Jandakot Airport Chamber of Commerce Inc and Minister for Infrastructure and Regional Development

Jandakot Airport Chamber of Commerce Inc and Minister for Infrastructure and Regional Development [2016] AATA 705 (12 September 2016)

Division

GENERAL DIVISION

File Number

2015/1202

Re

Jandakot Airport Chamber of Commerce Inc

APPLICANT

And

Minister for Infrastructure and Regional Development

RESPONDENT

And

Jandakot Airport Holdings Pty Ltd

OTHER PARTY

Decision

Tribunal
The Honourable Justice ML Barker, Deputy President

Date 12 September 2016

Place Perth
The decision of the Minister made 17 February 2015 is affirmed.

.........[Sgd]...............................................................
The Honourable Justice ML Barker, Deputy President
Catchwords
AVIATION – airports – decision by Minister to approve draft master plan under s 81 of the Airports Act 1996 (Cth) – application by Jandakot Airport Chamber of Commerce for review of decision – whether position of proposed runway increases risk to safety – whether position of proposed runway limits ability to meet future aviation needs – compatibility of commercial and non-aviation developments with aviation needs – whether master plan covers required 20 year period – whether sufficient consultation about draft master plan – whether timetable for development required
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) s 25
Airports Act 1996 (Cth) ss 3, 3(a), 3(b), 3(c), 3(h), 32, 70(2)(c), 70(2)(d), 71, 71(2)(a), 71(2)(b), 71(2)(c), 71(2)(d), 71(2)(e), 71(2)(ga)(vi), 71(2)(gc), 71(6), 72, 79, 80, 81, 81(3)(a), 81(3)(b), 81(3)(b)(i), 81(3)(b)(ii), 81(3)(c), 81(3)(d), 242
Civil Aviation Act 1998 (Cth) s 98(3)
Civil Aviation Safety Regulations 1998 (Cth) Pt 139, reg 139.015
Cases:
Archerfield Airport Chamber of Commerce Inc and Minister for Infrastructure and Regional Development [2015] AATA 489
Westfield Management Ltd v Brisbane Airport Corporation Ltd (2005) FCA 32
REASONS FOR DECISION
The Honourable Justice ML Barker, Deputy President
12 September 2016

