Gold Coast Lifestyle Association Incorporated and Minister for Infrastructure and Regional Development

[2017] AATA 368

Gold Coast Lifestyle Association Incorporated and Minister for Infrastructure and Regional Development [2017] AATA 368 (21 March 2017)

Division:                  GENERAL DIVISION

File Number:           2016/0986

Re:  Gold Coast Lifestyle Association Incorporated

FIRST APPLICANT

And  Tugun Cobaki Alliance Incorporated

SECOND APPLICANT

And  Minister for Infrastructure and Regional Development

FIRST RESPONDENT

And  Gold Coast Airport Pty Ltd

SECOND RESPONDENT

And  Airservices Australia

THIRD RESPONDENT

FINAL DECISION

Tribunal:Deputy President Bernard J McCabe; and Senior Member Theodore Tavoularis

Date:  21 March 2017

Date of written reasons:        2 March 2017

Place:  Brisbane

WHEREAS The first respondent decided on 19 January 2016 to approve a Major Development Plan in relation to the Gold Coast Airport (“the reviewable decision”) AND the Tribunal has the power to impose conditions on that approval pursuant to s 94(7) of the Airports Act 1996 (Cth):

The Tribunal decides the reviewable decision shall be varied pursuant to s 43(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) by imposing the conditions set out in Schedule 1. The decision is otherwise affirmed.

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Deputy President Bernard McCabe  Senior Member Theodore Tavoularis

Schedule 1

Prior to the first use of the ILS, Airservices is to design noise abatement procedures having regard to the following hierarchy of principles:

1. The flight path approach noise abatement procedures must be in accordance with any:

   (a)procedure design certificate issued by CASA; and

   (b)Manual of Standards issued by CASA; and

   (c)applicable standards set out in the ICAO Doc. 8168 (PANS-OPS)

(See  clauses  173.040,  173.080  and  173.085  of  the  Civil  Aviation  Safety Regulations 1998).

1. All aircraft approved by CASA to use the existing RNAV-RNP, RNAV-X and W- RNP flight path approaches must use those approaches unless another approach is operationally required or required for emergencies.

1. All aircraft not approved by CASA to use the existing RNAV-RNP, RNAV-X and W- RNP flight path approaches must use either the new RNAV-Z flight path approach or visual flight path approach unless another approach is operationally required or required for emergencies.

1. The ILS can only be used by aircraft approved by CASA to use the ILS when the flight path approaches set out in 2 and 3 above are not appropriate due to any of the following:

   (a)in circumstances where increased cloud coverage and reduced visibility require the use of the vertical guidance and better landing assurance provided by the ILS. Airservices will develop, in consultation with all airlines and the Gold Coast Airport, as well as Airservices’ Air Traffic Control Tower and Terminal Control Unit, the prescribed cloud base and visibility at which the ILS flight path approach will be nominated, and that prescribed cloud base and visibility criteria will be recorded in the document titled Moreton – Gold Coast Tower Coordination and Standard Operation Procedures”

(Standard Operating Procedures). Noise abatement procedures are also published in the Aeronautical Information Publication under Preferred Flight Paths; or

(b)when operationally required; or

(c)required for emergencies.

1. The visual flight path approach cannot be assigned to a heavy jet, excluding Australian and New Zealand operators, unless:

   (a)specifically requested by the pilot and the pilot has reported the landing runway in sight; or

   (b)the straight in approach other than the ILS approach aid is unserviceable

(see part 172 MOS 12.2.4.3).

1. Aircraft must not use the ILS flight path approach for tracking convenience and practice autolands, and must not use the ILS for recency requirements and traffic sequencing.

1. Aircraft above 5700kg must not use the ILS flight path approach for training unless operationally required.

1. The above principles apply to all aircraft operating at the airport (including those exempt or holding a dispensation from the Airport curfew period).

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Deputy President Bernard McCabe  Senior Member Theodore Tavoularis

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL               )

)         No: 2016/0986

GENERAL DIVISION  )

Re: Gold Coast Lifestyle Association Incorporated
First Applicant

Re: Tugun Cobaki Alliance Incorporated

Second Applicant

And: Minister for Infrastructure and Regional Development

First Respondent

And: Gold Coast Airport Pty Ltd

Second Respondent

And: Airservices Australia

Third Respondent

CORRIGENDUM

TRIBUNAL:               Deputy President Bernard McCabe, and

Senior Member Theodore Tavoularis

DATE:  21 March 2017

PLACE:  Brisbane

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application. Such that the following obvious and typographical errors in the Reasons for Decision dated 2 March 2017, be edited as follows:

a.    “spoils” be changed to “soils” in paragraph [22]; and

b.    the reference to the approval of the master plan in “2011” be changed to “May 2012” in paragraph [15]; and

c. the subsequent references to the master plan being approved in “2011” be changed to “2012” in paragraphs [22], [46], and [66].

....................................................  …….…………………………………
Deputy President Bernard McCabe  Senior Member Theodore Tavoularis

© Commonwealth o

 

Division:                  GENERAL DIVISION

File Number:           2016/0986

Re:  Gold Coast Lifestyle Association Incorporated

FIRST APPLICANT

And  Tugun Cobaki Alliance Incorporated

SECOND APPLICANT

And  Minister for Infrastructure and Regional Development

FIRST RESPONDENT

And  Gold Coast Airport Pty Ltd

SECOND RESPONDENT

And  Airservices Australia

THIRD RESPONDENT

DECISION

Tribunal:                  Deputy President Bernard J McCabe

Senior Member Theodore Tavoularis

Date:  2 March 2017

Place:  Brisbane

1.   The First Respondent shall, within 7 days of the date of these reasons, consult the other parties and propose draft orders that give effect to these reasons.

