Existing use rights and exemptions

The Land Use and Planning Approvals Act 1993 (LUPAA) protects some ongoing legally established uses and developments.

A planning scheme cannot stop a lawfully existing use under the Act if the existing use was established before the planning scheme came into operation, or if it predated a planning scheme. You should check with the council or seek legal advice to see if this applies. Clause 12 of LUPAA contains the rules about this.

Issues which may be considered when determining existing use rights could be:

• continuous use
• approved but still unfinished development
• reconstruction of destroyed buildings.

A use must be uninterrupted for two years to be considered continuous.

Existing use rights do not apply:

• when a use of land has stopped for a continuous period of two years
• when a use of land has stopped for two or more periods that together total two years in any three-year period
• to the extension or transfer from one part of a parcel of land to another of a use previously confined to the first-mentioned part of that parcel of land
• when a use of any land, building or work is substantially intensified
• in the case of a use that is seasonal in nature, if the use does not take place for two years in succession
• if the owner or lessee wishes to change the use or development. In this case, a new application is needed. It would be assessed under the planning scheme operating at the time of the application.

Each case would be assessed individually by the council. An existing use right is no guarantee that the changed use or development would be approved.