Botany Bay City Council v Minister of State for Transport and Regional Development
[1998] FCA 1390
•3 NOVEMBER 1998
FEDERAL COURT OF AUSTRALIA
ADMINISTRATIVE LAW - Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5(1)(a) – failure to observe procedures required by law - Environment Protection (Impact of Proposals) Act 1974 (Cth) - Administrative Procedures – environmental effect – noise or impact of noise - object of the Act
ADMINISTRATIVE LAW – Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5(2)(a), s 5(2)(b) – taking irrelevant considerations into account – failing to take relevant considerations into account - Environment Protection (Impact of Proposals) Act 1974 (Cth) - Administrative Procedures – relevant environment assessment action - Wednesbury unreasonableness – extensive defects alleged – whether merits review sought
ADMINISTRATIVE LAW – environment - Environment Protection (Impact of Proposals) Act 1974 (Cth) - Administrative Procedures – obligations imposed by – scope and purpose
Judiciary Act 1903 (Cth), s 39B
Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5(1)(b), s 5(1)(h), s 5(2)(a),
s 5(2)(b), s 5(2)(g)
Environment Protection (Impact of Proposals) Act 1974 (Cth), s 5(1), s 8
Air Services Act 1995 (Cth), s 16
Federal Airports Corporation Act 1986 (Cth), s 6, s 7, s 8, s 41
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Applied)
Attorney-General (NSW) v Quin (1990) 170 CLR 1 (Applied)
Friends of Hinchinbrook Society Inc v Minister for Environment (No 2) (1997) 69 FCR 28 (Referred to)
Botany Bay City Council v Minister of State for Transport and Regional Development (1996) 66 FCR 537 (Referred to)
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490 (Referred to)
BOTANY BAY CITY COUNCIL (Applicant) v MINISTER OF STATE FOR TRANSPORT AND REGIONAL DEVELOPMENT (First Respondent) MINISTER OF STATE FOR THE ENVIRONMENT (Second Respondent) AIRSERVICES AUSTRALIA (Third Respondent)
NG 877 of 1997
FINN J
CANBERRA (HEARD IN SYDNEY)
3 NOVEMBER 1998
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 877 of 1997
BETWEEN:
BOTANY BAY CITY COUNCIL
APPLICANTAND:
MINISTER OF STATE FOR TRANSPORT AND REGIONAL DEVELOPMENT
FIRST RESPONDENTMINISTER OF STATE FOR THE ENVIRONMENT
SECOND RESPONDENTAIRSERVICES AUSTRALIA
THIRD RESPONDENTJUDGE:
FINN J
DATE OF ORDER:
3 NOVEMBER 1998
WHERE MADE:
CANBERRA (HEARD IN SYDNEY)
THE COURT ORDERS THAT:
1. the application be dismissed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 877 of 1997
BETWEEN:
BOTANY BAY CITY COUNCIL
APPLICANTAND:
MINISTER OF STATE FOR TRANSPORT AND REGIONAL DEVELOPMENT
FIRST RESPONDENTMINISTER OF STATE FOR THE ENVIRONMENT
SECOND RESPONDENTAIRSERVICES AUSTRALIA
THIRD RESPONDENT
JUDGE:
FINN J
DATE:
3 NOVEMBER 1998
PLACE:
CANBERRA (HEARD IN SYDNEY)
REASONS FOR JUDGMENT
This proceeding was heard together with that initiated by Randwick City Council and Woollahra Municipal Council (ie NG 881 of 1997) against the same two respondent Ministers. Both proceedings concerned decisions of the Minister for the Environment (Senator Hill) and the Minister for Transport and Regional Development (Mr Sharp) that resulted in the implementation without an environmental impact statement or a public environment report of the “Long Term Operating Plan” (“the LTOP”) for Sydney’s Kingsford Smith Airport (“KSA”). The decisions are challenged on a variety of grounds in this proceeding under both s 39B of the Judiciary Act 1903 (Cth) and the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”).
The degree of overlap between the two proceedings is such, with the applicant in this matter on occasion adopting submissions made in the other, that I will in a number of instances simply provide a precis in these reasons of identified matters dealt with more extensively in the other proceeding.
Nonetheless it is necessary to duplicate here significant parts of the factual and other narrative to be found there so that the burden of the by no means identical claims and submissions made in this proceeding can properly be comprehended.
As in the other proceeding, I have considered it appropriate to preface my reasons with a list of acronyms, abbreviations and names used in the proceeding.
ACRONYMS, ABBREVIATIONS AND NAMES
ADJR Act Administrative Decisions (Judicial Review) Act 1977 (Cth)
Administrative Procedures
Subordinate legislation made under the Environment Protection (Impact of Proposals) Act 1974 (Cth)
ANECAustralian Noise Exposure Concept: a contour mapping system providing an estimate of levels of aircraft noise exposure for particular proposals.
ANEFAustralian Noise Exposure Forecast: a modelling system providing a forecast of average daily aircraft noise exposure.
ANEIAustralian Noise Exposure Index: the historical equivalent to the ANEF calculated from actual rather than forecast air traffic data.
AsAAir Services Australia: a statutory corporation created by the Air Services Act 1995 (Cth).
As ActAir Services Act 1995 (Cth).
DoESTDepartment of the Environment, Sport and Territories.
DoTRDDepartment of Transport and Regional Development.
DPSDraft Planning Strategy for Sydney Airport, prepared in 1990 for the FAC.
DPSSDraft Planning Strategy Supplement prepared in 1993 for the FAC.
Draft LTOP/LTOP The Long Term Operating Plan for Sydney (Kingsford Smith) Airport and Associated Airspace prepared by AsA in 1996.
EISEnvironmental impact statement within the meaning of the EP(IP) Act.
Environment Australia
A program within DoEST.
EP(IP) ActEnvironment Protection (Impact of Proposals) Act 1974 (Cth).
FACFederal Airports Corporation: a statutory corporation created by the Federal Airports Corporation Act 1986 (Cth).
FAC ActFederal Airports Corporation Act 1986 (Cth).
KSAKingsford Smith Airport.
PERPublic environment report within the meaning of the EP(IP) Act.
Task ForceSydney Air Traffic Management Task Force formed by AsA with responsibility for formulating proposals for the LTOP.
THE RUNWAYS AT SYDNEY AIRPORT AND THEIR PRE-LTOP USE
With the opening of the “parallel runway” in 1994 the Kingsford Smith Airport had three runways. These were (and are) –
(i)the main north-south runway;
(ii)the parallel runway on the eastern side of the north-south runway; and
(iii)the east-west runway which runs at approximately right angles to the parallel runways.
The main north-south runway when used for take-offs to the north and landings from the south is runway 34L. The same runway when used for take-offs to the south and landings from the north is runway 16R. The new parallel runway when used for take-offs to the north and landings from the south is Runway 34R. The same runway when used for take-offs to the south and landings from the north is runway 16L. The east-west runway when used for take-offs to the east and landings from the west is Runway 07. The same runway when used for take-offs to the west and landings from the east is Runway 25.
As a result of decisions of the Government of the time, on the opening of the parallel runway restrictions were placed upon the permitted uses of the airport’s runway system. Departures to the north from the parallel runway (34R) were not allowed. The main north-south runway (34L/16R) continued to handle all classes of air traffic. The use of the east-west runway (07/25) was restricted to when adverse weather conditions precluded the use of other runways.
In giving his reasons for one of the decisions challenged in this proceeding (the direction to Airservices Australia (“AsA”) of 30 July 1997), Mr Sharp was to make this comment on the limited use that could thus be made of the airport’s runways:
“The use of the parallel runways at the Airport together with the requirement to use legislated flight corridors, combined with the effective closure of the east-west runway other than in some limited weather conditions, resulted in a concentration of aircraft movements and related noise impacts in certain suburbs immediately to the north of the Airport. I was of the opinion that this concentration of aircraft movements represented an inequitable distribution of aircraft noise impacts.”
