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16/01/08
Section 4(2)(f) of the Retail Leases Act 2003 allows the Minister to make a determination under section 5(1)(c) to exclude certain premises from the definition of retail premises.
One of the determinations made by the Minister (contained in the Victorian Government Gazette No. S75 30 April 2003) excludes the following premises from the Retail Leases Act 2003:
Premises that are located entirely within a building which, under the terms of the lease relating to the premises, or part of the premises, are used, or are to be used, wholly or predominantly for the retail provision of services, other than premises located entirely on any one or more of the first three storeys in a building, excluding any basement levels.
It is important to note that the exclusion does not apply to:
(1) premises that are used wholly or predominantly for the sale or hire of goods by retail; and
(2) retail premises located in a retail shopping centre.
These types of premises fall within the application of the Retail Leases Act 2003 even if they are located above the third storey of the building.
It is also important to note that the third storey of a building may not necessarily be the third floor of the building. In determining whether the premises are located within the first three storeys of the building, the basement of the building (if any) is ignored and the next 3 levels (including any mezzanine level) above the basement will be the first three storeys of the building.
For further information regarding this issue, please contact Peter Bazzani on 9670 0722 or pbazzani@bsblawyers.com.au.