In each state across Australia, specific retail lease legislation applies to all premises located in shopping centres.

While other types of retail business, including those whose primary purpose is to retail either goods or services, are also covered by the legislation, there are specific rules set out in the legislation that only apply to businesses located in retail shopping centres (for example, certain rules about opening hours).

As a tenant,or prospective tenant, it’s important for you to know whether or not your lease is a retail shopping centre lease, so that you can best understand how the legislation applies to your business.

However, note that the definition of shopping centre varies from state to state.

This article explains what constitutes a shopping centre lease, examining the position of the legislation in each Australian state or territory.

New South Wales

Legislation How does the legislation define ‘shopping centre’?
Retail Leases Act 1994 (NSW)
  • A shopping centre is a cluster of premises, where at least 5 or more businesses are being used wholly or predominantly for the purposes of operating a type of business listed in Schedule 1 of the Retail Leases Act, 1994 (NSW). These businesses must be owned by the same person, have the same landlord or head landlord, or comprise lots within a single strata plan. They must be located in one building, or two or more conjoined buildings and must be promoted as or generally regarded as a shopping centre, mall, court or arcade

Queensland

Legislation How does the legislation define ‘shopping centre’?
Retail Shop Leases Act 1994 (QLD)
  • The current position is that a shopping centre Is a cluster of premises, at least five of which are used for a retail business. The cluster of businesses must be owned by the same person or comprise lots within a single community titles scheme. The premises must all be located in one building, or buildings separated only by a common area or a road. The premises must generally be regarded as, or must be promoted as, a shopping centre.The previous position, which applies to leases entered into before 3 April 2006, differs only in the sense that there is no reference to single community title schemes and multi-storey buildings are excluded if there are not at least five retail businesses, all owned by a common landlord, on each storey.
Legislation How does the legislation define ‘shopping centre’?
The Retail Leases Act 2003
  • A shopping centre is a cluster of premises, at least five of which are retail premises. This cluster must be under common ownership, or if leased, must have the same landlord, or the same head landlord. The cluster of premises must be located in a single building, or in adjoining buildings, that are separated only by common areas, other areas owned by the same landlord, or a road. The cluster of premises must also be promoted as, or generally regarded as, a shopping centre, mall, or arcade.

South Australia

Legislation How does the legislation define ‘shopping centre’?
Retail and Commercial Leases Act 1995 A shopping centre is a cluster of premises, at least 5 of which are retail shops. The premises must all be owned by the same person, have the same landlord or head landlord, or comprise lots within a community plan, or units within the same plan. The premises must be located in a single building, or in conjoined buildings, and must be promoted or generally regarded as a shopping centre, mall or arcade.
Legislation How does the legislation define ‘shopping centre’?
Fair Trading (Code of Practice for Retail Tenancies) Regulations 1998 A shopping centre is a cluster of premises, at least five of which are retail premises. The same person must own them, and they must be located in one building, or adjoining buildings. The premises must also generally be regarded as a shopping centre.

Western Australia

Legislation How does the legislation define ‘shopping centre’?
Commercial Tenancy (Retail Shops) Agreements Act 1985 (‘RSA’)
  • A shopping centre is a cluster of premises, at least five of which are used for the carrying on of a retail business. The shops must have a common head landlord, or comprise lots on a single strata plan. If the premises are located in a multi-storey building, only those levels of the building where a retail business is situated will be included in the definition of ‘shopping centre’.

Australian Capital Territory

Legislation How does the legislation define ‘shopping centre’?
Leases (Commercial and Retail) Act 2001 A shopping centre is a cluster of premises, at least five of which are retail, small commercial or specified premises, or a mixture of those types of premises. They must be owned by the same person, or the same head landlord, or comprise lots within a single strata plan managed by a single person/entity. They must all be located in the same building, or in conjoined buildings and must generally be promoted or regarded as a shopping centre, mall, court or arcade.

Northern Territory

Legislation How does the legislation define ‘shopping centre’?
Business Tenancies (Fair Dealings) Act 2003 A shopping centre is a cluster of premises, at least 5 of which are used wholly or predominantly to provide goods or services by retail. These premise s must fall under common ownership, or if leased, have the same landlord or head landlord. They can also comprise lots within a single units plan. The premises must be located in the same building, or adjoining buildings, or buildings only separated by common areas and/or other areas owned by the landlord. The premises must be promoted or generally regarded as a shopping centre, mall, court, or arcade.

Key Takeaways

The exact position as to what constitutes a shopping centre – and therefore what types of leases are retail shop leases – differs from state to state across Australia. However, there are certain commonalities that hold true across all jurisdictions. A shopping centre must:

  • Be a cluster of premises
  • Must contain five or more retail businesses
  • Contain businesses falling under common ownership, or leased by the same landlord
  • Be situated in a single building, or in adjoining or conjoined buildings
  • Be promoted, or regarded, as a shopping centre