The QPR Blog

Well, I did say that the subject of ancillary land uses could become confusing at times. Based on some of the feedback I received in relation to my last post, it was no exception, so let’s take a step back and look at the bigger picture of permissible land uses.

A few months back, I discussed the role of local government in land use planning. With the introduction of Planning Scheme Ordinances (PSOs) in 1945, and more recently Local Environmental Plans (LEPs) under the Environmental Planning and Assessment Act 1979, the activities that can be carried out on any particular piece of land have generally been controlled by local councils. Land uses, however, are not arbitrarily defined in individual LEPs. The Standard Instrument (SI), the template upon which all NSW LEPs are based, includes a dictionary that defines the specific land uses that may be referred to in any LEP.

As with any plan, there are advantages and disadvantages in providing an explicit list from which items must be selected. A significant motivation in the present case is the standardisation of descriptions across all LEPs, to facilitate their higher-level administration. One of the disadvantages, however, is that such a dictionary can create difficulties and lead to confusion in dealing with ‘more unusual’ land uses.

Land use zoning is one of the tools provided within an LEP to help define areas with common land use or amenity characteristics. Within the Standard Instrument, the characteristics of any particular area are defined broadly through the [largely standardised] objectives defined for a predefined set of individual land use zones. These predefined land use zones can then be ‘customised’ within any particular LEP to include those land uses, selected from the SI dictionary, that are considered appropriate in any given area. The Land Use Table within a zone definition lists land uses as either permitted or prohibited, and in the former category either permitted with or without consent, depending on whether or not an activity is subject to formal council approval.

Several issues arise as a result of this process. One is the need to identify prospective land uses with one of the predefined entries in the dictionary. If there’s no specific definition for a particular land use, a decision must ultimately be made with respect to which description within the dictionary most closely describes the intended land use, and then whether or not this land use would be permitted in the area in question. The observant reader will note the opportunity this approach might provide for ‘creative interpretation’ of permitted land uses.

As a general example, consider the description of a “dwelling”—“a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile”. Accepting the legal nature of an LEP, this might seem pretty straightforward, but the question of when a building might be considered a “dwelling”, “dwelling house”, “bed and breakfast accommodation”, “farm stay accommodation”, a “group home”, or a “rural worker’s dwelling”, amongst other options, or might accommodate “home-based child care” a “home business”, “home industry” or “home occupations” (all individual entries in the SI dictionary) might not be immediately obvious.

The issue of ancillary uses is related to the different uses to which an individual development could be put. The distinction is perhaps a little more subtle in rural areas such as ours, where the principal use of the land is generally residential in nature, but the amenity of the area is more related to the various rural uses to which the majority of the land area is put. Given the relatively small (in a rural context) size of the properties involved, there will invariably be a range of rural land uses practiced in any given area—generally the various forms of plant and animal agriculture, however they might be described—although they will not generally be practiced on a commercial scale, whether or not they actually generate income.

The issue then is really more a question of when a particular use crosses the boundary from being an ancillary, or secondary use—a genuine hobby-scale exercise that is more related to the existence of a residence than any formal business—and thus does not require formal council approval, to being a so-called dominant use or commercial venture in its own right that must then independently conform to formal planning controls.