2.  The Tribunal will resume the hearing to hear any further submissions and make a final determination on a date to be fixed.

.............................................................  .............................................................

Deputy President Bernard J McCabe  Senior Member Theodore Tavoularis

INFRASTRUCTURE  AND  DEVELOPMENT  –  AIRPORTS  –  Gold  Coast  Airport  –

Approval of Major Development Plan – Consideration of Environmental Impacts and other issues – consistency with Master Plan – power to impose conditions on approval.

Legislation

Airports Act 1996, Part 5, Division 3 and 4, (ss 83, 89, 90, 91, 92, 94) and s 242

Administrative Appeals Tribunal Act 1975, ss 37, 42C, 42D, 43

Environmental Protection and Biodiversity Conservation Act 1999

REASONS FOR DECISION

Deputy President Bernard J McCabe Senior Member Theodore Tavoularis

2 March 2017

1. The Gold Coast is a pleasant place to live, work and retire. It is also Australia’s largest tourist destination. During the course of a visit to the Gold Coast, tourists commonly spend money on accommodation, restaurants, nightclubs, theme parks, transport and a wide range of other goods and services provided by businesses in the region. That spending creates jobs and powers economic growth.

1. Many visitors from south-east Queensland travel to the Gold Coast by car or train. A proportion of visitors from  interstate also travel by road. But a significant number of tourists arrive on the Gold Coast by plane from around Australia and, increasingly, from around the world. Those planes fly into the Gold Coast airport at Coolangatta. The airport is the fifth busiest airport in the country. It currently handles around 380 flights each week and over six million passengers each year.

1. It almost goes without saying that the Gold Coast airport is a vital piece of infrastructure which underpins the economic development of south-east Queensland.

1. Gold Coast Airport Pty Ltd (“GCAPL”) operates the Gold Coast Airport. GCAPL leases the airport site at Coolangatta from the Commonwealth. GCAPL plans to develop the site and upgrade the capacity of the airport in a number of ways that are set out in the airport master  plan.  The  master  plan  was  approved  by  the  Minister  for  Infrastructure  and

Regional Development (the “Minister”) pursuant to Part 5, Division 3 of the Airports Act 1996 (Cth) (the “Airports Act”).1

1. One of the enhancements foreshadowed in the master plan is the installation of  an instrument landing system, or “ILS”, on runway 14.2 An ILS is a navigation aid that assists aircraft to land when visibility is poor. GCAPL believes an ILS would be an advantage for the Gold Coast airport. It says the airport will become more attractive to airlines and there will be a decline in the number of costly diversions and missed approaches. It also says an ILS will make the airport safer. But GCAPL is not free to just go ahead and start work on the ILS. It must first seek approvals from a number of government decision-makers carrying out discrete responsibilities under different enactments. Indeed, it is misleading to speak of a decision to install an ILS as if there were a single administrative determination to that effect. The plan to construct an ILS requires a series of discrete but complimentary decisions by administrative decision-makers across government.

1. At least four Commonwealth entities play a role in relation to the plan to install an ILS at the Gold Coast airport. The detailed proposal must be incorporated into a major development plan that requires the approval of the Minister under Part 5 Division 4 of the Airports Act. As part of that process, the Department of the Environment and Energy must assess the environmental impact of the proposal under the provisions of the Environmental Protection and Biodiversity Conservation Act 1999 (the “EPBC Act”). The Civil Aviation Safety Authority (“CASA”) also has a role to play with respect to safety issues and with respect to the planning and designation of flight paths which may require reconfiguration if aircraft are to use the ILS. Airservices Australia (“Airservices”) must oversee the construction of the ILS facilities on the airport site and beyond. Airservices also has a role to play in the planning and designation of flight paths. To be clear, the Minister does not have any power under the Airports Act to make decisions about the designation or configuration of flight paths.

1. The Minister must consult the Department of the Environment and Energy, CASA and Airservices - and many others - in the course of making his reviewable decision with respect to the major development plan under the Airports Act, but CASA and Airservices in particular have additional responsibilities in relation to the proposal that require them to

1 A copy of the 2011 Master Plan is found in exhibit one at pp 527-731.

2 Aircraft approaching the airport from the north land on runway 14, which is parallel to the coastline. Aircraft landing on the other end of the strip from the south are said to use runway 32.

make decisions to which the Minister is not a party. All of the decisions are related in the sense that they are all necessary to accomplish the overarching objective of installing an ILS, but they are still separate decisions – and decisions made by other entities are not necessarily reviewable decisions for the purposes of the Administrative Appeals Tribunal Act 1975. For reasons explained during the interlocutory steps in these proceedings, it is not possible for the Tribunal to ‘shoe-horn’ decisions of other decision-makers into the current review. We must focus on whether the particular decision under review is the correct or preferable decision.

1. The reviewable decision in these proceedings is the Minister’s decision under s 94 of the Airports Act to approve the GCAPL’s draft major development plan detailing the proposal to install the ILS. The Minister’s decision is dated 19 January 2016. It is reproduced in exhibit one at pp 104-113.

1. There were ultimately two applicants who participated in the review process. The first, the Gold Coast Lifestyle Association Inc (the “Lifestyle Association”), was worried that installation of the ILS would result in changes to flight paths that would expose a large number of residents on the Gold Coast to increased aircraft noise. The Tribunal raised questions about its jurisdiction to deal with some of those objections as it appeared the objections referred to consequences of separate (if related) decisions by different decision-makers with respect to flight paths rather than the reviewable decision.

1. Happily, the Lifestyle Association and the respondents were able to resolve their differences in relation to the Lifestyle Association’s objections in the course of the Tribunal’s alternative dispute resolution processes before the hearing. We were provided with draft orders that contain specific undertakings as to the noise abatement procedures that will be adopted if we saw fit to affirm the decision under review. On the basis of that agreement, the representatives of the Lifestyle Association did not lead any evidence on the noise issue or otherwise participate in the substantive hearing. We will have more to say about those orders below.

