Land and Environment Court

New South Wales

Case Name: Burns v Queanbeyan-Palerang Regional Council

Medium Neutral Citation: [2021] NSWLEC 1544

Hearing Date(s): 1-3 March 2021; 11 & 17 May 2021; 15 June 2021

Date of Orders: 01 November 2021

Decision Date: 1 November 2021

Jurisdiction: Class 1

Before: Dixon SC

Decision: The Court orders that:

(1) The appeal is dismissed.
(2) Development Application No. DA.2018.192 for a
recreational facility (outdoor) shooting range at
“Samuels Run”, 2155 Collector Road, Currawang,
known as Lots 114 and 200 in DP 750008 and Lot 149
in DP 750013, is determined by refusal of consent.
(3) The exhibits are returned except for A, B, and 1.

Catchwords: DEVELOPMENT APPLICATION – recreational facility

(outdoor) shooting range –likely impacts arising from
the use of the proposed development by NSW Police
under State Environmental Planning Policy
(Infrastructure) 2007 are a relevant s 4.15 consideration
– insufficient evidence to assess the acoustic impacts –
proposed development is not in the public interest

Legislation Cited: Biodiversity Conservation Act 2016

Environmental Planning and Assessment Act 1979, s
4.15
Firearms Act 1996
Firearms Regulation 2017
Palerang Local Environmental Plan 2014, cl 1.2
Protection of the Environment Operations (Noise
Control) Regulation 2017, Sch 2
 State Environmental Planning Policy (Infrastructure)
2007, Div 18A, cl 107C

Cases Cited: Ballina Shire Council v Palm Lake Works Pty Ltd [2020]
NSWLEC 41
Hoxton Park Residents Action Group Inc v Liverpool
City Council (2011) 81 NSWLR 638; [2011] NSWCA
349

Texts Cited: NSW Firearms Registry Range Users Guide

(September 2017)

Category: Principal judgment

Parties: Fiona Ellen Burns (Applicant)

Queanbeyan-Palerang Regional Council (Respondent)

Representation: Counsel:
P Tomasetti SC with A Pearman (Applicant)
I Hemmings SC (Respondent)

Solicitors:
P J Donnellan & Co Pty Limited (Applicant)
BAL Lawyers (Respondent)

File Number(s): 2019/191768

Publication Restriction: Nil

JUDGMENT
Introduction
1 The applicant Fiona Burns and her husband, both former senior officers of the
Australian Army, have a long-standing background in recreational shooting,
and experience in designing shooting ranges. More particularly, Mr Burns has
designed the six shooting ranges which are the subject of these Class 1
proceedings filed in response to the Council’s refusal of Mrs Burns’
Development Application No. DA.2018.192 (DA) for a ‘Recreational Facility
(Outdoor) – Shooting Range’ on Lots 114 and 200 in DP 750008 and Lot 149
in DP 750013 at 2155 Collector Road, Currawang known as ‘Samuels Run’
(the site).

2 Samuels Run is located on the north-eastern edge of Lake George and is

accessed from Point Ondyong Road, which intersects with Lake George Road.
 The terrain is generally hilly and forested, except for some cleared areas in the
vicinity of the proposed shooting ranges which are confined to the southern
part of the property.

3 The map below shows the property boundary outlined in green, and the
proposed development site, covering an area of 1,932.1 ha, shaded brown.

4 The site is within the RU1 – Primary Production zone under the Palerang Local
Environmental Plan 2014 (LEP) and the proposed ‘Recreational Facility
(Outdoor) – Shooting Range’ use is permissible with consent. (Although, it is
understood that the use cannot lawfully commence until Mr Burns obtains the
requisite approvals from the NSW Firearms Registry (NSWFR) and the Police
Commissioner under the Firearms Act 1996 and the Firearms Regulation
2017).

5 It is also understood, by dint of the operation of cl 107C of the State

Environmental Planning Policy (Infrastructure) 2007 (the SEPP), that if the
Court approves the proposed recreational use, the site may also operate as a
commercial shooting range for firearms training by the NSW Police (Police). Mr
Szaak, from NSWFR, gave evidence concerning the manner in which the
Police might use the site for firearms training. The Council is concerned about
the likely impacts of the potential use of the site by the Police. It contends that
 such anticipated use has not been properly assessed, and that this is a reason
to refuse consent.

6 The site is near land zoned E3 Environmental Management (Joint Planning

Report Exhibit P, p 15), and contains “…areas of dry grassy woodland, dry
forest, derived native grassland and exotic pasture”. The application proposes
the removal of approximately 620m2 of dry grassy woodland and 40m2 of
derived native grassland. However, these works are not within the mapped
vegetation areas, and the so described applicant’s Terrestrial Flora and Fauna
Assessment Report filed in support of the DA concludes that the proposed
development is unlikely to result in any significant impacts upon any threatened
flora or fauna species or habitat. As such, the proposal does not trigger the
thresholds of the biodiversity offset scheme under the Biodiversity
Conservation Act 2016 (Exhibit 2, Tab 8, p 120). Nonetheless, the Council,
through oral evidence of its shooting expert, Mr Butson, and its planner, Mr
Darroch, has raised issue with the impact of the proposed use on vegetation in
proposed Range 6.

7 The site also includes a Crown reserve (Lot 7006 in DP 96202) with a trig
station that is accessed by an unformed Crown road. At the commencement of
the hearing, it was contended that if a shooter missed the target within Range
6, the area where bullets from firearms fired on that Range are expected to
land, encroached onto this Crown reserve, specifically, within four of the Range
Danger Area (RDA) templates. To address this issue, the applicant was
granted leave to amend her application to alter the RDA traces to avoid the
Crown reserve.

