Ancillary land use
Clause 64 General Provisions for Use and Development of land of the Scheme states in part;
“64.01 Land used for more than one use
If land is used for more than one use and one is not ancillary to the other, each use must comply with this scheme.
64.02 Land used in conjunction with another use
If a provision of this scheme provides that a use of land must be used ‘in conjunction with’ another use of the land:
· there must be an essential association between the two uses; and
· the use must have a genuine, close and continuing functional relationship in its operation with the other use.”
Clause 71 Meaning of Words of the Scheme states;
“A term used in this planning scheme has its ordinary meaning unless that term is defined:
· In this planning scheme.
· In the Planning and Environment Act 1987 or the Interpretation of Legislation Act
1984, in which case the term has the meaning given to it in those Acts unless it is defined differently in this scheme.”
Land use terms are found at Clause 74 of the Scheme.
Case Law
The test for characterising whether a use is ancillary was identified in Lizzio v Ryde Municipal Council where the High Court approved the statement of Glass JA in Foodbarn Pty Ltd v Solicitor-General that:
“where a part of land is used for the purpose which is subordinate to the purpose for which another part is used, the whole of the land is regarded as being used for the dominant purpose. The subordinate purpose is merely incidental or ancillary to the dominant purpose.
where the whole of the land is used for more than one purpose, but the other purposes are subordinate, the whole of the land is regarded as being used for the dominant purpose.
where the whole of the land is used for more than one purpose, none of which subserves the others, it is irrelevant to ask which of the purposes is dominant. If any one of the purposes is operating in a way which is independent and not merely incidental to others and it is prohibited, it is “immaterial that it is overshadowed by others”.
Ahrbeck v Mornington Peninsula SC [2006] VCAT 1784 (30 August 2006)
Stuart J Castle Pty Ltd v Cardinia SC [2004] VCAT 2158 (14 October 2004)
Monea v Binding [2007] VCAT 1063 (19 June 2007)
Alphonso v Casey CC (Red Dot) [2006] VCAT 595 (6 April 2006)
Cascone v Whittlesea CC (1993) 11 AATR 175
Pacific Seven Pty Ltd v Knox CC (1993) 11 AATR 325
McDonald v Nillumbik CC [2000] VCAT 772
Bevendale Pty Ltd v Whittlesea City Council [2001] VCAT 2273
Whitfield v Greater Bendigo CC [2009] VCAT 704 (23 April 2009)
Jinalec Park PL v Mornington Peninsula SC [2007] VCAT 1238 (10 July 2007)
Mornington Wine Company Pty Ltd v Mornington Peninsula SC [2006] VCAT 2651
Neve v Macedon Ranges SC [2007] VCAT 277
Shire of Perth v O'Keefe (1964) 110 CLR 529
Pacific Seven Pty Ltd v City of Sandringham [1982] VR 157
STY Building Supplies (Shepparton) Pty Ltd v Peps Plans Pty Ltd
Greater Shepparton City Council (2000) 5VPR 264
Blount v Ginaevsky [1980] VR 157
Casey City Council v Verduci [2002] VCAT 595
French v City of Berwick (1988) 5 AATR 4
Ferringno v City of Keilor 9 AATR 145
Beckman v Port Phillip 2000/33443
Tyqin v Macedon Ranges Shire Council [2002] VCAT 624
Hadley v Yarra Ranges Shire Council [2002] VCAT 921
Barbara Strange and Karin Mackinnon v Macedon Ranges Shire Council [2002] VCAT 1232
Conclusion
Give consideration to the scale, intensity, area of land used and characteristics of the land use (purpose served). Further has the predominate land use been altered or significantly changed.
Determine the property occupiers/owners intent; for the purpose of the land use being served.
Generally these types of investigations l have found reveal multiple contraventions of an existing permit issued.
You may consider the land use is ancillary but are left with a poor outcome. Is it than a Local Law, Building or an Environmental Health matter to investigate and take appropriate enforcement action on. Is it a matter for another enforcement agency to deal with (ATO, EPA, Vic Pol, DSE, CAV etc).