On 17 February 2015, the Minister for Infrastructure and Regional Development (“Minister”) approved the draft master plan for Jandakot Airport given to him by Jandakot Airport Holdings Pty Ltd (the “airport-lessee company”) pursuant to s 81 of the Airports Act 1996 (Cth) (“Act”), which is referred to below as the “2014 final master plan”.
The applicant, the Jandakot Airport Chamber of Commerce Inc (“applicant”), disagrees with the decision made by the Minister and has sought review of the Minister’s decision under s 25 of the Administrative Appeals Tribunal Act 1975 (Cth) and s 242 of the Act. This Tribunal effectively stands in the shoes of the Minister in reviewing, on the merits, the Minister’s decision.
On the hearing of the applicant’s review application, the Minister is a party, as is the airport-lessee company which holds a lease over Jandakot Airport.
The 2014 final master plan provides for both an extension of the present third runway (12/30, which will become 12R/30L) (to the south-east), and, significantly in the circumstances of this proceeding, the construction of a new, smaller fourth runway (12L/30R), parallel to the third and a little to its north-east. Each of the third and proposed fourth runways are designed for use in “cross‑wind” conditions. Much of the time the present first runway (06L/24R) and the second runway (06R/24L) are used with the prevailing winds.
The applicant seeks review of the Minister’s decision because of the concerns it holds that:
(1)the proposed fourth runway will be subject to “extreme airplane/helicopter traffic congestion”;
(2)the proposed site “limits the runway length significantly when compared to the original site” (being a reference to the earlier 1986 and 1999 master plans);
(3)the proposed site “will limit the class of aircraft that may use the airport”; and
(4)the proposed site “does not allow for suitable runway end safety areas (RESA)”.
The particular aspects of the 2014 final master plan that concern the applicant and have led to a number of these review grounds, are those that provide for commercial development within Precinct 6, which it characterises as “non‑airport use”, and the airport‑related development, which the applicant describes as “peripheral”, within Precinct 6A.
The following depictions of the existing runways and the proposed extension of the third runway and the new fourth runway, and the contentious Precincts 6 and 6A, taken from the 2014 final master plan, help to paint the picture:
The applicant complains that the currently planned warehouse development of Precincts 6 and 6A will eliminate all prospects for a previously planned “fourth cross‑wind runway 12/30”, south of the present third runway. The result, it says, is that that option will be eliminated forever. This, the applicant says, will prevent private jets from using the airport under certain wind direction conditions in the future. Further, the applicant says the proposed development of Precincts 6 and 6A has resulted in a similar fourth runway being proposed in an unsafe location.
The applicant identifies the benefits of a proposed fourth runway to the south of the existing third runway, and not to its north as provided for in the 2014 final master plan, to be that:
(1)there will be no incursion into other existing runways;
(2)there will be no over-flight of existing or planned buildings of undesignated height;
(3)there will be no limitation on length of the fourth runway for future lengthening to accommodate larger private jets; and
(4)there will be better and safer positioning of taxiways, parking, hangar and servicing associated facilities “and not the circuitous taxiway now planned” in the 2014 final master plan.
In short, the applicant much prefers the location of a fourth cross-wind runway as depicted in earlier 1986 and 1999 master plans, and contends, in effect, that the Tribunal should adopt that preference and require the Minister to reconsider the decision approving the 2014 final master plan.
More substantively, the applicant says that the Minister, in approving the 2014 final master plan, in effect failed to have regard, or proper regard, to a number of objects and other requirements of the Act, including:
·the object set out in s 3(a) of the Act, to promote the sound development of civil aviation in Australia;
·the object set out in s 3(b), to establish a system for the regulation of airports that has due regard to the interests of airport users and the general community;
·the object in s 3(c), to promote the efficient and economic development and operation of airports;
·the object in s 3(h), to implement international obligations relating to airports;
·the requirement of s 71(2)(b) of the Act that a final master plan specify the airport‑lessee company’s assessment of the future needs of civil aviation users of the airport, and other users of the airport, for services and facilities relating to the airport, in that the 2014 final master plan sets aside 216,500 sq m of development space related to commercial use and only 13,500 sq m for proposed future hangar space;
·the requirement of s 71(2)(c) of the Act that a final master plan specify the airport‑lessee company’s intentions for land use and related development of the airport site, where the uses and developments embrace airside, landside, surface access and land planning/zoning aspects, in that the specified land use does not provide any timetable for development of the fourth runway or any other aviation services to the airport;
·the requirement of s 72 of the Act, which provides that a draft or final master plan must relate to a period of 20 years;
·the requirement of s 81(3)(a) of the Act for the Minister to consider the extent to which the carrying out of the plan would meet present and future requirements of the users of the airport mentioned in s 71(2)(b), in that he failed to consider the development of Precincts 6 and 6A as it would relate to the future requirements of civil aviation for users of the airport;
·the requirement under s 81(3)(b)(i) of the Act for the Minister to consider the effect the carrying out of the plan would be likely to have on the use of the land within the airport site, in that the Minister failed to consider the developments of Precincts 6 and 6A within the airport site for aviation projects related to airport and airport operations at all in allowing the exclusive use of the same for commercial development only;
·the requirement under s 81(3)(b)(ii) of the Act for the Minister to consider the effect the carrying out of the plan would be likely to have on the use of land in areas surrounding the airport, in that he failed to consider the adverse impact of the development of Precincts 6 and 6A “as it relates to lessee’s in other airport precincts and surrounding the airport site regarding safety of urban home‑owners in that surrounding area and close to the BP fuel reserves”;
·the requirement under s 81(3)(c) of the Act for the Minister to consider the consultations undertaken in preparing the plan (including the outcome of the consultations), in that he failed to consult with any of the persons who commented on the 2014 draft master plan;
·the requirement under s 81(3)(d) of the Act for the Minister to consider the views of the Civil Aviation Safety Authority (“CASA”) and Airservices Australia (“Airservices”), insofar as they relate to safety aspects and operational aspects of the plan, in that he failed to seek any clarification from CASA or Airservices regarding their stated qualifications as to the safety and operational aspects of the proposed commercial development of Precincts 6 and 6A.
These claimed shortcomings in decision-making help to identify the issues now requiring consideration on review by the Tribunal.
APPLICANT’S OPENING STATEMENT
On behalf of the applicant, Mr Warren Evans (“Mr Evans”), a member of the applicant, provided and read a separate written opening statement which helpfully outlined the applicant’s position:
1.     Jandakot Airport Chamber of Commerce commenced this action in the AAT in March 2015 as a result of the perceived lack of consultation and lack of consideration of pertinent facts submitted to the minister for transport relating to Master Plan 2014 applicable to Jandakot airport.
2.     The action was specifically directed to the Minister for Transport – being the Honourable Warren Truss MP who had approved the Master Plan 2014 in February 2015.
3.     The chamber's intent was to seek assurance that the Minister himself had considered full and detailed information regarding the airport plan and its historical bases, including submissions by the chamber, its members and others challenging the veracity and completeness of information contained within the draft Master Plan 2014.
4.     At no time did the Minister or his office attempt to offer dialogue with the chamber.
5.     In good faith, the chamber consented to the inclusion of the third party in these proceedings only to be faced with hostile and deliberate attempts to discredit the chamber and to interfere with the AAT process such that it has stretched well beyond the time that it should have to reach resolution.
6.     The action by the third party and the perceived lack of interest by the Minister is most disappointing and demonstrates the contempt for the AAT and the chamber that both parties have. This is further exemplified by the recent attempts to constrain the chamber's witnesses giving their evidence and/or opinion.
7.     Today, we intend to show the commitment and concern that the aviation community at Jandakot has for the airport as an airport well into the future. A future which, we argue, by the past and present actions of the leaseholders, continues to be at threat.
8.     The airport lease was granted to Jandakot Airport Holdings Pty Ltd in 1997. The master plan applicable at that time was the 1986 Master Plan which was adopted by JAH but revised in a draft Master Plan 1999. That draft largely reflected the 1986 plan and was circulated for comment. It was drafted by Sinclair Knight Mertz, a respected airport planning company. The plan was detailed, particularly in regard to 4^th runway options and the environmental impact of airport expansion. That resulted in Master Plan 2000, which was not circulated to tenants at the airport.
9.     Draft Master Plan 2005 was circulated in September 2005 and was widely criticised due to changes to the 4^th runway location.
10.    JAH was sold to Ascot Capital, a real estate developer, in January 2006 and the 2005 Master Plan was released by them in April 2006 without further consultation with stakeholders, despite the level of criticism.
11.    The 2005 Master Plan fell into limbo during 2006 due to the aggressive campaign by JAH to move the airport 60 kilometres south. That campaign failed. It resulted in JAH adopting a hostile relationship with the Jandakot Chamber of Commerce, their having been instrumental in preventing the move of the airport.
12.    JAH refused to listen to any attempts to modify Master Plan 2005 to address stakeholder concerns about the location and safety of the proposed 4^th runway. That attitude persisted right through the 2009 and 2014 Master Plans which were again subject of criticism about the 4th runway location and the intended changes to airport land use that will prevent the future expansion of aviation on the airport, particularly in regard to aviation growth and heavier aircraft utilisation.
13.    The Respondent and the Third Party attempt, through their expert witnesses, to dismiss that latter point on the grounds that their assessment of aviation growth is superior to that of experienced aviators, many of whom have been operating at the airport for 35 years or more and are in a better position to predict trends.
14.    The approval of a change of land use in Precincts 6 and 6a, decreasing the already diminishing land area previously app lied for aviation use at the airport, has the effect of closing off the options for the safer, more sensible location of the fourth runway as originally planned.
15.    The construction of buildings at the end of runways, to which we have previously objected, has likewise locked out accommodation for future requirements for most general aviation transport category aircraft fitting into the RPT category for which the airport is licenced. (See 1.2.2 of the Jandakot Airport Information Memorandum produced at the time of the sale of the lease)
16.    MP 2014 at paragraph 2.2.1 states that MP 2005 (drafted by Ascot Capital) and published in April 2006, was Jandakot Airport's first master plan. That statement suggests that Master Plan 1986, draft MP 1999 and MP 2000 with their historical input, were discarded by JAH and the government at the time Ascot Capital obtained the airport lease.
17.    We will be questioning Mr Cohney, the Third Party's witness in regard to his input to the 2014 Master Plan. We will also be cross-examining all witnesses for JAH and the Respondent.
18.    The chamber has since its inception in 1995, been directly involved at all levels in the history and transformation of the airport from a federal government operation by the original Department of Civil Aviation, the Federal Airports Corporation and into the subsequent leasehold arrangements.
19.    Mr Warren Evans has provided a witness statement encompassing, an in-depth historical account of the development of the airport, and reveals the issues underlying, and leading directly to, the present matters at hand.
20.    Today, we will demonstrate the chamber's policy in regard to advocacy has always been one of non-adversarial calm, mutual respect and adherence to the spirit of the relevant Acts and the facts surrounding their implementation. That we are not, as portrayed in internal department of infrastructure and regional development documents, ‘trouble makers’.
21.    We will demonstrate that the chamber's members and witnesses we will present, embody a depth of highly respected, experienced and credentialed national and international aviation business operators and persons with demonstrated success, negotiation and advocacy skills. Those persons are the actual users of the airport and are not focussed on industrial development as are Ascot Capital/JAH.
