Botany Bay City Council v Minister of State for Transport & Regional Development
[1996] FCA 218
•1 APRIL 1996
CATCHWORDS
ADMINISTRATIVE LAW - judicial review - application for stay of administrative decisions pending final hearing - principal application made by local government authorities the residents of whose areas live in flight paths to be followed by aircraft arriving at and leaving aerodrome in the event that decisions valid - decision of Minister for Environment pursuant to Administrative Procedures to exempt Minister for Transport from need to comply with those procedures before directing a change in the degree of usage of runways at aerodrome - Administrative Procedures require environmental investigations and environmental impact statements - whether decision of Minister for Environment to grant exemption manifestly unreasonable - whether Minister took into account irrelevant considerations or omitted from account relevant considerations - considerations of principles according to which Court exercises discretion in determining whether or not to grant stay - consideration of question whether councils had standing to sue - whether applicants had established prima facie case in relation both to manifest unreasonbleness and taking into account of irrelevant considerations or the omission from account of relevant considerations.
Administrative Decisions (Judicial Review) Act 1977, ss.3, 5, 6, 15
Environmental Protection (Impact of Proposals) Act 1974, ss.5, 6
Administrative Procedures made pursuant to Environmental Protection (Impact of Proposals) Act 1974, para. 11 and also paras 3, 4, 5, 9, 10
Air Services Act 1995, s.16
Local Government Act 1993 (NSW), s.8
Botany Bay City Council & Ors v Minister of State for Transport and Regional Development & Ors
No. NG251 of 1996
CORAM: SHEPPARD J
PLACE: SYDNEY
DATE: 1 APRIL 1996
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG251 of 1996
)
GENERAL DIVISION )
BETWEEN: BOTANY BAY CITY COUNCIL
ROCKDALE CITY COUNCIL
RANDWICK CITY COUNCIL
HURSTVILLE CITY COUNCIL
Applicants
AND:MINISTER OF STATE FOR TRANSPORT AND REGIONAL DEVELOPMENT
First Respondent
MINISTER FOR STATE FOR THE ENVIRONMENT
Second Respondent
AIRSERVICES AUSTRALIA
Third Respondent
MINUTES OF ORDER
CORAM: SHEPPARD J
PLACE: SYDNEY
DATE: 1 APRIL 1996
THE COURT ORDERS THAT:
The application for interlocutory relief be dismissed.
The costs of the application be the respondents' costs in the principal application.
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 ) No. NG251 of 1996
)
GENERAL DIVISION )
BETWEEN: BOTANY BAY CITY COUNCIL
ROCKDALE CITY COUNCIL
RANDWICK CITY COUNCIL
HURSTVILLE CITY COUNCIL
Applicants
AND:MINISTER OF STATE FOR TRANSPORT AND REGIONAL DEVELOPMENT
First Respondent
MINISTER FOR STATE FOR THE ENVIRONMENT
Second Respondent
AIRSERVICES AUSTRALIA
Third Respondent
CORAM: SHEPPARD J
PLACE: SYDNEY
DATE: 1 APRIL 1996
REASONS FOR JUDGMENT
HIS HONOUR: This is an application for interlocutory relief. The principal application is an application for judicial review. The application is brought by four local government authorities whose residents are said to live under flight paths which would be followed by aircraft if a runway at the Mascot aerodrome known as the East-West Runway were opened to more traffic than is presently the case. The applicants, to whom I shall refer as the councils, seek the review of two decisions one made by the second respondent, to whom I shall refer as the Minister for the Environment, and the other by
the first respondent, to whom I shall refer as the Minister for Transport.
The decision of the Minister for the Environment of which review is sought is a decision said to have been made on 20 March last pursuant to para. 11 of Administrative Procedures made pursuant to the Environmental Protection (Impact of Proposals) Act 1974. The decision was to exempt certain actions from the requirements of the Administrative Procedures. The actions so exempted included a proposed direction by the Minister for Transport under s.16 of the Air Services Act 1995 to the third respondent ("the Authority") to take immediate steps to increase the use of the East-West Runway and a proposed amendment to the Air Navigation (Aerodrome Flight Corridors) Regulations so as to remove the requirement for aircraft to use the presently prescribed corridors to the north of the airport.
The second decision, review of which is sought, is the decision of the Minister for Transport made on 20 March 1996 to direct the Authority pursuant to s.16 of the Air Services Act to take steps to increase the use of the East-West Runway.
The applicants are said to be aggrieved within the meaning of s.5 and s.6 of the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act") because they are each a body corporate constituted by statute for a local government area, the residents and ratepayers of which will be directly, significantly and detrimentally affected by the decisions and because each council has a statutory duty to protect the environment of the area for which it is responsible and the decisions will, or are likely to, affect the environment of that area to a significant extent. The grounds of the application are then stated. To the extent that it is necessary, I shall refer to these when I come to the question whether relief should be granted. I note, however, that not all the grounds were relied upon by the councils in support of this interlocutory application. I have only taken into account those upon which reliance was placed in the submissions made at the hearing.
The immediate claim which the councils make is a claim for an interlocutory injunction that the Authority be restrained until further order from complying with, or implementing, or acting upon or in accordance with the direction given by the Minister for Transport to the Authority pursuant to s.16 of the Air Services Act directing the Authority to take immediate steps to increase the usage of the East-West Runway. It is to be observed that no interlocutory relief is sought against either of the Ministers. The only party which would be affected by the relief, if it were granted, is the Authority.
