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

                                                  5

[11]   The definition of ‘use’ in the PA incorporates an important shift in the law. The shift
       emerges when the definition is compared to the definition of ‘use’ in the repealed
       Sustainable Planning Act 2009 (Qld) (SPA). The definition of use in SPA required a
       subordinate use to be ‘incidental to and necessarily associated with’ the principal use
       of premises. A review of past decisions of this Court, and the Court of Appeal,
       confirm the provision was given a narrow interpretation5, and set a high threshold for
       subordinate uses to cross.

[12]   In contrast, the PA definition provides for a lower threshold for subordinate uses to
       cross. It requires a subordinate use to be an ancillary use of premises. This change is
       a deliberate one, as is confirmed by the Explanatory Notes for the Planning Bill 2015
       which state at p.230:

                “The definition under the old Act required a subordinate use to also be
                ‘necessarily’ associated with the principal use of the premises. This resulted
                in a very ‘high bar’ for subordinate uses, inconsistent with the approach in
                other jurisdictions…
                …
                The substitution of the term ‘ancillary’ is intended to provide more flexibility
                in relation to subordinate uses, consistent with widely applied and well
                accepted principles about their limitations. These limitations reflect an
                overall intent to allow for such flexibility while preserving the reasonably
                anticipated amenity of places, and the capacity of regulators to protect
                amenity through the regulation of material changes of use.”

[13]   An examination of whether a use is a principal or ancillary use is part and parcel of
       the process adopted to identify the relevant planning unit, and properly characterise a
       use or uses. A planning unit is the defined physical area used for a particular purpose,
       including any part of that area where a use is incidental, or ancillary to the
       achievement of that purpose6. In this case, the issue is whether the existing use of
       Kershaw Gardens is a single planning unit (including RV accommodation), or two
       separate planning units.

[14]   As has long been recognised, the identification of the correct planning unit involves
       matters of fact and degree7, and is an evaluative exercise8. The identification of the
       correct planning unit must be decided having regard to the facts and circumstances of
       each case, and the applicable legislative and planning context. This task may be
       assisted by reference to a number of matters of general application that can be distilled
       from earlier cases. Whilst caution needs to be exercised with the earlier cases given
       differences in relevant legislative provisions, the following matters of general
       application may assist in the identification of the correct planning unit, where it is
       asserted it includes an ancillary use, namely:




5
       See the discussion in Morgan-Phoenix v Gold Coast City Council [2007] QPELR 470, [8].
6
       Woolworths Ltd v Maryborough City Council (No.2) [2006] 1 Qd R 273, 290 [38] citing G Percy
       Trentham Ltd v Gloucestershire County Council [1966] 1 WLR 506, 513 (Diplock LJ).
7
       Lizzio (1983) 155 CLR 211, 217; Baulkham Hills Shire Council v O’Donnell (1990) 69 LGRA 404,
       409; Woolworths Ltd v Maryborough City Council (No.2) [2006] 1 Qd R 273, 291 [40].
8
       Toner Design Pty Ltd v Newcastle City Council [2013] NSWCA 410 [7] (Basten JA) (‘Toner
       Design’) citing with approval Baulkham Hills Shire Council v O‘Donnell (1990) 69 LGRA 404, 409
       (Meagher JA).