Burns v Queanbeyan-Palerang Regional Council
[2022] NSWLEC 146
•8 December 2022
|
New South Wales |
Case Name: | Burns v Queanbeyan-Palerang Regional Council |
Medium Neutral Citation: | [2022] NSWLEC 146 |
Hearing Date(s): | 7 and 8 November 2022 |
Date of Orders: | 08 December 2022 |
Decision Date: | 8 December 2022 |
Jurisdiction: | Class 1 |
Before: | Duggan J |
Decision: | See paragraphs 184 to 186 |
Catchwords: | APPEAL – s 56A of Land and Environment Court Act 1979 (NSW) – refusal of development consent for recreational facility (outdoor) shooting range – whether Senior Commissioner erred in her determination regarding likelihood of use and impact of NSW Police using site for firearms training without consent – cl 107C State Environment Planning Policy (Infrastructure) 2007 (SEPP) – whether Senior Commissioner erred in findings relating to acoustic impacts on neighbouring properties – whether Senior Commissioner should have imposed conditions rather than refusing the DA – appeal dismissed – Appellant to pay costs |
Legislation Cited: | Environmental Planning and Assessment Act 1979 (NSW) |
Cases Cited: | Alexandria Landfill Pty Ltd v Transport for NSW (2020) 243 LGERA 102 |
Category: | Principal judgment |
Parties: | Fiona Ellen Burns (Appellant) |
Representation: | Counsel: |
File Number(s): | 2021/335517 |
Publication Restriction: | No |
Decision under appeal: | |
Court or Tribunal: | Land and Environment Court of NSW |
Jurisdiction: | Class 1 |
Citation: | [2021] NSWLEC 1544 |
Date of Decision: | 01 November 2021 |
Before: | Dixon SC |
File Number(s): | 2019/191768 |
Judgment
Nature of proceedings
In these proceedings, Fiona Ellen Burns (the Appellant) appeals against the decision of a Commissioner of this Court dismissing her appeal with respect to the refusal by Queanbeyan-Palerang Regional Council (the Council) of development application DA-2018.192 (DA). The DA sought approval for a “recreational facility (outdoor) shooting range” (shooting range) on a 5000-acre rural property at the northern end of Lake George being Lots 114 and 200 of DP 75008 and Lot 149 of DP 750013 also known as 2155 Collector Road, Currawang or “Samuels Run” (the Site).
The Senior Commissioner delivered reasons for her decision in: Burns v Queanbeyan-Palerang Regional Council [2021] NSWLEC 1544 (the Senior Commissioner’s Reasons). This appeal, pursuant to s 56A of the Land and Environment Court Act 1979 (NSW) (LEC Act), is limited to a question of law.
By its Summons seeking leave to appeal filed 25 November 2021, the Appellant contends that in dismissing its appeal the Senior Commissioner erred in law on ten separate grounds as follows:
The Use of the Site by the NSW Police
1. The Senior Commissioner erred in law in deciding that the impacts of any use of the land by the NSW Police pursuant to State Environmental Planning Policy (infrastructure) 2007 (“the SEPP”) was a relevant consideration in the assessment of the development application under sec 4.15(1)(b) of the Environmental Planning and Assessment Act 1979 (the Act). [44] [48] (Ground 1)
2. The Senior Commissioner erred in law in deciding that it was mandated by s 4.15(1)(b) of the Environmental Planning and Assessment Act 1979 (the Act) that she understand the likely impacts arising from any use of the land by NSW Police. [48] and [79] (Ground 2)
Particulars
(a) There was insufficient certainty as to what use might be made of the land by the NSW Police such that the use by NSW Police was not a “likely impact” arising from granting consent to the development application.
(b) It was not possible to assess the likely impacts of use of the land by the NSW Police as such use was not part of the development application.
(c) There was no real and sufficient connection between the development the subject of the development application and actual use of the site by NSW Police. [46]
3. The Senior Commissioner erred in law in considering as a material matter that there was no assurance from the applicant that the northern portion of the Applicant’s land would not be used by NSW Police “as in the past under emergency powers or the SEPP” (sic). [46] (Ground 3)
4. The Senior Commissioner erred in law in finding that it could be inferred from Mr Burn’s communication with the Mayor and the Councillors that it was likely the Police would use the site for firearms training.[47] (Ground 4)
5. The Senior Commissioner erred in law in finding that it was relevant that it was not established that the NSW Police needed to comply with the terms of any range approval or planning consent. [47] (Ground 5)
6. The Senior Commissioner erred in law in finding that approval of the development application was not in the “public interest” as referred to in s 4.15(1)(e) because the impacts of the anticipated use of the shooting range by the NSW Police could not be assessed. [79] (Ground 6)
Particulars
Pursuant to cl 107C of the SEPP, the impact of development for the purposes of a shooting range by or on behalf of the NSW Police on land on which there is a lawful shooting range does not fall for assessment under s 4.15.
The Acoustic Impact of the development on the Poulis Property
7. The Senior Commissioner erred in law in accepting Mr Darroch’s planning evidence that Ms Poulis had a dwelling entitlement on her land without giving any reasons when that was a principal contested issue. [54][76] (Ground 7)
8. The Senior Commissioner erred in law in taking into account an irrelevant matter, namely that there was an absence of acoustic assessment of the proposed development on a residence on neighbouring land owned by Ms Poulis, when there was no residence on that land [76], no dwelling entitlement to erect one there, no identified location for a residence on that land and no proposal to erect one there (Ground 8).
Night Time Testing and Temperature Inversions
9. The Senior Commissioner erred in law in considering an irrelevant matter, namely that the acoustic impact of temperature inversions at night time ought to have been considered in the acoustic assessment by Mr Harwood. (Ground 9)
Section 4.16(4)
10. The Senior Commissioner erred in law in not considering s 4.16(4) of the Act and that development consent could and ought to be granted for a specified part of the development namely ranges 1 - 6 for daytime time use. [74][77][78] (Ground 10)
The facts relating to the proceedings to which this appeal relates are set out in the Senior Commissioner’s Reasons at [1]-[22] and are adopted without repetition in this decision.
Principles applicable to determination of s 56A Appeals
An appeal from a decision of a Commissioner in Class 1 of the Court’s jurisdiction under s 56A of the LEC Act is confined to a question of law. In SDHA Pty Ltd v Waverley Council (2015) 209 LGERA 233, Pepper J summarised the applicable principles at [12] as follows:
12 Prior to examining the Commissioner’s decision, it is worth recalling the principles according to which this appeal falls to be determined:
(a) first, the appeal is only concerned with errors or questions of law and not questions of fact (Village McEvoy Pty Ltd v Council of City of Sydney (No 2) (2010) 176 LGERA 119 (Village McEvoy) at [25]; Brinara Pty Ltd v Gosford City Council (2010) 177 LGERA 296 at [28]-[30] and Hurstville City Council v Goreski [2011] NSWLEC 188 (Goreski) at [50]-[52]);
(b) second, an overly critical examination of the Commissioner’s decision for relevant error should not be employed (Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 (Brimbella) at 368; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291; Carstens v Pittwater Council (1999) 111 LGERA 1 at [76]; Bonim Stanmore Pty Ltd v Marrickville Council (2007) 156 LGERA 12 (Bonim Stanmore) at [6]-[7]; Village McEvoy at [28]-[31] and Goreski at [53]);
(c) third, the Commissioner must give adequate reasons for his decision refusing to approve the modifications. This means that he must refer to evidence that is important or critical to the determination of the principal or central issues in the case (Segal v Waverley Council (2005) 64 NSWLR 177 (Segal) at [44]-[45], [62], [92] and [99], and Village McEvoy at [26], and the authorities referred to thereat). This does not mean, however, that every argument advanced by a party in support of these issues must be considered by the Commissioner or reasons given for accepting or rejecting it (Segal at [93]). A commissioner’s duty to give reasons is confined to the essential grounds upon which the decision rests and does not encompass a requirement to deal with a submission or contention that is otherwise peripheral to the decision arrived at, provided that the Commissioner’s reasoning process is articulated and relevant to the findings made (Segal at [93]);
(d) fourth, and as corollary to the principle above, if the decision of the Commissioner reveals an error on a question of law, the decision is only vitiated if the error is material to the decision made (Design Power Associates Pty Ltd v Willoughby City Council (2005) 148 LGERA 233 at [34]; Goreski at [53]-[56], Sydney Water Corporation v Caruso and Others (2009) 170 LGERA 298 at [133]-[136] and [91], and Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc and Another (2014) 86 NSWLR 527; 200 LGERA 375 (Bulga) at [194]); and
(e) fifth, an error will not be material to the decision as made if the matter complained of on appeal was a matter that was not the subject of submissions made to the Commissioner below in a way that called for a reasoned consideration of that matter (Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385-386; (1983) 53 LGRA 325 at 332 and Davis v Gosford City Council [2013] NSWLEC 49 at [75]). A party is bound by the way it conducted its case at the hearing (Bankstown City Council v El Dana [2009] NSWLEC 68 at [47]-[55] and Davis v Gosford City Council at [75]-[77]).
