Relying on existing land use rights in NSW
The recent Land and Environment Court decision in Haddad v Council of the City of Ryde  NSWLEC 1386 considers the interesting issue of existing use rights and the circumstances in which an existing use can be changed, even if the particular use is prohibited by the relevant planning scheme.
In this case, the applicant, James Haddad lodged an appeal pursuant to section 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) with respect to a refusal of a development application to change the use of the site to a ‘business premises’ (previously a doctor’s surgery). Importantly, use of the site as a ‘business premises’ was prohibited by the relevant planning scheme, and Council argued that the site no longer had the benefit of an existing use right as a doctor’s surgery as those rights had been abandoned by the applicant. In asserting that the existing rights had been abandoned, Council relied on photographic evidence from 2014 that suggested the ground floor of the premises was used as law chambers.
The existing building was designed and constructed in 1964 and evidence was produced to the Court that showed that the development of a three storey residential building and ground floor medical consulting suites was lawfully granted.
The applicant argued that the existing use, being the doctor’s surgery, had been preserved pursuant to section 109B of the EPA Act, and on that basis, the applicant was entitled to change the use to another commercial use (even if it was otherwise prohibited) if clause 41(2) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) could be satisfied, as outlined below.
(2) However, an existing use must not be changed under subclause (1) (e) or (f) unless that change:
(a) involves only alterations or additions that are minor in nature, and
(b) does not involve an increase of more than 10% in the floor space of the premises associated with the existing use, and
(c) does not involve the rebuilding of the premises associated with the existing use, and
(d) does not involve a significant intensification of that existing use.
The applicant was able to produce evidence from a pathology audit that showed over 349 referrals were made from 2013, and he was able to show that the premises held a current (and valid) Medicare provider number from 1995.
The evidence produced by the applicant was sufficient for Commissioner O’Neil to conclude that the existing use had not been abandoned. The Court held that, given the existing use as a doctor’s surgery was a commercial use, and a commercial use can be changed to another commercial use, the application was acceptable subject to the limitations of clause 41(2) of the EPA Regulations. The Court also found that the development proposal would not result in any additional environmental impacts.
Relying on existing use rights in a development application can be precarious. This is particularly the case for use changes that are within the same general description or the existing use has ceased. In these situations, reliance on existing use rights stands the best chance of success with strong evidence. In this case, it was critical to the successful reliance on existing use rights that the applicant was able to demonstrate continued use of a commercial nature.
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