The new ACCC merger regime has commenced

The new ACCC merger regime applies to the acquisition of shares and assets.  However, this update deals with the application of this regime to real estate assets.

The new mandatory merger control regime commenced on 1 January 2026.

We provided an outline of this new regime in our update published in July 2025. However, changes to the regime were made in December 2025.

The regime introduces a mandatory notification requirement for acquisitions of Australian real estate that meet specific monetary or control thresholds, necessitating prior approval from the Australian Competition and Consumer Commission (ACCC) before completion.

This regime signifies a substantial shift in how large property transactions are regulated in Australia.

The broad scope of the regime

The concept of what constitutes a real estate asset is very broad.  It can include the acquisition leasehold interests and licences.

It can also attach to associated property such as intellectual property rights.

Mandatory notification

As from 1 January 2026, notifiable acquisitions cannot be put into effect until they have been approved by the ACCC.

Failure to notify the ACCC has significant consequences:

• the transaction is void; and
• there are significant penalties.

What property transactions require ACCC clearance?

Acquisitions resulting in larger corporate groups

ACCC clearance is required if the following apply:

• the real estate asset to be acquired is connected with Australia; and
• the combined Australian revenue of the buyer and the seller (including that of the connected entities of the buyer and the seller) is at least $200 million,

AND

• where the real estate asset forms all or substantially all the assets of a business:
  • the Australian revenue of the real estate asset being acquired is at least $50 million; or
  • the transaction value is at least $250 million (being the greater of the market value of the real estate asset or the consideration payable under the purchase contract),

OR

• where the real estate asset does not form all or substantially all the assets of a business:
  • for the period 1 January 2026 – 31 March 2026: the transaction value is at least $250 million (being the greater of the market value of the real estate asset or the consideration payable under the purchase contract); and
  • from 1 April 2026: the transaction value is at least $200 million (being the greater of the market value of the real estate asset or the consideration payable under the purchase contract).

Acquisitions of real estate by very large corporate groups

ACCC clearance is required if the following apply:

• the real estate asset to be acquired is connected with Australia;

AND

• the Australian revenue of the buyer (including connected entities) is at least $500 million on the contract date;

AND

• the Australian revenue of the target (ie the seller) is at least $10 million on the contract date where the real estate asset forms all or substantially all the assets of a business;
• for the period 1 January 2026 – 31 March 2026: the revenue of the real estate asset being acquired is at least $10 million, where the real estate asset forms all or substantially all the assets of a business; or
• from 1 April 2026: the transaction value is at least $50 million (being the greater of the market value of the real estate asset or the consideration payable under the purchase contract) where the real estate asset does not form all or substantially all the assets of a business.

Creeping acquisitions

There are 2 scenarios here.

FIRST

• The land to be acquired is connected to Australia;

AND

• The combined Australian revenue of the buyer and the seller (and the connected entities of the buyer and the seller) is at least $200 million;

AND

• The cumulative Australian revenue from the acquisitions for the buyer (including connected entities) involving predominantly the same or substitutable property over a 3 year period is at least $50 million.

SECOND

• The land to be acquired is connected to Australia;

AND

• The combined Australian revenue of the buyer and the seller (and the connected entities of the buyer and the seller) is at least $500 million;

AND

• The cumulative Australian revenue from the acquisitions by the buyer (including connected entities) involving predominantly the same or substitutable property over a 3-year period is at least $10 million;

The following are excluded from these calculations:

• transactions involving revenue of less than $2 million
• real estate assets that have been divested or disposed of; and
• the acquisition does not constitute the acquisition of all or substantially all the assets of a business and the market value of the real estate asset is less than $2 million.

Major supermarkets

This scenario applies in the following circumstances:

• The acquisition of a supermarket business by a major supermarket (Coles and Woolworths and their connected entities);
• Acquisitions of shares or assets (including land) by a major supermarket which results in the acquisition of an interest in land that meets the following criteria:
  • land with a commercial building on it and the gross lettable area of the building is in excess of 1,000m²;
    OR
  • land without a commercial building on it which has a land area in excess of 2,000m2;

(and it is not an extension or renewal of a lease for land or where the acquisition of an equitable interest in the land has previously been notified to the ACCC).

Exemptions

Certain acquisitions are expressly excluded from the new reporting requirements, including:

• land acquisitions made for the purpose of developing residential premises;
• certain commercial acquisitions when undertaken for a purpose other than operating a commercial business on the land; and
• extensions or renewals of a lease for land on which a commercial business is operated.

The notification process

There are 3 forms that are to be used, depending on the circumstances of the acquisition:

Waiver notification form

• To be used for straightforward transactions that do not raise any competition risks.

