Town Planning in Victoria
Regardless of whether you are buying, selling or starting up a practice in Victoria, expect your lawyer to ask:
- What is the town planning status of the practice premises?
- Is there an existing town planning permit?
- How long has the practice been carried on at the premises?
- How many practitioners (dentists, veterinary surgeons, medicos etc.) can practice at the premises at any one time?
- Is the current use an ‘as of right’ use? Does the town planning permit restrict the operating hours?
Buying a practice?
Part of your, or your lawyer’s, due diligence is assessing the status of the town planning permit.
Review the permit and ensure the actual use by the practice owner is not in breach of the permitted amount of practitioners (actually on site at the one time) and operating hours.
It is also important to distinguish a town planning permit from a building permit.
Selling a practice?
A practice without a permit will not necessarily frustrate a potential sale.
Practice age and evidence of long and continued use is accepted as compliance in many situations and lawyers should be ready to advise their clients to not unnecessarily stress out if there is no valid permit.
This is of course subject to any clear and fundamental contraventions of the permit or usage of the premises. Vendors should be willing to warrant that they hold all statutory certifications, licences, registrations, approvals, permits, consents and authorisations necessary for the carrying on of the practice at the practice premises.
Starting up a practice?
Your lease, heads of agreement, agreement to lease, lease proposal, offer to lease (or whatever leasing agents wish to proffer to you) must be subject to town planning due diligence and the appropriate town planning conditions.
If you are planning to start up a practice, your permit needs to state:
- The usage (medical/dental/veterinary);
- The minimum amount of practitioners which you require to practise at any one time – if you need three (3), it must state three (3);
- The minimum operating hours and days – do you want to operate on weekends or in the evening? Ensure your permit allows it.
We are often surprised to see what actually issues from council town planning departments!
Reviewing Your Town Planning Permit
| Query | Response | Commentary |
|---|---|---|
| What is the town planning status of the practice premises – Is there an existing town planning permit? | ‘Planning permit available’ – great. ‘Planning permit not available’ – … see next query. | In most circumstances, a town planning permit should have been procured when the practice started up. If you are buying a practice – ask the broker or vendor directly. If you are starting-up – ask the leasing agent for the permit history! |
| No town planning permit… How long has the practice been carried on at the premises? | ‘The practice is < less than 15 years old.’ ‘The practice is > older than 15 years.’ | <15 years – A planning permit was likely required when the practice was established. >15 years – Existing use privileges may well apply to remove the need for a formal planning permit. Note: there are state-by-state intricacies here to be aware of. |
| Is the current use an ‘as of right’ use? | ‘Legal talk….’ | In many jurisdictions an ‘as of right’ use applies for premises that have consistently held the same amount of practitioners practising at any one time. |
| How many dental practitioners practise dentistry at the premises at any one time? | ‘Between 1 and 4 in past 10 years.’ | If the response was 2 consistently at any one time for 15 years then the as of right usage has not changed and you would likely have existing use privileges. |
| Does the town planning permit restrict the amount of practitioners practising dentistry at the premises at any one time? | ‘The council said the carparking reduction permit would suffice?’ | Local council ordinances allow for car parking reduction schemes in order to facilitate the amount of dental practitioners practising in the practice – be cognizant, however, that going from 1–2 permitted practitioners may be acceptable to the council, 1–4 may not be. |
| Does the town planning permit restrict the operating hours? Does the town planning permit allow for weekend surgery? | ‘Legal talk….’ | Patients want after 5pm weekdays and weekend appointments – not all planning permits allow extension hours. Buyer/start-up due diligence beware if you are planning on practising outside your planning permit hours, you could be in breach of the permit! |
Don’t Make This Mistake
Do not execute any document with a leasing agent or landlord which does not address the important issue of town planning permits or other permitted use.
The due diligence process surrounding permits is sometimes misunderstood and often seen as an irritation by the vendor’s or landlord’s advisers. Delays can occur in satisfying reasonable town planning queries without proper management and co-operation from all parties.
If you’re looking to buy, sell or start up a practice in Victoria, get in touch with Aintree Group Legal to discuss how to remain compliant.
This is general advice only and has not been prepared with your individual situation or needs in mind. For personalised advice, we highly recommend that you seek professional guidance from a qualified adviser.
About Julian Whitehead
Assisting with practice sales and acquisitions, property and lease negotiations, start-ups, compliance, risk management, due diligence and dispute resolution, Julian is passionate about providing advice that is strategic, pragmatic, and tailored to each client’s circumstances.
Julian places great importance on his clients’ long-term objectives. He believes that clear, candid communication and close collaboration with both his clients and their broader advisory team are key to achieving the best outcomes.
That collaborative approach aligns naturally with Aintree Group’s integrated model, with his clients able to access coordinated legal, accounting, wealth and business advisory expertise as their needs evolve.
