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Stewart v Moreton Bay Regional Council[2015] QPEC 26

Stewart v Moreton Bay Regional Council[2015] QPEC 26

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Stewart & Others v Moreton Bay Regional Council & Another [2015] QPEC 26

PARTIES:

CRAIG STEWART & NARELLE MARKS

IAN JAMES MCLACHLAN & CHERILYN MCLACHLAN

MICHAEL DAVIES-GRAHAM & LINDA DAVIES-GRAHAM

BRUCE BEAKEY & LEONIE BEAKEY

ANGELA BLOMFIELD & JASON BLOMFIELD

KYM FROST & LAUREL FROST

DEAN SULLIVAN

FIONA MACLEAN

TONY BRISTOL & JOY BRISTOL

(Appellants)

v

MORETON BAY REGIONAL COUNCIL
(Respondent)

And

SPORTING SHOOTER’S ASSOCIATION OF AUSTRALIA (Qld) INC ROCKSBERG BRANCH

(Co-Respondent)

FILE NO/S:

Appeal 2292 of 2014

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

18 June 2015

DELIVERED AT:

Brisbane 

HEARING DATE:

15, 18, 19, 20 and 22 May 2015

JUDGE:

Andrews SC DCJ

ORDER:

The changes to the development application as identified in exhibit 18 are minor changes for the purpose of section 350 of the Sustainable Planning Act.

The appeal is adjourned to a date to be fixed to allow the parties to submit conditions of approval consistent with these reasons.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEALS – MATERIAL CHANGE OF USE – where council approved an application for a development permit for a material change of use for the purpose of Entertainment and Recreation (Outdoor) for a shooting range – where a ‘consistent use’ in the rural zone – where community opposition – where noise experts expressed joint opinion on a level they regarded as acceptable for a reasonable person – where town planning expert disagreed - whether the adverse noise impacts would be unacceptable

Sustainable Planning Act 2009 s 350.

Environmental Protection Act 1994 section 440ZC

Acland Pastoral Company Pty Ltd v. Rosalie Shire Council [2008] QPELR 342 at [40]

Body Corporate for Kelly’s Beach Resort v Burnett Shire Council [2003] QPELR 614 at [60]

COUNSEL:

Fahl for the Appellants

Skoien with D Jones for the Respondent

Hinson QC with Williamson for the Co-Respondent

SOLICITORS:

Mohr Keddy Lawyers for the Appellants

Moreton Bay Regional Council for the Respondent

P&E Law for the Co-Respondent

Issues

  1. [1]
    Council’s approval allows, subject to conditions, a shooting club to establish an outdoor shooting range in a quiet, pleasant, rural area. The use is impact assessable. If the appeal is dismissed, residents nearby would hear sounds of shooting up to 106 days per year and mostly for up to 6 hours a day. The noise from the use would have an adverse impact on the amenity of adjoining and surrounding land uses. The primary issue is: whether the adverse impact from shooting noise is an unreasonably or unacceptably adverse impact? Thus the issue is one of the degree of adverse impact. If the impact would be unreasonably adverse then it follows that the proposal would conflict with the planning scheme.
  1. [2]
    The noise expert engaged by the appellants and the noise expert engaged by the shooting club agree about two relevant matters. They agree that there is a noise benchmark below which noise would be acceptable for reasonable people: 58dBA shooting noise level. A town planning expert regards ‘barely audible’ as the benchmark for acceptability. They noise experts agree on conditions to attenuate the noise 58dBA shooting noise level. Those conditions would not reduce the noise to ‘barely audible’. Resolution of the factual dispute between the experts resolves the issue about whether the proposed range would cause an unreasonably adverse impact on amenity.
  1. [3]
    There are other issues which the appellants accept are not reasons for refusal but are to be addressed with appropriate conditions. After further expert evidence about safety, the appellants accept that safety, like all other issues, but for noise, can be adequately addressed by conditions.

Minor Change

  1. [4]
    The court cannot consider any change to the development application unless that change is a “minor change”, within the meaning of section 350 of the Sustainable Planning Act 2009 (the ‘SPA’).
  1. [5]
    The development application originally envisaged that the proposed outdoor range would also contain a 50m pistol range[1], but that range has now been deleted from the proposal.[2]  Council accepts that the deletion of the pistol range and the other changes to the proposal identified by town planner, Mr Schomburgk, in exhibit 18, constitute a “minor change”. The appellants do not contend otherwise.
  1. [6]
    The changes identified by Mr Schomburgk can fairly be characterised as being responsive to issues in dispute and “tweaking” of the design. The other two town planners, Mr Ovenden and Mr Perkins shared Mr Schomburgk’s opinion that the changes identified in exhibit 18 were responsive to issues raised in the joint expert reports and were for all intents and purposes minor changes.
  1. [7]
    For the purposes of section 350 of SPA, I find that the changes identified by Mr Schomburgk:
  1. do not result in substantially different development;
  2. do not alter the level of assessment of the development application;
  3. do not trigger referral of the application to a new referral agency; and
  4. do not involve prohibited development.
  1. [8]
    It is appropriate to order that:
  1. the changes to the development application as identified in exhibit 18 are minor changes for the purpose of s. 350 of SPA; and
  2. the court may consider the changes identified in exhibit 18 in deciding the appeal.