There are two preliminary matters that I should make clear before I proceed to deal with the substance of the matter. The application is an application for judicial review made under the Judicial Review Act. That Act provides persons aggrieved by decisions made in the field of Commonwealth administrative action with a right to redress where they can show that the decision-maker acted unlawfully in reaching the decision. The expression "unlawfully" in this context is not used in any opprobrious sense. It is used as a means of indicating that the question before a court in an application for judicial review will be a legal one. It will concern the question whether or not the decision-maker has acted in accordance with law. The relevant law may be found in statutes or statutory instruments which govern the area in which the decision has been made. Or there may be a failure to proceed regularly for example in cases where there has been a denial of natural justice or there has been an omission of a relevant consideration from account in the decision making process or the taking into account of an irrelevant consideration. Other grounds include the ground that the decision made was so unreasonable that no reasonable person could have come to the decision. It will be seen from what I have said that the process is not one of "review on the merits". The merits of the matter are not the concern of the Court. The Court's only concern is to ascertain whether those who have made the impugned decisions have reached their decisions according to law. The Court has no jurisdiction to review the merits of the matter.
The grounds relied on here were the grounds of taking into account an irrelevant consideration or failing to take into account a relevant consideration and manifest unreasonableness. As I understood the submissions made on behalf of the councils no other ground was relied upon for the purposes of the interlocutory hearing. Mention was made of a denial of natural justice and it is one of the grounds relied upon in the principal application but that was not a matter developed in argument.
The second matter to which I need to refer before going to the substance of the matters argued concerns the standing of the councils to sue. The respondents have filed notices of objection to the competency of the proceedings. They contend that the applicants are not "persons aggrieved" within the meaning of that expression in the Judicial Review Act. They say that the councils are local government authorities charged with specific functions in relation to their administration of their local government areas. These functions are said not to include the taking of actions claimed to be for the general benefit of the ratepayers and residents of the local government areas for which the councils are responsible. Counsel for the applicant councils referred to some provisions of the Local Government Act 1993 (NSW). They particularly relied on a provision to be found in s.8 of that Act which provides for the charter of a council. Amongst the various matters that are said to be within a council's charter is "to properly manage, develop, protect, restore, enhance and conserve the environment of the area for which it is responsible". Counsel for the respondents, on the other hand, contended that these words had to be read in the light of a consideration of the scope and purpose of the Local Government Act and did not, upon a proper consideration of the Act as a whole, purport to confer on the councils powers of the kind it would be necessary for them to have to bring these proceedings. In the time available for the hearing of this interlocutory application, it was not possible for counsel to develop the matter as fully as it may need to be developed on a final hearing. I do no more than to note the point relied upon by the respondents and to say that I do not regard the point as without substance. Nevertheless, I consider that I should proceed with the hearing of the application upon the basis that the councils do have the requisite standing to sue.
I should mention that, to a degree, wrapped up in this point, is the power of the councils to give to the Court any undertaking it might require as a condition of granting interlocutory relief to pay damages to any person affected by the interlocutory order in the event that the principal application is dismissed after a final hearing. I emphasise the words "any person". If the undertaking were given and accepted, it would mean that the councils might, in the event of their failure in the proceedings finally, face the prospect of having to account to persons not parties to the proceedings for damages suffered as a result of the temporary restraint which would be imposed until the hearing was concluded. Of course, in the area of administrative law considerations whether a party seeking interlocutory relief should be required to give an undertaking as to damages are not the same necessarily as apply where a party in what I may term private litigation sues and obtains an interlocutory injunction in order to preserve the status quo pending the Court determining the matter finally. In such cases an undertaking as to damages is usual. In the administrative law area there is no hard and fast rule and it may be that, if the councils were entitled to interlocutory relief, it would not be appropriate to require such an undertaking. This was another matter flagged during the hearing.
I should next say something of the circumstances in which the Court will grant interlocutory relief in matters of this kind. The matter has been the subject of a number of decisions of this Court since the coming into force of the Judicial Review Act. Provision for a stay is made in s.15 thereof which provides that the making of an application to the Court for judicial review does not affect the operation of the decision or prevent the taking of action to implement the decision but that the Court may, by order, on such conditions (if any) as it thinks fit, suspend the operation of the decision and order, on such conditions (if any) as it thinks fit, a stay of all or any proceedings under the decision. That is the primary provision relied upon by the councils in support of their application for interlocutory relief. They also rely upon the Court's inherent powers to act to restrain action which may adversely affect a party with a sufficient interest pending its resolution of proceedings. Undoubtedly the Court has such a power but, so it seems to me, the considerations relating to its exercise will be little different from those which apply in relation to the exercise of jurisdiction under s.15.
