JURISDICTION - consumer and trader - whether Brisbane City Council as an assessment manager for applications for development approval is a trader

City of Brisbane Act 2010 (Qld), s 99(4)

Sustainable Planning Act 2009 (Qld), s 260(d)(i), s 436(2)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 12(4)(b), s 102, Schedule 3

Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 83

[1] Peter Aronis as power of attorney for Maria Aronis ('the Applicant') seeks to challenge a decision of the Brisbane City Council ('the Respondent') not to refund his lodgement fee associated with a development application. The Applicant also seeks a refund of third party outlays in lieu of his challenging conditions of approval imposed on a development permit issued by the Respondent.

[2] The Respondent submits that Queensland Civil and Administrative Tribunal does not have jurisdiction to determine this matter.

[3] The Applicant relies upon s 12(4)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) ('QCAT Act') and asserts that there is a contract between himself as consumer and the Respondent as trader.

[4] Pursuant to Schedule 3 of the QCAT Act, trader is defined as follows:

(i) carries on a business of supplying goods or providing services; or

(ii) regularly holds himself, herself or itself out as ready to supply goods or to provide services of a similar nature; and

(b) includes a person who is or was the landlord of premises let to a tenant as a dwelling other than for -

(i) assigning or subletting the dwelling to someone else; or

1. However, a person is not a trader in relation to goods or services if in supplying the goods or providing the services -

(a) the person acts in the exercise of a discipline that is not ordinarily regarded as within the field of trade or commerce; or

(b) the person is giving effect to the instructions of someone else who in providing the instructions acts in the exercise of a discipline that is not ordinarily regarded as within the field of trade or commerce, and the goods supplied or the services.

[5] The Applicant says that the Respondent meets this definition as it advertises its business to the public, holds pre-lodgement meetings to provide information and receives awards from consumers who want to use this service.

[6] The Respondent says it has a statutory obligation to act as an assessment manager in respect of applications for development approval. It is not an enterprise conducted by the Respondent for gain or profit. Indeed, the fee imposed by s 260(d)(i) of the Sustainable Planning Act 2009 (Qld) is expressly prohibited under s 99(4) of the City of Brisbane Act 2010 (Qld) from being anything more than recovery of the cost to the Respondent of assessing each development application that it is required to assess. Further, the Respondent's statutory obligation cannot be categorised as contractual in nature.

[7] In light of the above, the Respondent says the Applicant's complaint does not fall within s 12(4)(b) of the QCAT Act.

[8] Further the Respondent says the complaint raised by the Applicant should be in the correct forum, namely, the Planning and Environment Court which has exclusive jurisdiction to determine such matters.[1]

[9] Having considered the submissions of both the Applicant and the Respondent, the Tribunal prefers and accepts the submissions of the Respondent rather than the submissions of the Applicant.

[10] The Tribunal considers on the evidence that the Respondent is not a trader as defined in Schedule 3. Furthermore, the fact the Respondent is subject to the constraint that is imposed by s 99(4) of the City of Brisbane Act 2010 supports the Tribunal's view that the Respondent is not a trader as alleged.

[11] Accordingly, the Tribunal finds that it does not have jurisdiction to determine this matter and dismisses the application.

[12] There will be no order as to costs bearing in mind s 102 of the QCAT Act and r 83 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld). Also there will be no order as to interest as the Tribunal considered it is not justified in this application.

[1] Sustainable Planning Act 2009 (Qld) s 436(2).