City of Botany Bay Council v Minister for Transport and Regional Development
[1999] FCA 1495
•4 NOVEMBER 1999
FEDERAL COURT OF AUSTRALIA
City of Botany Bay Council v Minister for Transport and Regional Development [1999] FCA 1495
ADMINISTRATIVE LAW – judicial review – operating plan for Sydney airport – decision by Minister under Environment Protection (Impact of Proposals) Act 1974 (Cth) that neither an environmental impact statement nor a public environmental report was required – environmental effect of noise – whether constructive failure on the part of the Minister to perform his duty to take into account a particular matter – whether decision by Minister was one to which no reasonable person could have come – environmental assessment action under para 3.1.2(b) of the Administrative Procedures – whether Minister took into account an irrelevant consideration.
ADMINISTRATIVE LAW – judicial review – operating plan for Sydney airport – decision by Minister under Air Services Act 1995 (Cth) to implement airport plan – whether Minister’s decision one to which no reasonable person could have come.
Air Services Act 1995 (Cth)
Environment Protection (Impact of Proposals) Act 1974 (Cth)Administrative Procedures
Sinclair v Maryborough Mining Warden (1975) 132 CLR 473 referred to
CITY OF BOTANY BAY COUNCIL V MINISTER FOR TRANSPORT AND REGIONAL DEVELOPMENT & ORS
NG 1268 OF 1998
BLACK CJ, LEE AND WEINBERG JJ
4 NOVEMBER 1999
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES REGISTRY
ON APPEAL FROM A JUDGE OF THE
FEDERAL COURT OF AUSTRALIA
NG 1268 OF 1998
BETWEEN:
CITY OF BOTANY BAY COUNCIL
ApplicantAND:
MINISTER FOR TRANSPORT AND REGIONAL DEVELOPMENT
First RespondentMINISTER FOR THE ENVIRONMENT
Second RespondentAIRSERVICES AUSTRALIA
Third RespondentJUDGES:
BLACK CJ, LEE AND WEINBERG JJ
DATE OF ORDER:
4 NOVEMBER 1999
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
The appeal be dismissed with costs.
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
ON APPEAL FROM A JUDGE OF THE
FEDERAL COURT OF AUSTRALIA
NG 1268 OF 1998
BETWEEN:
CITY OF BOTANY BAY COUNCIL
AppellantAND:
MINISTER FOR TRANSPORT AND REGIONAL DEVELOPMENT
First RespondentMINISTER FOR THE ENVIRONMENT
Second RespondentAIRSERVICES AUSTRALIA
Third Respondent
JUDGES:
BLACK CJ, LEE AND WEINBERG JJ
DATE:
4 NOVEMBER 1999
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an appeal by the City of Botany Bay Council against a judgment of Finn J dismissing its application for judicial review of decisions of the Minister for the Environment and the Minister for Transport and Regional Development that resulted in the implementation of the Long Term Operating Plan (“the LTOP”) for Sydney’s Kingsford Smith Airport without a prior environmental impact statement or a public environment report.
The application by Botany Bay City Council was heard by Finn J at the same time as an application for judicial review by Randwick City Council and Woollahra Municipal Council against the same two respondent Ministers challenging the same decisions, although on different grounds. That application was also dismissed.
This Full Court also heard, immediately after the hearing of this appeal, an appeal by Randwick City Council and Woollahra Municipal Council against the order dismissing their application for judicial review. To some extent the two hearings overlap. Each appeal concerns the same two decisions and the relevant background is also the same. In each appeal, too, the argument concerns the meaning and effect of the Environment Protection (Impact of Proposals) Act 1974 (Cth) (“the EP(IP) Act”) and the administrative procedures provided for by s 6 of the EP(IP) Act (“the Administrative Procedures”). Because we are delivering judgment in this case immediately after the delivery of judgment in the appeal by Randwick City Council and Woollahra Municipal Council and since our reasons for judgment in both appeals are available to all parties in both, we adopt, without setting out again in these reasons, what is said in the other appeal about the relevant factual and statutory background.
As was the case with the appeals by Randwick City Council and Woollahra Municipal Council, the issues before the Court in this appeal are narrower than they were before Finn J. The decisions that remain the subject of challenge are:
(a)the decision made on 22 July 1997 by the Minister for the Environment, the Hon Senator Robert Hill, that neither an environmental impact statement nor a public environmental report was required for the purpose of achieving the object of the EP(IP) Act in relation to the LTOP; and
(b)the direction given on 30 July 1997 by the Minister for Transport and Regional Development, the Hon John Sharp, to Airservices Australia to implement progressively the LTOP in accordance with its terms.