8 Following the fourth amendment to accommodate a redesign of Range 6, the

applicant submitted that all ranges, including RDAs, were now wholly within the
boundary of the applicant’s property. Thereby, resolving the issue concerning
the Crown reserve.

The amended application

9 The application comprises the plans, Exhibit A, together with Exhibits B-L, on
condition of compliance with the Plan of Management (PoM) (Version 4.34),
Exhibit JJ, and any Range Standing Orders (RSO) ultimately made by the
 NSWFR. A likely draft of the RSOs was tendered as Version 1.15 and marked
Exhibit KK.

10 The term “approved shooting range” refers to a defined area comprising a firing
line, targets and a stop butt used for the controlled practice of shooting; and it
is inclusive of the RDA templates. The RSOs cover the use of the facility and
are to be read in conjunction with the PoM.

11 The applicant submits that the documents outlined collectively ensure the safe
use of the six ranges and dictate safe range management. Mindful, that the
more traditional shooting ranges used by sport and recreational shooters are
those proposed as Ranges 1 to 4, whereas Ranges 5 and 6 have never been
proposed in a recreational shooting facility in Australia.

12 The features of each of the six ranges, as described by the applicant, are set
out below:

(1) Range 1—25m Paper Range. This range has been designed to allow
shooters to develop and refine beginner to advanced shooting skills on
static and moving targets at distances from 5m to 25m. The range has
been specifically fitted to accommodate the Action Match Mover Event.
There are 8 x 3m lanes in the range, and it is entirely covered with a
roof. The sides are open with built up earthen berms for safety. At the
target end, there is a bullet catcher and a stop butt to capture all shot
and limit the possibility of ricochet from the range floor or bullet catcher.
It is proposed to be used for Air Pistol/Rifle, Rimfire Pistol/Rifle,
Centrefire Pistol/Rifle with calibres up to .308 for the Centrefire Rifle and
up to .45 for Centrefire Pistol. Targets will be paper, plastic and steel.
(2) Range 2—100m Gully Range. This range is designed to allow shooters
to develop and refine beginner to advanced shooting skills on electronic
targets with projectile location capabilities at distances from 5m to
100m. It has a 4m stop butt to capture shot and a flat grassed range
floor. It is proposed to be used for group and zeroing practice, Action
Match Practical and Barricade Event, IPSC, Single Action and Precision
Rifle Shooting. There are 10 x 3m lanes. It will be used with Air
Pistol/Rifle, Rimfire Pistol/Rifle, Centrefire Pistol/Rifle with calibre of up
to .308 for Centrefire Rifle and up to .45 for Centrefire Pistol. Targets
will be paper, plastic and steel.
(3) Range 3—Scenario Range. This range is designed to allow shooters to
refine shooting skills on static targets from 5m to 6m. It is specifically
designed to accommodate IPSC and Single Action style shoots using
facades and separate 6m shooting bays. There are four shooting bays,
each with 2 x 3m lanes. The range is constructed in a disused quarry
which will be reshaped so that shooting occurs within the excavation. At
 the target end, there is a bullet catcher and a stop butt to capture all
shot and limit the possibility of ricochet from the range floor or bullet
catcher. It is proposed to be used with Air Pistol/Rifle, Rimfire
Pistol/Rifle, Centrefire Pistol/Rifle using up to .308 ammunition for Rifle
and .45 for Centrefire Pistol. Targets are paper and plastic.
(4) Range 4—25m Steel Range. This is a 25m steel range designed to
allow shooters to refine skills on static and moving targets from 5m to
25m. At the target end, there is a bullet catcher and a stop butt to
capture all shot and limit the possibility of ricochet from the range floor
or bullet catcher. The range is constructed to accommodate the Action
Match Falling Plate Event. It is proposed to be used with Air Pistol/Rifle,
Rimfire Pistol/Rifle, Centrefire Pistol/Rifle using up to .308 ammunition
for Rifle and .45 for Centrefire Pistol. Targets are steel, paper and
plastic.
(5) Range 5—Mobile Range LFRiB. This is a fully enclosed and
ballistically contained video target, currently approved allowing shooters
to refine shooting skills using an interactive video target screen from 5m
to 7m. The range is constructed to capture all shot, ricochet and noise.
There are two firing lanes. It is proposed to be with Air Pistol/Rifle,
Rimfire Pistol/Rifle, Centrefire Pistol/Rifle using calibre .308 for
Centrefire Rifle and .45 for Centrefire Pistol. Targets are projected onto
a rubber video display screen.
(6) Range 6—Field Range. This range is designed for low volume
precision shooting practice under direct supervision in a field
environment. The participant navigates to a firing point to engage a non-
permanent target within a designated arc of fire. It is designed to refine
core recreational hunting skills in a safe and controlled bush
environment. There are nine fixed firing points in bushland. Approved
firearms will be Rifles only. Targets are paper, plastic and steel.
Shooters must achieve a level of skill before they are eligible to use
Range 6. Targets are placed within the designated firing arc, clear of
vegetation between the firer and the target. A well-maintained bullet
catcher is placed behind the target. The target is never more than 150m
from the firing point.
(7) Ancillary Infrastructure. Participants will arrive at the development
from Point Ondyong Road and proceed to the carpark adjacent to the
Administration Building. Then, they must attend the Reception and
complete the Range Register, kept in accordance with the Firearms Act.
They can then move under supervision to any relevant range noting that
some ranges cannot be used concurrently. There is no night flood
lighting of the range floor of any of external ranges, being Ranges 2 to 4
and 6, apart from the shooting position and the Range Supervisor’s
enclosure to support safety. Movement between Ranges 1 to 5 can be
by vehicle on designated tracks or on foot. There are field
toilets/amenities south of the Steel Range. All building structures and
earthworks are documented in the plans before the Court.
13 Under the PoM, and accepting Council’s draft condition 78, it is proposed to
limit the use of the proposed development to 70 people (including staff) at any
one time and per 24-hour period.