The appeal

  1. [9]
    This appeal is by way of hearing anew. The co-respondent (the ‘shooting club’) bears the onus of establishing that the appeal ought to be dismissed and that the development application ought to be approved.
  1. [10]
    It is an appeal against the decision of Moreton Bay Regional Council (‘Council’) on 12 May 2014 to approve a development application seeking a development permit for the use of a parcel of land at 1168-1186 Caboolture River Road, Rocksberg, properly described as Lot 2 on RP108975 and Lot 4 on RP13744 (the ‘subject land’), for the purposes of a shooting range (the ‘proposed range’). 

The development application

  1. [11]
    The development application was lodged with Council by the shooting club in January 2013 pursuant to the SPA.
  1. [12]
    The subject land is located in an area that was formerly part of Caboolture Shire. The local planning instrument regulating development on the subject land is the Caboolture Shire Planning Scheme 2005 (the ‘planning scheme’).
  1. [13]
    The subject land and surrounding land is located in the Rural Zone under the planning scheme. A shooting range is defined under the planning scheme as Entertainment and Recreation (Outdoors). Entertainment and Recreation (Outdoors) is a Consistent Use in the Rural Zone under the planning scheme.
  1. [14]
    The development application seeks a development permit to make a material change of use for the purpose of Entertainment and Recreation (Outdoors) to permit the subject land to be used for the purposes of the proposed range.
  1. [15]
    The proposed range would have the following components:
  1. (a)
    a 50 metre rifle range, facing south-west (the “50m Range”);
  1. (b)
    a 100 metre rifle range, facing west (the “100m Range”); and
  1. (c)
    a shotgun pad for clay pigeon shooting, facing south/southwest (the “Shotgun Pad”). 
  1. [16]
    The proposed would be built in a number of stages. The first stage would include the 50m Range (including firing pad, shelter and all related works), the Shotgun Pad, a toilet block and 44 car parking spaces. The second stage would involve the construction of the 100m Range (including firing pad, shelter and all related works) and 41 additional car parking spaces. The final stage would conclude with the construction of the administration buildings (including an office, class room and tractor shed).
  1. [17]
    During normal operations it is expected that the 50m Range would accommodate about 17 shooters, while the 100m Range would accommodate about 25 shooters. During competition times, these figures may rise to 34 shooters and 50 shooters, respectively. If the proposed range is established, organised shooting will occur much more often than the random occasions it has occurred in the past. It would occur up to 106 days in a year, and with many more shooters than before. There may be occasions when up to 70 shooters will be firing randomly together during a twenty minute session.
  1. [18]
    The proposed range is eligible for, and the shooting club can seek approval for, the use of firearms within the categories of ‘A’, ‘B’, ‘H’ and ‘C’ under the Queensland Firearms Legislation and Regulations. It is proposed that the weapons used would have a limit of charge, producing a muzzle velocity of 3500 foot per second and maximum muzzle energy of 3500 foot pounds.
  1. [19]
    The development application is impact assessable. It underwent public notification and was the subject of 97 properly made submissions. There were 71 submissions in support. There were 225 submissions objecting and a petition with 39 signatories objecting.

The subject land and the locality

  1. [20]
    The subject land is an irregularly shaped, undulating parcel of rural land. While it is improved by a single dwelling house at the entrance to the property and an abandoned house about 450 metres east of the proposed range, it is effectively a large rural allotment (with a dam, some small creeks, fences and sheds). 
  1. [21]
    It is just over 105 hectares in area and is currently being used for agricultural purposes: grazing cattle. The proposed range would occupy approximately 3.18 hectares within the subject land, under a lease to the shooting club (the ‘Lease Area’).
  1. [22]
    The owners of the subject land have entered into lease with the shooting club for the occupation and use of the Lease Area for the proposed range for a period of ten years. The lease contains one option to renew for a further ten years.
  1. [23]
    The subject land and the surrounding lands are located in the Rural Zone under the planning scheme and not in the Rural Residential Zone. The subject land and surrounding properties are predominantly made up of larger rural allotments and are on the western side of Caboolture River Road. They have undulating topography, constituting the foothills of the escarpment which rises up to the west to the locality of Ocean View. The Lease Area is an irregularly shaped area that sits within a low point amongst these foothills. The Lease Area is surrounded on all sides, save to the north-east, by the higher ground of these foothills.
  1. [24]
    The subject land is adjoined to the east by the land owned by the Beakeys. The Beakey land is improved by a dwelling house and a separate building that is used by Ms Beakey for a commercial use involving massage and beauty therapy. The Beakey residence is some 420m away from the proposed range.
  1. [25]
    The subject land is adjoined to the north and northwest by similarly undulating rural land, including the property owned by the McLachlans, which is improved by an award winning and substantial dwelling house, along with rural sheds, horse shelters and horse paddocks. The McLachlan residence is some 510m away from the proposed range.
  1. [26]
    The Beakeys and the McLachlans keep animals on their properties.
  1. [27]
    The topography of the locality means that, with the exception of the Beakey residence and one of the houses on the subject land, all dwellings in the locality would be shielded from the proposed range by ridgelines or hillocks. That does not mean that sound would be completely contained by the topography. To some extent it is contained but the topography also redirects the sound and causes echoes.
  1. [28]
    To the south and west the subject land is adjoined by closely vegetated land that rises up to and over an escarpment, to the locality of Ocean View. The property known as “Worlds Away Retreat” and rural-residential properties at Jinibara Court, Ocean View, are all over 1.5 kilometres from the proposed range. And yet, the sounds of shooting from the subject land have been audible there and sufficiently so to be annoying.
  1. [29]
    The Beakeys and the McLachlans are the closest neighbours to the subject land and they each enjoy an enviable rural residential amenity. If photographs were taken of their properties they would be fit for inclusion in any lifestyle magazine as examples of resort style rural residential living. 

