When planning schemes are amended or a new scheme is introduced, ‘existing use rights’ protect the existing lawful use of premises from the regulatory impacts of such changes.  This article provides a refresher on existing lawful use rights and discusses the recent Planning and Environment Court decision in Jephcott v Noosa Shire Council.[1]

A Lawful, Existing Use

Section 260 of the Planning Act 2016 (Qld) (Planning Act) provides that if, immediately before a planning instrument change, a use of premises was a lawful use of premises, the change does not:

  • stop the use from continuing;
  • further regulate the use; or
  • require the use to be changed. 

Relevantly, a ‘planning instrument change’ includes the commencement or amendment of a planning scheme. The burden of proving existing lawful use rights sits with the person alleging them. 

There are two key points to make about establishing existing use rights.

First, the existing use must have been lawfully carried out immediately prior to the planning instrument change. To be lawful, the existing use needs to have been occurring in accordance with a development approval or have been otherwise permissible under the relevant planning scheme. If the use was being carried out without an approval, or contrary to an approval, the use is not protected.

Secondly, the use sought to be protected must have been in fact occurring on the land. Existing use rights do not protect a potential or intended use, only a use that had actually commenced and regularly continued on the land. A person seeking to establish existing use rights must be able to produce evidence of the use lawfully occurring prior to the planning instrument change.

Notably, an existing use is also only protected at the intensity and scale it operated at before the planning scheme change. Determining the exact nature and extent of existing use rights requires looking at the purpose served by the activities and considering how this purpose would be described according to ordinary terminology.[2]

In considering whether existing lawful use rights exist, it may be necessary to consider whether there has been a material increase in intensity or scale of the use over time, constituting a material change of use, or whether the use has ceased and the rights have been abandoned.

Case study: Jephcott v Noosa Shire Council

The importance of this second point was demonstrated in the recent case of Jephcott.  In early 2022 Noosa Shire Council (Council) enacted a new local law regulating the ‘operation of short stay letting’ which required operators to obtain local law approval.  The Appellants, Mr and Mrs Jephcott, applied to Council for approval to use their Peregian property for short stay letting and were refused. The Appellants appealed this decision arguing that the property benefitted from existing lawful use rights for short stay letting. 

The Appellants put on evidence that prior to the commencement of the Noosa Plan 2020, they used the property for personal respite and for family and friends to use as a holiday house. Guests stayed at the property free of charge. The Appellants argued this was sufficient to protect their right to use the property for short stay letting. Council argued that because the property was not ‘let’ on a commercial basis prior to the commencement of Noosa Plan 2020, the property did not benefit from existing lawful use rights for short stay letting.

The Court agreed with Council’s approach. As the use did not exist at the relevant time, the Court concluded there was ‘nothing for section 260 of the Planning Act to preserve’[3] and the property did not benefit from existing lawful use rights.

Key takeaways

In considering and assessing existing lawful use rights it is important to remember that:

  • the existing use must be lawful;
  • the use must have actually been occurring prior to the planning instrument change;
  • an existing use is only protected at the intensity and scale it operated at before the planning scheme change; and
  • existing use rights can be abandoned.

Contact a member of our Planning and Environment team if you would like to know more about existing lawful use rights.

Thank you to Caleb Caswell, Graduate, for his contributions to this article.

[1] [2024] QPEC 5.

[2] Shire of Perth v O’Keefe (1964) 110 CLR 529.

[3] Jephcott v Noosa Shire Council [2024] QPEC 5 [14].