RFI - Appendix 2 - Caravan Parks v Rockhampton Regional Council Anor 2018 QPEC 52 · MCU19/0117

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    [6]   The dispute between the parties calls for an examination of the following issues:

          (a)     What is an ancillary use?

          (b)     Is RV accommodation an ancillary use of Kershaw Gardens?

          (c)     Has s.163 of the PA been contravened and a development offence committed?

          (d)     Has s.165(a) of the PA been contravened and a development offence
                  committed? And

          (e)     What relief should be granted?

What is an ancillary use?

    [7]   The definition of ‘use’ in schedule 2 of the PA is in the following terms:

                    “use, for premises, includes an ancillary use of the premises.”

    [8]   The Council submits the existing use of Kershaw Gardens is a park and, by virtue of
          the definition of use, includes any ancillary use of the premises. The RV
          accommodation use is said to be an ancillary use of the premises.

    [9]   The term ancillary is not defined in the PA. It is to be given its ordinary meaning.
          Authorities indicate that Courts have held the plain meaning of ancillary is ‘incidental
          and subordinate’3. The Macquarie Dictionary (3rd edition revised) defines ancillary
          as meaning ‘accessory’, which, in turn, is defined as a ‘subordinate part or object;
          something added or attached for convenience, attractiveness’. The Oxford English
          Dictionary (2nd edition) defines ancillary as ‘subservient, subordinate’. The
          explanatory notes for the Planning Bill 2015 confirm ancillary is to be given its
          ordinary meaning, namely, an ancillary use is ‘subordinate’ to the principal use of
          premises.

[10]      The inclusion of ancillary uses in the definition of ‘use’ recognises that multiple uses
          of the same premises may be treated as a single planning unit. This requires the
          identification of a principal and subordinate use. This is by no means a novel
          proposition. The characterisation of a use by reference to principal and subordinate
          uses is consistent with the classic statement of principle found in Foodbarn Pty Ltd v
          Solicitor General (1975) 32 LGRA 157 where Glass JA said at 1614:

                    “It may be deduced that where a part of the premises is used for a purpose
                    which is subordinate to the purpose which inspires the use of another part,
                    it is legitimate to disregard the former and to treat the dominant purpose as
                    that for which the whole is being used. Doubtless the same principle would
                    apply where the dominant and servient purposes both relate to the whole and
                    not to separate parts…”




3
          Drouyn v Rose (1981) 50 LGRA 217, 220 (Andrews J with whom Lucas SPJ and Demack J agreed).
4
          This statement was affirmed by Gibbs CJ in Lizzio & Anor v The Council of the Municipality of Ryde
          (1983) 155 CLR 211, 216-217 (‘Lizzio’).