Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission

[2002] WASCA 276

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   CLIVE ELLIOTT JENNINGS & CO PTY LTD -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2002] WASCA 276

CORAM:   BARKER J

HEARD:   13 SEPTEMBER 2002

DELIVERED          :   10 OCTOBER 2002

FILE NO/S:   SJA 1191 of 2001

BETWEEN:   CLIVE ELLIOTT JENNINGS & CO PTY LTD

Appellant

AND

WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town planning - Application for residential subdivision potentially affected by the 1999 Airport Master Plan for Perth International Airport - Appeal to Town Planning Appeal Tribunal against refusal of approval to subdivide - Refusal of appeal by Tribunal because Airport Master Plan was ipso facto a planning document - Whether the Tribunal was entitled to regard the Airport Master Plan as a relevant factor where airport runway expansion option is speculative - Whether the Tribunal inflexibly applied the Airport Master Plan - Whether "question of law" involved in appeal

Legislation:

Airports Act 1996 (Cth), s 70, s 72, s 77

Town Planning and Development Act 1928 (WA), s 20(1), s 24

Result:

Appeal dismissed

Category:    A

Representation:

Counsel:

Appellant:     Mr D W McLeod

Respondent:     Ms C J Thatcher

Solicitors:

Appellant:     McLeods

Respondent:     State Crown Solicitor

Case(s) referred to in judgment(s):

Agnew Clough Ltd v Town Planning Board, unreported; Appeal No 1 of 1979

Allen Commercial Construction v North Sydney Municipal Council (1970) 44 ALJR 445

British Oxygen Co Ltd v Minister of Technology [1971] AC 610

Cairns City Council v Hessels (1998) 98 LGERA 404

Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577

Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522

Fawcett Properties Ltd v Buckingham County Council [1961] AC 636

Hebe Pty Ltd v Metropolitan Region Planning Authority (1981) 2 APAD 428

Lloyd v Robinson (1962) 107 CLR 142

Marford Nominees Pty Ltd v State Planning Commission, unreported; SCt of WA; Library No 960047; 1 February 1996

Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24

Pinder Architects v City of Stirling (1996) 92 LGERA 165

R v Eastleigh Borough Council; ex parte Betts [1983] 2 AC 613

Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Ruhamah Property Co Pty Ltd v Federal Commissioner of Taxation (1928) 41 CLR 148

Sawyer v Secretary to Department of Primary Industry (1998) 15 ALD 742

Temwood Holdings Pty Ltd v Western Australian Planning Commission [2001] WASCA 199

Temwood Holdings Pty Ltd v Western Australian Planning Commission [2002] WASCA 10

Weal v Bathurst City Council [2000] NSWCA 88; 111 LGERA 181

Case(s) also cited:

Bethal Nominees Pty Ltd v Melbourne & Metropolitan Board of Works (1983) 22 APA 151

Chamber Amber Pty Ltd v Minister for Planning and Development (1987) 29 APA 88

Dilatte v MacTiernan [2002] WASCA 100

J E Squarcini & Anor v State Planning Commission (1991) 5 WAR 522

O'Sullivan v Farrer (1984) 164 CLR 210

Permanent Trustee Australia Ltd v City of Wanneroo (1994) 11 SR (WA) 1

Rasco Pty Ltd v Shire of Bulla (1988) 34 APA 260

1. BARKER J:  This is an appeal against the decision of the Town Planning Appeal Tribunal of Western Australia refusing the application of the appellant to subdivide approximately 16,203 m² of land at Lot 2 Clayton Street, Bellevue, into 22 lots, ranging in size from 355 m² to 450 m², for residential purposes.  The land is more particularly described as:

   "Portion of Swan Location 16 and being Lot 2 on Diagram 75900 comprised in certificate of title vol 1057 folio 875."

2. The Town Planning and Development Act1928 (WA) prohibits the subdivision of land without the approval of the Western Australian Planning Commission: s 20(1). The Commission may grant its approval to subdivide any lot subject to conditions which shall be carried out before the approval becomes effective: s 20(1)(a). Section 24 of the Act also makes provision for the Commission to approve or refuse to approve a plan of subdivision or require an applicant for approval to comply with such conditions as the Commission thinks fit to impose before approving the plan.

3. In this instance, the application of the appellant to subdivide the subject land dated or made about 27 November 2000, was refused by the Commission by a decision made 17 April 2001 and communicated to the planning and development consultant of the appellant by letter dated 18 April 2001.  The reasons stated in the Commission's letter for such refusal were as follows:

   "1.The subject land is not suitable for residential development by reason of noise levels over the site arising from the operation of the Perth International Airport.  The subject land is affected by the 25 Australian Noise Exposure Concept (ANEC) wherein further residential development is not appropriate; and

   2.The subject land is, and will continue to be in the longer term, significantly affected by noise associated with the operation of the Perth International Airport.  The use, enjoyment and amenity of the subject land is too adversely affected by the current and forecast noise levels for the Commission to support residential development over the subject land. 

   3.Approval to the subdivision would set an undesirable precedent for the further subdivision of surrounding lots."

4. The Commission having so refused the application, the appellant appealed to the Town Planning Appeal Tribunal, as it was entitled to do, pursuant to Pt V of the Act. 

5. On the hearing of the appellant's appeal in the Tribunal, the appellant led considerable evidence to show that the subject land was suitable for the type of residential subdivision and development depicted in its application to the Commission.  Both before the Tribunal and in this Court on the appeal, the appellant emphasised the town planning and development history of the subject land, its physical location and condition, and a range of lay and expert opinion that all supported a submission that the subject land was ripe for subdivision and residential development in accordance with its plan of subdivision.

6. For example, in the Tribunal, Mr Steve Pandevski, a planning officer at the City of Swan in whose municipal district the subject land is located, expressly supported the suitability of the land for residential development.  It was his view, from a perusal of the City's files, that the City of Swan had been supportive of residential development of the land since at least 1989.  Mr Pandevski emphasised that his opinion concerning the suitability of the land for residential subdivision was based on "all normal criteria including the following":

   "1.The zoning under the City's TPS 9 is suitable in that Lot 2 has been rezoned residential development since the gazettal of TPS 9 in 1985.

   2.The first Outline Development Plan for a 28 strata titled unit development was adopted by the then Shire in 1989 and by the Department of Planning and Urban Development in August 1990.  Further Outline Development Plan No 69 was adopted by the Council on 28.2.96 and acknowledged by the WAPC in March 1996.  That was for a 38 strata unit development.  ODP No 112 for a 22 subdivisional lot proposal was adopted by the Council on 23.2.2000.

   3.Lot 2 has urban zoning under the MRS.

   4.There is good local road access to the land and to all proposed subdivisional lots. 

   5.Water, sewerage and drainage are all readily available.

   6.Power and telephone connections are available.

   7.The land is within approximately half a kilometre from schools.

   8.Public transport is available along Clayton Street.

   9.The land directly adjoins recreational facilities.

   10.The land is within half a kilometre of a neighbourhood shopping centre in Koongamia and within approximately two kilometres of the Midland regional shopping facilities."

7. Mr Pandevski expressed the view that the only "negative feature" that could be thought of against the subdivision potential of the land is that it is said to be affected by the 25 ANEC contour related to noise of aircraft using Perth International Airport, the significance of which is discussed later in these reasons.

8. As it transpires, the Tribunal rejected the appellant's appeal before it essentially because of this negative feature identified by Mr Pandevski.  The appellant now appeals to this Court.

9. An appeal against a decision of the Tribunal to this Court is permitted by s 54B of the Act, but only in circumstances where the appeal "involves a question of law".  Section 54B(2) expressly provides:

   "An appeal does not lie to the Supreme Court from a direction, determination, or order of the Appeal Tribunal unless the appeal involves a question of law."