Safety

  1. [30]
    It is alleged at paragraph 11(b) of the amended notice of appeal that the proposed development conflicts with the planning scheme because it will have an unreasonable adverse impact upon the amenity of adjoining and surrounding land uses due to safety and related concerns reasonably entertained as a consequence of the intensive use of firearms in an outdoor locality.
  1. [31]
    The appellants’ concerns about safety persisted even after a joint experts’ report. After further evidence from Mr Green, the appellants, by their submissions treat the safety issue as relevant to conditions but not as a ground for refusing the development application.[3]
  1. [32]
    Both safety experts were confident that the proposed draft standing orders attached to their joint report could be implemented at the proposed range and would ensure an appropriate level of safety. Concerns about the safety of the proposed range were rational. If there are conditions of approval imposed which are consistent with the opinions of the experts, the proposed range would be appropriately safe.
  1. [33]
    With such conditions, there will not be an unacceptable impact on the amenity of the area arising from the safety of the proposed range.
  1. [34]
    I distinguish the arguable impact on the amenity of the area arising from perceptions about safety. Fear about safety, whether reasonable or not, seems to be an element of a different submission for the appellants.

What level of noise will cause conflict with the planning scheme?

  1. [35]
    All parties made submissions about the parts of the planning scheme which were relevant. In some respects the appellants disagreed with the Council and the shooting club about which sections were relevant. It seems unnecessary to resolve the disagreements because the parties were in agreement about the primary factual issue which arises from the shooting noise which would be generated.
  1. [36]
    The appellants accept that when assessing the impact of noise, the court is to consider whether its adverse impact is ‘unacceptable’ or ‘unreasonable’.[4] The appellants again expressed the factual issue as whether there would be ‘unreasonable adverse impacts’[5]and later expressed the same issue with the equivalent words ‘whether an impact is… an unacceptable adverse impact’.[6]
  1. [37]
    The shooting club accepted that there will be conflict with the planning scheme if the noise from the proposed range causes ‘unacceptable impact on the amenity’ of the area.[7] The Council expressed the issue as being whether the proposed range will ‘unreasonably impact upon the amenity of adjoining and surrounding land uses’.
  1. [38]
    Mr Ovenden identified eight provisions of the planning scheme with which he considered to be in conflict.[8] Mr Ovenden accepted that conflict with the planning scheme in this case turned on an assessment of the acceptability, or otherwise, of both the noise and safety impacts of the proposed development.
  1. [39]
    Mr Ovenden relevantly explained his opinion of the town planning issue:

‘… Can I put it another way, Mr Ovenden:  if the acoustic and safety issues can be satisfactorily addressed in the terms discussed in the planning scheme and the regional plan, you wouldn’t see that there’s any conflict - - - No, if your Honour found that … the impacts associated with the acoustics and safety are within acceptable limits, then … I would acknowledge that from a land use point of view the application could be approved…’

  1. [40]
    That opinion is consistent with the submissions of each party about the legal issue. I accept the shooting club’s submission as to the proper legal test: that the proper test is not whether amenity will be degraded, but whether it would be unreasonably degraded[9] by a proposed development. That submission is consistent with the submissions of the appellants and of the Council. It is made by reference to Acland Pastoral Company Pty Ltd v. Rosalie Shire Council [2008] QPELR 342 where, at [40] Dodds DCJ observed:

‘Consideration of amenity in a town planning context is not in the abstract.  It is informed by the planning controls applying in the area under consideration and the notion of reasonableness.  Bell v. Noosa Shire Council [1983] Q.P.L.R. 311; Feldham v. Esk Shire Council [1989] Q.P.L.R. 91.  Proposed development will often affect existing amenity.  What is unacceptable is a detrimental effect to an unreasonable extent according to the reasonable expectation of other landowners in the vicinity given the sorts of uses permitted under current town planning controls.  While the subjective views of those whose amenity may be affected by a proposed development are not to be ignored, in the final analysis the question must be answered ‘according to the standards of comfort and enjoyment which are to be expected by ordinary people of plain, sober and simple notion not affected by some special sensitivity or eccentricity.  The weight to be accorded to objective views can only be judged in the light of all the evidence about the subject.  The views may be supported by other evidence or other independent evidence may show that in an objective sense they are overblown as in Telstra Corp Limited v. Pine Rivers Shire Council [2001] QPELR 350.’