The authorities in relation to this matter are conveniently noted in the Practice and Procedure, High Court and Federal Court of Australia Federal Court Volume at pp.74383-74417. It is correct to say, I think, that there is not to be found in the decisions a complete evenness of approach. In applications for interlocutory injunctions in private law it is fairly well settled that the Court's task is to ascertain, first of all, whether there is a prima facie case and then, if it is satisfied that there is, proceed to consider the balance of convenience. That will necessitate the Court in balancing the competing disadvantages and advantages to each of the parties, and perhaps to the public, in granting or refusing interlocutory relief. In reaching its ultimate conclusion, the Court will often take into account the strength or weakness of the point relied upon which it has found constitutes a prima facie case. If the point is found to be one of substantial strength, the Court may be more inclined to grant interlocutory relief than in cases where the point is regarded as not having significant strength. Each case depends upon its own facts and circumstances. The matter is within the discretion of the judge before whom the matter comes. The cases under s.15 of the Judicial Review Act indicate that the approach adopted by the Court in relation to it is not on all fours with the approach which it usually adopts in applications for interlocutory relief in private litigation. That distinction emerges clearly in the discussion of the authorities in the Practice.
In the present case, counsel for the respondents relied strongly upon the decision of Mason ACJ (as he then was) in Castlemaine Tooheys Limited v The State of South Australia (1986) 148. Amongst other things his Honour said (at 153):
"The principles governing the grant or refusal of interlocutory injunctions in private law litigation have been applied in public law cases, including constitutional cases, notwithstanding that different factors arise for consideration. In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction."
Mason ACJ added (at 154), that it might be that in some cases where the public interest would be adversely affected by the grant of an injunction, the plaintiff may need to show a probability, even a distinct probability of success, in order to obtain an interlocutory injunction. He said that the degree of likelihood of success in the action was a factor that was related to the balance of convenience.
The only other authority to which I refer in relation to this matter is Aboriginal Development Commission v Ralkon Agricultural Co. Pty Limited (1987) 15 FCR 159. The Court said (at 163):
"...it is clear that the inquiry whether there is a serious question to be tried must be answered with reference to the circumstances of the case. There may be cases in which the facts are so clearly and comprehensively established at the time of the application for the interim order that the court would conclude that the applicant had no arguable case. At the opposite extreme there may be cases in which the applicant has had little opportunity to ascertain the facts and to adduce evidence but there is some material to suggest an entitlement to relief. Upon further investigation that material may turn out to be capable of ready refutation or explanation but, in the meantime, it may be appropriate for the court to intervene. Everything must depend upon the circumstances of the case, including the extent to which the applicant has had an opportunity to present the facts to the court and the consequences of granting or of refusing relief."
The two dicta to which I have referred tend to show that in some circumstances it will not be appropriate to grant interlocutory relief in a matter of this kind where the Court has been unable to satisfy itself that the matters to be relied upon establish a prima facie case which has a significant prospect of success. The fact that that may not be shown may be because the matter has come on as a matter of urgency and there has not been time to prepare it properly or to prepare the argument which will ultimately be relied upon sufficiently well. The fact that such a view may be taken does not mean that the Court eventually may not be persuaded after all that the point is correct.
It is next necessary to refer to the legislation which is relevant to the questions which are raised by this application. The Acts which are involved are the Environment Protection (Impact of Proposals) Act ("the Environment Protection Act") and the Air Services Act. The former Act relates to the first of the decisions which are impugned by the application and the second of the Acts relates to the second of those decisions. The relevant provisions of the Environment Protection Act are to be found in ss.5 and 6. Section 5 provides that the object of the Act is to ensure, to the greatest extent that it is practicable, that matters affecting the environment to a significant extent are fully examined and taken into account in and in relation to a number of matters including the formulation of proposals, the carrying out of works and other projects and the making of, or the participation in the making of, decisions and recommendations 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. There was no discussion about the meaning of the expression "government, authority, body or person". There may be some question whether "government" refers to other than the Commonwealth or a Territory Government; see the definition of "authority of Australia" in s.3 of the Act but, at least on a prima facie basis, it would seem that the words "authority, body or person" are wide enough to cover the councils in this case.
Section 6 of the Environment Protection Act provides for approved procedures and empowers the Governor-General to approve, by order, administrative procedures for the purpose of achieving the object of the Act, i.e. the object stated in s.5, being procedures that "are consistent with relevant laws, as affected by regulations under this Act." The expression "relevant laws" in this context was again not the subject of any discussion in argument. I express no view on the ambit of it but it may be necessary to consider it at a final hearing. Subsection 6(2) of the Environment Protection Act provides that, without limiting the generality of subsec. 6(1), the approved procedures may provide for a number of matters. The first of these is enabling the Minister to require the supply of information for the purpose of consideration, by or on behalf of the Minister, of the necessity for environmental impact statements or public environmental reports. A further matter referred to is authorising the Minister to direct the preparation or obtaining, and the submission to the Minister, of statements to be known as environmental impact statements. There are other paragraphs which are relevant but I do not find it necessary to refer to them in detail.
Pursuant to s.6 there have been published "Administrative Procedures". Paragraph 11 of these Procedures provides for exemptions. The relevant provisions commence with para. 11.1 which provides that a Minister, Department or an authority of Australia may request the Minister for the Environment to exempt a Commonwealth action or a class of Commonwealth actions from all or any of the requirements of the procedures. Paragraph 11.2 provides that, subject to certain matters, the Minister or the Department on his behalf may consult with any Department or authority of Australia, any State or authority of a State, any local authority or any other person or body concerning whether a Commonwealth action, or a class of Commonwealth actions, should be exempted from all or any of the requirements of the procedures. Paragraph 11.3.1 provides for a number of matters which the Minister is bound to take into account in determining whether to exempt a Commonwealth action, or a class of Commonwealth actions, from all or any of the requirements of the procedures. Prima facie I take the view that the only one of these which is relevant to this case, highly important though it is, is whether the exemption sought would be contrary to the public interest. Another matter which the Minister is bound to take into account comprises any views on a matter referred to in subpara. 11.3.1(a) expressed by the Minister, Department or authority of Australia making the request. Paragraph 11.3.2 provides that the Minister shall, in determining whether to exempt a Commonwealth action or a class of Commonwealth actions from all or any of the requirements of the procedures, have regard to the general principle that it is desirable in the national interest that the requirements of the procedures should, as far as reasonably possible, apply to all Commonwealth actions.
