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Stewart v Moreton Bay Regional Council[2017] QPEC 1

Stewart v Moreton Bay Regional Council[2017] QPEC 1

 

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

 

CITATION:

Stewart & Others v Moreton Bay Regional Council & Another [2017] QPEC 1

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:

2292 of 2014

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

27 January 2017

DELIVERED AT:

Brisbane

HEARING DATE:

5, 6 and 7 December 2016

JUDGE:

Andrews SC DCJ

ORDER:

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 – CONDITIONS

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

Introduction

  1. [1]
    Reasons for judgment in this appeal (the original reasons) were published on 18 June 2015.[1] The reasons favoured approval, subject to conditions, of an outdoor shooting range on land situated at Caboolture River Road, Rocksberg.  At the original hearing there were two acoustic experts, one called for the shooting club and one called for the submitters. The two experts agreed that works could and should be done to reduce the sound of shooting noise and that it was reasonably easy to design structures for rifle and pistol shooters and a mound or mounds for shotgun shooters. They were confident that such works could sufficiently attenuate shooting noise to make it reasonable at each of the four most vulnerable residences.
  1. [2]
    The hearing of the appeal was then adjourned to allow the parties to prepare a conditions package consistent with the reasons. The parties failed to agree conditions about noise attenuation and so there has been a further hearing about noise attenuation conditions. These further reasons concern the dispute about noise attenuation conditions.
  1. [3]
    Two factual findings in the original reasons are bases for the remaining noise attenuation findings. Firstly, that in the area of the subject land and nearby residences there is a noise benchmark below which shooting noise is acceptable for reasonable people.[2] Secondly, that the benchmark would be 58dB(A) shooting noise level.[3] The acoustic experts appeared to have agreed upon each. They did agree on conditions they then regarded as appropriate.
  1. [4]
    There were two curious features of the noise attenuation conditions which the experts proposed.
  1. [5]
    The first was that the experts proposed a design condition but did not propose not a performance condition.
  1. [6]
    The effect of their proposal was that an acoustic expert would design noise attenuation works and upon their construction would certify that they had been constructed to the design. But their proposal made no provision for testing the works’ performance. They did not propose to verify that the works achieved adequate noise attenuation while shooting occurred. If the works, constructed as designed, failed to prevent the shooting noise from being unreasonably loud, there would be no recourse.
  1. [7]
    The second was that the experts’ ambition for the design was to reduce the shooting noise level but not necessarily to the benchmark 58dB(A). A reduction by 15dB(A) would not necessarily ensure a maximum 58dB(A) shooting noise level at the nearest residences. The experts omitted performance tests from their original proposal because they had a high degree of confidence that an acoustic engineer could design shooting stations and mounds which would meet the design objective of attenuating noise by 15dB(A) and that such attenuation would reduce noise to a level acceptable to reasonable persons at all relevant residences nearby.
  1. [8]
    From the original reasons, some passages concerning noise attenuation conditions have vexed the parties. The passages provide:

[92] It ought to be possible to further protect the most vulnerable 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.

[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. 

[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.

[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. [9]
    The reasons explained why a performance test to measure sound level is, at least arguably, a reasonable condition for approval and why a maximum sound level is, at least arguably, a sensible condition for continuing approval:

[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…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.

The Issues

  1. [10]
    There are seven basic issues:
  1. Should there be a condition that the shooting club comply with a performance standard at the Beakey residence so as to mandate a prescriptive maximum noise limit for the shooting range measured at 58dB(A) SNL? This incorporates two issues.
  1. (a)
    Should there be performance tests to determine that the noise from the club’s events will comply with a maximum noise limit? (Yes)
  1. (b)
    Should there be a continuing obligation to comply with a maximum noise limit? (Yes);
  1. If a limit is imposed, should it be imposed at other residences too? (Yes)
  1. If a limit is imposed, should it be a maximum shooting noise level of 58dB(A) or an average of 58dB(A) SNL? (A maximum of 58dB(A) SNL)
  1. If a limit is imposed, is there is a need for continuous compliance monitoring? (No)
  1. If there is a need for continuous monitoring, should it be at only the Beaky residence or at other places too?
  1. Should there be further restrictions upon “Special Events” at the shooting range: reducing them from three days to two; requiring 12 months’ notice of the events; prohibiting Special Events on any public holiday? (Prohibition on public holidays)

The legal principle

  1. [11]
    The power to impose conditions is subject to the constraints of s. 345 of SPA, which relevantly provides, in part:
  1. (1)
    A condition must -
  1. (a)
    be relevant to, but not an unreasonable imposition on, the development or use of premises as a consequence of the development; or
  1. (b)
    be reasonably required in relation to the development or use of premises as a consequence of the development.

