Nagra v Coffs Harbour City Council

Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), Pt 1, ss 1.3, 1.4, 8.18, 9.34, 9.35, Div 9.3, Sch 5
Coffs Harbour Local Environmental Plan 2013, cl 2.3

Cases Cited: Cariste and Anor v The Council of the City of Blue Mountains [1996] NSWCA 92
Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400
Cooke v Tweed Shire Council (2024) 258 LGERA 331; [2024] NSWCA 50
Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGERA 1576
Garbacz & Ors v Morton & Anor [2000] NSWLEC 17
Mulcahy v Blue Mountains City Council (1993) 81 LGERA 302
Royal Motor Yacht Club (Broken Bay) Pty Ltd v Northern Beaches Council [2017] NSWLEC 56
SZTAL v Minister for Immigration and Border Protection (2017) 263 CLR 1; [2017] HCA 34

Category: Principal judgment

Parties: Balbir Kaur Nagra (First Applicant)
Kamaljit Singh Nagra (Second Applicant)
Coffs Harbour City Council (Respondent)

Representation: Counsel:
A Galasso SC and M Astil (Applicants)
T To SC (Respondent)
Solicitors:
Holding Redlich (Applicants)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s): 2025/1104

Publication restriction: Nil

JUDGMENT

1. This appeal, brought by B Nagra and K Nagra (applicants) under s 8.18 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) is against Development Control Order 07392/25CR dated 6 December 2024 (order) as issued by Coffs Harbour City Council (the Council). The order requires the applicants to stop ‘construction of farm buildings (poly tunnels)’ at Lot 41 DP 597178, known as 170 Crossmaglen Road, Bonville (site).

Background

2. The parties filed an agreed statement of facts (ASOF) on 26 September 2025 (Ex 3). The first six pars of the ASOF provide some useful background commentary, synthesised in the applicants’ outline of submissions provided to the Court on 28 October 2025 (AOS) (par 4) which I reproduce below:

“a. The whole Site is subject to several zones under the Coffs Harbour Local Environmental Plan 2013 (CHLEP), but the polytunnels have only been erected in the RU2 zoned part of the Site.

b. Surrounding land uses are generally rural residential and agricultural in character.

c. The crop being grown on the Site is raspberries. There are currently three varieties of raspberry being grown on the Site. The raspberries are grown in pots and are never planted directly into the ground.

d. The pots are moved around the Site depending the optimal growing conditions for each variety (e.g. to group plants by water demand, or to respond to increased heat on the western side of the Site caused by the setting sun). Pots may also be moved where a plant dies and needs to be replaced by a mature plant from another part of the Site to ensure a uniform crop, or to group weaker plants together so that they can be monitored.

e. Raspberry plants have varying productivity lives dependent on the variety. Raspberry canes are generally replaced when their productivity declines and health issues and die back increases, which may be after between 6 months and 24 months. Canes may also be replaced where an alternate varietal is found to be more productive.

f. The growing of raspberry crops on the Site is a form of intensive plant agriculture as defined in the Dictionary of CHLEP, being an activity within paragraph (a) or (b) of the definition …

Polytunnels

3. The polytunnels are described as consisting of (ASOF par 8):

4. Hollow steel tube legs, approximately 2.5m in total length before erection (legs);

5. Hollow steel tube semicircle hoops (hoops);

6. Hollow steel tube bracing (bracing);

7. Plastic film (can be replaced with shade cloth or removed); and

8. Clips and rope.

9. The bottom of each leg has fluted anchor-end that is screwed directly into the soil to a depth of 50-80cm. A mini excavator is used for this process with two people required to assist. No concrete or other thing in the nature of a footing, other than the fluted anchor, is used in securing the legs to the ground. Cross-bracing is attached to some legs, being those towards the end of each tunnel to provide stability. The hoops are fitted to the top of each leg, at centres of about 2.5m. The plastic film, fixed with rope ties and clips, sits atop the hoops and forms the tunnel. The tunnels are open at the sides. Plastic film is replaced ever 4-5 years or sooner if damaged. There is capacity to push up and remove the plastic film to suit conditions.

