The QPR Blog

I made a sideways reference to this subject in the previous post. While discussion on the subject can become confusing, the fact is that often it is not so much the nature of a particular land use but the relationship of that land use to other uses practiced on the same land that determines whether or not it might be an ancillary use.

Why might this be important? Quite simply, because land uses that are ancillary to a dominant use do not require development approval in their own right. Of course, the legality of an ancillary use may still be dependent on the legality of the dominant use.

Development is considered to be for a particular purpose if that purpose is the dominant purpose of the development. The purpose in question is the reason for which the development is to be undertaken or the end to which the development serves.

The concept of an ancillary use comes into play when a development involves multiple components and one or more of these components is considered to be subordinate or subservient to the dominant purpose. If a component serves the dominant purpose, it is ancillary to that dominant purpose. If a component serves its own purpose, it is not a component of the identified dominant purpose but an independent use on the same land, a dominant use in its own right. Note that, in the present context, there may be several dominant uses, each requiring independent approval, on the same piece of land.

A component of a development may have features that are both ancillary and independent. If this is the case, consider the following guiding, but not necessarily determinative factors:

• Is the component going to serve the dominant purpose of the development or is it independent?
• What is the amount of land to be used for a certain component, relative to the amount of land proposed to be used for other purposes? If the amount of land is relatively small, it is more likely to be ancillary although this may be less relevant in rural areas.
• Evidence of a purpose that is inconsistent with the dominant purpose is likely to undermine a claim that a component is ancillary.
• If the component is temporary, it is more likely to be ancillary; if it is regular (that is, will constitute an ongoing use), it is more likely to be an independent use.
• If the component goes beyond what is reasonably required in the circumstances for the development to implement the dominant purpose, it is likely to be an independent use (regardless of whether it has ancillary qualities).
• Related components of a development are likely to have an ancillary relationship, although this is not necessarily determinative of such a relationship.
• Physical proximity of the component to the rest of the development is likely to be evidence of an ancillary relationship, although again not necessarily determinative.

If an ancillary use expands to the extent it is no longer subordinate or subservient to the dominant purpose, development consent may be required for the change (expansion) of use.

To provide some examples that are closer to home for most of us, approval for the construction of a dwelling carries with it certain implicit ancillary elements. In a rural environment such as ours, non-commercial agricultural activities would generally be considered ancillary to a dwelling approval. Uses that support hobbies, self-funding or otherwise, will generally be OK, but you should give careful consideration to anything that might become a business or a dominant use in its own right.

As always, if you are considering doing something new on your property, and you are not sure whether or not development consent might be required, contact council’s planning staff. It doesn’t cost anything to ask.

The interested reader is referred to the Department of Planning and Environment Planning Circular PS 13-001, How to characterise development, for further discussion and more specific examples.