Existing use describes when your land is being used in a legal way, either:
- with an approved permit, or
- with approved use (where a permit is not required, and the planning controls now in place prohibit that use).
For example, in Yarra there are pubs located in areas now zoned residential. In most cases, this is legal because the property operated as a pub prior to the current zoning being introduced. It can continue to operate as a pub under existing use rights, even though current zoning prohibits it.
Another common example are houses in areas that were previously zoned residential but have subsequently been zoned commercial or industrial.
Any works to properties with existing use rights require a planning permit and must comply with current planning requirements.
How to apply
There are two ways to apply for existing use rights. If you are unsure which option is best for you, please contact the Planning Department on 9205 5373.
Existing use rights exist to reduce the potential negative impacts of changes in planning controls on existing businesses.
The Yarra Planning Scheme outlines an existing use may be established in one of the following ways:
- The use was lawfully carried out before the new planning provisions took effect.
- A permit for the use had been granted immediately before the new planning provisions took effect 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.
It is important to note that existing use rights apply to the specific use of the land but not the development of the land.
Existing use rights apply to the land, not the owner, so it is up to you as the owner to prove they apply. The easiest way is to show the use has been continuous for 15 years through submitting historical information such as:
- Permits
- Rates notices for each calendar year/financial year
- Bills, invoices, purchase orders
- Insurance records
- Lease or rental agreements
- Advertisements
- Business records
- White and yellow page records
- Photographs (including aerial photography)
- Statements from existing and previous owners or occupiers or staff detailing how the land has been used
Yes. Existing use rights are lost if the use of the 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.
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).
If the land is being used for the same purpose, but the activity on the land has reduced, existing use still applies.