Gazetted on 12 February 2024, Amendment VC254 made a number of changes to the Victorian Planning Provisions, including to the Planning for Places policy and the Transport Zone and the State Projects provisions. The change of most significance, however, is to clause 63.11 – the provision which establishes the so-called 15 year rule.

Existing use rights

As readers will know, a planning scheme cannot prevent the continuation of a lawfully existing use under the Planning and Environment Act 1987 (the Act) if the existing use was established before the planning scheme or planning scheme amendment came into operation.

Clause 63.01 of the planning scheme describes how an existing use right may be established. One way of establishing an existing use right is by proving that there has been continuous use for a period of 15 years.

Clause 63.11 of the planning scheme sets out what is required to establish this 15 years of continuous use. Amendment VC254 makes changes to clause 63.11 and the way that an applicant is able to prove the continuous use.

Proof of 15 years of continuous use prior to the Amendment

Prior to the amendment, clause 63.11 provided that in an application or proceeding under the Act or the planning scheme, including an application for a 97N certificate, where the extent of any existing use right for a period in excess of 15 years is in question:

…it is sufficient proof of the establishment of the existing use right if the use has been carried out continuously for 15 years prior to the date of the application or proceeding.

In Octopus Media Pty Ltd v Melbourne CC [2017] VSC 429, the leading judgement that considered the interpretation of clause 63.11, the Supreme Court held that the 15 year period must be immediately prior to the application being made. That is, if the application was made on 1 February 2024 then the applicant is required to prove that the land was being used for that particular purpose since at least 1 February 2009.

Issuing an unambiguous demand to cease use – a bar to establishing 15 years of continuous use

Clause 63.11 (both previously and as it continues to read) provides that an applicant will not be able to establish 15 years of continuous use if:

During the 15 year period, the responsible authority has clearly and unambiguously given a written direction for the use to cease by reason of its non-compliance with the scheme.

The issuance of such a demand by Council as the responsible authority has operated to prevent a land owner from being able to establish 15 years of continuous use immediately prior to an application (whether for a 97N certificate or declaration).

How does Amendment VC254 affect a 15 year continuous use rights claim?

Clause 63.11, as it now reads, provides that for an application or proceeding under the Act or the planning scheme, including an application for a section 97N certificate, where the extent of any existing use right for a period in excess of 15 years is in question:

… it is sufficient proof of the establishment of the existing use right if the use has been carried out continuously for a period of 15 years at any time before the date of the application or proceeding.

The change to allow a 15 year period of continuous use ‘at any time’ prior as evidence of an existing use right means that, as long as an applicant can establish any 15 year period of continuous use before the date of making the application (and that use remains ongoing), that will be sufficient proof to establish an existing use right.

This will have a significant impact on the way that an unambiguous demand to cease can operate to prevent a claim for existing use rights. Where previously an unambiguous demand to cease use would prevent an applicant from being able to obtain a 97N certificate or declaration, such a demand no longer operates as a complete bar to an applicant being successful. As long as an applicant is able to establish 15 years of continuous use at some other stage prior to both the issue of the demand and making of the application (and the use is continuing), then the applicant will be able to establish existing use rights.

Why was the Amendment made?

The Explanatory Report that accompanied Amendment VC 254 described the reason for the Amendment as:

The VPP and all planning schemes provides that an existing use right is established if amongst other matters, proof of continuous use for 15 years is established under clause 63.11, unless the use has been held to be unlawful or during the 15 year period or the responsible authority has given a written direction for the use to cease.

Currently, if a council makes a written direction that a land use is illegal and must cease before an application for a planning certificate can be made it would cut off the ability to prove existing use rights when making an application for a planning certificate.

Amendment VC254 is required to ensure that proof of existing use rights can still be made and fairly assessed even where a responsible authority has directed the use to stop, as long as there was a 15 year period of continuous use.

Amendment VC254 supports fair access and assessment for people seeking to prove existing use rights. The amendment addresses the potential detrimental impacts on businesses and people who should be able to apply for their existing use rights to be considered fairly.

Implications of the Amendment for councils

It is difficult to quarrel over the reasons for the Amendment. Post the Octopus Media decision, clause 63.11 could operate unfairly and almost certainly not as the planning scheme would have intended it to operate.

What the Amendment means however is that councils will need to immediately review any advices they have recently received and any application for certificate or declaration that they are presently involved in where the 15 year rule is in play. Further, as the planning scheme will need to be applied as it reads today, there is nothing in principle to prevent those who were unable to proceed with an application for s 97N certificate or declaration in the past because they have received an unambiguous letter of demand, from reapplying for a certificate or declaration.