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[2001] VCAT 445
respondent. Application for review disallowed; the decision of the Responsible Authority is affirmed and it is directed that a permit must not be granted in relation to planning permit application No. 1587/00...
The Tribunal refused an application to establish a clay target shooting range on rural land. Although clay target shooting can be appropriate in a Rural Zone, the Tribunal found the proposed frequency and intensity of shooting, inconclusive and conflicting acoustic tests, existing unregulated shooting activity closer to neighbours, likely interference with neighbouring sheep breeding, and practical enforcement difficulties together meant the proposal would adversely affect amenity and was incompatible with surrounding rural uses. The review was disallowed and no permit was to be granted.
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Eric Bullmore sought a planning permit to operate a clay target shooting range on a 248 hectare rural property at Morten's Road, Little River, in the City of Greater Geelong. The proposal envisaged multiple ranges, coaching and competitions, with operating hours between 9.00 a.m. and 6.00 p.m. (or 8.00 p.m. in daylight saving), and a program that, on the figures advanced at the hearing, could result in shooting up to four times per week and events where many rounds would be discharged ([4], [19]-[21]). The Responsible Authority had not determined the application within the statutory time, and Bullmore lodged a review in the Victorian Civil and Administrative Tribunal under s79 of the Planning and Environment Act 1987. The Responsible Authority, if not for those failure proceedings, had resolved it would have refused the permit for multiple reasons including incompatibility with broad acre rural land use, amenity impacts from noise, environmental concerns and enforceability doubts ([8]).
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At hearing, acoustic experts gave conflicting evidence. Two field tests performed on the site (June 2000 and December 2000) produced divergent results: Bassett Acoustics' June test measured a logarithmic average of 52 dB(A) (Impulse) with a predicted 49 dB(A) at the Ross residence (exceeding the EPA guideline), while a December test measured 38 dB(A) (Impulse) (within the guideline) ([28]-[29]). The Responsible Authority and objectors also relied on predictive modelling using the Nordic method, which indicated substantially higher impulse levels at the nearest dwelling in some shooting positions, up to 70 dB(A) in one prediction ([32]).
The Tribunal inspected the property and the Ross residence (closest dwelling) and received evidence about prior, unregulated recreational shooting on the subject land which, according to the Ross evidence, had caused distress and, she believed, affected sheep breeding outcomes ([22], [35]). After analysing the Planning Scheme, the EPA Interim Gun Shot Noise Guidelines, the conflicting acoustic evidence, the proposed intensity of use, the existing unregulated shooting and enforcement practicality, the Tribunal concluded the application failed threshold issues of compatibility and amenity and disallowed the review, directing that no permit be granted ([9]-[14], [26], [33]-[36], [38]).
The Tribunal’s decision rests on a chain of interrelated planning considerations focused on compatibility with the Rural Zone and amenity impacts from noise.
Planning framework and limitation of the 'prima facie' acceptance: The Tribunal acknowledged clay target shooting is prima facie an appropriate use in a Rural Zone ([9]). That acceptance, however, is subject to the planning scheme's test of compatibility and specific requirements, notably Clause 35.01-6 (considering how the use relates to rural land use and whether it will have adverse impacts, including noise) and Clause 65 (effect on amenity) ([11]-[13]). The Tribunal emphasised that the acceptance is not unqualified: non-agricultural uses must be compatible with zone purposes ([10], [14]).
Intensity, frequency and EPA guidance: The Tribunal used the EPA Interim Gun Shot Noise Guidelines to frame the noise issue. The Guidelines expressly recognise that greater intensity (days per week) requires lower permissible impulse noise and that shooting noise has an impulsive character which increases annoyance; they also warn that substantial buffers may be required and that local conditions can justify more stringent limits ([26]-[27]). The Tribunal contrasted the applicant's proposed program (potentially up to four shoots per week) with other planning outcomes where shooting was limited to fewer events and found the present intensity notably higher ([19], [24]-[25]).
Conflicting acoustic evidence and predictive modelling: The Tribunal found the acoustic evidence inconclusive. It recorded a notable discrepancy between the June and December tests and said it was not convinced meteorological variation alone explained it ([28]-[29], [33]). The Tribunal also accepted the predictive modelling evidence put forward by the objector’s expert, which suggested much higher levels at certain ranges ([32]). The inconclusiveness of measured evidence together with predictive concerns led to doubt about compliance with the Guidelines.