10. At the time of ASOF was prepared, the polytunnels covered an area of approximately 4 ha. The length of polytunnels varied generally between 20 and 60 m in length. The polytunnels can be disassembled and stored when not in use, or for relocation.

11. The function of the polytunnels is described as follows (ASOF par 21-22):

The polytunnels on the site are used to provide greater control over the growing environment in the cultivation of raspberries by:

a. Protecting the crop from fluctuations in weather including temperature, heavy rain, hail, and wind.

b. Protecting the crop from pests.

c. Diffusing light for more efficient photosynthesis.

d. Significant reduction in potential spray drift to neighbouring properties.

7. Photos showing some detailing of the polytunnels are depicted below (source: ASOF pp 2-6).

The order

8. Division 9.3 of the EPA Act is concerned with development control orders. Under ss 9.34 and 9.35 of the EPA Act, local councils are (relevantly) empowered to give orders in accordance with Pt 1 of Sch 5 of the EPA Act. The relevant order in this instance is Order 2 and the particulars of the orders powers (to do what/when/to whom) are outlined in the table below (source: AOS p 4)

Issues in dispute

9. The first part of the second column in the table above is the focus of the dispute. The Council argues that the polytunnels are a form of building work, which has been carried out in contravention of the EPA Act.

10. The applicant makes two claims in response. First that the polytunnels are not building work. Second that even if they are, then they are not in contravention of the EPA Act as they form part of the raspberry cropping endeavour on the site which is characterised as “intensive plant agriculture” under Coffs Harbour Local Environmental Plan 2013 (CHLEP); a form of development which does not require consent under this instrument. Were the applicant to be correct in either argument, then the prerequisite situation for the giving of the order would not be established and the order should be revoked.

11. The Council argues that the polytunnels are a “building” for the purposes of the EPA Act and would be characterised as a “farm building” under CHLEP, which requires development consent under that instrument. The prerequisites for the making of the order are evident and the order should be confirmed, according to the Council. The Council also suggests there should be a variation to the order to (respondent’s outline of submissions (ROS) received by the Court on 4 November 2025 at par 9):

“… take account of events subsequent to the giving of the Order. A form of suggested modified Order is addressed in these submissions, that provides for the opportunity for the Applicants to make a development application to seek consent for the use of the polytunnels.”

12. In turn, the parties agree that the two primary questions to be resolved in this judgement are:

13. are the polytunnels a ‘building’ for the purposes of the EPA Act;

14. if the polytunnels are a building, how are they to be characterised for the purposes of CHLEP.

The polytunnels are a building for the purposes of the EPA Act

13. I have determined that the polytunnels are a building for the purposes of the EPA Act. It follows that the erection of them involves building work. This aspect of the prerequisites for the issuing of the order is satisfied. My reasoning is as follows.

14. Determining whether the polytunnels are a building involves a question of statutory construction. The Council describes it as comprising a two-step process. First is to determine the legal meaning of building. Second is to determine whether the facts, as found, fall within the legal meaning.

15. There is considerable authority on the question of the determination of legal meaning. I note for example the following from SZTAL v Minister for Immigration and Border Protection (2017) 263 CLR 1; [2017] HCA 34 at [14]:

“The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.”

16. Building is defined in the EPA Act as follows (s 1.4):

“building includes part of a building, and also includes any structure or part of a structure (including any temporary structure or part of a temporary structure), but does not include a manufactured home, moveable dwelling or associated structure within the meaning of the Local Government Act 1993.”