Issues for determination
Grounds 1-6 of the Appeal relate to the determination by the Senior Commissioner that in the determination of the DA the potential for the NSW Police to use the Site for firearms training without consent pursuant to the provision of cl 107C of the State Environmental Planning Policy (Infrastructure) 2007 (SEPP) was a relevant consideration. Grounds 1 and 2 deal directly with that determination and were addressed together by the parties. Grounds 3-6 will turn in part on the determination of Grounds 1 and 2 as they relate to the relevance of certain considerations in the assessment of the issue relating to the cl 107C use issue. These grounds will be addressed separately.
Grounds 7-9 deal with the Senior Commissioner’s findings relating to acoustic impacts. Grounds 7 and 8 deal specifically with the acoustic impact on a neighbouring property. These grounds were addressed together by the parties, and I will address these issues together. Ground 9 relates to a specific aspect of the acoustic evidence, and I will address this issue separately.
Finally, Ground 10 raises the issue as to whether the Senior Commissioner should have imposed conditions, rather than refusing the DA.
The Appellant conceded that as the Senior Commissioner had determined that both the NSW Police issue under cl 107C of the SEPP and the acoustic impacts warranted refusal of the DA, she would need to succeed on this Appeal in connection with both issues in order that the Appellant would be entitled to have the Senior Commissioner’s refusal of the DA set aside and the DA remitted to her for further determination. If only one of the asserted errors was upheld the Senior Commissioner’s decision to refuse the DA would not be vitiated – as the separate and independent reason for refusal would still remain and operate to warrant refuse of the DA.
Ground 1 – The Senior Commissioner erred in law in deciding that the impacts of any use of the Site by the NSW Police pursuant to the SEPP was a relevant consideration in the assessment of the development application under s 4.15(1)(b) of the EP&A Act
Ground 2 – The Senior Commissioner erred in law in deciding that it was mandated by s 4.15(1)(b) of the EP&A Act that she understand the likely impacts arising from any use of the Site by NSW Police
Legislative provisions
Grounds 1 and 2 raise for consideration application of s 4.15(1)(b) of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) which relevantly provides:
4.15 Evaluation
(1) Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application—
…
(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,
Relevantly, these grounds challenge whether the provisions of cl 107C of the SEPP raise for consideration in the determination of the DA a mandatory relevant consideration of the impacts of a use undertaken pursuant to the clause of the SEPP. The terms of cl 107C are:
107C Development carried out by NSW Police Force
Development may be carried out by or on behalf of the NSW Police Force without consent for the purposes of a shooting range on land on which there is a lawful shooting range.
The Senior Commissioner made a finding that relevant for the purposes of her determination of the appeal was the “likely use of the land by the Police for firearms training”. She ultimately found at [48] and [79] of the Senior Commissioner’s Reasons that:
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.
…
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.
The reasons for her finding are set out at [44]-[49] of the Senior Commissioner’s Reasons.
Appellant’s submissions
The use of the shooting range by NSW Police was not the subject of the DA, nor could it be as a person cannot seek consent for a use that is permissible without consent. The Senior Commissioner accepted the DA was for consent for a “recreation use” and was permissible in the zone with development consent.
In determining that the potential for use by the NSW Police pursuant to cl 107C of the SEPP was a relevant consideration in the determination of the DA the Senior Commissioner asked herself the wrong question – she asked herself whether there would be any likely impact in respect of any NSW Police use of the shooting range instead of asking whether on the evidence the use would be likely. If it was not likely, then the impacts could not be likely either. It was only the likely impacts flowing from the approval of the development the subject of the application that fell to be considered under s 4.15(1)(b).
Before deciding that any use of the Site by the NSW Police was a relevant consideration, the Senior Commissioner needed first to be satisfied that the use was one that was likely and then she had to consider only those impacts as were “flowing” from the development the subject of the DA as found by Basten JA in Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 81 NSWLR 638 (Hoxton Park)) at [44]:
The impact must be one flowing from the development the subject of the development application: the question is how remote a “likely” impact must be, in order to disqualify it from the scope of consideration.
For an impact to become a relevant consideration under s 4.15(1)(b) the Senior Commissioner had to find “a real and sufficient link with the proposed development” and the identified impact for it to flow from the development the subject of the DA.
The Senior Commissioner’s finding at [47] that there was a sufficient “nexus” between the proposed development and any NSW Police use given the reasoning in Hoxton Park (and more recently Mullaley Gas and Pipeline Accord Inc v Santos NSW (Eastern) Pty Ltd (2021) 252 LGERA 221 (Mullaley)) was not open to her and was legally unreasonable. No such assessment was mandated as such use was not part of the DA and no on-site or off-site impacts “flowed” from the grant of consent.
Any NSW Police use of the Site was exempt from development consent and so is always beyond the reach of s 4.15(1)(b). The use of the shooting range by the NSW Police was not identifiable or certain. Whether there would ever be any use by NSW Police was simply not known. Without knowing how the NSW Police would use the shooting range it was not possible to assess the impact of the use. There was no real and sufficient link to the development of its use by NSW Police. Use by the NSW Police was therefore as remote as could possibly be contemplated.
Accordingly, the use of the Site by the NSW Police using the shooting range under the SEPP was so uncertain as to be remote and not likely. The finding otherwise was legally unreasonable. The acoustic impacts of such uncertain use were and remain impossible to ascertain, as the nature of the use that would generate any acoustic impacts were uncertain. As such they cannot be “likely impacts of the development”.
The Senior Commissioner said the need to assess the “likely impacts” of NSW Police use was “underlined” by Mr Szaak’s evidence. There was no requirement upon the Court to assess an impact which was not a “likely impact.”
Furthermore, the use of the shooting range by the NSW Police did not require development consent. It was therefore not open to the Senior Commissioner to dismiss the Appellant’s DA based on an inability to assess the impacts of that use.
The errors in Grounds 1 and 2 of the appeal vitiate the Senior Commissioner’s decision. Had she not regarded the assessment of the impacts of the use of the development by the NSW Police as relevant and important, she may have conditionally approved the DA.
A decision would be vitiated by legal unreasonableness where it lacks an evident and intelligible justification: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li) at [76] and the authorities cited in Mullaley at [113] and [117]. The justification for a decision must be considered in the context of the EP&A Act.
The Senior Commissioner felt she was bound to consider the impacts arising from the use of the shooting range by NSW Police. This was a legal error on her part. Preston CJ in Uniting Church in Australia Property Trust (NSW) v Parramatta City Council [2018] NSWLEC 158 at [127] said that the matters the Commissioner was bound to consider in exercising a statutory power are to be determined by construction of the statute conferring the power, namely the EP&A Act:
127 The Court would not find that the Commissioner was bound to consider a particular matter unless the EPA Act, expressly or by implication from the subject matter, scope and purpose of the EPA Act, required the Commissioner to consider that matter, or matters of that kind, as a condition of exercising the power to determine the (concept development) application: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40, 55-56; [1986] HCA 40.
He then said at [128]:
128 The matters that are relevant to the Commissioner’s function of determining the concept development application are to be identified primarily, perhaps even entirely, by reference to the EPA Act, rather than the particular facts of the case the Commissioner was called upon to consider: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [73]. The ground of failure to consider a relevant matter is concerned essentially with whether the Commissioner has properly applied the law, not with the process of making the particular findings of fact upon which the Commissioner acted: Minister for Immigration and Multicultural Affairs v Yusuf at [74].
The express provision in the EP&A Act at s 4.15(1)(b) of relevance here was that the Senior Commissioner was bound to consider the “likely impacts” of the development the subject of the DA. In order for an impact to be likely it must be more than a mere chance or possibility. In this case, the Senior Commissioner’s determination that there was a likely impact was legally unreasonable as:
(1)Whether the Site would be used by the NSW Police and how, cannot rise above speculation;
(2)Whether, and if so, how the NSW Police might ever use the shooting range could only be decided by the Commissioner of Police;
(3)The potential by the NSW Police to use the Site was permissible without development consent; and
(4)There were a number of approved shooting ranges in NSW of which the Site, if approved, would be only one or many.
It was legally unreasonable to reject the DA based upon the inability to assess the impact of use of the approved development by the NSW Police. That impact was not capable of assessment.
In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (Yusuf)) at [73] and [74] the Court per McHugh, Gummow and Hayne JJ said:
73 … “The duty and the jurisdiction of the Courts are expressed in the memorable words of Marshall CJ in Marbury v Madison: ‘It is, emphatically, the province and duty of the judicial department to say what the law is’…”
74 … It may be, for example that a particular statute makes the matters which are advanced in the course of a process of decision-making relevant considerations for the decision-maker. What is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law. They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts.
For those reasons, the Senior Commissioner erred at law by determining that the use of the NSW Police was a relevant consideration pursuant to s 4.15 of the EP&A Act.
Council’s submissions
The Council’s primary submission was that the error asserted was one of fact and not one of law and, therefore, even if in error such a factual finding was unable to be the subject of an appeal pursuant to s 56A of the LEC Act.
Grounds 1 to 5 each relate, in different ways, to the Senior Commissioner’s finding of fact at [47] of the Senior Commissioner’s Reasons. The Senior Commissioner found 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.”
As summarised at [5] of the Senior Commissioner’s Reasons, that finding of fact was necessary to determine whether the likely impacts from the potential future NSW Police use of the Site was a relevant consideration pursuant to s 4.15(1)(b).