  1. [41]
    Would the noise from the shooting range, after noise attenuation measures have been implemented, unreasonably degrade or unreasonably adversely affect the amenity of the adjoining and surrounding land uses? An adverse impact is likely. Will it be an unreasonably adverse impact?

What level of shooting noise has been experienced in the locality?

  1. [42]
    The experiences of various local residents were the subject of evidence. It was unchallenged evidence. Past experience with the sounds from shooting on the subject land is concerning. Those sounds have interfered unreasonably with amenity. The Beakeys and the McLachlans and others further away have been annoyed and made anxious in recent years by the occasional sounds and echoes from organised shooting on the land. A horse on the McLachlans’ property, startled by sounds of shooting threw its young rider. Even persons almost two kilometres away atop the escarpment have been annoyed by the sounds from shooting on the subject land.
  1. [43]
    The appellants and other local residents who have been annoyed or made anxious in the past are particularly concerned about the prospect of even greater impacts from noise if shooting occurs more frequently and with greater numbers of shooters as would be the case if the appeal is dismissed.
  1. [44]
    If the evidence was to the effect that those same local residents would suffer those reactions in the future from the proposed range, it would be appropriate to find that the adverse effect upon amenity would be unreasonable. It would mean that the proposal would conflict with the planning scheme.
  1. [45]
    The evidence is not to that effect.
  1. [46]
    The shooting on those occasions when local residents were so disturbed was not done with noise attenuation. It is not argued for the appellants that the noise from the proposed range would, after attenuation, be at the same level as has been experienced before. The history of shooting on the land is not a fair representation of the noise impacts which can be expected if the proposed range is approved. Informal shooting which has occurred on the land in the past is materially different[10] to what is proposed. That does not mean it was materially worse, only that it is not comparable. There had been no fixed shooting location such as the firing line for the proposed 50m and 100m ranges and no fixed shooting direction and the shooting was not done with the benefit of semi-enclosed shooting stations, or the mound associated with the shotgun pad – all of which is proposed for the development.

What noise tests have been done?

  1. [47]
    The two noise experts conducted a series of on-site measurements in March 2015. Without the noise of shooting, the area is a quiet one but not ‘very quiet’. The background noise of the locality into which the shooting sounds would carry is relevant to what level of shooting noise, if any, would be unreasonable. Council submitted that that ambient noise levels in the locality are approximately 58dBA (or 70-85dBZ). That would simplify matters if it were so, for the experts can design attenuation measures to keep the SNL at all relevant sites to below 58dBA. I reject that submission of Council. The Second Joint Report of Noise Experts suggested that 80dBZ Peak Hold was approximately 58dBA SNL and that ambient noise levels were generally in the range of 70-85 bBZ Peak Hold. The evidence was also to the effect that 80dBZ Peak Hold was not as appropriate for measurement as the traditional dBA. It is not the effect of the evidence that the ambient noise level is 58dBA. Rather the evidence is that 58dBA is also within the ambient noise level range. While it is within the range, so too was 30-35dBA which level was achieved or exceeded 90% of the time that the noise experts measured ambient noise on the occasion in March when their instruments recorded and while shooting was not happening. That day will have been relatively quiet as wind was generally calm to very light north-easterly.
  1. [48]
    58dBA is a noise level in the ambient range but I infer it is in the L10 range meaning that on the day of testing it would have been reached less frequently than 10% of the time. If that L10 inference drawn by me is incorrect it would tend to favour the appellants arguments. Even if the inference is correct, the noise experts were aware of the range for ambient noise when selecting 58dBA SNL as a reasonable level and before suggesting a design to achieve a marginally lower limit at the Beakey residence.
  1. [49]
    Background noise levels in the locality fall into a wide range. For example, background noise would rise to 60dBA if a crow called overhead and aircraft flying overhead on several occasions when the experts were measuring registered more than 55dBA. The ambient noise range rises on windy days. A small zephyr in the trees will make the ambient noise rise to L10, that is, to a level reached only 10% of the time.
  1. [50]
    The measurements in March 2015 involved assessing a range of firearms, representative of both the typical and the worst case firearms to ascertain the 25 highest noise level gunshots. 120 shots were fired. There was no noise attenuation. No sound suppressing mound was constructed to protect the Beakey residence from the noise of shotguns. No semi-enclosed shooting stations were used to attenuate the noise experienced at surrounding properties.
  1. [51]
    The noise experts produced figures for the SNLs which are measured as the logarithmic average of the noise from the 25 highest shot levels generated by individual gunshots during any 30 minute period.
  1. [52]
    Without the benefit of an enclosed shooting station or any other form of noise attenuation, noise levels at four locations were measured and the SNL was determined at those locations to be as follows[11]:
  1. the McLachlan residence – 53dBA SNL;
  2. the Beakey residence – 65dBA SNL;
  3. Worlds Away Retreat – less than 45dBA SNL; and
  4. Jinibara Court – less than 45dBA SNL.
  1. [53]
    While the 25 highest shot levels generated the unacceptably high 65dBA SNL at the Beakey property the noise from about 12 % of the 120 shots fired was such as to be inaudible or too low to measure at that property.