14 Under the PoM and consistent with the shooting and acoustic experts’ agreed
opinion, the hours of operation are intended to be 0800 hrs – 1700 hrs 7 days a
week (no concurrent range use between 0800hrs and 1000hrs) and 1700 hrs –
2200 hrs 3 nights a week (excluding Sunday evening). This is consistent with
Exhibit LL, Table A1 at Appendix A “Target Shooting Ranges: Application Note
for Assessing Noise Compliance” at page 10.

15 The PoM and Draft RSO authorise the use of the following firearms:

• Air Pistol of calibre up to .177

• Air Rifle up to calibre 6mm/.22
• Rimfire Pistol up to calibre 6mm/.22
• Rimfire Rifle up to calibre 6mm/.22
• Centrefire Pistol of calibre up to .45
• Centrefire Rifle of calibre up to 8mm/.308
16 Range 5 is promoted as an innovative range and is already NSWFR approved
as a mobile range.

17 Range 6 (the Field Range) is also an innovative range. It is described as

offering a “unique field experience”. It was designed by Mr Burns to train
recreational shooters in an environment similar to state forests providing the
user with an experience of walking to shoot at a target. He explained in Court
that “…The object of precision shooting is to ensure that feral animals are
culled efficiently and humanely and not left injured to wander and suffer”.

18 As described above, the Field Range has nine fixed firing points, each with a
safety template and arcs or lines of fire as proposed in Exhibit A. Exhibit A
includes templates, produced in accordance with the NSWFR Range Users
Guide (September 2017), to determine the safety danger area associated with
using a firearm with a specified ammunition type on a specified line of fire.
While these arcs have been the subject of expert evidence and cross-
 examination, NSWFR will also have to approve these arcs and safety
templates.

19 The RDA or Range Safety Area (RSA) template identifies those areas in which
there arises a risk to life, limb, or property from shooting. The size and shape of
the RDA is based on the extreme worst-case distance that a projectile could
travel and varies according to several factors. These include the ballistic co-
efficient, the projectile weight, the muzzle velocity, the calibre of the projectile,
the projectile shape, the angle of elevation, and weather conditions such as
relative humidity and then the elevation of the shooter above sea level.

20 The evidence is that multiple templates have been used to determine a safety
area by swinging and/or moving the template within possible shooting arcs and
boundary restrictions to create what is called a “trace”. A trace can then be
applied to a map to identify the desired direction of shooting and safety arcs on
the ground.

21 The applicant submits that it approached the design of this development from a
“worst case” scenario. It adopted the standard NSWFR-approved ammunition
safety template construction methodology for the 100m range, and the field
firing points were developed using the highest calibre ammunition proposed for
the ranges, the .308 Centrefire Rifle. All other proposed smaller rifle calibres
and pistol calibres fall within this safety envelope. In addition, the standard
human error angle applied to the construction of the safety template was
increased from 3° to 5° to provide a further element of safety assurance.

22 Each range RDA boundary and firing point was plotted with 10 figure grid
reference accuracy and projected to no closer than 50m of the facility boundary
to determine the fullest safety area possible. These features and the
requirement that all shooters at the facility will be required to hold the requisite
NSWFR firearms licence/permit or declaration before using the proposed
development are said to ensure the safe operation of the facility.

Contentions
23 Despite the most recent amendments, the Council maintained that there are
still a number of uncertainties as to the scope of the application and that the
applicant’s objection to a number of the conditions, that would provide certainty
 to the scope of the proposed development and permit proper regulation and
monitoring of environmental impacts, means that the Court has insufficient
material before it to grant an approval.

24 The following contentions from the Council’s Amended Statement of Facts and
Contentions (ASOFAC) remain in dispute.

• Contention 1: DA not genuinely intended to be operated as a recreational

facility
• Contention 2: No satisfactory demonstration that there will not be significant
noise impacts
• Contention 3: No satisfactory demonstration that there is no unacceptable risk
of harm
• Contention 4: Incompatible with character of the area, site not suitable (s
4.15(1)(c))
• Contention 5: Inconsistent with aims (a) and (c) of cl 1.2 of the LEP
• Contention 6: Inconsistent with the objectives of the RU1 zone
• Contention 7: Unacceptable social impacts in the locality
• Contention 8: Contrary to the public interest
Expert evidence
25 The experts who prepared individual statements and participated in the joint
reports, and gave oral evidence at the hearing included:

Area of
Applicant Respondent
Expertise

Mr Matthew
Acoustic Mr Steven Cooper
Harwood

Agricultural Mr Peter Tremain

NSW Police
Force Mr Peter Szaak

Firearms Registry

Planning Mr Keith Allen Mr Andrew

 Darroch

Shooting Mr Craig Ginger Mr Peter Butson

Traffic Mr Dean Brodie

Lay evidence
26 In addition to expert evidence, the Court also received lay evidence from
supporters and objectors to the application. Some 114 written submissions
were received in response to the notification of the DA (Council’s bundle).