17. There is also authority which has confronted the question of the legal meaning of “building”, and therefore “structure”, under the EPA Act. I accept the point argued by the applicant that this has involved Courts “grappling with the impracticality of construing building as comprehending every conceivable structure” (AOS par 22). A selection of citations from the Court of Appeal’s findings in Mulcahy v Blue Mountains City Council (1993) 81 LGERA 302 (Mulcahy) at 305-308, relating to the erection of gates, illustrate the practical problem and the Court’s move towards an approach seeking to determine the “purposes which the provisions were enacted to achieve”:

“The definitions [of building and nominated associated definitions] have traditionally caused difficulty and, I suspect, embarrassment to those whose rights depend on them or who must administer them. It has, for example, been suggested that the definitions must be given their literal meanings and that, applied in this case, it follows that: a building may not be erected or altered without approval of the authority; "building" includes "structure"; and accordingly a structure of any kind may not be erected or altered unless the council's approval has been formally sought and obtained. But, if the definitions be so construed, extraordinary results would follow which, it may confidently be said, the legislature would not have intended, much less espoused…

…

It is in my opinion plain that the generality of the expressions used must be restricted if they are to perform the function which the legislature intended and to do so without extending to things which were never envisaged. The too literal construction of definitions of this kind would, in my opinion, be both unsatisfactory and wrong…

…

…It is sometimes said that legislative terms should be given an unrestricted construction because "it can do no harm", that it can safely be left to the administrative good sense of, as in this case, council officers and others to apply the law when it is sensible to do so. This, of course, is a wrong approach. It subverts the rule of law and places upon officials an unspecified administrative discretion not subject to control. The better approach is, in my opinion, to determine what things or actions come within such terms by reference to the purposes which the provisions were enacted to achieve…

…

In principle, the purposive approach to construction of, for example, "structure" or "erect" would proceed in a manner such as the following. The court would determine the purposes which the legislature sought to achieve by prescribing that no structure may be erected without council approval. I shall assume, by way of over-simplification, that that purpose was the safety and stability of the structure. The court would then adopt from among the possible meanings of "structure" and "erect" that meaning which would give effect to that purpose. It would not give to the terms a meaning which had no relevance to the achievement of that purpose.”

18. The applicant referenced a series of further cases where findings on the interpretation of the legal meaning of building (and structure) were made in different particular circumstances. In Cariste and Anor v The Council of the City of Blue Mountains [1996] NSWCA 92 (Cariste), relating to a “macrophytic pond” or dam and certain sewer works, a purposive approach was referenced and it was found that the dam “was not of such a kind or nature as was intended by the legislature to be regulated by the relevant provisions of the Act relating to “buildings”, and which involve concern for such matters as, inter alia, drainage, ventilation, lighting, health and other matters” (Cariste at 12 [35]). The applicant argues that no concerns of a similar nature suggest or mandate an intention to regulate polytunnels as part of the regulation of the erection of buildings.

19. In Garbacz & Ors v Morton & Anor [2000] NSWLEC 17, the question was the need for consent for a large marquee, where Sheahan J found, at [50]:

“This marquee has none of the features of a fixture. It is entirely portable, and is designed to be moved from place to place for short periods and/or specific events. The public interest does not suggest, let alone dictate, that any, let alone every, erection, movement or demolition of it should be the subject of a specific Council approval. The Local Government Act definition of “building” excludes a “moveable dwelling or associated structure”, and this marquee would seem to me to be a lesser beast than those.”

20. The applicant argued that the polytunnels are also portable and no public interest has been identified by the Council as requiring their erection and use on an agricultural property requires regulation.

21. In Royal Motor Yacht Club (Broken Bay) Pty Ltd v Northern Beaches Council [2017] NSWLEC 56 (RMYC) the question of whether the installation of swing moorings in a waterway involved the erection of a building. At [153], Preston CJ found:

“First, I find that a swing mooring was not a building, including a structure, to which cl 59 of WPSO 1963 applied. It is true that in a wide sense a structure can refer to a “framework of material parts put together” or “something…built up of component parts”: R v Lowe (1954) 19 LGR (NSW) 348 at 351. However, courts have construed the concepts of “building” and “structure”, for local government and planning purposes, as involving, first, a structure of considerable size or substance, and second, a structure intended to be permanent or at least endure for a considerable time.”

22. Authority indicating three criteria were referenced in RMYC as explaining “most of the cases holding a structure either to be or not to be a ‘structure’” (RMYC [155]):

"In O’Brien v Shire of Rosedale (1968) 22 LGRA 262 at 267, Gillard J identified characteristics commonly associated with a structure. The first characteristic was that:

“the structure is something which is constructed, involving the notion of bringing together a number of distinct and separate physical components which, when constructed or brought together, form or make some other substantial object at a fixed site and having some utility value”.