What is the opinion of the noise experts about whether there is an acceptable level of shooting noise?

  1. [54]
    The Environmental Protection Act 1994 section 440ZC[12] sets an operational noise limit for the proposed development of 105dBZ Peak Hold Level.  The experts agreed that that level of noise at any property in the locality would cause an unreasonably adverse impact.
  1. [55]
    No limit is prescribed by the planning scheme.
  1. [56]
    The noise experts have assessed the potential noise impacts of the proposal.[13]  They considered what would be an appropriate and “stringent” noise limit for the development[14] that will protect the amenity of surrounding development.[15] The experts agreed between themselves upon a shooting noise limit which would be appropriate. It is an SNL which Mr Simpson opined would provide appropriate protection for amenity.[16] Mr Brown described the SNL as selected for the “ordinary man” or a reasonable person.[17]
  1. [57]
    The experts agreed that the limit was 58dBA SNL.
  1. [58]
    They struck upon that 58dBA SNL taking into account:
  1. the prevailing ambient noise levels in the locality;[18]
  2. the prospect that multiple shots are fired at the same time;[19]
  3. the frequency at which firing will occur under operational conditions;[20]
  4. that a range of firearms will be used including typical firearms and worst case firearms;[21] and
  5. an echo effect which will be experienced in the locality.[22]
  1. [59]
    Mr Brown accepted that in determining what level of noise would be reasonable, one should consider not just the level in isolation but also, frequency, intensity, duration and offensiveness. The experts did so in fixing upon the 58dBA SNL.[23]
  1. [60]
    In Mr Brown’s opinion, 58dBA SNL is higher than but consistent with the ambient conditions as measured by Mr Simpson[24] and is consistent with noise which already occurs in the area.[25] The ambient noise will occasionally exceed 60dbA SNL from noises which are not man made.
  1. [61]
    The appellants’ advocate’s challenge to the experts was to the effect that 58dBA SNL was too high, that they should have picked either a level found in Victorian EPA Guidelines of 40dBA, or a lower level. That challenge was rejected by the acoustic experts. They regarded a 40dBA SNL as unreasonably low. There was no evidence to support the reasonableness of the Victorian guideline.
  1. [62]
    There is only indirect evidence to support the argument that a lower SNL than 58dBA was appropriate. That indirect evidence came from Mr Ovenden. There is no technical expert evidence that supports a submission that the acoustic impacts of the proposal on the amenity of the area warrant refusal of the development application – the appellants’ noise expert expressly disavowed such a suggestion.[26]

What would be the impact upon SNLs after attenuation?

