Land & Environment Court decides on ‘farm buildings’

On 22 January 2026, the Land and Environment Court handed down its decision in Nagra v Coffs Harbour City Council [2026] 1028 (Nagra), finding polytunnels to be an integral part of raspberry growing as a form of ‘intensive plant agriculture’ on the subject site, and not ‘farm buildings’.

The proceedings involved a Class 1 appeal against a development control order (DCO) given by Coffs Harbour City Council (Council) which required the applicants to cease construction of several polytunnels on land zoned RU2 Rural Landscape. The appeal was heard by Commissioner Walsh. The polytunnels the subject of the DCO were used for the commercial cropping of raspberries. The judgment includes photographs of the polytunnels as seen above.

Both parties agreed that the cultivation of raspberries was ‘intensive plant agriculture’ permitted without development consent in the RU2 zone under the Coffs Harbour Local Environmental Plan 2013 (CHLEP). However, Council argued that the DCO was valid and justified as the polytunnels were ‘farm buildings’ under the CHLEP, which are only permitted with development consent.

The CHLEP defines a farm building’ as

‘…a structure the use of which is ancillary to an agricultural use of the landholding on which it is situated and includes a hay shed, stock holding yard, machinery shed, shearing shed, silo, storage tank, outbuilding or the like, but does not include a dwelling.’

Key findings

Commissioner Walsh found that the polytunnels used in raspberry farming on the site:

1. were ‘buildings’ under the Environmental Planning & Assessment Act 1979 (EPA Act)

2. but were not ‘farm buildings’ that would require development consent on the Site under the CHLEP, and

3. rather were for the purpose of ‘intensive plant agriculture’ because the polytunnels formed an integral part of the raspberry cropping on the site.

Polytunnels are buildings.

The Court followed the decision of Preston CJ in Royal Motor Yacht Club (Broken Bay) Pty Ltd v Northern Beaches Council [2017] NSWLEC 56, which summarised the Court’s approach to identifying a structure as a building where the structure is of considerable size and substance and intended to be permanent or to endure for a considerable time.

The Court found in the circumstances of Nagra that the polytunnels were buildings as:

1. the polytunnels were constructed from component parts which, when brought together, make a substantial object at a fixed site and having some utility value

2. the way in which the polytunnels were braced and screwed into the ground means that they could remain in place for a long period of time, even though they are capable of being moved, and

3. the polytunnels were of considerable size with a range ‘between 20m and 60m in length’.

Polytunnels are for the purpose of ‘intensive plant agriculture’, not ‘farm buildings’

The question of whether the polytunnels were for the purpose of ‘farm buildings’ or ‘intensive plant agriculture’ turned on whether their use was separate or ancillary to the growing of raspberries, or an integrated part of the growing of raspberries.

The Commissioner agreed with the Applicants’ submissions, applying the reasoning of Preston CJ in Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400 (Chamwell) where it was held that the nature of a use needs to be distinguished from the purpose of the use.

Commissioner Walsh held at [36]:

… It follows from my findings above that I accept the position put by the applicant that the polytunnels are not an ancillary activity, but their purpose is included within the scope of the primary definition of intensive plant agriculture, as integral aspects of the cultivation of irrigated crops for commercial purposes. The polytunnels can be differentiated for example from, farm buildings for the storage of trucks for transport of the raspberries to market, as it is not so evident that those ancillary activities (transport of the raspberries to market) are included within the primary definition. Because the polytunnels are integral and fall within the scope of the definition of intensive plant agriculture, they are not ancillary to that purpose, and it would be in error to classify them as farm buildings under CHLEP.

Decision

The appeal was upheld and the DCO was revoked. This was based on the Commissioner’s findings that development consent was not required for the polytunnels and therefore the legal prerequisites for the DCO did not exist. In The Zone

Authored by Catherine Morton, Partner at Sparke Helmore

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Catherine provides regular advice to council and private clients on various aspects of planning law.   She has been involved in extensive litigation the Supreme Court and the Land and Environment Court, typically involving judicial review, easements proceedings, contempt proceedings and merits appeals from the actual or deemed refusal of development applications. 

Catherine has also represented a local council in Code of Conduct proceedings, which were taken to the High Court and has appeared for clients in various local courts and in NCAT. Catherine is an experienced mediator and has been able to regularly negotiate favourable outcomes for clients, often through conciliation.