Further Evidence and Findings

  1. [12]
    The shooting club adduced further opinion evidence that performance tests are unnecessary, that ongoing monitoring can be expensive and submitted that further conditions for performance testing and monitoring are unreasonable, particularly if the monitoring is expensive. If there is to be a performance test and monitoring, the shooting club adduced evidence that the benchmark should be an average of 58dB(A) SNL measured over a period of months as opposed to an SNL of 58dB(A) measured over 30 minutes.
  1. [13]
    The submitters adduced further opinion evidence that performance tests are necessary and reasonable and that in addition there should be ongoing monitoring. They submitted that monitors should be at the shooting club’s expense and be stationed at the four relevant residences, not just the Beakey’s. They also led evidence about the existing business at Worlds Away Retreat. It is a residential retreat at which customers would hear shooting noise; the business takes bookings well in advance; its customers have been offered an unusually quiet ambience and certainly an ambience which does not include the sound of a shooting range; weekends and public holidays are its busier periods; it takes bookings for weddings; it would be appropriate for the business to warn potential guests of the noise to be anticipated from special shooting events so that they may consider alternative dates. They submitted that the shooting club should be prevented from operation on any public holiday and should give 12 months’ notice of major events.
  1. [14]
    The Council occupied the middle ground, supporting the notion of a year of performance tests but without necessarily putting the club to such expense as is required for the comprehensive, expensive, indefinite monitoring the submitters would prefer and without requiring such a long period of notice to be given before holding major shooting events.
  1. [15]
    Further evidence was given by the two acoustic experts who had given evidence at the original hearing, Mr Brown and Mr Simpson. Differences of opinion between them emerged in this subsequent hearing. Some apparent differences of opinion dissipated during Mr Simpson’s oral evidence.
  1. [16]
    Mr Brown regards it as reasonable to impose upon the shooting club either a design standard or a performance requirement, but not both. Mr Brown prefers a design standard with no performance test and no continuing performance condition. As confident as Mr Brown is in an acoustic expert’s ability to design appropriately, he accepted that the design was novel and that a prudent engineering approach would be to use a prototype for risk analysis.[4]
  1. [17]
    There is no proposal by any party that there be a condition that a prototype be used in the design process. Mr Brown’s evidence implied that there is some risk that some plausible designs may fail to achieve adequate noise attenuation and may need adjustment if they appear to be inadequate. Mr Brown’s prudence is sensible. It adds weight to the arguments that a performance test is desirable.
  1. [18]
    Mr Brown opined that if a condition was imposed such as proposed condition 13, there would be no difficulty complying at the McLachlans, at Worlds Away Retreat or at Jinibara Court. He does regard compliance with a maximum 58dB(A) SNL at the Beakey residence as problematic.[5] That suggests that a performance test is reasonable.
  1. [19]
    Mr Brown expects the echoes to be noisier than the sound of muzzle blast after noise attenuation. He advised that there was not sufficient data to say how frequently individual shots would exceed an SNL of 58 dB.[6] That suggests that a performance test is reasonable.
  1. [20]
    Mr Simpson accepted that, after noise attenuation measures had been designed and certified, the likelihood of the mean SNL exceeding 58dB(A) at the Beakey residence was low.[7] Notwithstanding that, he regarded the imposition of a performance requirement as reasonable and recommended performance tests and also a continuing performance condition with monitoring at the shooting club’s expense.
  1. [21]
    Mr Simpson was concerned that the noise reflectors on the subject site would change and change sound levels at the more remote and protected McLachlan residence, possibly breaching the maximum SNL. I find his concern to be honest and reasonable.
  1. [22]
    No party has argued that the certification of the design standard should be abandoned as a condition.
  1. [23]
    The issue is whether the additional performance standard should be the subject of conditions. I am persuaded that such a condition is “not an unreasonable imposition” either as a matter of principle or for any practical reason related to the facts of this proceeding. There should be a condition to test performance of the works and a further condition imposing a continuing obligation that noise not exceed a level at the four relevant residences. That second, continuing obligation seems to be well dealt with in Condition 13 (a) in Council’s Annexure A because it is appropriate to confine the condition to existing residences. The end one seeks is an acceptable noise level. A condition imposing a continuing performance requirement assures it.
  1. [24]