On 8 March 1995 the Senate established a select committee to inquire into aircraft noise at KSA and to explore possible solutions to the problem. There had been sharp public reaction following the opening of the third runway and the consequent use of the runways as described above. The view favoured by the committee in its Report “Falling on Deaf Ears” of November 1995 was that of sharing the burden of noise in preference to concentrating flight paths (hence noise impact) into narrow bands.
In January 1996 the Liberal-National Party Coalition produced a policy document on Sydney Airport entitled “Putting People First”. Its professed purpose was to –
“reduce the noise and pollution generated by the airport as much as possible and … share the noise burden in a safe and equitable way.”
It stated that under a Coalition Government:
“The airport will be operated subject to three principles:
·all three runways at the airport will be used, to spread the noise generated by the airport equitably. We will make the maximum possible use of approaches and departures over water and non-residential areas. We will not use the east west runway as a stub runway for propeller aircraft. The full length of the runway will be used by both jet and propeller planes.
·the runway capacity of the airport will be maintained, however, we will not allow the hourly movement rate to exceed 80 movements per hour.
·the safety of the airport will not be compromised.”
With the Coalition securing government, Mr Sharp as Minister for Transport and Regional Development issued a direction on 20 March 1996 to AsA under s 16 of the Air Services Act 1995 (Cth) (“As Act”). This step put in train the process leading to the decisions under challenge in these proceedings. This direction required AsA to:
“1. take immediate steps, consistent with the requirements of the Act, to increase the usage of Runway 07/25 (known as the east-west runway) at Sydney (Kingsford Smith) Airport in order to distribute the noise generated at the Airport more fairly. Consistent with this, the east-west runway is to operate in accordance with the following principles:
·the full length of the runway is to be available for use by both jet and propeller aircraft
·procedures involving independent use of the intersecting runways (such as the procedures known as SIMOPS) are not to be adopted
·usage of the runway should be directed, consistent with safety and efficiency of airport operations, towards achieving the earliest and maximum practicable reduction in the number of aircraft taking-off and landing over areas to the north of the Airport.
2. report to me by 16 December 1996 on a proposed long term operating plan for the Airport and associated airspace based on the following principles:
·all three runways at the Airport, including the full length of the east-west runway, are to be available for use by jet and propeller aircraft
·maximum use is to be made of flightpaths over water and non-residential areas
·the capacity of the Airport is to be maintained to the maximum practicable extent but the programmed movement rate is not to exceed 80 movements per hour
·the safety of aviation operations is not to be compromised.”
The Minister had previously sought from Senator Hill, and had been granted an exemption of this action from the requirements of the Administrative Procedures made under the Environment Protection (Impact of Proposals) Act 1974 (Cth) (“the EP(IP) Act”).
In May of 1996 Mr Sharp directed AsA to examine the feasibility of introducing aircraft take-offs from runway 34R in accordance with policy principles he had specified. Having been informed that the procedure was feasible he gave a direction of 14 September 1996 requiring the introduction of take-offs on runway 34R “in order to distribute the noise generated at the Airport more fairly”. Again Senator Hill had previously exempted the action proposed from the requirements of the Administrative Procedures.
The LTOP was provided to Mr Sharp on 16 December 1996. It was released for public comment on 5 February 1997. Were its proposals to be implemented by AsA, it was appreciated by Mr Sharp that the environment would, or would be likely to, be affected to a significant extent. For this reason Mr Sharp then initiated the processes required by and under the EP(IP) Act. Before outlining the steps taken it is necessary to refer first, to the statutory setting in which they occurred.
THE STATUTORY SETTING
The EP(IP) Act
The immediately relevant sections of this Act are s 5(1) and s 8(a). Section 5(1) provides:
“5.(1) The object of this Act is to ensure, to the greatest extent that is practicable, that matters affecting the environment to a significant extent are fully examined and taken into account in and in relation to:
(a)the formulation of proposals;
(b)the carrying out of works and other projects;
(c)the negotiation, operation and enforcement of agreements and arrangements (including agreements and arrangements with, and with authorities of, the States);
(d)the making of, or the participation in the making of, decisions and recommendations; and
(e)the incurring of expenditure;
by, or on behalf of, the Australian Government and authorities of Australia, either alone or in association with any other government, authority, body or person.”
Section 8(a) in turn requires:
“8. Each Minister shall give all such directions and do all such things as, consistently with any relevant laws as affected by regulations under this Act, can be given or done by the Minister:
(a) for ensuring that procedures for the time being approved under this Act are given effect to in and in connexion with matters dealt with by the Department administered by the Minister and that any authority of Australia in relation to which the Minister has ministerial responsibilities observes, and assists in giving effect to, those procedures."
The Administrative Procedures
These need to be referred to at some length. Where an action of a type mentioned in s 5(1) of the EP(IP) Act is proposed to be taken by the Commonwealth or a Commonwealth authority and where the minister who is responsible for it (in the present instance, Mr Sharp) is satisfied that that action is an environmentally significant one, then that minister must set in train the steps prescribed in the Administrative Procedures: see para 1.2.1.
First, the minister (described in the Administrative Procedures as the “action Minister”) must designate an appropriate person or Department as “the proponent of the proposed action” and must, for present purposes, notify the Department of the Environment, Sport and Territories of the proposed action. In the instant case Mr Sharp designated his own department – the Department of Transport and Regional Development (“DoTRD”) – as the proponent. The proponent was required to do all things necessary to enable the Administrative Procedures to be complied with in relation to the proposed action.
Secondly, a process was then to be engaged in leading to a decision whether or not an environmental impact statement (“EIS”) or a public environment report (“PER”) was required. This process, insofar as presently relevant, is set out in full below. I would note that the references in the text of the clauses below to “the Minister” and “the Department” are in this matter, references to the Minister for the Environment and to the Department of Environment, Sport and Territories (“DoEST”). I would also note that DoEST is colloquially referred to as Environment Australia in relation to its actions relevant to this matter. That usage will be adhered to in these reasons.
“SUPPLYING OF INFORMATION
Proponent to supply information
2.1 As soon as possible after the Department has been informed of a proposed action under paragraph 1.2.1. or 1.2.4., the proponent shall supply to the Minister, or the Department, such information as is required by these procedures, or is otherwise necessary, for the purpose of consideration, by the Minister or on the Minister’s behalf, of the necessity for an environmental impact statement or a public environment report in relation to the proposed action.
Information required by procedures
2.2 For the purpose of paragraph 2.1, the information required by these procedures shall, to the extent appropriate in the circumstances of the case, be information –
(a)summarizing any preliminary planning, consideration or work undertaken in relation to the proposed action and, in particular, describing any feasible and prudent alternative to the proposed action considered by the action Minister or the proponent;
(b)describing the environment that is likely to be affected by the proposed action and by any feasible and prudent alternative to the proposed action;
(c)indicating the potential impact on the environment of the proposed action and of any feasible and prudent alternative to the proposed action, including any enhancement of the environment;
(d)describing any safeguards or standards for the protection of the environment intended to be adopted or applied in connection with the proposed action; and
(e)stating any investigations or studies intended to be made of the possible impact on the environment of the proposed action.
Requirement to provide information
2.3 For the purpose of consideration, by the Minister or on the Minister’s behalf, of the necessity for an environmental impact statement or a public environment report in relation to a proposed action, the Minister, or the Department on behalf of the Minister, may require the proponent to provide, within a reasonable period, such other information as is specified and is necessary for that purpose.
REQUIREMENT FOR ENVIRONMENTAL IMPACT STATEMENTS AND PUBLIC ENVIRONMENT REPORTS
Requirement for environmental impact statement or public environment report
3.1.1. Subject to the Act and these procedures, the Department shall, as soon as possible after the information referred to in paragraph 2.1., and any further information required under paragraph 2.3., has been received in relation to a proposed action –
…
(b)refer the question whether the preparation or obtaining, and submission to the Minister, of an environmental impact statement or a public environment report in relation to the proposed action is required for the purpose of achieving the object of the Act to the Minister who shall forthwith determine the question and shall make a direction accordingly.