Cumulative unregulated shooting and incompatibility with agriculture: The Tribunal treated existing unregulated shooting on the subject land as relevant. That activity, which may take place nearer to the Ross dwelling than the proposed ranges and had not been subject to permit control, could be added to any permitted activity, thereby increasing cumulative noise impacts ([22]-[23]). The Tribunal also found that the continual noise of gunfire could interfere with lawful sheep-breeding activities on the neighbouring Ross property, accepting Mrs Ross’s evidence that shooting had coincided with lambing problems, this created a compatibility problem with an as-of-right agricultural use ([35]).
Enforcement practicality: The Tribunal placed weight on the practical difficulty of monitoring and enforcing permit conditions (attendance, activity levels and noise) in a remote rural setting, observing such enforcement would be virtually impossible and that enforcement problems are notorious even in urban areas; this lack of enforceability increased the risk that permit conditions would be ineffective ([34]).
Taken together, these considerations led the Tribunal to conclude the proposal would have unacceptable amenity impacts and was incompatible with the Rural Zone's purposes as applied to the local context, so the application failed threshold tests and was refused ([36], [38]).
Before this decision: the Tribunal recognised established planning principles: that non-agricultural recreational uses such as shooting ranges can be appropriate in rural zones but must be judged against compatibility with the zone's purposes, local policies and amenity considerations, including noise. The decision sits in a line of administrative outcomes where shooting ranges have been variably accepted or refused depending on intensity, buffer distance and amenity effects, this history is summarised by the Tribunal in its review of prior decisions (see the table at [24]).
After this decision: The Tribunal reaffirmed that the question whether to permit a shooting range is highly fact sensitive. The key legal points consolidated by the decision are (a) the qualified nature of 'prima facie' appropriateness in rural zones; (b) the centrality of intensity/frequency and noise assessment (and adherence to EPA guidance); (c) the material relevance of existing unregulated activities on the land; and (d) the importance of enforceability of conditions. Practitioners dealing with similar applications should therefore address those matters head-on in proposals: provide robust, consistent acoustic assessment (including predictive modelling for all firing positions), propose realistic limits on frequency/intensity, demonstrate effective enforcement and consider buffer distances or mitigation measures.
The judgment does not purport to alter legal doctrine; it applies established planning tests to the facts and emphasises practical enforcement and cumulative-use issues as determinative in this factual matrix.
Quoted EPA guideline: "Gunshot noise is loud and intrusive, with an impulsive character that increases annoyance..." ([26]).
Tribunal on acoustic evidence: "We do not believe the acoustic evidence before us is particularly conclusive one way or another. We are concerned about the discrepancy between the June and December tests..." ([33]).
Enforcement concern: "These problems are compounded by the difficulties of enforcing performance conditions ... In a remote area ... it would be virtually impossible to monitor noise levels..." ([34]).
Qualification of acceptability: "We accept clay target shooting is an appropriate use in a Rural Zone, provided that it is not overly intensive and is conducted with due sensitivity. Those characteristics are absent from the present application." ([36]).
Incompatibility with farming: "The Tribunal accepts that the two uses are incompatible and the continual noise of gunfire may on occasions interfere with sheep breeding activities." ([35]).
This decision will be most directly relevant where the following facts apply:
In such fact patterns, the Tribunal indicates a disposition towards refusal unless the applicant can present a materially less intensive, well-evidenced and enforceable regime.
The judgment itself summarises earlier administrative decisions on the subject (see the table at [24] and the reference to the Mollica decision at [35]) but does not record later judicial or Tribunal treatments of Bullmore. The decision operates at the VCAT Planning List level as an application of planning discretion to particular facts, emphasising acoustic evidence, frequency of use, cumulative unregulated activity and enforceability. Practitioners should therefore treat Bullmore as a factual precedent: for proposals of similar or greater intensity and with similar evidence gaps it is likely to be persuasive in later planning hearings. To determine how later courts or Tribunals have expressly treated Bullmore, one must check subsequent reported decisions and VCAT determinations; those post-2001 materials are not contained in this judgment.
The judgment leaves several practical and legal questions unresolved or requiring applicant attention in future cases:
Practitioners approaching similar proposals should therefore provide: comprehensive and consistent acoustic testing and predictive modelling; a tightly bounded program limiting frequency/intensity; clear physical mitigation and buffer strategies; and credible, funded compliance and monitoring arrangements. Where existing unregulated uses are present, proposals must address their status and cumulative effects explicitly.
PLANNING LIST Application for Review No. 2000/041857
Clay Target Shooting Range - Rural Zone - Noise - Intensity of Use - Relevance of Noise Generated by Existing Activities - Amenity.
DATE OF HEARING: 19th, 20th & 21st February 2001
The decision of the responsible authority is affirmed and it is directed that a permit must not be granted in relation to planning permit application No. 1587/00.
