Australian merger control regime’s application to property transactions

“Assets” are defined broadly to include any kind of property, legal or equitable rights, and goodwill—so the regime captures freehold interests, leasehold interests, agreements for lease, options over land, and equitable interests.

Notification thresholds

For acquiring all or substantially all of the assets of a business, the monetary thresholds are:

•  Large merged firms: Combined Australian revenue of the acquirer and target ≥ AUD200million
• and the target has Australian revenue ≥ AUD50m or the global transaction value ≥ AUD250m.

Very large acquirer: Acquirer’s Australian revenue ≥ AUD500m and the target has Australian revenue ≥ AUD10m.

 Thresholds also apply to creeping or serial acquisitions:

• Large merged firms: Combined Australian revenue of the acquirer and target ≥ AUD200m and the cumulative Australia revenue from acquisitions in the past three years that predominantly involves the same or substitutable goods or services is ≥ AUD50m.
• Very large acquirer: Acquirer’s Australian revenue ≥ AUD500m and the cumulative Australia revenue from acquisitions in the past three years that predominantly involves the same or substitutable goods or services is ≥ AUD10m.

Many property acquisitions will be “discrete asset” acquisitions (i.e., not all or substantially all of the assets of a business). For discrete assets, simplified thresholds apply: 

• Large acquirers: Acquirer’s Australian revenue ≥ AUD200m and global transaction value ≥ AUD200m; or
• Very large acquirers: Acquirer’s Australian revenue ≥ AUD500m and global transaction value ≥ AUD50m.

Ordinary course of business exemption

Acquisitions of interests in land in the “ordinary course of business” are exempt from notification, even if thresholds are met. The explanatory materials take a broad approach to this concept, and it is not limited to the acquirer’s particular business. 

Likely to be ordinary course: acquiring land or property for the purpose of an office, headquarters, or other routine trading activities, or acquiring land or property for a warehouse or manufacturing facility.

Not ordinary course: land acquired for land-banking, acquiring land a competitor operates on, or acquiring land which effectively transfers production capacity from one competitor to another (e.g., acquiring land associated with a competitor’s manufacturing facilities).

Leases

A lease of land is an acquisition of assets under the regime, as is entering into an agreement for lease (being an equitable interest). Where thresholds are crossed, the ACCC must be notified before the lease is “put into effect”. The ACCC’s view is that a lease is put into effect once a lease is executed and any substantive conditions precedent are satisfied, as that is when an equitable interest in land is acquired. Therefore, if thresholds are crossed, approval must be obtained prior to satisfying the conditions precedent.

When considering the thresholds for a “discrete asset” acquisition, the transaction value/consideration for a leasehold interest in Australian land will generally bethe total of any:

• up-front initial payments (other than taxes and regulatory charges) for the grant of the leasehold interest; 
• periodic payments for the benefit and enjoyment of the land (for example, annual lease payments including amounts as increased in accordance with a formula over the term of the lease); and 
• amounts likely to be paid for an extension or renewal of the lease (if prescribed under the lease agreement).¹

License

The initial grant of a license by a government or statutory body (where that license was not previously in existence) generally falls outside the regime and is not notifiable, as it is unlikely to be an acquisition of the “assets of a person” or “assets of a corporation”.

Other key exemptions

The following are also generally exempt: lease renewals and extensions; acquisitions of land for residential property development; acquisitions of land by businesses primarily engaged in buying, selling, leasing, or developing land (provided the purpose is not to operate a commercial business on the land  that is not ancillary or incidental to the primary purpose); sale and leaseback arrangements; and multi-stage acquisitions where an equitable interest was previously notified or acquired before January 1, 2026.

Practical points

The ACCC assesses whether the acquisition would have the effect, or be likely to have the effect, of substantially lessening competition in a market. In many cases there will be no substantive competition law issue, meaning ACCC clearance or a waiver should be obtained promptly. For simple matters, approval is often obtained in 2–4 weeks.

Timing

• A waiver process exists for straightforward deals that plainly do not raise competition concerns (up to 25 business days). For land acquisitions used as business inputs (e.g., head offices or warehouses), the ACCC has indicated that a waiver is likely appropriate where assets of that type are not scarce, there are no barriers to rivals obtaining similar assets, and the counterfactual will not lead to a more competitive market.   
• Where a waiver is not appropriate, the standard pathway is a phase 1 review (up to 30 business days).  

Costs

• Waiver applications: AUD8,300.   
• Phase 1 clearance notifications: AUD56,800.

Footnotes

1 We understand the Treasury have acknowledged that long leases may create problems, and changes to accommodate long leases are being considered.