22.    The chamber does not wish to prevent JAH from capitalising on the industrial/commercial opportunities on the airport, indeed we encourage it. However, we do object to the fact that JAH are undertaking commercial development that restricts the future of aviation on the airport.
23. Implementation of the 2014 MP does not, in terms of the relevant provisions of the Act, provide for the future requirements of civil aviation users of the airport.
24.    The planned land use will affect areas surrounding the airport. Large commercial development impacts unfavourably on adjacent residential and rural areas and the road system. Increased traffic in the airport precinct borne of the large warehousing complexes now extant or intended on the airport will effectively remove any opportunity for any quiet and peaceful ambience on or adjacent to the airport.
25.    We will demonstrate that whilst recognising the flying training industry at Jandakot Airport is important and contributes some $50 million plus to the nation's exports, there are equally important contributions to be made in the private, corporate, recreation and sports aviation activity conducted on this airport.
26.    It should also be recognised that Jandakot airport is WA's only General Aviation airport supporting the primary capital city airport by removing the aeromedical, agricultural, charter, aerial surveying, photography and other airborne work in both normal and transport category aircraft that would otherwise choke operations at Perth airport.
27.    It is therefore imperative that aviation operations at Jandakot remain focussed on safety and responsible utilisation of aviation resources and planning.
28.    Jandakot airport is Australia's largest general aviation airport in both size and volume of movements and it is crucial that the airport lessee and the aviation users of the airport work in harmony to ensure the airport remains viable for its purpose in perpetuity.
29.    JAH's classifying all runways and taxiways as Code 2B when the CASA licence shows one runway as Code 2C and another Code 3C thus permitting use by aircraft larger than 5700 kgs in weight, is indicative of JAH's stated intent to restrict aviation growth on the airport. It is recognised that such larger Codifications require increased maintenance and supporting infrastructure funding.
30.    We contend that as a general aviation or ‘Metro Airport’ it is not within the leaseholder's remit to unilaterally ‘decide’ what types and category of aircraft should be accommodated. Nor should the Minister be encouraged through the Master Plan process or as a matter of policy, to affirm it likewise. Widely considered aviation requirements into the future should be the decider in codification issues.
31.    We contend that the core requirement is for the operation of the Airport in trust, as part of the National Transport Infrastructure, and for the benefit of all General Aviation users without restriction.
32.    The community consultations on aviation issues favoured a different approach to that approved by the Minister in MP 2014.
33.    We recognise commercial real estate development is an important means of support for the operation of the Airport but only to the extent that it does not impinge on the core requirement and is not an end in itself. The primacy of operation of the Airport as an Airport remains the core purpose.
34.    We believe the extensive commercial development completed so far is already appropriate for a return on the original leaseholders (JAH1) investment with the Commonwealth of $7.5 million.
35.    Subsequent investment, however significant, by the current leaseholder is irrelevant to the matters at hand and is at the leaseholder's risk. JAH's correspondence in 2015 to all tenant s on the airport stating that all aviation-related expenditure will be recovered through increased rents demonstrates the arrogance and poor business leadership of JAH as does the enforced closure of aviation-related businesses to accommodate commercial buildings, exemplified by the closure of the only aircraft welder on the airport and several instrument repair businesses.
36.    The threatened recovery of aviation infrastructure expenditure by JAH contravenes the requirements of the airport lease sale in that it was a condition that all future aviation-related investment was to be funded through the income stream afforded by the industrial commercialisation of appropriate airport land. This was designed to support low-income, highly specialised businesses from the vagaries of aviation activity.
37.    We believe there has been inappropriate criterion assessment by DITRD of the MP 2014 with uncorroborated reliance on JAH responses.
38.    Neither the Department's formal Assessment nor Recommendation to the Minister reveal the material trepidations in regard to the safety concerns held by CASA and other stakeholders, on the North position of the 4^th runway 12L/30R, nor consideration of relevant Section 81 (3) (a) of the Act.
39.    We will demonstrate that the DITRD Assessment Document is incomplete and in any event the ‘Criteria Satisfied’ statements do not in our view deal properly, professionally or impartially with the Chamber's consultation comments and contain contentious or ‘motherhood’ statements.
40.    We contend and will demonstrate there is the perception that the dMP was been processed through JAH via a cursory DITRD approach, rather than DITRD taking an independent and forensic view of their obligations.
41.    We also contend that proper and diligent consultation and supervision by the Minister and the Department of Infrastructure and Regional Development could have prevented this unnecessary and expensive effort by all parties subject of this AAT hearing.
42.    We will be presenting a range of witnesses whose experience, qualifications and credibility in their fields are non-pareil and who bring direct and relevant experience to all aspects of the issues surrounding the matters in contention. They are: Michael Braybrook; the industry-respected JACC President who has led the Chamber for over 15 years, calling on his national and international business experience as an Owner and Country Director for large Multination al companies, the founder of a flying school and an owner-pilot.
43.    Paul Phelan; who has been writing for Australian and international aviation journals for well over 20 years on all aspects of aviation. He has won three separate National Aviation Press Club awards for ‘best technical aviation story of the year.’ He has flown for over 50 years in private, charter, corporate and regional aviation, worked in senior management roles with a major regional airline, and retains his license.
44.    Benjamin Morgan; the founder and owner of Aviationadvertiser.com.au, Australia's largest aircraft classifieds service. Catering to the recreational, general aviation, corporate and business aviation markets, Mr Morgan is in touch daily with all sectors of the industry nationally and internationally and was instrumental in arranging a recent important General Aviation industry meeting at Temora attended by the Honourable Barnaby Joyce, Deputy Prime Minister and the Honourable Darren Chester, Minister for Infrastructure and Regional Development, to discuss the urgent issues facing the industry, including airports. Mr Warren Evans represented the Chamber in person at that meeting.
45.    Kenneth Cannane; a Licensed Aviation Maintenance Engineer, is the Executive Director of the Aviation Maintenance Repair and Overhaul Association and represents what may be the largest group of airport tenants around Australia.
Mr Cannane, a CASA employee of 20 years as Head of Airworthiness, CASA Regional Manager for NSW and Victoria, member of many aviation Industry and working groups including the Federal Minister for Infrastructure and Transport, Aviation Industry Consultative Committee. Mr Cannane's extensive resume speaks for itself.
46.    David Bell; the Chief Executive Officer of the Australian Business Aviation Association (ABAA) under the auspices of IBAC and the ICAO, a non-profit organisation formed to act as a collective voice for the business aviation community in Australia, largely composed of small and large corporate turbine aircraft owners and charter operators who have a keen interest in access to airports in Australia other than the Primaries.
Mr Bell has a distinguished 35 year career in General Aviation sales and 10 years as a Board Director of Hawker de Havilland and Hawker Pacific with a product line which included Airbus, Beechcraft, Pilatus Britten-Norman, Dassault Falcon Jet, de Havilland Canada, ATR and Bell Helicopters.
47.    Ms. Aminta Hennessy OAM; owns and is a Chief Pilot, holds an Australian Airline Transport License, is a CASA Examiner of Airmen and Grade 1 Instructor with Multi‑engine Instrument Training Approval for Clamback and Hennessy, a charter and flight school business based at Bankstown Airport in Sydney. They are facing similar issues as Jandakot Airport. Ms Hennessy's CV attests to a long and varied career across all aspects of the General Aviation business both nationally and internationally.
48.    Phillip Reiss; Past President of AOPA and a 20,000 hour corporate jet pilot (Lear Jet, Hawker, Canadair and Boeing), and an aircraft owner who spent his early years operating a Lear Jet for the Swan Brewery out of Jandakot Airport.
49.    Mr Reiss was appointed by The Hon. Warren Truss then Minister for Infrastructure and Regional Development to co-ordinate industry response and assist the Panel Members of the 2013 Aviation Safety Regulation Review.
50.    Warren Evans; a forensic analyst and logistician with 45 years experience. He is also a part-time Member of the AAT and past member of many Government Councils and Committees including, the Air Freight Export Council WA, State Aviation Training Advisory Council, Industry Training Council, Main Roads Consultative Committee, consultant to Perth Airport and Curtin University PhD supervisor in aviation logistics.
51.    Jan Ende; is a Licensed Aircraft Maintenance Engineer, a qualified aircraft crash investigator and a 22,000 hour Commercial pilot of 55 years, flying for the RFDS, Citation, Hawker, Falcon and Canadair corporate jet operators, commuter airline and turbine FIFO charter operators out of Jandakot. Mr Ende owns a hangar at Jandakot Airport
52.    Charles McElwee; the foundation President of the JACC at its initial incorporation and owner of Air Australia, a successful Jandakot Airport based flying training school and charter business, since 1992.
Mr McElwee holds a Master of Science in Safety and Systems Management, UCLA and Bachelor of Science from NW State College.
He is retired US Navy pilot and Inspector of US Naval squadrons and airfields with over 800 men under his command, in the Western Pacific.
Mr McElwee's CV speaks for itself.
53.    Ross Campbell; currently a Boeing 747 Check and Training Captain with an international airline, he was a Grade 1 Flying Instructor at the Royal Aero Club WA and was the owner of The Aeroplane Company, a Jandakot based flying training school sold in 2014.
His near 20,000 hours flying experience from light aircraft to B747-400 is revealed in his CV.
54.    Gary Gaunt; now retired is a current VP and past Secretary of the Chamber, a past VP of AOPA, with 50 years experience at all levels of charter operations and third level commuter airline in Australia, building the first Australian Fixed Base Operation, 20 years in new and used aircraft sales Australian Cessna Aircraft Distributors and Airflite at Jandakot Airport, in the late 80's as Managing Director of a leading charter aircraft company and more recently as the CEO and accountable person of a CASA licensed major international corporate jet company, which, in addition to holding major international mining and oil company safety audits, holds Internationally recognised ICAO based IS‑BAO Stage 3 classification (the highest international safety level available and equivalent to the airline ICAO Operating Safety Audit) operating Citation, Phenom and the larger Canadair and Gulfstream corporate jets. During this period Mr Gaunt negotiated the initial jet-training contract currently held with a major Chinese airline at Jandakot. He has operated his ow n aviation consulting company providing business corporate aviation and safety management systems advice and standards development since 1989. An Australian Airline Transport Pilot with Command Instrument Rating on turbine multiengine aircraft, holds a Diploma of Project Management, is an International Standards Business Aircraft Operator Auditor, holds NBAA Development Program Ops 4 Safety rating, and lectures in Crisis Management.   Mr Gaunt will graduate a Masters in Business Management in August 2016.
55.    John Douglas; Manager and Chief Flying Instructor of the Royal Aero Club. He has over 40 years continuous experience at Jandakot airport as an instructor and senior manager within the RACWA.
56.    William Deuchar; Retired CASA Airports lnspector WA
57.    Greg Doherty; retired CASA Aerodrome Inspector WA.
58.    Dino Elpitelli: Past member of the resident's Community Aviation Consultation Group across many years.
59.    Dick Smith Companion of the Order of Australia; Australian Aviation Hall of Fame, the GAPAN Sword of Honour and the United States Lindberg Award.
He is a well‑known and highly respected aviation identity and a previous CASA Board Chairman. He was a member of the Government appointed Aviation Reform Group and the Minister's Aviation Regulation Reform Group from 2002 to 2004. In his capacity as the regulatory Chairman Mr Smith travelled the world and met with the world leaders of air safety regulation in the US, Canada, UK, New Zealand and France. His CV and Witness statement speaks for itself.
THE MINISTER’S POSITION