Paragraphs 11.4 and 11.5 of the procedures are as follows:
"11.4 If, following a request under paragraph 11.1 and having regard to the matters set out in paragraphs 11.3.1 and 11.3.2, the Minister thinks it appropriate to do so, he or she may exempt, in writing, a Commonwealth action, or a class of Commonwealth actions:
(a)from all or any of the requirements of these procedures; or
(b)from all or any of the requirements of these procedures for a specified period; or
(c)from all or any of the requirements of these procedures until the occurrence of a specified event.
Publication of exemptions, etc.
11.5Unless the Minister is satisfied that to do so would be contrary to the public interest, an exemption under paragraph 11.4., and a summary of the reasons for granting the exemption, shall be made public."
The submissions made on behalf of the councils are based on the provisions of para. 11 but, without referring to the detail of them, I should indicate that I have noticed the provisions of para. 3 dealing with requirements for environmental impact statements and public environment reports, para. 4 dealing with matters to be dealt with by environmental impact statements and public environment reports and para. 5 dealing with the form of such statements or reports. General reference should also be made to para. 9 dealing with the examination of environmental impact statements and public environment reports and para. 10 dealing with the review of environmental aspects of proposed actions.
Pursuant to para. 11 of the Administrative Procedures, the Minister for the Environment purported to exempt a number of Commonwealth actions from the requirements of the Administrative Procedures. The actions were as follows:
"(a)the proposed direction by the Minister for Transport and Regional Development under section 16 of the Air Services Act 1995 to Airservices Australia (a copy of which is attached);
(b)any proposed amendment to the Air Navigation (Aerodrome Flight Corridors) Regulations so as to remove the requirement for aircraft to use the presently prescribed corridors to the north of the airport;
(c)any Commonwealth action in relation to or connected in any way with actions (a) or (b) (including, without limiting the generality thereof, action by Airservices Australia);
(d)any Commonwealth action (including but without limiting the generality thereof, action by Airservices Australia) in consequence of (a), (b) and (c) above."
The proposed direction referred to in para. (a) has in fact now been made. The direction is as follows:
"I, JOHN RANDALL SHARP, Minister for Transport and Regional Development, acting under section 16 of the Air Services Act 1995 (the Act), hereby direct Airservices Australia to:
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
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 direction was made on 20 March 1996 after the exemption was made. Section 16 of the Air Services Act pursuant to which the direction was purported to be made is, so far as relevant, as follows:
"16. (1) The Minister may give written directions to AA relating to the performance of its functions or the exercise of its powers.
(2) Particulars of any directions given by the Minister in a financial year must be included in AA's annual report for that year.
(3)AA must comply with a direction given under subsection (1).
........ ........ ........ ........ ........ ........ ..."
The reference to "AA" is, of course, a reference to the Authority; see subsec. 3(1) of the Air Services Act.
The Authority was established by s.7 of the Air Services Act. Section 8 provides for its functions which include providing facilities to permit safe navigation of aircraft within Australian administered airspace and also providing a number of services, for the purpose of giving effect to the Chicago Convention or otherwise for purposes relating to the safety, regularity or efficiency of air navigation. These services include air traffic services, rescue and fire fighting services and the search and rescue service. Another function is the carrying out of activities to protect the environment from the effects of, and the effects associated with, the operation of Commonwealth jurisdiction aircraft. That expression is defined in subsec. 3(1). It is not necessary to refer to the detail of the definition. Section 9 provides that, in exercising its powers and performing its functions, the authority must regard the safety of air navigation as the most important consideration. However, subject to that matter, the Authority must exercise its powers and perform its functions in a manner that ensures that, as far as is practicable, the environment is protected from the effects of the operation and use of aircraft and the effects associated with the operation and use of aircraft. By sec. 10 the Authority must, where appropriate, consult with a number
of bodies and organisations including government and other relevant bodies and organisations.
The councils applied, pursuant to s.13 of the Judicial Review Act, for a statement of reasons in relation to each of the decisions in question, namely the decision to grant the exemption and the decision to make the direction. The reasons for the first of these decisions were provided on 20 March 1996 when the exemption was granted. The reasons do not purport to be reasons pursuant to s.13 of the Judicial Review Act. It is likely that they are reasons which were required to be published pursuant to para. 11.5 of the Administrative Procedures. Presumably, however, if reasons were supplied pursuant to s.13 of the Judicial Review Act, they would be similar to the reasons provided under para. 11.5 of the Administrative Procedures.
