- within Law Practice Management, Antitrust/Competition Law and Consumer Protection topic(s)
- with Senior Company Executives, HR and Finance and Tax Executives
- in Australia
- with readers working within the Environment & Waste Management, Property and Law Firm industries
In 2018, a review by the New South Wales Department of Primary Industries highlighted concerns from industry participants and proponents about the inconsistency between local councils in applying the planning and approvals process for protected cropping.
These concerns reflect the practical challenges growers face when navigating planning laws for structures such as polytunnels, an area considered in a recent case before the NSW Land and Environment Court.
On 22 January 2026, the Land and Environment Court handed down its decision in Nagra v Coffs Harbour City Council [2026] NSWLEC 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 concerned an appeal against a development control order (DCO) given by Coffs Harbour City Council (Council) which required the applicants to stop the "construction of farm buildings (polytunnels)" on land zoned RU2 Rural Landscape.
The polytunnels, the subject of the DCO, were used for the commercial cropping of raspberries, allowing greater control over the growing environment and protecting the crop from fluctuations in weather.
While 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), the 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 applicants challenged the DCO, arguing that:
- the construction of the polytunnels was not 'building work' as polytunnels are not 'buildings' under the Environmental Planning and Assessment Act 1979 (EPA Act)
- the construction of the polytunnels was not development for the purpose of 'farm buildings', but rather for intensive plant agriculture, which is permissible without development consent on the subject site.
Are polytunnels considered 'buildings' under NSW planning laws?
Previous court decisions relating to structures such as gates, ponds, marquees and swing moorings have established that not every structure is a 'building'. The question of whether polytunnels can be considered 'buildings' under the EPA Act had not been considered by the Land and Environment Court until Nagra.
Consistent with the approach taken by Preston CJ in Royal Motor Yacht Club v Northern Beaches Council [2017] NSWLEC 56 on what constitutes a 'building', the Commissioner in Nagra considered whether the polytunnels were of sufficient size or substance, and whether they were intended to be permanent or remain on the land for a considerable period.
In Nagra, the Commissioner found that the polytunnels, measuring 20 to 60 metres in length, were of considerable size and constructed to remain on the land long-term and therefore could be considered 'buildings' for the purposes of the EPA Act.
Polytunnels are for the purpose of intensive plant agriculture, not farm buildings
When characterising development, the relevant task is to look at the overall purpose of a land use, rather than the individual activities, transactions and processes that are being carried out.
Under the CHLEP, a 'farm building' is defined 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."
This definition requires the use of the structure to be 'ancillary' to an agricultural use. In Nagra, the applicants argued that the use of the polytunnels was not 'ancillary' to intensive plant agriculture, but a core part of the agricultural activity of commercial raspberry cultivationitself.
This contrasts with the types of 'farm building' in the CHLEP definition, the use of which can be separated from a core agricultural use.For example, a hay shed used to store fodder to supplement feed for grazing animals may be ancillary to 'extensive agriculture', and as such the shed itself could be squarely characterised as a 'farm building'. In Nagra, the polytunnels were found not to be serving a purpose ancillary to the farming on site, but rather were for the sole purpose of 'intensive plant agriculture'.
In Nagra, Commissioner Walsh agreed with the applicants, applying the reasoning of Preston CJ in Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400 (Chamwell) which distinguished the nature of a structure from its purpose. Commissioner Walsh held at [34]-[35]:
The Commissioner also noted that the presence of polytunnels on some raspberry farms but not others did not change the characterisation of the land use on the site (at[35]):
The decision in Nagra confirmed that polytunnels used as a core part of commercial raspberry production may be characterised as part of intensive plant agriculture, not for the separate purpose of 'farm buildings'. This is significant for land which, like the subject site in Nagra, would require development consent for the erection of a 'farm building' but not for the carrying out of 'intensive plant agriculture'.
Why the Nagra decision matters for agribusinesses and local councils
The use of polytunnels and other protective cropping equipment is an important part of agricultural land use in New South Wales and across Australia, helping growers increase crop yield, and promote resilience to extreme weather events and other impacts.
The Nagra decision provides clear guidance on how agricultural structures such as polytunnels should be characterised under planning law, particularly under standard instrument local environmental plans.
More importantly, the case highlights the role that land use characterisation plays in accommodating modern land use practices. This will remain critical as land use practice evolves to better pursue the newly added object of the EPA Act to promote resilience to climate change and natural disasters through adaptation, mitigation, preparedness and prevention.
Our planning team successfully acted for the applicants in this case and has experience advising and acting in Land and Environment Court proceedings for agribusinesses, local councils and town planners on land use, planning and characterisation issues.
If you have any questions or need legal assistance, please contact us below.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.