_______________________ _____________________
Mr W Nelson, Solicitor of Harwood Andrews, appeared on behalf of the Responsible Authority.
Mr M Bartley, Solicitor of Phillips Fox, appeared on behalf of the Applicant for Review.
Mr M Townsend of Counsel, instructed by the Environment Defenders Office, appeared on behalf of all objectors.
Application under S.79 of the Planning and Environment Act 1987 (PE Act) for review of the failure to grant a permit within the prescribed time.
1. The subject land is situated between the Little River and Balliang Creek and comprises 248 hectares of cleared rural land presently used for cropping. The property is gently undulating but contains a number of rocky outcrops. It is traversed by overhead electricity transmission lines. The Little River forms the southern boundary of the property.
2. The land is accessible by a single access point via Morten's Road which enters the property from the north. Morten's Road is a rural road with a gravel surface.
3. No dwelling presently exists on the land but there is a structure which is apparently used for the keeping of game birds. The nearest dwelling is situated approximately 300m from the northern property boundary. That dwelling is occupied by Mr & Mrs Ross and it too gains access from Morten's Road. The Ross property comprises 120 hectares and operates as a sheep breeding/grazing enterprise.
4. The Applicant is a well known competitor and coach engaged in the sport of clay target shooting. He seeks a permit to use the land for that purpose. The hours sought by the application were 9.00 a.m. - 6.00 p.m. Eastern Standard time and 9.00 a.m. - 8.00 p.m. daylight saving time. The application was accompanied by information regarding lead recovery and a set of range orders. Provisional approval has been granted by the Victoria Police.
5. The Applicant indicated that he intends to operate the site for coaching purposes and for conducting competition between invited guests up to four times monthly. Approximately 20 persons would participate on these occasions.
6. At the hearing a more detailed plan was provided which indicated the establishment of four separate ranges, the use of a small existing shed as a "club house", and the provision of informal car parking. This plan proved to be faulty in some respects. However, nothing of substance arises from those inaccuracies.
7. The application has a very lengthy history which need not be repeated here. It has also attracted a considerable degree of local controversy which seems to have arisen due to the keeping of game birds, and their subsequent hunting on the property. Despite assertions by Mr Bullmore to the contrary, the Responsible Authority insisted that those activities required a planning permit and should form part of the application. It was not until an application for review had been lodged against the Responsible Authority's failure to determine the application within the prescribed time that the "game bird" aspect was deleted, apparently at the direction of the Tribunal. It is understood that the Responsible Authority maintains its view that a permit is required for those activities, and is seeking to have the matter clarified in separate proceedings.
8. In the event, the application was lodged on 30 December 1999 but it was not until the 22 January 2001 that the matter was considered by the Responsible Authority. At that time it had before it the proposal, the objections, and a report from its town planning officers recommending that a conditional permit be granted. Meanwhile, as earlier indicated, failure proceedings had been instituted by the Applicant. The Responsible Authority resolved that, had those proceedings not been lodged, the application would have been refused on the following grounds:-
1) The use proposed is incompatible with the surrounding broad acres land use.
2) The use is contrary to the primary purpose of the rural zone of the Greater Geelong Planning Scheme and the polices as expressed in the Municipal Strategic Statement and Local Policies of the Greater Geelong Planning Scheme.
3) The proposal would have an adverse impact on the amenity of the surrounding area through the additional noise and traffic generated by the proposed use.
4) The impact of the proposed use and development on the native flora, fauna, soil structure, waterways and environment would be unacceptable.
5) There is reasonable doubt as to the likely compliance with conditions of any Planning Permit to render the grant of a Planning Permit inappropriate.
6) The grant of a Planning Permit in this instance would be contrary to sound town planning principles and practice.
7) The use proposed is in conflict with the Council's Regional Target Sports Facility report and adopted recommendations.
8) The proposal is considered to have the potential to endanger Aboriginal heritage sites.
9. Pursuant to the provisions of the Greater Geelong Planning Scheme the land is situated within a Rural Zone. It was common ground between the parties that clay target shooting is, prima facie, an appropriate use in a Rural Zone. The Tribunal agrees with that proposition.
10. However, the use is one subject to discretion and the above proposition is by no means an unqualified one, as the Planning Scheme itself makes plain.
11. Among the Zone purposes, the Scheme requires encouragement for the creation of effective rural infrastructure. Moreover, economic development must be compatible with rural activities.
12. Clause 35.01-6 obliges the Responsible Authority to consider - inter alia:-
* how the use or development relates to rural land use and ... natural resource management;
* the compatibility of the proposal with adjoining and nearby farming and other land uses;
* whether the use will have an adverse impact on surrounding land uses;
13. In addition to the above matters, Clause 65 of the Scheme requires regard be given to the effect of the proposal on the amenity of the area.
