Before claiming existing use rights, it’s important to determine what the existing use is.
Before reading on, make sure you understand the basics of existing use rights.
The characterisation of an existing use is an important step in establishing existing use rights. It essentially involves describing what the use actually is.
Australian courts have provided helpful instruction on how to characterise an existing use. The key principles are outlined below.
Determining the purpose of the existing use
In Shire of Perth v O’Keefe, the High Court said that the correct approach is to use ordinary, everyday language to describe the purpose of what is happening on the land. This means that it is not necessary to categorise the use by using planning documents and definitions. Instead, it’s about identifying the appropriate description that best describes what is happening on the land.
For example, in that case the court found that it was enough to describe the use as “professional offices” – it was not necessary to describe the particular profession occupying those offices.
The High Court also acknowledged instances where the characterisation may need to be more specific. For example, it may be inappropriate to describe a premises as a “shop”, given that the purpose of the use may not be for shops generally, but instead be for the purposes of a butcher’s shop, general store, or small goods shop.
In Royal Agricultural Society (NSW) v Sydney City Council, the New South Wales Supreme Court of Appeal said that the characterisation of an existing use should be general enough to cover all of the activities, transactions or processes occurring on the land. However, the description should not be too general so that it covers uses that are widely different from the existing use.
In that case, the land was being used for the purpose of a “showground”, “speedway”, and “sportsground”. It was found that these purposes did not include “open air musical concerts”. This meant that the applicant did not have existing use rights to use the land for “open air musical concerts”, and development consent would be required from the local council if they wanted to use the land for this purpose.
Examining the facts of each case
In North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd, the New South Wales Supreme Court of Appeal said that, when defining an existing use, it is necessary to do a detailed examination of the facts to determine the use. Any description of the use should be broad, and should not confine the user of the land to a particular activity.
The court said that attention should be focused on the town planning purpose. To do this, the use should be considered from the perspective of it’s impacts on the neighbourhood.
In that case, the court considered the description of the use as a “warehouse”.
The council was concerned that a characterisation of “warehouse” was too broad, and should be confined to the warehousing of electrical goods only.
However, based on the facts, the court found that the premises stored a wide range of goods including toys, cutlery, glassware, towels and sporting goods. Given the variety of goods stored in the warehouse, it would not be accurate to describe the existing use to be for the warehousing of electrical goods only.
The court also considered the impacts on the neighbourhood, and found that people in the neighbourhood would not be concerned with the size or nature of the goods inside the warehouse. Furthermore, if goods were stored that were offensive or dangerous, they would be regulated in other ways.
It is an objective test
In Woollahra Municipal Council v Minister for Environment, the New South Wales Supreme Court of Appeal said that the description or characterisation of the use should not consider the motives of the people involved. Instead, it is a consideration of the facts of what is actually happening on the land.
If you have questions about the characterisation of an existing use, it may be best to speak directly to the consent authority, a town planner, or seek legal advice.