Thinking | 9 June 2017
Existing use rights revisited
In October last year, we considered the decision of Haddad v Council of the City of Ryde  NSWLEC 1386 which discusses the interesting issue of existing use rights, and the circumstances in which an existing use can be changed, even if that use is prohibited in the relevant zone.
Recently, Chief Judge Preston of the Land and Environment Court of NSW published his decision in Royal Motor Yacht Club (Broken Bay) Pty Ltd v Northern Beaches Council  NSWLEC 56 (Decision), which also looks at the issue of existing use rights, with a focus on determining whether an existing use exists to authorise the making of a development application to enlarge, expand or intensify that use. The decision is an example of the circumstances where an intensification of use did not result in existing use rights being lost.
The Decision involves a recreational boating club, the Royal Motor Yacht Club (RMYC), which sought to expand its use of a waterway known as Pittwater. The RMYC had used waterfront land and the adjacent waterway since 1926 for recreational boating activities, which over that time has involved the construction of various facilities (including berthing and mooring facilities). Part of the waterway used by RMYC for its facilities is subject to a 40 year lease from the State of New South Wales (Leased Area) and the use of other parts of the waterway is subject to occupation licences granted by Roads and Maritime Services. RMYC enjoyed the use of a number of ‘swing moorings’ in the waterway outside the Leased Area.
RMYC proposed to expand its berthing and mooring facilities both within the Leased Area and outside of the Leased Area.
In this case, the Council argued that RMYC did not enjoy existing use rights of the adjacent waterway (outside the Leased Area) as defined in section 106(a) of the Environmental Planning and Assessment Act 1979 (NSW) (Act). Without existing use rights, Council submitted that the Pittwater LEP 2014 (PLEP 2014) had the effect of prohibiting the use of the waterway outside the Leased Area for the purpose of a recreational boating club, and therefore the development application could not be supported.
The first question for the Court was in relation to the purpose of RYMC’s use of the land and the waterway. RMYC argued that its use was that of a recreational boating club, which compromised different activities carried on by the club on the land and in the waterways. While the use may have undergone change over time, it submitted that the law recognises the natural evolution of a use. The Council on the other hand, took a more narrow view and attempted to categorise the use as that of a ‘marina’. The Court agreed with RMYC.
The Court then considered whether that use of the adjacent waterway was for a lawful purpose. The Court looked at the various planning instruments that have been in force since 1926, starting with the Local Government Act 1919 (NSW) which did not yet apply to the municipal area (at the time the use commenced). In summary, it was found that the use of the waterway outside the Leased Area in which the moorings were located, was commenced lawfully and continued to be lawful by existing use rights.
Despite this, the Council argued that the installation and use of the swing moorings was unlawful, and as a consequence, the use of the swing moorings cannot meet the requirements in the definition of ‘existing use’ in section 106 of the EPA Act. Specifically, the Council submitted that consent is required to erect ‘structures’ above the high water mark, the swing moorings were considered to be ‘structures’ and consent was not granted for their installation. RMYC presented evidence from a historian, two club members, club records and old photographic evidence to establish that the swing moorings were installed in the area prior to consent being required. The Court accepted this evidence and found the swing moorings were installed before there was any restriction on erecting a ‘structure below the high water mark.
In relation to Council’s claim that the swing moorings were ‘structures’, the Court confirmed that a structure needs to be of some considerable size and substance, and sufficiently affixed to the land on a permanent basis. In this case, the swing moorings were mobile and not intended to remain permanently. As such, the Court found that they were not structures to which the relevant law applied, in any event.
The RMYC’s use of the waterway outside the Leased Area was a use for the lawful purpose of a recreational boating club and that use was an existing use within the definition of section 106 of the EPA Act. Pursuant to section 107 of the EPA Act, nothing in the PLEP 2014 prevented the continuance of the use. RYMC was therefore entitled to rely on its existing use rights.
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