Preliminary issue - availability of s 97P as a remedy

1. The responsible authority attempted to argue that s 97P of the Planning and Environment Act 1987 did not provide an available remedy for the applicant, as the legislative regime for a certificate of compliance under Part 4A of the Act (and, in particular, s 97N) only dealt with a 'use' rather than an ancillary activity within a use. To this end, the responsible authority relied upon the decisions in Cascone v Whittlesea CC[1], Pacific Seven Pty Ltd v Knox CC[2] and McDonald v Nillumbik CC[3].
2. In my view, the responsible authority's argument is self-defeating. If it is right that s 97N can't apply because the playing of paintball games is only an activity rather than a use, it can't then argue (as it purports to do) that this mere 'activity' requires a permit as a separately identified land use. Similarly, if it is a separately identified land use, s 97N clearly applies.
3. In any event, I do not agree with the responsible authority on this issue, primarily for the following reasons:
   • When one looks at s 97N(1)(b) of the Planning and Environment Act 1987 (being the provision through which the applicant seeks the certificate here), it provides for:

... a certificate stating that a proposed use or development (or part of a proposed use or development) of land would comply with the requirements of the planning scheme ... (my emphasis)

The section expressly allows for a certificate for a 'part' of a proposed use, rather than being limited to a certificate for the whole use.

• In Cascone, the Court had stated that "an ancillary use, when identified is, in planning terms, not a separate use". That decision does not stand for the proposition that an ancillary activity is not a use or part of a use. As seen from the quote, it refers expressly to an ancillary use.
• Similarly, in Pacific Seven, the Tribunal had stated that not all activities constitute separate land uses, and the term 'ancillary use' is a misnomer, as ancillary uses are really activities which are an ancillary part of the primary use. Again, that decision does not stand for the proposition that an ancillary activity is not part of a use. It clearly is.
• In McDonald, the Tribunal had indicated that the phrase 'use or development of land' (where used in s 97N and other places in the Planning and Environment Act 1987) meant the use for a purpose for which a permit might be required, rather than activities that might form part of that use. That is no doubt correct. However, again, that decision does not stand for the proposition that an ancillary activity is not part of a use. It again expressly acknowledges that the ancillary activity is part of a use.

1. In addition to all of these matters, cl 64.01 of the LaTrobe Planning Scheme provides in any event that "if land is used for more than one use and one is not ancillary to the other, each use must comply with the scheme". The planning scheme itself recognises that the ancillary component is not a separate use, but still implicitly acknowledges by its language that the ancillary component is nonetheless a use or part of a use.
2. It follows that I consider the applicant was entitled to apply under s 97N of the Planning and Environment Act 1987 for a certificate for the proposed use (or part of a use) for the playing of paintball games ancillary to the dominant use for a dwelling. It was a sensible process to seek to clarify the issue, given the police requirements for evidence from the local council indicating that the playing of paintball games is approved or allowed on the land.
3. Similarly, it therefore follows that the applicant is entitled to bring this proceeding under s 97P. Given this, it is preferable to deal with the s 97P proceeding first (ahead of the declaration proceeding), as the Tribunal will commonly decline to make a declaration where appropriate relief can be granted through some other appropriate form of proceeding.

