Existing Use Rights

By Hones La Hood Lawyers

Existing Use Rights can be quite beneficial to developers, in that a non-conforming use (eg a Service Station in an area zoned residential) may be converted to another non-conforming use provided the original use passes certain tests. Thus the Service Station site, if shown to have Existing Use Rights, could be converted to another use, such as town houses or villas, even though the Council’s zoning controls only permit a single dwelling on allotment size of the Service Station site.

The above statement is a generalisation. Any person with a site considered to have Existing Use Rights will need to undertake a thorough investigation to establish that firstly the Existing Use Rights exist, and that such use has continued unabated and has not expired nor been abandoned. Any fresh application for re-development of the site must also be considered on its merits, and whilst the Council controls may not apply, the change in use must be sympathetic to the surrounding area.

A non-conforming use can be expanded. This question, however, has caused some concern of late and has been the subject of a number of decisions.

The New South Wales Court of Appeal recently determined the matter of Ashfield Municipal Council v Armstrong (2003) NSWCA 353. In that matter, Justice Cowdry of the Land and Environment Court was asked to determine the following question:-

Whether the Existing Use of the building on land known as Lot 1 DP 908000, 6 Kensington Road, Summer Hill for the purpose of a residential flat building permits the grant of a development consent to develop an application 148/00 which proposed basement Car Parking for 9 residents in connection with the proposed conversion/extension of an existing building currently being used as 4 flats to provide 8 X 1 bedroom flats with basement parking.

Cowdry J. answered ‘yes’ to the question and the Council appealed that decision. The Council’s contention was that on a proper interpretation of “land”, the definition did not extend to the space beneath the land, but only to the surface and some below surface works sufficient to involve some intrusion or underground footings and services to the building.

The Council relied heavily on decisions of the Court of Appeal in Lemworth Pty Limited v Liverpool Council (2001) 53 NSWLR 371 and to the decisions of the Land and Environment Court in Starray Pty Limited v Sydney City Council (2002) NSWLEC 48 and Salvation Army v Newcastle City Council (2000) 107 LEGRA 40.

Those decisions variously related to the limitation on Existing Use. For example the Lemworth matter related to a brothel conducted on the first floor of a two-storey building. Shortly after consent had been granted for the use of part of the premises as a brothel, that purpose became prohibited under Council’s LEP. This meant that the use of the first floor became an Existing Use Right within the meaning of the Act. Some three years after the zoning prohibition the Appellant sought the right to undertake alterations to expand the use to the ground floor as well as the first floor. This application was refused and the refusal was upheld by the Land and Environment Court and the Court of Appeal.

In Ashfield v Armstrong the facts were distinguished from Lemworth and the Court of Appeal held that the basement Car Parking arrangement was permitted and was an acceptable expansion of the “Existing Use Rights”.


The law is constantly changing and this Paper describes developments for the benefit of our clients. It is not intended to be a definitive analysis of legislative or other changes and professional advice should be taken before any course of action is pursued.


We welcome your feedback

Hi there! We want to make this site as good as it can for you, the user. Please tell us what you would like to do differently and we will do our best to accommodate!

Protected by FormShield

We've updated our Privacy Statement, before you continue. please read our new Privacy Statement and familiarise yourself with the terms.