Planning Scheme Amendment VC254, gazetted on 12 February 2024, included changes to the way in which existing use rights applications are considered. Prior to the Amendment, Clause 63.11 of Planning Schemes provided that existing use rights could be established if the use has been carried out continuously for 15 years prior to the date of an application or proceeding for existing use rights. The Amendment changed that provision to:
…it is sufficient proof of the establishment of the existing use right if the use has been carried out continuously for a period of 15 years at any time before the date of the application or proceeding. [our emphasis added]
The Amendment also changed the circumstances in which existing use rights may not be established, adding:
The use ceased between the end of the 15 year period and the date of the application or proceeding.
The amendment was made so that a land user can seek to confirm existing use rights even if the responsible authority has directed the use to stop before an application to prove existing use rights is made, allowing a fair consideration of an application and the site’s history.
This amendment affectively removes the ability of the Responsible Authority to issue a written order to cease the use just prior to an application being made for a planning certificate to establish existing use rights.
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