The second characteristic was that:

“the mere fact that the new physical object so constructed rested by its own weight on the soil did not necessarily and of itself alter its character as a structure”.

The third qualified the first two characteristics:

“there must, however, be an intention on the part of the builder at the time of the erection that the new object brought into existence will remain permanently on its site on a permanent foundation…Thus a tent erected on a wooden floor or a caravan, if placed on a site temporarily for occupation, would not ordinarily be called a structure.”

23. The Chief Judge also casts an evaluative eye of the three criteria, based on further caselaw (RMYC [157]-[160]), before concluding that the swing moorings were not a structure and hence not a building, providing a detailed case-based explanation of his reasoning (RMYC [161]-[168]).

24. The applicant argued that the setting was similar to RMYC in that the polytunnels lacked sufficient permanence because, among other things (AOS par 33):

“(a) the Legs of the Polytunnels are secured by merely screwing in poles to the ground weighed down by a fluted anchor; and

(b) not designed to be fixed in one spot for an indefinite period.”

25. It was further argued that the polytunnels are not sufficiently substantial to meet the RMYC criteria because they merely consist of the component parts (legs, hoops, bracing, film and clips and ropes) as described at [1]; and they are capable of being easily removed and/or also moved about a property to suit crop circumstances.

26. In ROS (par 28), the Council submitted that features favouring a finding that the polytunnels “come within the range of things intended regulated as buildings include” (ROS par 28):

“The polytunnels can be said to be erected - by the fixing of leg components into the ground, and then attaching further components, including crossbracing: SOAF [8]-[15].

The size of the structures is substantial.

The structures are capable of remaining on land for considerable periods of time – measured in years and even decades;

The potential for impacts on safety, by way of insufficient structural resistance to wind if such structures are not designed or constructed to sufficiently resist wind, or insufficiently anchored to the ground; and

The capacity for such structures to adversely affect the surrounding environment – including by way of visual impact, impact on landscape character…”

27. Such a finding was seen, by the Council, to be consistent with a number of objects outline at s 1.3 of the EPA Act, including objects (a), (c), (e), (g), (h) and (j) relating to promoting a better environment, orderly and economic use and development of land, protecting the environment, good design and amenity, proper construction and maintenance of buildings and community participation.

28. In RMYC at [167], it is found that it “is a question of fact and degree whether there has been the erection of a building”. Having regard to the caselaw, it is my finding that the better decision in the circumstances is that polytunnels are buildings. My reasoning is as follows:

29. The polytunnels are constructed or erected, in reference to RMYC at [155] and as indicated at [3]-[1], above: “(bringing) together a number of distinct and separate physical components which, when constructed or brought together, form or make some other substantial object at a fixed site and having some utility value”. In this instance the physical components include legs, hoops, bracing, plastic film, clips and rope.

30. The structural make-up (fluted anchor-ends to legs) and construction aspects (use of mini excavator to screw into the soil (ASOF par 10) along with cross bracing between some legs) are purpose designed to affix the polytunnels securely, such that they are “capable of remaining there for an indefinite period” (RMYC at [159]-[160]). That is, the embedding of each leg (to a depth of 50-80cm) with anchoring into the ground (through the anchor-end design and by way of use of the mini excavator), with supplementary bracing, is intended to provide a sound structural foundation for the polytunnels. It is the case that the polytunnels can be moved (by reversing-out of the legs by the same mini excavator device etc), but this does not alter the fact of a capability to remain for a long period. Further, I accept that it is common for such polytunnels to remain in the same place for years.

31. The polytunnels, individually, are of considerable size, generally between 20 and 60 m in length.

32. With reference to Mulcahy at [308], given their size and that they have a capacity to remain in situ for years, there is potential for a single polytunnel (along with a grouping of polytunnels) to have adverse environmental impacts. This is especially in relation to visual impact. This means that to find that polytunnels are buildings is supported by a purposive link to the environmental planning legislative scheme.

