Planning schemes change over the course of their life and over time a planning scheme can look completely different to the way it started. This is why you might see land that was once identified in a planning scheme as for rural development now instead is zoned for residential uses. In some cases it is the opposite and land once able to be developed for residential has been changed to environmental – reducing the opportunities for redevelopment.
Because planning schemes are living documents it is likely that at some point uses will exist where they are no longer supported in a zone. They are historic and reflect older provisions. These uses can continue to exists and operate provided that they meet the original conditions of the development. The reason they can continue to exist is because of “existing use rights”. A planning scheme cannot make an existing lawfully established use unlawful, or suddenly a permit is required where previously it wasn’t required when the development was established. We note that a required license is different to a development permit, in which case there may be other aspects which limit development.
The “catch” to existing use rights is if the building or use seeks to change or intensify in any way, then these changes may not be able to occur. This is because the “rights” only exist in a limited scope.
WHAT IS AN EXISTING USE RIGHT?
Existing use rights are exactly that – a right to continue using your property for a lawfully established use – regardless of changes to planning schemes.
Lawfully established is key to existing use rights. If something was established unlawfully (i.e without a required permit) then you are not likely to have existing use rights because you did not have a right to establish that use in the first place.
HOW DO YOU GET EXISTING USE RIGHTS?
Existing use rights are established either before a planning scheme exists (usually before 1960) or before a planning scheme amendment is brought into effect.
That is how you see service stations next to houses, or commercial character buildings in standalone locations where if you were to apply for a new shop or corner store today, it would be unlikely to be approved.
EXAMPLE 1 – COMMERCIAL
We recently had a case where a client asked us to investigate what existing use rights existed for a commercial building they were looking to lease. They had been advised by a real estate agent that the premises had been used as a vet surgery historically and so they could continue to use the building for that use. The land was currently zoned for residential purposes.
We investigated the historic approvals on record and determined that the advice from the real estate was correct – they could continue to use the building as a vet however there were some limitations on the use. These limitations included the number of vets, requirements for carparking, landscaping etc. These are important to understand because the “rights” are limited only to what was lawfully established. In this case the old (very old) approval limited the number of consulting rooms and vets that could be on site at any one time. This means that to continue to operate “lawfully” they would need to comply with these old conditions.
If in the future the owner sought to extend the vet surgery so they could add another vet, this would trigger a development application. The reason that a development application would be required is because the use rights only extend to the current building and operations. A change or increase to the scale or intensity of the development requires assessment against the current planning requirements.
EXAMPLE 2 – 3 STOREY HOUSE
Another example is an enquiry we had where the owners were looking at converting an existing garage, laundry and storage area of an existing house into a bedroom and living room. The house was 3 storeys as currently defined by the planning scheme however to avoid triggering a development application for the conversion of the space, we needed to establish whether or not the third storey was lawfully established.
We obtained the historic files (from 2001) to confirm what approvals (if any) were obtained. There was a building approval showing that the area was a garage, laundry and storage area. We then confirmed that at the time the council was not regulating the number of storeys for houses, only the overall height. Which means that no development application was required for the house. This means it ticked the first box – the 3 storeys was lawfully established.
The final step was to confirm that the building was 3 storeys as defined at the time the building was constructed. It was. We were then able to provide advice to the client regarding how to avoid a development application when carrying out their alterations. Even though the house was 3 storeys and they were making changes, provided they did not increase the extent of 3 storeys (as defined) they could avoid a development application because of their existing use rights.
IMPORTANT THINGS TO REMEMBER WITH EXISTING USE RIGHTS
Existing use rights can help you avoid a development application or assist in responding to an enforcement or show cause notice, should these be issued by council. There are a number of things to remember:
- The use/building must have been established lawfully.
- The use must not have ceased/stopped or changed, otherwise the planning provisions in force at the time the use was re-started or changed will be applicable.
- The definitions in place at the time of the establishment of the use are important. These shape the extent of use rights.
- An intensification of the use today will mean the current provisions are applicable and a development application may be required.
If you have any questions regarding existing use rights, or development applications, feel free to contact us at any time.