1. Within 7 days of the date of this Order the Applicant is to advise the Tribunal and the other parties whether or not it would prefer the permit to encompass the use of the shooting range by centre fire rifles on the limited basis set out in the attached reasons;

2. Within 21 days of the date of these order, the Responsible Authority is to provide to the Tribunal and other parties, draft permit conditions which have regard to the attached reasons and the option adopted by the applicant in Direction 1 above, and;

3. Within 21 days of the giving of draft reasons in accordance with Direction 2 above, the Permit Applicant, and any other party, must serve upon the Tribunal and the other parties, its response to the conditions proposed by the Responsible Authority.

Mr Domenic Scally, Solicitor. Mr Scally callead Senior Sergeant Dennis Tocock as a witness.

Mr Mathew Townshend, Barrister. Mr Townshend callead the following witnesses,

Dr Lawrence Martin, acoustic scientist and Objector,

Mr Noel Harvey, Chairman, Macedon Ranges and Spa Country Tourism Inc., and

Mr Chris Wren, Barrister. Mr Wren callead the following witnesses,

1. This is an application to review the failure of the Responsible Authority to grant a permit within the prescribed time in relation to a permit application for a shooting range on private land located within the Cobaw State Forest near Lancefield. The Responsible Authority ultimately resolved that had it not been for the application for review it would have issued a notice of refusal to grant a permit for the following reasons:

"1. The proposal is inconsistent with the intent and purposes of the Environmental Rural Zone and is contrary to the relevant decision guidelines.

2. The proposal will cause detriment to the amenity of the area.

3. The proposal will unacceptably increase the potential of fire in the locality.

4. The proposal will result in an unacceptable physical danger to humans and native fauna within the State Forest and on private land beyond the State Forest.

5. The proposal does not satisfy the objectives of the Statement of Planning Policy No. 8 (Macedon Ranges and surrounds) and may lead to a fragmentation of passive recreation surrounding the subject site.

6. The proposal is contrary to orderly and proper planning"

2. The parties and the witnesses at the hearing of the application for review relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal. On Saturday, 19 July 2003, an inspection for the site and locality in the presence of representatives from all the parties, was undertaken. During the course of the inspection live firing took place on the proposed range, to enable the Tribunal to better interpret the acoustic evidence. The Tribunal was assisted in this regard by both Mr Wren and Dr Martin, both of whom brought noise measuring devices for use during the course of the inspection. The locations from which the noise observations were made were, Croziers track, two locations within the Fitzsimmons land, including the site of the proposed Eco Education Centre, the intersection of Reilly's Road and Greenways Track, and at Cashmere Farm.

3. The subject land is a large irregular lot completely surrounded by the Cobaw State Forest. The land is at present unused and except for the works undertaken so far in respect of the shooting range, is largely indistinguishable from the surrounding forest. The following extract from the Department of Sustainability and Environment's letter to the Responsible Authority, outlines some of the characteristics of the Cobaw State Forest:

"* The State Forest of the Cobaw Range has been designated as Special Protection Zone by the West Regional Forest Agreement (between the State and Federal Governments regarding the use of forest land) for the management of several ecological vegetation classes (EVC's), including grassy dry forests, herb-rich foothill forest, damp forest, valley grassy forest and sedgy riparian woodland.

* Within the forest there are a number of significant fauna species including the Powerful Owl (Nixon Strenua) and the Bush-tailead Phascigale (Phascigale Tapowtafa).

* The DNRE does not have any evidence on the immediate or ongoing impact of this shooting range on fauna within the Cobaw Forest, including significant fauna species.

4. The proposal is to establish a shooting range towards the southern end of the property, near an existing track traversing the land. There is to be a 95 metre to a range and a 60 metre range and associated dam and toilets. The earthworks associated with the construction of the range are largely complete, including the construction of the dam. Some characteristics of the proposed shooting range are described in the following extract from Mr Wren's submission:

"It is proposed that the site will be used one day a week between the hours of 9.00 am to 6.00 pm. Eastern Daylight Saving time and 9.00 am to 5.00 pm Eastern Standard Time. The range will be required to comply with the Police Firearms Ranges - Standards for Approval Manual Requirements in terms of baffles, bunds and general safety issues. It will also be required to comply with the EPA's Interim Gunshot Noise Guidelines. Access will be in accordance with the requirements of the Manager of the Cobaw Forest and sullage will be in accordance with the health requirements of Council's appropriate officer."

5. There is a very considerable history in relation to the use of this land for the purpose of a Shooting Range, it is dealt with at length in the submissions to the Tribunal, I do not think it necessary to recount this history in these reasons.

6. Having considered the submissions and evidence, and completed the inspection, it is my view that the significant issues in this application for review can be discussed under the following broad headings:

3. Noise in the forest in particular impacts in relation to fauna (including the Powerful Owl) and forest users.

4. Noise outside the forest in particular impacts on dwellings, tourist venues including Mr Fitzsimmons proposed Eco Education Centre.