The subject polytunnels are characterised as intensive plant agriculture and therefore do not require consent under CHLEP

29. The question of whether development consent is required for the polytunnels turns on their characterisation, mindful of CHLEP. The Council characterises polytunnels as farm buildings, a development which requires consent in the RU2 zone under the land use tables of CHLEP. The applicant argues that the polytunnels are characterised as intensive agriculture, a development which does not require consent within this zone.

30. The relevant definitions from CHLEP’s dictionary are reproduced below:

“farm building means 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

intensive plant agriculture means any of the following—

(a) the cultivation of irrigated crops for commercial purposes (other than irrigated pasture or fodder crops),

(b) horticulture,

(c) turf farming,

(d) viticulture.

Note.

Intensive plant agriculture is a type of agriculture—see the definition of that term in this Dictionary”

31. It is common ground between the parties that the growing of raspberries is a form of ‘intensive plant agriculture’, in terms of paras (a) or (b) of that defined term.

32. There seems to be two primary points to this characterisation dispute. The first is whether the polytunnels should be understood in the legal sense as “ancillary to an agricultural use of the landholding …”. It follows, for the Council, that if so, they are appropriately characterised as a farm building. The applicant argues that the polytunnels are an inherent part of the activity of intensive plant agriculture and should be so characterised.

33. I prefer the applicant’s arguments on this point. The question of “proper characterisation” is addressed by Preston CJ in Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400 at [27]- [50]. A relevant selection of citations from this authority is provided below:

“In planning law, use must be for a purpose … The purpose is the end to which land is seen to serve. It describes the character which is imparted to the land at which the use is pursued...

In determining whether land is used for a particular purpose, an enquiry into how that purpose can be achieved is necessary... The use of land involves no more than the “physical acts by which the land is made to serve some purpose”...

34. The nature of a use needs to be distinguished from the purpose of the use: Chamwell at [33]. While the nature of the polytunnels is in the form of a structure comprising physical legs, hoops, bracing, plastic film, clips and rope. I believe their purpose is to provide greater control over the growing environment in the cultivation of raspberries: (see [6]).

35. In my opinion, the polytunnels, pots, raspberry canes and irrigation system constitute one integrated and indivisible activity: Chamwell at [42]. The polytunnels are integral to the undertaking of cultivation of irrigated crops for commercial purposes on this site. It does not follow that because some local raspberry farms do not have polytunnels, such a finding is in error. Approaches to cultivation of irrigated crops for commercial purposes can be expected to incorporate differing strategies (and integral componentry). On this point, the approach to intensive plant agriculture on this site is to invest in a more active role in managing the growing environment (weather, pests, photosynthesis and spray drift management) than those farms without polytunnels. When I seek to draw a comparison with Chamwell, it is not the case that all supermarkets have carparking areas.

36. To be characterised as a farm building, the polytunnels would need to be ancillary to the intensive plant agriculture use. The Council sees the polytunnels as ancillary in that sense. The question of the scope of a definition and how it relates to an ancillary use in the context of agriculture-related definitions within environmental planning instruments was considered in Cooke v Tweed Shire Council (2024) 258 LGERA 331; [2024] NSWCA 50 at [51]:

“There may be activities which are ancillary to the production of a crop, such as harvesting the crop and storage pending transport to market, including the use of machinery and trucks to undertake those tasks. However, it does not follow that those ancillary activities are included within the primary definition. If, for example, those ancillary activities involve buildings on the land, those buildings will require development consent as “farm buildings”. That is because categorisation of an activity as “ancillary to” another activity tells one nothing about the status of the ancillary activity under the statutory instrument: that question can only be answered by reference to the express terms of the statutory instrument.”

37. 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.

38. Ultimately, the Council seemed to acknowledge that it was difficult to argue against a finding which characterised the polytunnels as intensive plant agriculture, a separate argument was to be pursued which is the second point of dispute (T 42 (26-32)):

“… Assume for the moment we don't have 2.3(3)(b), we don't have a farm building land use in the same land use table. You're just simply looking at it at the conventional characterisation sense. You have a berry farm, you have polytunnels, you've got poles and wires. In that context it would be well open to the Court to characterise the purpose of development as being intensive plant agriculture, including all those components. I don't think I'd offer an argument against that.”

