This information has been prepared to assist existing landowners and business operators and potential land purchasers in understanding how “existing use rights” can be established and continued for a property of interest in the Tweed Shire, as it relates to Council’s current primary statutory planning documents, the Tweed Local Environmental Plan 2014 and Tweed City Centre Local Environmental Plan 2012.
Given the legal complexities of “existing use rights” State planning legislation, Tweed Council is not in position to provide definitive advice on whether or not a property enjoys existing or continuing use rights, outside of lodging a development application or modification application for a new development on this property.
Whilst this information provides a guide to “existing use rights”, it is strongly recommended that you gain your own expert planning and legal advice prior to making any decision to purchase or redevelop a property that you are interested in.
What is an ‘existing use’?
The definition of “existing use” can be found in clause 4.65 of the Environmental Planning and Assessment Act 1979.
A land use that has lawfully commenced with development consent but may become a prohibited use due to a subsequent change in planning legislation (such as a new LEP) is known as an existing use. Where this occurs, the Environmental Planning and Assessment Act 1979 (EP&A Act) and Environmental Planning and Assessment Regulations 2000 (EP&A Regs.) allow previous land use rights to continue to operate on the land.
Why do we have existing use rights?
Existing use rights provide certain protections to landowners from changes to planning laws that apply to their land. They allow people to continue to live in their homes for example or operate their businesses as they did before the change, until they decide they no longer wish to do so.
How do you determine if a land use is currently permissible or prohibited?
Council’s current primary statutory planning documents, the Tweed Local Environmental Plan 2014 and Tweed City Centre Local Environmental Plan 2012, contain both defined land uses and zoning tables that prescribe both permissibility and prohibitions that can apply differently to individual land parcels.
Council’s Da tracker and property search provides access to extensive mapping and copies of the above LEPs.
You can also confirm the LEP zoning of a property through the purchase of a Section 10.7 Planning Certificates (see section above), also known as zoning certificates, which are legal documents issued by Council under the provisions of Section 10.7 of the Environmental Planning and Assessment Act 1979.
Can you continue an existing use?
The provisions of the EP&A Act allow lawful existing uses to continue operating without the need for further approval to be obtained from Council, provided that the nature of the use remains the same as that which existed prior to the Tweed LEPs coming into force.
If a person is conducting an existing use on a property, and wishes to undertake any of the following, prior development consent from Council will be required:
a. Any alteration or extension to, or rebuilding of, a building or work; or
b. Any enlargement, expansion or intensification of the use.
An existing use cannot be amended through the exempt or complying development pathways.
Amending an existing use right can only occur through the development application process.
Can existing use rights lapse?
Yes. If an existing use on affected land ceases for more than 12 months, it is considered that the existing use may have been abandoned, and existing use rights may no longer apply.
What should you do if you intend to rely on existing use rights?
You do not need to do anything to secure an existing use. However, you should be aware that evidence may be needed to demonstrate the existence of an existing use if issues of compliance arise, you wish to expand the use, or you are required to prove that the existing use right has not been abandoned. Documentation may include:
- The development consent (if consent was required) or evidence that shows that the land use was lawfully occurring at the time the new LEP came into force; and
- Records of activity relating to land that relies on existing/continuing use rights, such as receipts relating to operations on the affected property and written records of activities undertaken on, or in relation to, the affected property.
You can apply to search for these records through Council’s GIPA (Government Information (Public Access) Act 2009) service.
Important note: While Council Staff can assist where possible, the onus of establishing existing use rights or demonstrating that the existing use has not been abandoned is that of the applicant. Applicants may need to seek their own Legal or Planning Advice with regard to establishing existing use rights.
What happens to the existing use rights if you sell your land?
Existing use rights stay with the land and not the owner of land. As long as the use continues as described above, the new owner can continue to live or operate a business where the existing use right has been lawfully established.