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Legislative Assembly for the ACT: 2001 Week 3 Hansard (6 March) . . Page.. 651 ..

MR STANHOPE (continuing):

(b) if the lease is a sublease-the sublease is as long as the term of the head lease allows; or

(c) the lease arises when the tenant holds over after the end of an earlier lease with the consent of the lessor and the holding over is for 6 months or less; or

(d) the lease is excluded from this section under the regulations.

They are some of the exclusions that I referred to previously. As I said, I think it is appropriate that those exclusions exist within this section having regard to the particular rights of investors and recognition of the fact that we are not here in the business of conveying title, and an absolute right of preference really does convey title. It effectively conveys the landlord's interests in his own property, and that really does need to be avoided.

But the particular point I made is: what does this mean: "The lessor is not obliged to prefer the tenant under this section if the lessor reasonably wants to change the tenancy mix within the shopping centre"? It seems to me that that is a paragraph that should be interpreted according to the ordinary meaning of all the words used there. If the lessor reasonably wants to change the tenancy mix within the shopping centre then the provision does not apply. It was put to me by some developers that that needs to be construed in terms of the overall mix. If you change the mix in the shopping centre you are talking about a significant or substantial change in the tenancy mix.

Some of the representatives of mall owners, the large investors in town, insisted to me that that meant that the landlord, in order to be able to rely on that particular exclusion, would have to be proposing to change 20, 25 or 30 per cent of the centres tenancy mix. I responded by saying, "Well, on what basis do you make that sort of claim? Where did you grab these figures from? On what basis do you assume that, in order to reasonably change the tenancy mix you are talking about, a court would construe that as meaning that you have to change 20 or 25 or 30 per cent?" It is a nonsensical suggestion to me. The advice that was provided to me is that it does not mean that at all. A change in tenancy mix means a change in precisely that, being the arrangements that currently exist in relation to the tenants that currently lease premises within the building. I think it is important that we have a debate about what that means so that we are all clear, as legislators, in relation to what it is that we are legislating on.

Mr Rugendyke's exception there talks about a lessor reasonably wanting to change the tenancy mix within a shopping centre. If anybody here thinks that that means that we are talking here about 20 per cent or 30 per cent rather than the clear words that are expressed there for the tenancy mix, then I think we probably need to get that on the record now so that perhaps some judicial notice can be taken of what it is that this legislature intends. As far as I am concerned it means just what the words say; a change in the tenancy mix may mean a change in the make-up of the building. That is my understanding of what it means, and if others believe it means something else they should say so for the edification of our magistrates and judges.

As I said, a landlord has other rights reserved in the section, such as the right not to prefer a tenant who consistently or substantially breaches the lease, and the right not to re-let the premise if the landlord wants it for his own purposes.

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