RFI - Appendix 1 - Legal Opinion · MCU19/0117

 Teatree Property Pty Ltd                                                                 15 January 2020



The differences between the definitions under the Planning Act 2016 and the Sustainable Planning
Act 2009 have been considered by Judge Kefford in Caravan Parks Association of Queensland Limited
v Rockhampton Regional Council & Another [2018] QPEC 52, a copy of which is attached.

The decision so far as it relates to how the term ancillary is to be read, is set out in the following
paragraph from that decision:

        [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.

The decision through paragraphs [7] to [17] are relevant to that consideration.

The planning unit is visitor accommodation on the entire premises. That is the primary use of the
premises.

It is not intended to use the premises for other than visitor accommodation.

It is intended that the visitor accommodation be made more attractive by the provision of the
ancillary use of a wave pool.

It is intended that the wave pool be attached for convenience to the use of the premises for “visitor
accommodation” and not for others.

The wave pool would not proceed extant the visitor accommodation.

On that basis we have reached the conclusion that the wave pool is ancillary to the primary use of
the planning unit as visitor accommodation.

In passing we note that the definition of use in The Noosa Plan Is Inconsistent with the Definition in
the Planning Act 2016.

We also note that the definition of ancillary in The Noosa Plan is consistent with the consideration
given by Judge Kefford in the Caravan Parks Association case.

Yours faithfully




Lestar Manning LLB
Director - Maroochydore Office
e [email protected]




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