VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P210/2025
permit application no. KP-2024/676	
catchwords
Section 82 of the Planning and Environment Act 1987 (Vic); Identity of objector; Application to amend name of applicant for review refused; Alleged breaches of Owners Corporation Act 2006 (Vic); No jurisdiction to consider alleged breaches of Owners Corporation Act 2006 (Vic) in the Planning and Environment List at VCAT; Application raises legitimate planning matters; Application for summary dismissal refused.  

Applicant	Owners Corporation - Plan No. 444603	
Responsible Authority	Kingston City Council	
Respondent	Tych Enterprises Pty Ltd t/as Risky Kids Moorabbin	
SUBJECT LAND	2 / 26-28 Roberna Street
MOORABBIN  VIC  3189	
HEARING TYPE	Practice day hearing	
DATE OF HEARING	23 May 2025	
DATE OF ORDER	26 May 2025	
citation	Owners Corporation - Plan No. 444603 v Kingston CC [2025] VCAT 462	
Order
Application to amend name of applicant
1	The application to amend the name of the applicant under s 127 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) is refused.
Application for summary dismissal
2	The application by Tych Enterprises Pty Ltd t/as Risky Kids Moorabbin for the summary dismissal of the application under ss 75 and 76 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) is refused.
Hearings
3	The details set out in the Tribunal’s order dated 9 May 2025 are confirmed.
The proceeding is listed for a compulsory conference and a hearing as detailed below. 
If there is any change to these details, the Tribunal will notify you.
Compulsory Conference:	
Date and time	2 June 2025 
10:00am – 1:00pm	

Conduct	In Person	
Place	VCAT Frankston, 1 Balmoral Street, FRANKSTON VIC 3199	

Hearing:	
Date and time	8 August 2025 
10:00am – 4:30pm	

Conduct	In Person	
Place	VCAT Frankston, 1 Balmoral Street, FRANKSTON VIC 3199	
Details of the location of the compulsory conference and hearing will be published on the Tribunal’s website, under ‘Upcoming Hearings’ on the afternoon of the day prior to the hearing – www.vcat.vic.gov.au/upcoming-hearings 
What all parties must do
Compulsory conference
4	All parties must attend the compulsory conference either in person or by a representative who has permission to settle the proceeding on their behalf.
(Note: See more information in Appendix A of this order).
5	No later than 10 business days before the compulsory conference the respondent (permit applicant) must give all parties a copy of any amended plans it wants to discuss or rely upon at the compulsory conference.
6	No later than 5 business days before the compulsory conference the responsible authority must give the Tribunal and all parties a copy of draft permit conditions that may be discussed at the compulsory conference.  A copy of the conditions must be brought to the compulsory conference in electronic Word format.
7	Any document to be relied on for the compulsory conference that is provided to the Tribunal must be clearly marked “For Compulsory Conference”.
Hearing
8	No later than 5 business days before the hearing, the parties must provide an electronic copy of their submissions and associated material (such as supporting documents, case law and photographs) to the Tribunal and all parties.  The copy for the Tribunal must be sent to admin@courts.vic.gov.au
9	All expert evidence must be provided in accordance with the Tribunal’s Practice Note PNVCAT2 Expert Evidence.
Hearing fees
10	If you are the applicant in this proceeding, you may be required to pay a daily hearing fee before the hearing commences. For more information, see the VCAT website www.vcat.vic.gov.au/fees

Teresa Bisucci
Deputy President	

Appearances
For applicant	Jason Kane of counsel instructed by Nickas Legal	
For responsible authority	Matthew Yeung, senior planner	
For respondent	Darren Marx, lawyer, Moray & Agnew	

