Insights Library
Amendment VC254 – Major changes to existing use rights under Clause 63.11
Amendment VC254 was gazetted Monday and introduces a key change to the text of Clause 63.11 of all Planning Schemes which establishes how existing use rights can be evidenced based on 15-years continuous use.
The 15-year period is now not limited to the 15-year period immediately before an application for a certificate of compliance or VCAT proceeding to establish existing use rights is lodged.
This is a departure from Octopus Media Pty Ltd v Melbourne City Council [2017] VSC 429 (Octopus Media), a decision of the Supreme Court of Victoria in which the Court found that the required 15-year period was the 15-year period immediately prior an application for a certificate of compliance pursuant to Section 97N of the Planning and Environment Act 1987 (Vic) (the PE Act) or an application to the Victorian Civil and Administrative Tribunal (VCAT) to establish existing use rights.
As a result of Amendment VC254, the 15-year period of use for existing use rights to be established can now be any 15-year period provided that:
- A Court or the Victorian Civil and Administrative Tribunal (VCAT) has not held that the use is unlawful (at any time before or after the commencement of the 15 year period);
- Council has not issued a clear and unambiguous written direction to cease the non-compliant use during the 15-year period; and
- The use has not ceased between the end of the 15-year period and the date of an application to Council for a certificate of compliance or an application to VCAT to establish existing use rights.
Amendment VC254 amends Clause 63.11 as follows (deletions in red and changes in green):
The Court in Octopus Media found that the “15 years prior to the date of the application or proceeding” required the 15-year period to be the 15-years immediately prior to an application for a certificate of compliance being lodged with Council or an application to VCAT to establish existing use rights. This was the case even if there was clear evidence available that a non-compliant land use had been operating on land for decades. The decision resulted in rights being extinguished where no application had been made to obtain a certificate or establish existing use rights at VCAT and a clear and unambiguous written direction to cease the use was issued by Council. As Octopus Media was a decision of the Supreme Court, it was binding on VCAT and was applied on numerous occasions.
In lodging an application for existing use rights under Clause 63.11, care should be taken to ensure that the most appropriate 15-year period is selected to establish existing use rights. This will require a detailed review of records and evidence available including records held by local government.
