In part four of a five part “Did you know?” series, Special Counsel, Danny O’Brien points out some tips associated with the characterisation of a use to assist in preparing development applications.

The assessment of a proposed use of land – e.g. residential, commercial – could be impacted by the incorporation of ancillary uses.

Did you know?

  • The definition of “use” under the Planning Act 2016 is wider and more flexible than that under the Sustainable Planning Act 2009 or its predecessor, the Integrated Planning Act 1997.

use, in relation to premises, includes any use incidental to and necessarily associated with the use of the premises.

use, for premises, includes an ancillary use of the premises.

  • A “use” was narrowly interpreted to mean “incidental to and necessarily associated with” – a high threshold.
  • “Use” now includes an ancillary use of the premises.
  • Previous case law has established an ancillary use as being one which is ‘subordinate’ to the principal use of premises: meaning it must serve the purposes of the primary use and usually is of a smaller size and scale to the primary use (but doesn’t have to necessarily be small).
  • The dominant use determines the character of the planning use as a whole.
  • What is ancillary should be considered when preparing development applications as it may have a significant impact on the codes against which an application must be assessed.