10. It is accepted that if a question of law is involved in a decision of the Tribunal, and the Tribunal had made an error in coming to its decision, the whole of the decision and not merely the question of law is open to review on the appeal:  Ruhamah Property Co Pty Ltd v Federal Commissioner of Taxation (1928) 41 CLR 148 at 151; Temwood Holdings Pty Ltd v Western Australian Planning Commission [2001] WASCA 199 at [12] ‑ [15]: while the substantive result in this decision was overturned on appeal, the Full Court made no comment in relation to the nature of the appeal: see Temwood Holdings Pty Ltd v Western Australian Planning Commission [2002] WASCA 10; Marford Nominees Pty Ltd v State Planning Commission, unreported; SCt of WA; Library No 960047; 1 February 1996 at 5 ‑ 6; Pinder Architects v City of Stirling (1996) 92 LGERA 165.

11. The appellant relies on a number of grounds of appeal in this Court, which it says involve questions of law.  As counsel for the appellant readily concedes, some of these grounds overlap.  The respondent contends the questions raised on the appeal involve questions of fact only and so the appeal should be struck out.

12. The question at the heart of a number of the grounds of appeal - and the main question on this appeal - is whether, in refusing the appeal before it, the Tribunal inflexibly applied the 1999 Airport Master Plan, being a "final master plan" made under the Airports Act 1996 (Cth), as if it were a planning policy the Tribunal was bound to apply and thereby failed to regard the substantial merits of the appeal before it.

13. Airports, particularly major airports, and the aircraft traffic they generate, have major implications, amongst others, for urban and regional human settlements.  In most instances, major airports are getting bigger and busier; Perth International Airport is no exception.  Airport planning is therefore a desirable practice.  Airport planning is mandated by the Airports Act - a piece of Commonwealth legislation.  In Western Australia, land use planning (including the power to approve plans of subdivision) is, by and large, the responsibility of State public officials, including the Commission.  An aspect of this appeal is the extent to which the Commonwealth's regulation of the use and expansion of Perth International Airport under the Airports Act has been harmonised with the Commission's control of land subdivision. 

14. The Airports Act by Div 3 of Pt V provides for the making of airport master plans. Section 70 provides that, for each airport, there is to be a final master plan. A final master plan is a draft master plan that has been approved by the Minister pursuant to s 83. Section 71 specifies the matters that must be set out in each draft or final master plan for an airport. One of the matters to be set out is "forecasts relating to noise exposure levels": s 71(2)(d). Section 72 provides that: "A draft or final master plan must relate to a period of 20 years." Sections 79 and 80 provide for public comment and, in appropriate cases, State and local government body consultations by an airport‑lessee company.

15. This airport planning process is intended to advance the objects of the Airports Act, which are listed to include the following:

    "(a)To promote the sound development of civil aviation in Australia.

    (b)To establish a system for the regulation of airports that has due regard to the interests of airport users and the general community."

16. The considerations that are relevant to the exercise of the respondent's power to approve a plan of subdivision are not enumerated in the Town Planning and Development Act but are acknowledged to be broad.  In Lloyd v Robinson (1962) 107 CLR 142, the High Court had occasion to consider the discretionary approval power created by s 20(1)(a) of the Town Planning and Development Act.  In the course of discussing the validity of a conditional approval that required the subdividers to transfer a specified area of land to the Crown free of cost for park and recreational purposes, the Court (Kitto, Menzies and Owen JJ) made the following observation that bears on the nature and breadth of the power to approve a plan of subdivision:

    "The Act at its commencement took away the proprietary right to subdivide without approval, and it gave no compensation for the loss.  But it enabled landowners to obtain approval by complying with any conditions which might be imposed, that is to say which might be imposed bona fide within limits which, though not specified in the Act, were indicated by the nature of the purposes for which the Board was entrusted with the relevant discretion:  see Swan Hill Corporation v Bradbury (1937) 56 CLR 746 at 757, 758; Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 … If the Board has performed its statutory duty by giving approval to the subdivision subject only to conditions imposed in good faith and not with a view of achieving ends or objects extraneous to the purpose for which the discretion exists, the inescapable effect of the Act is that the landowner must decide himself whether the right to subdivision will be brought too dearly at the price of complying with the conditions."

17. The Court at 153 accepted an assumption that the statutory power to annex conditions to an approval of subdivision does not extend to requiring the setting‑aside for public recreation of land "which is so unrelated to the land to be subdivided, because of remoteness from it or some other circumstance, that there is no real connection between the provision of the open space and the contemplated development of the area to be subdivided".  However, the Court concluded that any suggestion that the power to impose conditions in the instant case was exercised arbitrarily, or otherwise than in an endeavour in good faith to serve the purposes for which it was conferred, was answered by the trial Judge's acceptance of evidence given before him by the Town Planning Commissioner to the effect that the spaces required "were reasonable and proper and were arrived at by the Board in accordance with recognised principles of town‑planning". 

18. It is now well established that, in the context of town planning approval powers, of which the power to approve a plan of subdivision is merely but an illustration, the power must be exercised, generally speaking, for the purpose of implementing planning policy.  For example, in the English House of Lords decision Fawcett Properties Ltd v Buckingham County Council [1961] AC 636 at 686, Lord Jenkins said:

    "Accordingly, the power must be construed as limited to the imposition of conditions with respect to matters relevant, or reasonably capable of being regarded as relevant, to the implementation of planning policy."

19. The same approach has long guided the exercise of planning approval powers in Australia.  In Allen Commercial Construction v North Sydney Municipal Council (1970) 44 ALJR 445, the High Court examined a condition that the respondent had imposed on the grant of a permit that purported to limit the hours during which construction of a building could proceed. The municipality claimed the right to affix the condition in question by reason of the wide power in its town planning scheme to "grant an application unconditionally or subject to such conditions as it may think proper". Walsh J (with whom Barwick CJ and Windeyer and Menzies JJ agreed) found (at 449) that the planning scheme provisions were validly incorporated in the scheme under the enabling planning legislation and that the condition limiting working hours on building construction fell within the responsibility of the municipality to take into consideration "the existing and future amenity of the neighbourhood" and "the circumstances of the case and the public interest" when issuing such a permit.

20. Walsh J noted that the municipality did not have an unlimited discretion as to the conditions which it may impose, but rather had the power to impose conditions "which are reasonably capable of being regarded as related to the purpose for which the function of the authority is being exercised, as ascertained from a consideration of the scheme and of the Act under which it is made".  At 449, his Honour added that:

    "This purpose may be conveniently described, in accordance with the expression used by Lord Jenkins in Fawcett Properties Ltd v Buckingham County Council, as being 'the implementation of planning policy', provided that it is borne in mind that it is from the Act and not from any relevant provisions of the Ordinance, and not from some preconceived general notion of what constitutes planning, that the scope of planning policy is to be ascertained."

21. The same may be said of the Commission's power to approve, or reject, a plan of subdivision under s 20(1)(a) of the Town Planning and Development Act.  The power to approve or reject a subdivision may be exercised for the purpose of implementing planning policy, the scope of such policy being derived from the terms of the Act.  In the context of the Town Planning and Development Act, planning policy means, in effect, "recognised principles of planning", as suggested by the High Court in Lloyd v Robinson.  Such principles are not necessarily to be found written down in any formal instrument called a "policy" made under the Town Planning and Development Act, or in any informal "policy" adopted by the Commission for the purpose of guiding the exercise of its discretion, although they may be found in such documents.  For example, a Statement of Planning Policy made under s 5AA of the Act may contain relevant principles or "policy".  Where they are found in such policies, it is expected that the particular expression of "policy" will be carefully regarded by the Commission so that the exercise of its discretionary power to approve a subdivision will be based on relevant planning considerations and be consistent from one case to the next.  Indeed, s 5AA requires regard to be paid to any relevant Statement of Planning Policy.  Recognised principles of planning will also be derived from good practice and will reflect the opinions of experts and practitioners, as well as the formal decisions of government or public officials, in relation to planning, infrastructure and related matters.

