In Tamarix Pty Ltd v Greater City of Dandenong CC & Anor [2011] VCAT 2182, the Tribunal has considered the concept of ancillary use.
The case involved an egg farm which operated pursuant to a number of planning permits issued over the years. One of the permits contained the following condition:
“retail sales must not be conducted from the land, other than the sale of eggs produced on the land”
The Applicant sought an amendment to the relevant permit or alternatively a declaration that the sale of a range of egg-farm related products, including manure, meat and feed, were ancillary to the use of the land as an egg farm.
In its decision confirming that the proposed use was ancillary the Tribunal applied the following concepts distilled from the case Alphonso v Casey CC [2006] VCAT 595
- Ancillary activities are correctly regarded as part of the primary use.
- It is not particularly relevant whether the ancillary activities are similar or quite distinct from the primary use.
- Ancillary activities must be an adjunct , but not a necessary adjunct to the primary use. The ancillary activities can be “optional extras”.
- The planning merits of the activities [whether a permit would be granted for then if they were a separate use] are not relevant in determining whether the activities are a separate use or not.
- A preference or desire for the Responsible Authority to control or restrict activities is not relevant to the assessment.
The Tribunal considered the Responsible Authority’s concern that the sale of egg farm related products would entrench retail sales into a Green Wedge Zone as an irrelevant consideration to the determination of whether the proposed uses were ancillary to the primary use of the land. The Tribunal was of the view that this could become an issue if the activities could be separately undertaken in the zone or grew to such a size that they could be considered a separate use.
As discussed on other postings each case will turn on its own facts. In this proceeding the Tribunal appears to consider the small volume of the extra sales to be a a relevant factor in making a decision in favour of the applicant.