Reasons for the making of the direction under s.16 of the Air Services Act were not provided until 29 March, the day of the hearing. They were provided during the morning but without annexures referred to in them. The annexures did not become available until the afternoon. Counsel for the councils said that they were unable to deal with them on the afternoon of the hearing and sought to defer that aspect of the matter until today. He said that the shorter adjournment offered him by the Court on Friday afternoon would not enable him to give them adequate consideration before making submissions as to their consequences.
The application had come before the Court as a matter of urgency on short notice. There was no suggestion that there would be any delay occasioned by an absence of reasons when the matter was listed. The matter could only be taken if a part heard case which is in the course of hearing by me was displaced. There had already been an interruption to the hearing of that case for a substantial period but I offered to make the balance of the afternoon available if this would help. Counsel did not accept this proposal and asked that the matter be deferred until today. It seemed to me that a sufficient time for an interlocutory hearing had been made available. To have acceded to their application would have meant that the part heard case would have had to be interrupted again or that another judge would have had to be found for this matter with the consequence that the argument already concluded would have had to be repeated. In all the circumstances I reached the conclusion that I should not defer the matter but made it clear that I was prepared to adjourn for a time in order to given counsel an opportunity of considering the reasons. That offer was declined.
The result of this was that no submissions at all were made in this interlocutory application concerning the second of the decisions, that is the decision concerning the direction. I said to counsel that, if his clients were unsuccessful on the arguments which they put in relation to the exemption and if, on further reflection, they wished to move for interlocutory relief on matters based on the second of the decisions pursuant to which the direction was made, a further application for interlocutory relief could be brought. I made it clear, however, as is the case, that, if that occurs, the application will need to come before a different judge simply because of other commitments which I have.
It is convenient, at this point, to say that, as in all matters of this kind, it is desirable that this matter be the subject of a final hearing as soon as possible. Only then will the rights and obligations of the parties, subject of course to the question of any appeal, be finally determined. The case appears to be in a comparatively narrow compass and one that could be heard in no more than two days. I foreshadowed that, whatever the outcome of these proceedings was, I would today make directions for the ongoing prosecution of the case and I would endeavour to arrange for a judge to be made available to hear the case on a final basis before the end of April, notwithstanding that that will cause some disruption of the Court's list as it now is. I indicated to the parties that they should, after I deliver these reasons, be in a position to seek whatever directions are necessary to bring the matter on for an urgent hearing on a final basis and that I would require estimates of the length of time which would be needed for its completion and the earliest date upon which the parties could be ready for that hearing.
Against that background I proceed to deal with the submissions which were relied upon in relation to the exemption.
In order to appreciate the submissions that were made, it is necessary to refer in a little detail to the reasons which were provided on 20 March 1996. Paragraphs 2, 3 and 4 of the reasons are as follows:
"2.I am satisfied that the residents of some communities in Sydney are suffering grievous hardship because of the existing arrangements at Sydney (Kingsford-Smith) Airport ('Sydney Airport'). In particular, the use of the parallel runways and the requirement to use legislated flight corridors, combined with the effective closure of the east-west runway other than in some limited weather conditions, has resulted in a concentration of aircraft movements and related noise impacts in certain suburbs. This concentration of aircraft overflights represents, in my view, an inequitable distribution of aircraft noise impacts.
I am informed that in the last full year for which data is readily available for the Airport operating with intersecting runways (1993), there were approximately 49,000 landings from the north or take-offs to the north on the main north-south runway. During the first year with the parallel runways this number (take-offs to the north on the old north-south runway and landings from the north on the parallel runways) more than doubled to around 116,000 while the total number of movements on the east-west runway fell to approximately 5,500. In 1993 there were about 85,000 movements on the east-west runway.
Introduction of the flight corridors to the north of the Airport has resulted in all jet aircraft overflights being concentrated over the suburbs which fall along the extended centre-lines of the north-south runways. Abolition of the northern corridors and increased use of the east-west runway will significantly reduce the number of aircraft movements over these suburbs."
Paragraph 7 of the reasons is as follows:
"7.The proposed Commonwealth actions will, if taken, have the effect of providing significant and immediate relief to the residents of those communities in Sydney which are at present most affected by the existing arrangements at Sydney Airport. In particular, increasing the use of the east west runway will help ensure a more equitable distribution of the noise impacts associated with Sydney Airport."
Paragraph 8 refers to certain details of operating procedures for the east-west runway but says that they had not yet been worked out.
Paragraphs 10, 11, 12 and 13 of the reasons are as follows:
"10.I accept that the application of the Administrative Procedures to the proposed Commonwealth actions would delay the taking of these actions. Accordingly, the application of the Administrative Procedures would delay the provision of immediate relief to the communities who, under the current arrangements at Sydney Airport, are exposed to the greatest number of aircraft overflights. In particular, it would delay an increase in the use of the east west runway and so would delay the redistribution of the impacts, which is required to achieve a more equitable outcome. In my view, it is contrary to the public interest for there to be any delay in the provision of immediate relief to the communities who are suffering most from the adverse noise impacts associated with Sydney Airport."
11.Accordingly, I believe that the application of the Administrative Procedures to the proposed Commonwealth actions would be contrary to the public interest. (I note that the issue I must consider is not whether an increase in the use of the east-west runway is in the public interest).
