Brisbane Airports Corporation Ltd v Wright - [2002] FCA 359

FEDERAL COURT OF AUSTRALIA
Brisbane Airport Corporation Limited ACN 076 870 650 v Wright [2002] FCA 359
ADMINISTRATIVE LAW – appeals from the Administrative Appeals Tribunal (Cth) – powers and procedure of Tribunal – whether Tribunal erred in decision - whether decisions of Tribunal are judicially reviewable under ADJR Act – parties – person ‘whose interests are affected’ - standing – whether standing derived from statute or common law principles – standing determined by considering the subject, scope and purpose of the relevant legislation
Airports Act 1996 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth), s 27
Administrative Decisions (Judicial Review) Act 1977 (Cth), s 6(1)
Comptroller-General of Customs v Members of the Administrative Appeals Tribunal (1994) 123 ALR 140, considered
Allan v Transurban City Link Ltd (2001) 75 ALJR 1551, applied
Alphapharm Pty Ltd v SmithKline Beecham (Aust) Pty Ltd (1994) 49 FCR 250, applied
Edwards v Australian Securities Commission (1997) 72 FCR 350, applied
Byron Environment Centre Inc v Arakwal People (1997) 78 FCR 1, considered
US Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520, considered
BRISBANE AIRPORT CORPORATION LIMITED, ACN 076 870 650 v DEPUTY PRESIDENT C R WRIGHT AS A PRESIDENTIAL MEMBER OF THE ADMINISTRATIVE APPEALS TRIBUNAL, KEVIN RUDD and MINISTER FOR TRANSPORT AND REGIONAL SERVICES
Q 198 OF 2001
DOWSETT J
28 MARCH 2002
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 198 OF 2001

BETWEEN:

BRISBANE AIRPORT CORPORATION
LIMITED, ACN 076 870 650
APPLICANT

AND:

DEPUTY PRESIDENT C R WRIGHT
AS A PRESIDENTIAL MEMBER OF THE ADMINISTRATIVE APPEALS TRIBUNAL
FIRST RESPONDENT

KEVIN RUDD
SECOND RESPONDENT

MINISTER FOR TRANSPORT AND REGIONAL SERVICES
THIRD RESPONDENT

JUDGE:

DOWSETT J

DATE OF ORDER:

28 MARCH 2002

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.The decision of the Administrative Appeals Tribunal dated 17 August 2001 be set aside.
THE COURT DECLARES THAT:
2.The second respondent is not entitled to seek review of the decision of the Minister for Transport and Regional Services made on 11 February 1999 approving a master plan for the Brisbane Airport.
THE COURT ORDERS THAT:
3.The second respondent’s application for such review be dismissed.
4.Submissions will be heard as to costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 198 OF 2001

BETWEEN:

BRISBANE AIRPORT CORPORATION
APPLICANT

AND:

DEPUTY PRESIDENT C R WRIGHT AS A PRESIDENTIAL MEMBER OF THE ADMINISTRATIVE APPEALS TRIBUNAL
FIRST RESPONDENT

KEVIN RUDD
SECOND RESPONDENT

MINISTER FOR TRANSPORT AND REGIONAL SERVICES
THIRD RESPONDENT

JUDGE:

DOWSETT J

DATE:

28 MARCH 2002

PLACE:

BRISBANE

REASONS FOR JUDGMENT
The decision under review

On 11 February 1999, the Minister for Transport and Regional Services (the “Minister”) approved a draft master plan for the Brisbane Airport, acting pursuant to s 81 of the Airports Act 1996 (Cth) (the “Airports Act”). The draft plan thereupon became the current final master plan for the airport. On 3…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] FCA 359
Decision Date: 28 MARCH 2002

CaseChat Overview and Summary

Brisbane Airports Corporation Ltd, the appellant, contested the decision of the Administrative Appeals Tribunal (AAT) which allowed an application by Mr Wright, the respondent, for review of the Minister’s approval of a master plan for the Brisbane Airport. The appellant submitted that the second respondent did not have standing to seek such review. The primary issue for determination was whether the second respondent had standing to seek a review of the Minister’s decision to approve the master plan.