1. That leaves the second applicant, the Tugun Cobaki Alliance Inc (the “Alliance”). The Alliance argued the reviewable decision should be set aside and the approval for the draft major development plan be refused because:

·     there were fatal flaws in the decision-making process, most obviously because the draft major development plan did not disclose essential detail and was not consistent with the airport master plan;

·     the construction work could cause chemical contaminants already present in the soil on the airport site to be dispersed, which would damage the local environment; and

·     the construction work could disturb acid sulphate soils on the airport site, which would also damage the local environment.

1. We have considered the evidence and the arguments provided by all of the parties. We are satisfied the decision under review should be substantially affirmed, subject to the reasons which follow.

THE STATUTORY FRAMEWORK

1. We will discuss the statutory framework within which our decision must be made – but we should first say something about the role of the Tribunal. Section 242 of the Airports Act empowers the Tribunal to review the Minister’s decision. When conducting that review, the Tribunal steps into the shoes of the original decision-maker. The Tribunal exercises all of the same powers – and is subject to the same limitations – as the Minister. We are not confined to the material that was before the Minister. Our obligation is to make the correct or preferable decision having regard to the material that is properly before us at the time of the hearing. That material includes expert evidence and data that was not available when the Minister made the reviewable decision.

1. There was a brief discussion during the course of the hearing about whether any party had an onus or burden of proof in relation to the reviewable decision. (The discussion was apposite because the Alliance did not call any witnesses.) Except in cases where a particular statute allocates the burden of proof to one party, the Tribunal generally avoids thinking in terms of onus. Ultimately, it is the Tribunal’s responsibility to form a view as to the correct or preferable decision. In reaching that view, it will consult the parties and consider any arguments and evidence they might present; it may choose to consult others as well.

1. We turn next to the decision-making process contemplated in the Airports Act. We note the Minister approved the airport’s final master plan pursuant to s 83 of the Airports Act in

   2011.3 That plan foreshadows the installation of an ILS: see exhibit one, pp 634-635.  But

   the installation of an ILS – insofar as it involves the construction of facilities on the airport site - is a major airport development within the meaning of s 89. Section 90 says the lessee must not carry out a major airport development without a major development plan approved by the Minister. Section 91 outlines the contents of a major development plan, while s 92 sets out the obligation to expose the draft and invite comment. The Minister’s power to approve the draft plan is found in s 94.

1. Section 94 is of central importance to these proceedings. It sets out a number of mandatory considerations in s 94(3), but adds (at s 94(5)) that the draft plan should not be approved in any event if it is inconsistent with the master plan.

1. Given we must step into the shoes of the decision-maker, it is necessary for us to have regard to all the matters referred to in s 94(3) together with any other consideration that seems relevant. (Section 94(4) points out the list of matters in s 94(3) is not exhaustive.)

1. We should say at once that most of the evidence and submissions were directed to s 94(3)(c) which refers to ‘the impact that carrying out the plan would be likely to have on the environment..’. For the sake of completeness, however, we propose dealing with each

3 The purposes of a final master plan are set out in 70(2) of the Airports Act. These include:

(a)to establish the strategic direction for efficient and economic development at the airport over the planning period of the plan; and

(b)to provide for the development of additional uses of the airport site; and

(c))  to indicate to the public the intended uses of the airport site; and

(d)to reduce potential conflicts between uses of the airport site, and to ensure that uses of the airport site are compatible with the areas surrounding the airport; and

(e)to ensure that all operations at the airport are undertaken in accordance with relevant environmental legislation and standards; and

(f)to establish a framework for assessing compliance at the airport with relevant environmental legislation and standards; and

(g)to promote the continual improvement of environmental management at the airport.

of the mandatory considerations before reaching our conclusion. We will return to that task below after we have discussed the evidence.

THE EVIDENCE PRESENTED AT THE HEARING

1. The documents provided pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 included the airport’s final master plan and the draft major development plan that was approved by the Minister. Those documents were central to the discussion at the hearing. We were provided with expert reports and took evidence from experts called by the respondents at the hearing.

1. The proposed works were described in the major development plan: exhibit one at pp 140-158. They include several components which are summarised in table 2.1 of the plan.4 The main works on the airport site are located on the northern end of the site immediately to the right of the touchdown point on runway 14. The glide path antenna and some associated works are located in that area. The works include the construction of an earth mat that is approximately 90 metres long and 12 metres wide. The mat acts as a reflective surface. There are service trenches that will cut across the airport site, and the 150 metre wide runway strip will be widened to 300 metres. The widening process will involve clearing and grubbing that will expose surface soils. The localiser antenna array with its associated infrastructure  is actually located beyond the southern end of  the runway on Crown land in New South Wales.

1. We had the opportunity to see all of this for ourselves during the course of a view of the airport site during the hearing. The Tribunal members and representatives of the parties were driven around to various locations at the airport. We saw the site of the proposed glide path antenna, the drainage ditches, the stands of vegetation and the area that is to be cleared along the runway. We saw where the fire station and the fire-training area were located relative to the construction site. We saw both ends of the runway (although we did not leave the airport site and cross onto Crown land in New South Wales to visit the proposed site of the localiser antenna). The view assisted us to interpret and visualise what was described in the various maps and diagrams provided in the materials. We had a sense of scale that was missing from the maps. The site visit provided useful context for the documents and oral evidence that we will discuss below.

