Cooke v Tweed Shire Council

The appeal concerned a dispute between Cooke (the appellant) and Tweed Shire Council (the respondent) regarding the characterisation of land use for the cultivation and processing of low-THC hemp. The matter came before the Court of Appeal of New South Wales following a judgment of the Land and Environment Court.

The primary legal issues before the Court of Appeal were whether the Land and Environment Court had erred in its characterisation of the appellant's activities, specifically whether the cultivation of low-THC hemp constituted "horticulture" or "extensive agriculture" under the relevant Local Environmental Plan, and whether the processing of hemp leaves and production of goods for sale were ancillary or incidental to the cultivation, or constituted a separate use requiring consent as a "processing plant agricultural products for commercial purposes" or "rural industry". The Court was required to determine the appropriate standard of review for the Land and Environment Court's evaluative judgment on land use characterisation.

The Court of Appeal applied a correctness standard of review to the Land and Environment Court's characterisation of the land use. It reasoned that the Land and Environment Court had correctly identified the relevant provisions of the Local Environmental Plan and had undertaken a proper evaluative exercise in characterising the appellant's activities. The Court found that while cultivation might fall within permissible uses, the processing of hemp leaves for commercial sale constituted a separate use that was not ancillary or incidental to cultivation and required development consent under the category of "rural industry" or "processing plant agricultural products for commercial purposes".

The Court of Appeal dismissed the appeal and ordered that the appellant pay the respondent's costs. Leave to appeal was granted to the extent necessary, and directions were given regarding the filing of amended notices of appeal and notice of contention.