reasons
What is this practice day hearing about?
1	This proceeding was listed for a practice day hearing to consider the application for summary dismissal of the proceeding by Tych Enterprises Pty Ltd t/as Risky Kids Moorabbin (‘respondent’).
2	This proceeding was commenced by Owners Corporation – Plan No. 444603 (‘applicant’) under s 82 of the Planning and Environment Act 1987 (Vic) (‘PE Act’).  This proceeding seeks review of the decision of Kingston City Council (‘council’) to issue a Notice of Decision to Grant a Planning Permit (‘NOD’) for the use of land at Unit 2, 26-28 Roberna Street, Moorabbin (‘land’) for an indoor recreation facility (‘proposed use’).
3	At a practice day hearing held on 9 May 2025, I heard specifically from John Lawson that the objection to application for planning permit made on 29 January 2025 was made by John Lawson on behalf of the applicant.  On that basis, as well as the reference on the objection form to the owners corporation reserving its rights about certain matters, I found the objection to the council to have been made by the applicant.  
4	As a consequence, the respondent seeks a summary dismissal of the proceeding under ss 75 and 76 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’) because the respondent alleges breaches of ss 68(4A)(a), 18(2) and 122 of the Owners Corporation Act 2006 (Vic) (‘OC Act’).
5	The applicant now seeks to amend the application to name John Lawson as the applicant rather than Owners Corporation – Plan No. 444603.
6	Having considered the submissions of the parties:
a	I refuse to amend the application for review to name John Lawson as the applicant; and
b	I refuse to summarily dismiss the application for review.
7	My reasons follow.
legislative regime and case law
8	The respondent relies upon ss 75 and 76 of the VCAT Act to support the application for summary dismissal.  These provisions state:
75	Summary dismissal of unjustified proceedings
(1)	At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion—
(a) 	is frivolous, vexatious, misconceived or lacking in substance; or
(b) 	is otherwise an abuse of process.
(2) 	If the Tribunal makes an order under subsection (1), it may order the applicant to pay any other party an amount to compensate that party for any costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding.
(3) 	The Tribunal's power to make an order under subsection (1) or (2) is exercisable by—
(a)	the Tribunal as constituted for the proceeding; or
(b)	a presidential member; or
(c) 	a member who is an Australian lawyer.
(4) 	An order under subsection (1) or (2) may be made on the application of a party or on the Tribunal's own initiative.
(5) 	For the purposes of this Act, the question whether or not an application is frivolous, vexatious, misconceived or lacking in substance or is otherwise an abuse of process is a question of law.
76	Summary dismissal for want of prosecution
(1) 	At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding for want of prosecution.
(2) 	The Tribunal's power to dismiss or strike out a proceeding under this section is exercisable by—
(a) 	the Tribunal as constituted for the proceeding; or
(b) 	a presidential member.
(3) 	An order under subsection (1) may be made on the application of a party or on the Tribunal's own initiative.
9	VCAT’s decision in Axicom Pty Ltd v Melton CC (Axicom) is often referred to in applications for summary dismissal in planning matters before VCAT.  The relevant principles are set out at paragraph 9 which provides:
9	The general principles relating to the operation of section 75 of the VCAT Act are clear. For a proceeding to be summarily dismissed:
•	the proceeding must be obviously unsustainable in fact or in law, can on no reasonable view justify relief, or must be bound to fail. 
•	the power to order summary dismissal should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried. Indeed, it must be ‘very clear’ that the proceeding is ‘absolutely hopeless’.
•	the power should not be invoked where all that is shown is that, on the material currently before VCAT , the applicant may fail to adduce evidence substantiating an essential element of the complaint.
•	a proceeding should not be summarily dismissed if the ultimate fate of the proceeding depends upon disputed questions of fact that could be established by evidence yet to be adduced or tested.
•	the respondent to a proceeding bears the persuasive burden of showing ‘that the complaint is undoubtedly hopeless’.
(footnotes omitted)
What does the respondent say?
10	The respondent says that John Lawson’s actions in this proceeding are problematic and in breach of the OC Act.  The respondent refers to s 68(4A) of the OC Act which states (as relevant):
(4A)	The initial ownerof land affected by an owners corporation or an associate of the initial owner must not—
(a)	be appointed as the manager of the owners corporation; or
11	The respondent claims that John Lawson was a director of Wynkara Pty Ltd, which at the time was the owner of all of the land prior to its subdivision.  In the alternative, it is claimed that John Lawson or an entity directed by him or an entity associated with him was the initial owner of the land prior to its subdivision.
12	Thus, the respondent says, Hamilton Lawson and its director John Lawson cannot be the manager of the applicant.
13	The respondent says that if I rule that John Lawson or his associate entity cannot be the manager of the applicant, then I should also summarily dismiss the application for review.
14	The respondent notes that s 18(2) of the OC Act prevents an owners corporation from commencing legal proceedings unless it is authorised by special resolution to do so.
15	To date there is no special resolution of the owners corporation authorising this proceeding and the respondent says without a special resolution, the applicant does not have standing to commence the application.  
16	I am also advised that the respondent has been in contact with Consumer Affairs Victoria with respect to the alleged breaches of the OC Act.
what does council say?
17	Council says ‘it holds a neutral position’ with respect to the application for summary dismissal.  Council notes the very high bar that must be met for an application for summary dismissal to be successful in planning matters at VCAT.  It refers to VCAT’s decision in Axicom in respect of the high bar.