    Finding 1: In addition to a design standard certification, there should be a condition that the shooting club comply with a performance standard at two relevant test sites. Finding 2: There should be a continuing obligation that the standard not be exceeded at four relevant sites.
  1. [25]
    There emerged another difference between the experts’ opinions: what each had in mind for an acceptable benchmark for noise from the shooting club’s activities, when each referred to a 58dB(A) SNL. The difference may be significant. SNL is generally used by the experts in this proceeding to mean the logarithmic average of the noise levels from the 25 highest shot levels generated by individual gunshots during any 30 minute period. Neither expert proposed that the sound of a single shot must never exceed 58dB(A). I use the word “generally” when explaining the meaning of SNL because it seems possible that one or both experts would include the noise levels of echoes with the noise levels of shots if measuring noise levels.
  1. [26]
    If a noise limit is to be imposed, which the noise from shooting activities must not exceed, Mr Brown regards a reasonable limit as a mean of 58dB(A) SNL. Mr Brown’s preferred benchmark can be measured as a mean of the dB(A) SNL results of various 30 minute periods over a period of months. Hypothetically, there may be compliance with Mr Brown’s benchmark notwithstanding that there may be many days when the SNL regularly exceeds 58dB(A). Mr Brown implies that he would regard some occasions where the 30 minute period produced a 60dB(A) SNL as acceptable so long as the mean over months was no more than 58dB(A) SNL. This opinion is informed against the background of academic research and writing.[8]
  1. [27]
    Mr Simpson preferred a maximum shooting noise level of 58dB(A) SNL measured over a period of only 30 minutes. He would not accept a 30 minute period producing a 60dB(A) SNL. This opinion is also informed against the background of the same academic research and writing.[9]
  1. [28]
    The practical difference between the two experts is that Mr Simpson’s opinion favours a lower benchmark. In effect, there must be no 30 minute period for which the SNL exceeds 58 dB(A). A hypothetical consequence of limiting the maximum SNL for any 30 minute period to 58 dB(A) is that the mean dB(A) SNL measured over months may be 3 dB(A) less than the maximum of 58 dB(A) SNL measured in 30 minutes. The evidence of Mr Simpson was to the effect that this is what he intended as the acceptable level. If Mr Simpson had been asked to specify a maximum acceptable mean dB(A) SNL to be measured over numerous 30 minute periods, recorded over days or months, he would have specified 55dB(A) SNL.
  1. [29]
    It was argued for the shooting club that the academic research and writing in exhibit 10 justified Mr Brown’s opinion. I accept that his opinion is consistent with the opinions in the Exhibit. But so too is Mr Simpson’s. Mr Simpson’s preference for a 58dB(A) SNL measured over 30 minutes and a mean SNL of 55 is consistent with his holding a more conservative opinion about what is the proper benchmark to avoid annoying a reasonable person. Mr Simpson’s opinion is consistent with the reference in exhibit 10 to annoyance disappearing below a mean SNL of 55dB(A)[10] and the reference in exhibit 10 to a “mean SNL…not to be exceeded…normally …expected to fall somewhere in the range 55 to 65 dB.”[11]
  1. [30]
    A maximum dB(A) SNL can be measured in as little as 30 minutes. That brief time for a test is convenient and less expensive than a test measuring shooting over a period of months. A mean dB(A) SNL can be measured over months. If a performance test is to be used, it is more convenient and less expensive to base it on a test that can be done quickly so long as it is a reasonable predictor of the mean dB(A) SNL over a period of months. If a mean dB(A) of 55 over a period of months is one’s ambition, one can conduct a reasonable test of shooting stands and mounds in a single day to determine whether they are likely to attenuate noise sufficiently over months so that the mean dB(A) SNL is no higher than 55. If the dB(A) SNL measured over 30 minutes is no higher than 58dB(A) using the combination of weapons and rounds likely to produce the noisiest shot noise levels then it is probable that the mean measured over months will be 3 dB(A) less than that noisy outcome. It is not likely that the noisy combinations of rounds and weapons will be used during every 30 minute period of shooting over months. There will be many occasions when the dB(A) SNL measured over 30 minutes will be below 55.
  1. [31]
    It is understandable how the acoustic experts appeared to agree but held different opinions when recommending a dB(A) SNL of 58. One had in mind a mean dB(A) SNL. The other had in mind a dB(A) SNL.
  1. [32]
    A limit of a mean of 58dB(A) SNL measured over months is too high. The purpose of a performance test for a maximum of 58dB(A) SNL measured in 30 minutes is to achieve a mean dB(A) of no more than 55dB(A) SNL over a period of months of the operation of the proposed shooting range. I prefer the opinions of Mr Simpson in this respect.
  1. [33]
    A practical problem arises if one tries to carry out a performance test only under the worst case scenario. Among other problems, unpredictable weather might prevent the worst noise events from occurring on any occasion in a year. The cost of tests would be wasted if ever the atmosphere or winds prevented noise from being at its worst at any relevant testing site. It is easier to approximate a worst case scenario for the types of weapons. The noisier weapons were selected by the experts before when testing and can be again.