  1. [63]
    Absent any acoustic attenuation measures, the 58dBA SNL was exceeded at only one location, the Beakey residence. It was Mr Brown’s opinion that it was this residence which was the driver for the design of mitigation measures.[27] I accept that it should be.
  1. [64]
    Condition 4 as recommended by the noise experts provides that the two proposed semi-enclosed portal frame shooting stations are to be provided on the firing lines for the 50m and 100m ranges and be designed to incorporate an eyebrow screen and an extensive coverage of acoustically absorbent materials to control reflected noise within the shooting station.
  1. [65]
    A design objective was identified in condition 4 that the attenuation to be achieved from the 100m shooting range station was an average reduction of 10dBA and 15dBA in the level of muzzle blasts sound emitted to the McLachlan and Beakey residences respectively; and an average reduction of 3dBA in the level of muzzle blast emitted to Worlds Away Retreat and to the end of the cul-de-sac of Jinibara Court adjacent to the entrance on Lot 25 on 889114.
  1. [66]
    For the 50m range, condition 4 sets a design objective of an average reduction of 12dBA for the McLachlan and Beakey residences and an average reduction of 3dBA in the level of muzzle blast to Worlds Away Retreat and the end of the cul-de-sac at Jinibara Court.
  1. [67]
    For the shotgun range, condition 5 set a design objective of an average 3dBA reduction in the level of muzzle blast noise emitted to the Beakey residence by an earth or earth mound/acoustic barrier combination.
  1. [68]
    While condition 5 refers to a ‘mound’ in the singular, Mr Brown spoke of ‘mounds’ in evidence. He explained in evidence that he and Mr Simpson had spoken further about acoustic design at mediation after making their joint report. They have considered the possibility of a further mound in addition to the mound their report contemplated for the shotgun pad.[28] It was not clear from the further evidence of Mr Brown what shooting noise that possible further mound would attenuate. Mr Brown also spoke of the shotgun pad’s need for a mound or barrier or a combination of both.
  1. [69]
    Condition 8 recommended by the noise experts requires that, prior to shooting activities commencing on the site, a certificate of compliance by an acoustic consultant is required which verifies that the development has incorporated the physical noise control measures required as a result of analysis conducted for compliance with conditions 4 and 5.
  1. [70]
    In other words, achievement of the design objectives and certification of their achievement is a necessary precondition to shooting activities commencing on the site.
  1. [71]
    The approach of the noise experts has been to identify design guidelines for achieving design objectives rather than to specify a noise limit for any location.[29] The expected reduction of SNL’s is an ambition which the experts are confident can be achieved. But their recommended conditions contain no SNL guarantees.
  1. [72]
    The experts did not propose that there be a condition that a test be performed to measure whether a particular SNL is achieved at any noise sensitive site. This omission was deliberate. Mr Brown thought a condition 8 was a more practical way to measure compliance than using noise measurement as a compliance test. To do a test which would replicate the worst case hypothesis for the shooting club’s noise would presumably be either to replicate an occasion when the greatest number of shooters would be firing or perhaps it would merely involve the maximum number firing on the shotgun range. The experts did not disclose this in their evidence. Such a test might require specifications for numerous variables which would exist during a gathering of shooting club members, including numbers of shooters, the atmospheric conditions and the charge rates of cartridges.[30] That approach has an unfortunate consequence. In spite of the reasonable belief of an acoustic consultant in the efficacy of the consultant’s design, it may fail to protect the neighbours from SNLs exceeding 58dBA. For example, consider the Beakey residence, because it is the property at which the SNL is likely to be highest. Consider the hypothesis that a 58dBA SNL is the upper noise level benchmark for acceptable adverse impact. The two noise experts expect, after attenuation, on the worst case hypothesis, that the Beakey residence would experience SNLs of 56 or 57dBA. If an acoustic consultant certified that his or her own design was adequate and if after approval the SNLs from the shooting club’s competition days proved to exceed 58dBA at the Beakey residence, there would be technical compliance with conditions. The design would remained unaltered notwithstanding that it failed to achieve its objective. On that hypothesis, that feature of the conditions proposed by the noise experts would mean that there would be approval of a shooting range which routinely caused an unacceptably adverse impact. There should be a safeguard to prevent that possibility.

What is the opinion of the town planning experts about whether there is an acceptable level of shooting noise?

  1. [73]
    The appellants argued that the court should not be satisfied by the opinion of the acoustic experts. Their argument was largely based upon the contrary views of Mr Ovenden.
  1. [74]
    The other two town planning experts, Mr Perkins and Mr Schomburgk deferred to the opinion of the noise experts as to the acceptable level of shooting noise.
  1. [75]
    Mr Ovenden did not. He opined that the locality had ‘rural lifestyle’ allotments and hobby farming activities. I accept that. It has a rural residential appearance. But it is a rural zone and reasonable expectations of those within the rural zone must be judged against the planning scheme. In the planning scheme the proposed range, being a species of outdoor entertainment, is a consistent use.
  1. [76]
    Mr Ovenden opined that the sense of place and identity will be compromised by the shooting range, that the change in acoustic environment will have an adverse impact on the sense of place and identity for the local residents. Insofar as the noise of the proposed range will be noticeable, I accept that the local sense of a quiet place will be compromised and that there will be an impact which is adverse.
  1. [77]
    The issue is whether the compromise amounts to an unacceptably or unreasonably adverse impact on amenity. Mr Ovenden accepts that the residents cannot reasonably ask for no adverse effects upon amenity but remained unpersuaded by the reports of the acoustic experts.
  1. [78]
    Mr Ovenden explained that conflict with the planning scheme in this case turned on an assessment of the acceptability, or otherwise, of both the noise and safety impacts of the proposed development.[31]I accept that.
  1. [79]
    Mr Ovenden read the concerning accounts of the local residents who had such adverse experiences from shooting at the subject site in the past. He approached the issue of noise impact on the basis that the proposal would be unacceptable if it was more than barely audible to surrounding residents.[32]  If the evidence had been to the effect that the residents had been annoyed in the past by anything more than barely audible noise Mr Ovenden’s approach would be unimpeachable. But the evidence did not establish what the past noise levels were. The evidence is that the noise from shooting in the future would be different. It would be attenuated and so would probably be less noisy than before and it would be noise from controlled shooting conditioned to be safe and at predictable times. The past experience of residents loses some relevance if the noise abates and if safety becomes assured.

