How to apply for Existing Use Rights

 An existing use right is established if any of the following applies:

• The use was lawfully carried out immediately before 20 July 2000.
• A permit for the use had been granted immediately before 20 July 2000 and the use commences before the permit expires.
• A permit for the use has been granted under Clause 63.08 and the use commences before the permit expires.
• Proof of continuous use for 15 years is established under Clause 63.11.

If you are seeking to establish an existing use right by demonstrating a continuous use for 15 years or more, you must demonstrate that the use has not ceased for a period of more than two years, or has not stopped for two or more periods which together total two years in any period of three years.

The application must be supported by a combination of the documentation that will provide collective evidence to support your application:

Documents that may be required:

• Certificate of title (including plan of subdivision and copies of any agreements or restrictions registered on title) 
• A detailed description of the scale/nature of the use, including processes carried out, any plant/machinery installed and hours during which the use has been carried out
• A scaled plan detailing the location of the use and any processes carried out, consistent with the written description detailed above
• Building and/or planning permits for any buildings, structures etc, along with any certificate of occupancy/final inspection
• Internal Council Records, such as may be held by Rates, Health or Waste Services
• Copies of leases or licences (tenancy lease, mining lease, agricultural lease etc)
• Utility and/or insurance records
• Receipts evidencing purchases made from suppliers over the preceding 15 years, to demonstrate operation of the business
• Invoices for a range of dates throughout the 15 year period evidencing that the use/business has been in operation
• Photographs (including aerial photography) of the subject site and surrounds
• Records from old editions of the white or yellow pages
• Real estate advertisements
• Statutory declarations (seek advice from a solicitor as to how this should be set out) made by persons who have direct knowledge of the use and who can verify the precise nature of the use undertaken on the land (statements must be specific about the use)
• The continuous use of the land for 15 years

Given the fairly legalistic nature of contested ‘existing use rights’ disputes, we strongly encourage you to engage a specialist lawyer for your representation.