12.I note that in considering how the application of the Administrative Procedures will affect the 'public interest' there may possibly be competing 'public interests'. In this regard, I have had regard to the following:
An increase in the use of the east-west runway and the repeal of flight corridors to the north of the airport will have an adverse effect on some communities in that it will increase the impact of aircraft noise on residents in those communities. In this respect, the fact that, if I grant an exemption, the Administrative Procedures will not be complied with in relation to the proposed Commonwealth actions means that:
·the adverse effect on these communities will occur without relevant decision maker shaving had the benefit of any environmental impact assessment that may have occurred under the EPIP Act;
·the adverse effect on the communities will occur earlier than it might have occurred if the Administrative Procedures were complied with; and
·these communities will not have the opportunity of participating in any assessment that may have occurred under the EPIP Act.
13.Nevertheless, any public interest in having an environmental assessment of the impact of aircraft noise in these communities is in my view outweighed by the need for the immediate relief of those most directly affected by aircraft noise as a result of current arrangements.
While not directly relevant, I have noted the public commitment of government to implement noise amelioration measures in areas affected by changes to runway usage on the same terms as provided to those presently affected."
The reference to the EPIP Act is, of course, a reference to the Environmental Protection Act.
Paragraph 14 said that a number of assessments or enquiries had examined issues associated with runway usage at Sydney Airport. Reference was also made to an intended review by the Authority with the assistance of the Civil Aviation Authority leading to a long term operating plan for the Airport and associated airspace. The existence of the assessments and inquiries which had already been conducted and of the proposed review combined with the obvious need for a more equitable distribution of aircraft movements associated with Sydney Airport reduced the need (from a public interest perspective) for compliance with the Administrative Procedures. The Minister also said that he had regard to the general principle that it was desirable in the national interest that the requirements of the Administrative Procedures should, as far as reasonably possible, apply to all Commonwealth actions. Reference was made to para. 11.3.2 of the Procedures. The Minister said that the principle was overridden in the present case by the public interest he had identified. Paragraphs 16 and 17 of the reasons are as follows:
"16.I have also had regard, as required by paragraph 11.3.1(b) of the Procedures, to the views expressed by the Minister for Transport as to the public interest reasons he sees as justifying an exemption. I consider that these reasons, in all the circumstances, generally further support an exemption on public interest grounds. In particular, I note his view that the availability of existing material and evidence as to the relevant environmental effects suggest the application of the Administrative Procedures would represent an unnecessary use of public resources.
17.After considering all of the above matters, I am satisfied that the application to the proposed Commonwealth actions of the Administrative Procedures would be contrary to the public interest. In the circumstances, the need to avoid any delay in providing immediate relief to the communities most affected by aircraft overflights and to ensure that, as soon as possible, there is a re-distribution of aircraft noise across Sydney outweighs the fact that, as a result of my granting an exemption, some other communities in Sydney will be adversely affected by the increase in the use of the east-west runway and there will be no assessment under the EPIP Act of these impacts."
The principal submission made on behalf of the councils was that, in the circumstances of the case, it was manifestly unreasonable, in the sense in which that expression is used in administrative law, for the Minister to transfer to the residents of the local government areas for which the councils have responsibility the "grievous hardship" referred to in the reasons without there being an environmental impact statement for which the Administrative Procedures would have provided, in circumstances where the present use of the Airport, that is to say the predominant use of the north-south runways, came about after environmental enquiries and consequential environmental impact statements were obtained before those arrangements were implemented. An account of the environmental action that was taken prior to the present arrangements being implemented both in respect of the north-south runways and the east-west runway are described in the affidavit of Mr J.F. Patterson sworn on 27 March 1996. I do not refer to the detail of what he says but the affidavit tends to establish that there was a significant environmental inquiry into the matter before the decision was made late in
1994 to concentrate flight paths along the corridors leading to and away from the north-south runways and to use the east-west runway only in particular circumstances brought about by the needs of safety or weather patterns. Of course, counsel recognised that the "grievous hardship" referred to in para. 2 of the reasons would not be all transferred to the residents of the municipalities for which their clients were responsible. The effect of the proposal seemed likely to be to transfer part of the problem to those residents with the consequence that the problem being encountered by the residents of other municipalities to the north of the aerodrome would be reduced. Nevertheless, counsel's submission was that there was manifest unreasonableness in exempting the Minister for Transport from the Administrative Procedures and not to require him to follow the procedure which had previously been undertaken and which led to the environmental impact statement then obtained.
The leading authority on manifest unreasonableness is Associated Provincial Picture Houses, Limited v Wednesbury Corporation [1948] 1 KB 223. That authority has been the subject of discussion in numbers of cases in Australia. It has been the subject of consideration by this Court in some cases and also by the High Court. Notable amongst these is the decision of the High Court in Minister for Aboriginal Affairs v Peko-Wallsend Ltd. (1986) 162 CLR 24 where Mason J said (at 40), when dealing with the obligation of an administrative decision-maker to take into account a particular consideration, that not every consideration which a decision-maker is bound to take into account but fails to take into account would justify the Court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. His Honour developed this matter and then referred (at 40) to the limited role of a court reviewing the exercise of an administrative discretion. He emphasised that it was not the function of the Court to substitute its own decision for that of the administrator by exercising a discretion which the legislature had vested in the administrator. The Court's role is to set limits on the exercise of that discretion and a decision made within those boundaries could not be impugned.