7. The permit application originally proposed use of mobile baffles, to prevent misfired rounds escaping the range to the forest and other privately owned land beyond. It was Senior Sergeant Tocock's opinion that fixed baffling would be required on this range, in part because of its isolation, but primarily because of the variety of firearms intended to be used on the range. Mr Wren earlier in the hearing advised the Tribunal that the Applicant's accepted the need to use fixed baffling designed to ensure that misfired rounds could not leave the area of the range.

8. A completely baffled range would resolve any safety concerns. However, Mr Wren's statement in relation to baffling was more a statement of intent, rather than a completely developed proposal for baffling. Consequentially, the issue of whether or not it is sufficient for the Tribunal to rely on the approval process under the Firearms Act, to ensure the safety of the range, particularly in the absence of any associated engineering or building standards, was contentious. This is an issue I intend to address later in this decision.

9. Similarly Mr Wren proposed that the issue of lead contamination be avoided by replacing the proposed earthen stop butt with a shot containment device constructed from steel and heavy duty rubber strapping to deflect, shatter and collect the rounds once they have passed through the target at the end of the range. Again this was a conceptual rather than a developed proposal; although less contentious because I think it was accepted that the design and construction of such a device would be considerably less difficult than would be the case for a system of baffles designed to make safe a range capable of being used by a range of high powered centre fire rifles.

10. The subject land and nearby privately owned land fall within an Environmental Rural Zone. Mr Townshend argued that while the Tribunal had accepted in a number of cases that shooting ranges were appropriate in the Rural Zone. The objectives and decision guidelines applicable in the Environmental Rural Zone are substantially different to those applying in the Rural Zone, and in his view these objectives and guidelines supported the contention that a shooting range was an inappropriate land use within or near land within this zone.

11. In my view the principle differences between these two rural zones relates to the emphasis on the protection of natural environmental values within the Environmental Rural Zone. I do not think that the zone provisions necessarily lead to the conclusion that a higher standard of amenity should prevail for residents (or users) of land within the ERZ. However, I do accept that it is likely that in some instances areas falling within an ERZ would possess attributes attractive to rural residential use (although this will be sometimes problematic from the perspective of other zone objectives) and for tourism related activities. It is possible that there would be some locations within an Environmental Rural Zone, which would be more sensitive to amenity considerations than some locations in a Rural Zone, but this would not be in my view universally true, and in each case the sensitivity of a particular environment would need to be assessed, whatever its zoning.

12. The Biosis assessment prepared on behalf of the Permit Applicants indicated that there was little scientific evidence about the impact of noise on fauna, but on the basis of their experience they were of the opinion that there was unlikely to be any significant impact on fauna at distances greater than 250 metres from the firing point. The Department of Sustainability and Environment largely accepted this conclusion, and Mr Wren referred to another decision of the Tribunal in which the Department's predecessor expressed the view that it was their experience that fauna became relatively quickly habituated to noise from shooting ranges.

13. Powerful Owls, a threatened species, are found within the Cobaw State Forest. Mr Hill in his evidence reiterated the Biosis view about the lack of scientific evidence about the impact of noise on fauna and in particular in relation to the impact of noise on Powerful Owls. However Mr Hill was of the opinion that as Powerful Owls are a threatened species, known to exist in this locality, and which could be reasonably be regarded as having sensitive hearing, then a more cautious approach was warranted.

14. On the basis of the inspection I am inclined to accept the conclusions of Biosis in their report, and that of the Department of Sustainability and Environment. In relation to the Powerful Owl in particular, while I think it is entirely possible that the presence of the shooting range may discourage Powerful Owls from nesting within very close proximity to the range, it is unlikely to impact upon roosting or foraging when the range is not in use, ie. at night, or on the remaining six days of the week. The impact on nesting must be considered in the context that each pair of Powerful Owls occupies a large range or territory and it would only be a very small area of that range affected by the shooting range.

15. The forest is extensively used for recreational purposes, users include, bushwalkers, horse riders, picnickers, campers, hunters, "dirt bike" riders, and "Sunday' drivers.

16. The Environment Protection Authority's "Interim Gun Shot Noise Guidelines 1991" set noise limits for shooting ranges such as this proposed range. The noise limits have generally been applied to residential properties. The applicable noise limit in this case 55 db(A)(imp)is likely to be exceeded over a reasonably large area of the forest as it adjoins the subject land. In my view it is likely that the sound of gun fire will to a degree disturb the peace and tranquillity of the forest from the perspective of some users of the forest. Indeed, for some horse riders the disturbing noise of gun fire could be dangerous. However, this conclusion must be considered in the context that the forest is already used for a number of noisy pursuits, including hunting, but more particularly "dirt bike" riding a very intrusive use from a noise perspective.

17. As a consequence of my inspection I have formed the view that it is probable that at all nearby residential properties, the noise impacts of the proposed shooting range will be within the criteria established by the EPA's "Interim Gun Shot Noise Guidelines - 1991". During the inspection at Cashmere Farm the conditions were good from a noise propagation perspective, and none of the gun shots equalled or exceeded the 55 db(A)(imp) standard. Nevertheless, the gun shots from the centre fire rifles were clearly audible, the gun shots from the .22 rifles and the shotguns were inaudible at the inspection. I accept that notwithstanding the guidelines, some persons may find gun fire from the centre fire rifles, over a long period, relatively intrusive.