27 At the site view, several high-profile recreational shooters gave evidence in

support of the application (Exhibit V). They included Ms Cherie Blake, who is
ranked the number one female in the world for Action Pistol and ranked the
current Australian National Champion – having won eleven (11) Australian
National Championship titles since 2012, US National Champion and World
Champion, and a retired Australian Army Sniper Supervisor who has won over
20 Australian National Championship titles, the Champion Shot of the Army,
and an International Service Rifle Champion - who has represented the SDF at
International Skills and Arms Competitions. These witnesses gave evidence
about the need to train at a recreational range, such as that proposed at
Samuels Run, to compete in a variety of international shooting sports. They
believe that the proposed development offers a variety of ranges with “target
equipment not presently available on other recreational ranges” and thereby “a
unique field experience.” Local farmers also offered support for the DA. Mr
Andrew Keatley, a rural contractor, and speaking on behalf of his father, who
lives closest to the proposed development said that the proposed development
will provide a safe environment for primary producers, hunters and recreational
shooters to develop their hunting skills. Mr Keatley listed the local people who
support the proposed development including the adjoining neighbours along
the entire 7km western boundary, who also use the land for farming. He said
that the proposed development does not adversely impact anyone in Collector
Road, Lucky Pass Road and Mooneys Road. He described the land to the
south and south-east as unused paddocks with uncontrolled weeds, rundown
sheds, and rusty car bodies. He said that he had never seen the owners there
 and any claim that they are is simply untrue. Ms Lee Bath, another local
supporter, spoke of the broader economic benefits of the proposed
development to the Queanbeyan-Palerang Community in terms of employment
from visitors to the region.

28 Those opposing the proposed development included the adjoining owner to the
south and south-east – Ms Poulis, whose property is just a few hundred metres
from the closest fixed range. For the last 30 years her family has run a hobby
farm business on the adjoining land. Their property contains a caravan and
infrastructure for farming including a full shearing area, holding yards and a
large shed. They presently agist cows although Ms Poulis explained that
historically there has been sheep on the land but that stopped during the
drought. Ms Poulis gave evidence that her family intended to continue farming
the land and grazing sheep in the future. And, while they do not live there
permanently, she explained that her family had spent a considerable amount of
time there keeping weeds under control and had plans to seek consent for a
dwelling, but those plans are on hold due to COVID. Mr Darroch, the Council’s
planner gave evidence that he considers there is a dwelling entitlement on the
Poulis land despite its split zoning and the lot size controls (Tcpt, 11 May 2021,
p 75(25).

29 The Court also heard evidence from the Stephensons who own the property at
2153 Collector Road and share an access road at the northern entrance to
2155 Collector Road. They strenuously oppose the proposed development of a
shooting range near their property having experienced the impacts generated
by the Police training exercises carried out in August and September 2017.
They gave compelling evidence about the distressing noise generated from
that activity and, like the large number of objectors who had lodged written
submission with the council, are concerned that if the DA is approved, their
quiet enjoyment will be adversely impacted by shooting activities day and night
together with the very real prospect that the Police will seek to carry out similar
firearms training at the property.

30 The owner of a local winery also gave evidence against the proposal. He was
concerned about temperature inversion and the noise of gunfire being carried
 across the valley and adversely impacting his restaurant and events
businesses should an approval be granted.

Contention 1: DA not genuinely intended to be operated as a recreational

facility
31 The Council has raised in Contention 1 a concern that the DA is not genuinely
intended to operate as a recreational facility.

32 A contention, said to be fairly raised, in the context of the applicant’s earlier

development applications lodged with the Council for a commercial shooting
range on the site, which after having been identified as a prohibited use on the
land, prompted the present DA; together with the past use of the northern part
of the property by the Police in August and September 2017 in a two-week long
firearms training session. Additionally, Mr Burns’ email to the Mayor and
Councillors (Exhibit P Attachment B) with documentation extending the scope
of the proposed use beyond recreational to commercial is submitted also as
evidence of the intended land use albeit retracted in his evidence to the Court .

33 Despite that evidence of intent, the Council submits that in circumstances

where the opportunity for the use of this land for a lawful shooting range by the
Police was formalised on 29 October 2017, by an amendment to the SEPP,
inserting Div 18A (Shooting Rangers) the impacts arising from such a use
cannot be ignored in my assessment. Clause 107C makes plain the fact that
development for the purpose of a shooting range may be carried out by the
Police without consent on land on which there is a lawful shooting range. In
that context, the Council contends that the applicant’s submission that the
Police exercises in 2017 and future use by the Police have nothing to do with
the current DA cannot be accepted.

34 While the Court accepts that the Police Commissioner will seek to ensure that
the use by the Police is conducted in a safe, orderly and proper way (Exhibit
AA, p5), and his current practice is to have a range approval (Tcpt, 17 May
2021, pp 11-12), Mr Szaak gave evidence that the Police may use a lawful
shooting range for their own purpose; and, while he said that they would do so
in accordance with the terms of a range approval and any development
consent (Exhibit AA, p 6 at par 48), it is somewhat ambivalent as to whether or
 not the Police Commissioner will require compliance with those approvals, in
light of the current, conflicting legal advice.

35 While Mr Szaak said that only approved ranges would be used by the Police,
the Council and many local residents are concerned that should consent be
granted and if the conditions of consent do not strictly define the “lawful
shooting range “for the purpose of the SEPP to the six shooting ranges and the
RFA’s, then the area in the northern part of the applicant’s land, an area
proximate to a number of residences and an activity that is capable of
generating the significant noise and amenity disturbance experienced by the
local residents in 2017, as documented in the significant number of objectors’
written submissions (Exhibit 2, Vol 1 Tab 4) might be used by the Police.