The appellant’s first ground of appeal was that Finn J should have held that the Minister for the Environment had failed to take into account a relevant consideration in arriving at his decision. It was contended that Finn J was in error in holding that the Minister had not failed to take into account “whether, and to what extent” the proposal by the Minister for Transport to implement the LTOP “may result in a substantial environmental effect on a community”. The words that we have italicised are taken from paragraph 3.1.2(a)(i) of the Administrative Procedures, which provide:
“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;
…”
In essence, the appellant’s argument is that although the material before the Minister did show that aircraft noise simplicter would be re-distributed by the LTOP, the material did not address the environmental effect or impact that the LTOP would have on different communities in Sydney. There was a critical difference, it was said, and one supported by expert evidence, between the “numerical” measurement of aircraft noise and the environmental effect or impact of aircraft noise. The difference was that the environmental impact of the same aircraft noise on different communities would depend upon whether, and to what extent, those communities had previously been exposed to aircraft noise. It was submitted that the obligation to determine whether, and to what extent, a proposed action may result in a substantial environmental effect on a community involved in the present case a consideration by the Minister of what was described as “the relevant acoustic impact” of the LTOP. This in turn involved an assessment of the “impact” of noise on people who had not previously been exposed to it.
In developing the argument, the appellant’s submissions focused on a passage in the reasons for judgment of Finn J in which his Honour said that the subjective appreciation of noise exposure by those to be newly effected by noise was not a matter that required specific assessment or examination by the Minister.
It is desirable at this point to place that passage in context. It appears in one of two paragraphs in which Finn J expressed his conclusions about the “impact” argument. The two paragraphs read (at 22):
“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.”
The material before Finn J included Senator Hill’s statement of reasons for his decision of 22 July 1997. In relation to the matters that the Minister was required to take into account in accordance with paragraph 3.1.2(a) of the Administrative Procedures, the Minister made findings that included the following (at para 8):
“(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.”
Senator Hill’s reasons for decision also recited that he had taken into account the advice and recommendations for the long-term operating plan for Sydney (Kingsford Smith) Airport provided to him by his Department on 18 July 1997, including various attachments to the Department’s advice. Those attachments included documents which contained lengthy discussions of aircraft noise, its measurement and its environmental effects. Some of this material is referred to in the reasons for judgment of Finn J. His Honour noted that in Environment Australia’s Background Report there was a 20 page section dealing with the environmental impact of aircraft noise, that it discussed “noise assessment methodology” and that it acknowledged criticisms of the Australian Noise Exposure Forecast (ANEF) and outlined the steps taken to address its shortcomings. Finn J also noted that the Proponent’s Statement provided a more detailed examination of noise and its impacts and he reproduced parts of Chapter 3 of the Statement that described the LTOP:
“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]
The Proponent’s Statement reports that it, and the initial report by Airservices Australia for the LTOP published in December 1996 (“the Draft LTOP”), used five fundamental ways of describing “noise impacts”, namely runway use data; flight path maps; contours showing total noise exposure (ANECs); contours showing single event noise levels for the number of single events above specified noise levels (N70 and N80 contours); and “respite”.
Whilst, however, the material before the Minister clearly did include extensive discussion and analysis of aircraft noise and its effects, the appellant contends that it did not include material analysing the subjective “impact” upon people of aircraft noise when introduced to them, or their areas of living or work, for the first time. Although it is true, as counsel for the respondents pointed out, that there was some reference in the Proponent’s Statement to a possible estimation of the subjective effects at certain ANEF levels through reference to a “dose/response” relationship developed by the National Acoustic Laboratories, the reference is a very limited one and it also referred to what it described as the “extreme caution” needed in the use of such data. It did not satisfy what the appellant contended was the requisite analysis of impact brought about by first-time exposure.
The relevant question, however, is not whether there were methods of assessing environmental impact that the Minister for Environment might have taken into account, but whether the appellant made out before Finn J a case that the Minister had not taken into account “whether, and to what extent, the proposed action may result in a substantial environmental effect on a community.” In answering this question it is important to bear in mind the limits on the role of the Court in reviewing the exercise of administrative discretion. In determining whether or not a decision-maker has fulfilled an obligation to take a particular matter into account, the Court should be careful not to trespass into the area of merit or fact review. It should also be borne in mind that, in the present case, the Minister for the Environment was not engaged in the preparation of an environmental impact statement but in the task of deciding whether or not such a statement was required for the purpose of achieving the object of the Act.
