The Retail Leases Act 2003 and Council owned
premises (August 2008)
The Minister for Small Business has made a determination
published in the Victoria Government Gazette No. S 209 on 24
July 2008 (the Determination) which comes into effect on 1
The Determination has significant implications for councils
as it excludes the application of the Retail Leases
Act 2003 (Act) to certain leases of council owned premises
entered into on or after 1 August 2008.
Purposes excluded from "retail premises"
The Determination provides that leases of council owned
premises will not constitute "retail premises" if the
premises are leased "wholly or predominantly" for any
of the following:
public or municipal purposes;
residence or education and training of a religious
minister or persons to be a religious minister;
as a club, or memorial, for persons who served in the
First or Second World War or in any other war, for the
Returned Services League of Australia, for the Air Force
Association (Victoria Division) or for the purposes of the
Australian Legion of Ex-Servicemen and Women (Victorian
to a body, corporate or unincorporate, that exists for
the purposes of providing or promoting community, cultural,
sporting, recreational or similar facilities, activities or
objectives, and that applies its profits in promoting its
objects and prohibits the payment of any dividend or amount
to its members.
The "wholly or predominantly" test
The phrase "wholly or predominantly" has been
judicially considered by the Victorian Civil and Administrative
Tribunal (VCAT) in the decision of Elmer v Minute Wit
Enterprises Pty Ltd  VCAT where the Tribunal
... no single factor by itself is determinative, that is,
one cannot just look at a spatial feature ... One must take all
[relevant] matters as a whole and come to a factual conclusion
of whether the premises described in the lease are used, or are
to be used, "wholly or predominantly" for...
Accordingly, a lease of council premises will not be a
"retail premises" lease if under the lease, when
considered in its entirety, the premises are to be used
"wholly or predominantly" for any one of the
Similar to the other ministerial determinations that exclude
certain types of leases from the operation of the Act, a
certificate signed by the Small Business Commissioner shall
constitute evidence that a lease is one to which the
A copy of the Government Gazette outlining the Determination
is available online at
www.sbc.vic.gov.au Maddocks Property Team for Local
Government For further information regarding any of the
articles in this Update, please contact a member of our team
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