The Senior Commissioner provides adequate reasons to demonstrate her decision-making process. The Senior Commissioner refers, at [37], to relevant authority. She then assesses the evidence and the submissions to arrive at her conclusion.
If that finding of fact is not able to be set aside as “legally unreasonable” then it simply cannot be suggested that the need to consider the use by the NSW Police was an irrelevant consideration. To the contrary, and as occurred in Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 (Palm Lake), having found the relevant nexus the Senior Commissioner would have erred if she had not taken (or at least attempted to take) the likely effects of that use into account.
Ground 1 suggests that the Senior Commissioner erred by deciding that the impacts of use by the NSW Police was a relevant consideration. Presumably that is a suggestion that the Senior Commissioner took into account an irrelevant consideration. As already submitted above, having found a sufficient nexus, the likely use of the Site by NSW Police was a relevant consideration.
At [15_Ref120871361] above it is suggested by the Appellant that the Senior Commissioner asked herself the wrong question. That is, “she asked herself whether there would be any likely impact in respect of any NSW Police use of the shooting range instead of asking whether on the evidence the use would be likely”. There are a number of difficulties with that submission. First, there is unlikely to be an error in relation to a question of law when the Senior Commissioner addressed the matter in the way invited by the Appellant.
Further, and in any event, the difficulty faced by the Appellant in this matter was that, if the potential use by the NSW Police was a relevant consideration, then the Court was not in a position to carry out the necessary s 4.15(1)(b) analysis as the evidence was inadequate.
Ground 2 then suggests that the Commissioner erred in law in deciding that it was mandated by s 4.15(1)(b) that she understand the likely impacts arising from any use of the Site by the NSW Police. Again, presumably, that is an allegation of taking into account an irrelevant consideration. The submissions made above in relation to Ground 1 apply.
The ground is particularised. Particular (a) suggests there was “insufficient certainty” as to what use might be made of the Site. That is a complaint about the Senior Commissioner’s fact finding.
Particular (b) then suggests it was not possible to assess the likely impacts of use of the Site by the NSW Police as such use was not part of the DA. As was noted by Preston CJ in Palm Lake at [18] “…the fact that works, which are likely to impact on the environment, are not the subject of the development application is not dispositive of the question of whether the likely impacts of the works need to be considered in the determination of the development application…”.
Particular (c) then suggests there was no real and sufficient connection between the development the subject of the DA and the actual use of the Site by the NSW Police. That language “real and sufficient connection” is similar to the language extracted by the Senior Commissioner in the relevant authorities at [37]. That is, looking for a “real and sufficient link”. The Appellant accepted the authorities. Again, the particular merely identifies the concern with the finding of fact.
In relation to this ground, the Appellant merely contends that the finding of sufficient nexus “was not open to her and was legally unreasonable” and “the finding otherwise was legally unreasonable”.
A decision will be vitiated by legal unreasonableness only where it “lacks an evident and intelligible justification”: Li at [76] (see also authorities cited in Mullaley at [113] and [117]). The justification for a decision must be considered in the context of the EP&A Act, including its scope and purpose.
There was sufficient evidence before the Senior Commissioner to provide a basis for her findings that the NSW Police were likely to use the Site and that the impacts of that use were a relevant consideration that must be taken into account under s 4.15(1)(b). This was not, therefore, a situation where a finding of fact was made on no evidence. The Senior Commissioner’s decision was reasonable, available and justified on the evidence. Whether or not the Senior Commissioner’s factual finding was correct does not amount to an error of law and is not reviewable in this appeal.
Further, as was stated in Council of the City of Sydney v Vision Land Glebe Pty Ltd (2019) 243 LGERA 25 (Vision), there is no error of law available in a s 56A appeal that a finding of fact is legally unreasonable.
For each of those reasons, Grounds 1 and 2 do not disclose an error of law and must be dismissed.
Finding on Grounds 1 and 2
In determining the DA the Senior Commissioner was required to undertake a determination in accordance with the provisions of s 4.15 of the EP&A Act. In undertaking such a determination, the Senior Commissioner was required to determine the likely impacts of the DA having regard to the provisions of s 4.15(1)(b). These provisions are in terms:
4.15 Evaluation
(1) Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application—
…
(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,
As was explained by Preston CJ in stated in Palm Lake at [6]-[8]:
6 The phrase “the likely impacts of that development” embraces not only site specific impacts, being impacts of the proposed development on the development site, but also off-site impacts. Off-site impacts can be 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”: Bell v Minister for Urban Affairs and Planning (1997) 95 LGERA 86 at 101 and Environmental Defence Society Inc v South Pacific Aluminium (No 4) [1981] 1 NZLR 530 at 534-535.
7 The critical factor is that there is a connection between the likely impact and the proposed development. This is because the category of relevant matters required to be considered is “the likely impacts of that development”. As Basten JA held in Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 81 NSWLR 638; [2011] NSWCA 349 at [44]:
“The impact must be one flowing from the development the subject of the development application: the question is how remote a ‘likely’ impact must be, in order to disqualify it from the scope of the consideration.”
8 Increasing remoteness in the chain of likely consequences will decrease the significance of an impact. This flows from both the concept of “impact” and the concept of “likely”. As Basten JA held in Hoxton Park Residents Action Group Inc v Liverpool City Council at [46]:
“Some such limitation must follow from the concept of ‘impact’: as remoteness from the development increases, impact is likely to decrease, until it no longer has practical significance in terms of approving or refusing to approve the application. Further, the likelihood of a particular impact may diminish with remoteness. ‘Likely’ in this context has the meaning of a ‘real chance or possibility’ rather than more probable than not…”
In this case, the question that the Senior Commissioner was asked to determine was whether the capacity for use of the DA (if approved) by the NSW Police by operation of the provisions of cl 107C of the SEPP was a likely impact such that it required assessment pursuant to s 4.15 in the determination of the subject DA. As the Senior Commissioner noted at [5] of her judgment this issue was one that was squarely raised before her for determination. In this appeal, it is not contended that the issue of the relevance of the potential use by the NSW Police pursuant to cl 107C was not a matter that was a principal issue before her for determination.
With that issue before her the Senior Commissioner made the findings at [44]-[49] of the Senior Commissioner’s Reasons. The references preceding her findings are a recitation of the facts, evidence and submissions before her and are not relevantly findings made by her on the issue in dispute.
In her findings the Senior Commissioner made two fundamental findings at [47] and [48] that:
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.
The first finding in [47] was a finding of fact that the use of the Site by the NSW Police for firearms training has a real and sufficient link to the approval of the DA. Such is understood from the Senior Commissioner’s reference to the “sufficient nexus” and the reference to the decision in Hoxton Park. The second finding of fact in the same paragraph is that the impacts flowing from such use were “likely” in the same sense that term is used in Hoxton Park, that is a “real chance or possibility”. Again, this finding is apparent from the words used and the reference to Hoxton Park. To read the paragraph otherwise is to fail to give the Senior Commissioner’s inclusion of the relevant principles identified by her references to Hoxton Park and the submissions on that case by the parties in [37] and [42] of her judgment. Once the Senior Commissioner determined those findings of fact, she was obliged to consider the impacts of the potential use by the NSW Police as a relevant matter under s 4.15(1)(b).
The Senior Commissioner then goes on to find at [48] the further fact that there is insufficient evidence before her to enable her to make the necessary assessment of the impact of such use by the NSW Police.
The Appellant’s complaint that the Senior Commissioner asked herself the wrong question in that: she asked herself whether there would be any likely impact in respect of any NSW Police use of the shooting range instead of asking whether on the evidence the use would be likely is not borne out by the reasoning of the Senior Commissioner at [47]. The question posed by her is precisely the question that the Appellant identified as the correct question, namely whether on the evidence the use was likely. She did so by considering the evidence of Mr Burns and Mr Szaak as identified in terms in [47].
Accordingly, I do not accept the Appellant’s characterisation of the task undertaken by the Senior Commissioner. She posed the correct question and in answering that question made a determination based upon the facts as she found them as they related to the subject matter in the evidence before her.
The Appellant’s complaint in both Grounds 1 and 2 are in essence a dissatisfaction with the factual findings of the Senior Commissioner.
The finding of the Senior Commissioner of matters of fact are not matters that are reviewable in an appeal limited to questions of law as provided for in s 56A of the LEC Act. As the decision in Vision observed at [84]-[86]:
84 At the outset, a primary finding of fact by a Commissioner in determining an appeal in Class 1 of the Court’s jurisdiction is not reviewable on an appeal against the Commissioner’s decision under s 56A of the Court Act, which is limited to questions of law, on the ground that it is “irrational, illogical and manifestly unreasonable”. The question whether any evidence of a particular fact ought to be accepted in whole or part, or ought to be accepted as sufficient to establish the fact, is itself a question of fact and not a question of law: McPhee v S Bennett Ltd (1935) 52 WN (NSW) 8 at 9. In Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-156, Glass JA, with whom Samuels JA agreed, held when considering an appeal against a decision of the Workers Compensation Commission limited to a point of law:
“To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways. Upon proof that the finding of a jury is vitiated in this way, it will be set aside because it is wrong in fact. Since the Act does not allow this Court to correct errors of fact, any argument that the finding of a Workers' Compensation Commission judge is vitiated in the same way discloses no error of law and will not constitute a valid ground of appeal. It is also pointless to submit that the reasoning by which the court arrived at a finding of fact was demonstrably unsound as this would not amount to an error of law: R v District Court of the Metropolitan District Holden at Sydney; Ex parte White (1966) 116 CLR 644 at 654.”
