Clients often seek our advice as to whether or not their property enjoys ‘existing use rights’. Now, they may not use the expression ‘existing use rights’ or speak in terms of there being an ‘existing use’ but the issue often arises. The topic is by no means an academic or theoretical one, for existing use rights are a valuable commodity.

Clients often seek our advice as to whether or not their property enjoys ‘existing use rights’. Now, they may not use the expression ‘existing use rights’ or speak in terms of there being an ‘existing use’ but the issue often arises. The topic is by no means an academic or theoretical one, for existing use rights are a valuable commodity.

The law in relation to existing use rights is perhaps the most difficult and complex aspect of environmental planning law, along with the threshold task of categorising the purpose or purposes of a development proposal.

What is an ‘existing use’?

Put simply, an ‘existing use’ in its most common form is a use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for the existing use provisions of the legislation, have the effect of prohibiting that use.

A use will be lawful when either the use commenced at a time when there was no relevantly applicable requirement to obtain development consent in respect of the use, or there was such a requirement and consent was duly obtained. The onus of proof as respects the existence of an existing use lies with the applicant (that is, the person who asserts the existence of the existing use).

What are ‘existing use rights’?

Existing use rights are a bundle of rights that pertain to what is an ‘existing use’ of a building, work or land. The question of whether a property has the benefit of existing use rights depends upon three lines of inquiry, namely:

1. What land (or portion of land) is the subject of the claimed existing use at the date immediately before the coming into force of the planning instrument which had the effect of prohibiting the use (‘the relevant date’)?
2. What was the purpose for which the land was being used at the relevant date?
3. Was that purpose lawful in the sense described above (that is, in planning terms)?

In many ways, the first question—the extent of the land to which the existing use rights purportedly apply—is the most difficult one. The area of land subject to the existing use should be identified in a way which avoids detailed investigations and complicated disputes of facts.

The most basic and fundamental right in the existing use rights bundle of rights is the right to continue the existing use without the need for a further consent. However, there are a number of restrictions on what can be done by way of alterations or extensions to, or the rebuilding of a building or work, changes of the relevant use, the increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument having the effect of prohibiting the use, and any enlargement or expansion or intensification of the existing use.

The planning legislation makes provision for, among other things, changes to existing uses. Where existing use rights depend for their existence on a development consent, the extent of the use is ordinarily described and limited by the terms and conditions of the consent, as well as the description of the permitted development. However, in recent years there have been some important changes to the planning legislation that now enable one commercial use (be it a use for the purpose of office premises, business premises or retail premises) to be changed, with development consent, to another commercial use, subject to certain quite technical conditions, restrictions and limitations. A change from an existing use to another permissible use now requires that the consent authority take into consideration the relevantly applicable development standards set out in, ordinarily, the local environmental plan (LEP) in any assessment of the development application.

A use is to be presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months. Now, this is a rebuttable presumption. So, if an applicant can show that they have, for example, used reasonable endeavours to, for instance, find a suitable tenant for the premises, and continues to secure, maintain and repair, when necessary, the premises and otherwise keep them in a clean and tidy state, it may well be possible to establish that the use has not been abandoned, even in circumstances where the use has ceased to be actually so used for more than 12 months. The onus of proof of abandonment lies with the council.

The purpose of existing use rights

The underlying purpose of recognising and sanctioning existing uses is to control historical and now non-conforming uses, allowing such uses to continue in spite of zoning (land use) changes until they cease for commercial reasons. The rationale of these saving provisions is that it would be unjust to deprive an owner of the right to use his land for an existing lawful purpose. However, it is also a purpose of existing use rights that there be a gradual, progressive and eventual phasing out of existing non-conforming uses and the bringing about of a state of conformity to, and thus harmony with, currently relevantly applicable zoning and land use requirements with respect to all land.

Existing use rights under development consents

Where existing use rights depend for their existence on a development consent, the extent of the use is ordinarily described and limited by the terms and conditions of the consent, as well as the description of the permitted development. However, there have been some important changes to the legislation in recent years that have broadened the scope for changing some existing uses, including uses the subject of existing consents, to other non-conforming uses.

How Turnbull Planning International can help you

Our firm has considerable experience in advising clients as to whether their property has the benefit of existing use rights. As mentioned at the outset of this article, the law in relation to this topic area is very difficult and complex. Sound advice upfront can save money and heartache down the track.

Disclaimer. The information in this article (‘information’) does not constitute legal advice. No person should act or refrain from acting solely on the basis of any or all of the information, and Turnbull Planning International Pty Limited is not responsible for any action taken in reliance upon the information.