An existing use protects the continued use of a building, work or land where that use when commenced was lawful but subsequently became prohibited because of changes under an Environmental Planning Instrument. Existing uses can continue to operate without the need for further approval from Council, provided the nature of the use remains the same as that which existed at the date of the new Local Environmental Plan.
However, the prior consent of Council is required if a person who is conducting an existing use wishes to do any of the following:
- Alter or extend,
- Rebuild the building,
- Increase the area of use, or
- Enlarge, expand or intensify the use.
The onus is on the person alleging the existing use to prove that there are existing use rights. This can involve a fair amount of research to establish that existing use applies and can become quite complicated.
An existing use will cease where the use has been abandoned for 12 months or longer or where the use has unlawfully changed from one use to another. Abandonment of 12 months may be rebuttable if you were always intending to continue the use but circumstances beyond your control prevented the use from continuing for a period of 12 months or more.
A classic example of exercising an existing use is a corner store in the middle of a residential zoned area where the corner store was permissible when commenced but the rezoning of the land has made its use prohibited. The corner store can continue to operate using its existing use rights.
This is very complex area of law and it is recommended that you seek legal advice.