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

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                          Broadly speaking, however, the factors to be taken into account will
                         depend on planning considerations…”

       (g)    the question of dominance against ancillary, is not to be answered by
              ascertaining whether the nature of the first use makes it necessarily an essential
              part of the second use15; and

       (h)    where the whole of premises are used for two or more purposes, none of which
              subserves the others, it is irrelevant to inquire which of the multiple purposes
              is dominant16.

[15]   In the context of the definition of ‘use’ in the PA, the Explanatory Notes for the
       Planning Bill 2015 discuss, in some detail, what constitutes an ancillary use. They
       relevantly state at p.230:

                “To be an ancillary use to the principal use of premises, a use should have
                all of the following characteristics:

                        The use is subordinate to the principal use. This does not mean that
                         the ancillary use must necessarily be small in relation to (sic)
                         principal use, however the relative scale of the two uses is often a
                         useful indicator;

                        The principal and subordinate use are located on the same premises
                         and are not separated from each other by other uses of other
                         premises, other than in the case of separation by, for example, a road
                         or a physical feature such as a stream;

                        There is a functional relationship between the subordinate and
                         principal use, and not with a use of any other premises. For example,
                         if a florist shop in a hospital sells flowers only to hospital visitors and
                         patients, it is likely to be an ancillary use. However if the shop sells
                         flowers to the general public in addition to hospital visitors and
                         patients, then it is not an ancillary use.

                    It is not particularly relevant that an ancillary use is similar or quite
                    distinct from a principal use. For example, an administrative office
                    providing accounting and payroll services within a department store is
                    of an administrative character, while the principal use is of a retail
                    commercial character.

                    Also, the planning impacts, or a desire on the part of an entity to regulate
                    the use is not determinative of whether the use is ancillary or not.
                    Whether or not a use is ancillary are a matter of fact and degree in the
                    circumstances, and not a matter of opinion.

                    A helpful approach to dealing with ancillary uses is to consider them as
                    if they were the principal use. For example, a domestic swimming pool
                    or garage can be treated as if it were a ‘dwelling house’…”



15
       Terra AG Services Ltd v Griffith City Council [2017] NSWLEC 167 [53].
16
       Foodbarn (1975) 32 LGRA 157, 161.