Claiming Existing Use Rights (Planning)

Existing use rights is established when your land is being used in a legal way (either with an approved permit or an approved use where a permit is not required) and planning controls now in place prohibit that use. For example: If you own a house in an area that was zoned residential, but has since been zoned commercial, new planning controls apply.

Any works to properties with existing use rights require a planning permit and must comply with current planning requirements.

Existing use right requirements (Clause 63 Latrobe Planning Scheme) detail rules for extending, changing, classifying and proving the use of the land and what happens if all or part of the use is destroyed.

Why are existing use rights needed?

Existing use rights are in place to reduce the potential negative impacts that could occur if people were forced to discontinue the use of their property because of a change in planning controls. At the same time, it allows the land to transition to the new planning outcomes.

How do I know if my property has existing use rights?

Existing use rights apply to the land, not the owner, and it is up to owner of the property to prove that they apply.

Existing use rights apply to the specific use of the land but not the development (building, alterations, extensions, new additions etc).The Latrobe Planning Scheme (Clause 63) outlines an existing use maybe established in one of the following ways:

  • The use was lawfully carried out before 2 March 2000.
  • A permit for the use had been granted immediately before 2 March 2000 and the use commences before the permit expires.
  • A permit had been previously granted for an alternative use, one that does not comply with the current planning provisions, and the use commences before the permit expires.
  • Proof of continuous use for 15 years is established (the use cannot have ceased for a period of two years during this time).
  • A utility service provider or other private service provider that continues a use previously carried out by a government agency.

How do I prove existing use rights?

The easiest way to claim existing use rights is by proving that the use has been continuous for 15 years.

This will involve producing a combination of historical information, such as:

  • Certificate of title (including plan of subdivision and copies of any agreements or restrictions registered on title).
  • A detailed description of the scale/nature of the use, including processes carried out, any plant/machinery installed and hours during which the use has been carried out.
  • A scaled plan detailing the location of the use and any processes carried out, consistent with the written description detailed above.
  • Building and/or planning permits for any buildings, structures etc, along with any certificate of occupancy/final inspection.
  • Copies of leases or licences (tenancy lease, mining lease, agricultural lease etc) 
  • Utility and/or insurance records. 
  • Purchase receipts from suppliers over the preceding 15 years, to demonstrate operation of the business.
  • Invoices showing the use/business has been in operation for a range of dates throughout the a 15 year period
  • Statutory declarations (seek advice from a solicitor about the exact content) from persons who have direct knowledge of the use and can verify:
    • The precise nature of the use undertaken on the land (statements must be specific about the use)
    • The continuous use of the land for 15 years.
  • Aerial photographs of the site and surrounds, both now and over the time the use had been established.
  • Old newspaper cuttings (available from local library).
  • Observations made by Council staff (photographs).
  • Statements from existing and previous owners or occupiers detailing how the land has been used.

A ‘Request for Written Planning Advice’ form and a prescribed fee of $62.75 is required upon submission.

Can existing use rights be lost?

Yes. The protection of existing use rights is lost if the use of land has stopped for:

  • A continuous period of two years.
  • Two or more periods which together total two years in any period of three years.
  • In the case of seasonal use, two years in succession
  • In the event of damaged or destroyed building or works

If the land is being used for the same purpose, but the activity on the land has decreased, the use is classed as still occurring.

You can also lose existing use rights if you change the purpose for which the land is used (unless the new use is additional to and related to the existing use).