Posted on June 19, 2026 by Tim Lawson and Megan Hawley

Reminders from the LEC: What constitutes the erection of a ‘Building’?

In two recent Commissioner decisions, the Land and Environment Court has again considered what constitutes a ‘building‘ for the purposes of the Environmental Planning and Assessment Act 1979 (EPA Act).

The EPA Act defines a ‘building‘ as including ‘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.’

‘Building work’ is separately defined in the EPA Act as ‘any physical activity involved in the erection of a building‘.

The cases confirm that it is a matter of fact and degree whether something constitutes the erection of a building.

Polytunnels: Nagra v Coffs Harbour City Council [2026] NSWLEC 1028

In Nagra v Coffs Harbour City Council [2026] NSWLEC 1028, the applicants appealed against the issue by the council of a development control order, being a ‘stop work order’ (DCO) that required the ‘construction of farm buildings (polytunnels)‘ to cease.  The council only had power to issue the DCO if ‘building work or subdivision work‘ was being carried out contrary to the EPA Act or in a matter that would affect the support of adjoining premises.

The applicants argued that the installation of the polytunnels was not ‘building work‘.

The polytunnels consisted of hollow steel tube legs, hollow steel tube semicircle hoops, hollow steel tube bracing, plastic film and clips and rope, as shown in images from the judgment below:

Commissioner Porter applied the approach of Preston CJ in Royal Motor Yacht Club (Broken Bay) Pty Ltd v Northern Beaches Council [2017] NSWLEC 56 that “it is question of fact and degree whether there has been an erection of a building,”. The Commissioner held that the polytunnels were a building for the purposes of the EPA Act as:

  • they were of considerable size (20 – 60m per tunnel),
  • capable of remaining in situ for an indefinite period of time, and
  • comprised of structural components that were identifiably a building.

Shipping Containers: Goodman Stock & Station Pty Ltd v Tamworth Regional Council [2026] NSWLEC 1033

In Goodman Stock & Station Pty Ltd v Tamworth Regional Council [2026] NSWLEC 1033, the Commissioner refused to apply controls on buildings in a development control plan to shipping containers within an industrial site on the basis that they did not constitute a building for the purposes of the EPA Act. The site was approved as a local distribution premises (shipping containers), and was used to store the shopping containers

The Commissioner distinguished other cases in which shipping containers that were intended to have a degree of permanence were held to be buildings. In this case, the containers were ‘readily moveable’ and to be moved and stacked as needed for distribution purposes.  Again, the Commissioner referred to Preston CJ’s comment in the Royal Motor Yacht Club case, regarding whether something constitutes a building being a matter of fact and degree.

Reference should be made to our earlier post to the effect that the construction of an at grade road does not constitute the erection of a building and is therefore not building work: A ‘Road’ is not a ‘Building’

It is also noted that the Building (Approvals and Practitioners) Bill 2026 (NSW) which was recently introduced into Parliament proposes amendment to the definition of ‘building’ to remove the exclusion of manufactured homes. The Bill proposes a new regime for regulation of building work. We will be posting articles regarding the Bill shortly.

The Nagra and Goodman cases referred to in this post can be accessed here:

0 replies on “Reminders from the LEC: What constitutes the erection of a ‘Building’?”

COMMENTS ARE NOW CLOSED

Leave a comment

in focus comments policy

LTL welcomes your feedback and comments on our posts. all comments, however, will be moderated and we reserve the right not to publish any comment for any reason.

LTL in focus is primarily designed for public sector and development professionals dealing in the fields of planning, environment and government. you may, therefore, wish to consult your organisation’s social media policy before you post any comments. it should go without saying that we expect all comments to maintain a level of respect and professional courtesy.

Please note we are unable to provide specific legal advice via these comments. If you wish to engage us to provide legal advice on a matter, please contact our office directly.

In making a comment you are required to provide your email address, this will not be published on the site. if the moderator chooses to publish your comment, the name you provide will be published with your comment – it is your choice whether you provide your full name or just your first name. if you provide your full name, we may seek to verify your identity prior to publication of your first comment. If you wish your comment to be directed only to the author or moderator please make that clear – marking it NFP or Not For Publication is the easiest way. thank you for your support and happy reading – matthew mcnamara, ceo.