36 In circumstances where there is no requirement for acoustic testing under the

firearms legislation which regulates safety (Tcpt, 17 May 2021, p 17(29)) and,
Mr Szaak was uncertain as to whether the Police would be required to comply
with the conditions of any planning approval including the type of weapon to be
used on the site as mandated by the conditions of consent (Tcpt, 17 May 2021,
p 14(26)) the Council submits that I do not have sufficient understanding of the
likely impacts arising from the development.

37 The Council submits that the likely impacts arising from the development are
not limited to the actual DA or activities carried out on the site, but as the Court
has held:

“…[those] flowing from the development the subject of the development

application: the question is how remote a “likely” impact must be, to disqualify
it from the scope of the consideration. This requires an evaluative judgment
which will not often involve any bright-line boundary”: Hoxton Park Residents
Action Group Inc v Liverpool City Council (2011) 81 NSWLR 638; [2011]
NSWCA 349 (Hoxton Park) at [44]
and includes:

“off-site impacts … caused not only by the proposed development impacting

adjoining or other land in an area of influence but also by some other
development provided that the impacts of that other development have a ‘real
and sufficient link’ with the proposed development, such as where the impacts
are caused by ‘some further undertaking that is “inextricably involved” with the
proposed development’”: Ballina Shire Council v Palm Lake Works Pty Ltd
[2020] NSWLEC 41 at [6]-[8]
38 The Council submits the likelihood of Police using the site under the SEPP, is
not remote; and that the critical connection between the likely impact and the
proposed development is made out on the evidence of Mr Szaak, the past use
of the property and the fact that the Police may use the site under the SEPP if
the DA is approved. There is a real and sufficient link. Two different
assessments are called up by this development; and as it stands, the likely
impacts of the Police use have not been sufficiently assessed. Therefore, the
Court cannot undertake the requisite assessment of the DA under s 4.15 of the
likely impacts of the proposed development and must refuse consent.

39 Despite opportunity for the Police to use the facility under the SEPP, the
applicant maintains the proposed development is only for recreational use by
rifle and pistol shooters for shooting practice, training, competition, and target
shooting; and, if approved, the facility will allow people to practise their skills,
train for shooting competitions, participate in recreational shooting events and
matches; and she is happy to accept a condition of consent to limit the use.

40 The applicant invites me to accept the description of the development, as

agreed by the shooting experts Mr Ginger and Mr Butson, as confirmation of
the intended use of the site. Their evidence is that the application is
“predominately” for a shooting range that accords with the defined genus of
use as a recreational facility (outdoor). With Mr Butson expressing the view that
the application does not indicate that it is predominately for military or law
enforcement (Exhibit M, pp 3-5) (AWS at pars 45-46) and Mr Burns confirming
this (Exhibit Z at par 42a).

41 Nonetheless, the applicant concedes on the evidence of Mr Szaak (Exhibit AA)

that there is opportunity for the Police to use an approved shooting range
under the SEPP and if the Court grants development consent, it would be a
matter for the Police Commissioner as to whether a training exercise were to
be conducted on Samuels Run pursuant to cl 107C of the SEPP or under
emergency legislation.

42 While the applicant takes no issue with the cases cited by the Council, she
emphasises that the first step is to identify with precision the impact of concern
arising from the development: Hoxton Park at [44] (AWS p11). The applicant
 contends that in this case the Council has not identified the particular impact of
Police use of the site that is unacceptable, despite having opportunity to do so
through Mr Szaak. The complaint seems to be that the Police will use the
northern land as they did in August and September 2017. Yet, the applicant
submits that this is not likely and is remote for four reasons (AWS at p11). One
of which is that the applicant has since 2017 obtained development consent to
construct a machinery shed with a water and power supply system – rural
infrastructure, that physically limits the ability to establish a shooting range in
the north. And , in circumstances where the northern portion is only 600m away
from the nearest residence and there are several residences nearby it asks
rhetorically “ When nose is an issue, why would the Commissioner carry out
shooting to the north when the nearest residences to the southern shooting
ranges are some 2 km away and shooting (as tested) has been shown to be
inaudible?”

43 Relying on the acoustic evidence of Mr Harwood from the February and May
2021 testing (carried out in accordance with the relevant EPA Target Shooting
Ranges: Application Note for Assessing Noise Compliance (2015) and Table
1A in the EPA Guideline (Exhibit LL at p10)) the applicant submits that the
shots were inaudible at the three nearest receivers and Mr Cooper has agreed
“if the premises maintains an arithmetic average below 60 dBZ at all residential
locations, then under the Guideline the site would be permitted to operate 7
days and 3 nights” (Joint report at pars 129-130). The applicant submits that
this noise criteria is achievable. Noting, the noise enhancement due to
temperature inversions has not been assessed because the Noise Policy for
Industry specifically does not address emissions from shooting ranges. Albeit,
Mr Harwood acknowledging in his May 2021 report that “the potential increase
in noise levels due to temperature inversions can vary considerably” (Exhibit
2G at par 23).

Contention 1 – Finding
44 I accept that the use applied for falls within the definition of “recreational use”
and is permissible in the zone. However, it is difficult to argue that the likely
impacts of the Police use of the site, in the event of an approval, are irrelevant
to my assessment of this DA when the Police Commissioner can decide at any
 time to carry out Police training exercises on Samuels Run, pursuant to cl
107C of the SEPP.