4 See exhibit one, pp 144-145, Table 2.1: Proposed ILS components.

1. We should begin by considering what was said about the environmental risks in the draft major development plan. The risk of potential soil, surface and groundwater contamination was identified in the major development plan.5 The plan also referred to mitigation measures that were likely to be adopted.6 The major development plan expressly identified risks arising out of the presence of perfluorinated chemicals (“PFCs”) and other contaminants but noted the extent of contamination had not been completely delineated. It proposed that further testing would be undertaken and plans would be developed for managing the risk: exhibit one at pp 206-208. That is all consistent with what was said about the risk of contamination in the master plan that was approved in 2011. The master plan referred to risks associated with contamination at the fire training ground  and required that appropriate mitigation and management measures be adopted for future

   construction: exhibit one, T8, at p 682. The draft major development plan also referred to the risks associated with the presence of acid sulphate spoils.7

1. With that background, we turn to the details of the evidence provided by the parties at the hearing. The Alliance said it relied on some older data generated in connection with the construction of the Tugun by-pass in 2004-2008 (exhibit A2.3 and A2.4). It also referred to an expert report prepared by Dr William Milne-Home (exhibit A2.2) in July 2016. Dr Milne- Home opined that the lack of detailed technical information available made it hard to make a proper assessment of the risks associated with construction: exhibit A2.2 at p 4. That opinion did not take into account more recent information provided in the preliminary investigation and sampling reports that were produced in October 2016 (exhibits A2.6 and A2.7); nor did the opinion take into account the consultants’ reports lodged in October 2016. The Alliance did not press the other material it provided during the course of the interlocutory proceedings in this matter. It did not call any witnesses of its own, and Dr Milne-Home was not cross-examined on his conclusions. It is therefore difficult to assign much weight to his opinion expressed in the earlier report. Most of the evidence considered at the hearing was provided by the respondents.

1. That evidence focused on three issues. We will deal firstly with the acid sulphate soils issue. The Alliance is concerned that construction on the airport site in connection with the ILS would disturb acid sulphate soils that might impact on the Cobaki Broadwater. The discussion on that issue turned on the report of Mr Rob Virtue of GHD, a consulting firm,

5 See exhibit one, T6, pp 181-186.

6 See exhibit one, T6, pp 206-210.
7 See exhibit one, T6, pp 181 and 207.

dated 24 October 2016 (exhibit 5). Mr Virtue is a hydrogeologist. He was called to give oral evidence by Airservices.

1. In his oral evidence, Mr Virtue explained acidic soils were a naturally-occurring phenomenon. Acidity was especially common in flat, low-lying areas on the coast. A problem arose when those soils were disturbed and exposed to the air or water. Exposure caused oxidisation which created sulphuric acid. The acid could leach from disturbed soils on the airport site through groundwater flows which led to the Broadwater. Mr Virtue noted a good deal of fill material had been dumped on the airport site over the years that added to the natural level of acidity. He said his team had been testing the groundwater and soils on the site to get a clear picture of the extent of acidification. He said that testing program would continue during the construction phase.

1. Mr Virtue agreed the simple act of digging a hole in the ground on the airport site would create issues that needed to be managed. But he said that could be easily done, most obviously by applying lime to the soil which neutralised the acidity. He insisted in his oral evidence that the techniques for managing acidic soils were safe and well-understood, and that they could easily and economically be applied. He said the site would constantly be monitored and that construction methods could easily be adapted in response to any issues or challenges. By way of illustration, he said it was standard practice to require that excavated holes be filled in within 24 hours so that acidic soils were not exposed to the air for long periods.

1. Ms Smith, who represented the Alliance, asked Mr Virtue during cross-examination whether the remediation efforts might endanger the habitat of the Wallum Sedge Frog.8 The sedge frog is an endangered species. Specimens have been found on the airport site and around the Broadwater. The sedge frog apparently prefers an environment with higher levels of acidity; it would be a problem for the sedge frog if the remediation techniques were too effective in dealing with acid sulphate soils. We note the major development plan refers to a number of measures that would be adopted to protect the frogs and froglets. These measures include a program of selective trimming and plant

8 The major development plan identified two different species with similar names: the Wallaum Sedge Frog and the Wallum Froglet. There was some confusion at the hearing over whether there were two species or simply two ways of talking about the same species. As it happens, the considerations in respect of both species – if there are two – are the same.

removal and the engagement of a fauna spotter who would observe the habitat and intervene if individual specimens were in danger.9

1. Mr Virtue was unfamiliar with the particular needs of the sedge frog but pointed out the remediation measures were carefully targeted. He said lime was not applied indiscriminately, and the level of acidity was constantly monitored.

1. We have no reason to discount Mr Virtue’s conclusion that the construction process was unlikely to lead to any issues with acid sulphate soils provided the process was managed appropriately. He said a regime of testing, monitoring and remediation would deal with any challenge. Appropriate construction practices would limit the risk. Indeed, given the site already had problems with acid sulphate soils that were dumped there over the years, he was confident the remediation efforts associated with the construction would actually lead to a net improvement in the environment, at least insofar as acid sulphate soils was concerned.

1. Ms Smith did not identify any defects in the report or in the conclusions of Mr Virtue; indeed, she appeared to concede his evidence was persuasive and reassuring. Noting the measures proposed for protecting the Wallum Sedge Frog in the major development plan, we are satisfied we should accept Mr Virtue’s evidence.

1. We turn next to the evidence in relation to contaminants on the airport site. A number of contaminants were identified during testing on the site. (Testing occurred in 2016, but also in 2008 around the time of the construction of the Tugun by-pass at the southern end of the airport site. The testing data is contained in a report reproduced as exhibit A2.8.) The evidence at the hearing focused on PFCs that were present in relatively high concentrations in the soil and groundwater around the fire station on the eastern side of the main runway, and on an area to the west of the main runway that was used as a fire training ground. The Alliance is concerned PFCs might be disturbed or that groundwater flows might be affected in the course of the construction process. In either event, the Alliance worries the PFCs might be transported from the site to the Broadwater where they would pollute the estuarine environment. There is no suggestion any of the contaminants which might be disturbed would impact on human health.