3.1.2 The Department, or the Minister, as the case may be, in making a determination under paragraph 3.1.1, must take into account at least:
(a)whether, and to what extent, the proposed action may result in –
(i)a substantial environmental effect on a community;
(ii)the transformation of a substantial area;
(iii)a substantial impact on the eco-systems of an area;
(iv)a significant diminution of the aesthetic, recreational, scientific or other environmental quality, or value, of an area;
(v)an adverse effect upon an area, or structure, that has an aesthetic, anthropologic, archaeologic, architectural, cultural, historical, scientific or social significance or other special value for the present or future generations;
(vi)the endangering, or further endangering, of any species of fauna or flora;
(vii)important long-term effects on the environment;
(viii)the degradation of the quality of the environment;
(ix)the curtailing of the range of beneficial uses of the environment;
(x)the pollution of the environment;
(xi)environmental problems associated with the disposal of waste; or
(xii)increased demands on natural resources which are, or are likely to be, in short supply; and
(b)any environmental assessment action taken, or being taken, in relation to the proposed action, that the Minister or the Department, as the case may be, considers relevant action, including action of that kind by a State or Territory or an authority of a State or Territory.
3.1.3 The Minister shall not make a determination under paragraph 3.1.1. that the preparation or obtaining, and submission to the Minister, of an environmental impact statement or a public environment report is required if the Minister is satisfied that to do so would be contrary to the public interest.
3.1.4 Where under subparagraphs 3.1.1.(b) the Minister determines that the preparation or obtaining and submission to the Minister of an environmental impact statement or a public environment report is not required, the Minister may nevertheless make comments, suggestions or recommendations to the action Minister concerning the proposed action, including suggestions or recommendations concerning conditions to which the proposed action should be subject, that the Minister thinks necessary or desirable for the protection of the environment, and the Minister, or the Department on behalf of the Minister, shall inform the proponent accordingly.
3.1.5 The Minister shall make available to the public as soon as possible, but at the latest within 3 months after the date of receipt of a written request to do so, the reasons for an environmental impact statement or a public environment report not being directed, with the exception of such material of commercial confidence, having security implications or providing confidential advice to the Minister as would be exempt from disclosure under the Freedom of Information Act 1982.”
GENERAL FACTUAL SETTING
In this part of these reasons I will deal generally with both the decisions and the processes followed that have been called into question in this proceeding. Factual matters which relate distinctively to a particular ground of review will be outlined separately when that ground is considered.
(1) On 5 February of 1997 Mr Sharp released the LTOP for public comment. The closing date for submissions was 7 March 1997. Over 7,500 people and organisations in fact made submissions and in light of some of them amendments were made to several of the flight paths proposed in the LTOP.
(2) DoTRD submitted its Proponent’s Statement to Environment Australia on 11 June 1997. This document of more than 300 pages had as its principal burdens (a) an account of community involvement in the process of developing the LTOP and an analysis of comment received on it in the February-March 1997 public comment period; and (b) an explanation of, and supplementation of information about, noise impacts considered in the LTOP. It contained modifications to the LTOP made in consequence of the consultative process.
On 18 July 1997 Environment Australia sent a memorandum to Senator Hill containing a number of recommendations the principal of which being that the Minister determine under para 3.1.1(b) of the Administrative Procedures that neither an EIS nor a PER was required before the LTOP was adopted.
(3)Senator Hill made his decision on 22 July 1997. It was in the following terms:
“Pursuant to paragraph 3.1.1(b) of the Administrative Procedures of the Environment Protection (Impact of Proposals) Act 1974, I, Robert Murray Hill, Minister for the Environment, having taken into account the requirements of the Administrative Procedures, determine that neither an environmental impact statement nor a public environment report is required for the purpose of achieving the object of the Act in regard to the proposal by the Department of Transport and Regional Development to adopt a long-term operating plan for Sydney (Kingsford Smith) Airport aimed at putting in place, on a long term basis, new operating procedures designed to more equitably share noise generated by Sydney Airport.”
Additionally the Senator made seven recommendations under para 3.1.4 of the Administrative Procedures that related to the LTOP and its implementation.
This decision is challenged in this proceeding.
(4) 0n 30 August 1997 Senator Hill provided a Statement of Reasons for his decision. It is necessary to set out part of it in some detail. The Statement, having noted matters of background, made a series of “findings on material questions of fact”. These were that:
“
·all prudent and feasible alternatives appear to have been taken into account;
·the impacts of aircraft movements around Sydney KSA have been previously studied, including in the Third Runway EIS and in all stages of the preparation of LTOP;
·there are commitments and recommendations to monitor the LTOP and respond to changes identified as beneficial or necessary with experience and over time;
·there are commitments and recommendations to inform the community, take account of community views and involve community representatives in future decision making;
·there has been extensive consultation with members of the public and community representative organisations;
·the LTOP will not affect the volume of air traffic using Sydney KSA (as future growth in air traffic will be mostly demand driven by factors other than the capacity of the airport or the nature of air traffic management).”
The Statement noted the obligations imposed by paras 2.1, 2.2 and 3.1.1 to 3.1.3 of the Administrative Procedures, and continued:
“8. In regard to the matters that I was required to take into account in accordance with paragraph 3.1.2(a) (in italics below) I found as follows:
(i)a substantial environmental effect on a community
A substantial environmental effect upon some parts of the Sydney community, through changes to the pattern of aircraft noise impacts, can be expected if the Plan is implemented. Other areas can be expected to be affected less than at present by aircraft noise. These effects have been taken into account in the proposal and in responses to it. The intent of the proposal is to more equitably share the noise generated by Sydney Airport.
(ii)the transformation of a substantial area
There would be no transformation of a ‘substantial area’ in a physical sense.
(iii)a substantial impact on the eco-systems of an area
There would be no substantial impacts upon ecosystems in the Sydney area.
(iv)a significant diminution of the aesthetic, recreational, scientific or other environmental quality or value of an area
There could be a significant diminution of environmental qualities in some parts of the Sydney Basin. This is taken into account in the proposal and in the responses to it.
(v)an adverse effect upon an area, or structure, that has an aesthetic, anthropologic, archaeological, architectural, cultural, historical, scientific or social significance or other special value for the present or future generations
There could be some adverse effects on areas of social significance. The intent of the proposal is to minimise such effects. These effects have been taken into account in the proposal and in responses to it.
(vi)the endangering, or further endangering, of any species of fauna or flora
There would be no effect upon any species of flora or fauna.
(vii)important long-term effects on the environment
There would be long-term effects on the human environment in some parts of Sydney. These have been taken into account in the proposal and in responses to it.
(viii)the degradation of the quality of the environment
There would be some degradation in the quality of the environment through increased exposure to aircraft noise in some areas. This is taken into account in the proposal and in responses to it.
(ix)the curtailing of the range of beneficial uses of the environment
There might be some curtailment of beneficial uses of the environment. This has (sic) taken into account in the proposal and in responses to it.
(x)the pollution of the environment
Any changes to levels of air pollution from aircraft-related sources would be very small. Changes to noise pollution will be significant and are taken into account in the proposal and in responses to it."
The Statement further noted that, for the purposes of para 3.1.2(b) of the Administrative Procedures, the EIS of the proposed Third Runway at KSA was a relevant environmental action taken. It equally noted that the Minister’s decision was not based upon the public interest ground contained in para 3.1.3.
In that part of the Statement headed “Reasons for Decision”, the Minister made the comment:
“I was satisfied that the requirements of the Administrative Procedures had been met and that, to the greatest extent practicable, matters affecting the environment to a significant extent had been fully examined and taken into account.”
