Case note

Existing use rights and Bennett v Hawkesbury City Council [2022] NSWLEC 1630

Determining the existence and scope of existing use rights can be complex. It typically requires examining historical documents and planning instruments to understand how land has been used over time.  The recent case of Bennett v Hawkesbury City Council[1] (Bennett) highlights some of the issues which can arise when considering when land has the benefit of existing use rights under Division 4.11 of Part 4 of the Environmental Planning and Assessment Act 1979 (EPA Act).

Existing Use Rights

‘Existing use’ is defined in s 4.65 of the EPA Act to mean;

(a)  the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for this Division, have the effect of prohibiting that use, and

(b)  the use of a building, work or land—

(i)  for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use, and

(ii)  that has been carried out, within one year after the date on which that provision commenced, in accordance with the terms of the consent and to such an extent as to ensure (apart from that provision) that the development consent would not lapse.

Existing use rights are protected by s 4.66 of the Act. That section provides that nothing in the EPA Act or an environmental planning instrument (such as a Local Environmental Plan) prevents the continuance of an existing use.

Similar provisions protect the carrying out of development which was lawfully commenced at a time when consent was not required where it later becomes development which is only permissible with consent (s.4.68).

A person seeking to rely on existing use rights has the onus of proving the existence and scope of such rights. This usually involves determining:

  • a. the date the relevant use commenced;
  • b. what planning instruments were in force at that time, whether the use was lawfully commenced and how the use should be characterised;
  • c. the nature, scope and commencement of any consent relied upon;
  • d. the date the use became prohibited, and the scope, scale and intensity of the use immediately before that date;
  • e. whether the use may have been abandoned.

The EPA Act does not permit:

  • a. the continuance of a use that was not lawfully commenced[2];
  • b. any enlargement or expansion or intensification of the existing use without development consent being obtained [3];
  • c. the continuance of an existing use which has been abandoned. A use is presumed to be abandoned if it ceases to be actually so used for a continuous period of 12 months (or 3 years, in the COVID period[4]).

Existing uses are distinguished from the more limited, although potentially more secure, right to continue to carry out development authorised by a consent, which is preserved in s.4.70 of the EPA Act and which cannot be abandoned.

The facts and issues in Bennett

The applicants in Bennett sought consent for the construction and use of additional seniors dwellings and the community title subdivision of land (Lot 6). Development for the purpose of seniors housing was prohibited on Lot 6, and therefore, they relied on existing use rights for the development.   A seniors housing development (the village) had been constructed on adjacent land pursuant to a consent granted in 1999 under the State Environmental Planning Policy No 5 – Housing for Older People or People with a Disability (original consent). The original consent was expressed to apply to both the land on which the existing village had been constructed and Lot 6. A separate consent was issued in 2005 for a private burial site, which was ultimately constructed on Lot 6, and in 2012 for a 19-lot community title subdivision of the village. The key issues which arose in the Court proceedings were;

  • a. how to define the land to which ‘existing use’ rights attached; and
  • b. whether subdivision was a form of development which could be the subject of an existing use right.

In considering whether Lot 6 had the benefit of existing use rights, the Court first considered whether the development was actually a prohibited use on Lot 6, noting that cl.6(1)(c) of the 2004 Seniors Housing SEPP authorised the carrying out of the development permitted by the original consent.  In considering this issue the Court noted the following relevant principles:

  • where an ‘existing use’ is founded upon a development consent, the land which the consent is expressed to relate to will usually determine the unit of land upon which the ‘existing use’ is carried out[5].
  • when the land referenced in the consent contains some areas of apparently unused land then further enquiries may be required[6]. This is more likely when the existing use is said to be derived from the historical lawful use of land but is not based on a development consent (s 4.65(a) of the EPA Act).
  • when assessing whether there has been a use of the land for which development consent was granted, it will inevitably include the land actually physically used at the prohibition date, but it will also include land held in reserve for that use.  This land has the benefit of the existing use right, but consent is required to carry out the development upon it.
  • consideration of the terms of the consent, including conditions, will be fundamental to, but not necessarily conclusive of, the determination of the ‘use of … land’ for which development consent was granted.
  • The ultimate question is whether there is some area of the land … that can fairly be regarded as being part of the area used for the relevant purpose at the relevant time, being the prohibition date.

In finding that Lot 6 had the benefit of existing use rights, and that cl.6(1)(c) of Housing for Seniors SEPP 2004 did not prevent existing use rights attaching to Lot 6, the Court distinguished between the use of land (which is what is saved by s 4.66 of the EPA Act) and the ‘carrying out of development’ which was the subject of cl 6(1)(c) of Housing for Seniors SEPP 2004. In this regard, the Court found that the SEPP only authorised the carrying out of the development permitted by the original consent, and not the use generally.  Seniors Housing was therefore a prohibited use of lot 6 such that the lawful commencement and ongoing use of the land for that purpose gave rise to existing use rights and the application for development consent to enlarge, expand or intensify that use could be made in reliance on those rights. 

The development application for subdivision also relied on the existing use rights. It was submitted that the subdivision of the land was also an ‘enlargement, expansion or intensification’ of the existing use as seniors housing.  It is well established that, whilst subdivision is development as defined in s 1.5(1)(b) of the EPA Act, subdivision does not involve any use of land[7].As the establishment of an existing use is premised upon there being an existing use of land, the Court found that subdivision cannot qualify as an existing use and accordingly, cannot give rise to existing use rights. In any event, the Court noted that the proposed subdivision would not amount to an enlargement, expansion or intensification of the existing use, but would merely reflect a change in title, and for that reason, also could not proceed in reliance on existing use rights.

Our specialist Planning, Environment & Local Government Team routinely advice on the existence and scope of existing and continuing use rights and development applications made in reliance on such rights.  Please contact us if you have an existing use right query.

[1] [2022] NSWLEC 1630

[2] Steedman v Baulkham Hills Shire Council (No 2) (1993) 80 LGERA 323

[3] Cl 164 EPA Regulations

[4] s4.66(4) EPA Act

[5] Brinara Pty Limited v Gosford City Council (2010) 177 LGERA 296; [2010] NSWLEC 230 at [47]; Eaton & Sons Pty Limited v Warringah Shire Council (1972) 129 CLR 270 at 279

[6] Lemworth Pty Limited v Liverpool City Council (2001) 53 NSWLR 371;[2001] NSWCA 389

[7] ; Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [28]

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