City of Botany Bay Council v The Minister of State for Transport & Regional Development

[1996] FCA 855

CATCHWORDS

ADMINISTRATIVE LAW - judicial review - decision of a minister to direct increase in use of east-west runway at Sydney Airport - decision of a minister to exempt from requirements of Administrative Procedures made under the Environment Protection (Impact of Proposals) Act 1974 (Cth) - whether exemption unlawful and void - whether primary judge misconstrued meaning of expression "the public interest" - whether Ministers' decisions unreasonable - whether failure to take into account relevant considerations - whether breach of requirements of natural justice.

Environment Protection (Impact of Proposals) Act 1974 (Cth)

CITY OF BOTANY BAY COUNCIL & ORS v THE MINISTER OF STATE FOR TRANSPORT AND REGIONAL DEVELOPMENT & ORS
No NG475 of 1996

Black CJ, von Doussa & Sundberg JJ
11 September 1996
Sydney

IN THE FEDERAL COURT OF AUSTRALIA                  ) 
  )  
NEW SOUTH WALES DISTRICT REGISTRY                 )  No NG475 of 1996
  )  
GENERAL DIVISION  )     

On appeal from a single judge of the Federal Court of Australia

BETWEEN:              CITY OF BOTANY BAY COUNCIL
  ROCKDALE CITY COUNCIL
  RANDWICK CITY COUNCIL
  HURSTVILLE CITY COUNCIL

Appellants

AND:MINISTER OF STATE FOR TRANSPORT AND REGIONAL DEVELOPMENT

First Respondent

MINISTER OF STATE FOR THE
  ENVIRONMENT

Second Respondent

AIRSERVICES AUSTRALIA

Third Respondent

Coram:           Black CJ, von Doussa & Sundberg JJ
Date:              11 September 1996
Place:              Sydney

MINUTES OF ORDER

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                 )  No NG475 of 1996
  )  
GENERAL DIVISION  )     

On appeal from a single judge of the Federal Court of Australia

BETWEEN:               CITY OF BOTANY BAY COUNCIL
  ROCKDALE CITY COUNCIL
  RANDWICK CITY COUNCIL
  HURSTVILLE CITY COUNCIL      

Appellants         

AND:MINISTER OF STATE FOR TRANSPORT AND REGIONAL DEVELOPMENT

First Respondent

MINISTER OF STATE FOR THE
  ENVIRONMENT

Second Respondent

AIRSERVICES AUSTRALIA

Third Respondent

Coram:           Black CJ, von Doussa & Sundberg JJ
Date:              11 September 1996
Place:              Sydney

REASONS FOR JUDGMENT

THE COURT:   This is an appeal from a decision of Lehane J dismissing an application for judicial review of two decisions.  One is a decision of the second respondent to exempt from the requirements of the Administrative Procedures established under the Environment Protection (Impact of Proposals) Act 1974 (Cth),
certain proposed Commonwealth actions relating to the use of runways at Sydney (Kingsford Smith) Airport ("the airport") and relating to the flight paths of aircraft taking off from, or landing at, the Airport.

The other decision is a decision by the first respondent to direct the third respondent, Airservices Australia, substantially to increase the use of runway 07/25, (known as the east-west runway) by aircraft taking off from, or landing at, the Airport.

In this notice of appeal, the appellants raised a number of grounds but the submissions before the Court were confined to four grounds which, in essence, were:

(a)that the learned primary Judge misconstrued the expression "the public interest" in para.11.3.1(a)(4) of the Administrative Procedures made under s.6(1) of the Environment Protection Impact of Proposals Act; 

(b)that the Judge should have found that the exercise of its power by the second respondent was so unreasonable that no reasonable person could so exercise it;

(c)that the Judge should have found that there had been a failure by the second respondent to take into account relevant considerations that he was bound to take into account; and

(d)     that the Judge should have found that there was a breach of the requirements
           of natural justice in that each Minister was, it was submitted, under an

obligation to give the appellants notice of what was proposed and an opportunity to be heard in opposition.

The learned primary Judge gave detailed reasons for decision, which we have carefully considered.  It is apparent from his Honour's reasons that in relation to the four matters argued before us on appeal, essentially the same arguments that were put in detail to his Honour were put before us today.  His Honour dealt with those arguments in his reasons.   We are in full agreement with what his Honour has said about them and we see no reason to add to what he has written.  In these circumstances we would dismiss the appeal with costs.

The order of the Court is that the appeal is dismissed with costs.

I certify that this and the 2 preceding pages
are a true copy of the reasons for judgment herein of
the Court.

Associate:

Date:  11 September 1996

Counsel for the appellants:  W.R. Davison SC
  D.R. Parry

Solicitors for the appellants:  Houston Dearn O'Connor

Counsel for the respondents:  A. Robertson SC
  S.J. Gageler

Solicitor for the 1st & 2nd respondents:  Australian Government Solicitor

Solicitors for the 3rd respondents:  Freehill Hollingdale & Page

Date of hearing:  11 September 1996

Date of judgment:  11 September 1996