(5) On 30 July 1997, after receiving Senator Hill’s letter informing him that an EIS was not required, Mr Sharp gave a direction to AsA that it implement progressively the LTOP in accordance with a schedule to that direction. The direction, after reciting the history of the matter, was as follows:
“I, John Randall Sharp, Minister for Transport and Regional Development, acting under subsection 16(1) of the Air Services Act 1996 (“the Act”), DIRECT Airservices Australia, consistent with the requirements of the Act, to implement progressively the Sydney Airport Long Term Operating Plan in accordance with the schedule.”
It is unnecessary to set out the terms of the schedule. I would note, though, that (inter alia) it substantially embodied the recommendations made by Senator Hill.
This direction as well is challenged by the applicant council.
Mr Sharp provided a Statement of Reasons for his direction on 4 September 1997. That Statement gave an historical narrative of the use of KSA’s runways from the opening of the parallel runway; of the Minister’s concerns over the burden borne by suburbs to the north of the airport; and of the various steps taken in relation to more fairly distributing aircraft noise. The one matter in this that I would emphasise in the LTOP proposal he finally adopted was what he described as a “key element”. This was the noise sharing targets proposed by AsA and their contrast with earlier runway usages. Though only verbally described in the Statement and though not referring to the pre-1993 figures, these are most easily represented in the diagram used in the LTOP and the Proponent’s Statement. The percentage figures given aggregate both landings and take-offs.
Pre Parallels (1993 ANEI) Parallels (1995 ANEI)
North North
21% 47%
West East West East
21% 16% 1% 1%
South South
41% 51%
Mar 1996-Mar 1997 LTOP-TARGETNorth North
39% 17%
West East West East
6% 6% 15% 13%
South South
49% 55%
That part of the Statement entitled “Reasons for Decision” stated:
“19. I considered that the Government’s election commitments to distribute the noise generated by the Airport in a fairer way and to rework flight paths for take-offs and landings at the Airport to minimise the impact on surrounding communities made it appropriate for me to consider the introduction of a long term operating plan for the Airport with targets directed at sharing the noise generated by the Airport.
20. I considered that, notwithstanding the diversion of some overflights from areas to the north of the Airport to areas to the east and the west of the Airport pursuant to my directions of 20 March 1996 and 14 September 1996, people living to the north of the Airport were still unfairly bearing the burden of aircraft noise generated by the Airport.
21. I considered that the proposal constituted a total package of measures for the Airport which built on, and superseded, the measures introduced pursuant to my directions of 20 March 1996 and 14 September 1996. I formed the view that the proposal, if implemented, would result in a more equitable distribution of the noise generated by the Airport as follows:
.the proposal would have the effect of spreading flight paths over residential areas more widely;
.the proposal contains targets for patterns of runway use which are designed to achieve a more equitable distribution of aircraft noise than had been achieved to date as described in paragraph 15 of these reasons [ie, the distribution represented diagrammatically above];
.the proposal would have the effect of placing more aircraft movements over areas of water;
.no residential areas would receive the highest levels of noise exposure that communities to the north of the Airport had been subjected to under parallel runway operations; and
.fewer people would be likely to suffer the more severe levels of noise exposure but more people would be in areas of more moderate levels of exposure.
22. I also formed the view that measures proposed by the Minister for the Environment would enhance progressive monitoring, public consultation and review of the effectiveness of the plan in achieving its targets and should therefore be adopted.
23. I therefore directed AA, consistent with the requirements of the Air Services Act 1995, to implement progressively the Sydney Airport Long Term Operating Plan in accordance with the schedule to the direction.”
THE CHALLENGES TO THE MINISTER FOR THE ENVIRONMENT’S DECISION
Senator Hill’s decision of 22 July 1997 that neither an EIS nor a PER was required prior to the adoption of the LTOP has been challenged on five grounds. It is unnecessary in considering these to distinguish between claims made under the ADJR Act and those made under the Judiciary Act 1903, s 39B. The five grounds alleged are (1) failure to observe procedures required by law to be observed: ADJR Act, s 5(1)(b); (2) taking irrelevant considerations into account: ADJR Act, s 5(2)(a); (3) failing to take relevant considerations into account: ADJR Act, s 5(2)(b); (4) Wednesbury unreasonableness: ADJR Act, s 5(2)(g); and (5) no evidence or other material to justify making the decision: ADJR Act, s 5(1)(h). There is a number of alternatives pleaded within several of these. It will be necessary to consider each ground in turn.
Because it is applicable across the various grounds raised, there is one matter that conveniently can be mentioned at the outset. It relates to the appropriate reserve to be shown by courts in reviewing reasons for decision of administrative decision-makers. As the High Court has again emphasised in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272, such reasons are entitled to a “beneficial construction”:
“[they] are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.”
In a number of instances, as will be seen, I have in effect been invited to engage in such scrutiny.
Failure to observe required procedures
The claim here is that Senator Hill failed to observe the procedures prescribed in paras 3.1.1(b) and 3.1.2 of the Administrative Procedures. Put shortly it is alleged that the Minister failed to take account of paras 3.1.2(a)(i), (iv) and (vii) of the Procedures in that the impact on the environment required to be taken into account by those sub-paragraphs was one which necessitated a knowledge and understanding of the impact of noise rather than the fact of noise.
Those sub paragraphs were ones the Minister was required to take into account in making a decision under para 3.1.1(b). As a matter of convenience I reiterate here in a composite way both the terms of subparagraphs (i), (iv) and (vii) and Senator Hill’s observations on them in his Statement of Reasons:
“(i)a substantial environmental effect on a community;
A substantial environmental effect upon some parts of the Sydney community, through changes to the pattern of aircraft noise impacts, can be expected if the Plan is implemented. Other areas can be expected to be affected less than at present by aircraft noise. These effects have been taken into account in the proposal and in responses to it. The intent of the proposal is to more equitably share the noise generated by Sydney Airport.
…
(iv)a significant diminution of the aesthetic, recreational, scientific or other environmental quality, or value, of an area;
There could be a significant diminution of environmental qualities in some parts of the Sydney Basin. This is taken into account in the proposal and in the responses to it.
…
(vii)important long-term effects on the environment;
There would be long-term effects on the human environment in some parts of Sydney. These have been taken into account in the proposal and in responses to it.”
Additional Evidentiary Material
The evidence relied upon by the applicant falls within a narrow compass.
(i) The applicant’s expert, Mr Cooper (an acoustical consulting engineer) gave affidavit evidence (paras 24-26) that different types of aircraft (eg a small twin Otter aircraft and a Boeing 747) could not be treated as “equivalent … in terms of noise effect” so that reliance on overflight of aircraft as such could not provide a criteria of noise distribution, the more so when the height of the aircraft overlying would itself effect noise impact. In consequence Mr Cooper concluded:
“Although it is correct to say that the proposal as put forward in the Proponent’s Statement will give a distribution of aircraft overflights throughout various areas of Sydney, an assessment of equity based only on the number of overflights must be misconceived. It does not establish any form of equitable distribution of noise, because it does not take into account the height of aircraft, different types of aircraft, or the differential noise impact of the same aircraft at the same height depending upon whether the population concerned has already been exposed to aircraft noise, or is to be newly exposed. This latter consideration is discussed in detail below. However, to take a simple example, it is now accepted in acoustical analysis that a community which was not exposed to aircraft noise will suffer a considerably greater noise impact as a result of the introduction of 100 jet aircraft overflights than will a community which has previously had 75 aircraft overflights and will now be exposed to an additional 25, and even more so if those additional 25 aircraft were small aircraft.”
The “latter consideration” of new exposure to noise, in Mr Cooper’s opinion, rendered inadequate the ANEF system of forecasting the extent to which a community would be affected by aircraft noise unless the system itself was modified to provide some indication of the impact that would occur as a result of new exposure.
