Australasian Dentist Magazine March April 2021

Category 118 Australasian Dentist S tarting up an additional dental practice? Starting up your first dental practice? Buying a new dental practice? Selling your dental practice? Regardless of whether you are starting up, buying or selling a dental practice, premises town planning status is of critical importance – let’s go through the following town planning queries we put to our clients, some typical responses we receive and our response commentary. Key Takes: Buying a dental 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 dental practice? A practice without a permit (or in breach of a current 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 are permit issues. 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: u the permitted usage (dental); u the minimum amount of practitioners which you require to practise at any one time – if you need three (3), it must state three (3); u 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! Remember – 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. Our Whitehead Legal Due Diligence Compliance Checks will not only discover any issues, but also assist and manage solutions to any issues. u Julian Whitehead is a partner at Whitehead Legal and he exclusively advises health care professionals in their commercial matters throughout Australia. Julian can be contacted on 0411 406 151 or via email julian@whiteheadlegal.com.au or visit www.whiteheadlegal.com.au Don’t forget to listen to The Health Lawyer Podcast with Julian Whitehead. The importance of town planning! LEGAL By Julian Whitehead Julian Whitehead Query Response Commentary What is the town planning “Planning permit In most circumstances, a town planning status of the practice premises available” – great. permit should have been procured when – Is there an existing town “Planning permit the practice started up. If you are buying planning permit? not available” … a practice – ask the broker or vendor see next query. directly. If you are starting-up – ask the leasing agent for the permit history! No town planning permit… “The practice is <less <15 years – A planning permit was How long has the practice been than 15 years old.” likely required when the practice was carried on at the premises? established. “The practice is >older >15 years – Existing use privileges than 15 years.” may well apply to remove 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” “Legal talk...” In many jurisdictions an ‘as of right’ use use? applies for premises that have consistently held the same amount of practitioners practising at any one time. How many dental practitioners “Between 1 and 4 If the response was 2 consistently at practise dentistry at the in past 10 years.” any one time for 15 years then the as premises at any one time? of right usage has not changed and you would likely have existing use privileges. Does the town planning permit “The council said the Local council ordinances allow for car restrict the amount of carparking reduction parking reduction schemes in order practitioners practising dentistry permit would suffice?” to facilitate the amount of dental at the premises at any one practitioners practising in the practice time? – 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 “Legal talk…” Patients want after 5pm weekdays restrict the operating hours? and weekend appointments – not Does the town planning permit all planning permits allow extensive allow for weekend surgery? 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!