The Minister says that if the applicant is in fact arguing that the proposals contained in the 2014 final master plan are inconsistent with the use of Jandakot Airport as an airport, then it bears the burden of (1) identifying specifically what development or developments is or are said to be incompatible, and (2) establishing, with evidence, the reasons for the incompatibility. The Minister contends the applicant has done neither of those things and for that reason, any such contention ought to be rejected.
The Minister considers and rejects the further proposition that the approval of the 2014 draft master plan was inconsistent with the objects of the Act. The Minister notes that the complaints advanced by the applicant in this regard are in substance complaints that the 2014 final master plan does not meet the present and future needs of the users of the airport and/or that it includes proposals that are not safe. The Minister says that these are matters that fall for consideration under s 81 of the Act.
So far as the merits of the Minister’s decision is concerned, the Minister contends:
(1)That s 71(2)(a) requires that the master plan specify the airport-lessee company's development objectives for the airport and the 2014 final master plan does so at Pt 1.9 on p 9.
(2)That s 71(2)(b) requires that the master plan specify the airport-lessee company's assessment of the future needs of users. The 2014 final master plan does so at Pts 4.1 to 4.4 (in respect of aviation users) and Pt 5.2 (in respect of non-aviation users).
(3)That s 71(2)(c) requires that the master plan specify the airport-lessee company's intentions for land use and related development of the airport site. The 2014 final master plan does so in considerable detail in chs 3 to 6.
(4)The contention that the 2014 final master plan does not provide for a 20 year planning period has no proper basis in fact. It expressly states that it is to cover a 20 year planning period, and plans for aircraft movement growth, and the development of aviation infrastructure and capacity, over a 20 year period.
(5)The applicant’s contentions that the proposed fourth runway to the north of the existing third runway is unsafe and the extensions proposed for the existing third runway are also unsafe and that users of Jandakot Airport require runways and taxiways that can accommodate large business jets, should not be accepted.
(6)As to the applicant’s contention that the balance of the land in Precincts 6 and 6A not required for the fourth runway ought to be used for aviation development, this lacks merit for two reasons. First, the applicant’s assumption that tenancies within Precinct 6 are entirely unavailable for occupancy by aviation businesses is not correct. Secondly, the applicant’s evidence in support of the contention is inadequate in that none of the applicant’s witnesses quantify the level of demand for land and other facilities over the planning period and are unqualified to do so. They simply make assertions.
The Minister contends that in contrast to the applicant's evidence, the 2014 final master plan contains, at pp 25 to 27, a detailed analysis of historical trends in aircraft movements, Jandakot Airport's current movement capacity, forecast changes in aircraft movements, and the mix of aircraft that use Jandakot Airport. On the basis of that analysis, the Minister submits, the 2014 final master plan assumes a rate of growth in aircraft movements of 4% per annum. The Department's Bureau of Infrastructure, Transport and Regional Economics reviewed the 2014 final master plan and commented that, in its view, the forecasts were "optimistic" and were unlikely to be met, but provided a sound basis for airport planning.
The Minister also notes that, at pp 27 to 28, the 2014 final master plan details the development activities undertaken since 2009 to meet changes in demand; and that pp 28 to 29 detail the planning standards applied by Jandakot Airport, including the assumptions made about the aircraft expected to use the airport. The Minister notes that, at pp 31 to 37, the 2014 final master plan explains the aviation developments proposed and the ways in which the developments will meet the expected growth in demand for aviation facilities.
The Minister says the 2014 final master plan proposes a new Precinct 6A that will be available exclusively for aviation‑related developments. Precinct 6A is 10 hectares in size and will increase the amount of land available for aviation developments (hangars, maintenance facilities, flying school bases, aircraft parking etc) by 50%. Additionally, the 2014 final master plan notes new aviation developments on the northern side of Jandakot Airport near Mustang Road, the new helicopter precinct at Bell Court, and foreshadows further hangar developments on the southwestern end of the airport.
Accordingly, the Minister submits, in light of the modest but optimistic forecast growth of aviation activities at Jandakot Airport, the allocation of land in the 2014 final master plan to aviation activities is more than adequate and will meet the needs of aviation users of the airport.
As to the applicant’s contention that in order to meet the needs of users, Jandakot Airport requires longer, stronger and wider runways and taxiways so that it can accommodate larger and more demanding aircraft types, in particular larger business jets, the Minister says this contention lacks merit, for three reasons:
(1)First, the applicant has failed to introduce any credible evidence in support of its contention that there is such a need. The Minister makes the point that aircraft heavier than 5,700kg can operate at Jandakot Airport provided they have permission to do so. Permission is required so that the risk of damage to runways, taxiways and paved surfaces can be managed. Further, the Minister points out, none of the applicant’s witnesses make any effort to quantify the level of demand that each says exists for the operation of larger aircraft at Jandakot.
(2)Secondly, the proposals contained in the 2014 final master plan are adequate for aircraft that are actually expected to use Jandakot Airport.
(3)Thirdly, CASA is satisfied that the third runway 12/30 is capable of complying with the Manual of Standards (“MoS”). The runways are therefore safe for use by the types of aircraft identified in the 2014 final master plan.
The Minister rejects a further contention by the applicant that the 2014 final master plan does not meet the present and future needs of users because it provides inadequate road access to the airport. The Minister contends the 2014 final master plan contains a detailed analysis of traffic movements and traffic capacity at the airport at ch 6 from p 42.
As to the question whether the 2014 final master plan will have an adverse effect on the use of land at, and surrounding, the airport – the s 81(3)(b) of the Act issue – the Minister says that the applicant’s concern appears to be that developments proposed for the airport will impact other lessees at the airport and nearby residents. The Minister submits that the contentions misunderstand s 81(3)(b), which requires the Minister, and the Tribunal on review, to consider the effect that the 2014 final master plan will have “on the use of land”. The Ministers notes that the interests of nearby residents are addressed separately under ss 70(2)(c) and (d), 71(2)(a), (c) to (e), (ga)(vi), (gc), and 71(6) of the Act, and that the safety of nearby residents is protected by the requirement on the Minister and the Tribunal to consider the views of CASA and Airservices in relation to safety and operational matters.
The Minister says the applicant’s second contention regarding s 81(3)(b), that the Minister failed to consider the development of Precincts 6 and 6A for aviation in allowing the exclusive use of the same for commercial development only, is really a complaint that the 2014 final master plan provides for commercial development in an area that the applicant would prefer be kept available for aviation use. The Minister contends that, for the reasons explained above, the allocation of land in the 2014 final master plan meets the present and future needs of aviation users; a conclusion which disposes of this complaint also.
The Minister notes that, as to safety concerns, the applicant contends that the location of the proposed fourth runway is unsafe and also contends that the existing third runway 12/30 is unsafe due to its proximity to buildings. The Minister contends that under s 81(3)(d) of the Act, the Minister, and the Tribunal on review, are required to consider the views of CASA and Airservices in relation to safety and operational aspects of the plan and should be guided by those views.
The Minister, relying on evidence called on behalf of the Minister, rejects the contentions of the applicant that the location of the proposed fourth runway is unsafe because it:
(1)is too close to buildings off the north-western end of the runway, which is said to be a particular problem because the runway will be used predominately by student pilots;
(2)does not have adequate RESA;
(3)is sited in a place "currently subject to extreme airplane/helicopter traffic congestion"; and
(4)will limit the class of aircraft that may use the airport.
As to the question of consultation, the Minister says the applicant appears to contend that the consultation process undertaken in relation to the 2014 final master plan was defective because the Minister did not directly consult with the authors of comments provided in relation to the 2014 final master plan by local groups at the airport or consider their submissions. The Minister says there was also a suggestion that the Minister in some way improperly delegated an unspecified power to the airport-lessee company in relation to the master plan consultation process.
The Minister submits these contentions in relation to consultation are misconceived, as there is no requirement upon the Minister to consult with stakeholders. The Minister submits that instead the Act imposes upon airport-lessee companies an obligation to consult with stakeholders and report on those consultations to the Minister in the manner prescribed in s 79 and s 80, which occurred here.