22. The range of considerations that may go to inform the discretion of the Commission as to whether or not a subdivision should be approved may be numerous, indeed.  For example, if a plan of subdivision were intended to facilitate the development of land for heavy industry, the noise likely to emanate from such a land use would be relevant to the exercise of the discretion.  Weal v Bathurst City Council [2000] NSWCA 88; 111 LGERA 181, although decided in a different statutory context, provides an example of this consideration. The very same consideration would be relied upon to support refusal of a plan of subdivision which contemplated residential development of the subdivided land in a planning context where the residential development would be within or adjacent to an existing heavy industry area and would be likely to be adversely affected by noise emanating from the heavy industry area.

1. In such cases, to put the proposition in terms of the common law, the exercise of the subdivision approval power enables the approval authority to prevent the developer "coming to the nuisance" and the residents later complaining of it.  As to the common law rule, see F Trindade and P Cane, "The Law of Torts in Australia", OUP 2nd ed 1994, pp 608 ‑ 9.  Sound town planning principles, amongst other things, may require planning authorities, in appropriate cases, in effect to avoid the "nuisance" and to harmonise, as far as possible, competing development and land use proposals in the public interest.  In most Australian jurisdictions, the need to take account of aircraft noise is a factor explicitly recognised in formal planning instruments:  see, for example, Cairns City Council v Hessels (1998) 98 LGERA 404 (QCA).

2. In some cases, the Commission may have adopted a set of planning principles which it, for the sake of convenience, has called a "policy" and which is stated to be relevant to subdivision applications.  In such cases, the document is not a "policy" given force by the Town Planning and Development Act, but, nonetheless, it may be relevant to the exercise of its discretion to approve or reject a particular plan of subdivision lodged with it.  If the Commission has adopted such a "policy", and it is relevant to the application, the policy will be expected to guide the exercise of discretion.  However, the existence of such a "policy" is not intended to replace the discretion of the Commission in the sense that it is to be inflexibly applied regardless of the merits of the particular case before it.  Notwithstanding this understanding, the relevant consideration in many applications will by why the "policy" should not be applied; why the planning principles that find expression in the "policy" are not relevant to the particular application.  Good public administration demands no less an approach.

3. Much has been written about the use of policy in administrative decision‑making.  Administrators do not act unlawfully in adopting policies to structure their discretionary powers.  Indeed, courts have accepted that it is desirable that they should do so:  British Oxygen Co Ltd v Minister of Technology [1971] AC 610; R v Eastleigh Borough Council; ex parte Betts [1983] 2 AC 613; Sawyer v Secretary to Department of Primary Industry (1998) 15 ALD 742. However, an administrator exercising discretionary power will be found to have acted ultra vires if the discretion is exercised inflexibly, by application of a policy without regard to the merits of a particular case, as the decision in Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522 illustrates. This principle aside, the importance of the use of "policies" in the exercise of discretionary planning powers in Western Australia is well recognised: see, eg, Hebe Pty Ltd v Metropolitan Region Planning Authority (1981) 2 APAD 428.

4. A relevant policy, provided it is not ultra vires, may therefore be regarded as one relevant consideration which the administrator is, effectively, bound to take into account.  In Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, the Full Federal Court held that the Administrative Appeals Tribunal is entitled to treat Commonwealth government policy as a relevant factor in making its decision, but is not entitled to abdicate its function of independently considering and assessing the propriety of the policy. In Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, Brennan J confirmed the freedom of the Administrative Appeals Tribunal to apply or not apply the policy. He noted, however, that departures from government policy would be "cautious and sparing", occurring only where there were "cogent reasons": 644 ‑ 5.

5. In this statutory and legal context, the appellant's first ground of appeal is that the Tribunal erred in law in that it applied the 1999 Airport Master Plan for Perth International Airport and its predictions for noise impact resulting from the Perth Airport expansion options, as if it was determinative of the appeal when, even if the airport expansion options were properly to be treated as a serious entertained planning proposal (which the appellant denies), they should have been given no more weight than matters to be considered by the Tribunal along with all planning considerations relevant to the proposed subdivision. 

6. The appellant submitted that for the Tribunal to treat the 1999 Airport Master Plan as if it were determinative of the decision on a subdivision appeal involves an error of law.  To that end, it relied upon the decision of the Full Court of this Court in Falc (supra) as supporting its case both in terms of the legal proposition advanced and the factual circumstances in which the principle contented for was applied.

7. This ground proceeds on the understanding that the Tribunal treated the Master Plan as if it were a "policy" or a document of similar status.

8. The appellant contended, in effect, that if the Tribunal had weighed the merits of the subdivision proposal before it - which included uncontroverted expert evidence such as that of Mr Pandevski as to the suitability of the land for subdivision - against the apprehended negative factor of the aircraft noise forecasts arising from a detailed consideration of the 1999 Airport Master Plan, the Tribunal could have (not necessarily would have) determined that the appeal be allowed.  Rather, it was submitted, the Tribunal failed to conduct that weighing exercise and confined its consideration of the issues raised on the appeal before it to the sole issue of whether or not, in effect, the 1999 Airport Master Plan prohibited the residential development of the subject land.  In that sense, the appellant contended the Master Plan was inflexibly applied.

9. Whether this ground of appeal can be made out, depends largely on whether or not, as a matter of fact, it can be said that the Tribunal failed to consider all matters both in favour of and militating against the subdivision proposal.  This requires a close consideration of what the Tribunal said in its reasons for decision and how it arrived at its decision.

10. The 1999 Airport Master Plan was approved by the Minister as a final master plan under the Airports Act in May 1999.  It sets out expansion options for Perth International Airport.  It identifies land in the vicinity of the airport that would be affected by aircraft noise should a particular expansion option identified in the Master Plan be implemented in the future. 

11. The Airport Master Plan relies upon and adopts what is called the ANEF (Australian Noise Exposure Forecast) system and Australian Standard AS 2021‑2000 - (Acoustics - Aircraft noise intrusion - Building, siting and construction).  This system comprises two distinct components:  the first is the determination of the levels of aircraft noise exposure around an airport; the second is the application of that noise exposure in determining compatible land uses.  The procedures for use of the ANEF system and the land use compatibility recommendations are covered in Australian Standard AS 2021‑2000.

12. The Australia Standard describes the manner in which the ANEF system is used.  The ANEF system produces three different charts: 

    ANEF (Australian Noise Exposure Forecast):

    This results in a map that shows the forecast of aircraft noise levels in the future, either as for a particular year or the projected or ultimate capacity of the airport.

    ANEI (Australian Noise Exposure Index):

    This results in a map that shows the actual situation in the previous year.  The maps are produced each year and therefore indicate the changes in aircraft noise exposure.

    ANEC (Australian Noise Exposure Concept):

    This is used as a tool in airport development as it examines a hypothetical set of conditions to establish options. 

13. By way of example, the Perth International Airport produces the ANEI and ANEF maps and submits them to Air Services Australia for preliminary endorsement after verification and checking.  The ANEF contour maps are then made available to State and local authorities for comment and are eventually finally endorsed as official ANEF maps and find their way by reference or incorporation into an Airport Master Plan approved under the Airports Act.

14. By Australian Standard Table 2.1, land that falls within the 25 and above ANEF contour is rated "unacceptable" for residential purposes.  The subject land is shown as being within the 25 ANEF contour by the 1999 Airport Master Plan. 

15. In the event, the Tribunal considered that, by reason of the terms of the 1999 Airport Master Plan, the application for approval of the appellant's plan of subdivision should be rejected. 

16. The Tribunal noted the manner and circumstances in which the ANEF system and the Australian Standard apply.  Having identified the subject land and its relevant planning history (most of which is set out earlier in these reasons by reference to the evidence given to the Tribunal by Mr Pandevski) and the "fundamental reasons" why the Commission refused the subdivision proposal, the Tribunal addressed the issue of "Noise Measurement".  In doing so, it explained the ANEF system and its relationship to the 1999 Airport Master Plan.

