Existing use rights allow for the use of land that was lawful, but subsequently became unlawful by a change to the local environmental plan (LEP) or other environmental planning instrument after the use had commenced. In the recent case of Saffioti v Kiama Municipal Council [2017] NSWLEC 65, the Land and Environment Court considered what land this benefit will be conferred to, and ultimately based their decision on whether the land had been subdivided.

In this case, Ms Saffioti owned a block of land on the NSW Southern Coast that, other than a small dwelling from the 80s, was covered in native vegetation. Her development proposal to build another small dwelling and garage on another part of the property was rejected by the council, who argued that the new zoning laws only allow for development for environmental conservation. The Council conceded that Ms Saffioti has existing use over the current dwelling, but argued that this could not be extended to the entire block. However the court considered the fact that the land had not been subdivided in any way, either physically or by use, and therefore found that the existing use right applied to the whole block and the development should proceed.

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