Existing Usage Rights

This is some information provided by a resident in the proposed E3 area which outlines his experience having had to build a house which relied on existing uage rights:

Prior to purchasing the property in early 1994 we made enquiries with Warringah Council asking  "that if we acquired this single titled property would we be able to build a new house on the land? " The land at time of purchase had a two bedroom home situated on the south west section of the land. The land portion was approximately 3 acres and hence under the 5 acre requirement and hence we knew we had to rely on existing rights use. The council advised at the time prior to purchase that as there was an existing house on the property, we could rely on " existing right use" however, we would need to knock down the old existing house prior to commencing building the new home. All of which was not a problem. Based on that, we went ahead and purchased the property.

At that point we went ahead and engaged a builder to put together the building plan and put together and lodge the building application to the council.

To our  utter dismay and horror the council came back and advised at that point, words to the effect, "sorry"the application is rejected as you cannot now rely on "existing right use" because there is no evidence that the existing house on the property was ever approved  by the council in the first place.

Here we were; we had sold our existing house, moved into a rented property as we were not allowed to live in the old house on the property as we had to knock it down as advised by the council, while we were waiting for the new house to be built. A large mortgage, rented home on which we had to try to extend the lease on for an indefinite time while we fought the council.

We then, at great expense, then had to engage a property solicitor and a consulting town planner to review and fight our case.

Both advised that we were correct and that "existing right use" could be relied on.

Due to the great work by both the solicitor and the consultant they uncover a legal precedent/case back in the 1970s which the Warringah council lost based on "the existing rights use " issue. In that case the judge ruled that the onus of proof was on the council to prove that they had refused or rejected the building application of the applicant at the time and as the Council could not prove that fact, the council lost. The reason the Council could not prove the facts is because the council's building/planning records had all been destroyed in a major fire in 1960.

In our case as stated to the council we were able to show that (a) that aerial maps from the State Planning and Environment going back to 1948 showed that the same house existed on land we had purchased as lease from 1948, (b) the Council and Water Board had been charging and being paid for full residental housing and water rates, at least from 1948, if not prior, and finally (c) the council could not prove that they had refused the building of the old house because they did not have the required records. What annoyed us greatly we were advised by both the solicitor an the town planner (who in the past had worked as a senior planner for Warringah Council) was that council would have known of the precedent, but still went ahead and tried to "bluff" their way through, at our expense. We wonder way we are sceptical and relying on "existing right ".

This process delayed the building of our existing house by 12 months at a great deal of stress and cost to my wife and myself at the time and we are very sceptical when now told, " no worries you can rely on existing rights use" if we or a future owner of the property wanted to make approved changes to the existing property, relying on "existing right use ".

Do you want to have to rely on existing usage rights?

More information on Existing usage rights:

Click here to see one of the Practice Notes which talks about existing usage rights

Of particular importance is the following extract from this document:

"Other existing limitations on ‘change of use’ will continue to apply to these developments, including only allowing minor alterations and additions, limiting floor space increases to a maximum of 10 per cent, and not permitting rebuilding of premises or intensification of those existing uses."