39. In relation to this second primary point to the dispute, the Council argued that there was an exceptional complicating setting within CHLEP which would bring the Court to the Council’s position in this case (T 42 (34-43):

“The real difference in this case and the real complicating factor, and what takes it outside of that usual course of characterisation and the authorities which are simply in that context is the presence of a carve-out land use category, coupled with 2.3(3)(b). Because none of those cases, so far as I can appreciate them, except for Cook, are decided in a context where you have this carve-out type of structure. That's the real difference, I would submit, which is the reason why I say in this context it would not be open to the Court to come to the conclusion that even if the polytunnels are regarded as part of the activity, to use a neutral term, it is not able to be characterised as being for the purpose of intensive plant agriculture if it falls within farm buildings.”

40. It seemed, the Council’s argument had two interrelated points to it. The first concerned the applicant’s reference to Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGERA 1576 (Foodbarn) where a particular approach to the use of the term “ancillary” was adopted. The second concerned the farm building definition within CHLEP, and it as a particular “carve out” with respect to say other farm-based agricultural activities (see eg T 45 (17)), mindful of cl 2.3(2)(b) of CHLEP.

41. At pars 51-52 of AOS, it was put, referencing Foodbarn at 161, that:

So too, here, the polytunnels are an inherent part of the activity of intensive plant agriculture, here as directed to the cultivation of raspberries.

In contrast, the word “ancillary” has been held to mean something subservient to the dominant purpose of the land. Quite aside from the inclusive example of terms expressed in the definition of “farm building”, the polytunnels do not subserve the dominant purpose (the intensive agriculture), but rather are an inherent part of it.

42. At par 49 of ROS, it was argued that the applicant’s reliance on Foodbarn at AOS par 52, with respect to ancillary and servient uses “was wrong”. I think the relevant reference to Foodbarn was at 161:

“… It may be deduced that where a part of the premises is used for a purpose which is subordinate to the purpose which inspires the use of another part, it is legitimate to disregard the former and to treat the dominant purpose as that for which the whole is being used.”

43. According to the Council, to follow Foodbarn on this point, and having regard to CHLEP’s definition of farm building, would have words without function or meaning: "an ancillary use to agriculture was agriculture".

44. I generally accept the Council’s point here with respect to relevant characterisation within CHLEP. There is scope for use characterisation within CHLEP which is discordant with the particular quote above from Foodbarn. That is, there is scope for characterisation within the pertinent CHLEP dictionary definitions which does not provide for an ancillary use to be disregarded and “to treat the dominant purpose as that for which the whole is being used”. The definition of farm building makes this plain. However, the main point being made by the applicant around pars 51-55 in AOS is to contrast the current setting from Foodbarn. While I note the applicant did refer to Foodbarn, I do not see the reference findings as having particular pertinence in relation to relevant definitions within CHLEP. The findings of Cooke, referenced above at [36], are on the other hand pertinent.

45. I was unconvinced by the Council argument, that the farm building definition within CHLEP involved a particularly unusual “carve out”. While it was highlighted in oral submissions as a primary point of differentiation (see [39]), the related references in written submissions were only indirect for me, but I understood the point overall as follows.

46. Following on from its previous position, the Council put it that (ROS par 49):

“Importantly, in this context, ancillary does not have the familiar meaning ascribed in the characterisation sense of dominant, ancillary and independent uses: cf. Food Barn Pty Ltd v. Solicitor-General.”

47. The meaning of ancillary adopted in Foodbarn was “technical” and proven to be in error in the contextual circumstances. Instead, in this context, what was appropriate was :

“… a non-technical meaning simply of whether the use of the structure is an accessory, subsidiary to, or helping in the activity of growing berries.”

