Before You Sign: Understanding Council Planning Rules for Your Business Lease

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Before You Sign: Understanding Council Planning Rules for Your Business Lease

Before You Sign: Understanding Council Planning Rules for Your Business Lease

Before you sign a lease or invest in fit-out works, it’s crucial to understand council planning rules that apply to the premises. This can prevent expensive mistakes, legal disputes, and unnecessary stress.

Key Takeaways for Tenants

Do your homework: Confirm zoning, permitted use rules, and council approvals before signing a lease or starting any works. Being in the right zone is not the only requirement.
Act early: Engage your local council before signing or starting works — not after.
Don’t assume: Relying on advice from landlords or agents can lead to costly mistakes.
Councils have no discretion: They are legally required to investigate complaints and enforce planning requirements.
Know your options: If issues arise, a qualified town planner can help explain the complexities. The QSBC cannot direct or influence a council’s planning decisions.

Queensland planning laws and local schemes are established by elected members and aim to balance development with protecting community quality of life and the environment; often prioritising community needs over unrestricted commercial activity. Every Queensland Council has its own planning scheme that determine the approvals required – not knowing is not a defence.

The Queensland Small Business Commissioner (QSBC) regularly speaks to small businesses that:

didn’t realise planning and building use rules applied to them as tenants, and
are surprised by the costs involved in meeting council planning rules.

Most leases place the onus entirely on the tenant to obtain all necessary approvals, unless tenants negotiated a different arrangement before signing. Read our fact sheet for more tips when entering a commercial lease.

Confirm Zoning, Permitted Use, and Council Approvals

Even internal changes or a change of use by adding a new service (a micro-brewery hosting markets or a wellbeing provider adding classes onsite for example) can trigger a Development Approval (DA) or Material Change of Use (MCU) requirement — tenants often assume a DA only applies to structural or external works.

Before signing a lease or starting any works, confirm:

Zoning: Is your intended business activity permitted under the zoning of the premises?
Permitted Use: Does the premises have council approval for your type of business? This is separate from zoning and is a common area where tenants are caught out.
Council Approvals: Will you need a DA or other approval for fit-out, signage, structural changes, parking, extension to gross floor area, outdoor seating or if you add a new service?
Strata By-laws: If the premises are strata-titled, body corporate rules can restrict activities (such as cooking or loud music) regardless of council zoning. Check the specific building’s by-laws.

Contact a town planning consultant or your local council’s planning department directly — a pre-lodgement meeting (sometimes called a pre-lease enquiry meeting) can clarify requirements before you commit to a lease. The QSBC cannot direct or influence a council’s planning decisions.

The Risks of Relying Solely on Landlords or Agents

Landlords and agents are often careful not to provide definitive answers on council requirements. Statements like “It should be fine when you check with council” may sound reassuring, but they may simply be confirming that according to the lease, it is up to the tenant to obtain all necessary approvals.

Always confirm requirements directly with council, in writing.
Get any assurances from your landlord or agent in writing and pay particular attention to the wording.

If you believe a landlord or agent made false or misleading statements about the premises meeting council requirements, Section 43AA of the Retail Shop Leases Act 1994 may provide retail shop tenants a path to compensation, commencing with the QSBC’s mediation service. If not resolved the dispute may be referred to QCAT if eligible. Be aware: proving verbal statements in a tribunal or court can be challenging — seek legal advice before taking action.

Not sure if you have a retail shop lease? Read: What is a Retail Shop Lease in Queensland.

Already Signed a Lease and Facing a Council Enforcement Notice? Read This First.

Council enforcement is not a negotiation. If you are operating without the necessary approvals, or there is a complaint from a neighbour or member of the public, understand the following before taking any steps:

Council has no discretion. Legislation requires councils to investigate and enforce. They cannot overlook non-compliance and will follow up. Council’s development compliance section is a reactive department and act solely on information provided to them by members of the public, bringing certain non-compliances matters to their attention.
You may be required to stop operating until your business activity is deemed compliant. A cease-operation order is a real risk.
Retrospective approvals can take longer and cost more, compared to approvals sought before opening according to reports to us by tenants — approval is not guaranteed.
Costs can reach tens of thousands of dollars. Town planner fees, specialist reports, application fees, and infrastructure charges can accumulate quickly.
Your lease likely transfers these costs to you. Most leases place the onus on the tenant to hold all necessary approvals and meet any costs arising from non-compliance.
The QSBC cannot direct a council to change a planning decision. We can assist with disputes between you and your landlord but council compliance is outside our jurisdiction.
If you believe you were misled by a landlord or agent, you may have rights under the Retail Shop Leases Act 1994. Trying to prove verbal agreements in tribunal can be challenging. Seek legal advice early.

Councils Must Investigate Complaints and Enforce Compliance

If a complaint is lodged about your business by a neighbouring business or member of the public, the Council is legally obligated to investigate. In our experience, the businesses that attract the most complaints are gyms, pet day care and dog grooming, micro-breweries, injectables studios, car repair shops, and day spas — with parking, noise, traffic, odour or adding a new service not in their original approval the most common issues raised.

Queensland Councils have no discretion under legislation. If they find a breach, they must act — which can mean fines, orders to cease operations, or requirements to carry out costly rectifications. Upon receipt of the non-compliant action, Council typically issues a Show Cause Notice to the breach for the proponent to respond to. At this stage, either the land use activity ceases operation, or necessary actions are put in place to obtain the necessary development or building approvals.

What to Do If You Have a Complaint or Dispute with Council

If you receive a Decision Notice (an approval with conditions, or a refusal), or believe council has not followed proper process, you have options. Consider seeking professional advice about your options from a town planning consultant or a property lawyer with expertise in planning and property disputes. Keep copies of all decision notices, correspondence, and submissions, these will be critical if you need to challenge a decision.

Work with council first: Ask about alternatives, infrastructure agreements, or amended proposals. Cooperation before escalation is always worthwhile but note that typically council decisions cannot be negotiated.
Lodge a formal complaint or review request: Processes vary by council — contact your Council’s planning department for the correct pathway.
Development Tribunals: An appeal can be made to the Development Tribunals when a person is dissatisfied with building, plumbing and certain planning decisions made by local government.
Planning and Environment Court: You typically have 20 business days from the Decision Notice to file a Notice of Appeal. Court fees apply and timeframes are strict. Infrastructure charges can also be appealed separately. This is a complex area of law that will require the services of a qualified planning lawyer.
Queensland Ombudsman: The Ombudsman can investigate whether council followed proper procedures but cannot direct council to change its decision. See their information on making recommendations based on an investigation.

If You Have Already Started Operating

Complaints by neighbouring businesses or their customers will lead to investigation by The Council. If The Council uncover that proper planning and usage requirements have not been met, then you should expect them to take action by issuing a Show Cause Notice. You may need to stop operating or modify operations until you are compliant. However, you should seek professional town planning advice and can try cooperating with council to minimise disruption and consequences. Expect to have additional costs and for the processes to take considerable time. Tenants have consistently told us retrospective compliance is far harder than doing it right from the start.

Due diligence is an investment in protecting your business. For more information or assistance, contact the QSBC or your local council.

To discuss your situation, and get connected with people that can help, reach out to our Assistance team.

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