Land can be a scarce competitive asset in ways that matter
Australia has reshaped the landscape of commercial property transactions by folding them into a mandatory merger control regime, requiring large acquirers to seek approval from the Australian Competition and Consumer Commission before deals can proceed. The reform reflects a broader recognition that the accumulation of assets — even land and leases — can quietly reshape competitive markets. For most routine acquisitions, approval is expected and swift; the regime's deeper purpose is to catch the exceptional case where a property deal becomes a tool of market foreclosure. In this way, a centuries-old act of commerce — acquiring land — is now understood as a matter of public economic consequence.
- Australia's new mandatory merger regime has arrived without warning for many property teams, suddenly requiring ACCC notification before leases are signed or land settlements proceed.
- The rules cast an unexpectedly wide net — capturing not just business sales but discrete property purchases, leasehold interests, options, and even agreements for lease above revenue-based thresholds.
- Exemptions exist but demand careful judgment: routine office or warehouse acquisitions are protected, while land-banking, acquiring a competitor's facility, or shifting production capacity are explicitly excluded.
- Approval timelines are workable — two to four weeks in most cases — but the filing fees, pre-deal sequencing, and risk of getting the exemption analysis wrong add real friction to transactions.
- The regime's underlying logic is competition, not property law: the ACCC's central question is whether any acquisition would substantially lessen competition, a test most routine deals will pass — but only after asking.
Australia has introduced a mandatory merger control regime that now reaches into property transactions, requiring acquirers to notify the Australian Competition and Consumer Commission before certain deals can proceed. The change is fundamental: land, leases, options over property, and agreements for lease are all treated as 'assets' under the regime, meaning almost any significant acquisition could trigger a review obligation.
The thresholds are calibrated to size. For whole-of-business asset acquisitions, notification is required where the combined Australian revenues of buyer and seller reach AUD200 million and the target earns at least AUD50 million locally, or where the buyer alone exceeds AUD500 million in Australian revenue and the target earns at least AUD10 million. For discrete property purchases — a single site rather than an entire business — simpler thresholds apply based on deal value and buyer size. The regime also captures creeping acquisitions: a series of smaller deals in the same market over three years that cumulatively cross the relevant threshold.
Exemptions provide meaningful relief for ordinary commercial activity. Companies acquiring offices, warehouses, headquarters, or manufacturing facilities in the normal course of business are not required to notify, even where thresholds are technically met. Residential development, lease renewals, sale-and-leaseback arrangements, and acquisitions by firms whose core business is property are similarly carved out. What falls outside these protections: land-banking, acquiring sites where a competitor operates, and transactions that effectively transfer productive capacity between rivals.
Leases are treated as asset acquisitions in their own right. If a lease or agreement for lease crosses the thresholds, notification must occur before the lease takes effect — that is, before execution and satisfaction of any substantive conditions. Valuation includes upfront payments, all periodic rent over the lease term, and any specified extension amounts.
Once notification is required, the ACCC offers two pathways. A waiver process — suited to deals that plainly raise no competition concerns, such as acquiring a non-scarce business input — costs AUD8,300 and can resolve within 25 business days. A full phase 1 clearance takes up to 30 business days and costs AUD56,800. In practice, most property transactions receive approval within two to four weeks. The ACCC's governing question — whether the acquisition would substantially lessen competition — is one most routine property deals will answer in the negative. But under the new regime, that answer must now be formally sought.
Australia has introduced a mandatory merger control regime that fundamentally changes how property deals get done. If you're acquiring land, a lease, or even an agreement for lease, you now need to understand whether the Australian Competition and Consumer Commission wants to review your transaction before you can proceed.
The regime casts a wide net. "Assets" includes freehold land, leasehold interests, agreements for lease, options over property, and goodwill. That means almost any significant property acquisition could trigger notification requirements—unless it falls within one of the carved-out exemptions.