17. The Tribunal noted that, prior to the making of the 1999 Airport Master Plan, Table 2.1 of the Australian Standard was reproduced on all ANEF charts, was recommended by the Commonwealth House of Representatives Select Committee on Airport Noise in 1985, and accepted by the Commonwealth government in 1989 in its response to the committee report.  This emphasises the status and degree of acceptance of the ANEF system in Australia.

18. The Tribunal further noted that in 1988 the State Planning Commission (the predecessor to the respondent) established a working group to review the ANEF system and the Australian Standard as a basis for assessing land use in the vicinity of airports for State planning purposes.  The report of the working group, entitled "Land Use Planning in the Vicinity of Airports:  Report of the Working Group", recommended to the then Commission that the ANEF system be used as the basis for determining the extent of airport noise and that Table 2.1 and the Australia Standard be used as a basis for zoning and the control of development.  The recommendation at that time was that the ANEC - the noise concept - be used in the form of a composite representing different forms of ultimate capacity at Perth Airport.  The working group's recommendation was, of course, made well before the Airport Master Plan for Perth International Airport was made in 1999.

19. The Tribunal found that in 1990 the then Commission resolved to "have regard" to the working group's recommendation.  Mr Stephens, who appeared as a witness for the Commission, was unable to point to any formal document incorporating Table 2.1 as an express planning instrument relied on by the Commission.  Thus, the view may be taken that the Commission's resolution became, in effect, the "policy" of the Commission concerning aircraft noise matters at that time in the sense that it thereby acknowledged that regard should be had to aircraft noise levels in the State planning process.

20. Mr Stephens indicated to the Tribunal that, since the approval of the 1999 Airport Master Plan, the Commission had established a new working group to examine the Master Plan and review the 1990 working group report.

21. The Tribunal further noted that the State Minister for Planning wrote to the State Ministry for Planning in November 1999 - that is, following the making of the 1999 Airport Master Plan - in relation to his previously expressed view that he would not support rezoning of land under the Town Planning and Development Act to permit residential development in areas within the 20 or above ANEC or ANEF contours identified in the 1990 working group report or the 1999 Airport Master Plan.  Having regard to the ramifications of that view in reducing subdivisional potential, the Minister changed his view and stated that he accepted that the 1990 working group report, referred to by him as a "policy", should prevail.  This indicated the Minister's acceptance of Table 2.1 and the use of the 25 ANEF contour as a benchmark for land use planning purposes. 

22. Although not itself something that gives rise to "policy" expressly recognised by the Town Planning and Development Act, it may be said that the Minister's view may bear upon the factors that the Commission ultimately considers relevant to the exercise of its discretion to approve a plan of subdivision.

23. The Tribunal further noted that Mr Petersen, the Director of Technical Services for Westralia Airports Corporation at Perth Airport, indicated that the 1999 Airport Master Plan differed from the previous 1985 Master Plan, by providing for the possibility of an extension of the 06/24 runway towards Bellevue - generally referred to as the "East/West runway" - the centre line of which runs through the centre of the subject land. 

24. The Tribunal also noted that Mr Walter, the Director of Aviation Environment for the Federal Department of Transport and Regional Services in Canberra, explained that the continued support of the Commonwealth for the ANEF system and the relationship of that system to the Australian Standard, and that he had indicated that since 1995 new approaches to evaluating noise had been developed, but there was continued reliance upon the ANEF system. 

25. In the appeal before the Tribunal, none of these facts or matters pertaining to the ANEF system, the 1999 Airport Master Plan and the Commission's "policy" in relation to aircraft noise level was the subject of factual contention.

26. In the Tribunal and again on this appeal, the appellant took the position, in effect, that, while it could not or did not mount a technical challenge to the expert evidence that underpinned the ANEF system and the 1999 Airport Master Plan, it did not accept necessarily that the 1999 Airport Master Plan should apply in a case such as the present so as to lead to refusal of the appellant's plan of subdivision.

27. An initial issue in the appeal before the Tribunal was whether under the 1999 Airport Master Plan the subject land fell with the 25 ANEF contour.  It showed that the subject land was categorised as "ANEF‑2047" and thus falling within the 25 ANEF contour.  The Tribunal found, on the basis of the evidence of Mr O'Neill, a town planner called on behalf of the Commission, that the subject land comprised a "greenfield" site of the type referred to in Table 2.1 of the Australian Standard.  While not referred to in its reasons, the Tribunal had also received evidence from Mr Pandevski that, in his opinion, the subject land was not a "greenfield" site for the purposes of the Table 2.1.  Table 2.1 distinguishes between residential development in an already built‑up area and an area referred to as a "greenfield" site.  For a built‑up area, the Table, in note 4, states that, although development above 25 ANEF is not unacceptable, it may be allowed by planning authorities subject to noise attenuation construction.  But for "greenfield" sites, note 5 states that "in no case" should development take place.

28. The Tribunal accepted that Mr O'Neill's adoption of the "greenfield" designation for this site was appropriate.  It did so on the basis that the land to the south of the subject land was being used for grazing, the land to the north was zoned rural and used for golf, and the land to the east was public open space.  Perhaps different conclusions could be drawn on the question whether the subject land comprised a "Greenfield" site for the purposes of Table 2.1, but it cannot be said that the Tribunal failed to address the issue, whether or not it laid out in its reasons all of the evidence it had received touching on it. 

29. Based on the evidence put before it, the Tribunal concluded that the subject land was not presently affected by noise associated with the operation of Perth Airport.  To that extent, the reason for the refusal given by the Commission that the use and enjoyment of the land is adversely affected by "current" noise levels was considered incorrect.  The Tribunal accepted that the evidence showed that the working group report put the subject land outside the 25 ANEI contour whether one looked at the position in 1988 or in 1996/97.  That finding is not in dispute in this appeal.

30. In those circumstances the Tribunal stated in its reasons, under the heading "Forecast Noise", that:

    "The crucial issue, identified by all parties, is whether it is proper to take into account the forecast noise levels."

31. The appellant denies that it advanced or accepted the issue identified by the Tribunal as the "crucial issue" in the appeal.  Counsel for the appellant on this appeal thus relies on this identification of the "crucial issue" as an indication that the Tribunal failed to weigh the negative feature arising from the forecast noise levels against the positive feature of the general suitability of the subject land for a residential subdivision proposal. 

32. While it is clear that the Tribunal considered the forecast noise levels to be a crucial issue, there is nothing in this statement or its reasons, in my opinion, that suggests that the Tribunal misconceived its function in determining the appeal before it.  The question whether it is proper to take into account the forecast noise levels adduced in evidence was merely stated to be a "crucial issue".  It does not follow that by positing such a question the Tribunal thereby stated it was obliged to or would exclude other relevant considerations from mind. 

33. Indeed, the Tribunal expressly acknowledged the argument of counsel for the appellant that, without the presence of the East/West runway, it would appear that, using the ANEI 2000 contours, there is no immediately likelihood of the 25 ANEF contour reaching the subject land. 

34. The Tribunal further noted that:

    "The City, through Mr Pandevski … supported the suitability of the land for residential development.  He stated that the City at all material times has been supportive of a residential development and noted that there is a current strata plan approved for 38 units and the appellant can proceed with that development immediately without the subdivision approval.  He also put forward a compelling reason for approval that, in his view, there is no other land in the vicinity of lot 2 which is suitably zoned for residential development and has not been developed."

35. By reference to Mr Pandevski's evidence, it can reasonably be inferred that the Tribunal accepted that the subject land was suitable for residential development, having regard to its planning history and relationship to other land in the general locality. 

36. The "crucial issue" therefore was, as identified by the Tribunal, whether it was proper to take into account the forecast noise levels.  The statement of the issue in this way was not so much intended to raise the question whether the Tribunal may consider aircraft noise levels as a relevant factor in the exercise of its discretion, which plainly it can, but whether, as a matter of discretion, it should take account of the particular forecast noise levels identified in evidence by reference to the 1999 Airport Master Plan.

37. In dealing with this issue, the Tribunal reframed the question before it in the following terms:

    "The Tribunal is being asked by the Commission to support a decision by the operator of the Airport that it may need a runway in the future that will have, at that time, an unacceptable noise impact on a proposed development."

