Clause 1 Planning has recently had cause to undertake a detailed review of the relevant provisions and caselaw associated with a complex existing use rights issue. We have leveraged some of that work into the following summary of what permit applicants should know about existing use rights.
Clause 63 of the Victorian Planning Provisions provides the policy bases for existing use rights. Clause 63 is broken into the following sections. For each subclause we have provided a summary of what regular permit applicants should know:
VPP 63.01 Extent of Existing Use Rights
Clause 63.01 provides that:
- If a change to the planning scheme prohibits or triggers a permit for an existing use, that use can generally continue if the use was lawfully carried out prior to the planning scheme amendment.
- Any existing use can continue if proof of continuous use for 15 years is established under Cl 63.11
- An alternate use (even if prohibited) can operate from the site if in accordance with a permit issued under 63.08
Unlike a planning permit application, if the use of land is being characterised in order to assess the extent of any existing use right, the use is characterised by the purpose of the ‘actual’ use at the relevant date (subject to any conditions or restrictions applying to the use at that date) and not by the classifications within Clause 73.03 or in Section 1, 2 or 3 of the table of uses contained within the relevant zone.
Following on from how a use is characterised (above), the definition of use terms contained in the planning scheme, do not increase or restrict the extent of any existing use right established prior to the inclusion of the definition or amendment.
A Section 1 use for which an existing use right is established may continue provided any condition or restriction to which the use was subject continues to be met.
A use in Section 2 or 3 of a zone for which an existing use right is established may continue provided:
- No building or works are constructed or carried out without a permit. A permit must not be granted unless the building or works complies with any other building or works requirement in this scheme.
- Any condition or restriction to which the use was subject continues to be met. This includes any implied restriction on the extent of the land subject to the existing use right or the extent of activities within the use.
- The amenity of the area is not damaged or further damaged by a change in the activities beyond the limited purpose of the use preserved by the existing use right.
An existing use right expires if either:
- The use has stopped for a continuous period of 2 years, or has stopped for two or more periods which together total 2 years in any period of 3 years.
- In the case of a use which is seasonal in nature, the use does not take place for 2 years in succession.
Generally, a use for which an existing use right is established must comply with any relevant code of practice incorporated in this scheme
If land is used for a use in Section 3 of a zone for which an existing use right is established, a permit may be granted to use the land for an alternative use (even if prohibited), if the responsible authority is satisfied that the new use will be less detrimental to the amenity of the locality.
Any permit issued for a shop, under the existing use rights provisions (above), will generally restrict the shop to a maximum of 500sqm.
If 50% of a building used for existing use rights is destroyed – the existing use rights will cease unless a permit is granted to continue use and reconstruct the building.
VPP 63.11 Proof of Continuous Use
When attempting to establish an existing use right, it is generally sufficient to prove that the use has been carried out continuously for 15 years. An existing use right may be established even if it did not comply with the scheme immediately prior to or during the 15 year period, unless either:
- At any time before or after commencement of the 15 year period the use has been held to be unlawful by a decision of a court or tribunal.
- During the 15 year period, the responsible authority has clearly and unambiguously given a written direction for the use to cease by reason of its non-compliance with the scheme
VPP 63.12 Decision Guidelines
Clause 63.12 provides that before deciding on an application under Clause 63.05, 63.08 or 63.10, in addition to the decision guidelines in Clause 65 and any other requirements of the Act, the responsible authority must consider the extent to which compliance can be achieved with all scheme requirements that can reasonably be met.
At the highest level, practitioners should be aware that:
There are numerous VCAT cases that provide specific detail on how the above provisions have previously been interpreted.
Municipal Councils will often seek to shutdown uses that are non-compliant with the existing and future intent of the zone.
An existing use right can be legally ratified via an application to Council for a Certificate of Compliance.
A use that enjoys existing use rights can seek approval for:
- Additional buildings and works
- An alternative use of the land (even if prohibited).
The application of ‘existing use rights’ can be complex. However, they can also provide a valuable tool for established land uses.
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