WITNESSES CALLED BY THE APPLICANT
The applicant called witnesses who gave the following substantive evidence. (They are referred to in the same order as they were mentioned by Mr Evans in his opening statement.)
Michael G Braybrook
Mr Braybrook gave evidence on behalf of the applicant. His witness statement was tendered and received without objection. He was not required for cross‑examination.
Mr Braybrook has an impressive background in business in Australia and elsewhere, and has been President of the applicant for 15 years to the present time.
He emphasised the strength of sentiment within the applicant, noting that it successfully defended an attempted relocation of the airport by the airport-lessee company to a distance south of Perth by direct lobbying of the Minister in Canberra.
He said the applicant generally reflects the view of the Australian Airports Association (“AAA”), being that Jandakot is one of Australia’s “metro” airports, which are secondary airports located in Australia’s capital cities. Its view is that they are not only significant centres of aviation activity in their own right, but are also key to ensuring the future efficient operation of the primary airports in these cities.
He noted that Regular Public Transport (“RPT”) services “are specifically not precluded” and neither is the operation of larger aircraft other than for flying training.
He said “general aviation” is defined as everything that is not airline and extends to somewhere beyond the current types utilising Jandakot Airport.
He also adopted the view that even though metropolitan airports may not see great numbers of arriving and departing RPT passengers, they do enable a wide range of other aviation activity that is of “vital significance”. He provided examples.
He expressed the view that Jandakot Airport is the “hub” for intra-state (not “interstate” as suggested in the applicant’s closing submissions) general aviation in aircraft terms and for engineering, maintenance repair organisations, spare parts and other support.
Mr Braybrook expressed the view that as a metropolitan airport, it is not within the airport‑lessee company’s remit to “decide” what types and categories of aircraft should be accommodated, nor should the Minister be encouraged through the master plan process or as a matter of policy to do likewise.
He said that Jandakot is one of the fastest growing airports in the fastest growing State in the Commonwealth and as the only foreseeable option, Jandakot airside land must be preserved at all costs. He observed that while aircraft movements are down from their previous 2008 highs, he considered they will return to their previous values and exceed them towards the theoretical maximum of 526,000 movements for the airport.
Mr Braybrook was at pains to say that the applicant was a “big supporter” of commercial development of the airport, on the understanding that it is “consistent with” the overall primary development of the airport as an airport.
He also expressed the view that the International Civil Aviation Organisation (“ICAO”) rules should be applied in view of the future expansion into the next century and decisions should not be made that close off any options for an unknown but obvious future.
He added that the applicant believes that the commercial development completed so far “is already appropriate for a return on the original [airport-lessee company’s] investment of $7.5 million”. He added that the applicant believes in Jandakot Airport’s growth into a major airport available to larger transport category aircraft, with longer runways, appropriate approach and departure obstacle clearances to accommodate them, terminal facilities, and more aircraft and vehicle parking. He objects to construction of a warehouse at the end of the current position of runway 12/30 and observes this was disregarded.
Mr Braybrook said that the 2014 final master plan incorporating the change of use of Precinct 6 from aviation to other purpose, and therefore locking in the fourth runway to the north and closing off the potential preferred, more sensible and originally planned 1986 option to the south, was a “bridge too far”.
He also complained that the Community Aviation Consultation Group failed in its purpose for “community” consultation.
For these reasons, he said the applicant had been “forced” to take the unprecedented step of this review proceeding to attempt to have the Minister understand the applicant’s well-founded concerns and “break this never ending cycle of commercial real estate development by the leaseholder, towards, we believe, the ultimate closing of the airport”.
Mr Braybrook’s evidence is generally relevant to most of the issues but the question of the weight to be accorded his opinions is dealt with below.
Paul Phelan
Mr Phelan’s witness statement went into evidence without objection and he was not required for cross-examination.
Mr Phelan’s resume to his witness statement included information that he was born in 1935, had an aviation background between 1960 and 1990 that included progression in commercial flying through charter flying, corporate and regional airline flying; then in journalism from 1990 to 1993.
Mr Phelan’s witness statement comprised a document that was prepared by or for him in July 2010 and was given to Mr Anthony Albanese, when he was the responsible Minister administering the Act. Mr Phelan’s historical document provided an introduction, dealt with what were called “unregulated monopolies”, gave background to aerodrome ownership and development since 1992 and dealt with “[o]bligations of local governments participating in the Aerodrome Local Ownership Plan (ALOP)”, gave Caloundra and Casino as examples of ALOP aerodromes, referred to what he described as “[i]ssues related to capital city general aviation airports … (GAAP)”, gave Archerfield as an example of issues related to GAAPs, and detailed the Australian Transport and Safety Bureau’s (“ATSB”) response. He also referred to Bankstown, Camden and Hoxton Park aerodromes, as well as Jandakot, Moorabbin and Parafield airports.
Having suggested various remedies for “abuses” suffered by tenants, Mr Phelan addressed the role of the Commonwealth Government, the role of CASA, the role of the ATSB, and the role of the Australian Competition and Consumer Commission, all under their relevant legislation, as well as government interventions.
He then made a summary of what had preceded. The summary may relevantly be set out, as follows:
Clearly, the airports cannot be trusted to be their own regulators. Dumping the quasi‑government powers that the FAC held straight over to the managements of the privatised airports was a ludicrously incompetent act, and allowing, as ever, worsening situation to continue further demonstrates the ineptitude of successive responsible administrations.
The Commonwealth has clearly failed adequately and effectively to monitor the activities of organisations who control both GAAP and ALOP airports. This failure extends over the present and previous two governments and to the relevant Ministers and their departments throughout that period.
The Roofing Insulation debacle and the educational building program have nothing on this series of failures. The current Minister and his department now have a duty to restore the nation’s airports to a status which meets the requirements set out in the legislation, published policies and lease documents already in place.
They also have the tools to do so, and ongoing neglect of their obligations would represent a grave breach of the respective obligations of the public officials involved.
As the applicant recognised in its closing submissions, Mr Phelan’s evidence was both historical and of a “political” nature. The Tribunal finds the statement provides some useful historical and policy background to the Act, but that otherwise the opinions expressed in it are of limited usefulness in determining the primary and secondary issues.
Benjamin Morgan
Mr Morgan was called by the applicant and his witness statement was tendered and went into evidence without objection. He was not required for cross‑examination.
Mr Morgan is the Chief Executive for the Aviation Advertiser in Tamworth, New South Wales. He said he had been involved in general aviation for the past 20 years and runs a company, that he said is the largest aircraft sales and marketing business in Australia.
He is currently a board member of Aircraft Owners and Pilots Association (“AOPA”).
He said he has been concerned about the privatisation of airports for the past 10 years and aviation safety throughout Australia “as a result of the greed of airport-lessee at the expense of the airport tenants, airport users and the communities surrounding airports”.
He said that recently, on 6 May 2016, he organised and conducted a meeting at Tamworth Airport, which was attended by the Deputy Prime Minister of Australia and the current Minister for Infrastructure and Transport, the Hon Darren Chester.
Noting that he was aware of the need to be impartial, Mr Morgan expressed the view that in order to achieve satisfactory growth of the aviation industry in Western Australia, Precincts 6 and 6A contained in the 2014 final master plan should remain free of non‑aviation commercial development. He stated that: “Anything short of that will compromise the operations at the airport”.
In his opinion, the proposed change in land use within the 2014 final master plan fails to provide for the future of aviation and does not meet the present and future requirements of civil aviation for users of the airport, or for services and facilities relating to airport concerns. He said it fails to provide for the future requirements of civil aviation by locking in the airport to its present configuration, and completely eliminating any space that may be required in the future to meet the ever changing aviation industry and its community.