85 In Randwick Municipal Council v Manousaki (1988) 66 LGRA 330 at 333-334, Clarke JA, with whom Hope and McHugh JJA agreed, applied this reasoning to an appeal under s 56A of the Court Act, holding that:
“On the other hand perverse or unreasonable findings of fact do not constitute errors of law: Clark v Flanagan (1934) 52 CLR 416; McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8 at 9; Poricanin v Australian Consolidated Industries Ltd [1979] 2 NSWLR 419 at 426; Azzopardi v Tasman VEB Industries Ltd (1985) 4 NSWLR 139 at 155; Mahoney v Industrial Registrar of New South Wales (1986) 8 NSWLR 1 at 3 and 5. Even if the reasoning whereby a court or tribunal reached its conclusion of fact were demonstrably unsound this would not amount to an error of law: R v District Court; Ex parte White (1966) 116 CLR 644 at 654. It is also clear that questions of the weight, or relative significance, to be accorded to particular facts falls for consideration once it has been determined that different conclusions are reasonably open and are themselves questions of fact: Mahoney v Industrial Registrar of New South Wales (1986) 8 NSWLR I at 4 per Samuels JA.”
86 Accordingly, even if the Senior Commissioner’s impugned findings of fact could be seen to be “irrational, illogical and manifestly unreasonable”, no error on a question of law would be involved.
For the reasons outlined above, I find that the Senior Commissioner did not ask herself the wrong question. I also find that the findings of the Senior Commissioner that the potential use by the NSW Police of the Site if the DA was approved pursuant to cl 107C of the SEPP was a relevant consideration pursuant to s 4.15 and the capacity on the evidence to enable such an assessment to be made were findings of fact and, accordingly, are not open to challenge. Grounds 1 and 2 must therefore be dismissed.
Ground 3 – The Senior Commissioner erred in law in considering as a material matter that there was no assurance from the Appellant that the northern portion of the Appellant’s land would not be used by NSW Police “as in the past under emergency powers or the SEPP”
This ground is said to relate to the Senior Commissioner’s finding at [46] which provided:
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.
Appellant’s submissions
The Appellant relies upon the arguments raised under Grounds 1 and 2 in respect of any use of the Site by NSW Police pursuant to the SEPP.
With respect to the issue of the use of the northern part of the Site, after explaining the operation of the SEPP and specifically the purpose of cl 107C, Senior Counsel squarely addressed the extent of the development consent sought for the Site. He said at Tcpt, 3 March 2021, p 8(8-22):
TOMASETTI: The final point I want to make is that any development consent that may be granted in this matter would not be a development consent that applied to the whole of the land, excluding the trig station on the Crown road.
It would by its nature be a consent for the uses that are sought as specified in the plans and relevant supporting documentation, and in the approval process under the Firearms Act and Regulations it would be a use which is obviously constrained to those parts of the land to the south. What I call to the south generally because people have been concerned, the public have been concerned about what happened on a prior occasion…
The use will be confined essentially to the southern end of the land and will be confined to the ranges, and to the nine firing positions and to the templates.
The Senior Commissioner then asked the following question with the exchange also recorded at Tcpt, 3 March 2021, p 8(30-40):
SENIOR COMMISSIONER: In respect of the northern area of the land that we looked at, at the view and there was clearly development being carried out and you tell me it’s under development consents, that land is owned by your client and in those development consents your client is the applicant and pursuing those, is that right,
TOMASETTI: That’s right, and there is a current development consent which is under construction. But I haven’t bothered you with that detail. It has nothing to do with this facility.
SENIOR COMMISSIONER: Perhaps that’s the answer that I needed to hear.
In addition to Senior Counsel’s explanation of the DA being limited to the southern portion of the Site, Mr Szaak on behalf of the NSW Police had addressed any possible future Police use in his Statement at pars 47 and 48 thereof. Mr Szaak’s considered sworn evidence was:
NSW Police would not regard any planning permission as enabling them to use the whole of the land for shooting exercises. The only shooting authorised would be on ranges 1-6 in accordance with the conditions of planning permission and range Approval. I am aware that some local residents have concerns that shooting activities may occur by NSW Police on the northern part of the land away from the approved ranges. NSW Police work with the local community and their use of the Samuel’s Run ranges would be confined to the ranges as approved.
While as a matter of fact the Senior Commissioner had an assurance from the Appellant that the development was not on the northern portion of the Appellant’s land and was not part of the proposed physical development, the Senior Commissioner also had confirmation via Mr Szaak that the NSW Police had a practice to only “stand up” ranges on land where a shooting range was approved. The use of the northern portion of the Site under the exercise of emergency powers was the only example known to Mr Szaak where such powers had been exercised. In these circumstances any assurances were not relevant.
The use of the Site by the Commissioner of Police exercising emergency powers ought not ever have been considered by the Senior Commissioner in the application before her. The grant of development consent was not shown to affect in any way the Police Commissioner’s exercise of ill-defined emergency powers.
The Senior Commissioner erred in taking into account an irrelevant matter namely that there was no assurance from the Appellant that the northern portion of her land would not be used by the NSW Police “as in the past under emergency powers or the SEPP” [46].
The error vitiated the Senior Commissioner’s decision not to grant consent to the proposal.
Council’s submissions
By Ground 3 it is suggested that the Senior Commissioner erred in law in considering, as a material matter, that there was no assurance from the Appellant that the northern portion of the Appellant’s lands would not be used by NSW Police. Materiality, or weight, is a matter for the Senior Commissioner. Unless there is some suggestion of irrationality or illogicality the Senior Commissioner’s comments as part of her reasoning process is unassailable.
By reference to the Appellant’s submissions, it appears that Ground 3 is intimately connected with Grounds 1 and 2 and it is apparent that the ground purports to be asserted as a consideration of an irrelevant consideration: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (Peko-Wallsend). In order to determine whether any matter is relevant, or irrelevant, it is necessary to consider the statutory framework within which the requirement for consideration arises. No such analysis has been carried out by the Appellant.
The matters were relevant in that they related to and informed the determination of the relevant consideration as that addressed in Grounds 1 and 2. That is, was there a likely impact from future Police use that needed to be considered? For the reasons already submitted above, that inquiry was a relevant one.
Even if a challenge were available on a Peko-Wallsend approach to the facts that inform the relevant consideration, no error arises. In relation to Ground 3, the Appellant asserted that the NSW Police, if they used the Site in the future under the SEPP, would only use the approved shooting range and the south part of the Site. The Appellant stated that the northern part of the Site was the subject of other development that was being carried out which would prevent that area from being used again by the NSW Police in a similar fashion to their use in 2017. The Senior Commissioner did not accept that evidence as the development to the north was on only a small portion of the Site and would not prevent use by the NSW Police. The Appellant also refused to accept a condition constraining the definition of the shooting range to include the southern part of the Site and approved ranges only. This evidence was relevant to the Senior Commissioner’s determination of whether it was likely that the Site would be used by the NSW Police, and her findings were entirely open to her on the evidence.
I note that, the Council, in oral submissions, conceded that the focus on the northern part of the Site was because an assessment of the use of Ranges 1-6 (situated primarily on the southern part of the Site) would include any anticipated NSW Police use under cl 107C and no separate analysis was required. The northern part of the Site, being part of the approved shooting range, however, had no assessment undertaken as it was not proposed to be used for shooting by the DA. However, by operation of cl 107C the NSW Police are not limited to the formal ranges and may use the land for training as they had in the past. Therefore, an analysis of the impacts of the north was required.
Finding on Ground 3
For the reasons I have found in connection with Grounds 1 and 2 the Senior Commissioner, having found that the use of the Site by NSW Police pursuant to cl 107C of the SEPP had a real and sufficient link to the proposed development and that impacts from such use were likely, was obliged by s 4.15(1)(b) to consider as a mandatory relevant consideration the impacts of that use. To the extent that Ground 3 relies upon a general assertion that the assessment of the impacts of the NSW Police use was irrelevant must, as a consequence, fail.
If it is asserted that in the determination of that otherwise relevant matter the Senior Commissioner took into account an irrelevant matter namely that: “there was no assurance from the [Appellant] that the northern portion of her land would not be used by the NSW Police as in the past under emergency powers or the SEPP”, such contention must also fail. The Senior Commissioner in referencing the “assurance” was doing so in the broader context of the identification of those parts of the Site to which the DA related to which the NSW Police would be able to use under cl 107C. The reference to an “assurance” in that context was no more than the Senior Commissioner’s recitation of the fact as found by her that there was no physical or other barrier that would preclude the use of the northern part of the Site by the NSW Police. Such matters as to the parts of the Site able to be used by the NSW Police were clearly matters relevant to the Senior Commissioner’s assessment of the relevant issue under s 4.15(1)(b) as she observed at [46] that the use of the northern part of the Site in the past by the NSW Police “had generated significant noise complaints and amenity impacts for local residents” therefore identifying a potential impact that required assessment.