38. In my opinion, the Tribunal in framing the issue in these terms, starkly, but not unreasonably, identified the real planning issue at hand.  That issue was, to put it another way, whether the Tribunal should permit the subdivision of land ripe for residential development in circumstances where the potential future use of the Perth International Airport might later place the subject land within the 25 or above ANEF contour. 

1. This issue is an extremely difficult planning issue that falls to land use planning authorities such as the Commission and, on appeal, the Tribunal, to determine.  There can be no doubt that, where a carefully developed airport master plan has been approved under the Airports Act, and the Commission has resolved at an earlier time to take into account aircraft noise factors in the planning process, it is appropriate for the Tribunal to take account of the impact that aircraft noise may have on a locality now or in the future in determining whether a particular land use proposal should be permitted. 

2. As explained earlier in these reasons, an historic explanation and reason for the enactment of town planning legislation is to be found in the concept that, through planning controls, potential nuisances can be identified and avoided or minimised.  If, for example, it is understood that portions of the environment will be required in the future for a designated public or community purpose, it may be considered undesirable in the public interest to allow the earlier development or redevelopment of land that would constrain the future use of that other land for that purpose.  Whether or not a present land use proposal should be rejected because of the perceived need to protect the realisation of a prospective community interest, then becomes a matter of expert judgment for the responsible planning authority and, in a case such as this, the Tribunal on appeal. 

3. The Tribunal considered the evidence before it and found that if the East/West runway option identified in the 1999 Airport Master Plan were adopted, the subject land would, under the ANEF system, fall within the 25 ANEF contour. 

4. The evidence supported a finding that implementation of the 1999 Airport Master Plan had the potential to affect the subject land in this way.  The Master Plan notes the expansion options, including the East/West runway, considered viable for a period exceeding 20 years.  Mr Stephens, who gave evidence on behalf of the Commission, stated that:

   "The importance of the Master Plan to the consideration of this appeal is that it is a relatively recent document that provides an updated forecast of airport operations and indicates that the subject land, which is directly in line with the O6/24 runway, will remain in the 25‑30 ANEF contours for 2047."

5. Mr Stephens further explained that, in preparing the 1999 Airport Master Plan, the use of the airport beyond the 20‑year period specified in the Airports Act was a central issue in planning and developing strategies to manage the operation of the airport.  The aircraft noise mapping was consequently set for the year 2047. 

6. Mr Kenna, the Manager, Environment Monitoring, Air Services Australia, in Canberra, also gave evidence on behalf of the respondent.  He explained that the current ANEF map for Perth International Airport was endorsed in March 1999 and is based on the forecast of air traffic for the year 2047.  He confirmed that, from that map, the subject land falls entirely between the 25 and 30 ANEF contours and is situated on the extended centre line of runway 06/24.  Under Australian Standard AS 2021‑2000, the land is therefore rated as "unacceptable" for residential buildings.

7. Mr Kenna gave evidence that the types of aircraft and their average daily number of movements forecast to be operating at Perth International Airport in the year 2047 is shown in tables on the ANEF chart.  Aircraft which would be likely to overfly the subject land would be those landing on runway 24, or departing from runway 06.  The tables show that on the average day, there may be more the 200 such aircraft movements.  Using the procedures of s 3 of the Australian Standard and the associated noise levels tables, it can be determined that most of those 200 aircraft flyovers will produce maximum noise levels in excess of 70dBA at the subject land, and some may produce levels of around 90dBA.  He said residential buildings of normal construction will be inadequate to reduce the levels heard indoors sufficiently to comply with the interior design levels in AS 2021. 

8. The Tribunal expressly found that the Australian Standard provides for the use of the ANEF system and that, in the absence of evidence challenging the integrity of the model used, the Tribunal "must accept that the system represents the acceptable method of measuring noise levels from airport usage and, in Table 2.1, establishing the transition from those levels to acceptable land uses". 

9. The Tribunal then stated:

   "As this is a finding that the Tribunal must make, it follows that the Master Plan must be accepted, upon approval by the Minister, as the document that establishes the ANEF system as it relates to surrounding areas.  It matters not that the exact details of the manner of expansion is speculative, as the choice of development options is the exact task that is required by the Airports Act.  As this is the case, the Master Plan becomes ipso facto a planning document that must be taken into account by the Commission and the local authority in assessing an application.  Of course, in the absence of the framework for the use of Table 2.1 by the Commission, the Australian Standard are no more than a relevant consideration in the assessment of an application for subdivision."

10. The Tribunal then found that:

    "Taking into account the Master Plan and its predictions, the Tribunal is of the view that subdivision of the subject land is not warranted.  The noise impact is potentially real, although ultimately speculative.  The noise represents and environmental limitation on the subdivision and, in our view, constrains the use of the land for what is proposed."

11. These two findings, as a matter of law, are of considerable significance to the Tribunal's decision under appeal.  The appellant says that these findings indicate that the Tribunal considered it was obliged to apply the Master Plan made under the Airports Act so that every other consideration, including all those that might be said to be in favour of approval of the plan of subdivision, were ignored.  However, it seems to me that the Tribunal did not, and did not intend to, convey any such view in stating the position in this way.

12. In the circumstances of the appeal, the integrity of the ANEF system and the relevance of Table 2.1 of the Australian Standard to the 1999 Airport Master Plan were well established.  Having so found, the Tribunal then needed to determine whether, as a matter of fact, the subject land was likely to be adversely affected, in terms of Table 2.1 of the Standard, by any proposed expansion of Perth International Airport. 

13. If a proposal for the expansion of the Perth International Airport merely comprised draft plans not otherwise approved by any relevant decision‑making authority, a particular mooted option that, say, in the year 2047, the airport might be used in a way that would result in the subject land falling within the 25 ANEF contour of Perth International Airport, might be considered so lacking in authority or status that no regard should be paid to it for the purpose of determining whether a plan of subdivision of the subject land should be approved. 

14. However, in this case the Tribunal found that the airport planning process has such an authoritative status that proposals contained in the 1999 Airport Master Plan were relevant to the exercise of its discretion.  The airport planning process was not an informal process.  Rather, the Airport Master Plan produced as a result of that process was approved in May 1999 by the Commonwealth Minister under the Airports Act1996. For that reason, the Tribunal characterised the 1999 Airport Master Plan as "ipso facto a planning document that must be taken into account by the Commission".  For my part, I think it might be more accurate and helpful to say that, by reason of the fact that the Minister had approved the Master Plan for Perth International Airport in May 1999 pursuant to the terms of the Airports Act, the terms of the Master Plan could be considered as a relevant factor when determining the appellant's application for approval of the plan of subdivision for the subject land.

15. It follows, in my view, as a corollary, that the Tribunal was correct to note that, in the absence of a framework for the use of Table 2.1 of the Australian Standard by the Commission, the Australian Standard provided no more than a "relevant consideration" in the assessment of an application for subdivision.  If the Commission had, in fact, adopted a policy, more formal than the one that may be said to exist by virtue of its earlier resolution adopting the 1990 working group recommendations, in which it required airport noise, including forecast noise levels, to be taken into account by reference to the Australian Standard or the 1999 Airport Master Plan, or in some other particular way, it might have been said that the Commission, and the Tribunal on appeal, was bound to have regard to the policy so adopted.  But that was not the case here.

16. In this case, the Tribunal, by its own statement, considered the 1999 Airport Master Plan and Table 2.1 of the Australian Standard to be a relevant consideration that it, and the Commission, could take into account in assessing the appellant's application for approval of the planned subdivision.  I consider the Tribunal was right to so find.

17. The Tribunal then took into account the Master Plan and its predictions.  In doing so, it formed the view that the "noise impact is potentially real, although ultimately speculative", insofar as the subject land is concerned.  That finding, in the circumstances, was a finding of fact that the Tribunal was entitled to make and a finding that does not involve a question of law.  Similarly, the consequential finding of the Tribunal that such noise "represents an environmental limitation on the subdivision and, in our view, constrains the use of the land for what is proposed", is a finding that was open to the Tribunal in the exercise of its discretion and is a finding that does not involve a question of law. 

