Fries or a burger: is a food and drink outlet an ancillary use to a service station?

In brief

The case of Witmack Industrial Pty Ltd v Toowoomba Regional Council [2015] QPEC 7 involved an application by Witmack Industrial Pty Ltd seeking declaratory and consequential relief against the Toowoomba Regional Council’s decision that Witmack's development application was not properly made.

The council asserted that the development application was not a properly made application as it failed to identify the proposed fast food tenancy use (food and drink outlet) as a separate use under the development application.

Witmack failed to demonstrate that the proposed fast food tenancy use was an ancillary use to the proposed service station. The Planning and Environment Court refused the declaratory relief sought by Witmack and held that the proposed development comprised both a service station and a food and drink outlet. As such the court ordered that the development application was not a properly made application and upheld the council's decision to issue a "not properly made" notice.

Council and Witmack had a different view on whether the proposed food and drink outlet was an ancillary use to the proposed primary use of a service station

Witmack made a code assessable development application in respect of land fronting the Warrego Highway seeking a development permit for a material change of use of a service station and operational works for advertising signage.

The development application materials provided that the proposed service station would include an ancillary retail area and food and drink outlet. The court observed that the definition of a "service station" use under the Queensland Planning Provisions relevantly "...include[d], where ancillary, a shop, food and drink outlet, maintenance, repair servicing and washing of vehicles, the hire of trailers, and supply of compressed air" (at [10]). The definition of a "service station" use under the Toowoomba Regional Planning Scheme 2012 was substantially the same.

However, the council asserted that the proposed food and drink outlet was not ancillary to the service station. As the development application had only sought approval for a service station and related advertising devices and not the food and drink outlet, the council asserted that it did not contain the mandatory requirements stated in section 260 of the Sustainable Planning Act 2009.

Consequently, the court had to determine whether the proposed food and drink outlet was an ancillary use to the proposed primary use of a service station.

The court was of the view that an ancillary use would need to be dependent, subservient or subordinate to the primary use although it would be necessary to have regard to the individual facts and circumstances to determine whether a planning use is ancillary to another

The court noted that the term "ancillary" was not defined under the Toowoomba Regional Planning Scheme 2012, the Sustainable Planning Act 2009, the Sustainable Planning Regulation 2009 or the Acts Interpretation Act 1954.

Accordingly, the court had to give the term its ordinary meaning by reference to its definitions in the Macquarie Dictionary and the Oxford English Dictionary, as well as consider a number of case authorities in which the term "ancillary" was considered.

In essence, the court found that an ancillary use would need to be "dependent, subservient, or subordinate to the primary use" (at [36]) while noting that one must have regard to the individual facts and circumstances and its context in order to determine whether a planning use is ancillary to another.

The court found that the proposed fast food outlet was not dependent, subservient or subordinate to the primary use of the service station and therefore not an ancillary use to the service station

In determining whether the proposed food and drink outlet was an ancillary use to the proposed service station, the court observed some of the relevant features of the proposed food and drink outlet in the context of the proposed development as a whole which included:

• slightly over half of the proposed building's gross floor area would be devoted to the food and drink outlets and associated dining areas,
• the proposed fast food tenancy use was disassociated with other areas of the development,
• the proposed fast food tenancy use would have its own pylon signage fronting the Warrego Highway that would potentially exceed the size of the service station signage,
• the traffic report which accompanied the development application indicated that the fast food tenancy could be a significant contributor to overall traffic generated by the development,
• based on the traffic expert's evidence, the proposed fast food tenancy use had the potential to be the "prime traffic generator" and "the significant traffic generating component of the development and could generate the majority of that traffic demand independent of the service station function".

While it was recognised that the proposed fast food outlet was compatible with the service station, in the court's view there was insufficient evidence that the proposed fast food outlet was dependent, subservient or subordinate to the primary use of the service station.

After weighing up the evidence, the court found that the fast food outlet was more likely to co-exist in an independent and dominant way, as opposed to being ancillary to the primary use of the service station.

Accordingly, the court concluded that Witmack had failed to establish that the proposed fast food tenancy use was ancillary to the primary use of the service station and as such it was not part of the service station use as defined under the Queensland Planning Provisions and planning scheme.

Given that the proposed development comprised both a service station and a food and drink outlet, the court found that the development application was not a properly made application and upheld the council's decision to issue a "not properly made" notice.