Further, as is illustrated by the Appellant’s canvassing of the evidence available to the Senior Commissioner, this ground is a complaint relating to the consideration by the Senior Commissioner of the evidence. This consideration formed part of her decision-making process leading up to her finding of fact that there was insufficient evidence to enable an assessment of the relevant impact to be undertaken. As this ground is identified in the Appeal, if the issue of the NSW Police use of the Site was relevant, there is no other error of law relating to the decision-making process identified that would permit a finding that the Senior Commissioner erred in law in taking into account the scope of the approval, if given, and therefore the parts of the Site that the NSW Police could use pursuant to cl 107C of the SEPP.
For each of those reasons, Ground 3 does not disclose a relevant error of law and must be dismissed.
Ground 4 – The Senior Commissioner erred in law in finding that it could be inferred from Mr Burn’s communication with the Mayor and the Councillors that it was likely the Police would use the Site for firearms training
This ground is said to relate to the Senior Commissioner’s finding at [47] as recited above at [51_Ref120872685] above.
Appellant’s submissions
The Senior Commissioner took into account an irrelevant consideration namely a communication between Mr Burns and the Mayor and the Councillors that Mr Burns believed it was likely the NSW Police would use the Site for firearms training: at [47]. This she said led her to conclude that the NSW Police would use the shooting range if the Court approved it.
Whilst the rules of evidence do not apply in proceedings of this type, it is obvious that Mr Burns had no ability to predict or make any decision for the NSW Police Commissioner. He could not say what the Commissioner would do if the shooting range was approved even if it was the Appellant’s wish or willingness that the Commissioner do so. Mr Burns had no role to play in respect of any use of the Site by NSW Police for it could not be inferred from a communication between Mr Burns and the Council that the NSW Police would likely use the development. He was not an agent for the NSW Police able or authorised to make admissions on its behalf. That inference could only be drawn from admissible evidence given by the principal, namely NSW Police. Mr Burns was not an agent of the NSW Police. He could not assert what use the NSW Police would make of the shooting range if it were approved. He was not the Commissioner of Police’s authorised agent.
In any event, the Samuels Run brochure was dated 16 April 2019. This was a date prior to the final amendment of the DA before the Court. The brochure was in respect of the whole of Samuels Run whereas the DA proposed was on the southern portion only of the Appellant’s land. As recorded by the planner for the Appellant, Keith Allen, the current application is in a different location to what was originally proposed.
The error in asking the wrong question and in giving weight to an irrelevant consideration vitiated the Senior Commissioner’s decision not to grant consent to the proposal.
Council’s submissions
For Ground 4 the Council repeats the submissions made in relation to Ground 3. The ground, as expanded by the Appellant, appears to be an impermissible challenge to the Senior Commissioner’s fact finding and reasoning process in relation to a relevant consideration.
The evidence of Mr Burns’ communication with the Mayor and Councillors in relation to the first DA was entirely relevant to the issue of whether the NSW Police would use the Site in the future and the likely impacts of that future use. That evidence demonstrated an intention that the DA facilitate use of the proposed shooting range by the NSW Police, and corroborated other evidence of that intention. The Senior Commissioner did not err in taking that evidence into account.
Finding on Ground 4
For the same reasons that I addressed in connection with Grounds 1 and 2, the Senior Commissioner’s finding that the use by NSW Police was likely was a finding of fact which cannot indicate an error of law reviewable in an appeal pursuant to s 56A of the LEC Act.
Further, to the extent that the Appellant complains about the use the Senior Commissioner made of evidence available to her or the “weight” she attributed to that evidence, such complaints are no more than an attempt to cavil with the factual finding made by the Senior Commissioner and do not identify an otherwise available ground of appeal as an error of law. The evidence of Mr Burns’ communication was admitted in evidence. The communication was relied upon by the Council. The Appellant made submissions that the communication was not probative of the intention. The Senior Commissioner made her assessment of the evidence and submissions. Her conclusion is a finding of fact and unassailable on the basis of this ground as formulated by the Appellant.
For the reasons above, Ground 4 must also be dismissed.
Ground 5 – The Senior Commissioner erred in law in finding that it was relevant that it was not established that the NSW Police needed to comply with the terms of any range approval or planning consent
This ground is also said to relate to the Senior Commissioner’s finding at [47].
Appellant’s submissions
The Senior Commissioner gave weight to another irrelevant consideration – that it was not established that the NSW Police needed to comply with the terms of any range approval or planning consent: at [47].
For the reasons given under Grounds 1 and 2 the Senior Commissioner erred in law in asking herself this question and considering this finding relevant.
Mr Szaak was cross-examined and answered questions as to whether the NSW Police would need to comply with conditions on the planning permission. He candidly said that he was not completely familiar with the planning approval process. His description of “standing up” range made it clear in any event that he believed the Police Commissioner does have regard to the conditions of approval of any planning consent but as the Police Commissioner does not need consent to use a lawful shooting range the question whilst not free from difficulty simply does not arise.
In answer to questions about the calibre of weapons that could be used on a range he said:
A. So, what I’m saying is in usual circumstances is that the range approval exists and on that approval would stipulate the calibres that can be used.
Q. Yes.
A. In circumstances where a Police Command…would like to use the local range allowing the Police to conduct their mandatory shooting requirements, they would first approach the range approval holder and then would seek to see whether they could use that range with their permission and if that permission is granted, they would then seek to see whether that range could be used given the calibre that was proposed.
Q. Yes. And, if something [sic] gone through all those steps, you get to the point where you can’t use a .45 calibre weapon, because it would be inconsistent with the consent?
A. Our part in that would be it would be inconsistent with the safety.
The Senior Commissioner had first to determine if use of the shooting range by the NSW Police flowed from or was inextricably bound up in the development consent. It was not, as the use was permissible without consent under the SEPP and the use always would only flow from a separate and independent decision of the Commissioner of Police. The Appellant relies upon the submissions addressing Grounds 1 and 2.
The error in giving weight to an irrelevant consideration vitiated the Senior Commissioner’s decision not to grant consent to the proposal.
Council’s submissions
Ground 5 suffers from the same criticisms as levelled above in relation to Grounds 3 and 4.
The evidence of Mr Szaak was ambivalent as to whether the NSW Police would have to comply with the terms of any range approval or planning consent. This was an entirely relevant matter, as if the NSW Police did have to comply with the conditions of consent, then the Council’s proposed conditions would have operated to constrain the NSW Police use of the Site. This would have gone a significant way towards addressing the Court’s concern that the NSW Police use might cause similar impacts to those experienced by the community in 2017. Since the Court could not have any confidence that the NSW Police would abide by the range approval and planning consent, it needed to have evidence of the likely impacts of their contemplated use so as to assess if those impacts were appropriate and acceptable.
Finding on Ground 5
For the same reasons that I addressed in connection with Grounds 1 and 2, the Senior Commissioner’s finding that the use was likely was a finding of fact which cannot indicate an error of law reviewable in an appeal pursuant to s 56A of the LEC Act.
The evidence of Mr Szaak to which this ground relates was evidence adduced by the Appellant. The evidence must have been considered relevant by the Appellant else Mr Szaak’s evidence would not have been adduced. To the extent that such evidence was elicited in cross-examination this does not alter the position. Generally, an appellant who calls a witness to give evidence cannot then complain that the decision-maker took into account irrelevant evidence. In this case, the evidence once admitted formed part of the material the Senior Commissioner was entitled to consider in reaching her conclusion. The weight or significance of that evidence in the process of arriving at a decision is a matter entirely for the Senior Commissioner.
Further, as was the case with Ground 4, to the extent that the Appellant complains about the use the Senior Commissioner made of evidence available to her or the “weight” she attributed to that evidence such complaints are no more than an attempt to cavil with the factual finding made by the Senior Commissioner and do not identify an otherwise available ground of appeal as an error of law.
For the reasons above, Ground 5 must also be dismissed.
Ground 6 – The Senior Commissioner erred in law in finding that approval of the development application was not in the “public interest” as referred to in s 4.15(1)(e) because the impacts of the anticipated use of the shooting range by the NSW Police could not be assessed
At [79] of her reasons the Senior Commissioner identified her conclusions and stated (emphasis added):
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.
Ground 6 of the Appeal relates to this statement by the Senior Commissioner.
Appellant’s submissions
The Senior Commissioner then considered the “public interest” under s 4.15(1)(e).
She found at [79] that consent to the application would not be in the public interest because the “impacts” of the anticipated use of the shooting range by the NSW Police could not be assessed. Whilst the meaning of the phrase “public interest” in s 4.15(1) is wide, it was a misplaced application of her concern. The “impacts” of the anticipated use of the shooting range by the NSW Police could not be assessed because it was not known if the shooting range would ever be used by the NSW Police and if so, how it would be used. This did not mean that it was in the public interest not to approve that use as the use did not require development consent.
The Appellant has had her DA refused because the Court could not assess the “impacts” of the anticipated use of the shooting range by the NSW Police. That outcome is unreasonable where that use is permissible without consent once her proposal is determined to be a reasonable one. She should not be denied development consent to a reasonable development because a use she cannot and does not propose, cannot be assessed.
