, not an agent. The note continues that advice was given that the Tribunal should be notified within 14 days or the matter would be referred to a Deputy President with a view to it being struck out.
7. According to the file there has been no further communication. It appears that this case is not being pursued. I propose to strike it out for want of prosecution pursuant to s.76 of the Victorian Civil and Administrative Tribunal Act 1998.
Kennedy Nolan Architects
Boorandara CC [2003] VCAT 1120
The proceeding was struck out for want of prosecution pursuant to s 76(1) of the Victorian Civil and Administrative Tribunal Act 1998. The Tribunal did not decide the planning merits of the proposed development.