Leasing and Property Newsletter – April 2017
Published on April 4, 2017 by Alex Collie, Matthew Rafferty and Paul Carroll
INTRODUCTION
In this edition our team report on:;
1) The effect that the entry of US giant Amazon into Australia may have in the retail world;
2) How the Exempt Development code allows certain development in NSW without approvals;
3) Recent tribunal cases regarding retail leases in NSW that explore:
a) The extent to which ease of access affects a retail tenant’s right to quiet enjoyment; and
b) Whether payment of a lease deposit can be called “rent” and sufficiently indicate the entering into of a binding retail lease.
The Carroll & O’Dea Leasing and Property Team
Flight of the Amazon
Rumours abound that Amazon’s planned invasion into the Australia market in September this year has one single focus: to destroy the Australian retail environment
A recent article published by News Ltd warns that Amazon’s plan is to collect pricepoints on every retail item before setting their prices at a whopping 30 % discount.
Retail king Gerry Harvey has vowed “I will fight Amazon to the death”
GST to the rescue?
Perhaps it is no coincidence that the Federal Government has ramped up its defence and recently introduced a Bill into Parliament to extend the GST to on-line sales of imported goods under $1,000.
Currently, imported goods valued at less than $1,000 do not attract GST. Amazon has 7,823,246 results for electronic goods alone under $1,000.
It is anticipated that the new GST regime will commence 1 July 2017 and that Australian businesses, particularly smaller retailers, will no longer be unfairly disadvantaged.
Paul Carroll, Partner
Exempt Development: Development without approval
Exempt Development has existing in NSW since 1993 and allows certain low-impact forms of development to be undertaken without undergoing the rigorous approvals process. In the last few years the Department of Planning has attempted to promote awareness of exempt development; both it and the similar streamlined-approval process of Complying Development are seen as tools to reduce the demands of numerous development applications. Exempt development is governed by the SEPP (Exempt and Complying Development Codes) 2008 which lists an array of different forms of exempt development and the specific requirements of each.
Paul Carroll, Partner
Alex Collie, Lawyer
In the Tribunals
Anastopoulos v University of Sydney Union [2017] NSWCATCD 6
Decision 30 January 2017
In this case, the University decided that a sliding door was to be kept permanently closed. The door separated the lift foyer of the building from the café. The café could still be accessed, but the Lessee argued that the main access to the café, especially during peak periods was through that sliding door. The lessee claimed that permanently closing the sliding door was a breach of quiet enjoyment – they won; although there are some interesting twists and turns in the case.
Le v Gallego [2017] NSWCATAP 58
Decision 15 March 2017
This is an unusual case involving the sale and lease of a property that was a combined residence and shop. The landlord bought the property after the tenant had commenced occupation, but there was never a signed lease. The landlord wanted the Tribunal to declare that a retail lease had been entered into pursuant to section 8 of the Retail Leases Act. The tenant claimed that the terms were never finalised and that they never commenced using the retail part of the property. What is interesting is that the landlord claimed the lease deposit was a payment of rent under the lease – a key part of section 8.
Matthew Rafferty, Partner
