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  • The key concept of existing use rights is the continuance of lawful use despite anything to the contrary in the Environmental Planning and Assessment Act 1979 or an environmental planning instrument.
  • Definitions specified in an environmental planning instrument are legally irrelevant to characterising an existing use.
  • The whole of a parcel of land may benefit from existing use rights if the land is a ‘single cohesive planning unit’.

Two recent decisions of the Land and Environment Court demonstrate the continuing importance of existing use rights in NSW planning law.

The first case, Seraglio v Shoalhaven City Council [2017] NSWLEC 45, deals with characterisation of an existing use and identification of the land benefited by the right. The existing use right in this case made permissible subdivision of land that was otherwise prohibited.

The second case, Saffioti v Kiama Municipal Council [2017] NSWLEC 65, concerns identification of the land benefited from an existing use right. The existing use right in this case enabled a new dwelling to be located on a more favourable part of a bush block of land despite a prohibition in the planning instrument.

Both decisions will help consent authorities and applicants for development consent.

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