Leasing and Property Newsletter – March 2017
In this edition our team report on:
- Upcoming changes to Retail Leases legislation in NSW;
- Unfair contractual terms in retail leasing;
- Proposed reforms for NSW Planning laws; and
- A wrap up of recent tribunal decisions regarding retail leasing in NSW and Victoria.
The Carroll & O’Dea Leasing and Property Team
New Retail Lease Regulations
On 21 February 2017 NSW Parliament passed the Retail Leases Amendment (Review) Bill 2016 which included a number of changes to the way retail leases are legislated in Australia. The new changes include:
- Scrapping of the minimum 5 year term
- Compensation for costs incurred due to fitout
- Reinforcing the requirements for lessor disclosure
- Exclusion of certain leases such as ATMs, vending machines etc. from the Retail Leases Act
- Allowing the requirement for police and security checks for lessee employees
- Further clarification as to whether market stalls fall under the Retail Leases Act
Paul Carroll, Partner
Changes to the Australian Consumer Law affecting Retail Leases
The protection against unfair contractual terms previously provided to Australian consumers under the Australian Consumer Law (ACL) has been extended to certain kinds of small business under the Treasury Legislation Amendment (Small Business and Unfair Contract Terms) Act 2015 (Cth). One area that will be significantly affected by this change is retail leases and the use of certain standard terms in leases.
Proposed changes to the New South Wales planning regulation
A new Minister for Planning is not the only change in the NSW Department of Planning and Environment, with the then Planning Minister Rob Stokes announcing on 9 January 2017 new reforms to State’s key planning legislation, the Environmental Planning and Assessment Act (NSW). While being narrower in scope to the previous (and now lapsed) Planning Bill 2013 (NSW), the proposed changes in the Environmental Planning and Assessment Amendment Bill 2017 (NSW) nevertheless introduce a significant new focus in the way that planning assessments are to be treated.
Recent tribunal decisions in retail leasing
Partner Matthew Rafferty reviews three recent tribunal decisions relating to retail leases. Issues raised in these matters were:
- Whether water usage charges are a part of outgoings or can be charged separately from any gross rent?
- Whether a tenant can escape lease obligations if they have signed the lease incorrectly?
- What is the relevant time when considering the financial resources of potential assignors and assignees when those resources change?
Matthew Rafferty, Partner