9 See exhibit one, T6, p 209.

1. Airservices called Dr Peter Nadebaum, the author of a report provided by GHD, a firm of consultants. The report is reproduced in exhibit two. Dr Nadebaum is an environmental engineer with extensive experience in the assessment and remediation of land and groundwater contamination. His report included the results and analysis of a testing program around the airport site. He said the testing program confirmed the PFCs were concentrated around the fire station and the fire training grounds. He said there were low levels of PFCs present in the soil around the construction site. (That conclusion was consistent with the results of testing referred to in exhibit A2.8. That testing program demonstrated problems around the fire station and fire testing grounds but did not demonstrate high levels of contamination around the proposed construction sites.) There were higher levels of contamination in the groundwater sampled around the construction sites in the most recent data, but he said in oral evidence that water was still clean enough to drink. While he acknowledged contaminated water might be fit for human consumption but still dangerous to natural eco-systems, he insisted in his oral evidence that the construction work would not cause a problem. He explained the construction work around the site would occur at a shallow depth, and the soils that were likely to be disturbed at the construction site were not heavily contaminated in any event. He said there were well-understood mitigation techniques that could be deployed if any problems were detected. In his report, he acknowledged (exhibit two at p 19) the construction works might require ‘temporary localised dewatering’ as the work proceeded, but that effect would be short-lived. He concluded: ‘there will only be a minimal effect on local groundwater movement which is unlikely to change the natural groundwater processes.’ He subsequently opined (at p 19) that the proposed works:

·Will not adversely affect human health of workers undertaking the works or airport workers after the works have been completed;

·Will not give rise to distinguishable effects on the terrestrial ecology either on site or off site;

·Will not give rise to distinguishable effects on the aquatic ecosystems  in surface water drains on the site and of nearby surface receiving waters, in particular the Coral Sea and the Cobaki Broadwater;

·Will not give rise to distinguishable effects on the suitability of fish for human consumption in the Coral Sea or the Cobaki Broadwater.

·Will  not  give  rise  to  distinguishable  changes  in  the  overall  discharge  of groundwater to surface waters.

1. Dr Nadebaum elaborated on his views in the course of his oral evidence. He explained the natural flow of groundwater was away from the construction site on the north-western end of the main runway which was more elevated than the contaminated areas. There was little danger of groundwater flowing into the construction site and mobilising contaminants. He added the groundwater did not flow in the direction of either of the areas identified as being more heavily contaminated, so there was no danger of groundwater flows from the construction site mobilising PFCs at those sites. He said the proposed changes to the drainage network would not increase the risk of contaminants being mobilised.

1. Ms Smith asked Dr Nadebaum about the limitations in the testing and sampling process that were undertaken in connection with his report. The report addresses the limitations at [4.4]. He agreed there may be some variation in the level of contamination showing up in groundwater sampling over time, and that those variations might not be captured in the data given the tests were conducted at a particular time. He said variations in rainfall would likely have an impact on groundwater readings from time to time. But while he acknowledged there were limits to the testing, he was unwilling to accept there were any shortcomings in the data and analysis. He made it clear in his oral evidence the testing to date provided a robust basis for his conclusions. He said testing would continue as construction proceeded so any unexpected difficulties could be addressed.

1. Dr Nadebaum insisted any challenges that did arise out of PFC contamination could be readily managed through the development and implementation of a construction management plan. His expectations as to the content of that plan are set out in Table 5-2 of his report (exhibit two at p 20). In his oral evidence, he gave practical examples of measures that might be taken. For example, he said a communications trench planned as part of the works would be constructed using a directional drilling technique; any contaminated soils could be tested and removed if necessary. He also said steps would be taken to ensure groundwater was not allowed to pool in areas where construction occurred. That would prevent groundwater flows from being charged. He also said the plan would address any changes to drainage channels that might create issues.

1. We are satisfied Dr Nadebaum’s evidence should be accepted. The conclusions expressed in his report and reaffirmed in his oral evidence appeared to be soundly based on the data garnered through the testing program, and on the scientific literature. His

report appears to have taken proper account of the material contained in the preliminary site investigation and preliminary sampling reports (exhibits A2.6 and A2.7). His conclusions also appeared to be informed by his experience of routine practice in dealing with the challenge of contaminated soils on construction sites. Dr Nadebaum’s evidence and the cross-examination did not expose any flaws in his reasoning or conclusions, nor did we identify any unanswered questions or areas of doubt that suggested we should reject any part of his evidence, or seek out further evidence.

1. We were also provided with evidence from Mr Neil Hall. Mr Hall was called to give evidence by Airservices. He provided a statement (exhibit 9). Mr Hall is the  acting Strategic Stakeholder Manager and the Environment and Air Traffic Management manager of Airservices. In that role, he was involved in the preparation of the major development plan. He previously worked as an air traffic controller and had worked at one stage as air traffic control tower manager at the Gold Coast airport. His familiarity with the Gold Coast airport was of considerable assistance, as we will explain.

1. Mr Hall’s written statement focused on noise issues and options for noise abatement. His unchallenged evidence on those issues (especially the noise abatement proposals referred to in [39] of his statement) was explicitly informed by other available evidence, including a report  prepared  by  Mr  Raymond  Romano  of  the  Airport  Group  dated 24 October 2016.10 Mr Hall’s evidence provides a basis for the draft orders that were proposed following negotiations between the Lifestyle Association and the respondents. Mr Hall’s oral evidence focused on the public consultation process that occurred in connection with the draft major development plan and on the operation of the airport.