While generally relevant, it must be said that Mr Morgan’s statements are at such a level of generality that the opinions expressed in them are only of passing relevance to the key issues.
Kenneth Cannane
Mr Cannane provided a witness statement on behalf of the applicant which was also tendered and went into evidence without objection. Mr Cannane was not required for cross‑examination.
He is employed as the Executive Director of the Aviation Maintenance Repair and Overhaul Business Association and has been for the past 11 years. He is based in New South Wales.
He is also a licensed aircraft maintenance engineer and has been for 57 years.
He was employed by CASA for 20 years. His last position with CASA was as Head of Airworthiness and Maintenance, at the time he retired in 2002. He was Regional Manager for New South Wales and Victoria with CASA.
Mr Cannane stated that during his time with CASA he was deployed to Jandakot Airport in an official capacity prior to the privatisation of the airport, in his role as General Manager of the regulatory framework program office.
Mr Cannane indicated an understanding of the need to provide impartial views. He also stated he is an industry representative on the Federal Minister for Infrastructure and Transport, Aviation Industry Consultative Committee. He made it clear he is already on record as having expressed the opinion that the proposed commercial development at general aviation airports compromises the operation of these airports.
Mr Cannane stated that he had reviewed the 2014 final master plan and had formed the opinion that the proposed commercial development of the airport on Precincts 6 and 6A would compromise its operations.
He said that based on his experience, the type of commercial development contemplated will have an effect on the operations of certain aircraft and that will have an effect on certain maintenance organisations at the airport.
In his opinion, implementation of the 2014 final master plan does not provide for the future requirements of civil aviation users of the airport by locking in the airport to its present configuration and completely eliminating any space that may be required in the future to meet the ever changing aviation industry and its community.
He expressed the opinion, as the Executive Director of an organisation with members conducting business at Jandakot Airport daily, that an increase of non-aviation commercial uses will adversely affect the airport and prevent the expansion of its use as a major training facility for the Asia Pacific area as a whole.
Mr Cannane expressed these opinions as of 16 May 2016.
Mr Cannane’s statements are of general relevance to a number of the issues, however the weight to be accorded his opinion is dealt with below.
David Bell
Mr Bell also provided a witness statement on behalf of the applicant which was tendered and went into evidence without objection. He was not required for cross‑examination.
He is Chief Executive Officer of the Australian Business Aviation Association based in New South Wales.
He stated that he had been a private pilot of 1450 hours with a twin engine endorsement (now retired). He was an aircraft salesman in a career that spanned 36 years until his retirement as a board director of Hawker Pacific for the last 10 years prior to his retirement.
He pointed out that the product lines he was involved with included Airbus, Beechcraft, Pilatus Britten-Norman, Dassault Falcon Jet, de Havilland Canada (Dash 8, Twin Otter), ATR 42 and 72 turbo-prop airliners and Bell Helicopters.
He said he was often required to transit Western Australia via Jandakot Airport in his employment.
Mr Bell also exhibited an understanding of the need to be impartial in expressing his views.
He expressed the opinion that in order to achieve satisfactory growth of the aviation industry, Precincts 6 and 6A contained in the 2014 final master plan should remain free of non-aviation commercial development. He said that anything short of that will compromise the operations at the airport.
In his opinion, the proposed fourth runway fails to provide sufficient safety margin for some twin engine operations.
He said that the proposed fourth runway would be better placed in the area of Precincts 6 and 6A for safety reasons.
He also expressed the opinion that the implementation of the 2014 final master plan does not provide for the future requirements of civil aviation and users of the airport by locking in the airport to its present configuration, and completely eliminating any space that may be required in the future to meet the ever changing aviation industry and its community.
Mr Bell said that, in his opinion, as a former businessman conducting business at Jandakot Airport, an increase of non-aviation commercial use will adversely affect the many aviation businesses already established at the airport and their safety operations.
He added that Jandakot Airport is one of the most important airports in Australia for fixed and rotary wing training. He said if the helicopter training area was reduced or eliminated by the fourth runway it would impact negatively on both the established businesses and prospective rotary wing businesses that may be developed in the future.
Finally, he said that Australian capital cities are not well endowed with airports suitable for general aviation operations and so it is essential that commercial developments at these airports be sufficiently contained in order to protect the future of general aviation operations. He stated that if Jandakot Airport is impacted negatively it will be a disaster for general aviation in this country.
His evidence is generally relevant to a number of issues but the weight to be accorded his opinion is dealt with below.
Aminta Hennessy OAM
Ms Hennessy also provided a witness statement on behalf of the applicant that was tendered and went into evidence without objection. She was not required for cross‑examination.
Ms Hennessy is the holder of an airline transport licence (both in Australia and the United States of America) and has been based at Bankstown Airport, New South Wales, since 1967 and has run Clamback & Hennessy at Bankstown Airport since 1985.
Thus, Ms Hennessy noted she has been a pilot for 52 years and in 1988 she was appointed an examiner of airmen. She has conducted all licence and rating tests for initial issues and renewals, which includes instructors and twin engine flying up to and including aircraft over 5700kgs.
She is chief pilot for all charter operations at Clamback & Hennessy and chief flying instructor for them as well at Bankstown Airport.
She established the Australian Association of Flight Instructors to bring modern teaching and educational techniques to flight instruction. She stated that the educational aims of the Association were supported by CASA.
Ms Hennessy also displayed a knowledge of the need to be impartial in expressing her opinion.
She stated that, in her opinion, it is of paramount importance to consider that Jandakot Airport is a training facility for new and inexperienced pilots. Their safety and the safety of the community and community property must be at the forefront of any decision made pertaining to Jandakot Airport. She considered this has not been adequately considered in the 2014 final master plan.
In particular, Ms Hennessy considered the commercialisation of Precincts 6 and 6A described in the 2014 final master plan to be a major negative for general aviation which, after all, is what airports are built for. She considered this is a short term policy to take out areas that can be used for growth in aviation over the next 50 plus years and is destroying an integral part of the nation's transport infrastructure.
She said should a fourth runway be needed with the expansion of Australia's aviation export industry, which is needed to fulfil the massive amount of pilots required in the Asia Pacific region in the foreseeable future, it would make more sense to have another option to put other aviation requirements first instead of the 2014 final master plan which complies just with the law. It would mean should an aircraft have an engine failure it would likely land on buildings at the end of the proposed fourth runway. She said, as an example, it has been rumoured that China needs 10,000 captains in the next 10 years.
She said the implementation of the 2014 final master plan does not provide for the future requirements of civil aviation. Given that Jandakot is a large part of Australia's aviation infrastructure, she said the destruction of it by allowing excessive non-aviation development is absolutely criminal.
She added that big commercial developments impact the local area by having large amounts of commercial vehicles going to and fro and making much noise and pollution.
As regards the positioning of the fourth runway, she questioned whether proper planning has been accomplished. In her opinion, it presents safety issues to which a hazard assessment should have been required. As a chief flying instructor with a lot of experience she did not like the idea that there would be buildings within a kilometre at either end of the runways. She said common sense dictates that runways should not end with buildings.
Her evidence is relevant to a number of issues, although the weight to be accorded to her opinions is dealt with below.
Phillip Reiss
Mr Reiss made an affidavit that was tendered and went into evidence on behalf of the applicant without objection. He was not required for cross‑examination.
Mr Reiss is a licenced aircraft pilot with many hours experience as a pilot in command, commencing in 1964. From 1968 he had extensive experience operating out of Jandakot Airport.
He stated that he been able to observe the nature of Jandakot Airport for many years and regards the proposed changes as being a challenge to safety and to the viability of the airport itself.
As well as being a chief pilot and director of aviation for two operations, he noted he has extensive experience as an instructor, and check and training pilot on business jet aircraft, and holds an Australian airline transport licence and a USA airline transport licence.