Senator Hill’s reasons for his decision recited that he had taken into account what was plainly a very substantial body of material about aircraft noise, its measurements and environmental effects. In his reasons he also made a specific finding about the matters that he was required to take into account, including the matters specified in paragraph 3.1.2(a) of the Administrative Procedures.
Although it may be accepted that the Minister for the Environment did not have regard to a scientific measure of the subjective impact of aircraft noise brought about by first-time exposure, we see no reason to doubt Finn J’s conclusion that the Minister was not concerning himself simply with noise as an abstraction or Finn J’s conclusions that: “He [the Minister] 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’.”
In these circumstances, having regard to the material that the Minister for the Environment stated that he did consider, to his statement of reasons for his decision and to his statement that he took into account the very matter that it is claimed he did not take into account, we agree with Finn J that the appellant did not make out its case that the Minister failed to take into account the matters that paragraph 3.1.2(a) of the Administrative Procedures required him to take into account. The first ground of appeal must be rejected.
It seems to us that what the appellant is really arguing is that this was a case so extreme as to involve a constructive failure on the part of the Minister to perform his duty to take into account a particular matter: see Sinclair v Maryborough Mining Warden (1975) 132 CLR 473 per Barwick CJ at 480 and per Gibbs J at 483; Turner v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388 per Toohey J at 392; Minister for Immigration and Ethnic Affairs v Maitan (1988) 78 ALR 419 per Beaumont and Gummow JJ at 429; and Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194 at 201. But reliance on evidence led in judicial review proceedings that there are ways (not yet fully developed) of measuring and analysing environmental impact brought about by first-time exposure falls far short of demonstrating that there was a constructive failure on the part of the Minister for the Environment to perform his duty to take into account a particular matter that the Administrative Procedures required him to take into account. It is not necessary for us to consider whether, and if so where, a point might be reached at which a failure to act in accordance with an established scientific fundamental would, on such a ground, vitiate an administrative decision. We observe, though, that a consideration of these questions highlights, as it did for the primary judge, that what was in effect being attempted here was a review on the merits of the fairness of the redistribution. That is not a matter for the Court in an application for judicial review.
Our conclusion that the first ground of appeal should be rejected also disposes of the second ground of appeal which claims, on essentially the same basis, that the Minister’s decision that neither an environment impact statement nor a public environmental report was required for the purpose of achieving the object of the Act in relation to the LTOP was, on the material to which he had regard, one to which no reasonable person could have come.
The third ground of appeal is that the Minister for the Environment took into account an irrelevant consideration. This ground is founded upon the following two paragraphs in Senator Hill’s statement of reasons:
“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.”
The appellant contended that although the environmental impact assessment to which the Minister referred in paragraph 10 of his statement of reasons, namely the 1991 Proposed Third Runway, Sydney (Kingsford-Smith) Airport: Environmental Assessment Report (“the Third Runway Report”), was not irrelevant in a broad sense, it should not have been “elevated” to the status of a relevant environmental assessment for the purposes of paragraph 3.1.2(b) of the Administrative Procedures. In this way, it was argued, the Third Runway Report had been taken into account, irrelevantly, to justify the Minister’s decision that no environmental impact statement or public environment report was required for the LTOP proposal. Paragraph 3.1.2(b) provides:
“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:
…
(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.”
Finn J took the view that although the Third Runway Report was directed to a different proposal, nevertheless it was open to the Minister to conclude that the report was environmental assessment action taken in relation to the proposed action (the LTOP) so as to come within the ambit of paragraph 3.1.2(b). It may be, however, contrary to the view taken by Finn J, that environmental assessment action of the type to which paragraph 3.1.2(b) refers is action that not merely has a relevant connection with the proposed action (in this case the LTOP), but must be seen to be directed to the proposed action. This construction is suggested by the use of the words “in relation to” rather than words reflecting the broader concept of mere relevance, a notion introduced later in the paragraph as a potentially limiting factor.
But even if it is accepted, for the purposes of argument, that the Minister erroneously concluded that the Third Runway Report was action that he was bound to take into account under paragraph 3.1.2(b), it does not follow that any such error affected the ultimate outcome: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 40 per Mason J. The Third Runway Report was admittedly relevant in a broad sense and could be taken into account by the Minister and given such weight as the Minister considered appropriate. If the Third Runway Report were erroneously considered to be “in relation to the proposed action” within the meaning of paragraph 3.1.2(b), it does not follow that the report was used impermissibly to justify no further environmental impact statement or a public environment report for the LTOP, on the basis that the necessary assessment had already been made in the Third Runway Report. We agree with Finn J that the Minister’s statement of reasons provides no reasonable support for such a submission. It is particularly significant, as Finn J pointed out, that no reference was made at all to the weight (if any) given the Third Runway Report, a report that was conceded by the appellant to be not irrelevant. Moreover, when regard is paid to the Minister’s statement of reasons as a whole, and to the material before him, it would be quite wrong to infer from the Minister’s consideration of the report as a “relevant action” within the meaning of paragraph 3.1.2(b) that he saw it as obviating the necessity for an environmental impact statement notwithstanding that it quite obviously related to an earlier and quite different proposal. The third ground of appeal should be rejected.
