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

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     (a)    the ascertainment of the purpose of a use may yield the result that more than
            one separate and distinct purpose is revealed. In that event, the question arises
            whether one purpose is dominant. The further question that may arise is
            whether the lesser purpose, or purposes, are ancillary to the dominant
            purpose9;

     (b)    the dominant purpose for which land is used determines the character of the
            use, and not an ancillary use or uses. This was explained by way of example
            in Brazil (Concrete) Ltd v Amersham RDC (1967) 18 P&CR 396 at 399 where
            it was said:

                      “It is the primary purpose which determines the character of the user
                      (sic) and not the ancillary uses…Take, for instance, Harrods Store.
                      The unit is the whole building. The greater part is used for selling
                      goods; but some parts are used for ancillary purposes such as for
                      offices and for packing articles for despatch. The character of the
                      whole is determined by its primary use as a shop.”

     (c)    where premises are used for two or more purposes, one of which is described
            as the dominant purpose, and the others described as ancillary to the dominant
            purpose, the ancillary purpose or purposes take their colour from the dominant
            purpose10;

     (d)    to be an ancillary use requires:

            (i)     a dominant and subservient relationship11;

            (ii)    a use not to merely coexist with, but serve the purposes of the primary
                    use12;

     (e)    there is no single test to determine dominant against ancillary. Different
            criteria that has been adopted in earlier cases for this purpose are not readily
            susceptible to classification, with each case turning on its own facts13.
            Importantly, however, the matters that are to be taken into account involve
            planning considerations, and do not turn on relative financial returns to the
            owner or occupier of the site for each respective use14;

     (f)    the concept of ancillary may involve matters of size and scale. As was said in
            Toner Design Pty Ltd v Newcastle City Council [2013] NSWCA 410 at [11]:

                      “Secondly, the concept of “ancillary to” involves matters of size and
                      scale. Thus, two developments each of which was of significant scale
                      in its own right might not demonstrate the relevant relationship of
                      one being dominant and the other being subservient thereto.
                      Examples are not necessarily helpful because the factors to be taken
                      into account will vary as between cases.

9
     Cascone v Whittlesea Shire Council (1993) 80 LGERA 367, 382 cited with approval in Hoe v
     Manningham City Council (2011) 183 LGERA 441, 447.
10
     Cook v Woollongong City Council (1980) 41 LGRA 154, 159 citing Foodbarn (1975) 32 LGRA 157.
11
     Toner Design [2013] NSWCA 410 [10].
12
     Ibid.
13
     Northcote Food Wholesalers Pty Ltd v Northcote City Council (1994) 84 LGERA 54, 67.
14
     Toner Design [2013] NSWCA 410 [11].