45 Surrounding properties are primarily used for broad scale “agriculture grazing”
practices with ancillary dwellings including a number of home-based
occupations (Planning and Strategy Committee Report 8 May 2019 p 11). It is
true that some of the current neighbours are supportive of the application, but a
large number of local residents have lodged objections. The Court must be
satisfied on the evidence that the use, which runs with the land, does not
generate unacceptable amenity issues such as noise. Particularly, in
circumstances where the applicant will not agree to a time-limited consent
and/or the imposition of all of the Council’s draft acoustic conditions for ongoing
acoustic testing.

46 The Police use of the applicant’s land in the north in the past for firearms
training generated significant noise complaints and amenity impacts for local
residents as recorded in the objectors’ submissions. Should the Police use the
site in the future, it is likely that there will be impacts – the extent of which are
unknown at the present time. The development works at the northern end of
the applicant’s property were underway during the Court site view, in very close
proximity to the adjoining objectors’ residence some 600ms away.
Nonetheless, the northern area of the applicant’s land is vast and the
construction works for farm infrastructure with power and water do not give any
assurance that the northern land will not be used by the Police for training as in
the past under emergency powers or the SEPP.

47 The likely use of the site by the Police for firearms training can be inferred from
Mr Burns’ communication with the Mayor and the Councillors in relation to this
DA. The documentation states:

“Samuels Run was acquired by a husband and wife team as a means to fill an
identified gap in recreational shooting ranges and provide a vehicle for
Australian industry to better support those who serve our community – industry
and law enforcement.”
(Exhibit P Attachment B)
I am of the opinion that there is a sufficient nexus between the proposed
development and the use by the Police arising from an approval of this DA
 based on the Court’s reasoning in Hoxton Park. The necessity to assess the
likely impacts of that use is underlined by Mr Szaak’s evidence. His frank
admission that the Police may not need to comply with the terms of any
existing range approval or planning consent, albeit it may be desirable to do so,
raises a concern about likely impacts. The legal advice he has obtained on this
issue is unclear and his answer to Senior Counsel’s questioning as to whether
the Police are required to comply with the conditions of consent is telling. Mr
Szaak said that he did not have any experience of this issue and ultimately
answered “I’m sorry Mr Hemmings, I don’t know” (Tcpt, 17 May 2021, p
14(26)).

48 Unfortunately, there is insufficient evidence to properly understand the likely

impacts arising from the use by Police of the site and, in that circumstance, I
cannot undertake the assessment mandated by s 4.15 of the EPA Act.

49 This finding is sufficient reason of itself to refuse the DA. However, there are
also other reasons.

Contention 2: No satisfactory demonstration that there will not be significant

noise impacts
50 The joint report prepared by Mr Harwood and Mr Cooper addressed Mr
Harwood’s February 2021 report which replaced all previous reports. In respect
of the contentions, it is agreed that the Harwood Acoustic February 2021 report
has resolved the majority of noise issues raised in Contention 2 except for
particulars 2.2a and 2.2g and 2.3(a) (Exhibit O pars 36-43).

51 At the hearing, additional matters were identified as requiring consideration and

the applicant was given opportunity to carry out further testing.

52 Nonetheless, Mr Cooper remained concerned that the acoustic testing was

inadequate in respect to the following:

(1) monitoring had not been carried out at all residential receivers (Exhibit
O par 3.2);
(2) in the movement box, only three of the nine proposed firing locations
have been assessed (Exhibit O par 3.1);
(3) there was no assessment of night-time shooting (daytime for shooting is
10am to 5pm, therefore before 10am and after 5pm is relevantly night)
(Exhibit O pars 62-64, 112, 124-133); and
 (4) there was no consideration of the impact of temperature inversion
(Exhibit O pars 60 and 104).
53 Table 1 of Exhibit O identifies that the closet distances from the shooting
ranges to the five residential receivers that Mr Harwood tested are as follows:

(1) T1 (2309 Collector Road) – 3.2km from Range 6, shooting position 3C

(2) R2 (21153 Collector Road) – 4.5km from Range 6, shooting position 3C
(3) R3 (Lot 69 in DP 750013) – 2.0km from Range 6, shooting position 2C
(4) R4 (4746 Federal Highway, Lake George) – 1.8km from Range 6,
shooting position 1A
(5) R5 (40 Ondyong Point, Currawang) – 2.1km from Ranges 1 and 5
54 Noting, Ms Poulis’ property a few hundred metres form the closet fixed range
(Exhibit 5) was not tested because it was not residential - despite her evidence
about a dwelling entitlement and intention to build after COVID.

55 As the Council points out, the grey boxes in Mr Harwood’s Table 1 identifies
the locations that were tested. Range 5 was not tested and only three of the
nine locations for Range 6 were tested. This was because Mr Harwood
assumed on the basis of additional distance and/or direction of fire in relation to
those receptors not tested that “…the level of noise emission from gun shots
will be considerably lower at the more distant receptors” (Exhibit O at par 101).