The public interest that is relevant is that which is served by allowing NSW Police to use approved ranges for weapons training to better protect the public. In the Senior Commissioner’s finding at [79] she failed to consider this matter, notwithstanding Senior Counsel’s submission following re-examination of Mr Szaak:
… the purpose of cl 107C is plain enough… the NSW Police carry firearms in the public interest and they need places on which to train. So, the SEPP operates to override the LEP if you can establish a lawful shooting range, [sic] may well be that the police may want to come there and train. But that’s something which the Land and Environment Court would not be concerned with. It’s not something we need to assess, and it’s surprising that the council in this case would be suggesting to the Land and Environment Court that use by the police is somehow potentially undesirable when the SEPP specifically allows for it, for obviously sensible reasons.
The error vitiated the Senior Commissioner’s decision not to grant consent to the proposal.
Council’s submissions
Ground 6 raises the public interest. The concept of the public interest in s 4.15(1)(e) is broad and it was open to the Senior Commissioner to determine as she did at [79]. The Senior Commissioner had determined that it was likely that the NSW Police would use the shooting range, if approved, and that the impacts of that use were relevant to her consideration under s 4.15(1)(b). There was evidence before the Court that the impacts of the anticipated use by the NSW Police had the potential to generate unacceptable noise and amenity impacts, but those impacts had not been assessed.
There is a further difficulty. Although the ground suggests the Senior Commissioner erred in finding the development was not in the public interest because the impacts of the anticipated use of the shooting range by the NSW Police could not be assessed, the Appellant’s submissions take an additional approach. First, it is suggested that the outcome is unreasonable. That does not appear to be a submission made suggesting the finding is relevantly “legally unreasonable” so as to vitiate that finding.
Next, the Appellant suggests that the Senior Commissioner should have taken into account different matters in the public interest. With respect, even if there were different elements of the public interest that the Senior Commissioner could have taken into account, a failure to take that into account does not lead to error.
Finding on Ground 6
For the same reasons that I addressed in connection with Grounds 1 and 2, the Senior Commissioner’s finding that the use was likely was a finding of fact which cannot indicate an error of law reviewable in an appeal pursuant to s 56A of the LEC Act.
Further, as was the case with Grounds 4 and 5, to the extent that the Appellant complains about the use the Senior Commissioner made of evidence available to her or the “weight” she attributed to that evidence such complaints are no more than an attempt to cavil with the factual finding made by the Senior Commissioner and do not identify an otherwise available ground of appeal as an error of law.
Further, on a fair reading of the Senior Commissioner’s Reasons, I do not consider that the Senior Commissioner is in truth making a finding pursuant to s 4.15(1)(e) that the development as a whole is not in the public interest. Rather, the Senior Commissioner uses that term in the context of the force of the two factors she identified as each warranting refusal.
For the reasons above, Ground 6 must also be dismissed.
Ground 7 – The Senior Commissioner erred in law in accepting Mr Darroch's planning evidence that Ms Poulis had a dwelling entitlement on her land without giving any reasons when that was a principal contested issue
Ground 8 – The Senior Commissioner erred in law in taking into account an irrelevant matter, namely that there was an absence of acoustic assessment of the proposed development on a residence on neighbouring land owned by Ms Poulis, when there was no residence on that land [76], no dwelling entitlement to erect one there, no identified location for a residence on that land and no proposal to erect one there
It was accepted that the acoustic impact on the Poulis property (the Poulis land) had not been assessed by the acoustic experts. Ms Poulis gave evidence at the hearing of her objection to the proposal which included impacts upon her use of her property from noise. The Senior Commissioner summarised Ms Poulis’s evidence at [28] as follows:
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).
The Senior Commissioner made further reference to the Poulis land at only two parts of the judgment, namely at [54] in the section of the judgment headed “Contention 2: No satisfactory demonstration that there will not be significant noise impacts” and [76] in the subsection “Contention 2 – Finding” where it was stated:
54 Noting, Ms Poulis’ property a few hundred metres form (sic) the closet (sic) 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.
…
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.
The totality of the evidence before the Senior Commissioner as to the “entitlement” of the Poulis land to erect a dwelling was contained in the evidence of the town planners in the following terms (Tcpt, 11 May 2021, p 75(15)-76(36)):
HEMMINGS: Before the planners start there's one matter that I want to seek leave to adduce from Mr Darroch and that's in relation to some questions that were asked of Ms Poulis and whether or not she had enough land to have it dwelling entitled. Mr Darroch, since the last occasion have you had the opportunity to consider the total land holding that Ms Poulis has?
WITNESS DARROCH: Yes, I have.
HEMMINGS: How did you do that?
WITNESS DARROCH: I got the titles for the site and compared it to the LEP minimum lot size, the minimum lot size splits across the actual site so part of it is a minimum of 80 hectares, the other part is a minimum of 40 but the total land size is 101 hectares, so yes, she is dwelling entitled.
SENIOR COMMISSIONER: Thank you.
HEMMINGS: That was the only additional matter I wanted Commissioner.
TOMASETTI: Commissioner I can deal with that matter now with Mr Allen online. Mr Allen, you've heard what Mr Darroch said and I think you've read something that he wrote on 7 May 2021 about this issue, did you not?
WITNESS ALLEN: I did.
TOMASETTI: Do you agree with his conclusion that there's a dwelling entitlement for the land occupied by Mrs Poulis?
WITNESS ALLEN: No.
TOMASETTI: Tell us why?
WITNESS ALLEN: The area as Mr Darroch advised is split in two, the western lot, lot 180 contains 62 hectares and that's contained within the 80 hectare minimum lot size area. That lot itself is less than the 80 hectare minimum. The other three lots are on the east of the lot size boundary and the eastern side is the 40 Hectare minimum lot size area contains a total area of 37.69 hectares, which again is less than a 40 hectare minimum lot size. So within each area, it's not possible to obtain the required minimum lot size.
TOMASETTI: Is the provision flexible in the sense that it's amenable to clause 4.6 written request to--
WITNESS ALLEN: It is on the eastern side.
TOMASETTI: On the eastern side?
WITNESS ALLEN: Yes.
TOMASETTI: So, you and Mr Darroch don't agree on that subject matter, correct?
WITNESS ALLEN: Correct.
TOMASETTI: Have you found any evidence of a development application made for a dwelling house on any of those parcels?
WITNESS ALLEN: I've not received any evidence.
TOMASETTI: There's no dwelling there at the present time?
WITNESS ALLEN: Not that I'm aware of.
HEMMINGS: I was planning on following the applicant's lead on the planning issues, Commissioner.
SENIOR COMMISSIONER: All right, just before we leave that, you mentioned clause 4.6, did you say it wasn't amenable to a 4.6? Yes, thank you.
TOMASETTI: Meaning the provisions of a clause—
SENIOR COMMISSIONER: I understand.
In addition, the Senior Commissioner had been provided some extracts of the Council’s Local Environmental Plan (LEP), but not that part of the LEP that dealt with the capacity to build dwelling houses on existing lots.
It also appears from the submissions made to the Senior Commissioner that each of the parties addressed her as to the dwelling entitlement on the Poulis land: Applicant’s written submissions in chief at [10] and Council’s at [42]. Council noted in those submissions: Council considers that the noise impacts on Ms Poulis’ property should be assessed.
The primary evidence relating to the acoustic impacts of the DA was provided by acoustic consultants: Mr Harwood for the Applicant and Mr Cooper for the Council. Neither Mr Cooper nor Mr Harwood gave evidence as to a need to undertake further acoustic testing of the Poulis land either generally or as a consequence of any potential for future residential use.
Appellant’s submissions
Ground 7 is a failure to give reasons error in that the Senior Commissioner, in expressing in her findings at [76] her acceptance of the evidence of Mr Darroch, had made no reference to the evidence of Mr Allen or given any reasons to expose why his evidence was not accepted in favour of that of Mr Darroch.
It is a minimum requirement of the Court to give reasons where a matter is joined between the parties. Pain J in Georges River Council v S A F Group Pty Ltd [2021] NSWLEC 151 (S A F Group) summarised the obligation to give reasons at [45].
The Senior Commissioner was required to determine relevant material issues and in doing so exposing her reasoning: Segal v Waverley Council (2005) 64 NSWLR 177 (Segal) at [43] per Tobias JA; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259 per Kirby P, at 279 per McHugh JA. The Court at first instance is not required to “deal with every argument raised and every possibility that could be adverted to”: Comcare v Forbutt [2000] FCA 837 at [58] per Heerey J cited by Tobias JA in Segal at [71].
Pain J also said in S A F Group that in New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578 at 595 Bell P had identified that the function of an appellate Court is not to identify the optimal level of detail required in reasons for a decision but the minimum acceptable standards. Pain J found the same rule must apply when considering material matters in dispute.
The Senior Commissioner did not do this.
The parties had not raised the failure to test the Poulis land in the Statement of Facts and Contentions and the issue had developed during the course of the hearing. It is apparent that it became an issue of substance to the Senior Commissioner by virtue of her concluding statement at [76] that: “For those reasons, it is appropriate that the impact of the use on Ms Poulis’ land be assessed by the acoustic experts and considered before the grant of this development consent”. From this statement it is apparent that the Senior Commissioner considered that the issue of the possible use of the Poulis land was a real issue in the proceedings and one that had a sufficient influence on her decision-making to warrant the making of this specific finding, notwithstanding the evidence of the acoustic consultants. In those circumstances it was incumbent upon the Senior Commissioner to give adequate reasons, and she failed to do so.