48. The Council referred to the Macquarie Dictionary to find the meaning of ancillary, as identified in the quote above. I think the point was that the polytunnels were an “accessory” or “subsidiary”, helping in the activity of growing berries. The term ancillary was, under the Macquarie Dictionary, and therefore in common (non-technical) meaning, appropriately assigned to the polytunnels.

49. The larger point being made by the Council here, for me, was that CHLEP’s definition of farm building (that it “means a structure the use of which is ancillary to an agricultural use…”), coupled with the Macquarie Dictionary meaning of ancillary (that it can be read as including that which a polytunnel does for the activity of growing berries); means the polytunnels must be defined as farm buildings (rather than intensive plant agriculture).

50. It was further put that, definitionally, farm building was consciously “carved out” from intensive plant agriculture (T 45 (15-21)):

“The second thing I'd say in response to [the decision in CHLEP to permit intensive plant agriculture without development consent] is if it was a decision taken specifically consciously and maybe even if it wasn't, it still doesn't change the fact that equally conscious was the decision to carve out farm buildings. In one sense it really doesn't matter whether the Council thought it particularly important to put in intensive plant agriculture as a without consent item in item 2, because whatever it thought in doing so, it also can be presumed to have carved out of that, farm buildings.”

51. The relevance of cl 2.3(3)(b) of CHLEP seemed to be that it facilitated this “carving out”.

52. The more obvious reading (and purpose) of cl 2.3(2)(b) is that it is concerned with administrative and environmental planning instrument drafting efficiency. It assists in the practical documentation of inclusions in land use tables under the standard instrument. This is best explained by example. I will start with the defined higher order term: agriculture. In the Dictionary to CHLEP, it is made clear that agriculture includes intensive plant agriculture, along with a series of other defined uses. But in the land use tables to CHLEP, intensive plant agriculture is nominated as permitted without consent, whereas agriculture is nominated as permitted with consent. Under cl 2.3(2)(b) the nomination of intensive plant agriculture as a particular use in the land use table, means the CHLEP dictionary definition which would otherwise include that use within agriculture has no effect. This approach of nominating higher order also called "group terms" and subordinate terms, but with the flexibility enabled by (standard) cl 2.3(2)(b) provides a certain efficiency (and abbreviation) to the drafting of planning instruments.

53. Considering the Council’s submissions, indicated at [50] above, it may be that in a strategic sense, because it has been decided to require development consent for farm buildings and not for intensive plant agriculture, there was some presupposing by those preparing CHLEP that structures like polytunnels were captured by that definition. But there is no evidence of this. If this was an intention, the statutory drafting is for me clearly at odds with this intention. The appropriate course, if there were an ambition to require polytunnels and the like to be subject to development consent, would have been to make intensive plant agriculture a use permissible subject to development consent.

54. I will mention briefly that both the applicant and the Council sought to use wording within the definitions to both farm building and intensive plant agriculture to make their case. The applicant argued that the polytunnels did not align sufficiently with the various nominated structures within CHLEP’s farm building definition, or the description “of the like” (AOS par 60). The Council noted that intensive plant agriculture under CHLEP does not expressly pick up ancillary or incidental activities (ROS par 56). Because of my finding that the polytunnels are an integral part of the activity of intensive plant agriculture, there is no need to evaluate these points.

55. The arguments by the Council, in relation to what I have called the second primary point to the dispute, cannot be supported. Either, they are put against the proper approach to characterisation, that “use must be for a purpose”, as identified in Chamwell (at [33]), which I rely on. Otherwise, and as put by Council in submissions, they rely on a finding that polytunnels “fall within farm buildings” (T 42 (43)), which I have already found against. The integral purpose of the polytunnels is intensive plant agriculture.

Conclusions

56. On the above reasoning, development consent is not required for the polytunnels. The legal prerequisites for the order do not exist. The appeal must be upheld and the order revoked.

Orders

57. The Court orders:

58. The appeal is upheld.

59. Development Control Order 07392/25CR dated 6 December 2024 as issued by Coffs Harbour City Council in relation to Lot 41 DP 597178, known as 170 Crossmaglen Road Bonville, is revoked.

60. The exhibits are returned.

P Walsh

Commissioner of the Court

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