56 Mr Cooper did not accept this assumption as appropriate.

57 In relation to night-time shooting, the acoustic experts did not agree that
operations could commence at 8am (Tcpt, 17 May 2021, p 49). Mr Cooper
gave evidence that the acoustic testing undertaken was inadequate without
representative night-time testing and testing for temperature inversion (which
occurs most commonly early morning or at night) (Tcpt, 17 May 2021, p 44(1-
5)). His concerns were not overcome by the further night testing by Mr
Harwood on 16 April 2021 (Exhibit GG par 14) which was limited to noise
assessment conducted at receptor R5, the closest residential receptor at
approximately 2km, with shooting occurring from the 25m paper Range in a
northerly direction,– and the testing concluding at 7.05pm well short of the
10pm finishing time applied for (Figure 3 Range 1 Exhibit GG).
58 As it happened, the experts agreed that night-time testing and the assessment
of temperature inversion are interrelated, as temperature inversion occurs most
often in the morning. With Mr Harwood accepting that the noise impacts in the
circumstances of temperature inversion for this site are not known (Tcpt, 17
May 2021, p 66(18)).

59 When it was suggested to Mr Cooper that night-time testing had been carried
out, and that there was an acceptable acoustic impact, his response was a
resounding “absolutely not” (Tcpt, 17 May 2021, p 53(18)). As Mr Cooper
explained, because noise from a firearm is focused in front of the firearm, if the
measurement is taken from behind the firing position then the noise level will
be noticeably lower than if the measurement was taken from the side. As it was
reported, Mr Harwood said that the firing direction was tested in a northerly
direction, with receptor R5 being behind the firing direction. Mr Cooper is of the
expert opinion that R3, which is in front of the firing direction, is likely to
experience greater noise impacts than R5; however, R3 was not tested.
Moreover, Mr Cooper gave evidence that a measurement from behind the
shooting position cannot be relied on to demonstrate potential impacts at all
receptor locations (Tcpt, 17 May 2021, p 59(23)). Therefore, he believes that
there is no reliable prediction of what the noise levels would be at night, and on
that basis, the testing remains inadequate.

60 When asked why he did not test R3, Mr Harwood explained he was on his own
and it was “… easier to measure R5” (Tcpt, 17 May 2021, p 54).

61 Generally, Mr Cooper was critical of Mr Harwood’s approach to the testing

which assumed that the distance from the firing location to the receptor is the
determinative factor in assessing noise impacts from shooting. He believes the
testing undertaken did not take sufficient account of the direction of fire, and
the impact of weather patterns, the topography and time of day.

62 Accepting that both commercial and handmade ammunition is intended to be

used on the site, with different amounts of gunpowder, the Council is
concerned that the ammunition used may result in different acoustic impacts to
those tested. A concern compounded by the fact that Mr Harwood could not
 recall whether he used commercial or handmade ammunition for testing
purposes.

63 It is the Council’s case that the inadequacies in the acoustic testing to date
cannot be addressed by the imposition of an operational condition requiring
satisfactory testing of firing points not tested being tested after a consent has
been granted. This would defer an essential matter which needs to be
addressed when considering whether the impacts of the proposal are
acceptable, and whether consent should be granted. In any event, the
applicant does not agree to the Council’s draft condition 14 for ongoing testing
(Draft conditions May 2021).

64 The applicant accuses the Council in this case of moving the goal posts and
changing the testing requirements. The applicant has agreed to do certain
commission testing from the remaining Range 6 firing points after the grant of
consent (draft condition 14). If the testing does not comply, then it submits the
Range 6 firing points cannot, and will not, be used. The applicant otherwise
rejects a requirement for ongoing commissioning testing at 6 months and 12
months as unreasonable.

65 While conceding that it made an error in its submissions at par 18 in respect to

the minimum distance of the ranges from neighbouring properties; the
applicant submits that the Council has made a series of errors in its
submissions. The relevant submissions in reply are reproduced below:

“R1 is behind the firing point 3C at a distance of 3.2km. Therefore, based on

the guidance provided to Mr Harwood by Mr Cooper in relation to directional
considerations, the logical receiver to test was R3 at 3.2km away, as well as
R5 and R4 at 4.4km which are all in the direction of fire from C3.
R2 was not tested as it was behind C3, 4.5km away and having regard to
directional considerations it was better to test R3 at the closest distance of
3.2km and R4 at 4.4km away from shooting position 3C.
R3 was not tested from firing point 2C at all. Council is incorrect. It was not
tested as there are no residences aligned with the firing direction and R3 was
behind the firing point.
R4 was not tested from firing point 1A at all. Council is incorrect. It was not
tested as there are no residences aligned with the direction of fire, it is behind
the firing line and the testing from Range 2 was considered representative of
firing point 1A and was inaudible although at 2km away.
R5 was not tested and inaudible at 2.1km away from Range 1 and Range 5.
 Despite the Council errors and stated distances, the outcome of testing
remains – the shots are inaudible at the receivers selected. All ranges tested
were tested to 3 residential receivers and the results demonstrate that the
distance and terrain between the ranges and the residential receivers affords
acoustic protection for residences.
Testing was not conducted from six points in Range 6 as the tested ranges,
including Range 6 firing points tested, were considered to provide suitable
predictive results for these firing points. The Range 6 firing points not tested
are 1A, 1B, 1C, 2A, 2C and 3A. They will undergo commissioning Testing to
ensure they achieve the required acoustic levels, otherwise they will not be
approved from use by the Firearms Registry (draft condition 14).
Finally, Mrs Poulis’ property is not residential, and the EPA Guideline and
Schedule 2 only requires residential receivers to be tested.”
Contention 2 – Finding
66 Before anything else, I need to address the fact that the application before me
is very different to that considered by the Council officers and recommended
for approval in 8 May 2019. Relevantly, there was no Range 6 recommended
for approval and the range area was reduced (draft condition 2). The
development had a maximum number of 35 users at any one time and ongoing
acoustic testing prior to, and throughout, the operation of the range.

