A Fairer Approach to Existing Use Rights

Yesterday, the Victorian Government gazetted Amendment VC254, amending all planning schemes in Victoria.  Significantly, this amendment changes the time period to apply in existing use rights applications relying on the ’15 year’ rule.

Pre-Amendment Provision

It has long been the case that all Victorian Planning Schemes provided that evidence demonstrating continuous use of land for a 15-year period established existing use rights.  However, those rights were extinguished if, within the 15-year period, the responsible authority had issued a ‘clear and unambiguous’ written direction for the use to cease.

The relevant period

In 2017, in Octopus Media Pty Ltd v Melbourne City Council [2017] VSC 429 (Octopus Media), the Victorian Supreme Court held that the relevant 15-year period had to be the period immediately preceding the relevant application.

This meant that existing use rights could not be established in those cases where the use had been carried out for many years, including well in excess of 15 years, if the responsible authority issued a direction to cease before an application was made to prove those existing use rights – even if that direction was issued after the use had been carried out for 15 years (or more).

Amendment

Amendment VC254 reverses the effect of the decision in Octopus Media.

Clause 63.11 has been amended to read (emphasis added):

…it is sufficient proof of the establishment of the existing use right if the use has been carried out continuously for 15 years prior to a period of 15 years at any time before the date of the application or proceeding.

An existing use right may be established … unless any of the following apply:

…

The use ceased between the end of the 15 year period and the date of the application or proceeding.

The need for the 15-year period to commence immediately prior to the application is no longer required.  A ‘clear and unambiguous’ direction to cease will now only defeat existing use rights if it is issued before the use has been carried out for the requisite 15-year period.

A fairer approach

While the 15-year rule can have the effect of making legal that which commenced unlawfully, its primary purpose has always been to prevent the necessity for the production of very old evidence to prove lawful establishment of a use before that use was regulated in any way by current planning scheme provisions.

While Octopus Media had the potential to displace the utility of the rule, Amendment VC254 ensures it will again allow recent evidence to be used to establish existing use rights.

If you or your business requires advice on existing use rights, or any other planning related matter please contact Luke English at our Mornington Office on 5975 2000.