He currently flies, and sets out the details of his instrument rating for multiple engine aircraft.
He is a current director and past President of the AOPA.
In his view, there will be a “serious and irreversible deleterious safety outcome” at Jandakot Airport. He said the harm will arise because of the proposed placement of a parallel runway intended to be described as 12L/30R, of a shorter length and inside the current cross-wind 12/30 runway, as opposed to placement of a parallel runway to the outside of the current cross-wind 12/30 runway. In other words, Mr Reiss considered that a fourth runway to the south of the existing third runway would be satisfactory, but not that provided for by the 2014 final master plan.
Amongst other safety issues he mentioned was the close proximity of the altered runway to the Royal Aero Club of Western Australia's (“RACWA”) building. In his view, the runway will be a safety risk by being too close in the event of an emergency in operations from that runway. He said the requirement in the Regulations for 15 degrees lateral clearance free of obstacles either side of an aircraft’s departure profile, is well‑established and a safe requirement. He said that operations to cope with an engine failure, together with second segment climb restrictions detailed in corporate jet aircraft flight manuals, will render this runway “marginal”.
He considered there will be a direct and increased risk of runway incursions by other aircraft upon aircraft in flight, due to the placement of the proposed fourth runway inside the present third runway. He said that in his experience, runway incursions are an increasing hazard and there have been major accidents as a result.
He also noted there is a large primary and basic training based industry at Jandakot Airport and its operations present a greater risk of runway incursions because of the inexperience of student pilots.
He also considered the 2014 final master plan will inhibit the expansion and development of general aviation at Jandakot Airport into the future. He explained that view. He considered this is significant from a national point of view, observing that if Perth becomes inaccessible because of inadequate airfields, a direct threat to the “welfare of the City and the State arises”.
He also expressed a view that commercial development at general aviation airports has been to the detriment of the general aviation air operating industry.
He ultimately expressed the view that airports are a finite resource and cannot be replaced. He said each runway requires adequate length, adequate width and clear climbing areas to ensure safe and reliable operation. In his opinion, the proposed changes should be rejected “as against safe aircraft operations”. Also, the airfield, he said, is a major asset in Perth, which will become “seriously compromised” by what he refers to as “forced reduction of operations if this change takes place”.
Mr Reiss’ statements may generally be considered relevant to the issues, although the weight to be accorded to his opinions is dealt with below.
Warren Evans
Separate from his opening statement on behalf of the applicant, Mr Evans made an affidavit that was tendered and went into evidence on behalf of the applicant without objection. He was not required for cross‑examination.
Mr Evans is a semi-retired forensic analyst and logistician, and he is a part-time member of the Tribunal. In the past he has been the CEO of the Air Freight Export Council of Western Australia, deputy chairperson of the State Aviation Training Advisory Committee, member of the Department of Transport and Industry Training Council, member of the Department of Main Roads WA Consultative Committee as well as a consultant to Westralian Airports Corporation on logistics operation matters at Perth Airport. He has also been a supervisor of PhD aviation logistics students.
Mr Evans outlined the history of the process in which the lease of Jandakot Airport was granted to Jandakot Airport Holdings Pty Ltd (a different consortium to the current airport‑lessee company). In 1997, as managing director of Response Management Group Pty Ltd, he undertook a comprehensive and in-depth due diligence in relation to a tender for the lease of Jandakot Airport and as such became “intimately familiar with the property, operations, management and potential for development” at Jandakot Airport.
He said that as a qualified private pilot he has used Jandakot Airport in a business and recreational capacity since 1989 and continues to do so, and this makes him familiar with the airport’s operations and the many businesses operating there.
He has been involved with the applicant since 1998 and is currently the vice-president.
He said that he started his review of the 2014 final master plan in November 2014 on the day it was first made public.
Mr Evans said that in his review of the 2014 final master plan, he noted there has been a change in the category of Precincts 6 and 6A from unclassified development to specific industrial use and part-aviation use. He takes exception to this change.
He also noted that as part of the due diligence process in 1997, the 1986 master plan provided for a planned fourth runway to the south of the current 12/30 runway, which would be within the area now identified for Precincts 6 and 6A.
The 1999 draft master plan indicated that the fourth runway was to be in the same location as outlined in the 1986 master plan and that the current 12/30 runway was to concentrate on circuit operations, with the proposed fourth runway being of a length suitable for arrivals and departures of maximum weight aircraft up to 5,700kgs. This proposal would have meant the area for Precinct 6A would be cleared for aviation use. This was the proposal put to the operators/businesses at the airport at that time and which was agreed and included in the 2000 master plan. He noted that a further option indicating a runway to the north of the current 12/30 runway was set aside due to the then expressly stated and agreed environmental impact and safety concerns.
The 2005 master plan indicated two options for the fourth runway, being a site parallel to and north of the current 12/30 runway and the 1986 fourth runway site to the south. He noted that in the 2005 master plan it was stated that “it would be necessary to construct the 4^th runway within the next 5 years”.
Mr Evans said that the south option was dismissed by Jandakot Airport Holdings Pty Ltd on the grounds of perceived noise impact and high capital cost but no supporting analysis was provided. However, there was supporting analysis provided for the north option, and Mr Evans said “[i]t was very apparent that Option 2 was discarded entirely on the purported high capital cost comparison and not on the improved operational viability presented by Option 2 [south] over Option 1 [north]”. The northern location for the proposed fourth runway was outlined in the 2005 master plan. He and others objected to the 2005 and 2009 master plans due to the lack of consultation and the expressed safety fears but were ignored.
Mr Evans then outlined, from his perspective, what the airport-lessee company has, or has not, done since it purchased Jandakot Airport Holdings Pty Ltd in 2006, including a failed strategy to move the airport and develop the site for housing. He said they also refused to adopt any suggestion that the fourth runway was being positioned in the wrong place to the north of the current 12/30 runway and that the airport-lessee company “also adopted a very hostile approach” to the applicant and its members from that time on.
He said that any argument that the environmental impact of clearing the site for the south option was or is a major factor, has been made redundant as the entire area is to be levelled for Precincts 6 and 6A. He said this is to enable the airport-lessee company to maximise its financial return on capital investment, and that the proposed development of Precincts 6 and 6A clears far more land than that necessary to place the runway at the 1986 position and does away with any “meaningful” vegetation buffer to accommodate nearby residents.
He said that only 42% of the entire airport remains for “aviation use” and that only 19% is reserved for conservation, compared with 45% in the 2005 master plan.
Mr Evans said that he takes exception to the fact that under the 2014 final master plan, the areas known as Precincts 6 and 6A will no longer be available for the potential construction of the 1986 master plan proposed fourth runway in its southern position and that the extant buffer zone will be lost forever.
He said the action will enclose the entire airside of the airport within an industrial estate and bordering subdivisions, thus preventing any future airside expansion, restricting safety zones/crash paths and increasing safety issues for the airside operations. He said this will have the consequence of stifling any future aviation expansion and “may discourage current and potential aviation users” of Jandakot Airport.
He also stated that the 2014 final master plan fails to recognise the impact of the future legislation applicable to public safety zones forming part of runway extended crash zones, and that public safety zones will be a significant safety factor due to the encroachment of industrial buildings. He also said that the proposed 300 m proposed safety zone may prove to be “considerably inadequate”.
Mr Evans also said that it should be recognised that the current helicopter training area is severely compromised by placing the fourth runway in the northern position. He also said that an aerial view of the airport taken around 2013 fails to show the extensive building construction undertaken since then. He said that its inclusion in the 2014 final master plan is “(allegedly) intentionally misleading when considering airport utilisation over the next 20 years”.