18. I can therefore discern no error of law in the consideration by the Tribunal of the difficult issue of forecast aircraft noise levels; nor any error that involves a question of law.  In the particular context of the appeal, the Tribunal gave weight to what it called the "crucial issue" of forecast aircraft noise levels.  It was prepared to take seriously the potential for the subject land to be adversely affected by aircraft noise in the future because of the status of the terms of the 1999 Airport Master Plan approved under the Airports Act and the demonstrated integrity of the ANEF system.  In doing so, it relied on the Master Plan predictions as to how the subject land might be affected in the future.  In my view, as a matter of law, the Tribunal was entitled to adopt this approach and made no error in doing so.

19. The fact that the Tribunal took into account the Master Plan in the exercise of its discretion to approve or reject the plan of subdivision, does not thereby attract the proposition of law or the outcome for which the decision of the Full Court of this Court in Falc Pty Ltd v State Planning Commission (supra) stands.  In Falc, the Town Planning Appeals Tribunal refused to allow an appeal against the Commission's refusal to approve a plan of subdivision by reason of what was described as "the general policy not to permit rural sub‑divisions into small holdings unless within an area designated (ie zoned) special rural".  The appellant submitted to the Full Court that the Tribunal had rigidly applied this policy without regard to the particular circumstances of the case.  Alternatively, it was said that the Tribunal had attached so much weight to the policy, and so little to the particular circumstances, that the Tribunal's decision was not in accord with sound town planning principles.  Further, it was submitted that by applying the policy as it had, the Tribunal had allowed the zoning by the local authority, in effect, to determine whether subdivision of the land should be approved.  It was said that this made the local authority the de facto final authority for approving subdivision and resulted in the Tribunal abdicating its true function of considering whether land should be subdivided in accordance with sound town planning principles.

20. In the event, Nicholson J (with whom Pidgeon J agreed) effectively concluded that the Tribunal had given such great weight to the need for appropriate zoning prior to subdivision of land that it had precluded other relevant matters from consideration in the exercise of its discretion.  Nicholson J stated at 529 ‑ 30:

    "On the face of the Tribunal's reasons it was prepared to be persuaded to depart from what it regarded as the applicable policy.  However in reaching the conclusion that proper controls can only be achieved by application of the policy, the Tribunal failed to give proper, genuine and realistic consideration to the merits of the case in that it did not properly consider whether the requisite level of control could be achieved by other means.  By accepting the respondent's submissions and considering that it was not possible to put the scheme zoning aside, it tied the exercise of its discretion to the existence of the policy.  True it is that it considered variation in adjacent subdivisional conditions was undesirable.  However, having regard to its reasons as a whole I conclude that it did not just use inappropriate language to describe what might truly be said to be the weighing of planning considerations:  cfLaslett v District Council of Mount Gambier (No 2) (1985) 56 LGRA 195. I cannot agree with the conclusion of the learned Commissioner that 'once it is conceded that zoning is a relevant matter to take into account then … that is the end of the matter'. Because, while zoning is a relevant matter, it was elevated into a determinative matter … Despite references to such particulars, it does not seem to me that the Tribunal regarded itself as free to exercise its discretion contrary to that policy where the particulars required it to do so. In my opinion, an error of law was therefore present."

21. To similar effect, Ipp J at 540 found that:

    "Further, in my opinion, notwithstanding that the Tribunal did refer to the proposition that it would - in an appropriate case - approve subdivision over land zoned general farming, the reality is that, by reason of its adherence to its general policy, it had inflexibly set its mind against that possibility.  In my mind, the Tribunal applied its general policy without sufficient regard to the substantial merits of the case and in a manner contrary to sound town planning considerations."

22. With respect, the general proposition of law in Falc Pty Ltd v State Planning Commission is undoubted.  However, the facts of the matter now under appeal are quite different from those that presented themselves in that case.  Here, the 1999 Airport Master Plan constitutes a document the content of which, by reason of its status under the Airports Act, rightly permits, if not demands, consideration by the Commission and on appeal the Tribunal so that a decision may be made that conforms with sound town planning principles.  That the Tribunal chose to give prominence to the considerations contained in the Master Plan to the extent that they were found to outweigh other considerations, and lead to the refusal of the application for approval of the appellant's plan of subdivision, does not disclose any error of law on the part of the Tribunal. 

23. The appellant's second ground of appeal is that the Tribunal erred in law in treating the Perth Airport expansion options, and particularly the extension of the East/West 06.24 runway, as a seriously entertained planning proposal in view of the evidence that the runway may not need to be extended, and that the proposal was speculative.

24. I do not consider that this ground has been made out by the appellant, very much for the reasons already stated in respect of the first ground.  It is plain that the Tribunal did not approach the 1999 Airport Master Plan as if it had the status of a "seriously entertained planning proposal".  In order to explain that proposition a little further, it is important to note something of the background to and relevance of the concept of a "seriously entertained" proposal in Western Australia to a decision of the kind that the Commission was obliged to make in this case.

25. In Agnew Clough Ltd v Town Planning Board, unreported; Appeal No 1 of 1979, delivered 1 May 1980 (Mr D K Malcolm QC, as he then was, chairman), the Town Planning Board (a predecessor to the Commission) refused to grant approval to subdivision land, amongst other reasons, because:

    "1.The land is zoned Rural in both the metropolitan region scheme and the local authority's Town Planning Scheme, the purpose of this zoning is to secure and preserve areas of land the uses and appearance of which are consistent with a rural character.  The northern portion of the land is earmarked as Rural 'Resource Protection' with particular emphasis on protection of water supply and its southern portion as 'recreation' in the Eastern Corridor Study Strategy Plan.  The subdivision of the land into small holding lots would therefore conflict with the present zoning and intent of the future proposals for the land."

26. In dealing with the discretion of the then Board, and the Tribunal on appeal to approve a subdivision proposal in such circumstances, the Tribunal noted that it was implicit that the discretion must be exercised in good faith for the purposes of planning and development of land for urban, suburban and rural purposes, the achievement of which would require the application of sound town planning principles.  The Tribunal added:

    "Insofar as it may be found that the metropolitan region scheme or a local authority town planning scheme has given statutory force and effect to a particular principle, the TPB would be bound to apply it.  Where a proposal for an amendment of an existing town planning scheme has been formulated and is being seriously entertained, that proposal may be evidence of that which is consistent with sound town planning principles because it is necessary for the orderly and proper planning of the area in question:  see Begley v Shire of Swan [1970] WAR 91 at 95 per Virtue SJP and Della‑Vedova v Town Planning Board (1978) unreported Town Planning Court appeal number 137 of 1979, 8 June 1975 at page 10 per Brinsden J.  It follows that provisions with statutory force and effect apart, the identification of sound town planning principles is a question of fact.  Thus, where a document is put forward as a statement of policy, the question will arise whether that policy is consistent with town planning principles.  A more difficult question is whether the TPB in considering applications for subdivision is entitled to take into account recommendations or proposals under consideration but not as yet approved or adopted by the responsible authority.  In our opinion, in such a case, the TPB would be entitled to look at the document in question as possible evidence of what was required for the orderly and proper planning of the locality, giving it such weight as was consistent with its source, nature and contents.  This would be part of the process of determining what were the relevant town planning principles to be applied."

27. This principle enunciated by the Tribunal in the Agnew Clough case is based on a principle which is more generally known in planning law circles as the "Coty principle".  This principle owes itself to the decision of Hardie J in Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117 at 125 where his Honour found that, pending a decision upon a planning proposal incorporated in a draft amending scheme, a court should "avoid as far as possible, giving a judgment or establishing any principle which would render more difficult the ultimate decision as to the form the scheme should take".

