• VCAT

February 13, 2024

‘People should be able to have their existing use rights application considered fairly.’

This headline formed part of the governments explanatory report for planning changes announced on the 12th February 2024 in relation to business and uses that rely on the presence of existing use rights as the basis for approval. The sweeping state-wide change makes it easier for proponents to obtain the required council planning approval for an existing business or use based on the often maligned existing use rights of the planning scheme. VC254 introduced changes to the language within clause 63.01 of the planning scheme that essentially allows applicants to rely on the clause if the use or business had been carried out for 15 continuous years at any time before the date of the planning application being lodged.

Prior to the change, the use had to be carried out for 15 continuous years directly prior to the date the planning application was lodged. This change affords applicants greater flexibility to make an application relying on existing use rights even if the council has directed the use to cease immediately and before a planning application is lodged. Prior to this, if a use ceased at the direction of council, existing use rights fell away on the basis that the cessation represented a break in the 15 years continuous criteria.

The rationale behind the change is to allow for a fairer assessment of an application made under the existing use clause of the planning scheme. The explanatory report states the amendment ‘supports fair access and assessment for people seeking to prove existing use rights. The amendment addressed the potential detrimental impacts on business and people who should be able to apply for their existing use rights to be considered fairly’.   


Applications that rely on clause 63.01 of the planning scheme generally suffer from a negative stating point in the assessment. Very often the uses or business have incurred complaints from the public and sometimes are even prohibited uses in the zone. They are also retrospective applications by nature which contributes to the negative bias. Traditionally, assessing council planners will set an incredibly high bar for a use or business to prove beyond a doubt that it existed for 15 continuous years. Applicants are required to provide a myriad of historic documents about the use or business that includes, rates notices, tax returns, company registrations and financial statements. Due to this complexity, it is often a more pragmatic approach to apply for a fresh permit for the use or business under a standard planning permit process and not rely on existing use rights whatsoever. This approach is only an option where a business or use is a Section 2, permit required use within a zone. Where it is a section 3, prohibited use, an application under existing use rights maybe the only viable prospect for approval. The latest change to the rules will undoubtedly provide applicants greater flexibility to make an application, however it will not make it any easier to obtain the approval after the application has been made.