The Senior Commissioner’s Reasons at [76] in which she simply accepted Mr Darroch’s evidence, had the fatal consequence for the Appellant in the subsequent finding that development consent could not be granted until the impact of the shooting range upon Ms Poulis’ dwelling house (that did not exist and was not planned) had been assessed by the acoustic experts referring to the EPA Guideline. In these circumstances, it was incumbent upon the Senior Commissioner to expose her reasoning as to why she preferred Mr Darroch’s evidence to Mr Allen’s evidence.
The error vitiated the Senior Commissioner’s decision not to grant consent to the proposal.
Ground 8 whilst formulated as an irrelevant consideration ground is also, depending upon the meaning attributed to the Senior Commissioner’s findings at [76], [77] and [79] a failure to give reasons ground.
As to the irrelevant consideration ground the Appellant contends the Senior Commissioner erred in law in taking into account an irrelevant matter, namely an absence of acoustic assessment of the Poulis land, this included the absence of an assessment upon a dwelling that she might propose to erect. Relevantly, the impact of noise upon livestock had been addressed. The undisputed evidence was that livestock would habituate to noise. Neither the EPA Guideline nor Sch 2 of the Protection of the Environment Operations (Noise Control) Regulation 2017 (PEO Noise Regulation) required assessment of the shooting range impacts upon properties other than the nearest residential receiver. The relevant considerations for acoustic testing were limited to existing residential receivers. Both refer to measurement locations of 30m from a “receiving residence” and “residential premises”.
In the Appellant’s written submissions at [42] it was noted that neither Council when it nominated the receivers to test, nor Mr Cooper, the Council’s acoustic expert, said acoustic testing should be done on the Poulis land. The acoustic experts agreed that the development complied with the relevant EPA Guideline for establishing a shooting range.
It was undisputed that Ms Poulis had no dwelling on her property. By reference to the guiding requirements for acoustic testing in respect of a shooting range, there being no dwelling on the Poulis land, there was no reasonable requirement to conduct acoustic testing of the impacts of the shooting range upon her land.
In the above circumstances the acoustic impact of the development upon a dwelling house on the Poulis land was not a likely impact but at best, a future possibility. It was sufficiently remote in the Hoxton Park sense as to not fall for consideration.
By taking into account the impact of the development upon a possible future dwelling on the Poulis land, the Senior Commissioner took into account an irrelevant consideration and by so doing erred in law. The error vitiated the Senior Commissioner’s decision not to grant consent to the proposal.
Alternatively, it is not entirely clear from the Senior Commissioner’s statement at [76] whether she is requiring testing of a future dwelling or some other use. As it is made apparent from [54] the Poulis land was not residential. The Senior Commissioner does not appear from her reasons to challenge or dispute this approach taken by the acoustic consultants. Whilst she identified the need for testing in [76] it is not clear what testing and to what end and against what measure or standard such testing is to be undertaken.
When read in conjunction with the Senior Commissioner’s further findings at [77] and her conclusion at [78] and [79] there is no express reference to the Poulis testing identified at [76]. It is unclear if that requirement was fundamental to her ultimate finding that the DA should be refused. For those reasons, the Senior Commissioner has not given adequate reasons to enable her decision to be properly understood. This failure is an error that vitiates her decision.
Council’s submissions
By its terms Ground 7 is an “inadequacy of reasons” ground. The Appellant’s submissions at [83] identifies a different ground. That is, that the Senior Commissioner fell into error in requiring the Appellant to assess the likely impacts of the development upon the residential amenity of Ms Poulis “when there was no residence on her land…”. These two grounds will be addressed separately.
The approach to be taken to the adequacy of reasons is well understood. The Court of Appeal in Alexandria Landfill Pty Ltd v Transport for NSW (2020) 243 LGERA 102 at [29] addressed it succinctly:
Having regard to the purpose of giving reasons, the standard is properly identified negatively: it must be shown that the decision has not been reached capriciously or arbitrarily, but rationally. The reasons must thus reveal that all material factors have been identified and addressed, and that no prohibited considerations have been operative. If there is an available process of reasoning from the evidence to the outcome which has been adopted, either expressly or by implication, the appellant court should be slow to reach the conclusion that the function of the trial court has not been exercised according to law.
The difficulty with the Appellant’s ground is that it incorrectly construes the Senior Commissioner’s judgment.
The Commissioner’s finding is set out at [77]. The Senior Commissioner found firstly that the night-time acoustic testing was inadequate. Although Ground 9 appears to challenge the conclusion in relation to part of the reasoning process for that finding (temperature inversions) no challenge is taken to the finding itself. The second finding at [77] is in relation to the inability to assess the acoustic impact of the anticipated NSW Police use.
The Senior Commissioner then finds:
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 three nights per week and from 8am to 10am five days a week on relevant residential properties proximate to the site.
It is that decision that needs to be tested to determine whether it has been reached rationally, not capriciously or arbitrarily.
Of course, the Senior Commissioner’s finding in relation to dissatisfaction with the night-time testing for residential properties was not restricted to Ms Poulis’ land. As a result, even if there was an alleged inadequacy of reasons, it would not vitiate the decision.
Focusing then solely upon paragraph [76] of the judgment (and reviewing it with a fine tooth comb) it is correct that the Senior Commissioner accepted Mr Darroch’s position in relation to dwelling entitlement without resolving the dispute that did exist between the planners. The Council also accepted that if this issue was one which the Senior Commissioner was required to determine the Senior Commissioner had not provided sufficient reasons (or any at all) to identify why she accepted the evidence of Mr Darroch over Mr Allen.
However, as can be seen from paragraph [76] the Senior Commissioner was identifying something about which she was “also concerned”. The matters that gave rise to that concern were:
(1)The Poulis land was located only a few 100 metres from the closest fixed range;
(2)Ms Poulis gave cogent evidence of her use of the property as a hobby farm;
(3)The Senior Commissioner accepted that her family stays at the property from time to time; and
(4)The Senior Commissioner accepted that she has plans to seek consent for a dwelling at some time in the future.
In relation to that fourth point – that future plans for a dwelling – the Senior Commissioner then acknowledged that “there is no guarantee of an approval”. It was then, and in that context, that the Senior Commissioner accepted Mr Darroch’s planning evidence.
The resolution of the dwelling entitlement question could not be called a principal contested issue. Similarly, the apparent weight given to the possibility of the dwelling entitlement – “acknowledging there is no guarantee of an approval” – similarly suggests that the decision could be arrived at rationally without the need to resolve that debate.
The Senior Commissioner had identified other impacts upon the amenity of Ms Poulis that in her view needed to be, and had not been, adequately assessed. No error is disclosed by the Senior Commissioner’s failure to provide reasons for the preference of Mr Darroch’s approach to the dwelling entitlement.
Ground 8 suggests the Senior Commissioner erred in law “in taking into account an irrelevant matter, namely that there was an absence of acoustic assessment of the proposed development on a residence on neighbouring land owned by Ms Poulis…”.
The ground then refers to judgment at [76]. That is, not the Senior Commissioner’s finding at [76].
As already submitted above in relation to Ground 7 there were multiple considerations leading to the identification of the Senior Commissioner’s concern for impact on “the proposed use of Ms Poulis’ property.” Indeed, the Senior Commissioner’s conclusion was:
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.
The Appellant’s submissions appear to focus upon the EPA Guidelines and PEO Noise Regulation that require assessment of the shooting range at the nearest residential receiver. Presumably, relying upon those guidelines and regulations is why it is suggested that the Senior Commissioner took into account an irrelevant matter “namely an absence of acoustic assessment of Ms Poulis’ land. This included the absence of an assessment upon a dwelling that she might propose to erect.”: Appellant’s submissions at [98].
If the suggestion, implicit in the Appellant’s submissions, is that assessment of acoustic impact on the property in a manner different to that identified in the EPA Guidelines or the PEO Noise Regulation is to take into account an irrelevant matter, then that submission is to be rejected. The mere fact that a consideration may not be a mandatory relevant consideration does not make it irrelevant.
In the Senior Commissioner’s assessment of either the likely impact (for the purposes of s 4.15(1)(b)) or the public interest (for the purposes of s 4.15(1)(e)) the Senior Commissioner was entitled to consider, as relevant, the potential impact upon the amenity of the Poulis land.
The Appellant’s submissions appear to be extended to one of unreasonableness. The submission does not support a finding that the taking into account, or the desire to take into account, the potential acoustic impacts on the Poulis land was legally unreasonable.
Finding on Grounds 7 and 8
As to Grounds 7 and 8 I accept the submissions of the Council at [143_Ref121133552]-[154_Ref121133593] above. When the totality of the judgment of the Senior Commissioner is read without a view to finding error, it is apparent that the Senior Commissioner did not determine that the acoustic impact on the Poulis land was a reason for refusal of the DA. Whilst she identified such impact as a matter of concern to her it did not rise in terms of the judgment as one of the acoustic impacts that warranted the refusal of the DA. Accordingly, the Senior Commissioner was not required to give reasons as to her acceptance of Mr Darroch’s evidence or that some yet unidentified and not specifically required acoustic testing should be undertaken on the Poulis land and her failure to do so is therefore not an error of law.