We now turn to the grounds of appeal concerning the decision made by the Minister for Transport and Regional Development, being the direction given on 30 July 1997 to Airservices Australia to implement progressively the LTOP.
As we would reject all the grounds of appeal relating to Senator Hill’s decision it is unnecessary to consider the appellant’s argument about the consequential invalidity of the Minister for Transport’s decision; that question does not now arise. There remain for consideration, however, two independent grounds of appeal in relation to Mr Sharp’s decision. These comprise the appellant’s fourth and fifth grounds of appeal.
The fourth ground of appeal raises again the issue of unreasonableness. Mr Sharp’s direction to Airservices Australia to prepare an LTOP required that it be based on four principles, including:
“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 point made by the appellant is that when the Minister made his decision there was no information at all before him as to whether the capacity principle would or could be implemented. Accordingly, it was said, having required the capacity of the airport to be maintained but having no means of knowing whether or not that would happen upon the implementation of the LTOP, the decision to implement the LTOP without such information was a decision which no reasonable person exercising the power could have made. It was argued too that the decision should be set aside on the ground that the Minister had unreasonably failed to initiate an inquiry to obtain information about the impact of the LTOP on capacity, information which would have been readily available to him. Reference was made to Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169.
In answer, counsel for the respondents submitted that there was indeed material before the Minister concerning capacity and that it demonstrated that the issue of capacity did receive appropriate attention. Counsel drew attention to references to airport capacity contained in the Draft LTOP which, of course, was developed in response to the Minister’s direction of 20 March 1996. The Draft LTOP deals specifically with capacity in Chapter 4, Development of Long Term Operating Plan. That chapter begins by noting that in his direction to Airservices Australia the Minister provided what are described as “Terms of Reference” and these are taken to include the capacity principle and other matters contained in the Minister’s direction.
Chapter 4 then recites that of more than 4,000 theoretical runway configurations, a task force (the Sydney Air Traffic Management Task Force) began by eliminating all those that were impractical or that “could not meet the Government’s requirements”. It is then stated specifically that “other key considerations taken into account” were the “capacity of each configuration”. On the following page (39) it is recorded that the Runway Modes of Operation Working Group developed assessment criteria and listed runway configurations that would meet safety, environmental and operational standards and these are said to include modes of runway operations suggested in public submissions “that were within the terms of the Minister’s direction.” The assessment criteria are then set out and they include, as the second criteria, “Capacity”. Then follows a discussion about capacity which commences:
“A fundamental consideration in selecting modes for use in the long term operating plan was the anticipated capacity that a particular mode would provide. Airservices Air Traffic Control staff were in a position to make professional estimate of the likely capacity of the 17 modes identified for further analysis”.
The Draft LTOP goes on to note that it was considered desirable to obtain independent advice on the potential capacity of the 17 modes and that, accordingly, Sabre Decision Technologies, a United States aviation consultancy company, was selected to model the potential capacity of the modes. Details of Sabre’s results for the modes are set out as Figure 6 in Chapter 4. The report of Sabre Decision Technologies is attached to the LTOP as Appendix 7. More importantly, however, the identification of each of the modes of operation identified in the LTOP contains a specific heading “operational capacity”.
We do not need to outline Sabre’s conclusions. It is sufficient to note that the modes of operation formulated and recommended by the Draft LTOP appear to have given detailed consideration to airport capacity. This report formed the basis of the final determination by the Minister of 30 July 1997, in which he directed Airservices Australia to implement progressively the LTOP. The Schedule attached to his direction referred directly to the Draft LTOP and stated:
“Airservices Australia should implement the general structure and layout of the flight paths shown in the maps in the Airservices Australia Report [the Draft LTOP] incorporating the amendments indicated in the Proponent’s Statement and including any adjustments necessary to meet the detailed design of the airspace arrangements and to satisfy safety requirements.”