18	Council says that if either scenario were established under the relevant sections of the OC Act, then application for review would be misconceived.
19	However, it does not consent to the amendment of the application for review to name John Lawson as the applicant because of the information provided by John Lawson at the practice day hearing on 9 May 2025 (‘first practice day hearing’).
what does the applicant say?
20	The applicant now requests the applicant be changed to John Lawson as the owner and occupier of Lot 5 rather than Owners Corporation – Plan No. 444603.  It is said that John Lawson was not represented at the previous practice day hearing and he did not appreciate the concept of standing.  Thus, he made an ‘uniformed submission’ when he advised me that the applicant for review was Owners Corporation – Plan No. 444603. 
21	The applicant submits the application for summary dismissal is misconceived because it relies upon alleged breaches of the OC Act.  The applicant says that the Planning and Environment List does not have the necessary jurisdiction to determine breaches of the OC Act in an application brought under s 82 of the PE Act.
22	The applicant also relies upon Axicom to support its position that there are legitimate planning reasons that mitigate against summary dismissal of the application for review.
vcat determination
23	I consider there to be three issues that I need to consider in this application for summary dismissal.  These are:
c	Should I amend the application for review under s 127 of the VCAT Act to make John Lawson the applicant?
d	Do the allegations of breaches of the OC Act warrant summary dismissal of the application for review under ss 75 and 76 of the VCAT Act?
e	Should the application for review nonetheless be summarily dismissed under s 75 of the VCAT Act?
Should I amend the application for review under s 127 of the VCAT Act?
First practice day hearing 
24	At the commencement of the first practice day hearing, I was informed that Bruce Humphries would represent the applicant.  However, John Lawson responded to questions by me at the first practice day hearing.
25	Whilst John Lawson now has the benefit of legal advice, that cannot change his response to me about his intention at the time he made his objection to council.  In response to a question from me at the first practice day hearing, John Lawson confirmed the objection was made by him on behalf of Owners Corporation – Plan No. 444603.
26	In any event at that first practice day hearing, I asked John Lawson directly about the identity of the objector and noted that if the objection to council was not made on behalf of Owners Corporation – Plan No. 444603 there would not be any reason to consider the application for summary dismissal of the proceeding.  John Lawson responded to me that he, as the manager of the owners corporation had received 20-23 emails from lot owners in the subdivision and he brought these emails to the attention of owners corporation committee.   
27	I advised John Lawson that given the information before me, I would have to make a finding about the identity of the person who made the objection to council.  
28	At the first practice day hearing I also heard the position of the other parties.  Council advised that it had proceeded on the basis that John Lawson was the objector.  The respondent said that it proceeded on the basis that the objection made by Owners Corporation – Plan No. 444603 because of the conduct of John Lawson.   
Practice day hearing 23 May 2025 (‘second practice day hearing’) 
29	I understand the submissions made by the applicant that John Lawson was not represented at the first practice day hearing on 9 May 2025 and that he made an ‘uninformed submission’ to me about the proper applicant in the application for review.
30	At the second practice day hearing, I gave John Lawson an opportunity to give evidence to me about his submission and the change in position about the objection to council but that opportunity was declined.
31	On that basis, I see no sensible or logical reason to depart from my finding following the first practice day hearing that the applicant was Owners Corporation – Plan No. 444603 because that is what John Lawson intended at the time he made his objection to council.  The consequences of that intention is the real issue that John Lawson now faces.
32	I make no findings about John Lawson and whether he is truly a ‘lay person’ other than to conclude that I am not satisfied there is any basis for an amendment to the applicant in this proceeding.
33	Thus, the request to amend the application under s 127 of the VCAT Act to refer to John Lawson as the applicant is refused.
Do the allegations of breaches of the OC Act warrant summary dismissal of the application for review under ss 75 and 76 of the VCAT Act?
34	The simple answer to this question is: no because the allegations of breaches of the OC Act are not matters that I can deal with in the Planning and Environment List.  Disputes arising under the OC Act of the nature described by the respondent are matters for resolution in a different forum.  
35	The respondent’s allegations of John Lawson’s conduct put him on notice of potential further action based on that conduct.
36	I understand the respondent’s submission acknowledges that I cannot make any findings about the allegations under the OC Act as I am sitting in the Planning and Environment List and the jurisdiction that arises with respect to the proceeding is under s 82 of the PE Act.  I also note that once I made a finding that the objection to council was made on behalf of the applicant, then the applicant has standing under s 82 of the PE Act to commence the proceeding.  Whether the applicant commenced those proceedings in breach of s 18(2) of the OC Act is a matter for a different forum.
37	Whilst I understand the respondent’s submissions about John Lawson’s conduct being vexatious, misconceived or lacking in substance, for the reasons set out below I would not summarily dismiss the application.
Should the application for review nonetheless be summarily dismissed under s 75 of the VCAT Act?
38	The reasons in support of the application for review are set out in section 16 of that application and state:

39	On their face, these grounds raise legitimate planning matters related to the application for the planning permit.  The relative strengths of these grounds will be a decision for the Tribunal constituted to hear the proceeding, if that is necessary.
40	The respondent raised concerns with the nature of the grounds as they relate to John Lawson including alleged misinformation that he had provided to the members of the owners corporation including about the nature of the use, and its operating hour.  However, that does not mean the grounds set out in section 16 of the application for review are not legitimate planning concerns, it may simply go to the strength of those grounds.
41	I do note the grounds are somewhat general in nature and could be further particularised but the respondent has not made such a request.
42	In any event, I refer to and adopt the comments in Axicom that:
Summary dismissal in planning matters
11	Without in any way undermining the principles set out above, there are perhaps nuances in the way that they are applied in different types of VCAT proceedings – e.g. in civil proceedings where disputed facts are more commonly in issue, as opposed to the review jurisdiction. Different considerations may also be relevant to whether a proceeding is, for example, ‘vexatious’ or ‘lacking in substance’. 
12	Most review proceedings are between an applicant for a decision and the decision-maker. However, the Planning and Environment Act 1987 (PE Act) creates a rare review jurisdiction for third-party objectors at VCAT. Where the objector is the applicant for review at VCAT, the original applicant for the decision (i.e. the permit applicant) is cast in the role of a respondent, alongside the decision-maker. The nature of the interests of the respective parties, and the dynamic between them, is necessarily different. This has implications for summary dismissal.
13	Objector rights are an important part of the Victorian planning system. For objector applications seeking to review the grant of a planning permit, most raise arguable differences of opinion about the relevance or balancing of competing policies, objectives and decision guidelines under a planning scheme or the PE Act that influence how a merits-based discretion should be exercised by the decision-maker. In such matters, even though there may be no disputed facts, the nature of the discretion will make it difficult to demonstrate that a review proceeding is bound to fail. Objector applications may sometimes be weak, but not hopeless. The opportunity for summary dismissal will therefore still be rare and exceptional.
14	However, it does not follow, just because an objector-initiated VCAT proceeding is a de novo review of a decision involving the exercise of discretion, that an application for summary dismissal of such a proceeding can never be successful. It may be that an objector application for review under section 82 of the PE Act, when considered objectively at a summary level, is found to be devoid of planning merit. 
15	I consider that a review proceeding brought by third-party objector that is devoid of planning merit equates to a proceeding that is ‘misconceived’ or ‘lacking in substance’ for the purpose of section 75 of the VCAT Act. 
16	The power in section 75(1) of the VCAT Act is predicated on the ‘opinion’ of the tribunal that a proceeding is misconceived or lacking in substance etc. although, having regard to section 75(5), this is also a question of law.
17	In forming the requisite opinion, the Planning and Environment List at VCAT is uniquely constituted as an expert tribunal, with experienced members well able to determine the occasional matter that is devoid of planning merit and bound to fail. 
43	On that basis, I do not consider the burden of establishing the ‘very high bar’ for summary dismissal has been discharged.  The application for review is not on the material before me ‘devoid of planning merit’.
44	The respondent’s application for summary dismissal is refused.
Conclusion
45	In conclusion, I refuse to:
•	to amend the application for review to name John Lawson as the applicant; and
•	summarily dismiss the application for review.

