THE NSW Land and Environment Court (NSW LEC) recently decided in favour of an appeal against a Development Control Order issued by the City of Coffs Harbour on 6 December 2024, requiring a landowner to stop construction of polytunnels on the basis of them being a form of ‘farm buildings’, which required development consent.
The Court clarified how polytunnels used in commercial cropping should be characterised under planning law, relevant to long-standing concerns about inconsistent council approaches.
Its decision in Nagra v Coffs Harbour City Council states that the polytunnels considered in that case, used for commercial raspberry production, are part of “intensive plant agriculture” rather than “farm buildings”.
The ruling has important implications for growers, councils and developers involved in land use planning and development approvals in rural zones across regional New South Wales.
City of Coffs Harbour Council says its staff became aware, in November 2024, through complaints received by surrounding landowners, that a series of polytunnels were being constructed on Crossmaglen Road, Bonville.
Following investigations, the City issued the Development Control Order.
On 2 January 2025, an appeal was filed in the Land and Environment Court. .
No agreement could be reached between the parties during a mandatory Conciliation Conference held on 30 June 2025 and the matter was listed for a one-day hearing by a Commissioner on 11 November 2025.
On 22 January 2026, the Court handed down its decision and subsequent orders which, in summary, were that development consent is not required for the polytunnels and the order must be revoked.
The City engaged legal representatives who reviewed the decision and formed the view that there are reasonable grounds to pursue an appeal.
However, appeals are often complex matters and this appeal has potential for statewide implications, so Council met to determine if an appeal to the Land and Environment Court was warranted.
In an Extraordinary Council meeting last Monday, 16 February, Council voted five to one – with one abstention and two absences – not to pursue an appeal.
Councillor Jonathan Cassell, who voted in favour of an appeal, said, “Legal advice provided to Council indicated the City could have appealed the Land and Environment Court decision and won, setting a new standard in reducing conflict between berry growers and their neighbours.
“I welcomed the appeal because while the berry industry is important to our local economy, the State Government’s intensive horticulture policy setting has long failed to reduce land use conflict issues on the Coffs Coast by prioritising industrial farming at the cost of other public values.”
City of Coffs Harbour Planning and Communities Director Ian Fitzgibbon said, “Regional communities have been grappling with some of the associated challenges that accompany the growth of intensive horticulture across the North Coast.
“The City will move forward and look to sit down with stakeholders through initiatives like the Hearnes Lake Working Group to grow a sustainable agricultural industry in our region and find a pathway for best practice outcomes for all interests.
“There is a desire for greater NSW Government support for the agricultural industry, regional communities and councils, including improved guidance to manage land conflict and for the sustainable growth of this important industry to our regional economy.”
By Andrew VIVIAN
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