(ii) In cross-examination, the respondents’ expert Mr Peploe (also an acoustics engineer) acknowledged the difference between the subjective response to noise and to changes in exposure (“impact”), and the measurement of noise itself. He accepted the proposition that while noise might be redistributed to reduce impact you could not know that so doing necessarily had that effect.
The respondents for their part drew attention to considerable portions of the documentary evidence placed before Senator Hill. They noted the following.
(i) In Environment Australia’s Background Report there was a twenty page section dealing with the environmental impact of aircraft noise. That section discussed “noise assessment methodology”; it acknowledged criticisms of the ANEF system and the steps taken to address its shortcomings; it highlighted patterns of noise exposure and the “targets” to be pursued in runway use (set out diagrammatically in “General Factual Setting”, above); it noted the ANEF forecasts were that the number of people within the (high) 30 ANEF contour would be reduced to less than half, but those within the 20-30 ANEF contour would rise by 50% with the overall effect that –
“more people would be (and have been since March 1996) exposed to aircraft noise, but fewer would experience high levels.”
and it made reference to aircraft noise and health.
(ii) The Proponent’s Statement, Ch 3, provided more detailed examination of noise and its impacts. For present purposes I need merely note the following. (a) It described the LTOP itself in the following way:
“3.2 Noise
The Plan is a program to address Sydney Airport’s noise problems through redistributing the noise generated by the Airport thus reducing the concentration of noise which resulted from operating the Airport almost exclusively in a parallel mode.
In essence the proposal is that noise generated by the Airport be maximised over water or non-residential land. Where this cannot be achieved it is intended that the noise be shared as equitably as practicable between communities.
The Plan is solely about redistributing noise and – unlike the third runway project – is not intended as a means of increasing the capacity of the Airport. Nevertheless redistributing noise will inevitably result in some areas being subject to an increase in noise in order to allow the most impacted areas to experience a decrease. Analysis of the proposal shows that compared to the parallel runway regime the number of persons in the highest noise areas (within the 30 ANEF) will be more than halved while the number of persons in the lower noise contours (between 20 ANEF and 30 ANEF) will increase by around fifty per cent”: emphasis added.
(b) In a table (Table 3.1) the Chapter provided by postcode area, the changing numbers of persons within the ANEF contours > 30, 25-30, and 20-25 under the LTOP and under earlier runway usages to support the conclusion as to the changing effect on the community of the noise redistribution to be effected by the LTOP.
Submissions and Conclusions
The applicant’s submissions would seem to involve the following.
(i) Section 5 of the EP(IP) Act and the sub-paragraphs of para 3.1.2(a) are concerned with environmental effects of actions and it is with those effects that the Minister must concern himself. Consequently he cannot concern himself with noise simpliciter. He must concern himself with the impact of noise.
(ii) The introduction of noise into human surroundings may have a significant environmental effect, but for the purposes of the EP(IP) Act and the Administrative Procedures it cannot be said to have been examined and taken into account if all that is known is the bald fact that there will be noise without an understanding of the effect of that noise.
(iii) Insofar as concerns sub-para (i), while the changes to the patterns of aircraft noise will have an impact, a decision as to its environmental effect cannot – or cannot reasonably – be taken without knowing what the impact will be.
(iv) the objection to the Minister’s sub-paragraph (iv) reasons would seem to be that, because only the possibility of significant diminution of aesthetic quality etc is identified, the Minister is unable to take into account to what extent there would be a significant diminution in aesthetic quality, etc.
(v) The objection to the Minister’s sub-paragraph (vii) reasons would seem to be that the Minister could not take into account important long-term effects on the environment unless he knew what those effects were. Here they were not taken into account insofar as impact was concerned at all.
The respondents challenge both the assumptions and the suggestion of the applicant’s submissions in the following ways.
(i) The term “impact” is being used ambiguously to mean variously noise exposure and an individual’s subjective appreciation of noise exposure. Yet the applicant’s case would seem to require that the latter be known and taken into account.
(ii) The Minister was briefed about “impacts”. In para 54(c) of Environment Australia’s “Issues for Consideration” provided to the Minister, it was stated that:
“c) the impacts of aircraft movements around Sydney KSA have been studied on many occasions including in the Third Runway EIS and in all stages of the preparation of LTOP. Although the analysis and presentation of the impacts of aircraft noise is an imperfect science, methodology used has been developed progressively and would appear to be the best available at present. Research into the health impacts of aircraft noise is continuing, including through a study arising from the Third Runway EIS. The information base appears to be comprehensive. Although requiring an EIS might lead to an improvement in methodology and add to the body of information available, the benefits would appear to be marginal”.
(iii) The primary focus of the whole LTOP exercise was actual noise and its redistribution. The Minister was not dealing with the subjective appreciation of individuals, nor was he required to. He was quite entitled to proceed on a community-wide basis of sharing noise. There was nothing to suggest that the redistribution would not variously increase and decrease noise impacts. The respondents point to the ANEF estimates. It was enough to know the areas of noise affection and the likely levels of noise exposure.
(iv) It is contended that Mr Cooper’s evidence on the matter is more concerned with noise simpliciter as witness his comments on overflights. And while Mr Peploe accepted the distinction between noise and its impact he equally indicated that it was not possible in his view to assess “at the moment” what the reductions in impact would be arising from the LTOP.
(v) Separately, the objection taken to the Minister’s sub-paragraph (iv) reasons and his use of the word “could” is, it was submitted, an example par excellence of the form of scrutiny of reasons condemned in Wu Shan Liang, above.
For my own part I am in broad agreement with the respondents’ contentions. I consider there is a distinct air of unreality in the applicant’s case. Not only was the LTOP an action having a significant environmental effect, it was created for that very purpose. Its object was to redistribute noise - and noise the incidence of which was a matter of no little public and political controversy. The subjective appreciation of noise exposure by those to be newly affected was not, in my view, a matter that required specific assessment or examination by the Minister. The object of the plan was to confer benefits by (inter alia) imposing burdens and over significant areas. The Minister was aware of this. Having appreciated the object of the proposal, the means to be employed in its realisation and the apprehended outcomes in terms of forecast levels of noise exposure, he was entitled to approach the matter as the respondents contend on a community wide basis.
Furthermore, the Minister was not concerning himself simply with noise as an abstraction. He was considering the environmental effect of the proposed redistribution – ie of the proposed changes in community exposure to noise. And the information he was provided related sufficiently to that “environmental effect”. It is difficult to resist the conclusion that in its focus on “impact” of noise – and I agree with the ambiguity in this highlighted by the respondents – the applicant has, in fact, sought to engage in a merits review of the fairness of the redistribution itself. This is more than an undertone in Mr Cooper’s evidence, as the earlier quotation from his affidavit illustrates.
I have considered this matter at some length. It infuses in varying ways almost all of the grounds raised by the applicant. I reject the claims made. And I would note as an abundance of caution, that I accept the respondents’ Wu Shan Liang submission in relation to the objection taken to the reasons given by the Minister concerning sub para (iv) in his Statement of Reasons.
Irrelevant considerations
In para 10 of his Statement of Reasons Senator Hill indicated that he had determined that the 1991 Proposed Third Runway, Sydney Kingsford Smith Airport: Environmental Assessment Report (“the Third Runway Report”) was a relevant environment assessment action taken for the purposes of para 3.1.2(b) of the Administrative Procedures. The effect of this determination was that he was required to take it into account in his para 3.1.1(b) decision.
The applicant’s case is that that Report was not a “relevant assessment action” and in consequence an irrelevant consideration was taken into account. The basis of this assertion is that the Third Runway Report did not at all deal with impacts that were a consequence of the LTOP.
The submission of Mr Cooper, the applicant’s expert (see Federal Court Rules O 10 r 1(2)(j)), was that the Report was predicated on a completely different runway usage; it has been revealed to contain “significant and critical errors”; and in consequence it could not reasonably have been relied upon in determining that no EIS was required for the LTOP.
