Billboards And Existing Use Rights

Posted on March 8th, 2012

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by Tony Cavanagh

Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and is one of LawCover’s panel solicitors.

The Victorian Supreme Court recently dealt with a case relating to a billboard in suburban Melbourne.  APT Outdoor leased roof space at Moray Street, Melbourne and displayed an advertising board from it.  The use of the roof had been approved by local government authorities in 1995.  Subsequently, legislation relating to development consents inVictoria changed, and the Melbourne City Council tried to make the use of the roof unlawful after March 2009.

APT Outdoor thought the Council must have done so in error and wrote seeking to have it corrected but the Council refused.  APT Outdoor then commenced proceedings in the Victorian Civil and Administrative Tribunal seeking, amongst other things, a declaration that it had “existing use rights” and could continue to display the billboard.  The VCAT granted an amended permit which extended the time for which the billboard could remain in place but still required its ultimate removal.  APT Outdoor appealed to the Supreme Court.

The Supreme Court case was fairly legalistic but it boiled down to an argument that because the use of the rooftop for billboard display was an “existing use” before the legislation changed, as a matter of law that existing use should be permitted to continue indefinitely.  In a detailed decision which cannot be properly summarised in an article of this length, Cavanaugh J (no relation) concluded that VCAT had made errors of law in reaching its decision about existing use rights and referred the case back to VCAT to be decided in accordance with the reasons expressed in his judgment.

The issue of “existing use” rights does crop up from time to time.  It is most commonly associated with the use of land but as this decision shows, the principles can equally apply to structures which require local government approval.

Tony Cavanagh is a Director at Mullane & Lindsay, and practises extensively in Commercial and other Litigation and Employment Law. If you require any assistance in these areas please contact Tony Cavanagh or contact our Newcastle office.

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