Occasionally proposals will include elements that would ordinarily be prohibited activities according to the zone. How, for example, can a receptionist and book keeper work in a medical centre in a Residential 1 Zone when an office is prohibited? The answer is that if an activity is ancillary to the principal use on the site, it can be permitted as part of the principle use, but only if certain parameters are met.
Ancillary activity issues are often raised as a result of Council commencing enforcement action, or as a result of a use evolving over time into something different to what was originally proposed on the land. Ancillary activities are also often associated with new uses. Recently Clause 1 was asked to demonstrate how an additional 500 sqm of office space within an existing medical centre was ancillary to the functioning of the centre. The exercise here was relatively straight forward, a large medical centre requires a range of support staff managing appointments, book keeping, staff training, etc. However other ancillary uses are not so simple to categorise. Is the sale of outdoor furniture and water tanks ancillary to a plant nursery? What about uniform sales at an education centre? When is a Chemist Shop ancillary to a medical centre? What happens when the nursery starts selling more water tanks than plants, or when the education centre keeps selling items even when there are no classes held? A chemist shop is currently prohibited in Residential 1 Zone but they are becoming more commonly established in conjunction with medical centres – so what are the restrictions?
Because of the wide range of activities which could be candidates for ancillary activities, it is impossible to develop a definitive list of what can and can’t be considered as ancillary. Much of the guidance surrounding the definition and application of ancillary activities has been set down in case law, and in every case the particular facts associated with the use model will be of interest to Council.
Importantly, the planning merit of a proposal should not factor into the consideration of whether an activity is ancillary to the principal use. For instance, an application for a medical centre which features a pharmacy on site, could not be considered to be not ancillary simply because it generates additional car parking which Council does not support. Instead, the particulars surrounding the pharmacy, its hours of operation, whether access is through the main centre or not, and how dependant the medical centre is on the dispensing of prescribed medicines, need to be taken into consideration. Council will need to assess the parking generated by the proposal as a whole, within its assessment of the medical centre use.
The successful identification of an ancillary activity within a permit application has the potential to greatly enhance a number of uses permitted onsite and project feasibility. Conversely, if Council is not convinced that a particular activity is ancillary to the principal use on site, it has the potential to constrain a business to the extent that it cannot operate at capacity. Many businesses are dependent on (otherwise prohibited) ancillary activities. Without planning approval of the ancillary activity a permit will not be able to issue supporting the proposal. Such a scenario might leave a chiropractor unable to sell icepacks from their waiting rooms, a wholesale butcher unable to sell to the public or a plant nurseries unable to sell water tanks and trailers.
Although established case law provides some guidance – permit applicants should be aware that a detailed assessment of the facts of each case will be required and the application of ancillary use rights are open to the interpretation by Council. Applicant’s should carefully consider the link between any ancillary use and the primary use prior to preparing an application for permit.