In oral submission, counsel for the applicant appeared to accept that the Minister was entitled to take the Third Runway Report into account but that he impermissibly used it to justify no further EIS for the LTOP because he considered the necessary assessment had already been made in that Report.
These submissions quite misconceive, variously, the burden of para 3.1.2(b) and the actual content of the Minister’s Statement of Reasons. First it was open to the Minister to determine that the Third Runway Report was a relevant environmental assessment action taken in relation to the LTOP. Though dealing with the implications of the third runway proposal and on the basis of a quite different runway usage from that on which the LTOP was premised, that Report properly could be determined to have a relation to the LTOP. It dealt in its own way and for its own purposes with environmental effects of particular uses of runways at KSA. I would add, given Mr Cooper’s submission, that criticism of the Report was drawn to the Minister’s attention in Environment Australia’s Background Report of July 1997 (see eg pp 13-15 thereof which it is unnecessary to set out here).
Secondly, more fundamentally, the Minister’s Statement of Reasons simply provides no reasonable support for the submission made by counsel. Paragraphs 9 and 10 were in terms that reflected para 3.1.2(b) of the Administrative Procedures and are in narrative form. They stated:
“9. Paragraph 3.1.2(b) requires me to take into account any environmental assessment action taken, or being taken, that I consider to be a relevant action in regard to the proposed action.
10. I determined that the environmental impact assessment of the proposed Third Runway at Sydney KSA, which was conducted in accordance with the Administrative Procedures of the Environment Protection (Impact of Proposals) Act 1974, was a relevant environmental assessment action that was taken within the meaning of paragraph 3.1.2(b) of the Administrative Procedures.”
No reference at all was made to the weight (if any) given the Third Runway Report. And there is otherwise no basis advanced from the Reasons themselves for the suggestion that the Minister regarded that Report as relieving him of the need for an EIS into the LTOP. I am apparently, and despite the rest of his Reasons, being asked to infer from his regarding the Report as a “relevant action”, that he had the attitude sought to be ascribed to him. I am unprepared to draw any such inference. A proper basis for it is not there. Moreover I am at best being invited to trespass far into that region of “over-zealous scrutiny” declared quite impermissible in Wu Shan Liang, above.
I reject this ground of challenge to the Minister’s decision.
Relevant Considerations
This ground is merely an alternative formulation of the matters raised in the first of the grounds (ie failure to observe required procedures) considered above. It adds nothing to that ground and I reject it accordingly.
Wednesbury unreasonableness
It is important to emphasise at the outset that the ADJR Act’s s 5(2)(g) “so unreasonable” ground is one that is “extremely confined”: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36. It does not provide a mask for merits review. It does not, under another guise, allow the review of a decision on grounds of substantive unfairness: ibid 37. And it is not made out by demonstrating that the decision reached is one with which reasonable minds might differ and with some vigour. It is not sufficient to show that a different conclusion or course of action could reasonably have been arrived at or taken: Friends of Hinchinbrook Society Inc v Minister for Environment (No 2) (1997) 69 FCR 28, at 59-65; see also Botany Bay City Council v Minister of State for Transport and Regional Development (1996) 66 FCR 537, at 561-563.
The applicant’s case is variously (i) that no reasonable person making a decision under para 3.1.1(b) of the Administrative Procedures could possibly have been reasonably satisfied that the object of the EP(IP) Act was achieved in regard to the LTOP proposal on the information to which Senator Hill had regard in making his decision; and (ii) that no reasonable person exercising the para 3.1.1(b) power could reasonably have been satisfied that an EIS or PER was not required for the purpose of achieving the object of the EP(IP) Act in regard to the LTOP proposal. A third Wednesbury unreasonableness claim has been made in relation to the Minister’s treatment of the Third Runway Report as a relevant environmental assessment action for the purposes of para 3.1.2(b) of the Administrative Procedures. My earlier conclusions on the Minister’s resort to this Report are sufficient to dispose of this allegation as well.
A common catalogue of particulars have been advanced in support of the unreasonableness claims. Though extensive, I list them all. In their own way they betray the obvious characters of the claims made.
“(a)Not all prudent and feasible alternatives to the proposal were examined or taken into account.
(b)There was no or no proper assessment of the impact on the environment of the proposal and of all feasible and prudent alternatives to the proposal.
(c)There was no or no proper identification, examination or assessment of the need for the proposal.
(d)There was no or no proper identification, examination or assessment of the basis for equitable sharing of aircraft noise so as to determine whether the proposal would result in a more equitable distribution of aircraft noise (although the Second Respondent observed at paragraph 8(i) of his statement of reasons for his decision that “the intent of the proposal is to more equitably share the noise generated by Sydney Airport”).
(e)There was no demonstration that the proposal would more equitably distribute or share the noise generated by Sydney Airport.
(f)Equitable sharing of noise is expressed to be determined having regard to the number of aircraft overflights, without regard to the height of overflights, noise level, or type of aircraft, which factors critically affect noise at ground level.
(g)There was no or no proper identification, examination or assessment of the relative benefits and detriments to different communities in Sydney of the changes proposed.
(h)There was no or no proper identification, examination or assessment of the potential or likely impacts of the proposal on aircraft safety.
(i)There was no or no proper identification, examination or assessment of the changes which could have been made to aircraft operations to reduce the impact of noise for residents to the north of the airport without increasing noise to residents in other parts of Sydney.
(j)There was no or no proper identification, examination or assessment of appropriate noise abatement profiles and procedures.
(k)There was no or no proper identification, examination or assessment of the enhanced noise abatement departure procedures or low power noise approach procedures referred to in section 3.2.4 of the document entitled “Sydney Airport Long Term Operating Plan Proponent’s Statement”.
(l)There was no or no proper identification, examination or assessment of the effect of aircraft noise on persons who would be newly affected by aircraft noise under the proposal.
(m)Noise impact analysis was presented exclusively in graphic form on the single event noise characteristics of a B-747-200 series aircraft, whereas other types of aircraft operate from the Airport.
(n)Cumulative noise analysis methodology was not applied to the proposed operational modes on an individual basis.
(o)The noise exposure maps for the various operational modes rely on the single designation for land use of “built up area” and lack any sufficient detail of land use so as to identify the proposed impacts.
(p)There was no or no proper consideration of the landside (that is, terminals and other functional airport areas) and access elements of the airport system, and in consequence the proposal will result in inefficiency of Airport operations and under-utilisation of infrastructure, which in turn is likely to affect the environment.
(q)Eight of the ten runway operational modes in the Plan involve undesirable operational features, namely complex airspace and air traffic management, single runway operations, crossings of active runways, and taxi conflicts and congestion, which have significant environmental and safety consequences which are not properly considered or assessed in the information.”
In his address, Mr Davison SC for the applicant reduced these to four categories that for convenience I will label (i) prudent and feasible alternatives: see (a) and (b); (ii) noise impact: see (b), (c) and (g)-(n); (iii) more equitable noise distribution: see (d)-(f); and (iv) other: see (o)-(q). I will consider these in turn bearing in mind that it is, seemingly, their effect in aggregate that provides the basis of the applicant’s claim.
Prudent and feasible alternatives
The applicant here has adopted the applicants’ submissions in the Randwick and Woollahra proceeding. The burden of those submissions was that on their proper construction paras 2.1 and 2.2 of the Administrative Procedures required a Proponent to provide information in relation to any (by which seemingly is meant “all”) alternatives to the proposed action that are feasible and prudent and that such did not occur in fact in relation to the LTOP’s proposals.
In my reasons in the Randwick case (see “Procedural Ultra Vires”) I considered at length and rejected those submissions. I need not reiterate what I said there. DoTRD was, simply, under no obligation to provide Senator Hill with information regarding all feasible and prudent alternatives, through it did identify several. Here I need merely say that I do not consider that by reaching his decision on the information before him in relation to “alternatives”, some foundation was thereby laid for a Wednesbury unreasonableness claim.
