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Existing use rights and planning permits

 

Understanding Existing Use Right (EUR)

Existing use rights is used to allow for the continuation of an existing land use. 

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).

Another way to look at is the planning scheme cannot prevent the continuation of a lawfully existing use under the Planning and Environment Act if the existing use was established before the planning scheme came into operation.

For example, you may be using a Commercial zoned building as a dwelling, whilst this is prohibited current day if you can prove existing use rights for a continuous 15-year period, you can continue using the building residentially. 

Alternatively, if you have an approved permit for a warehouse in a residential zone and can prove the land has been used as such for 15 years and that the use stated within the prescribed permit expiry you may not need to get a new planning permit.

Common examples in Yarra

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.
 

What you'll need to provide

If you want to apply for existing use rights only (not as part of a planning permit application), please visit Apply for existing use rights.

If you need to submit a planning permit application that includes existing use rights (eg, you want to extend a building that is used as a dwelling, and you believe the dwelling has existing use rights) you'll find the information you need to provide below.

  • Completed application form (which you will fill in online when you lodge your application).
  • A recent copy of Certificate of Title from Landata that’s no more than 3 months old, including a full copy of any restrictive covenants or section 173 agreements.
  • The applicable Fee. For more information, see our fees page.
  • A continuous and chronological record showing the use has been continuous for 15 years. This will involve producing a combination of historical information, such as:
    • Permits (including endorsed plans) that have been issued for the land
    • Utility and/or insurance records
    • Bills, invoices, purchase orders
    • Records from old editions of the white or yellow pages
    • Photographs (including aerial photography)
    • Council rates payments
    • Advertisements
    • Business records
    • Lease or rental agreements.
  • A cover letter to explain the proposal and what is proposed to change
  • Plans showing the existing use and what is proposed to change
  • An assessment of the proposed application against the requirements of Clause 63 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.
  • It is important to note that you must prove that this use was continuous.
  • You can loose existing use rights if the most common way this can occur is that the land use has stopped for a period of 2 or more years or a period that totals a 2-year gap. EUR can also be lost if the use has been changed, i.e. a dwelling (with EUR) changes to a café in a commercial area cannot revert to a dwelling.
For more information