Teresa Bisucci
Deputy President	

Help and support
Information for all parties is available at the Tribunal’s website www.vcat.vic.gov.au

For information about what happens after you make your application, visit
www.vcat.vic.gov.au/afterapplyplanning

For information about responding to an application visit www.vcat.vic.gov.au/respondplanning

If you are not able to access the website, contact the Tribunal on 1300 01 8228 Monday to Friday 9.00am to 4.30pm to request a paper copy.

To find out about the Tribunal’s support services such as interpreters, disability support and security, visit www.vcat.vic.gov.au/support

appendix A
compulsory conference INFORMATION SHEET
What is a compulsory conference?
A compulsory conference is a private meeting between the parties to the proceeding. 

With the assistance of a Tribunal member the parties can explore options to reach an agreement on all or some of the matters in dispute.  The parties should come with an open mind and flexibility in considering options that could resolve the case.

Unless all parties agree, evidence of anything said or done in the course of a compulsory conference (including any document provided to the Tribunal for the purpose of the compulsory conference) is not admissible in any hearing before the Tribunal in the proceeding. 

More information about compulsory conferences is available on the Tribunal’s website at www.vcat.vic.gov.au and in VCAT Practice Note PNVCAT4 – Alternative Dispute Resolution (ADR).

Requirement to attend compulsory conference
If you are a party, you must attend the compulsory conference in person or by a representative who has written permission to settle the proceeding on your behalf. If you do not attend, the matter may be resolved in your absence and you may be struck out as a party. If all the parties present at the compulsory conference agree, the Tribunal may make a final order or make other orders that may affect you in an adverse way. 

The Tribunal may make any of the following orders under the Victorian Civil and Administrative Tribunal Act 1998:
•	If you are the applicant, your application may be dismissed or struck out.
•	If you are not the applicant, you may be struck out as a party. This means that you can take no further part in the proceeding, including the hearing. 
•	The matter may also be settled, approving the proposal with or without changes.
•	You may be ordered to pay the costs of the other parties in certain circumstances.

Who may attend a compulsory conference?
Only parties to the proceeding may attend a compulsory conference.

A person is a ‘party’ to the proceeding if the person:
•	lodged an objection to the planning application
•	has given a completed Statement of Grounds form to the Tribunal by the due date and paid the fee
•	has indicated in their Statement of Grounds form that they intend to participate in the hearing

The following persons are NOT a party to a proceeding:
•	a person who did not lodge an objection to the permit application
•	a person who did not give their Statement of Grounds form by the due date and/or did not pay the fee
•	a person who has indicated on their Statement of Grounds that they do not intend to participate in the hearing

If you are not a party to the proceeding but wish to be heard, you can attend at the start of the compulsory conference and ask the Tribunal to join you as a party to the proceeding.  You will need to explain why you should be joined as a party to the proceeding.  Other parties will also be given the opportunity to tell the Tribunal whether they agree or disagree about you being joined as a party.  The Tribunal will then make a decision to join you as a party or not.

If you are not joined as party, you cannot take any further part in the compulsory conference and the Tribunal may make a final order or make other orders that may affect you in an adverse way.

A party who is struck out because they do not attend a compulsory conference cannot participate in any further compulsory conference or hearing.

What happens if agreement is reached at the compulsory conference?
If the parties present at a compulsory conference reach agreement, the Tribunal may make a final order to give effect to the agreement without a hearing being required. This can include allowing the proposal with or without changes.

What happens if agreement is not reached at the compulsory conference?
If parties present at the compulsory conference do not reach an agreement, a hearing date/s will be confirmed. An order will be issued by the Tribunal.

What happens if a partial agreement is reached at the compulsory conference?
If the parties reach agreement about some issues but not others, the hearing will proceed. If the parties present agree, the Tribunal may make an order that limits the issues to be considered at the hearing or specifies issues that will not be able to be considered. The Tribunal may also make further orders that restrict the ability of parties to raise any matters that were resolved at the compulsory conference. 

What should you bring to the compulsory conference?
Parties should be come to the compulsory conference with a summary of their issues and solutions. This could include possible changes that could be made to the proposal in order to address your concerns or the concerns of other parties.  The attached ‘Summary of Issues and Solutions for a Compulsory Conference’ may be used.  The applicant for the permit should bring an extra copy of any relevant plans including elevations.

Planning and Environment List
SUMMARY OF ISSUES AND SOLUTIONS for a compulsory conference
VCAT reference number	P210/2025	
Applicant	

	Owners Corporation - Plan No. 444603	

Responsible authority	Kingston City Council	

Your name		

It is suggested that each party identify key issues and potential solutions before the compulsory conference.  This will help to clarify the key issues that the parties consider most important to them and possible solutions.
Most important issues in dispute from your perspective (including any legal matters) Use additional pages if required

	

	
	
What potential solutions would you consider?  Use additional pages if required