His Honour then referred to Wednesbury Corporation. He said (at 41-42):
"It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power........ ... I say 'generally' because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is 'manifestly unreasonable'. this ground of review was considered by Lord Greene M.R. in Wednesbury Corporation (at 230, 233-234), in which his Lordship said that it would only be made out if it were shown that the decision was so unreasonable that no reasonable person could have come to it. This ground is now expressed in ss.5(2)(g) and 6(2)(g) of the A.D.(J.R.) Act [the Judicial Review Act] in these terms. The test has been embraced in both Australia and England........ ... However, in its application, there has been considerable diversity in the readiness with which courts have found the test to be satisfied........ ... But guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion. In the context of the latter, it has been held that an appellate court may review a discretionary judgment that has failed to give proper weight to a particular matter, but it will be slow to do so because a mere preference for a different result will not suffice........ ... So too in the context of administrative law, a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits."
Now is not the time for a more detailed discussion of the authorities in relation to manifest unreasonableness but it may fairly be said, I think, that neither in England nor in Australia has there been a great deal of encouragement for those who seek to rely on this ground. The number of occasions upon which the ground has been successfully raised in this Court is not significant. This is, I think because the courts are always conscious, to use the words of Mason J, that a mere preference for a different result will not suffice and that care must always be taken to make sure that the Court does not exceed its supervisory role by reviewing decisions on their merits.
Mason J said what he did in the context of a case where there was an obligation to take into account a particular consideration or to omit from consideration an irrelevant consideration. What are relevant considerations and irrelevant considerations for this purpose must be derived, not from general considerations, but from a consideration of the provisions of the Act or other legislative instrument which is in question and the legislative context in which it appears having regard, as necessary, to the scope and purpose of the legislation. Often the discretion which a decision-maker has is unconfined. In this respect, Mason J in Peko-Wallsend said (at 40) that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard.
I appreciate that counsel here is not relying on manifest unreasonableness in the context of omitting relevant considerations from account or taking into account irrelevant considerations. His submission depends on a consideration of the whole of the circumstances in which the decision was made. The Court is asked to hold that it was manifestly unreasonable for the Minister not to insist that the procedures provided for in the Administrative Procedures be followed, they having been followed in relation to the making of the decision which brought about the current arrangements which are in place in respect of the use of the various runways at the aerodrome. Although I have not made a recent exhaustive study of the
authorities, my impression is that the readiness of the Courts to grant administrative review on this ground in more general contexts is even more limited than it is where the ground is relied upon in the context of failing to give weight or sufficient weight to a relevant consideration.
Thus in Attorney-General (NSW) v Quin (1990) 170 CLR 1 Brennan J said (at 36) that, acting on the implied intention of the legislature that a power be exercised reasonably, the Court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action. His Honour said that the limitation was extremely confined and referred to the explanation given by Professor Wade in Administrative Law, 6th ed. (1988) at 407 (see now 7th ed. (1994) at 399). Professor Wade there said that the doctrine that powers must be exercised reasonably had to be reconciled with the no less important doctrine that the Court must not usurp the discretion of the public authority which Parliament appointed to take the decision. Within the bounds of legal reasonableness is the area in which the deciding authority has genuinely free discretion. If it passes those bounds, it acts beyond power. Professor Wade said that the Court must therefore resist the temptation to draw the bounds too tightly, merely according to its own opinion. It must strive to apply an objective standard which leaves to the deciding authority the full range of choices which the legislature is presumed to have intended.
Brennan J continued (at 37):
"If it be right to say that the court's jurisdiction in judicial review goes no further than declaring and enforcing the law prescribing the limits and governing the exercise of power, the next question immediately arises: what is the law? And that question, of course, must be answered by the court itself. In giving its answer, the court needs to remember that the judicature is but one of the three co-ordinate branches of government and that the authority of the judicature is not derived from a superior capacity to balance the interests of the community against the interests of an individual. The repository of administrative power must often balance the interests of the public at large and the interests of minority groups or individuals. The courts are not equipped to evaluate the policy considerations which properly bear on such decisions, nor is the adversary system ideally suited to the doing of administrative justice: interests which are not represented as well as interests which are represented must often be considered. Moreover, if the courts were permitted to review the merits of administrative action whenever interested parties were prepared to risk the costs of litigation, the exercise of administrative power might be skewed in favour of the rich, the powerful, or the simply litigious."
I have taken into account the facts of the matter which, of course, may be much supplemented at a final hearing, the terms of the relevant legislation and the authorities to which I have referred, particularly what has been said there by Mason CJ and Brennan CJ. My only task is to decide whether, as the case presently stands, there is a prima facie case. I emphasise that I am not talking about the merits of the matter or the plight of the various residents in the councils' areas. I am dealing with the matter as a purely legal question in accordance with what I believe to be the applicable principles. I realise that there are many who would say that it would be desirable for there to be the same level of environmental inquiry in relation to what is now proposed as there was in relation to what eventually occurred before the current arrangements were put in place. But the fact that the Minister has taken the view that the Administrative Procedures should, for the various reasons he has given, be by-passed, is not, in my opinion, an indication of manifest unreasonableness in the sense in which that expression must be applied in this case. In other words it is not established, as the evidence now stands, that the decision to exempt the matter from the Administrative Procedures was so unreasonable as to be a decision to which no reasonable person could have come.