1. The Coty principle, so‑called, makes eminent sense.  Planning options seriously entertained by planning authorities should not be peremptorily cut off.  With respect, the principle enunciated in Agnew Clough by the Tribunal concerning the relevance of what it identified as proposals for amendment of existing town planning scheme or a statement of policy that is "seriously entertained", also makes good sense.  Nonetheless, there is perhaps a danger in elevating this principle to a status it does not have, and to treat it as one having a statutory basis.  Rather, the principle is merely intended to enable a planning proposal that does not yet have a formal status in the planning process to be regarded as a relevant town planning factor.

2. The 1999 Airport Master Plan is not in any relevant sense a "seriously entertained" proposal, whether by way of an amendment to a town planning scheme or another policy proposal that remains to be implemented.  Rather, as the Tribunal correctly found, it is a plan made pursuant to the Airports Act which has a status and operation of its own.  By virtue of its making, it may be considered as a relevant "policy" to which a planning authority may have regard.  A master plan must be produced, by force of this legislation, to guide future airport developments.  The master plan so produced is intended to assist in the making of planning decisions beyond the physical confines of the airport.  One of the object of the Airports Act is "to establish a system for the regulation of airports that has due regard to the interests of airport users and the general community":  s 3(b).  Airport developments often have the consequence of affecting existing or prospective land uses in and near the path of airport traffic.  As explained earlier in these reasons, it stands to reason that land use planning authorities, such as the Commission, should consider likely airport expansion plans - at least, final master plans - as relevant to their determination of desirable patterns of human habitation. 

3. Thus, it was proper for the Commission and the Tribunal to take account of the 1999 Airport Master Plan and what effect the implementation of runway expansion options identified in it might have in respect of the subject land in determining whether or not to approve the appellant's plan of subdivision in this case.  The Tribunal was quite entitled to have regard to forecast aircraft noise levels.  In this instance, the Master Plan does not state that any particular runway expansion option will be implemented.  Accordingly, the proposition that the subject land will at some point in the future fall within the 25 or above ANEF contour cannot be made good; it is and remains a speculative proposition.  The question is whether this means the Tribunal should have ignored the possibility.  The answer plainly is "No".  Whether in regarding the possibility the Tribunal should have decided to approve or to reject the appellant's planned subdivision, is a discretionary issue for the Tribunal to decide on the substantial merits of the case.  The determination of that issue involves a question of fact, not of law.  As a matter of fact, the Tribunal found the possibility was "potentially real, although speculative" and constrained the use of the land for what was proposed.  

4. If the Tribunal had failed to consider the terms of the Master Plan, and had approved the subdivision for residential purposes, then either the airport expansion options identified by the Master Plan might later be constrained or the inhabitants of the areas of residential development so developed might be affected adversely by aircraft noise if expansion later proceeded according to one of the options laid out in the Master Plan.  Informed judgments need to be made in particular cases as to whether in any given case a proposed residential development should be constrained or allowed to proceed; that is the role assigned to the Commission and on appeal to the Tribunal under the Town Planning and Development Act, not to this Court.  In this case, the Tribunal, having paid regard to the 1999 Airport Master Plan, determined that aircraft noise levels that would place the subject land in the 25 and above ANEF contour were "potentially real, although ultimately speculative", and represented an environmental limitation on the use of the subject land which constrained its use for residential purposes.  Such a determination involves hard questions of fact.  It does not involve any error of law. 

5. The third ground of appeal is that the Tribunal erred in law in determining that it must accept that the ANEF system represents the acceptable method of measuring noise levels from airport usage and in Table 2.1 of the Australian Standard AS 2021 establishing the transition from those levels to acceptable land uses, in that:

   "(1)The Tribunal did not recognise that the ANEF system does not measure noise levels but deals with forecasts of exposure to aircraft noise;

   (2)the Tribunal did not give any or due weight to the fact that the ANEF contours relied upon in the Master Plan were composite contours showing the forecast maximum noise impact of the combination of alternative options for expansion of Perth Airport, when only the noise impact of one of the options ought to have been considered, and only then if it had the status of a seriously entertained planning proposal;

   (3)the Tribunal did not give consideration to the fact that only the option of extension of the east‑west runway 06.24 would have any potential noise impact on the appeal land;

   (4)the Tribunal did not give consideration to the fact that on the evidence of the respondent's witness Petersen the proposal for extension of the east‑west runway 06.24 was speculative and therefore the option should not have been given weight;

   (5)in the circumstances the Tribunal should have determined that the ANEF system and the Australian Standard AS 2021 relying on it should not be used in determination of acceptable land uses on the appeal land."

6. I have referred earlier in these reasons to the reasoning of the Tribunal whereby it accepted that the ANEF system represented an acceptable method of measuring noise levels from airport usage and Table 2.1 of the Australia Standard in establishing a transition from those levels to acceptable land uses. 

7. As I have already found, in the light of the evidence adduced, the Tribunal was entitled to find that land use principles based on the ANEF system and Table 2.1 of the Standard had integrity and were relevant to its discretion in determining the appeal before it. 

8. The Tribunal plainly recognised that the appeal land was not presently affected by noise associated with the operations of Perth International Airport.  As a result, the Tribunal squarely considered whether it was proper to take into account forecast noise levels, which it did and about which it made factual findings. 

9. The Tribunal made specific reference to the evidence establishing that, as there was still potential for the traffic of the airport to increase considerably before an additional runway was required, it could not be said when the East‑West runway would be extended.  It recognised, therefore, that the East‑West proposal was speculative, although potentially real.

10. The Tribunal again recognised that Table 2.1 of the Standard did not recommend against all development of land falling into the 25 and above ANEF contours, but distinguished between built up areas and "greenfield" sites as stated earlier in these reasons. 

11. I cannot discern any error in the approach of the Tribunal in the determination of the appeal before it which involves a question of law.  It was open on the evidence to the Tribunal to view the noise risk as "potentially real" and that is what it found.

12. Ground 4 of the grounds of appeal repeats aspects of ground 3.  It complains that the Tribunal erred in law in relying on the ANEC contours in the application of Australian Standard AS 2021 in that the ANEC contours are composites which are not intended for definitive land use planning.

13. The Tribunal accepted that the appeal land fell within the 25 ANEF contour under both the Master Plan, ANEF 2047 (that is, the prediction for the year 2047) and between the 25 and 30 ANEF contours on the ANEC Ultimate Capacity contours favoured by the State Planning Commission Working Group when it reported in 1990:  see Tribunal's reasons, pars 19 ‑ 26.

14. No error of law is disclosed by the Tribunal having regard to the projections for the ultimate capacity of Perth International Airport and the consequential noise forecasts that they may affect land uses of the subject land.  The Tribunal understood that depending on which option may be adopted, the subject land may (or may not be) be adversely affected.

15. Ground 5 again is repetitive of some matters already raised in the other grounds of appeal.  By this ground, it is said the Tribunal erred in law in concluding that the exact manner of expansion of the Perth Airport was speculative and ought to have determined that the possibility of any expansion, and more specifically any extension of the east‑west runway 06.24, is speculative. 

16. This ground thereby complains about a failure of the Tribunal to make a particular finding of fact.  It was not necessary for the Tribunal to make such a finding of fact in order to dispose of the appeal before it.  The Tribunal expressly found that expansion of the airport was speculative, as was the expansion of the particular runway which, if it were to be developed, would bring the subject land within the 25 ANEF contour.  However, the development option was part of the 1999 Airport Master Plan approved under the Airports Act and, as such, permitted, if not demanded, consideration.  In my view, a material relevant consideration was addressed by the Tribunal.  The fact that the Tribunal did not draw a factual conclusion that would have favoured the appellant's case does not disclose any error of law.

17. By ground 6, the appellant says that the Tribunal erred in law in failing to give any weight, or in the alternative proper weight, to evidence giving compelling reasons for approval of the proposed subdivision, including the fact that the appeal land had been suitably zoned for residential development and was a singular remnant of land which had been planning and assembled for residential development over the last 16 years.