1. Mr Hall explained that an ILS was one of several precision approach aids in common use. He said the ILS was desirable because it allowed aircraft to get lower and closer to the runway in bad weather than some of the alternative aids. He pointed out that was an advantage at the Gold Coast airport where heavy rainfall was often an issue.  The evidence was relevant in light of the suggestion that superior alternative technologies are available. We were invited to infer that an ILS was not an appropriate choice for the airport. But there was nothing in the material presented at the hearing or in submissions which persuaded us we should reject Mr Hall’s oral evidence that it is reasonable to favour installation of an ILS over (or in addition to) alternative aids at this airport at this point.

10 Mr Hall referred to that expert in his statement. A copy of the report was filed separately.

1. Ms Smith asked Mr Hall a number of questions about plans to extend the operational length of the main runway. We were invited to infer that the installation of the ILS was part of a larger undisclosed plan to extend the runway in ways that would impact on the local environment. Ms Smith pointed out the plans for the ILS anticipate the localiser antenna would be placed 300 metres short of the end of runway 14 (that is, on Crown land at the southern end of the main runway beyond the airport boundary), when it could be located closer. She also said the construction was more intrusive than it needed to be: more vegetation was being cleared and extra road and drainage works were to be constructed. Ms Smith speculated it only made sense to place the localiser antenna that far from the end of the runway if the GCAPL secretly planned to extend the runway.

1. Mr Hall confirmed GCAPL was considering an extension to the operational length of runway 32 by moving the landing threshold (that is, the point where aircraft actually touch down) to the south, closer to the boundary of the airport. He said there was no secret about that proposal: the possibility of an extension is mentioned in the master plan: exhibit one at p 611. But he also said the operational length of the runway could be extended without extending the bitumen. The change could be effected by repainting the markings on the runway and reconfiguring the landing lights. Major construction work was not required. He added the placement of the localiser antenna was irrelevant to that exercise because the ILS was being installed on runway 14, not runway 32. The installation of the ILS on runway 14 would occur independently of any plan to change the operational length of runway 32. Mr Hall said the plans with respect to runway 32 were subject to a separate approvals process, although he said it was unlikely a major development plan would be required in relation to that proposal given the small scale of the works required.

1. Mr Hall was an impressive witness. He has a breadth of experience that enabled him to speak authoritatively on the detail of airport operations, air traffic control and navigation aids. His evidence in relation to the proposed further developments at the airport and in relation to the installation of the ILS infrastructure on Crown land was not directly contradicted. His evidence was credible, reasoned and carefully explained; there is no basis for rejecting his expert evidence.

ADDRESSING THE CONSIDERATIONS IN SECTION 94(3)

1. We now turn to the statutory criteria. We will address each of them in turn.

The extent to which the plan achieves the purpose of a major development plan

1. Section 94(3)(aa) requires that the Minister consider the extent to which the plan achieves the purposes of a major development plan. Those purposes are set out in s 91(1A), which explains:

   (1A)The purpose of a major development plan in relation to an  airport is to establish the details of a major airport development that:

   (a)  relates to the airport; and

   (b)  is consistent with the airport lease for the airport and the final master plan for the airport.

1. The major development plan which is reproduced in exhibit one sets out the details of the proposed development clearly enough at pp 140-158. (The plan explores the impact of the proposal in subsequent pages.) The plan clearly relates to the airport. We did not explore the airport lease at the hearing but we note the plan asserts (see clause [3.3] in exhibit one at p 164) the lease includes a requirement that GCAPL develop the airport in a way that anticipates future growth, good business practices and the need to improve the movement of passengers. GCAPL says the ILS will contribute to those ends. We have not been provided with any reason to doubt that claim.

1. There was a suggestion from the Alliance that the details of the major development were inconsistent with the final master plan. We disagree. The major development plan points out (at clause [3.4] in exhibit one at p 164) the GCAPL foreshadowed its intention to install an ILS, and that fact is recorded in the master plan at section 10.5.11 The master plan was approved in 2011. The master plan adds that further assessment, consultation and approval would be required before the proposal could be implemented – but that is exactly what has occurred. The major development plan also addresses (at [3.4.1] and [3.4.2] in exhibit one at pp 164-165)  the land use strategy discussed in the master  plan and explains how the proposal is consistent with the foreshadowed development of the runway precinct.

1. The Alliance argued there was a paucity of detail about the proposal and the various measures that would be adopted to mitigate environmental risks. The plan does identify the proposal and describes the risks and benefits in general terms. It also describes some of the proposals for mitigating various risks. But the level of generality is not a problem

11 See exhibit one at p 635.

because this is a planning document that describes a proposed development. It is not a final building approval that encapsulates a complete and exhaustive scoping of the work.

1. We are satisfied the matters referred to in s 94(3)(aa) do not weigh against approval of the major development plan. Indeed, we are satisfied this consideration weighs in favour of approval.

The extent to which carrying out the plan would meet the future needs of users of the airport

1. Section 94(3)(a) requires that we consider whether the foreshadowed construction works would meet the needs of the millions of people that use the Gold Coast airport each year. The Minister concluded an ILS would improve the reliability and safety of aircraft landings at the airport. That conclusion was not seriously challenged in the course of the hearing after the Lifestyle Association effectively pulled out of the proceedings. We are satisfied the evidence of Mr Hall in particular – which refers to much of the other material that addresses this issue – provides a sound basis for us agreeing with the Minister’s conclusion. We accept installation of an ILS may not be the only way of meeting the future needs of users, but there is no reason to doubt it is an appropriate means of doing so. We therefore accept this consideration weighs in favour of approval of the major development plan.

