VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
Civil Division 
Civil Claims List	
vcat reference No. C3389/2023	
CATCHWORDS	
Whether a dispute between a planning permit applicant and a municipal council over the cost of the removal of a tree is a consumer and trader dispute as defined in Australian Consumer Law and Fair Trading Act 2012 (Vic) s 182; find that the dispute over the cost of the removal of the tree is not a consumer and trader dispute and VCAT does not have jurisdiction under Australian Consumer Law and Fair Trading Act 2012 (Vic) s 184(1); proceeding struck out as misconceived under Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 75(1).	

APPLICANT	Mohammed Khan	
RESPONDENT	Brimbank City Council	
WHERE HELD	Teleconference	
BEFORE	Member K Knights	
HEARING TYPE	Hearing	
DATE OF HEARING	21 February 2024	
DATE OF ORDER	21 February 2024	
date of reasons	22 March 2024	
CITATION	Khan v Brimbank City Council (Civil Claims) [2024] VCAT 262	

FINDINGS
1.	For the reasons given orally at the hearing, the Tribunal finds it does not have jurisdiction; that the proceeding is misconceived and should be struck out under s 75(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).
ORDER
1.	The proceeding is struck out under s 75(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).
DIRECTION TO PRINCIPAL REGISTRAR
1.	The principal registrar is directed to amend the register to correct the name of the respondent from Brim Bank City Council to Brimbank City Council.

K Knights
Member			

APPEARANCES:		
For Applicant	In person	
For Respondent	Mr M Hayes, solicitor, Maddocks Lawyers	

Reasons
Parties and background to hearing on jurisdiction
1	The applicant, Mohammed Khan, owns land located within the Brimbank City Council (‘Council’) area.
2	On 1 April 2023, Mr Khan applied to the Council for permission to construct a crossover leading to his land.
3	The Council approved the application to construct the crossover on the condition that Mr Khan remove a tree in the nature strip abutting the land.
4	The Council informed Mr Khan that the Brimbank Tree Policy required the tree to be removed by the Council or a contractor approved by the Council.
5	The Council initially quoted the cost of removing the tree at $8,599 (GST inclusive). Upon review, requested by Mr Khan, the cost was reduced to $5,841.63 (GST inclusive).
6	On 4 June 2023, Mr Khan made application to VCAT for orders that either the Council’s cost of tree removal be reduced from $5,841.63 (GST inclusive) to a lesser sum or Mr Khan be permitted to engage an alternative and less expensive but independent arborist to remove the tree.
7	In its defence, the Council, submitted that VCAT does not have jurisdiction to determine Mr Khan’s application because the application is not a consumer and trader dispute that VCAT may hear under s 182(1) of the Australian Consumer Law and Fair Trading Act 2012 (Vic) (‘ACLFTA’). The Council submitted that in making its decision in relation to tree removal and the cost of tree removal, the Council was performing its statutory functions and was not providing a service in trade or commerce under the definition of ‘services’ in s 2(1) of The Australian Consumer Law.
8	On 21 February 2024, I heard the submissions of Mr Khan in favour of jurisdiction and the Council’s solicitor, Mr Hayes, solicitor with Maddocks Lawyers, that VCAT does not have jurisdiction.
9	Following the submissions from each of the parties, I gave an oral decision.  
10	At the conclusion of the hearing, the Council’s solicitor requested written reasons. My oral decision is set out below.
Findings and reasons for determination that no jurisdiction
11	This is the hearing of the Council’s application to strike out the proceeding under s 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’) on the ground that the proceeding is misconceived because VCAT does not have jurisdiction. 
12	The issue is whether the dispute between the parties is a consumer and trader dispute under s 184(1) of the ACLFTA.
13	The applicant, Mr Khan, disputes the Council’s charge for removing the tree. Mr Khan says that the Council’s charge for removing the tree is exorbitant and requests that VCAT make an order that Mr Khan pay a lesser charge or be permitted to retain an alternative independent arborist to remove the tree at a lesser charge. 
14	The Council says that the tree removal is a condition of the crossover permit granted to Mr Khan and that accordingly the tree removal and its cost is part of the Council’s statutory function and is not a service in trade and commerce. 
15	Mr Khan says that the cost of the tree removal must be regarded as being in trade and commerce because the Council is charging GST for the tree removal service. 
16	I find that GST is a Commonwealth tax imposed by Commonwealth law and not determinative of whether this application is a consumer and trader dispute as defined in s 182 of the ACLFTA and within VCAT’s jurisdiction under s 184(1) of the ACLFTA.
17	I find that it is not possible to separate out the Council’s requirement for tree removal as a condition of the crossover with its applicable policy for tree removal from the Council’s statutory function of determining Mr Khan’s application for Council approval of the crossover.
18	I find that because the Council’s requirement for tree removal as a condition of the crossover (with its applicable policy for tree removal) cannot be separated out from the Council’s statutory function of determining Mr Khan’s application for Council approval of the crossover, the dispute between Mr Khan and the Council about the cost of the tree removal is not a consumer and trader dispute under s 184(1) of the ACLFTA.
19	I find that my decision that the dispute about the cost of tree removal is not a consumer and trader dispute under s 184(1) of the ACLFTA is consistent with the order of the Tribunal in Freeman v City of Casey Council VCAT C346/2009 made on 21 October 2009.
20	Upon determining that the dispute between the parties about the cost of tree removal is not a consumer and trader dispute under s 184(1) of the ACLFTA, I am satisfied that VCAT does not have jurisdiction and accordingly the proceeding ought to be struck out under s 75 of the VCAT Act because it is misconceived.

K Knights
Member