Noise impact
The submissions here are little more than an elaboration upon those earlier made in relation to noise “impact”. Their preoccupation again is with the impact of noise and not noise itself. Likewise the evidence relied upon is essentially the same, with particular emphasis again placed upon Mr Cooper’s opinion.
Little purpose would be served by again rehearsing the contention advanced. I have rejected it earlier. It acquires no new potency by being advanced in this setting. I merely make the additional comment that in his evidence and in his expert submissions (cf O 10 r 1(2)(j)), Mr Cooper identified a range of matters he considers could or should have been considered or inquired into by the Minister (eg in relation to particulars (j) and (k)). I have already indicated that the Minister was quite entitled to approach his decision on the basis he did. While it may well be the case that a different approach necessitating different (possibly further) actions could reasonably have been taken by the Minister before arriving at his decision, his failure to take such a different approach did not render that taken (and the resultant decision) unreasonable in the Wednesbury sense – the more so as the Minister was not required to inquire into noise “impact” in the extended (ie subjective) sense proposed by the applicant.
In these circumstances I consider it unnecessary to do more than note that in some instances the respondents dispute the factual correctness (or assumptions) of some of the particulars relied upon by the applicant.
More equal distribution
The essence of what is complained of here is Mr Cooper’s criticism that the LTOP was not able to identify a single (ie sole) criterion to demonstrate equity in noise distribution. Having identified six considerations (referred to below) the LTOP, he complains, did not advance a formula for their application.
The relevant part of the LTOP to which objection is taken is as follows:
“The task force environment working group was not able to identify a single criterion to demonstrate equity but it was able to identify a number of considerations which together, and in balance, could be considered to constitute the basis for a fair and reasonable distribution of noise.
These were:
Average Noise Exposure
The average noise exposure levels for different community groups provide a basis for comparing their exposure levels. In this regard, the ANEF System is regarded as the best available and is directly referred to in the Australian Standard AS 2021.
Noise Level and Duration of Exposure
The type of aircraft, type of operation (arrival or departure) and height of overflight are all reflected in noise level. These may be considered collectively and put into a time of duration context as a ‘Time Above’ noise metric such as T70, i.e. Time Above 70 dB(A)max.
Respite
The concept of respite arises from a recognition of the need to provide ‘quiet’ periods for those affected by noise and to balance these between communities, preferably with periods having no aircraft at all.
Number of Overflights
The number of each type of aircraft, both jets and propeller aircraft, is an important factor in considering disturbance levels. When associated with noise levels a noise metric such as N70 i.e. number of noise events above 70 dB(A)max may be used.
Time of the Day/Night
Disturbance during or near sleeping hours outside curfew hours is a source of particular annoyance and should be minimised by use of over water operations and otherwise distributed.
Non-reciprocal Flights
A single population should not generally be subject to both arriving and departing traffic.”
The respondents’ submission is that the object of the redistribution was not one to be achieved by the application of a formula but by the making of value judgments in a public policy setting.
In my reasons in the Randwick case I referred to the problems that appear to have arisen from the varying use of the language of “fairness” and “equity” (see “Minister Sharp’s Purpose – a Question of Language”). The point to be made here was that the outcome sought to be achieved by Mr Sharp was one relative to a prior state of affairs. The distribution of noise was to be more fair than was previously the case. Such could only be achieved by redistributing noise exposure away from those bearing the burden Mr Sharp sought to alleviate. And how practically it could be redistributed was itself affected by a number of matters: the runway configuration of KSA; a multiplicity of variables affecting air traffic management; etc. A public policy goal was being pursued. As with most issues of fairness its achievement was inevitably a matter of value judgment, not of formula. That judgment would obviously not commend itself to those newly obliged to accept burdens from which they previously were freed. But it would not be made unfair in the relevant sense because they in turn could formulate a “fairer” means of noise distribution. The matter was not one of abstract and absolute fairness.
The task force could, in consequence and consistently with Mr Sharp’s direction, reasonably conclude that a balance of considerations such as it identified could provide a basis for carrying the Minister’s objective into effect.
Other matters
Particular (o) relating to noise exposure maps is an “impact” complaint. It is founded upon the evidence of another of the applicant’s experts, Mr Sachman, an expert in airport, system and facilities planning and analysis. His objections were essentially to the methodologies employed in the preparation of noise exposure maps and he contrasted United States’ practice in this.
By failing to differentiate land use (eg residential, commercial, etc) in the data used, the LTOP did not, in his opinion, acknowledge the varying noise sensitivity of different land uses. Likewise, by having such knowledge, it would be possible to develop “separate exposure noise contours … based on different operational scenarios” and so determine for each such “scenario” –
“a relatively detailed accounting of how many acres of what specific land uses on a community-by-community basis would be affected by a given operational scenario.”
Finally Mr Sachman criticised the lack of use of “time above” analysis in the LTOP’s formal noise assessment.
In his submissions, Mr Davison SC acknowledged that these deficiencies were not of themselves decisive of the matter.
While I am prepared to assume for present purposes that AsA could have utilised alternative methodologies in preparing the LTOP which may even have been richer or more subtle in the information that the Proponent and then Environment Australia were then able to funnel to the Minister, I do not accept that the LTOP methodology compared with that espoused by Mr Sachman was so flawed that such an information deficiency was created as could, along with other matters (the case is put no higher than this), generate a sound Wednesbury claim.
The matters referred to in particulars (p) and (q) according to the applicant’s submission relate to the affect of the LTOP on the 1990 Draft Planning Strategy (“DPS”) and the 1993 Draft Planning Strategy Supplement (“DPSS”) for KSA. Both documents were prepared by the Federal Airports Corporation (“the FAC”) a statutory corporation within Mr Sharp’s portfolio responsibility that had the function under s 6 of the Federal Airports Corporation Act 1986 (Cth) (“the FAC Act”) of operating KSA: see also ss 7 and 8 of that Act on functions and s 41 on ministerial directions.
Mr Sachman’s evidence was that, if implemented, the LTOP would have a significant adverse effect on the integrity of the “landside aspects” of these Strategies. He gave as one illustration that the planned use of the third runway has rendered impossible proposals for the international passenger terminal complex.
Accepting all of the consequences suggested by Mr Sachman, it is not apparent to me that Mr Sharp was, in consequence of his portfolio responsibilities or otherwise, required either to subordinate or to accommodate the particular policy objective he was seeking to pursue, to strategies for KSA that had been developed by the FAC, notwithstanding the impact that that policy might have on those strategies. The Minister was responsible to Parliament for his administration including the reconciliation of potentially conflicting objectives pursued by statutory bodies within his portfolio dealing with a related subject matter. That reconciliation (or accommodation) is not a matter for the courts in the way implied in the applicant’s submission in relation to Mr Sharp. It is even less so in relation to Senator Hill. I hardly need say it is not my function to prescribe what is the appropriate hierarchy of policy objectives that either minister ought pursue. In any event, as I note later in these reasons, Mr Sharp issued a directive to the FAC under s 41(2) of the FAC Act requiring it to implement those elements of the LTOP that related to its areas of responsibility.
Conclusion
Having considered the various categories of matter said to provide the basis for this ground of review and having found all wanting individually, I need only indicate that collectively they have not been demonstrated to achieve what they have failed to individually. I reject this ground. As I indicated earlier, it has not risen above an invitation to engage in merits review.
No Evidence
This ground, as particularised, is similar in substance to the Wednesbury unreasonableness ground. It has not been differentiated from that ground for the purposes of submissions. It likewise must be rejected.
Conclusions: The Minister for the Environment’s Decision
All that needs be said here is that none of the challenges made to Senator Hill’s decision has been substantiated.