67 In the current application, the applicant has agreed to a maximum of 90 vehicle

movements per day (draft condition 78) and use of six ranges with 70 people
(including staff) at any one time and per 24-hour period.

68 It proposes hours of operation from 8am to 5pm, seven days a week (no
concurrent range use between 8am and 10am) and 5pm to 10pm, three nights
a week (excluding Sunday evening). This is said to be consistent with Exhibit
LL Table 1A at Appendix A “Target Shooting Ranges: Application Note for
Assessing Noise Compliance” (p 10).

69 Range 6 is described as innovative and designed by Mr Burns to train

recreational shooters in an environment similar to state forest, providing the
user with an experience of walking to shoot at a target (Exhibit Z at par 23). It is
designed for shooters with advanced precision shooting skills and will be
strictly supervised.

70 In developing the design of the proposed development, I am told a “worst-case

scenario” has been used, using high-calibre ammunition for the ranges, and
testing the loudest weapon – the .308 Centrefire Rifle. All other smaller rifle
 calibres and pistols fall within this envelope. Additionally, the standard human
error angle applied to the construction of the safety templates has been
increased from 3○ to 5○ to provide a further element of safety (Exhibit X p 10).
And in order to avoid Crown reserve, the arc of fire for four of the nine firing
points of Range 6 were narrowed.

71 In determining whether to grant consent, the Court must have regard to the
matters in s 4.15 of the EPA Act. Mindful, that the NSWFR will also be involved
in approving the use before it can operate, although that approval is essentially
to address safety.

72 The merits assessment rests with me and the acoustic impacts likely to arise
from the use of the site as a shooting range necessarily, must be understood
and considered at the time of the grant of consent.

73 In this case, the acoustic evidence has evolved over the course of the hearing.
The applicant has been given great latitude to carry out further testing as
required to accommodate issues raised by the evidence as well as identified in
the Council’s contentions.

74 While the majority of the identified issues have been resolved, there remains a
dispute about the reliability of the testing undertaken at night. Mr Cooper is not
satisfied, and the applicant submits there have been mistakes in the evidence
on both sides. Yet, the applicant asks me to accept, through her submissions
reproduced above, corrections of that evidence and to approve the DA on that
basis. The applicant offers no satisfactory condition for ongoing acoustic
testing on the basis that it has satisfied Table A1 in the EPA Guideline and
invites the Court to grant approval on the basis of Mr Cooper’s statement in the
joint report at par 128 “if the premises maintains an arithmetic average below
60dBZ at all residential locations, then under the Guidelines the site would be
permitted to be operated 7 days and 3 night[s].”

75 However, it seems Mr Cooper is not satisfied that the proposed development

can achieve this arithmetic average, based on the current acoustic testing.

76 I am also concerned about the impact of the proposed use on Ms Poulis’

property which is located only a few hundred metres from the closest fixed
 range. Ms Poulis gave cogent evidence of her use of the property as a hobby
farm and I accept that her family stay at the property from time to time and
have plans to seek consent for a dwelling – although those plans are on hold
due to COVID-19. Ms Poulis produced, as requested by the applicant, the
financial records for the farm use which support farming activities at the
property historically and continuing albeit impacted by drought over the years.
Acknowledging there is no guarantee of an approval of any DA, I accept Mr
Darroch’s planning evidence that her property has a dwelling entitlement
despite the lot size and split zoning. For those reasons, it is appropriate that
the impact of the use on Ms Poulis’ property be assessed by the acoustic
experts and considered before the grant of this development consent.

77 Ultimately, I find that Mr Harwood’s night-time acoustic testing is inadequate for

the reasons outlined by Mr Cooper as summarised. Acoustic testing that
appears to have been compromised by the fact that Mr Harwood was operating
with limited assistance, as he conceded in his oral evidence. Furthermore, the
anticipated Police use has not been assessed and is another unknown. For all
these reasons, I am not satisfied that I have sufficient understanding of the
acoustic impacts of the proposed development, particularly at night until 10pm
3 night per week and from 8am to 10am 5 days a week on relevant residential
properties proximate to the site. In that circumstance, I am unable to undertake
the assessment required by s 4.15 of the EPA Act.

Conclusion
78 In order to succeed, it was necessary for the applicant to establish that the
acoustic impacts arising from the proposed development, particularly at night
shooting, had been adequately assessed and addressed.

79 Section 4.15(1)(b) of the EPA Act mandates a consideration of the likely

impacts of the proposed development, including its environmental impacts on
both the natural and built environments, and social and economic impacts on
the locality. In this case, the impacts of the anticipated use of the shooting
range by the Police have not been assessed. The objectors’ evidence about
past impacts from such a use make it plain that these activities have the
potential to generate unacceptable noise and amenity impacts, and given the
 opportunity to carry out such activities under the SEPP if the site is approved
as a recreation shooting facility, such activities are relevant s 4.15
considerations. Based on the evidence, I do not believe an approval of this
application is in the public interest. Accordingly, I have determined to refuse the
development application and dismiss the appeal.

Orders
80 The Court orders that:

(1) The appeal is dismissed.

(2) Development Application No. DA.2018.192 for a recreational facility
(outdoor) shooting range at “Samuels Run”, 2155 Collector Road,
Currawang, known as Lots 114 and 200 in DP 750008 and Lot 149 in
DP 750013, is determined by refusal of consent.
(3) The exhibits are returned except for A, B, and 1.

…………………………

S Dixon

Senior Commissioner of the Court

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