Case note

Burns v Queanbeyan-Palerang Regional Council

BAL recently acted for Queanbeyan-Palerang Regional Council in a novel case recently confirmed on appeal in favour of the Council.

The case concerned an application for development consent for a recreational shooting facility by the Burns’, avid recreational shooters. The proposed recreational shooting facility comprised six shooting ranges on the southern region of their property, including a ‘field range’ in which targets are fixed in bushland.

Queanbeyan-Palerang Regional Council refused to grant consent to the development application under the Environmental Planning and Assessment Act 1979 on several grounds. One concern was about the impacts of the NSW Police using the facility and the fact that these impacts had not been assessed. This concern arose because the Police had used the site for a training exercise in 2017, which adversely impacted neighbours.

The (then) State Environmental Planning Policy (Infrastructure) 2007 had been amended to allow the NSW Police to carry out development without consent for the purposes of a shooting range on land on which there was a lawful shooting range (cl.107C). The council was concerned that if it granted development consent for a shooting range on the land, the entire property would then become available for use by the NSW police under cl.107C of the iSEPP, and result in police conducting shooting activities closer to neighbouring residents than had been assessed. The council also considered that the acoustic testing of the proposed development was insufficient and that the development was incompatible with the character of the area. 

In 2020 Mrs Burns sought review of the Council’s decision in the Land and Environment Court. Mrs Burns argued that the possibility of NSW Police using the property was remote however the Senior Commissioner disagreed. Not only had NSW Police trained on the property in the past, but Mr Burns had described the site as “a vehicle for Australian industry to better support… law enforcement”.  

The Land and Environment Court had previously accepted that the likely impacts of a proposed development are not limited to the actual development application or activities carried out on the site. The question of how remote a “likely” impact must be to disqualify it from the scope of consideration requires an evaluative judgment, which will not often involve any “bright-line boundary”[1]

Having found that the police use of the site was a likely impact of the development, the impacts of police use then needed to be considered, but there was insufficient information to enable the Senior Commissioner to do so. For these reasons, and due to the inadequate acoustic testing, the Senior Commissioner refused to grant consent to the development application. A subsequent s.56A appeal, determined on Thursday 8 December 2022, failed to identify any error of law in the Senior Commissioner’s decision.

The case reinforces that the category of ‘likely impacts’ of a proposed development is constrained only to whether there is a “real and sufficient link” with the proposed development, and can include the impacts of other development which is permissible under a State environmental planning instrument where the necessary nexus exists. 

BAL regularly provides advice on development assessment, including the application of s.4.15 of the Environmental Planning and Assessment Act 1979. Please contact our Planning, Environment and Local Government Team for more information.

  [1] Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 81 NSWLR 638; [2011] NSWCA 349 at [44]

Burns v Queanbeyan-Palerang Regional Council [2022] NSWLEC 146

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