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Existing use rights

When you apply for a planning permit, you must check that your property is being used in a way that is permitted.

Existing use occurs 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 the planning controls now in place prohibit that use.

For more information please download the Existing use rights factsheet (PDF)

Why are existing use rights required?

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.

It also allows for a transition of land use to the new preferred planning outcomes.

Example of changing use of land

If you build a small admin office space next to a factory for use in association with the factory you retain your existing use rights.

If you turn the whole factory into an office block then you would lose the existing use rights for a factory as you have changed the entire use of the site.

Examples of an 'existing use'

You own a pub that is operating and serving alcohol in an area zoned Residential. The pub can continue to operate legally because it was operating as a pub prior to the current planning scheme being in place. Existing use means that the existing use of the property (example the pub) can continue to operate even though the current zoning has changed and may prohibit this type of use.
You have an existing permit to operate a factory in a large area zoned industrial but that later gets re-zoned to Residential 1, effectively prohibiting its use.
You own a house in an area that was zoned residential but has since been zoned commercial.

How to apply

Common questions about 'existing use'

When you apply for a planning permit, you must check that your property is being used in a way that is permitted.

Existing use occurs 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 the planning controls now in place prohibit that use.

For more information please download the Existing use rights factsheet (PDF)

Why are existing use rights required?

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.

It also allows for a transition of land use to the new preferred planning outcomes.

Example of changing use of land

If you build a small admin office space next to a factory for use in association with the factory you retain your existing use rights.

If you turn the whole factory into an office block then you would lose the existing use rights for a factory as you have changed the entire use of the site.

Examples of an 'existing use'

You own a pub that is operating and serving alcohol in an area zoned Residential. The pub can continue to operate legally because it was operating as a pub prior to the current planning scheme being in place. Existing use means that the existing use of the property (example the pub) can continue to operate even though the current zoning has changed and may prohibit this type of use.
You have an existing permit to operate a factory in a large area zoned industrial but that later gets re-zoned to Residential 1, effectively prohibiting its use.
You own a house in an area that was zoned residential but has since been zoned commercial.

How to apply

Common questions about 'existing use'

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.

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

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, and it is up to owner of the property to prove that they apply.

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

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.

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:
- permits (including endorsed plans) that have been issued for the land
- utility and/or insurance records
- records from old editions of the white or yellow pages
- photographs (including aerial photography)
- observations made by our staff (photographs)
- statements from existing and previous owners or occupiers detailing how the land has been used.
You must prove that this use was continuous.
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:
- permits (including endorsed plans) that have been issued for the land
- utility and/or insurance records
- records from old editions of the white or yellow pages
- photographs (including aerial photography)
- observations made by our staff (photographs)
- statements from existing and previous owners or occupiers detailing how the land has been used.
You must prove that this use was continuous.

Can I lose existing use rights?
Yes. The protection of existing use rights is 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.
If the land is being used for the same purpose, but the activity on the land has decreased, the use is taken to be 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).
Yes. The protection of existing use rights is 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.
If the land is being used for the same purpose, but the activity on the land has decreased, the use is taken to be 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).