Who Can Help If My Property Has Existing Use Rights? (QLD)

Old wooden storefront with glass panes representing a business use that has continued lawfully under Queensland's existing use rights protections

Plain-English Summary

A town planner can help protect your existing use rights if a planning scheme change affects a use already running on your property. Under section 260 of the Planning Act 2016 (Qld), a lawful use can generally keep going, even after a scheme change — but only at the same scale, and only if you can prove it was lawful and already happening beforehand. A town planner can help you prove this and show you what you can and can’t change without losing that protection.

Table of Contents

Who Can Help With Existing Use Rights?

A town planner is the right first contact if a scheme change means your property’s use no longer matches the zoning, but the use was already lawfully running beforehand. A town planner can check whether section 260 of the Planning Act 2016 (Qld) protects you. They can also help gather the evidence council — or the Planning and Environment Court — would need to see.

Sometimes council won’t accept that the use was lawful or ongoing. If that happens, a planning lawyer may also need to get involved alongside the town planner, since the matter can end up argued in court.

What Are Existing Use Rights Under QLD Law?

Section 260 of the Planning Act 2016 (Qld) protects a lawful use on your property. It stops a planning scheme change from shutting down or restricting that use, just because the rules changed after the use began. If your use was lawful right before the change, the change doesn’t stop it continuing.

This protection is narrower than it sounds. You have to prove two things, and the burden of proof is on you, not council. First, the use had to be genuinely lawful before the change — either approved, or otherwise allowed under the scheme at the time. Second, it had to actually be happening on the land, not just planned. A use that had stopped, or was never properly approved, isn’t protected.

The protection is also capped at the same scale the use was running at before the change. Expanding it, changing its nature, or letting it lapse can all put the protection at risk. This is exactly what a town planner checks before you change anything about how the property is used.

What a Town Planner Checks to Prove the Right Exists

The burden of proof sits with you, not council. So a town planner’s job here is mostly gathering evidence. They work out exactly when the use began, whether it had a valid approval, and whether it’s kept going without a real gap since.

This can mean pulling together council records, past approvals, business registration history, utility bills, or old aerial photos. A town planner turns this into the kind of evidence council — or the Planning and Environment Court, if it’s disputed — will actually take seriously.

Common Mistakes Property Owners Make

Assuming any long-running use is automatically protected. Existing use rights only protect a use that was lawful to begin with. An unapproved use doesn’t become protected just because it’s gone unnoticed for years.

Expanding the use without checking first. Growing the use beyond its original scale can step outside the protection entirely. The expanded part then faces full assessment under the current scheme.

Letting the use lapse. A significant break can count as abandoning the use, which can end the protection. Starting it up again later may then need a fresh development approval.

Not keeping evidence. Since the property owner carries the burden of proof, failing to keep records of when and how the use operated can make a genuinely valid claim very difficult to establish years later — a town planner can advise what to start documenting now, before it’s needed.

Illustrative Example

The following is an illustrative, fictional example intended to show how a situation like this might be resolved; it is not a real case.

A property owner on the Gold Coast had run a small vehicle repair business from a shed for over a decade. It had an approval from before council reclassified the area. Then a new planning scheme brought in tighter rules for industrial-type uses in that zone. Worried the business couldn’t continue, the owner engaged a town planner. The planner pulled together the original approval, old aerial photos, and business records showing the same use at the same scale since before the change. That evidence backed the business continuing under section 260 — as long as it stayed at its existing scale.

When to Contact a Town Planner

Contact a town planner if a scheme change affects a use already running on your property. Also contact one if you’re thinking about expanding or changing that use, or if council has questioned whether it’s protected. A planning lawyer becomes relevant once the matter is disputed or heading toward the Planning and Environment Court.

Final Plain-English Takeaway

Existing use rights can protect a lawful use on your property from a planning scheme change. But the protection is narrower than most owners expect. It only covers a use that was genuinely lawful and already happening, capped at its original scale. A town planner can check whether your situation qualifies, and help build the evidence to prove it.

FAQs

Do existing use rights apply automatically?

No. The property owner must prove the use was lawful and genuinely operating before the planning scheme change. There is no automatic register or approval — it is established through evidence if the matter is questioned.

Can I expand a use protected by existing use rights?

Generally not, without risking the protection. Existing use rights only protect the use at the scale it was running before the change. Expanding it can expose the new part to assessment under the current planning scheme.

What happens if I stop the use for a while?

A significant break can be treated as abandoning the use, which can end the existing use protection. Restarting the use later may then require a fresh development approval under the current scheme.

Who decides if my existing use rights claim is valid?

Council makes an initial assessment, but if the matter is disputed, it can be decided by the Planning and Environment Court. A town planner and planning lawyer can help prepare and present the evidence in either setting.

This website provides general planning information only and is not legal, planning or design advice; homeowners, builders, owner-builders and developers should seek qualified professional assistance for any decisions relating to their Development Application or building project.

Contact — DA Refusal Help QLD

For general information or referral to a qualified town planner, contact:

Aaron — Client Liaison, DA Refusal Help QLD
Phone: 0477 767 423
Email: aaronbox193@gmail.com

Next in this series: What Can I Build on My Property? (QLD)