All in the records: what you need to document to preserve, enlarge, expand or intensify an existing use

A recent decision of the Land and Environment Court confirms that an absence of adequate records will prevent an existing use from being established or continuing.

Those who rely on existing uses to operate businesses or otherwise use land must maintain records of the use at the relevant date and records of the ongoing use in order to preserve the existing use and the ability to enlarge, expand or intensify that use.

What are “existing use” rights?

Existing use rights will allow a specific use of land, a building or work to continue, despite that use becoming prohibited under a planning instrument. This is subject to certain limitations in the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) and the Environmental Planning and Assessment Regulation 2000 (EP&A Regs), as well as the individual facts and circumstances of each case. To maintain existing use rights:

• the use must continue lawfully in accordance with any relevant development consent; and
• the use must not be abandoned, this usually means that the use must not stop for a continuous period of 12 months (this period was recently extended to three years for the period 25 March 2020 – 25 March 2022 as part of the NSW government’s COVID measures).

The EP&A Regs permits certain changes to an existing use. Subject to development consent and the satisfaction of other criteria, an existing use may:

• be enlarged, expanded or intensified;
• be altered or extended;
• be rebuilt;
• be changed to another use;
• if it is a commercial use, be changed to another commercial use, including one that would otherwise be prohibited; and
• if it is a light industrial use, be changed to another light industrial use or commercial use, including one that would otherwise be prohibited.

Characterising the existing use – the problem in establishing existing use rights

The person seeking to rely on existing use rights must prove the nature and extent of their existing use, and that the use has continued without abandonment from the date it became prohibited. This may be a difficult task where the existing use has continued for some time, often before detailed records of any planning or other approvals were kept.

The recent Land and Environment Court decision of Duggan J in Blues Points Hotel Property Pty Ltd v North Sydney Council [2021] NSWLEC 27 demonstrates the need for clear documentation of the precise use and precise physical areas of such use.

The Blues Point Hotel was constructed in 1938. Duggan J found that the use as a hotel was permissible up until the North Sydney Planning Scheme Ordinance (NSPSO) came into force on 19 April 1963, making the use prohibited. Therefore, existing use rights applied to the use of a building as hotel from the “relevant date” being 19 April 1963.

The applicants in this case came unstuck when they tried to establish that the existing use rights also applied to their current use of the outdoor terrace (for seating and food and beverage consumption). The documents produced in evidence referred to the outdoor terrace area as a “flat roof or sun deck” at the relevant date.

Duggan J found that at the relevant date, while the building itself was being used for the purpose of a pub/hotel, the first floor terrace was not being used for anything other than a roof over part of the building. It was also not relevant that there was a potential future use of the area as a “sun deck”. As such, no existing use rights applied to the outdoor terrace, making its current use for seating and consumption of food and beverages unlawful.

Further, Section 4.66(2)(b) prohibits an increase in the area of the use of a building, work or land from the area actually physically and lawfully used immediately prior to that use becoming prohibited (unless development consent is sought pursuant to the applicable clauses in the EP&A Regs).

Duggan J found that the use of the outdoor terrace for seating and consumption of food and beverages did amount to an enlargement or expansion of the use, for which no development consent had been sought. Therefore, even if the applicants had been able to establish that the existing use rights applied to the outdoor terrace, their current use of the outdoor terrace would still be unlawful as no development consent had been obtained.

Key takeaways

Several lessons arise from this case:

• When operating under an existing use, it is essential to:
  • obtain as much evidence as possible as to the history of the use of the relevant land, building or work, including the precise physical area of the use at the date when the use become prohibited.
  • keep complete and accurate records of the area of the use, the extent of the use and the nature of the use on and from the relevant date that the use became prohibited.

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