For those reasons, Grounds 7 and 8 should be dismissed.
Ground 9 – The Senior Commissioner erred in law in considering an irrelevant matter, namely that the acoustic impact of temperature inversions at night-time ought to have been considered in the acoustic assessment by Mr Harwood
Appellant’s submissions
Had the Senior Commissioner not been drawn into the above two errors, she could and probably would have approved the development and conditioned its use to at least daytime use – both acoustic experts having agreed there was no issue with daytime use.
With shooting ranges, it is relevant to observe that the EPA Guidelines prescribe daytime to be 10am to 5pm, and night-time to be 5pm to 10am.
The acoustic evidence, the Joint Expert Report (Acoustic) dated February 2021, Exhibit O, and the Supplementary Acoustic Report, Exhibit U, confirmed the acoustic experts had agreed that there were no acoustic issues with the proposal in respect of daytime use, other than in respect of the amended Trace on Range 6, Firing Point 3A which Mr Cooper wanted retested, and which in any event could be conditioned. As noted under Ground 9 the only remaining issue between the acoustic experts was in respect of Mr Cooper’s asserted adequacy of the night-time testing undertaken for Range 6.
At paragraph [43] of the judgment the Senior Commissioner notes:
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 seven days and three nights’ (Joint Report at pars 129-130). The applicant submits that the 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).”
In her findings on the acoustic evidence the Senior Commissioner said at [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.
Ultimately, I find that Mr Harwood’s night-time acoustic testing is inadequate for the reasons outlined by Mr Cooper as summarised…I am not satisfied that I have sufficient understanding of the acoustic impacts of the proposed development…In that circumstance, I am unable to undertake the assessment required by s 4.15 of the EPA Act.
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.
It was not to the point that Mr Cooper was not satisfied about an aspect of the development. In this regard the Senior Commissioner erred in abrogating satisfaction about the development to an expert. The responsibility for satisfaction was the Senior Commissioner’s alone. In any event, as to how it is that Mr Cooper is said not to be satisfied, the Senior Commissioner appears to be referring to her summary on acoustic issues at Judgment [57] where she says:
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)).
Relevantly, the occurrence of temperature inversions was not a matter to be considered under either the EPA Guidelines or Sch 2 of the PEO Noise Regulation mandated testing in respect of a shooting range. In fact, under the Guideline, unusual weather conditions were expressly to be disregarded. Mr Cooper took no issue with the EPA Guidelines.
Mr Cooper also took no issue with Sch 2 and he was one of the authors of the Schedule. Clause 8 of Sch 2 requires test measurements to be representative thereby excluding weather affected measurements.
Mr Cooper confirmed that temperature inversions as a phenomenon are well understood in acoustic assessments. The parameters of testing to be done were sensibly agreed in advance of the February 2019 Joint Report by the experts. Temperature inversions were not a matter which the acoustic experts had decided needed to be addressed.
It was irrelevant that Mr Cooper was not satisfied and irrelevant that Mr Harwood had made an acknowledgement in his May 2021 report of potential increase in noise levels due to temperature inversions varying considerably. Temperature inversion effects was not something that required testing. It was an irrelevant consideration.
Council’s submissions
The Appellant’s complaint relating to this ground is a misconstruction of the Senior Commissioner’s Reasons. The Senior Commissioner did not determine to refuse the DA on acoustic grounds with respect to temperature inversions at night-time, rather the Senior Commissioner considered that the acoustic testing by the Appellant’s acoustic expert relating to the night-time was insufficient. Such is made apparent by her finding at [77] where she stated:
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.
The observations made by the Senior Commissioner with respect to temperature inversions at [58] is an observation made as to the evidence and submissions and not a finding made by the Senior Commissioner.
As already submitted above, the difficulty for the Appellant with this ground is that, even if it can be made good – and for the reasons submitted below – it cannot vitiate the Senior Commissioner’s findings that “Mr Harwood’s night-time acoustic testing is inadequate” [77].
The Appellant’s submissions do not support a submission that to consider the potential effect of temperature inversions would be to take into account an irrelevant consideration. Even if it were, the error would not be a material one. It would not affect the Senior Commissioner’s finding generally in relation to the inadequacy of the night-time testing.
Finding on Ground 9
Having regard to the judgment as a whole, I accept the submissions of the Council at [167_Ref121133656]-[170_Ref120873356] above with respect to this ground. The Senior Commissioner’s findings as to the reason why the acoustic impact warranted refusal did not include a finding that night-time temperature inversions were of concern or caused her to make the finding she did at [77]. The Senior Commissioner considered that night-time testing was inadequate for the reasons summarised by Mr Cooper. Inferentially, from the form and structure of her reasoning, this appears to be a reference to what she summarised at [59] and [60], namely:
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).
These paragraphs are dealing directly with the same subject matter as that identified in [77] namely, night-time shooting and the accepted inadequacies as identified by the Appellant’s acoustic expert.
For the reasons advanced by the Council at [170_Ref120873356] above, I also accept that even if the Senior Commissioner had taken into account night-time temperature inversions and such a consideration was found to be irrelevant, such a consideration would not have vitiated her decision as she had separately determined to refuse the DA on the basis of night-time testing inadequacies not related to temperature inversions.
For those reasons, Ground 9 must be dismissed.
Ground 10 – The Senior Commissioner erred in law in not considering s 4.16(4) of the EP&A Act and that development consent could and ought to be granted for a specified part of the development namely Ranges 1 - 6 for daytime time use
This ground of appeal was said to relate to an allegation that the Senior Commissioner should have considered whether the issues she identified could have been addressed by conditions imposed upon a grant of development consent rather than a refusal of the DA.
Section 4.16(4) provides as follows:
4.16 (4) Total or partial consent A development consent may be granted—
a) for the development for which the consent is sought, or
b) for that development, except for a specified part or aspect of that development, or
c) for a specified part or aspect of that development.
Appellant’s submissions
The Court only had reservations about a particular firing position within Range 6. It enjoyed a power to impose additional conditions to address the concern with refusing consent to the DA. The Appellant in closing, submitted:
The Court could impose an operational commissioning condition…requiring satisfactory commissioning testing of Firing Points 1A, 1B, 1C, 2A, 2C and 3A in Range 6 within 6 months from commencement of operation – being the only untested Firing Points within that range – before allowing those Firing Points to be used. The Court can be satisfied that via the expert joint reporting process there has been adequate commission testing prior to approval.
The Appellant contends the Senior Commissioner erred in not considering and exercising her power to impose reasonable conditions. She should have granted a consent for daytime use of the shooting range and was empowered to do so pursuant to s 4.16(4) of the Act. She could have refused consent to Range 6 if she were so concerned leaving the Appellant free to proceed with development of Ranges 1 – 5. She did not due to her concerns for the use of the development by the NSW Police and the likely impact on a residential receiver on the Poulis land in respect of a dwelling that did not exist.
Council’s submissions
Section 4.16(1) is not a mandatory matter for consideration by the Court in assessing and determining a development application. It is a discretionary matter. Note that “may” is defined in s 9 of the Interpretation Act 1987 (NSW) as follows:
In any Act or instrument, the word “may”, if used to confer a power, indicates that the power may be exercised or not, at discretion.
There can be no error of law arising from the Senior Commissioner’s failure to consider whether to approve a more limited part of the development.
Finding on Ground 10
The Appellant was unable to identify any relevant duty to determine the consent by a grant of consent subject to conditions rather than by dismissing the appeal as was the circumstance of this case. Unless there is a duty that mandates such an approach it is a matter for the Senior Commissioner to determine how she will dispose of the proceedings. Such a decision is not reviewable as an error of law. Absent the identification of such a legal duty this ground of appeal must fail.
The criticism of the Senior Commissioner’s Reasons that no reasons were given as to why the appeal was dismissed rather than determined subject to the imposition of conditions may be understandable – the Senior Commissioner, notwithstanding submissions as to the appropriateness of a grant of consent subject to conditions being made by both parties, did not give reasons as to why this course was not adopted. However, it was no part of this appeal that the failure of the Senior Commissioner to give reasons on this basis gave rise to an error of law.
Accordingly, Ground 10 as identified by the Appellant must be dismissed.
Costs
The parties agreed that the costs of the appeal should follow the event. I will make orders accordingly.
Conclusions and orders
For the reasons outlined above, the Appellant has failed to identify an error of law in the decision of the Senior Commissioner. Absent an error of law, no appeal lies from the Senior Commissioner’s decision pursuant to the provisions of s 56A of the Land and Environment Court Act 1979 (NSW). For that reason, each of the ten grounds of appeal identified by the Appellant in the Summons must be dismissed.
The Court orders that:
(1)The Summons filed on 25 November 2021 is dismissed;
(2)The Appellant is to pay the Council’s costs; and
(3)The exhibits are returned.
The Court directs that the parties are to contact my Associate to collect the exhibits within 14 days of the date of the making of the Orders.
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