18. My conclusions in respect of established tourism venues in the locality, is similar to that for dwellings. Visitors tripping between wineries and galleries etc are only likely to be intermittently aware of the shooting range, and are in my view likely to accept it as part of a rural experience. On the other hand, picnickers enjoying a glass of wine on a rug in the forest and visitors staying in a B and B nearby who wish to spend a day reading on a deckchair in the sun may find the shooting range intrusive.

19. The proposed eco tourism venture, the Eco Education Centre, is however a special case, because of its relative proximity to the shooting range, and therefore the higher noise impacts likely to be experienced. However, the Eco Education Centre has not been approved or established, and this therefore raises issues about whether or not it is reasonable for an uncertain use of land to constrain the present applicant's intended use of their land. On the other hand, the proposed Eco Education Centre more directly benefits from the environmental values protected by the zone, and those possessed by the surrounding forest. Although the actual impacts of the proposed Eco Education Centre building and the occupation of the building by people and the movement of people to and from the site on that land, are likely to be similar to that associated with the occupation and use of the shooting range on the subject land. However in the final analysis it is the noise of the shooting range which results in one use impacting on the other.

20. It was Senior Sergeant Tocock's evidence that there are in excess of 300 shooting ranges in Victoria, one must assume that many of them would be located in rural areas, and in such cases the impacts of these shooting ranges on people and activities nearby would be similar to the range of impacts discussed above. Given that target shooting is a legitimate, and moderately popular pastime the conclusion cannot be that shooting ranges are inherently inappropriate in rural environments. What then is the appropriate balance to be struck in this particular case having regard to the particular circumstances of the land.

21. On balance I am of the view that the proposed shooting range could be used for .22 and .22 magnum rifles without unreasonable effect on the amenity of the locality. In relation to the more powerful centre fire rifles and shot guns, I am of the view that some temporal restriction greater than that which would result from an application of the EPA's "Interim Gun Shot Noise Guidelines - 1991" would be appropriate. In my view an appropriate compromise would be to limit the firing of centre fire rifles to a single two hour period during the Saturday applied for. The issues discussed above which have most influence my decision in relation to centre fire rifles and shot guns is the impact of noise on forest users and on the Fitzsimmons land.

22. The question of whether or not it was sufficient for the Tribunal to rely on the approval process under the Firearms Act in respect of the safety of the shooting range was a contentious issue. Under the Firearms Act the person charged with the approval of shooting ranges is the Police Commissioner, and Senior Sergeant Tocock is the Police Commissioner's delegate in this regard. The Firearms Act is silent in relation to the objectives of the approval process, and provides no approval guidelines. Nevertheless, the Victoria Police have developed a guideline or standard, "Firearm Ranges - Standards for Approval" which are used as part of the approval process, and it is clear from Senior Sergeant Tocock's evidence that his primary concern is safety. In this context I think it appropriate that the ultimate safety of the proposed shooting range be determined under that process rather than in this planning process. However, I do think the conditions of permit should set out a two stage process whereby in the first instance development cannot proceed until a design for the range and its baffling systems has been prepared which is satisfactory to the Police Commissioner's delegate, and then the permit should require that the use of the land for the purpose of a shooting range be conditional upon the conditions and requirements of its approval under the Firearms Act.

23. At the conclusion of the hearing it was agreed that the Tribunal would make an in principle decision in relation to the use of the land for the purpose of a shooting range, and that if the in principle decision was that a permit should be granted, further submissions would be invited in relation to permit conditions. It follows from the above discussion that my decision is that a conditional permit should be granted. I therefore make the following brief observations in relation to the conditions required, in addition to the conditions which would arise from the conclusions set out above:

1. I accept that my intention to limit the use of centre fire rifles on the range may led the Applicant to the conclusion that it is uneconomic to baffle the range to a standard which could accommodate these high powered weapons, therefore the permit Applicant must nominate whether or not the permit conditions should limit the use of the range to .22 and .22 magnum rifles, or should in addition include the option for the use of centre fire rifles for a two hour period.

2. In relation to fencing, I am of the view that a well constructed rural fence properly sign posted is all that is required, and that it is only the immediate environs of the shooting range that need be fenced.

3. In relation to car parking, I believe it is better that that the plan nominate car parking areas within the site, and that vehicles within the land should be largely constrained to use the access tracks and car parking areas shown on the endorsed plan;

4. The condition should include a requirement for a management plan which addresses vehicular access, car parking, camping, fire safety, range operation and safety and the disposal of lead and other waste materials. The condition requiring the preparation of the management plan should include provisions for the review of the plan, and the auditing of its performance.

24. It follows from the above reasons, that it is my decision that a permit should be granted subject to conditions to be determined by the Tribunal after receiving further submission from the parties. In this regard I would encourage the parties to attempt to reach an agreed position in relation to conditions, such an approach would be of great assistance to the Tribunal.