Does a whole-of-lot lease trigger “reconfiguring a lot”?
A long-term lease can, in some circumstances, amount to reconfiguring a lot. However, that does not mean every lease exceeding ten years automatically requires a reconfiguring a lot approval.
The starting point is the definition.
Under the Planning Act 2016, reconfiguring a lot relevantly includes “dividing land into parts by agreement rendering different parts of a lot immediately available for separate disposition or separate occupation”, other than by certain agreements, including a lease for a term, including renewal options, not exceeding ten years.
That wording is important.
The operative concept is not simply the grant of a lease. It is the dividing of land into parts, so that different parts of a lot become immediately available for separate disposition or separate occupation.
That raises a practical question: if a lease covers the whole of a lot, has there been any division of land into parts?
On an ordinary reading, the better view is that a whole-of-lot lease is not caught by that limb of the definition. The land has not been divided into different parts. There is no separate occupation of different parts of the lot. There is simply one lot, leased as one lot, to one tenant.
The ten-year threshold does not appear to operate as a standalone rule that every lease over ten years is reconfiguring a lot. Rather, it qualifies the type of agreement that would otherwise fall within paragraph (d). In other words, the lease must first involve the dividing of land into parts. If that threshold is not met, the fact that the lease is for more than ten years should not, of itself, make the lease a reconfiguration.
That said. A document described as a “whole-of-lot lease” may, in substance, do more than that. For example, the lease may carve out exclusive use areas, separately occupied areas, sublease areas, common access arrangements, or other rights that effectively divide the lot for occupation. In those circumstances, the RAL issue may come back into focus.
The practical lesson is that the question should not be framed as:
“Is the lease for more than ten years?”
The better question is:
“Does the agreement divide the land into parts and make different parts of the lot available for separate occupation or disposition?”
For planners, lawyers and property professionals, this is a useful reminder that planning consequences often turn on the statutory language, not merely the label attached to the transaction. A lease of part of a lot for more than ten years may well raise a RAL issue. A lease of the whole of a lot will not.
As always, the answer will depend on the terms of the proposed lease and the practical effect of the arrangement. But the words “parts of a lot” should not be overlooked.
This article has been co-authored by Mullins Lawyers Partners, Mitchell Osborne MPIA and Fiona Sears, together with Planning and Environment Associate, Gus Haseler.
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Mitchell Osborne MPIA
Partner
Mullins Lawyers
07 3224 0212 | 0411 848 356
[email protected]
Mitchell is a Planning and Environment Partner in our Property team, bringing over 15 years of specialist experience in environment, planning, and construction law. He is also a qualified town planner, giving him a unique perspective on the intersection of planning policy, legal frameworks, and practical project delivery. Mitchell advises developers, landowners, construction professionals, local and state government authorities, and submitters on a broad range of planning, development, construction, and environmental matters, including litigation in the Planning and Environment Court.
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