Commercial and industrial
Change of use
New use, existing building. Simple in principle, and the place where more applications fail on permissibility than anywhere else in NSW planning.
A change of use generally needs development consent. The work starts before the drawings: what is the proposed use called under the LEP's land use definitions, and is that use permitted in that zone?
The defined term does the work, not the trading name. A definition can carry a numerical qualifier inside it — a neighbourhood shop has a floor area cap built into the definition — so a proposal has to be tested against the definition rather than badged with it.
Four routes to permissibility
If the land use table doesn't permit the use, that is not the end of it. There are three more routes, and an application that concludes "prohibited" without testing them has given up early.
| Route | How it works | When it matters |
|---|---|---|
| 1. The land use table | The use, as defined in the LEP, is permitted with consent in the zone. | The ordinary case. Check the definition, not the label. |
| 2. Schedule 1 — additional permitted use | The LEP permits a specific use on specific mapped land, through Schedule 1 and the clause application map. | Invisible in the land use table. Easy to miss and decisive when it applies. |
| 3. A SEPP permits it independently | A State policy permits the use where the LEP does not — health services facilities, schools, childcare and infrastructure uses among them. | Cite the SEPP clause and the LEP position together. |
| 4. Existing use rights — Division 4.11 | A use that was lawful before the instrument that prohibited it, and has not been abandoned, may continue and in defined circumstances change. | The long-standing shop or office in a zone that no longer permits it. |
If all four fail, the use is prohibited and only a planning proposal will change that. We say so plainly rather than lodging something that can't be approved.
Existing use rights, and the trap in them
This is the route most often needed and most often missed. The classic case: a shop, office or consulting room that has traded lawfully for years in a tenancy on land the current LEP no longer zones for it.
Division 4.11 of the Environmental Planning and Assessment Act 1979 allows an existing use — broadly, a use that was lawful immediately before the instrument that prohibited it took effect, and has not been abandoned — to continue, and in defined circumstances to be enlarged, altered or changed, with consent.
Three things have to be established, and they have to be established with evidence rather than asserted from history:
- The use was lawful when it commenced. Original consent, or evidence the use predates the prohibiting instrument — council records, historic section 10.7 certificates, old consents, rates and business records, dated aerials.
- What the existing use actually is, in LEP-defined terms. Its scope sets the scope of what it can be changed to.
- It has not been abandoned. This is where cases fail.
Under section 4.66(3), an existing use is presumed abandoned if it ceases for a continuous period of 12 months, and the burden of rebutting that presumption sits with the applicant. The three-year figure that circulates was section 4.66(4), a temporary COVID-era measure that operated only between 25 March 2020 and 25 March 2022. It expired, and the spent provision was repealed on 15 December 2025.
Treating a two-year vacancy as survivable on the strength of the old figure is, on the current provision, fatal. Continuity has to be evidenced positively — leases, business registrations, utility accounts, trading records, dated photography.
Where permissibility rests on existing use rights, it has to be pleaded as a case in the statement of environmental effects, with the evidence identified. Saying a tenancy "has a long history of commercial occupation" is not a permissibility argument. It is the raw material for one, and assessing planners know the difference.
An existing use case is always a development application. There is no complying development route for one, the merit assessment is different, and it is usually worth a pre-DA discussion with council and, where scope or continuity is arguable, legal advice as well.
Then the operational assessment
Once permissibility is settled, a change of use is assessed on how it will run:
- Car parking — the DCP rate for the new use against the parking credit the existing use already carries. Often the whole argument.
- Hours and amenity — noise, odour, light spill, patron behaviour, and the distance to the nearest residential boundary.
- Staffing and attendance — particularly for automated or unstaffed uses. Who attends, how often, for what, and what the security and monitoring arrangements are.
- Mechanical ventilation — heat, moisture and odour, and where the exhaust discharges relative to neighbours. Decisive for food premises, gyms, clinics and laundries.
- Trade waste and wastewater — a separate approval from the water authority.
- BCA classification — a change of use commonly changes the classification, which triggers accessibility, sanitary facility and fire safety upgrades. Category 1 fire safety provisions are usually required at lodgement.
- Contamination — where a sensitive use follows an industrial one, under the Resilience and Hazards SEPP.
A statement that addresses these directly is materially more likely to be approved than one that describes the building and hopes.
What we do
Classify the use, establish permissibility on the strongest available route, tell you early if the case rests on existing use rights and what evidence you'll need to produce, then prepare the application with the operational content in it.
Fee proposals for change of use are scoped per project. Send the address, the current use and the proposed use.
General information about the pathway, not legal advice. Existing use rights turn on questions of fact and law — the scope of the use, and whether it has been abandoned — that are frequently litigated. Get legal advice before relying on them.
Have a tenancy and a use in mind?
Send us the address and what you want to run there. Permissibility is the first question and we answer it fast.