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Concessional leases are leases that have been granted for less than market value (other than rural leases, Territory owned leases and other specified exceptions). They allow Government to help provide core community and social facilities that benefit the community. For example a concessional lease might be granted to a church or community organisation. Concessional leases have also been offered as part of business incentive packages to help the economic growth and development of the Territory.
Identifying concessional leases
On 22 September 2010 the ACT Legislative Assembly passed amendments to the Planning and Development Act regarding concessional leases. The amendments were included in the Planning and Development (Concessional Leases) Amendment Bill 2010 which can be accessed via www.legislation.act.gov.au. The amendments came into effect on 8 October 2010.
The amendments are intended to make it easier to identify whether a lease is concessional. Buyers, sellers, conveyancing lawyers and other interested people should be able to look at a lease in the Land Titles Register and know whether the lease is concessional or at risk of being concessional without having to do further detailed research.
To assist in clearly identifying concessional leases and non-concessional leases, the amendments deem certain leases to fall within the following categories:
- concessional leases - leases deemed to be concessional
- market value leases - leases deemed to be not concessional
- possibly concessional leases - leases deemed to be possibly concessional
The new category ‘possibly concessional’ includes leases that might or might not be concessional. This category is intended to serve as a flag or warning that the lease might be concessional and that further research may be needed.
Restrictions on dealings with concessional leases
During the term of the lease, the lessee, or anyone else with an interest in a concessional lease, must not deal with the lease without the written consent of The Planning and Land Authority.
Deciding whether a lease is concessional
The Planning and Land Authority can decide if a lease is concessional on its own initiative or a lessee may apply to us for a decision about whether the lease is a concessional lease.
In making a decision, we must give written notice to each person with a registered interest in the lease, invite representations in the notice and consider any representations made within 15 working days after the public comments close.
We must give written notice of the decision to the applicant and to anyone else with an interest in the lease to which the decision relates. A lessee has the right to apply to the Administrative Appeals Tribunal for a review of the decision.
If a decision has not been made at the end of the 15 working days, the lease is deemed to be a concessional lease. Despite a deemed decision that the lease is concessional, we may decide that a lease is not concessional. We will not be able to decide the lease is not concessional if an application is lodged with the ACT Civil and Administrative Tribunal for review of the deemed decision.
A notice that a lease is a concessional lease must be lodged with the Registrar-General.
Concessional lease change
A development application can be lodged to vary a lease granted as a concessional lease to remove its concessional status.
Removing concessional status
Deconcessionalising a lease requires the assessment of the social, cultural and economic impact of the proposal and, as a consequence, the lodgement of a development application in the merit track seeking to vary the lease. A Social Impact Assessment Guide has been developed and you must ensure your assessment meets the requirements.
Before assessing the development application, the Minister must consider the matter and conclude that the removal of the concessional lease status would be in the public interest, taking into account whether the change would disadvantage the community and other matters. If the Minister finds that the
change is in the public interest, we must then assess the development application against the requirements of the Territory Plan.
Approval to deconcessionalise
If approved, the lessee must pay the Territory the payout amount determined in accordance with a prescribed formula found in s 263 of the Planning and Development Act 2007.
Surrender and regrant of lease
If a lease is varied only to remove the concessional status by surrender and regrant of the lease, the regranted lease authorises each use that was authorised under the previous lease.