The court examined the provisions of the Airports Act and the Administrative Appeals Tribunal Act, particularly the criteria for establishing standing. The court considered the arguments advanced by the second respondent and the evidence presented regarding his interests being affected by the decision. The court also reviewed the relevant cases on the concept of “affected interests” to determine whether the second respondent met the threshold for standing. The court concluded that the second respondent’s ownership and occupation of a property near the airport were sufficient to establish that his interests were affected by the decision, and thus he had standing to seek review.

The court held that the second respondent’s application for review was valid and dismissed the appellant's challenge to the AAT's decision on standing. The court found that the second respondent's concerns about the potential impact of a second runway on residential areas, including his property, were valid grounds for seeking review.

The court ordered that the second respondent’s application for review be dismissed, affirming the AAT's decision that the second respondent had standing to seek review of the Minister’s decision to approve the master plan.

Orders

Orders of the court

3. The second respondent’s application for such review be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

DOWSETT J

Division 5 of Part 5 provides for “Building control”. It seems to apply to any construction work (including earthworks and road construction) which would not require a major development plan. Part 6 relates to environmental management. Division 2 provides for environment strategies. The lessee must prepare a draft environment strategy for submission to the Minister. The approval procedure is similar to those prescribed for master plans and major development plans. Administrative review of decisions Section 242 of the Airports Act provides:(1)Applications may be made to the Administrative Appeals Tribunal for review of decisions made by the Minister under this Act. (2)Subsection (1) does not apply to the following decisions:(None are relevant for present purposes.)(3)If the Minister:(a)makes a decision of a kind covered by subsection (1); and(b)gives to the person or persons whose interests are affected by the decision written notice of the making of the decision;that notice is to include a statement to the effect that, subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for review of the decision.(4)A failure to comply with subsection (3) does not affect the validity of the decision.(5)… Subsection 27(1) of the AAT Act provides:Where this Act or any other enactment (other than the Australian Security Intelligence Organisation Act 1979) provides that an application may be made to the Tribunal for a review of a decision, the application may be made by or on behalf of any person or persons (including the Commonwealth or an authority of the Commonwealth) whose interests are affected by the decision.The second respondent must therefore demonstrate that his interests are affected by the decision to approve the master plan.The second respondent’s interests The second respondent originally advanced three bases upon which he claimed to be entitled to seek review, namely:•as a member of Parliament;•as representative of a community group known by the acronym “BARB”; and•that he and his wife own and occupy a dwelling house at 85 Norman Crescent, Norman Park, about three kilometres east of the Brisbane CBD, on the south side of the Brisbane River and, in the view of the Tribunal, about 9-10 kilometres from the southern (nearer) end of the existing runway. The Tribunal rejected the first two claimed bases for the second respondent’s status but upheld the third. The applicant challenges that decision. Although the second respondent’s criticisms of the master plan have been widely drawn, it seems that his concern is a proposal in the master plan that there be a second runway at Brisbane Airport. He fears that noise from such a development would adversely affect residential areas including his property. It is, as I understand it, accepted that, using the relevant standard prescribed by subsection 71(8) of the Airports Act, the master plan does not forecast, for the purposes of par 71(2)(e), that the second respondent’s property will be subject to exposure above the significant ANEF levels. It rather forecasts that such property will not be exposed to ANEF levels in excess of twenty, the significant level being thirty. However the second respondent points to aspects of the evidence which suggest that ANEF levels are not always accurate in their predictions, particularly at levels below twenty. See AB 242 - 243. I turn to consider the cases concerning “affected interests”.The cases

Ratio Decidendi

Legal Principle Established

Established by: DOWSETT J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 198 OF 2001

BETWEEN:	BRISBANE AIRPORT CORPORATION LIMITED, ACN 076 870 650 APPLICANT
AND:	DEPUTY PRESIDENT C R WRIGHT AS A PRESIDENTIAL MEMBER OF THE ADMINISTRATIVE APPEALS TRIBUNAL FIRST RESPONDENT KEVIN RUDD SECOND RESPONDENT MINISTER FOR TRANSPORT AND REGIONAL SERVICES THIRD RESPONDENT
JUDGE:	DOWSETT J
DATE OF ORDER:	28 MARCH 2002
WHERE MADE:	BRISBANE

JUDGE:	DOWSETT J
DATE:	28 MARCH 2002
PLACE:	BRISBANE