14. What is sought in this case is a permit for a non-agricultural activity. It is important then that any such use is compatible with the purpose of the Zone and complies with the provisions which we have summarised.
15. On the hearing all parties tabled and read written statements. Mr Townsend called evidence from the following persons:-
* Mrs Sue Ross, an objector and neighbouring property owner;
* Mr D Growcott, an expert witness in acoustic engineering.
* Mr V Mollica, an expert Shooter and President of the Victorian Clay Targets Association.
17. All witnesses tabled and read written reports on which they were cross-examined. During the hearing the Tribunal conducted an inspection of the subject land, the Ross property and the road access network. In coming to its decision in this matter the Tribunal has re-examined all the material put before it and has had careful regard to the submissions and evidence presented at the hearing.
18. The key issues in this matter are closely interrelated. The first is whether the use is compatible with other nearby rural activities. The second is whether the use will be detrimental to the amenity of neighbouring residents. Both matters involved an assessment of the noise impact. Inevitably that assessment is influenced by the intensity of the activity proposed. All these issues are inextricably entwined.
19. It is convenient first to look at the extent of the activity sought by Mr Bullmore. We have already set down the operating hours sought at the time the application was lodged. In response to the Tribunal's suggestion that those hours were too intensive, Mr Bartley provided us with the following table:-
* Less than 21 participants for less than 8 hours.
* Less than 21 participants for less than 6 hours.
* Less than 7 participants for less than 4 hours.
* Less than 7 participants for less than 2 hours.
20. The Tribunal understands that it is unlikely, at least at the outset, that activity would take place to the extent suggested by the above table. It may not eventuate even in the longer term. Nonetheless it would be inappropriate to assess a use of this kind other than in the light of what the permit allows.
21. During the inspection we were informed by Mr Bullmore that in one competition event it is possible for 150 rounds to be fired. It is feasible in this case that several events could be conducted, either simultaneously or consecutively. On a competition and coaching day, an indeterminate number of shots could be added. All this would be superimposed over recreational shooting which, Mr Bartley conceded, already takes place on the land.
22. The Tribunal has no means of knowing the extent of this recreational activity, whether it will remain constant, increase or decrease. We do know, from the evidence of Mrs Ross, that it has taken place in the past on part of the subject land closer to her dwelling than the ranges now proposed, and that it has caused her considerable distress. All this we accept. Indeed, this evidence remained uncontradicted.
23. Both Mr Nelson and Mr Townsend placed considerable emphasis on this recreational shooting. At the present time it is not controlled by any permit. The Applicant asserts that none is required; the Responsible Authority disagrees. It is a matter yet to be resolved. Regardless of the outcome of any future proceedings, we believe that it is relevant to take into account the fact that any permit granted in respect of the application before us will add to the impact of activities presently carried out on the land.
24. During the hearing the parties presented a number of previous cases involving play target shooting in order to support their respective arguments. We summarised these cases in the following table:-
While the decisions in the first three instances do not specify the frequency of the use proposed, all involved clay target clubs and it is a reasonable inference, we believe, that shooting would have been limited generally to club events on weekends.
25. It can be seen from the foregoing that none of these proposals involved shooting of the intensity involved in this application where, even on the limited basis now sought by Mr Bartley, target shooting of some kind (either at club events or through coaching) could take place up to four times each week.
26. All parties made extensive reference to the EPA's Interim Gun Shot Noise Guidelines to sustain their arguments. The guidelines recognise intensity by lowering the maximum permissible noise level. Thus, in situations where shooting takes place between 3 and 5 days per week, as the Applicant anticipates, noise levels should not exceed 45 dB(A) (Impulse). It is significant however that the introduction to the Guidelines states:-
Gunshot noise is loud and intrusive, with an impulsive character that increases annoyance. At high levels it can cause a startle effect which is disturbing to human beings.
A substantial buffer is required for outdoor shooting ranges to ensure nearby residential areas are not unduly affected. This buffer may need to be several kilometres if no other noise control measures are employed.
Shooting ranges generally need to be located in rural or semi-rural areas because of the substantial buffer required. Often the very nature of the area will attract people to settle who are seeking peace and quiet. For new ranges, the nature of the area means that residents wishing to maintain the high amenity of their environment will be sensitive to any change which could affect their quality of life.
The large distances affected by shooting noise means the establishment of a range will have significant local planning effects with the proposed uses of even distant land, at present and in the future, having to be considered.
27. The text goes on to state that levels more stringent than those guidelines may be imposed if local conditions warrant.