The effect that carrying out the plan would be likely to have on the future operating capacity of the airport

1. Section 94(3)(b) directs our attention to the impact of an ILS on the future operating capacity of the airport. Mr Hall’s evidence provides a basis for concluding the number of diversions and missed approaches would decline if an ILS were installed. It also stands to reason that the Gold Coast airport may become a more viable and attractive destination for other airlines – most obviously those from overseas – if the navigation aids used at the airport were improved so they were at least comparable with those available at other major Australian airports. We are satisfied installation of the ILS would have a positive impact on the future operating capacity. We therefore accept this consideration weighs in favour of approval of the major development plan.

The impact that carrying out the plan would be likely to have on the environment

1. Most of the evidence provide in the course of these proceedings dealt with the impact on the environment which must be considered pursuant to s 94(3)(c). We note the Department of the Environment concluded the installation and operation of the ILS was unlikely to have a significant impact on the environment: exhibit one at p 356.

1. There was a good deal of debate during the course of the pre-hearing processes over the extent to which we should consider the impact of aircraft noise – particularly the impact of noise that was the result of changed flight paths – in the course of our deliberations. As it turned out, the Lifestyle Association agreed with the respondents on a range of noise abatement procedures that should mitigate the impact of noise associated with the installation or operation of the ILS. Mr Hall’s evidence provides a sound basis for concluding that noise abatement processes should reduce the impact of aircraft noise on the environment beyond the airport boundary to more acceptable levels.

1. The findings we have already made in relation to acid sulphate soils, PFCs and other contaminants being mobilised suggest the installation and operation of the ILS will have limited impact on the environment if the construction process includes a regime of monitoring and testing and appropriate strategies are adopted as foreshadowed. (Indeed, the evidence of Mr Virtue suggests there may even be a net improvement in the environment if the construction proceeds.) The evidence about the selective clearing of the foliage along the widened runway strip also tends to suggest that work will have a limited impact on what the Minister acknowledged was an environmentally significant area. The Minister, in the reviewable decision, pointed out that less than 1% of the environmentally significant area would be impacted by the work;12 we have not seen any evidence to suggest a different conclusion.

1. We are satisfied the Department of Environment’s conclusion is appropriate. The installation and operation of the ILS will not have a significant impact on the environment. We are therefore satisfied this consideration does not weigh against approval of the major development plan.

12 See exhibit one at p 112.

The consultations undertaken in preparing the plan (including the outcome of the consultations)

1. Section 94(3)(d) requires that we consider the adequacy of the consultation process. The process was described by Mr Hall who was involved with the preparation of the plan. Various stakeholders were appropriately consulted as required in s 93 and their input appears to have made its way into the final iteration of the report. (The final draft (exhibit one at pp 116 - 242) is marked up to demonstrate additions and changes that were made during the course of this process.) There was also an extensive public consultation process pursuant to s 92 of the Act. Mr Hall described the public engagement and consultation activities that took place. We have been given no reason to dispute the adequacy of those measures.

1. The Minister acknowledged the outcome of the consultation process demonstrated a lack of public support for the plan to install an ILS. He noted 6,454 valid submissions were received from individuals, businesses and interest groups. The vast majority were opposed to the proposal. Many of the submissions were templates. Most of the submissions dealt with the potential impact of noise and loss of amenity. The Minister’s office also received 3,580 communications in connection with the proposal. The vast majority of these were also opposed because of aircraft noise concerns.13

1. The Minister concluded a good deal of the negative comment was the product of a misunderstanding by residents about the way in which the ILS would operate. He also noted local business groups were mostly supportive of the proposal in light of the economic benefits it would bring to the region. The Minister noted the opposition was led by, amongst others, the Gold Coast Lifestyle Association. We think it is significant that the Association has abandoned its opposition to the proposal after agreeing to abatement processes.

1. We should at this point address the argument of the Alliance about the adequacy of the consultation process. That argument emerged in more detail as the hearing proceeded. It comes down to this. The plan to install an ILS is being devised and will be implemented in a way that facilitates GCAPL’s larger plan to extend the operational length – and perhaps the actual length – of the runway. The Alliance says the major development plan fails to adequately disclose  what  GCAPL  is  really trying  to  achieve.  The Alliance  argues in

13 See exhibit one at pp 106 & 110-111.

particular that the ILS facilities on Crown land in New South Wales are being built in a way that accommodates and facilitates the undisclosed objective of building a longer runway. (For example, the Alliance says the localiser antenna is being constructed 300m from the end of the runway on Crown land when it could be sited much closer if the runway were not being extended.)

1. We are satisfied there are several good responses to this argument. We note the master plan does refer to a proposal to extend the operational length of runway 32, and perhaps to extend the length of the runway to 2,858 metres: exhibit one at p 611. Those matters are not discussed in the major development plan under review because:

·     the ILS is being installed on runway 14, not  runway 32. Mr Hall’s evidence confirms any decision to adjust the operational length of runway 32 is unconnected to the installation and operation of the ILS; and

·     any future plans to lengthen the bitumen surface of the runway will need to be considered in a separate approval process that will presumably involve public consultation.

1. We accept GCAPL might have one eye on other proposals in the master plan when they finalise the details of the ILS proposal. Indeed, the terms of GCAPL’s lease and the whole legislative regime rather suggests GCAPL is obliged to keep those other proposals in mind. The respondents should avoid installing the ILS in a way that was inconsistent with or which frustrated other proposals in the master plan. We note there is no evidence to suggest the localiser footprint on Crown land is to be sited somewhere it would not be sited if the other plans were to be ignored: Mr Hall, in his oral evidence, said the precise location of the localiser on the Crown land was dependent on a range of factors, including terrain.