18. This ground raises issues dealt with in my reasons concerning ground 1.  In my opinion, the Tribunal did regard and took account of the fact that, save for the negative factor concerning forecast noise levels, the subject land was ripe for subdivision for residential development.  The Tribunal's task was to make a discretionary judgment, having regard to the substantial merits of the particular case before it.  In my view, it did this.  The most weighty factor, according to the Tribunal, was the question of forecast noise arising out of the potentially real development of the Perth Airport in a way that would adversely affect the subject land.

19. No particular factor is prescribed by the Town Planning and Development Act1928, or has otherwise been given statutory force, that requires factors aside from the forecast noise level factor to be given additional or overriding weight in the exercise of the power to approve a plan of subdivision.  In Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24 at 41, Mason J said of the role of a Court in exercising judicial review of an administrative discretion that:

    "It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator.  Its role is to set limits on the exercise of that discretion, and a decision made within the boundaries cannot be impugned … 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 a 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 is considered by Lord Greene MR in Wednesbury Corporation at 230, 233 ‑ 34, in which his Lordship said that it would only be made out if it was shown that the decision was so unreasonable that no reasonable person could have come to it."

20. In my view, in this case, the Tribunal was aware of and identified the factors relevant to the exercise of its discretion.  It chose to give particular prominence to the question of forecast aircraft noise levels in a "potentially real" context.  As I have found, I can see no legal error in the Tribunal either focusing on this factor as a relevant factor nor in deciding that the issue of forecast noise levels was crucial to the exercise of its discretion.

21. So far as ground 6 suggests error of law because the subject land was or should have been characterised as a "singular remnant of land" which had been planned and assembled for residential development for over 16 years, that does not seem to me to raise a question of law, but rather a question going to the planning merits of the proposed subdivision.

22. In any event, given that the land to the south of the subject land is zoned "Rural landscape living - no further subdivision", that land to the north is used for golf and that land to the west is affected by a 3000 m² Western Power easement, the characterisation of the subject land as a "singular remnant of land", might, in any event, as the respondent submitted, be doubted as a matter of fact.

23. Ground 7 complains that the Tribunal erred in law in ignoring the existing planning approval for 38 residential strata units on the land when considering the potential noise impact on the development of the land by subdivision into 22 single residential lots. 

24. In essence, the complaint is that, because the appellant can currently develop the subject land pursuant to an existing approval under strata titles legislation for 38 residential strata units, it ought, as a matter law, be entitled to have a "green title" subdivision of 22 single residential lots.  Whatever might be the town planning merits of that argument, which was plainly considered by the Tribunal, there is no question of law involved in the proposition.

25. The Tribunal, in par 51 of its reasons, expressly found that it mattered not that the appellant has an alternative development route through a strata title plan approved by the City.  In my view, it rightly found that the duty of the Commission, and thus the Tribunal, was to assess the application and decide the outcome by reference to planning principles.  When it did that, the Tribunal found that those principles, that encompass relevant noise predictions, led to the refusal of the appeal on its merits.  No error of law is disclosed by the reasoning process. 

26. In ground 8, the appellant complains that the Tribunal erred in law in evaluating the appellant's case, in that it proceeded on the false assumption that the appellant identified the critical - or crucial - issue in the case as being the question whether it is proper to take into account the forecast aircraft noise levels.  Again, this ground has been touched on in earlier grounds.  In my view, the Tribunal made no error in concluding that the "crucial issue" was whether it is proper to take into account forecast noise levels.  The question was whether of such forecasts of aircraft noise levels should lead to the refusal of the application on the merits of the case. 

27. It was for the Tribunal, on the appeal, having regard to all the relevant factors, which I have found it did regard, to identify what the crucial or critical issues in the case were as a matter of planning merits.  That it chose to characterise the forecast aircraft noise levels issue in the way that it did is hardly surprising in the circumstances.  No error of law is disclosed in the approach it took.

28. In ground 9 of its appeal, the appellant says that the Tribunal erred in law in accepting evidence that the appeal land was a "greenfield" site for the purpose of the application of the Australian Standard AS 2021 without giving any or any due consideration to evidence relevant in that context to the contrary, and the fact that the appeal land had been approved by the respondent and the local authority in 1990 for residential development to the R 25 R‑codes density.

29. I have already alluded to this ground in dealing with ground 1 of the appeal.  In my view, the Tribunal had regard to the evidence that enabled it to determine, one way or the other, whether the subject land should be considered a "greenfield" site for the purpose of applying the Standard.  That it did not explicitly refer to the evidence of Mr Pandevski on this issue in its reasons, when it adopted the characterisation of Mr O'Neill, does not disclose any error of law.

30. In any event, the characterisation by the Tribunal of the subject land, for the purposes of the Standard, as a "greenfield" site is a question of fact and not one that involves a question of law. 

31. By ground 10, the appellant says that, while recognising that the 1999 Airport Master Plan, contrary to s 72 of the Airports Act 1996 (Cth), related to a period of 50 years instead of 20 years, the Tribunal erred in law in determining that by reason of s 83 of the Airports Act, the Master Plan could validly extend to the 50‑year period.

32. In my view, there is no proper basis to this ground of appeal. Division 3 of Pt V of the Airports Act provides for the making of airport master plans. Section 70 provides that, for each airport, there is to be a final master plan. A final master plan is a draft master plan that has been approved by the Minister pursuant to s 83. Section 71 specifies the matters that must be set out in each draft or final master plan for an airport. One of the matters is that set out in s 71(2)(d), namely, "forecasts relating to noise exposure levels". Section 72 provides that: "A draft or final master plan must relate to a period of 20 years. This period is called the planning period."

33. Nothing in s 72 provides that a master plan must relate to a precise period of, no more or no less than, 20 years. Indeed, one can envisage circumstances where, in order to make sound predictions in respect of a period of 20 years, it might be necessary to envisage circumstances or developments extending well beyond the 20‑year period. Nothing in the evidence disclosed that the predictions as of 2047 were not relevant in the 20‑year period.

34. In my opinion, no error is disclosed by the Tribunal taking into account the Master Plan approved by the Minister under s 83 of the Airports Act.  In any event, I consider there should be a presumption of validity applied in respect of the Master Plan in proceedings such as those before the Tribunal.  A collateral attack on the legal validity of the Master Plan made under the Airports Act in a town planning appeal is not desirable. In any event, in my opinion, nothing in s 72 proscribes the making or approval of a master plan that relates to a period of 20 years and more. Such a plan remains a plan which relates to a period of 20 years.

35. Whether or not the data that supports predictions in such a plan should be considered unreliable is another issue.  No evidence suggested the 1999 Airport Master Plan was unreliable.  The appellant's complaint was that the East‑West runway development was speculative.  The Tribunal accepted this to be so.  The potential realisation of the option, however, was considered by the Tribunal to be real.  As a result, the terms of the Airport Master Plan were considered by the Tribunal to be relevant.

1. In all of these circumstances, I do not consider that the appeal involves any question or questions of law in respect of which the Town Planning Appeal Tribunal erred in making its determination the subject of the appeal. 

2. There is no doubt that the existence and development of airports throughout Australia have significant implications for the planning and development of land, including for human habitation. The interplay between the airport planning process mandated by the Commonwealth Airports Act, and the implementation of the State planning controls, is complex and not easily harmonised.  However, as these reasons indicate, the noise which may be characterised as potentially real, although speculative, from future airport developments may be taken into account in the planning process.  Indeed, it might be suggested that planning authorities would be in dereliction of their responsibilities if they chose not to do so.  What, if anything, this appeal demonstrates is that the harmonisation of airport planning and land use planning systems is not easily achieved and requires careful and active consideration and reconsideration.  However, nothing in the way the Tribunal exercised its discretion on appeal in relation to this matter, suggests that the Tribunal acted arbitrarily or in any sense unreasonably or without regard to the limits of its function, so as to disclose any error of law in its decision‑making. 

3. For these reasons the appeal should be dismissed.