As all the insomniacs in the shire read through the draft Palerang Local Environmental Plan (PLEP) in search of enlightenment, a number of people have asked about the application of existing land use rights in the context of this new planning instrument.
Existing use rights allow any land use that is legally practiced under a previous planning instrument to carry forward under a new planning instrument whether or not it is consistent with the provisions of the new instrument.
Existing use rights are defined in the Environmental Planning & Assessment Act and regulated by Sections 106 – 109B of the Act and Clauses 39-46 of the Environmental Planning & Assessment Regulation.
Existing use rights remain with the land, so they are transferred to any new owner with the sale of a property.
The question of when they lapse is a little more complicated. While section 107(3) indicates that a use is presumed to be abandoned if the land is not used for that purpose for a continuous a period of 12 months unless the contrary is established, the Court has taken a fairly liberal interpretation and the intention to recommence the use has been sufficient to keep the use alive.
Basically, if the normal land use cycle involves, say, resting a paddock for 12 months, or even several years, the associated land use is not considered to have been abandoned during the resting phase. In the case of grazing activities it is clear that destocking in times of drought is a recognised management practice and the absence of stock on a property for 12 months, or indeed the duration of a drought, would certainly not constitute abandonment. We have been advising people that, in a situation where grazing, for example, was no longer permitted without consent but was being undertaken under existing use rights, if the stock were off the land for a sufficient period to allow substantial regrowth of vegetation to occur a new DA to recommence the grazing activity might be required.