THE CHALLENGES TO THE MINISTER FOR TRANSPORT’S DECISION
Minister Sharp’s direction to AsA on 30 July 1997 to implement the LTOP progressively in accordance with the schedule to the direction is impugned on two grounds. As with the challenges to Senator Hill’s decision, it is unnecessary here to distinguish between claims made under the ADJR Act and those made under s 39B of the Judiciary Act 1903. The two grounds, to be considered in turn, are (1) failure to observe procedures required by law to be observed: ADJR Act, s 5(1)(b); and (2) Wednesbury unreasonableness: ADJR Act, s 5(2)(g). I would add that the latter ground is itself cast in alternatives.
Failure to observe required procedures
The claim here is that if Senator Hill’s decision was invalid then so too would be Mr Sharp’s direction, the claim being that such a direction could only lawfully be given if a valid determination had been made, or exemption granted, by Senator Hill. It is said that, applying the principle in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490 at 517, the purposes of the EP(IP) Act are such that consequential decisions taken in breach of the Act or the Administrative Procedures are to be held invalid.
Given my findings this challenge must fail. It is unnecessary in consequence for me to express a view on the Project Blue Sky submission. I refrain from so doing.
Wednesbury unreasonableness
Two, discrete challenges are made under this rubric.
No or insufficient information
It is alleged that there was no or insufficient information before Mr Sharp upon which he could reasonably have formed the opinion that the implementation of the direction would distribute noise generated at KSA more equitably. The deficiency in the information before the Minister is particularised in the following way.
“(a) There was no or no proper identification, examination or assessment of the basis for equitable sharing of aircraft noise so as to determine whether the proposal would result in a more equitable distribution of aircraft noise.
(b) There was no demonstration that the proposal would more equitably share the noise generated by Sydney Airport.
(c) Equitable sharing of noise is expressed to be determined having regard to the number of aircraft overflights, noise level, or type of aircraft, which factors critically affect noise at ground level.
(d) There was no or no proper identification, examination or assessment of the relative benefits and detriments to different communities in Sydney of the changes proposed.”
As I understand the applicant’s submissions here they raise in substance the same contentions concerning “impact” of noise that I have previously considered and rejected on two occasions in relation to Senator Hill’s decision. Likewise the same evidence of Mr Cooper and Mr Peploe is relied upon. The one matter I would reiterate is that the decision the Minister was taking involved a value judgment not a precise calculation and that in distributing noise impacts more fairly he was doing so as against the position that had previously obtained and that was in his view unfair. I reject this ground of challenge. It is unnecessary to restate again my reasons for so doing.
No reasonable person could have so exercised the power
The particular reasons given by the applicant for the exercise of the power being unreasonable are as follows:
“(a) The Long-Term Operating Plan referred to in the direction (“the Plan”) proposes runway operation configurations that constrain the capacity between the airside, landside and access capacities of the Airport.
(b) The Plan, by continued use of the east-west runway, limits expansion of the international and domestic terminal buildings needed to accommodate future demand, and limits the development of the Airport ring road system, both of which consequences are fundamentally inconsistent with the policies in the Draft Planning Strategy for Kingsford-Smith Airport (1990) (which was not questioned in the Plan or the Proponent’s Statement) that the Airport will remain the dominant airport in the region until 2010, the Airport will continue to operate indefinitely thereafter, and that it is necessary to release parts of the east-west runway for gates and terminals in order to accommodate the forecast number of passengers.
(c) Eight out of the ten runway operational modes in the Plan involve undesirable operational features, namely complex airspace and air traffic management, single runway operations, crossings of active runways, and taxi conflicts and congestion. In consequence, the Plan necessarily creates inefficiencies in operation and heightened safety risks.
(d) Whereas fundamental to the long-term planning for the Airport in the Sydney Airport Draft Planning Strategy (1990), and basic practice in the planning of modern airports generally, is achieving a balance in airside, landside and access capacities, the Plan considers only the airside operation of the Airport. Due to the failure of the Plan to consider and promote a balanced capacity at the Airport, efficiency of Airport operations is likely to be significantly reduced and infrastructure under-utilised.
(e) There was no cost-benefit analysis conducted in relation to the Plan.”
As I noted earlier in considering the unreasonableness claims in relation to Senator Hill’s decision, the applicant’s expert, Mr Sachman criticised the direction by reference to its affect on the two Strategy documents (the DPS and the DPSS) prepared by the FAC for KSA. The matters particularised above relate essentially to the impact of the LTOP on the strategies.
The first point I should make about this is that the FAC, no less than AsA, was subject to a power of direction in Mr Sharp: see FAC Act, s 41(2); and that on 30 July 1997 he issued a direction to the FAC to undertake certain works “to assist in the achievement of the noise sharing goals of the [LTOP]”. Whatever its strategies for KSA might otherwise have been, the FAC was obliged to comply with this direction.
Secondly, Mr Sharp’s initial direction to AsA on 20 March 1996 to prepare an LTOP required that the LTOP be based on the following principles (inter alia) that:
“
·all three runways at the Airport, including the full length of the east-west runway, are to be available for use by jet and propeller aircraft
…
·the capacity of the Airport is to be maintained to the maximum practicable extent but the programmed movement rate is not to exceed 80 movements per hour:” emphasis added.
As I understand the submission of the applicant, it is that Mr Sharp was bound to take into account the effect of the LTOP on the operations of KSA in relation to the matters particularised above because of the inevitable consequence to the future functioning of KSA of implementing the decision and that it was relevantly unreasonable for him not so to do.
Alternatively the 20 March direction required airport “capacity … to be maintained to the maximum practical extent” and he could not reasonably have been satisfied on the information before him that such was the case.
Cast either way, the submissions must be unavailing. First, as I earlier indicated, it was for Mr Sharp, not the court, to accommodate or allocate priority amongst conflicting policy objectives. In his directive to the FAC he made plain what the priority was (ie noise sharing). And by giving a direction he obliged the FAC to subordinate its strategies to his priority. In particular the use he required of the east-west runway (07/25) may have impacted sharply on FAC proposals for the airport’s infrastructure. But that effect itself cannot then be used to call the reasonableness of the direction into question. At best it required that the FAC revisit its strategies.
Secondly, the submission based on the principle of “maintaining capacity” in the 20 March 1996 direction to AsA seems quite misconceived. Mr Sachman in evidence accepted that he considered this to be an absolute obligation. It was, when considered in its setting, far from that. It was a principle to be implemented in giving effect to the fair noise distribution purpose of the direction. And it was qualified, insofar as Mr Sachman’s complaints were concerned, by the principle that the full length of the east-west runway be kept available for use in any event.
This ground has not been established. The additional comment I would make is this. Whether or not Mr Sharp’s direction can be criticised on the basis that it represented a fragmentation in approach to decision-making in a complex field of public administration when a more composite approach properly was called for – and I make no finding as to this – any such demonstration of poor overall administration would not of itself provide a ground for judicial review of a discrete decision having its own statutory and policy foundations. While an object of the judicial review system is to secure good administration, its practical focus is the flawed individual decision not the flawed administrative program or structure in which individually unobjectionable decisions are taken.
My conclusion then in relation to the challenges to Mr Sharp’s decision is that they also have not been made out.
The final comment I ought to make is to reiterate that it is no part of my function to pass judgment upon the wisdom or substantive fairness of the Ministers’ decisions. That judgment is to be made elsewhere by the community and its political representatives. My concern has been with the legality of the decisions and no more.
Accordingly I dismiss the application.
I certify that this and the preceding thirty-five (35) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn
Associate:
Dated: 3 November 1998
Counsel for the Applicant: Mr W R Davison SC
Mr D R ParrySolicitor for the Applicant:
Houston Dearn O’Connor
Counsel for the Respondent: Mr A Robertson SC
Mr S GagelerSolicitor for the Respondent:
Australian Government Solicitor
Date of Hearing: 25-29 May, 3-4 August, 6-7 August 1998 Date of Judgment: 3 November 1998
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