Short form notification form

• To be used for transactions that may involve competitors but there is unlikely to be any substantial lessening of competition.

Long form notification form

To be used for transactions that are more complex or are likely to require more detailed consideration by the ACCC.

Legal tests

Merger competition test

The ACCC will determine that an acquisition should not be put into effect if it is satisfied that the acquisition would or would be likely to “substantially lessen competition”.

The ACCC may find an acquisition to be likely to substantially lessen competition where the acquisition would have the effect of creating, strengthening, or entrenching a substantial degree of power in the market.

Substantial benefits test

In order for the ACCC to consider whether to allow an acquisition on the grounds of a “substantial benefits test”, it must be satisfied that, were the acquisition put into effect, it would or would be likely to result in a benefit to the public and the benefit would outweigh the detriment to the public that would or would likely result from the acquisition.

The review process

The process

The ACCC has made clear that it encourages engagement with the pre-notification process where potential issues can be raised prior to formal lodgement.

After lodgement, a phase 1 “initial review” will occur.  The ACCC will make a decision within 30 business days (but not less than 15 business days).  If the determination is made without issue, the transaction can be put into effect.

If the ACCC raises competition concerns, a phase 2 “in depth review” will occur, and a decision will be reached on that review within a further 90 business days.

If the ACCC makes a phase 2 decision to oppose, a party still may make a public benefit application within 21 days of the rejection.  The ACCC will make a determination on this application within a further 50 business days.

A transaction cannot be put into effect until 15 days after the ACCC publishes its reasons in respect of the notification, unless a waiver has been obtained from the ACCC.

Timeframes

Waiver

• This is the quickest form of clearance.
• The ACCC should process this notification within 10 business days.
• The transaction can be put into effect immediately after the waiver has been granted.

Other transactions

• The ACCC expects the parties to discuss the transaction with the ACCC before filing the notification.  The ACCC will advise what information the ACCC will require to review the transaction.
• Straightforward notifications should be considered by the ACCC within 2 weeks.
• Complex, long form notifications may take up to 6-8 weeks to be considered by ASIC.

Straightforward notifications

• Straightforward notifications processed in ‘Phase 1’ should be cleared by ASIC within 15-30 business days.

Complex transactions

• A transaction that must go through both ‘Phase 1’ and ‘Phase 2’ could take 6-9 months to be processed by ASIC.

Additional steps

• If a transaction is blocked by the ACCC on competition grounds, there are other steps that can be invoked by the parties, such as:
  • having the transaction cleared on the basis of public benefit; or
  • seeking to have the ACCC’s decision reviewed in the Competition Tribunal.

Fees

The fees payable for the notification processes are:

1. Waiver notification: $8,300.

2. Short form notification (Phase 1): $56,800.

3. Long form notification (Phase 2): If the transaction value (being the greater of the market value of the real estate asset or the consideration to be received for the acquisition of the real estate asset) is:

• Up to $50 million:  $475,000
• More than $50 million and up to $1 billion: $855,000
• More than $1 billion:$1,565,000

4. Public benefit application: $401,000.

5. Tribunal review: Subject to separate government determination and consultation.

Meanings of terms

Australian revenue – means the entity’s gross revenue, determined in accordance with accounting standards for the entity’s most recently ended 12 month financial reporting period that is attributable to transactions within Australia.

connected entity – means an entity that is either a related entity of the first entity or is controlled by the first entity.  The concept of “related entity” is very wide.

connected with Australia – means the land is used in, or forms part of, a business carried on in Australia.

contract date – means the date on which a contract, arrangement or understanding has been entered into, pursuant to which the acquisition of the land is to take place.

major supermarket – means Coles Group Limited and Woolworths Group Limited and their connected entities.

Takeaways

ACCC conditions to be inserted into contracts

• The acquisition contract must:
  • contain a condition precedent to completion that reflects the fact that completion cannot take place until the ACCC has cleared the acquisition;
  • contain obligations on both parties to co-operate to meet the ACCC’s requirements with respect to the transaction;
  • contain appropriate termination rights to protect against the ACCC ruling against the transaction; and
  • ensure the confidentiality arrangements accommodate the release of information to the ACCC and the publication of information by the ACCC.

Remember the wide scope of this merger regime

• The merger regime applies not only to real estate assets but also to interests in land such as leases and other commercial arrangements.

Connected entities

• Be aware of the wide scope of the ‘connected entity’ concept when calculating monetary thresholds.

Allow time for the ACCC process

• Make sure you allow adequate time to deal with the ACCC notification processes.

Obtain good advice

• This is a complex area.  Be cautious and seek good advice.  The consequences for getting it wrong are serious.

Disclaimer

The information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.