Environmental Planning and Assessment Act 1979 No 203
Current version for 19 December 2014 to date (accessed 23 December 2014 at 09:44)
Part 4Division 10

Division 10 Existing uses

106   Definition of “existing use”

In this Division, existing use means:
(a)  the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for Division 4 of this Part, have the effect of prohibiting that use, and
(b)  the use of a building, work or land:
(i)  for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use, and
(ii)  that has been carried out, within one year after the date on which that provision commenced, in accordance with the terms of the consent and to such an extent as to ensure (apart from that provision) that the development consent would not lapse.

107   Continuance of and limitations on existing use

(1)  Except where expressly provided in this Act, nothing in this Act or an environmental planning instrument prevents the continuance of an existing use.
(2)  Nothing in subsection (1) authorises:
(a)  any alteration or extension to or rebuilding of a building or work, or
(b)  any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or
(c)  without affecting paragraph (a) or (b), any enlargement or expansion or intensification of an existing use, or
(d)  the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in section 80A (1) (b), or
(e)  the continuance of the use therein mentioned where that use is abandoned.
(3)  Without limiting the generality of subsection (2) (e), a use is to be presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months.

108   Regulations respecting existing use

(1)  The regulations may make provision for or with respect to existing use and, in particular, for or with respect to:
(a)  the carrying out of alterations or extensions to or the rebuilding of a building or work being used for an existing use, and
(b)  the change of an existing use to another use, and
(c)  the enlargement or expansion or intensification of an existing use.
(d)  (Repealed)
(2)  The provisions (in this section referred to as the incorporated provisions) of any regulations in force for the purposes of subsection (1) are taken to be incorporated in every environmental planning instrument.
(3)  An environmental planning instrument may, in accordance with this Act, contain provisions extending, expanding or supplementing the incorporated provisions, but any provisions (other than incorporated provisions) in such an instrument that, but for this subsection, would derogate or have the effect of derogating from the incorporated provisions have no force or effect while the incorporated provisions remain in force.
(4)  Any right or authority granted by the incorporated provisions or any provisions of an environmental planning instrument extending, expanding or supplementing the incorporated provisions do not apply to or in respect of an existing use which commenced pursuant to a consent of the Minister under section 89 to a development application for consent to carry out prohibited development.

109   Continuance of and limitations on other lawful uses

(1)  Nothing in an environmental planning instrument operates so as to require consent to be obtained under this Act for the continuance of a use of a building, work or land for a lawful purpose for which it was being used immediately before the coming into force of the instrument or so as to prevent the continuance of that use except with consent under this Act being obtained.
(2)  Nothing in subsection (1) authorises:
(a)  any alteration or extension to or rebuilding of a building or work, or
(b)  any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or
(c)  without affecting paragraph (a) or (b), any enlargement or expansion or intensification of the use therein mentioned, or
(d)  the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in section 80A (1) (b), or
(e)  the continuance of the use therein mentioned where that use is abandoned.
(3)  Without limiting the generality of subsection (2) (e), a use is presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months.
(4)  (Repealed)

109A   Uses unlawfully commenced

(1)  The use of a building, work or land which was unlawfully commenced is not rendered lawful by the occurrence of any subsequent event except:
(a)  the commencement of an environmental planning instrument which permits the use without the necessity for consent under this Act being obtained therefor, or
(b)  the granting of development consent to that use.
(2)  The continuation of a use of a building, work or land that was unlawfully commenced is, and is taken always to have been, development of the land within the meaning of and for the purposes of any deemed instrument referred to in Division 2 of Part 21 of Schedule 6 applying, or which at any time applied, to or in respect of the building, work or land.

109B   Saving of effect of existing consents

(1)  Nothing in an environmental planning instrument prohibits, or requires a further development consent to authorise, the carrying out of development in accordance with a consent that has been granted and is in force.
(2)  This section:
(a)  applies to consents lawfully granted before or after the commencement of this Act, and
(b)  does not prevent the lapsing, revocation or modification, in accordance with this Act, of a consent, and
(c)  has effect despite anything to the contrary in section 107 or 109.
(3)  This section is taken to have commenced on the commencement of this Act.
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