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What are existing use rights and when do I need a DA?

Foundation Law Group • June 1, 2021

What are “Existing Use Rights”?

Planning laws change regularly and with these changes landowners may be faced with some uncertainty as to how it may affect their rights to use their land. The rights that are sought to be protected here are “existing use rights”.

Existing use rights arise when there is ‘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 Part 4 of the Environmental Planning and Assessment Act 1979 (‘the Act’), have the effect of prohibiting that use’. (s 4.65)

The main purpose for these rights is to allow private owners of land to continue to use their land in a way that was previously permitted despite changes to the Act that may indicate otherwise. 

When do I need a Development Application (DA)?

A DA is usually necessary when the proposed development does not fit the requirements to be considered an exempt of complying development.



In the circumstance where the proposed development is considered ‘permitted with consent’ regarding the zoning of the land; the DA is what is used to obtain that consent. It is worth noting that even with a complying development there is an application process involving certification by a Private Certifier that is required.

Relying on Existing Use Rights in a DA

In certain circumstances existing use rights can be relied upon when submitting a DA to get approval that might otherwise not have been granted. In this situation there would need to be a strong evidence-backed case in support of the continuing rights from the existing use and the proposed use in the DA as well as evidence showing that the use has not been abandoned. 



It is important to remember that the existing use rights function to remove the prohibition of a type of use, all other normal requirements for a DA and when one is required will still need to be met (the Act s4.68).


If you are planning on lodging a DA and believe you have existing use rights that you would like to rely on, we have experts on hand who are ready to assist.

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