A lease of part of land or part of a building for more than 10 years must have prior town planning approval. Otherwise dividing land into parts for separate occupation, other than a lease for a term, including renewal options, not exceeding 10 years, constitutes ‘reconfiguring a lot’ under the Planning Act 2016.[1] As this legislation relates to land use, there is no restriction on a lease for a longer term over the whole of a lot.
For some time in was common practice to get around legislation of this kind by registering consecutive leases. A consecutive lease structure would involve a 10-year lease being registered, and then at the same time a second (or further) 10-year lease with an advanced commencement date would be registered concurrently. Applying the maxim that ‘what cannot be done directly, cannot be done indirectly’, in Equuscorp the Court of Appeal in Victoria has found leases of his kind to be unenforceable.[2] Before that case, the leading case in the Queensland Court of Appeal had come to an opposite conclusion in circumstances where the breach of the legislation was found to be trivial.[3]
[1] Planning Act 2016 (Qld), Schedule 2.
[2] Equuscorp Pty Ltd & Anor v Antonopoulos [2008] VSCA 179. The primary judgment in Equuscorp Pty Ltd v Belperio [2006] VSC 14 at [250]-[253] applied Emad Trolley Pty Ltd v Shigar [2003] NSWCA 231; (2003) 57 NSWLR 636 per McColl JA at [79].
[3] Makucha v Benmar Properties Pty Ltd [1995] QCA 340.