The Schedule then indicated that Airservices Australia was to make available for use the selected runway modes that had been described in the Draft LTOP. These modes had all, it seems, been subject to the analysis of operational capacity that we have already mentioned, notwithstanding the adoption in the Schedule of a number of changes to flight paths made in response to the Proponent’s Statement and public consultations.
These issues were not explored in any detail in argument but it would seem that counsel for the respondents were correct in their submission that any factual basis for the challenge to the Minister’s decision in this respect was totally lacking. Counsel for the appellant argued that this material was not before the Minister but this would seem to be incorrect, as we understood counsel later to concede. As, however, the issue is not fully explored in argument and it is not clear in any event whether the issue was explored before Finn J, we will not express a concluded view about the factual question. It is unnecessary for us to do so because we consider that the present ground of appeal should be rejected for other reasons.
First, the principle about capacity upon which the appellant bases this ground of appeal was not expressed as an absolute obligation; the capacity was to be maintained “to the maximum practicable extent”. Secondly, as Finn J observed, the capacity principle was to be implemented in giving effect to the fair noise distribution purpose of the direction and it was qualified in relevant respects by the direction that the usage of Runway 07/25 be increased for that purpose. In these circumstances, even if we have misapprehended the situation and it be the fact that the Minister did not have material before him relating to capacity, it does not follow that the exercise of the broad power under s 16 of the Air ServicesAct 1995 (Cth) to give a direction was so unreasonable that no reasonable person could have exercised the power in that way. Finn J was correct in rejecting the appellant’s claim that the Minister’s decision was “unreasonable” in the very restricted sense in which that expression is used to describe a ground of judicial review: see Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36 per Brennan J. We should add that there is no basis for concluding that the Minister was under an obligation to initiate the suggested inquiry about capacity and that any failure to do so could operate to vitiate his decision.
The appellant’s final ground of appeal is that Finn J should have held that the decision of the Minister for Transport to direct Airservices Australia to implement the LTOP was such that no reasonable person could have so exercised the power. This ground is founded upon the contention that the implementation of the LTOP would have significant, adverse affects upon, and be fundamentally inconsistent with, the long-term balance planning of the airport. In support of this contention the appellant referred to the evidence of its witness, Mr Sachman, an expert in airport planning, about long-term planning for Sydney (Kingsford Smith) Airport and basic planning practice for airports generally. It was said that the LTOP ignored two of the three elements that were fundamental to long-term planning for the Airport, namely landside and access components, and the balance between the three elements.
Finn J considered that the appellant’s argument should be rejected for the reason that it was for the Minister to accommodate or allocate priorities amongst conflicting policy objectives. In its submission on appeal, the appellant did not challenge the authority of the Minister to make decisions about priorities but said that there was no information before the Minister about the impact of the LTOP on the long-term planning for the Airport, and in particular about the relationship between the three elements of the system, and that the Minister was therefore in no position to make a decision about priorities. Counsel for the appellant went on to argue that no reasonable person having portfolio responsibility for the entire airport system (which, it was argued, comprised three equally critical elements) could, on the material before the Minister, have required the implementation of a plan that dealt with only one of those elements. There was a further argument that Mr Sharp unreasonably failed to obtain factual material that would have been readily available to him about the impact of the LTOP on the balanced planning of the airport system.
These arguments must also be rejected. As Finn J said, it was for the Minister to accommodate or allocate priority amongst conflicting policy objectives and in the directive he gave to Airservices Australia on 30 July 1997 he made it plain that his priority was noise sharing. The fact, if it be the fact, that the Minister did not have available to him information about other critical elements in the long-term planning for the airport does not have the consequence that the Minister’s decision was “unreasonable” in the sense in which that expression is used in this area of the law. The Minister was entitled, if he chose, to exercise his statutory powers to give priority to the policy of noise sharing irrespective of the impact that this decision might have on other policy objectives for which he also had responsibility. We must again stress the limited nature of judicial review on the ground of unreasonableness. That ground is not available as a vehicle to obtain the judgment of the Court on matters that in the end are not concerned with the legality of a decision but with contested views about its wisdom or substantive fairness. As Finn J observed in his concluding remarks, judgment about matters of that nature are to be made elsewhere by the community and its political representatives; the concern of the Court is only with the legality of the decisions.
It follows from what we have said that the appeal must be dismissed. The appellant must pay the costs of the appeal.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate:
Dated: 4 November 1999
Counsel for the Applicant: W R Davison SC with D R Parry Solicitor for the Applicant: Houston Dearn O'Connor Counsel for the Respondent: A Robertson SC with S J Gageler Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 18, 19 February 1999 Date of Judgment: 4 November 1999
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