There are some other matters upon which reliance was placed with which I now deal. Firstly, reliance was placed upon the words in brackets in para. 11 of the reasons where the Minister said that he noted that the issue to be considered was not whether an increase in the use of the east-west runway was in the public interest. He said what he did in the context of what else appears in the paragraph namely, that he believed that the application of the Administrative Procedures to the proposed Commonwealth actions would be contrary to the public interest. I do not detect any error in the words in brackets. He was considering the question whether the Administrative Procedures should apply or whether the Minister for Transport should have the exemption which was sought. That was the matter upon which the Minister was concentrating. He was not, for that reason, directly concerned with the ultimate question, which is the question which the Minister for Transport dealt with in the direction, whether the increase in the use of the east-west runway was itself a matter which was required to be taken into account in deciding what had to be decided. The Minister was dealing with the provisions of para. 11.3.1 of the Administrative Procedures the relevant part of which required him to take into account whether exemption would be contrary to the public interest. Another way of looking at the matter is to say that the Minister, in determining what was and what was not within the public interest, was himself entitled to decide that question. No part of the Administrative Procedures obliged him to take into account the matter within the brackets in para. 11. In this sense his discretion was unconfined in the sense in which that expression is used in the authorities to which I have referred. It is to be noted that the Minister went on in para. 12, to note the possibility of competing public interests and specified the matters which he had taken into account in weighing these up. He recognised that an increase in the use of the east-west runway and the repeal of flight corridors to the north of the airport would have an adverse effect on some communities in that it would increase the impact of aircraft noise on residents in those communities. I have set out the terms of para. 12 of the decision earlier and a reading of it discloses that the Minister went on to consider the consequences of the decision he was making from the point of view of the residents in the
local government areas of the councils and of other areas as well. Paragraph 13 balances the competing public interests.
The next matter relied upon by counsel was the statement in para. 13 that, while not directly relevant, the Minister had noted the public commitment of Government to implement noise amelioration measures in areas affected by changes to runway usage on the same terms as provided to those presently affected. Counsel said that this was an irrelevant consideration because it was not provided for in the Administrative Procedures. A lot of what I have earlier said serves to answer the submission but again I refer to the fact that, to the extent that the discretion is unconfined by the terms of the legislation so as to require the Minister to take into account particular matters or leave out of account other matters, it was a matter for the Minister to take into account matters that appeared to him to be germane to the matter he needed to decide.
Here what the councils complain about is that the Minister is referring to the fact that the recently elected Government announced, prior to the election, that it intended to re-open the east-west runway if it were elected to office. It would seem an odd thing to me if frankness in disclosing an intention of a political party, in the event that it were elected to government, should not be a matter it was entitled to take into account unless there were some clear provision in the legislation relating to the matter which forbade such a course. Otherwise a party not frank with the electorate before it was elected, might be in a better position than a party who was. What the Minister is saying in substance is that he has taken into account government policy. That is something which it is open for him to do unless there is a clear indication in the legislation that this may not be done. See for example Salemi v MacKellar [No. 2] (1977) 137 CLR 196 per Barwick CJ at 402 and Ansett Transport Industries (Operations) Pty Limited v The Commonwealth of Australia (1977) 139 CLR 54 per Barwick CJ at 61-2. I do not detect anything irrelevant (i.e. in the administrative law sense) in the matter which is relied upon, which is acknowledged to be not directly relevant, in any event. Furthermore the statement does not disclose manifest unreasonableness of the kind which must be established before the Court will intervene.
I do not regard the two matters raised in addition to the principal matter as warranting the conclusion of themselves that the councils have a prima facie case.
There were some other matters that were argued. One of these was that in some of the paragraphs of the reasons, there was not disclosed the making of any objective assessment of matters dealt with. This was said, for instance, about para. 15 where the Minister said that he had regard to the general principle that it was desirable in the national interest that the requirements of the Administrative Procedures should, as far as reasonably possible, apply to all Commonwealth actions. He referred to para. 11.3.2. He said that the principle was overridden in the present case by the public interest he had identified in earlier paragraphs. I see no error here. The Minister is expressing his opinion. The opinion was one which, in my opinion, it was lawful for him to hold. The reasons for his conclusion were based on the public interest which he had identified and the submission ought, accordingly, be rejected. It was also said that no mention had been made in the reasons of para. 11.2 which empowers the Minister to consult with various authorities which are referred to. In my opinion this is a facultative provision which enables the Minister to consult if he thinks it appropriate. He is not bound to do so. The language used in para. 11.2 "may consult" is to be contrasted with the language used in para. 11.3 "shall... take into account". I would reject this submission also.
It follows in my opinion that the councils have not established a prima facie case. No question of the balance of convenience therefore arises. The application is dismissed.
I certify that this and the thirty-five (35) preceding pages are a true copy of the reasons for judgment herein of the Honourable Justice Sheppard.
Associate
Dated: 1 April 1996
APPEARANCES
Counsel for the Applicants: W.R. Davison SC
D.R. Parry
Solicitors for the Applicants: Houston Dearn O'Connor
Counsel for the Respondents: R.V. Gyles QC
A. Robertson SC
S.J. Gageler
Solicitors for the Respondents: Australian Government
Solicitor
Date of Hearing: 29 March 1996
Place of Hearing: Sydney
Date of Judgment: 1 April 1996
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