1. We are not inclined to criticise the GCAPL’s draft major development plan for omitting a more detailed discussion of other proposals that are already referred to in the master plan.

1. We would add that the Alliance’s submissions on this point are irrelevant to the extent they relate to the works being carried out on Crown land in New South Wales. We made it clear during the course of the pre-hearing processes that we would not address the construction of facilities beyond the airport site.

1. In all the circumstances, we are satisfied the consultations (and the results of those consultations) do not weigh against the approval of the plan.

The views of the Civil Aviation Safety Authority and Airservices Australia, in so far as they relate to safety aspects and operational aspects of the plan

1. CASA and Airservices have both been consulted in relation to the proposal. Airservices has had ample opportunity to have its say during the course of these proceedings; it remains supportive of the proposal. There is no suggestion that CASA’s concerns have not been taken into account. The consideration in s 94(3)(e) does not weigh against approval of the major development plan.

Other considerations

1. Section 94(3)(f) relates to plans to undertake a ‘sensitive development’. There is no suggestion the development in question here is a sensitive development as that concept is defined in the Airports Act. It follows this consideration does not weigh for or against approval of the plan.

1. That leaves only the requirement in s 94(5) that we be satisfied the major development plan is consistent with the final master plan published in 2011. We have already noted the master plan acknowledges the proposal to install an ILS: exhibit one at p 635. The major development plan explains how that plan fits with the master plan, even as it provided additional detail as to what was proposed: exhibit one at pp 164-165. We did not learn anything during the course of the proceedings that persuaded us there was an unacceptable divergence between the two documents.

CONCLUSION

1. We have considered all of the matters we are required to consider under s 94. None of those matters weighs against approval, and some of them weigh decisively in favour of approval. We are not aware of any other matters that suggest a different outcome is appropriate. We are satisfied the major development plan should be approved, subject to what follows.

1. We note the Minister’s reviewable decision acknowledged GCAPL and Airservices are expected to take steps to manage the environmental risk and devise noise abatement measures after further consultation (exhibit one at pp 106-107 and pp 111-113) but he

does not impose any formal conditions directed to either end. GCAPL had committed to doing as much in the draft major development plan but the plan did not provide much in the way of detail (exhibit one at pp 236-238). We are satisfied there is no need to impose conditions with respect to the environmental concerns raised by the Alliance but we now have a clearer idea as to what the proposed noise abatement measures would include. Is there any need for us to go further than the Minister has gone in this regard?

1. We noted at the outset of these reasons that the Lifestyle Association effectively withdrew from active involvement in the hearing after it reached an agreement as to appropriate noise abatement procedures. We did not make any orders at the time the draft terms were handed up. We agreed with the parties that we would consult them on the form of the final orders if we were otherwise minded to affirm the reviewable decision. We were concerned in particular whether the decision would come in the form of a variation to the decision under s 43(1)(b) or a remittal under s 43(1)(c) or perhaps s 42D of the Administrative Appeals Tribunal Act 1975. There was also a brief discussion over whether it would be possible to make or incorporate a consent decision pursuant to s 42C(3). That is a nice question given s 94(2) of the Airports Act appears to offer the decision-maker a binary choice: the decision-maker must either approve or refuse to approve a draft major development plan. Read in isolation, that provision raises doubts over whether the decision-maker can give a conditional approval and whether we can vary the decision under review. Those doubts appear to be resolved by s 94(7) which expressly authorises the Minister to approve the plan subject to one or more conditions. 14

1. The measures proposed in the draft orders give substance to the commitment in the major development plan. They are consistent with, and supported by, the evidence of Mr Hall. In those circumstances, we could simply affirm the decision on the same basis as the Minister has done – that is, on the strength of a shared expectation as to the introduction of appropriate procedures. But we accept the parties have a legitimate expectation that they will be heard in relation to the final form of the orders made in relation to the noise issues. It may be they will propose that the correct or preferable decision is for the Tribunal to affirm the decision under review while noting the parties have entered into a

14 There is a more restrictive approach taken in relation to approval of a master plan. Section 81(2) of the Airports Act provides the Minister may approve the plan or refuse to approve plan; there is no equivalent of s 94(7) which permits conditional approval. The practical consequences of that approach were evident in McLaughlin and Minister for Infrastructure, Transport, Regional Development and Local Government and Australia Pacific Airports (Melbourne) Pty Ltd (Joined Party) [2010] AATA 266. After concluding the master plan required some minor amendments, the Tribunal adjourned the proceedings to allow the Minister to make a formal amendment to the plan that met its concerns.

side agreement that incorporates the terms proposed in the draft orders. Alternatively, they might propose conditions which give effect to the agreement between the Lifestyle Association and the respondents.

1. The first respondent shall, within 7 days, prepare draft orders in consultation with the other parties that give effect to these reasons. Those draft orders and the need for any further submissions will be considered at a directions hearing on a date to be fixed. Of course, if the Lifestyle Association and the respondents can agree on the precise terms of the final orders, they may request we make those orders without further submissions or the need for a further hearing.

..... ................................

 

I certify that the preceding 71 (seventy-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President Bernard J McCabe and Senior Member Theodore Tavoularis

...  ....

Associate

Dated: 2 March 2017

Datesofhearing:	7, 8, 12, 13, 14 December 2016
Solicitors forthe First Applicant:	Connor O'Meara Solicitors
AdvocatefortheSecondApplicant:	Ms Lindy Smith
CounselfortheFirstRespondent:	Mr P. Knowles
Solicitors for the First Respondent:	Clayton Utz
CounselfortheSecondRespondent:	Mr S. McLeod
Solicitors for the Second Respondent:	Minter Ellison
CounselfortheThirdRespondent:	Ms C. Gleeson
Solicitors for the Third Respondent:	Maddocks Lawyers