  1. [34]
    Fortunately, the effect of the further expert evidence was that it is unnecessary to await the worst case scenario for weather and atmospheric conditions to conduct a useful test of whether the proposed range will generate a maximum of 58dB(A) SNL in 30 minutes. It is sufficient if a positive wind vector occurs when the wind is blowing directly from the shooting location to the measurement site plus or minus forty-five degrees. As the sites are in different directions it may mean that there needs to be testing on more than one day, to await appropriate wind.
  1. [35]
    It seems likely that the experts can agree, as they have before, on the appropriate weapons and rounds, firing positions and number of shots for a test to determine the logarithmic average of the 25 highest shot levels generated by individual gunshots using a combination of weapon or weapons and rounds likely to produce the noisiest shot noise levels from weapons and rounds which would be lawfully permitted to be fired at the range, if the shooting range is approved. Mr Brown has proposed a practical suggestion to avoid argument about whether wind conditions were sufficiently unfavourable to be the worst reasonably to be expected: that noise measurements should be conducted when the wind is blowing as a positive wind vector from the shooting range to the measurement location.  Such a positive wind vector occurs when the wind is blowing directly from the shooting location to the measurement site plus or minus forty-five degrees.
  1. [36]
    The purpose of using the combination of weapon or weapons and rounds likely to produce the noisiest shot noise levels is to obviate the need for continuous monitoring. Even with the combination of weapon or weapons and rounds likely to produce the noisiest shot noise levels the experts anticipate that the club will pass the tests at relevant sites and will pass comfortably at all but the Beakeys’. If the shooting club remains content to submit to a condition that the 30.06 weapon be excluded from permissible weapons to be used on site there would be no need to include that relatively noisy weapon in any test. That was the club’s position on the last day of the subsequent hearing.[12] As the experts accept that the .22 Hornet is one of the least noisy of the potential weapons, there seems to be no need to incur the time and expense involved in including it in any test, but I infer that the parties will permit me to leave that to the judgment of the experts and that the parties prefer to settle the conditions having regard to these reasons.[13]
  1. [37]
    Finding 3: A performance standard should be a maximum of 58dB(A) SNL at the relevant test sites. While dB(A) SNL is theoretically measured in 30 minutes, it was the evidence of Mr Simpson that the experts generated an SNL for their joint report in a test over three and a half hours[14] and it was his further evidence, which I accept, that it does not jeopardise the utility of the test if the time taken for any one test exceeds 30 minutes. Mr Brown appeared to concur.[15] It follows that the Council’s suggested condition 13(d) that “the acoustic compliance assessment must include measurement of the SNL during a 30 minute period on one day under conditions likely to replicate the worst case scenario reasonably to be expected from the shooting range” creates two unnecessary problems. Firstly, it would require the test to be done in 30 minutes, for no apparent advantage. Secondly it invites the shooting club and the submitters to re-engage in unproductive debate about what is the worst case scenario reasonably to be expected. A test on the defined basis Mr Simpson proposes in his Condition 14 in Exhibit 26 will be sufficiently informative. That is subject to the qualifications below relating to test sites and weapons.
  1. [38]
    A possible difference between Mr Brown and Mr Simpson may exist about whether to include the sound of echoes if assessing compliance with conditions relating to performance testing or subsequent monitoring of maximum sound levels from any operation of the proposed shooting range.
  1. [39]
    At the subsequent hearing, Mr Brown gave evidence of the difficulty in distinguishing between the sound of shots and the sound of their echoes. I infer that his opinion is that only the sound of shots, as opposed to echoes, is relevant when taking measurements. In defence of Mr Brown’s opinion, it was a rational distinction to draw from Mr Brown’s perspective as his opinion has been that one should attenuate the sound of a muzzle by 15dB(A). It was the sound of the muzzle blast which was the focus of Mr Brown’s attention. He recommended attenuating the sound of muzzle blast by good design of structures and mounds where the shooters were to shoot. Mr Brown does not recommend a performance test for sound at nearby residences. I infer that Mr Brown assumes that if one can attenuate the muzzle blast sound by 15dB(A) that the echoes would not exceed a mean of 58dB(A) SNL at any relevant location.
  1. [40]
    One submission for the shooting club was consistent with the notion that any test should be a test of the noise from gunshots but not the noise from their echoes.[16] The submission begins:

Perhaps the greatest example of the impracticality of continuous noise monitoring is the adjustments that would need to be made to recorded data to accommodate for echoes from gunshots, rather than the gunshots themselves. 

An inference is that the noise of echoes is irrelevant. If that implication was intended, I reject the submission. To a hypothetical reasonable resident, the noise of echoes will be relevant. It follows that “the greatest example of the impracticality of continuous noise monitoring” is no obstacle. But this I digress, as unpersuasive as the submission is, I am persuaded that expense makes continuous monitoring unreasonable if the performance tests are passed.

  1. [41]
    The evidence of the experts was to the effect that, as a general rule, the sound of echoes is less than the sound of shots. Despite that, it was clear from the evidence of Mr Simpson when he considered performance testing, that he regarded the sound of the echoes as possibly being louder than the sound of the attenuated muzzle blast noise and that the shooting noise level is likely to be a function of the 25 highest echoes.[17] If I understand Mr Simpson correctly, it means that it is not just the sound of shots which must be reduced to an acceptable level at relevant residences but the sound of their echoes. If I do not understand Mr Simpson correctly, that is, if the sound at a relevant residences of shot echoes cannot be louder than the sound of the shots which made them, it is nevertheless sensible to consider in a performance test all sounds related to a shot, whether they be the sound of a muzzle blast or of its echoes.
  1. [42]
    In any performance test, it should not matter whether the sound at the residence is the sound of the muzzle blast or of its echo. What matters is that the sound at the residence is acceptable to reasonable people. The evidence I accept is Mr Simpson’s to the effect that the SNL of the 25 loudest shots and or echoes measured over 30 minutes should not exceed a maximum of 58 dB(A).
  1. [43]
    It follows that if there is to be a performance test, as I found there should be, and if there is to be a condition relating to sound levels from any operation of the proposed range, as I find below there should be, it is not simply the sound of a shot but the sound of echoes which should be made the subject of a performance test and of the continuing condition relating to sound levels.
  1. [44]
    Mr Simpson in Exhibit 26 and the Council in Annexure A to its submissions each included an identical note explaining how to measure the Shooting Noise Level by reference to “…sound…generated by the individual gunshots…”. If that definition is wide enough to permit the measurement of echoes too, it would be satisfactory. If it is not wide enough, it needs to be interpreted to include the sound of echoes.
  1. [45]
    Mr Simpson went further, recommending continuous noise monitoring as a condition, or perhaps a year’s monitoring. It is expensive. Is the expense justifiable? Mr Brown regarded ongoing monitoring as unreasonable. If a condition for ongoing monitoring was to be imposed, Mr Brown had suggestions for decreasing the cost by substituting manned devices for unmanned logging devices. Even with manned devices used only when the noisiest events are scheduled, I am not persuaded that it is a reasonable condition. The expert evidence is to the effect that useful monitoring is expensive, that an expert can devise a satisfactory performance test likely to replicate the worst of weapons and rounds and with wind conditions which exacerbate the noise problem and that the noise attenuation will almost certainly work to reduce the SNL to below 58 dB(A) at any relevant site. If the test succeeds under such relatively adverse conditions then the cost of subsequent monitoring for an indefinite period is not a reasonable condition to impose upon the shooting club. If such a performance test succeeds, even the cost of only one year’s subsequent monitoring is an unreasonable imposition upon the shooting club.

Should there be performance testing at residencesother than the Beakeys’?

