Existing Use Rights

What is “existing use”?

Existing use refers to a situation where the planning controls for a piece of land have changed, and the existing use of that land (which may have originally been lawful) becomes a permit requirement or prohibited due to the new controls.

An existing use right means that the existing use of the property can continue to operate even though the current zoning has changed and may prohibit this type of use or the type of use may now require planning permission.

Why are existing use rights required?

Existing use rights are required to ensure the potential negative impacts do not occur from “old” uses where land is transitioning to “new” uses.

How do I prove existing use rights?

The easiest way to claim existing use rights is by providing evidence that the use has been continuous for a period of 15 or more years.

This will involve producing a combination of historical information, such as:

• Building and/or planning permits for any buildings, structures etc, along with any certificate of occupancy/final inspection.
• Copies of leases or licences (tenancy lease, mining lease, agricultural lease etc)
• Utility and/or insurance records.
• Receipts evidencing purchases made from suppliers over the preceding 15 years, to demonstrate operation of the business.
• Invoices for a range of dates throughout the 15 year period evidencing that the use/business has been in operation.
• Statutory declarations (seek advice from a solicitor as to how this should be set out) made by persons who have direct knowledge of the use and who can verify: – The precise nature of the use undertaken on the land (statements must be specific about the use). – The continuous use of the land for 15 years.
• Aerial photographs of the subject site and surrounds.

Can existing use rights be lost?

Yes. The protection of existing use rights is lost if the use of the land has stopped for:

• A continuous period of two years
• Two or more periods which together total two years in any period of three years
• In the case of seasonal use, the use does not take place for two years in succession

If the land is being used for the same purpose, but the activity on the land has decreased, the use is classed as still occurring.

You can also lose existing use rights if you change the purpose for which the land is used (unless the new use is additional to and related to the existing use.