1. As indicated, cl 64.01 of the LaTrobe Planning Scheme provides that "if land is used for more than one use and one is not ancillary to the other, each use must comply with the scheme". It follows that an ancillary use does not need to separately comply with the planning scheme, and can be undertaken on the land as part of a lawful dominant use.
2. The sole question in this proceeding is therefore whether the playing of paintball games is or can be, in the circumstances outlined, an ancillary use to the dominant use of the land as a dwelling.
3. There has been much case law over the years concerning the characterisation of whether a use is ancillary to another use. I was referred to many of these cases, although they all lead to the inevitable conclusion that whether one use is ancillary to another is a matter of fact and degree to be decided in accordance with the particular circumstances of each case.
4. Although there may be different approaches in different cases in assessing whether a use or activity is ancillary to another dominant use, I have approached this case initially by looking at whether there are any 'disqualifying' factors of a quantitative or qualitative nature that indicate that the use or activity proposed is not ancillary in this case. I have found none. Having regard to the scale and intensity of what is proposed, and the constraints that are to be set out in the certificate of compliance, I am satisfied that the proposed playing of private paintball games will be ancillary.
5. The playing of paintball games is not an activity of a type, per se, that could never be ancillary to the use of land as a dwelling. Uses ancillary to a dwelling include recreational uses and activities. The most common perhaps is a tennis court ancillary to a suburban dwelling, and this was used as an analogous example in this case. But other forms of recreational use may be equally ancillary, even if less common. In a diverse society, different people have different recreational interests that they might wish to pursue as an ancillary activity at their principal place of residence, and different opportunities to do so given the size and location of their land. Subject to considerations of scale and intensity, planning should not attempt to discriminate between such private recreational pursuits without good reason. For example, a private motor cycle track has been found ancillary to the use of a dwelling[4]. Just because there is no other known example of private paintball games, it is not inherently something that could not be ancillary to a dwelling on a large rural-residential property.
6. The fact that the playing of paintball games is a police regulated activity is not, of itself, a disqualifying factor. In a regulated society, there are lots of activities that require licensing in one form or another. Just as the regulated use of firearms could in certain circumstances be ancillary to the use of land as a farm, the regulated use of recreational paintball equipment could be ancillary to a dwelling.
7. The fact that there could conceivably be off-site amenity impacts is not, by itself, a disqualifying factor. Indeed, it is not directly relevant to whether the activity is ancillary. A private tennis court will be closer and noisier for adjoining residences in a suburban setting, and used more intensively, than the paintball games on a large rural block here. Yet it is commonly accepted that a tennis court is an ancillary use. Moreover, given the size of the applicant's land and buffers for the playing of paintball games, there may be no external impacts from this activity as proposed in this case.
8. Although a 'paintball games facility' is a separate land use term in cl 74 of the LaTrobe Planning Scheme, this does not automatically mean it can't be ancillary to another use - particularly given the wording of cl 64.01. By way of analogy, the private motor cycle track referred to above was ancillary notwithstanding the scheme contained a land use term 'motor racing track'. As a more conventional analogy, an 'office' is commonly an ancillary component of a shop or industry, despite 'office' being a separately defined land use term.
9. The proportionate area of land used for an activity may be a relevant factor as to whether it is ancillary. This commonly arises for commercial activities - for example, a 'shop' attached to another use - where quantitative factors such as floor space area might be relevant. However, for a private recreational use, the activity area is perhaps less relevant. On a large rural residential property, the area of land used for the actual footprint of a dwelling will only occupy a small part of the land, yet it may still be the dominant purpose of the use. The recreational activities, keeping of animals, sporting activities etc will commonly take up the greater portion of the rural residential land but be nonetheless ancillary. The fact that the paintball games will occupy a greater proportion of the applicant's land is not of itself a disqualifying factor to it being ancillary.
10. I do not consider that the possible need for minor works (marking of field boundaries, temporary screens etc) or maintenance creates the activity as a separate use. Again, adopting the tennis court analogy, there is far more infrastructure involved there for an ancillary recreational activity.
11. Here, it is important that the applicant proposes the playing of paintball games as a private pastime between family and friends. It will not be a commercial activity. In answer to questions, the applicant indicated no fee would be payable. If the paintball games activity here had a commercial element to it, I consider that could well be a sufficient disqualifying factor that would render it a separate (rather than ancillary) use of the land. For the purposes of the certificate of compliance, I have therefore sought to add constraints that prevent the activity operating in a commercial way if it is to be properly regarded as ancillary. In addition to there being no fee, the activity must not be open generally to the public nor have any public notice or advertising.
12. I understand that the responsible authority is sceptical about the proposal for the playing of 'private' paintball games on the land, given the past refusal of a planning permit for a commercial paintball games facility. This is not a determining or disqualifying factor. I can only consider the proposal before me, and assume compliance with the planning scheme. Should the applicant operate at a scale or intensity beyond that which is ancillary, he will be in breach of the scheme and subject to enforcement and/or prosecution.
13. The number of participants is relevant to the scale and intensity of the activity in determining whether it is ancillary. The applicant proposes a limit of eight family and friends at any one time. I consider this appropriate. It is not dissimilar perhaps to the numbers of family and friends that might utilise a private tennis court for a regular social 'round robin', which would still clearly be ancillary to the use as a dwelling.
14. From the applicant's material, I understand that he has young children and only he and his wife would be lawfully able to play the paintball games, as there is a minimum age requirement. To comply with police requirements, either he or his wife would have to be in a supervising or co-ordinating role at any given time and unable to participate. This means, in reality, that only one family member would be playing at a time with up to seven friends. The applicant proposes a playing limit of no more than one day a week and argues, by way of analogy, that a private tennis court might be used more regularly than this without ceasing to be ancillary. However, given the playing ratio of family to friends likely to occur here, I consider the once-a-week proposal to be of sufficient regularity and intensity that it could be regarded as a separate use. The important nexus between the dominant dwelling use and the subordinate paintball use becomes somewhat more marginal at that level of intensity, with the more limited involvement of the dwelling occupants. I think if the applicant is serious about wanting the activity to be operated at a level that is clearly seen to be non-commercial and ancillary to the dwelling, a more occasional and intermittent use needs to be demonstrated. The applicant indicated at the hearing that he would accept a more limited constraint than initially proposed if I considered it appropriate. I consider a twice-a-month activity to be more transparently ancillary.
15. The applicant had set out a number of additional constraints on the use in a letter to the Council dated 27 November 2008. Given my comments above, I have modified these. I am however satisfied that there is no absolute disqualifying factor that prevents the playing of private paintball games from being undertaken on the land as an ancillary use to the dominant use of the land as a dwelling. It is a matter of scale and intensity. Subject to compliance with the matters to be set out in the certificate of compliance, in accordance with my order, the activity would be lawful under the Latrobe Planning Scheme and could operate without a planning permit.

1. The Tribunal will not commonly make a declaration where other equivalent relief is available through a different form of proceeding. As will be seen, I have decided the application under s 97P favourably to the applicant. I therefore see no utility in granting the declaration sought under s 149A, and that second application is dismissed.

[1] (1993) 11 AATR 175 at 180

[2] (1993) 11 AATR 325 at 329

[3] [2000] VCAT 772

[4] Ahrbeck v Mornington Peninsula SC [2006] VCAT 1784