Posted on September 23, 2018 by
Existing use rights – what land do they attach to and which controls apply?
The Land and Environment Court (LEC) has recently considered what land can be considered to have the benefit of existing use rights and the application of development standards and controls in development control plans (DCPs) in the merit assessment of development relying on existing use rights. This article was amended on 1 March and 30 April 2019.
Identification of Land
In Saffioti v Kiama Municipal Council  NSWLEC 65 (Saffioti 2017) the LEC found the unit of land to which the existing use rights for a dwelling house attached extended to the whole of the parcel of land on which the single dwelling house was located. The LEC reached this conclusion based on the evidence that the land had not been divided physically or by use and without requiring any evidence of actual use of the whole of the parcel.
This decision can be compared to that in Seraglio v Shoalhaven City Council  NSWLEC 45 (Seraglio) where the LEC found the unit of land to which the existing use rights for dwelling houses attached was not the whole parcel of land but rather each site within that parcel on which the use of separate dwelling houses was actually carried out. The LEC reached this conclusion based on evidence that two dwelling houses were erected on the parcel of land, each dwelling house had its own site and curtilage, different street addresses and that a paling fence separated the sites of the two houses.
In previous cases the LEC has found the unit of land to which the existing use right attached was limited to a building containing two flats (Jojeni Investments Pty Ltd v Mosman Municipal Council  NSWLEC 120); the first floor of the building (Lemworth Pty Limited v Liverpool City Council  NSWLEC 23) and the ground level of a site (Starray Pty Ltd v Sydney City Council  NSWLEC 48 ).
These cases demonstrate that the LEC will rely on evidence regarding the manner in which land is used to determine what the relevant unit of land is to which the existing use attaches.
In Saffioti v Kiama Municipal Council  NSW LEC 1426 (Saffioti 2018) a Commissioner of the LEC considered the issue of whether the controls in a DCP could be considered in assessing the merits of an application for development consent for development with existing use rights. The LEC decided that the relevant controls in the DCP could be considered notwithstanding section 4.67(3) of the Environmental Planning and Assessment Act 1979 (EPA Act). That section provides that any provisions of an environmental planning instrument (EPI) which would derogate from the provisions in the Environmental Planning & Assessment Regulation 2000 which are incorporated in every EPI regarding existing uses (the incorporated provisions), have no effect.
In Saffioti 2018, the Commissioner of the LEC found that as a DCP is not an EPI therefore section 4.67(3) does not apply to the provisions of such an instrument.
A similar submission was greeted with reservations by a judge of the LEC in the case Modog Pty Ltd v North Sydney Council  NSWLEC 120 (Modog 2018) at -. Modog 2018 was decided 3 days after Saffioti 2018.
The Commissioner of the LEC in Saffioti 2018 also considered provisions of the applicable local environmental plan (LEP) and found that a number of provisions, such as those dealing with biodiversity, applied to the application and did not derogate from the incorporated provisions. The Commissioner of the LEC considered that only those provisions of the LEP which could have the effect of prohibiting the development derogated from the incorporated provisions and therefore could not be taken into account.
The decision by the Commissioner in Saffioti 2018 in relation to the application of the LEP and the DCP provisions was upheld on appeal by the Chief Judge of the Land and Environment Court in Saffioti v Kiama Municipal Council  NSWLEC 57 (Saffioti 2019) at ,  and . In particular the Chief Judge accepted the Council’s submissions that:
- section 4.67(3) of the EPA Act does not apply to the provisions of a DCP ,
- the provisions of a DCP can never prevent a development application from being made pursuant to section 3.43(5)(b) of the EPA Act ,
- the provisions of a DCP can only set standards that are to be flexibly applied pursuant to section 4.15(3A)(b) of the EPA Act , and
- the merit assessment of a proposed development that relies on existing use rights by reference to DCP controls is legally correct .
The cases referred to above highlight that each application relying on existing use rights will need to be carefully considered to determine the unit of land which has the benefit of the existing use rights. That unit of land need not be a single lot.
In a merit assessment of an application relying on existing use rights, LEP provisions will need to be carefully considered, and only applied where the provisions do not have the effect of derogating from the incorporated provisions. DCP provisions, such the objectives of the controls in the DCP, might still be able to guide a merit assessment if the provisions raise matters that would otherwise be considered on a merit assessment of the application under section 4.15(1) of the EPA Act.
To discuss this blog, please contact Megan Hawley on 8235 9703.