The thresholds that trigger notification depend on the size of the buyer and the deal. For acquisitions of all or substantially all of a business's assets, the ACCC gets involved if the combined Australian revenue of buyer and seller reaches AUD200 million and the target has at least AUD50 million in Australian revenue, or if the global transaction value hits AUD250 million. Alternatively, if the buyer alone has Australian revenue of AUD500 million or more and the target has at least AUD10 million, notification is required. The regime also catches creeping acquisitions—multiple smaller deals over three years in the same market that add up to AUD50 million or AUD10 million depending on buyer size. For discrete asset purchases (single properties rather than entire businesses), the thresholds are simpler: buyers with AUD200 million in Australian revenue need to notify if the global deal value exceeds AUD200 million, or very large buyers with AUD500 million-plus revenue need to notify for deals over AUD50 million.
But there are important carve-outs. The "ordinary course of business" exemption lets companies acquire property for offices, headquarters, warehouses, or manufacturing facilities without notifying the ACCC, even if thresholds are crossed. The regulators take a broad view of what counts as ordinary course. What doesn't qualify: land-banking, acquiring property where a competitor operates, or deals that effectively shift production capacity from one competitor to another. Residential property development is also exempt. Lease renewals and extensions don't require notification. Neither do sale-and-leaseback arrangements, or acquisitions by companies whose primary business is buying, selling, leasing, or developing land—provided they're not using that land to operate a separate commercial business.
Leases themselves are treated as asset acquisitions. If you're entering into a lease or an agreement for lease and thresholds apply, you must notify the ACCC before the lease takes effect. The ACCC considers a lease "put into effect" once it's executed and any substantive conditions precedent are satisfied. For valuing a leasehold interest, regulators count the upfront payment, all periodic payments over the lease term (including formula-based increases), and any amounts likely to be paid for extensions or renewals if those are specified in the lease agreement. Government licenses granted for the first time generally fall outside the regime entirely.
Once notification is required, timing matters. The ACCC has two pathways. A waiver process handles straightforward deals that plainly don't raise competition concerns—these can be approved in up to 25 business days and cost AUD8,300. The ACCC has signaled that waivers are likely appropriate for land used as business inputs like offices or warehouses, where similar assets aren't scarce, competitors can easily obtain comparable property, and blocking the deal wouldn't improve competition. For deals that need deeper review, a phase 1 clearance process takes up to 30 business days and costs AUD56,800. In many property cases, the ACCC finds no substantive competition issue and approval comes within two to four weeks. The agency's core question is whether the acquisition would substantially lessen competition in any market. For most routine property transactions, the answer is no—but you still need to ask.
Notable Quotes
The ACCC assesses whether the acquisition would substantially lessen competition in a market, and in many cases there will be no substantive competition law issue, meaning approval should be obtained promptly.— A&O Shearman guidance on ACCC review process
The Hearth Conversation Another angle on the story
Why does Australia need a mandatory merger control regime for property at all? Isn't real estate just real estate?
Because land can be a scarce competitive asset. If a dominant office landlord buys up all the remaining available space in a market, or if a manufacturer acquires a competitor's facility, that's not just a property transaction—it's a competition issue. The regime tries to catch those moments before they happen.
So every property deal over a certain size needs ACCC approval now?
Not quite. There are exemptions. If you're a large company buying an office building for your headquarters, or a warehouse for your operations, that's ordinary course of business and you're exempt. But if you're buying land just to sit on it, or buying a competitor's manufacturing site to take them out of the market, you'll need to notify.
What about leases? Those aren't purchases.
They are under this regime. A lease is an acquisition of an equitable interest in land. So if you're leasing a large property and thresholds apply, you need ACCC clearance before the lease takes effect—before you satisfy the conditions and sign. That's a real timing constraint for deal-makers.
How long does approval actually take?
If it's straightforward—say, a company buying office space—you can get a waiver in two to four weeks for AUD8,300. If the ACCC needs to dig deeper, phase 1 review takes up to 30 days and costs AUD56,800. Most property deals don't raise real competition concerns, so approval is usually quick.
What's the biggest trap for deal-makers?
Misunderstanding what counts as "ordinary course." Buying land for your business's normal operations is exempt. But buying a competitor's facility, or land-banking for future speculation, isn't. You need to know which category you're in before you move forward.