Leasing and Property Newsletter – September 2017
Published on September 4, 2017 by Alex Collie, Matthew Rafferty and Paul Carroll
In this edition our team report on the following topics:
- The Commonwealth Government’s request for submissions regarding the widening of Telcos powers to install communications infrastructure;
- Whether provisions in a disclosure statement can override the lease;
- What the result is when the permitted use for a retail premises is no longer possible; and
- The introduction of local planning panels in NSW and removal of decision making powers from NSW councillors.
The Carroll & O’Dea Leasing and Property Team
This is a call: Suggested changes to the telecommunications carrier powers and immunities
Schedule 3 of the Telecommunications Act 1997 (Cth) provides telecommunications carriers with a raft of powers that allow them to install and maintain telecommunication facilities on public and private property. The extent of these powers may surprise some, including allowing carriers to install equipment on property despite the lack of consent of the owners, occupiers or an administrative authority. Schedule 3 also provides an “immunity” against many environmental and planning laws. Telecommunication carriers have recently asked the Australian Government to consider widening the extent of these powers to better enable them to rollout telecommunication infrastructure.
Alex Collie, Lawyer
Paul Carroll, Partner
Does the disclosure statement override the lease?
Piazza Trevi v Cromwell BT Pty Ltd [2017] NSWSC 794
(19 June 2017)
In this case, the disclosure statement (given before the beginning of the lease) provided that an option to renew should have been exercised by 30 September 2016. The lease provided that the option needed to be exercised by 31 August 2016. The lessee claimed to have exercised the option during September. The landlord wanted vacant possession. The Court considered what prevailed – the Disclosure Statement or the Lease.
Matthew Rafferty, Partner
Where it is not possible for the premises to be used for the tenant’s permitted use – can the lessee terminate?
RM Brothers Pty Ltd v SEBT Pty Ltd; SEBT Pty Ltd v R M Brothers & Morris [2017] NSWCATCD 43
In this case, the water supply to the premises was never adequate for the lessee to operate a self-serve frozen yogurt business. The lessor disclosed that the lessee would need to install a pump to obtain an adequate water supply to the premises, and that this was how the previous tenant operated. The lessee acknowledged this, and entered into the lease. The lessee was never able to obtain an adequate water supply and did not open for trade. The lessor terminated for failure to pay rent and claimed damages.
Matthew Rafferty, Partner
Local Planning Panels to take over decision making powers from NSW Councillors
NSW Parliament has passed laws introducing new “local planning panels” whilst also removing the decision making authority for Part 4 development from councillors. The 4-member panels will be comprised of an independent expert to chair the panel, two other experts and a local representative. Prohibited from joining these panels are any councillors, property developers or real estate agents. The panels will be able to decide on Development Applications (DAs) and it must be referred by councils for advice on particular developments.
Alex Collie, Lawyer
Paul Carroll, Partner
