Existing Use Rights in Queensland: What Hotel operators need to keep in mind
In this article, Mullins Partners, Anthony O'Dwyer and Mitchell Osborne highlight the importance of understanding how existing use rights apply to your venue and the risks of non-compliance.
The Queensland hospitality industry continues to face increased scrutiny from local governments, particularly around compliance with planning laws. In a tightening regulatory environment, many hotel and pub operators are relying on “existing use rights” to lawfully operate venues that were approved or established under historic planning schemes.
For long-standing venues, understanding the scope and limitations of these rights is essential to avoid potential enforcement action or development delays.
What Are Existing Use Rights?
Existing use rights are legal protections that allow a land use to continue even if a new planning scheme prohibits or restricts the use. Under section 260 of the Planning Act 2016 (Qld), these rights apply where a lawful use was in place immediately before a new scheme came into effect.
This is particularly relevant to hotels and pubs that may have been approved decades ago under different planning schemes. Provided the use has been continuous and lawful, these venues are generally entitled to continue trading.
When Are These Rights at Risk?
While existing use rights offer valuable protection, they are not without limits. They may be lost or challenged if the nature or scale of the operation changes to the point where it constitutes a new or intensified use. This is commonly referred to as a “material change of use” in planning law.
Common triggers we see include:
- Extending trading hours (especially past midnight);
- Increasing patron numbers or seating capacity;
- Adding or expanding live music or entertainment;
- Converting underutilised areas into function spaces; and
- Undertaking renovations that alter the use or layout.
If those types of changes have happened, Councils will usually argue that the business no longer benefits from existing use rights and should apply for a new development approval.
In order to safeguard your venue’s legal standing, we recommend the following:
Retain and review historical development approvals
Ensure you have copies of all development permits, consents, and plans associated with your venue. These documents form the foundation of your existing use rights and will be essential if Council challenges your current operations.
Keep operational records to demonstrate continuous lawful use
Maintain records for things like trading hours, event calendars, staffing rosters, and utility bills to demonstrate that there has been no abandonment or lapse in use. A consistent operational history helps reinforce your claim to lawful continuity.
Seek planning advice before altering trading hours, fit-outs or capacity
Even seemingly minor changes can amount to a material change of use under the Planning Act. Obtaining planning advice early can help you avoid triggering unwanted attention, possibly resulting in an enforcement notice.
Consider applying for a development approval where existing use rights are unclear
If the extent of your existing rights is uncertain or records are incomplete, a new development approval may provide greater certainty and flexibility. This can also serve as a proactive step to legitimise any future growth or diversification of your venue’s offerings. That can result in substantial disadvantages, including conditions imposing costly works to bring the premises up to current standards or restricting the use. It is not a step to take lightly.
If your venue is undergoing changes or you are unsure about the scope of your existing use rights, our Planning and Environment team at Mullins can assist. We work closely with hotel operators to resolve planning issues before they become enforcement matters. You can contact the Mullins Planning and Environment team on 07 3224 0222.