Analysis of the evidence relating to an acceptable noise level

  1. [80]
    The planning scheme does not require the shooting club to demonstrate that the subject proposal will be barely audible – this is not the test.
  1. [81]
    The appellants are at liberty to promote the opinion of Mr Ovenden about acceptable noise levels. The court, rather than the acoustic (or the town planning experts), decides whether the adverse effect on the amenity will be unreasonable. The court may be left unpersuaded by experts’ opinion evidence on that issue. Why should the court reject the evidence of the noise experts that there is a noise level which is reasonable and that it is 58dBA SNL?
  1. [82]
    The appellants submitted that acoustic expert opinion is partly informed by reading academic publications relating to shooting ranges. The appellants point to that as if it were a weakness. The experts’ resort to literature is not a weakness. Neither is their resort to their long experience.
  1. [83]
    The appellants made a criticism that the experts’ opinion that 58dBA SNL was appropriate (as a level which would not unreasonably adversely impact upon amenity judged from the perspective of a reasonable person) is a prediction.
  1. [84]
    That criticism implied that the experts’ conclusion was not as persuasive as it might have been if they had tested the proposed range. The experts’ opinion of the appropriate SNL is based upon their estimation about what is too much sound for a reasonable person, having regard to many features. Some features are qualitative. Offensiveness is one qualitative feature factored into their prediction. Some noise is more offensive to people than other noises. Barking dogs are an example of more offensive noises. Theirs is a prediction based upon tests which did not replicate the combinations of shooters which would occur if the proposed range is used. Arguable weaknesses in their opinion are that they did not conduct a test after attenuating the sound so as to produce 58dbSNL at the Beakey residence and did not attempt to survey the Beakeys or anybody else about whether 58dBA SNL was too loud for them after sustained shooting. Similarly arguable weaknesses are that the experts did not then assess at the other relevant locations the SNLs which resulted when the SNL was 58dBA at the Beakey residence and they did not assess whether the occupants of the other locations or a reasonable person at those other locations would be unreasonably adversely affected by noise when the impact was likely to be worst, presumably when 70 shooters are firing randomly together during a twenty minute session on a competition day.
  1. [85]
    The noise experts’ opinion that 58dBA SNL is acceptable involves their subjective opinion about what is an acceptable adverse impact on a reasonable person.
  1. [86]
    Mr Ovenden’s has expertise in town planning. I value his subjective opinion about what noise level is an acceptable adverse impact on a reasonable person. But he has less ability than the noise experts to express an opinion about acceptable noise in an objectively measureable way. ‘Barely audible’ is very imprecise. And Mr Ovenden has less experience than the acoustic experts in considering the various issues affecting what is an acceptable noise level.
  1. [87]
    I find that an acceptable noise level in this locality is more than ‘barely audible’ noise. Mr Ovenden is not able to suggest precisely what that level should be. In evidence Mr Ovenden explained:[33]

From … an amenity consideration it needs to be – it needs to be a very low level of impact.  That’s all, and I – but, like I say, I’m not an acoustic engineer.  I’m not going to be nominating specific standards.

  1. [88]
    The planning scheme requires the shooting club to demonstrate that the proposal will not unreasonably adversely affect the amenity of the area. I prefer the evidence of the acoustic experts that the level at which the noise level ceases to be acceptable is beyond 58 dBA SNL. If their conditions are fulfilled it is their expert opinion that at the site where noise levels will be highest, the Beakey property, the SNL from the proposed range, operating according to the conditions, will not exceed 58 dBA. They expect it to be less.
  1. [89]
    The shooting club has established on the balance of probabilities that, with conditions to achieve attenuation, shooting noise can be kept within acceptable limits.
  1. [90]
    The appellants had an allied submission. It was that the community response to the sound of shooting could be compared with a community response to a telephone tower: namely that the amenity may be unreasonably affected adversely because a community perceives that the tower will cause ill health and that the adverse effect is relevant even if the link to ill health is not established. The appellants stressed that the shooting noise was more than mere noise, that being shooting noise it created an associated fear that the area was unsafe. The evidence in this case does not support the comparison with a community fearful of a proposed use such as a telephone tower. The evidence is that the sound of shooting will be acceptable to the reasonable ordinary person. I am persuaded that a shooting range established in accordance with the conditions proposed will sufficiently address unacceptable noise and make the operating range sufficiently safe. Proper conditions will prevent an unacceptable impact on the amenity of the neighbouring and surrounding uses.