28. Dr Logan, in his evidence, indicated that two separate tests had been conducted, the first in June 2000 and the second in December 2000. The first test was conducted in windy conditions which, Dr Logan stated, tended to reduce the propagation of sound to the measurement point. The test was undertaken by a colleague of Dr Logan. The logarithmic average measured 52 dB(A) (Impulse) and the predicted level at the Ross residence was said to be 49 dB(A). That figure exceeds the guidelines.
29. The December test was conducted in more propitious weather conditions. As in the first test, 40 shots were fired and their logarithmic average was calculated at 38 dB(A) (Impulse). This figure meets the guidelines.
30. In cross-examination, Dr Logan conceded that his role was simply to measure the noise levels, and not to interpret the results against the guidelines. He had not taken account of topographical features which might serve to shield noise as that was not necessary to the measurement task. He was uncertain as to the separation distances involved but he believed the adopted measurement point was equivalent to the distance between the range and the Ross dwelling.
31. Dr Logan agreed that he was unfamiliar with the Nordic model used by Mr Growcott, but believed that actual measurements would provide a more reliable means of assessment than predictive modelling.
32. Mr Growcott expressed doubt as to Dr Logan's assessment, describing the difference between the June and December tests as "unexpected and unpredictable". His report includes an assessment under the "Nordic" method (1984) for predicting gunshot noise. Mr Growcott reached the following conclusions:-
A review of the Bassett Acoustics June and December 2000 reports of shooting noise survey indicates apparent inconsistencies with the results and with those compared with the results predicted using the common Nordic (1984) prediction tool.
The Bassett testing does not cover the several shooting positions which would produce very significant higher noise level results and would be required under an E.P.A. assessment.
Predictions using the common Nordic model indicate noise levels up to 70 dB(A) (Impulse) at the nearest house due to at least one proposed shooting location on the western range. On one location on the eastern range the predicted result is 56 dB(A) (Impulse). The predicted levels for the western range exceed all E.P.A. guideline limits for planned ranges. Shooting from the eastern range would allow only shooting one day per month Monday to Saturday.
It is recommended that further analysis and/or testing needs to be carried out before considering the range further.
33. We do not believe the acoustic evidence before us is particularly conclusive one way or another. We are concerned about the discrepancy between the June and December tests and are not convinced that it can be explained away purely by meteorological conditions. We are concerned that the staccato, impulsive characteristics of gunfire have the capacity to cause great annoyance to persons residing at the nearest affected dwelling. We are concerned regarding the frequency with which noise events would take place under the permit. We are concerned that those noise events will be superimposed over and above an unregulated an indeterminate background of shooting which, on the evidence, may well take place nearer to the Ross residence than the range shooting which is the subject of these proceedings.
34. These problems are compounded by the difficulties of enforcing performance conditions relative to such matters as attendance, levels of activity and noise. In a remote area such as Balliang, it would be virtually impossible to monitor noise levels over the period required to establish, for example, comparative figures under the interim guidelines. Enforcement difficulties of this kind are notorious in settled urban areas, let alone remote rural settlements. This difficulty simply adds to our concerns.
35. Setting amenity issues aside, we do not believe that the activity would be consistent with the use of the Ross property for sheep breeding, a use which is as of right in a Rural Zone. In her evidence, Mrs Ross attributed the loss of new born lambs to shooting carried out on the subject land. An unusual number of lambs were lost due to mis-mothering at lambing time. While Mrs Ross did not attempt to place all the blame for this occurrence on the noise of gunfire, she firmly believes that there was a direct causal connection. The Tribunal accepts that the two uses are incompatible and the continual noise of gunfire may on occasions interfere with sheep breeding activities. We note that the Town Planning Appeals Tribunal reached a similar conclusion in the Mollica case.
36. It follows from all this that we are not prepared to grant a permit for the level of activity sought, unless and until other outstanding matters are clarified. We believe the Applicant would be wise to reconsider his position and devise a proposal that is better planned, more predictable and less intensive. We reiterate that we accept clay target shooting is an appropriate use in a Rural Zone, provided that it is not overly intensive and is conducted with due sensitivity. Those characteristics are absent from the present application.
37. We find it unnecessary to deal with other issues raised by the parties. The matters with which we have dealt are threshold issues, and the application fails them.
38. For all the foregoing reasons the application for review is disallowed and the Tribunal will order that no permit be granted.
_______________________ _____________________
Bullmore Eric
Grt Geelong CC & Ors [2001] VCAT 445
Application for review disallowed; the decision of the Responsible Authority is affirmed and it is directed that a permit must not be granted in relation to planning permit application No. 1587/00 ([ORDER]; [38]).