The basics of existing use rights

What are existing use rights, and what are some of the principles that support them?

What are “existing use rights”?

Existing use rights are laws in the Environmental Planning and Assessment Act 1979 (EPA Act) that protect private owners from the effects of changes to planning laws. In particular, existing use rights allow people to continue to use their land in a particular way, even though using the land in that way may be prohibited by the law.

Section 4.65 of the EPA Act says that:

existing use means:

(a) the 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 this Division, have the effect of prohibiting that use, and

(b) the use of a building, work or land:

(i) for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use, and

(ii) that has been carried out, within one year after the date on which that provision commenced, in accordance with the terms of the consent and to such an extent as to ensure (apart from that provision) that the development consent would not lapse.

What rights are not protected by existing use rights?

Section 4.66 of the EPA Act puts limitations on existing use rights. Although a person can continue to use their land in a particular way, generally they cannot do the following:

  • any alteration, extension to or rebuilding;
  • any increase in the area of the use from the area actually physically and lawfully used;
  • any enlargement or expansion or intensification of an existing use;
  • the continuance of a use that is in breach of any condition of a development consent; or
  • the continuance of the use where that use is abandoned (that is, the land has not been used in that particular way for a continuous period of 12 months).

It is important to know that it may be possible for an existing use to be modified in some situations. For example, it may be possible to carry out alterations or extensions, change an existing use to another similar use, or enlarge and expand the use on the land. For more information on this, you can see section 4.67 of the EPA Act and part 5 of the Environmental Planning and Assessment Regulation 2000.

What are some of the legal principles that relate to existing use rights?

A few key principles to remember when dealing with existing use rights include:

  • Existing use rights should be interpreted broadly, allowing private owners to continue to use their land generally for a particular purpose.
  • It is important to determine what exactly the existing use is. This is commonly called “characterisation” of the existing use. When characterising the existing use, it’s important that the focus is on the purpose of the use. Characterising an existing use should not involve a careful examination of the details of the activities that occur on the land.
  • Even though existing use rights should be interpreted broadly, the characterisation of the use should not be so general that it allows for a large range of activities that are significantly different to the existing use.
  • Exactly what rights a private owner has is determined by reference to the facts and context at the time that the existing use came into effect. This involves looking at what was approved at the time the private owner received the development consent, or at the time when they legally started using the land in a particular way.

If you aren’t sure whether your property has existing use rights, or you would like to modify the existing use on your land, it may be best to speak directly with us. You are welcome to contact us here.

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Alyce is a civil engineer and a practicing lawyer, who has a desire to share her insights on the legal and practical realities of the development industry.

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