Conclusion

  1. [91]
    With the exception of the town planners, the joint reporting process undertaken by the experts in this appeal in the various disciplines relevant to issues in dispute have resulted in complete agreement between the experts. However, those agreements involve suggestions about appropriate conditions of approval to regulate the proposed use to avoid adverse environmental or amenity impacts.
  1. [92]
    It ought to be possible to further protect the most vulnerable of residence, namely the Beakey residence with an appropriately worded condition that would require the performance standard of 58 dBA SNL to be met under the worst case as a condition for the continued ability to operate the shooting range: for example that the SNL from the proposed range should never exceed 58dBA at the Beakey property. The difficulty of fixing appropriate atmospheric conditions and appropriate numbers of shooters firing the appropriate ammunition would not arise if, no matter what the atmosphere, or number of shooters, or charge load, the conditions also required that the SNL at the Beakey property never exceed 58dBA.
  1. [93]
    Subject to receiving evidence or submissions to the contrary, it seems likely that two further conditions would be reasonable and add some appropriate level of certainty to the Beakeys.
  1. [94]
    The conditions relating to noise attenuation should include a condition imposing a continuing obligation that the SNL at the Beakey property not exceed 58dBA.
  1. [95]
    The conditions should also require that the certification by the acoustic consultant be further conditional upon recording at the Beakey property no SNL higher than 58dBA during a test of the attenuation measures to be constructed on the site of the proposed shooting range and under conditions likely to replicate the worst case scenario or scenarios reasonably to be expected from the proposed shooting range. If the SNL exceeds 58dBA during such a test the certificate should not be issued unless and until compliance with this condition is achieved.
  1. [96]
    Currently it is unnecessary to make findings about ‘need’.

Footnotes

[1]  See page 480 of Volume 3 of Exhibit 2, and the reference to Future 50m Pistol Range.

[2]  See the plans at pages 5 to 18 of Exhibit 1.

[3]  T4-21 ll 33-44

[4]  Written submissions of the appellants footnote 26 and par 59

[5]  Written submissions of the appellants par 10 (a)

[6]  Written submissions of the appellants par 58

[7]  Written submissions of the co-respondent pars 87 (a) and 142

[8]  Ovenden:  T3-51 to 3-55.

[9]Body Corporate for Kelly’s Beach Resort v Burnett Shire Council [2003] QPELR 614 at 622, [60].

[10]  Brown:  T2-24, line 1 to 28 and Simpson:  T2-62, line 17 to 19.

[11]  Exhibit 2, Vol. 4, Tab 25, p. 76, para16.

[12]  Exhibit 8.

[13]  Simpson:  T2-69, line 7 to 30.

[14]  Exhibit 2, Vol. 4, Tab 28, p.75, para 9.

[15]  Simpson:  T2-68, line 17 to 19.

[16]  Simpson:  T2-68, line 17 to 31.

[17]  Brown:  T1-35, line 1-7.

[18]  Brown:  T1-36, line 17 and T2-25, line 7 to 18.

[19]  Brown:  T1-41, line 42-44.

[20]  Brown:  T2-24, line 36 and T2-25, line 5 and Simpson:  T2-66, line 18 to 20.

[21]  Exhibit 2, Vol. 4, Tab 28, p.25, para 10.

[22]  Exhibit 4, p.3, para 13.

[23]  Brown: T2-78 line 26 to T2-79 line 6

[24]  Exhibit 13.

[25]  Brown:  T2-25, line 44 to T2-26, line 12 and T2-26, line 39 to T2-27, line 2.

[26]  Simpson: T2-58, line 17 to 22.

[27]  Brown:  T1-38, line 2 to 3.

[28]  T1-40

[29]  Brown:  T2-19, line 31 to 34.

[30]  Brown:  T2-19, line 45 to T2-20 line 10.

[31]  Ovenden:  T3-56, line 14 to 21.

[32]  Ovenden:  T3-64, line 1 to 14.

[33]  Ovenden:  T3-63, line 23

Close

Editorial Notes

  • Published Case Name:

    Stewart & Others v Moreton Bay Regional Council & Another

  • Shortened Case Name:

    Stewart v Moreton Bay Regional Council

  • MNC:

    [2015] QPEC 26

  • Court:

    QPEC

  • Judge(s):

    Andrews DCJ

  • Date:

    18 Jun 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Acland Pastoral Co Pty Ltd v Rosalie Shire Council (2008) QPELR 342
2 citations
Jump To
Cite 1 - (2008) QPELR 342
Cite 2 - (2008) QPELR 342
Bell v Noosa Shire Council (1983) QPLR 311
1 citation
Jump To
Cite 1 - (1983) QPLR 311
Feldham v Esk Shire Council [1989] QPLR 91
1 citation
Jump To
Cite 1 - [1989] QPLR 91
Kelly's Beach Resort v Burnett Shire Council & Ors [2003] QPELR 614
2 citations
Jump To
Cite 1 - [2003] QPELR 614
Cite 2 - [2003] QPELR 614
Telstra Corp Limited v Pine Rivers Shire Council (2001) QPELR 350
1 citation
Jump To
Cite 1 - (2001) QPELR 350

Cases Citing

Case NameFull CitationFrequency
New Acland Coal Pty Ltd v Oakey Coal Action Alliance Inc. [2021] QLC 292 citations
Stewart v Moreton Bay Regional Council [2017] QPEC 11 citation
1

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