  1. [46]
    Mr Brown’s opinion is that there is no need for performance tests of the noise attenuation measures at any of the other 3 relevant residences. This is not based simply on his philosophical opposition to adding a performance condition to a design condition. He regards the Beakey residence as the most vulnerable to noise from shooting. He opines that after noise attenuation there is no possibility, even using the noisy weapons, of reaching a 58dB(A) value at the McLachlan residence, which he perceives to be less vulnerable to noise than the Beakey residence. He regards the other two residences as even safer from excessive noise.
  1. [47]
    Mr Simpson’s concern for the effects of changing reflectors at the McLachlan residence justifies a condition that there be performance tests at the McLachlan residence too, subject to their utility. I am satisfied that the proposed tests at the McLachlan residence would have utility.
  1. [48]
    Mr Simpson’s opinions, after the benefit of further reflection after hearing Mr Brown’s evidence, softened to the extent that he amended his recommendations for Conditions 14 and 17. His amended recommendations appear in Exhibit 26.
  1. [49]
    Mr Simpson went further and conceded: for any test, the cloud cover and wind speed at the Beakeys’ is not critical; at World’s Away Retreat and at Jinibara Court, Ocean View, it was “on the extreme end of possibilities” or alternatively there was “no prospect”[18] that 58dB(A) would be exceeded; if noise measurements at relevant sites passed a compliance test which involved using the noisier weapons and increasing the number of shots to “bias the lower level somewhat higher” (which I infer to mean increase the dB(A) SNL) it could justify dispensing with subsequent monitoring.
  1. [50]
    I am not satisfied that tests at World’s Away Retreat and at Jinibara Court would have sufficient utility to put the shooting club to the expense of their cost.
  1. [51]
    It is appropriate that conditions include a requirement for tests at the Beakey and McLachlan residences.
  1. [52]
    Mr Simpson’s Condition 14 in Exhibit 26 appears appropriate subject to the potential to remove two weapons, the 30.06 if the club consents to a condition that it not be used at the shooting range and the .22 Hornet if the parties accept that it is not sufficiently noisy to be likely to affect the maximum dB(A) SNL. The condition would also need to be amended to delete reference to tests at Worlds Away Retreat and Jinibara Court.

Is there is a need for continuous compliance monitoring?

  1. [53]
    Performance tests at the Beakey and McLachlan residences will reveal whether the maximum of 58dB(A) SNL is exceeded using noisier weapons in relatively adverse conditions. If tests on those adverse bases demonstrate that the maximum is not exceeded, I am satisfied on the evidence that if all conditions continue to be complied with, even the running of special events will not cause the maximum noise level to be exceeded. On that assumption, the expense of continuous monitoring is an unreasonable imposition upon the shooting club and continuous monitoring is not reasonably required as a condition. It follows that the court may not impose the condition.

Should there be further restrictions upon “Special Events” at the shooting range?

  1. [54]
    The requirement that the shooting club give a year’s notice of special events is unreasonable. The requirements that it not operate on public holidays and that it give 3 months’ notice of its intention to hold a 3 day special event was not the subject of any evidence from the club about inconvenience. I infer that those two apparently reasonable conditions will cause no inconvenience or minimal inconvenience to the club. If the club’s application is approved, the club may still permit shooting on about 100 days a year. I am satisfied that it is appropriate to impose a condition that there be no shooting at the range on public holidays and that the club give three months’ notice of special events. The contentious requirement that special events be restricted to 2 days becomes unreasonable if three months’ notice is given.

Footnotes

[1]Stewart & Ors v Moreton Bay Regional Council & Another [2015] QPEC 026 ; (2015) QPELR 681

[2]  Original reasons [2].

[3]  Original reasons [2].

[4]  T1-61 ll 25-35

[5]  T1-33 line 47.

[6]  T1-45 lines 15 and 25

[7]  T2-44 l 25

[8]  Exhibit 10

[9]  Exhibit 10

[10]  Exhibit 10 p 18 para 6.1

[11]  Exhibit 10, page 30 par A5.11

[12]  T3-68

[13]  T3-69 lines 15-18 and T3-72 line 42 and following.

[14]  T3-10 lines 25-43

[15]  T3-38 lines 38-42

[16]  Written Submissions On Behalf Of The Co-Respondent par 36.

[17]  T1-45 lines 8-14, 5 December 2016

[18]  T3-6 lines 3-5

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Editorial Notes

  • Published Case Name:

    Stewart & Others v Moreton Bay Regional Council & Another

  • Shortened Case Name:

    Stewart v Moreton Bay Regional Council

  • MNC:

    [2017] QPEC 1

  • Court:

    QPEC

  • Judge(s):

    Andrews DCJ

  • Date:

    27 Jan 2017

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
Stewart & Ors v Moreton Bay Regional Council & Another (2015) QPELR 681
1 citation
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Cite 1 - (2015) QPELR 681
Stewart v Moreton Bay Regional Council [2015] QPEC 26
1 citation
Jump To
Cite 1 - [2015] QPEC 26

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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