Finally, he stated that any development by the airport-lessee company of the proposed fourth runway in the northern position is unsafe and should be refused by the Minister. He also said that serious reconsideration should be given to moving the proposed fourth runway to the southern position outlined in the 1986 master plan, after further “due and extensive formal review by the Minister together with all stakeholders on the airport” not by the airport‑lessee company who, he said, most Jandakot Airport stakeholders “have lost confidence in”.
The weight to be accorded Mr Evans’ opinions is dealt with below
Jan Ende
Mr Ende was called to give evidence. He confirmed the content of his witness statement which was tendered and went into evidence. He was then cross-examined by counsel for the Minister and the airport-lessee company.
In his witness statement, Mr Ende stated that he was a commercial pilot based at Perth and Jandakot Airports and a licensed aircraft engineer.
He said he had been a pilot for 55 years, having learnt to fly at Perth Airport with RACWA and then at Jandakot Airport when RACWA moved there.
Mr Ende outlined his career as an aircraft engineer, chief pilot and base pilot for the Royal Flying Doctor Service. He also trained as an aircraft crash investigator and was a witness into the coroner’s inquest into a crash that occurred at Jandakot Airport in 2005.
In giving his evidence, he acknowledged the need to remain impartial.
He said that his impartiality in expressing his opinions “is further tested by the fact that I have been threatened by agents of JAH in the past and it is with great trepidation and I expect retribution but I am still willing to provide this statement”.
He expressed the opinion that the commercial development of Precincts 6 and 6A compromises the operations at the airport.
Mr Ende said that having been involved in a fatal accident at Jandakot Airport in 2005, in his opinion, there was already too much commercial development and that logic dictated that airports require open spaces on all axes around runways for safety.
He said he would never take-off from current runway 12/30 with a fully loaded aircraft as it is restricted by the building recently constructed.
He is of the opinion that the removal of the possibility for a fourth runway to be constructed as outlined in the 1986 master plan in favour of non-aviation related development is “hopelessly impractical and ignores a number of safety concerns”.
He expressed the opinion that the implementation of the 2014 final master plan does not provide “for the future requirements of civil aviation users of the airport by locking in the airport to its present configuration completely eliminating any space that may be required in the future to meet the ever changing aviation industry and its community”.
He said that, as an individual conducting business at Jandakot Airport, an increase in non-aviation commercial use will adversely affect the road system he says is “already busting” from non-aviation use. He also says the road system is not capable of providing for ingress and egress of emergency vehicles as required by the Royal Flying Doctor Service.
In Mr Ende’s opinion, the construction of the fourth runway as proposed will cause “loss of life and/or property in the future” and while it meets the current terms for runway development, the centre line of a runway should not be aligned with a building a “mere 300 metres” from the threshold. He said this is so as the airport is primarily a training facility for new and inexperienced pilots.
He expressed the opinion that the proposed helicopter training and landing area will be detrimental should the proposed fourth runway be constructed as there will be down-wind traffic in the immediate vicinity of the proposed area.
When cross‑examined, Mr Ende was asked about the similarity between some of the paragraphs of his witness statement with those of others. Paragraphs [12] and [20] in particular were referred to. He indicated he had seen Mr Garber, the representative and advocate of the applicant, at his office. He said he had not spoken to Mr Charles McElwee. The Tribunal was left with the distinct impression that as a result of his consultations with Mr Garber, Mr Ende had made some notes to assist him in the preparation of his witness statement. It would appear they were based on parts of Mr McElwee’s witness statement.
In passing, the Tribunal might observe that given that relevant paragraphs of Mr Ende’s witness statement were in identical or almost identical terms to some of those of Mr McElwee’s, then he must have made a verbatim note of those paragraphs.
It must be said, again in passing, that the practice of witnesses stating their opinion in exactly the same terms as other witnesses leads to the obvious inference that they adopted another person’s evidence and had not sufficiently thought through their own views. The witness thereby runs the risk of a decider of fact not giving as much weight to their evidence as might otherwise be given to it. In this case, in the course of cross‑examination, it became clear that Mr Ende did, in fact, have his own independent views about the issues in question.
He considered that if there were to be a fourth runway (about which he had expressed doubt earlier), then the southern option should be adopted.
He repeated that Jandakot Airport cannot handle larger aircraft without a larger airport being available.
He also discussed the displaced threshold question. This question was addressed by a number of witnesses and whilst not agreed as to what a “displaced threshold” is, the real issue is whether the distance between the RACWA building and the take-off and landing points on the proposed fourth runway could be increased.
He was also cross‑examined about the helicopter training area and the question of debris, mentioning that helicopters were “proliferating” – a reference to a likely increase in their usage at Jandakot Airport.
When asked whether he had read the reports of the experts to be called by the Minister on this question, he indicated that he had not.
The weight to be accorded his opinions is dealt with below
Charles McElwee
Mr McElwee was called to give evidence. He confirmed the content of his witness statement which went into evidence. He was then cross-examined by counsel for the Minister and the airport-lessee company.
In his witness statement, Mr McElwee stated that he was the managing director, owner and operator of Air Australia Pty Ltd, based at Jandakot Airport.
He said he had been in aviation and flight training for 47 years and from January 1992, has operated his business which acts as a pilot training centre and air charter transport business at Jandakot Airport.
He also outlined his background, including in the United States Naval Aviation Service.
In giving his evidence, he acknowledged the need to be impartial.
He said that his impartiality in expressing his opinions “is further tested by the fact that I have been threatened by agents of JAH in the past and it is with great trepidation and I expect retribution but I am still willing to provide this statement”.
It might be said in passing, that that statement by witnesses called by the applicant does not, in the Tribunal’s assessment, mean that either more or less weight should be attached to the statements that they made in their witness statements or affidavits.
He, like a number of other witnesses, expressed the opinion that the commercial development of Precincts 6 and 6A will limit future growth of the airport.
He said there is already a large building underneath the flight path of the current runway 12/30 and, while it may be within the current CASA guidelines for aeroplane landing areas (“ALA”) for an authorised landing area, he still views it as a safety risk should an engine failure occur on take-off. He said the “simple fact is you have people working underneath the departure flight path”.
He also expressed the opinion that, having looked at the 2014 final master plan extension of runway 12/30, it is his opinion that the building at the end of runway 12/30 will still be a dangerous obstacle and adverse to the use of the runway even if extended.
In his opinion, the only placement for a fourth runway is that referred to in the 1986 master plan – to the south of the current third runway. He considered the proposed development on Precincts 6 and 6A “encroaches on the safety of all the runways”, not just 12/30.
Like a number of other witnesses, he said the implementation of the 2014 final master plan does not provide “for the future requirements of civil aviation users of the airport by locking in the airport to its present configuration completely eliminating any space that may be required in the future to meet the ever changing aviation industry and its community”.
He also mentioned adverse effects on the road system which is already overburdened, mentioning difficulties with entrances in the case of emergency, and finally stated that the fourth runway as proposed, “will represent an accident in the making”. He said while it may meet the 300m CASA ALA guidelines, it only increases the probability of an accident or incident when the runway is constructed with buildings in close proximity to its end.
He considered the 2014 final master plan fails to consider the airport as primarily a training facility for new and inexperienced pilots. He said, because of their inexperience, they need a “wider buffer” than that present in the 2014 final master plan. He said he would be hesitant to allow a new student pilot to use runway 12L/30R.
He said originally the airport was designed as a GAAP (high intensity student training airport) airport by CASA and there were seven airports in the country set aside for pilot training.
In his opinion, the proposed helicopter training and landing area being at the end of runways 24 at the time the cross-wind runway 12L/30R is active, will be detrimental when compared to the current helicopter training area, should the proposed fourth runway be constructed.
He said if the helicopter plan is implemented, certain aircraft have an option to request a runway notwithstanding a cross-wind, such as is the case with the Royal Flying Doctor Service, and a runway incursion is probable.
He also said that in recent months, CASA regulations under the Civil Aviation Safety Regulations 1998 (Cth) (“CASR”) have changed and, as a part of that compliance, “we must provide a mandated Safety Management System (‘SMS’)”. He said he requested a copy of the airport-lessee company’s SMS but was not provided it as he was told it was “confidential”.
As to particular elements of that last statement, the Tribunal is unsure.
Mr McElwee was cross‑examined to the following effect.
Mr McElwee was first cross‑examined concerning the similarity of a number of paragraphs in his witness statement to those that appeared in other witness statements filed and tendered on behalf of the applicant. For example, he was asked about the similarities between [22], [16] and [17] of his witness statement with [21], [17] and [18] of that of Mr Ende.
Mr McElwee insisted that he had prepared his witness statement without regard to any other materials and that he had not conferred with anybody else concerning the terms of his witness statement.
It might be said in passing, as a result of some questions put to some other witnesses, that other witnesses may well have seen the text of some of the paragraphs that appeared in Mr McElwee’s statement, for the purpose of considering the terms of their statements, and in that sense it may be that Mr McElwee’s statement provided something of a template.
When asked whether he had read the expert reports filed on behalf of the Minister, including that of Mr Murray, Mr King and Mr Green, Mr McElwee indicated that he had not read them in detail and disagreed with the safety aspects and considered it was important to keep the potential southern runway option alive.
He was asked questions about a fourth runway and the extent to which it was a priority, accepting that there were many views about its need over 25 years.
As to whether the proposed southern runway was MoS compliant, he accepted there was no suggestion in his primary evidence that it was contravened and that overall the proposed fourth runway did comply with the MoS.
Similarly, he accepted there was no question of non-compliance with the requirements of Airservices.
He confirmed that it was the proposed position and alignment of the fourth runway that was of concern to him.
He also did not disclose any familiarity with other secondary airports in Australia when asked about them.
Mr McElwee also accepted that while in his statement at [19] he had mentioned the distance from the end of the proposed fourth runway to what he considered to be the danger area in the vicinity of the RACWA building being about 300 m, in fact, on inspection, the distance shown on the 2014 final master plan was about 590 m, nearly twice that distance.
He was also pressed to recognise that the MoS requirements were intended to reflect all pilot skill levels, not just experienced pilots.
He also accepted that the proposed fourth runway was not on a direct alignment with the RACWA building.
He was also cross‑examined concerning flight circuits and the question of “displacing the threshold”.
Mr McElwee plainly was concerned about a worst case scenario and for that reason was opposed to the location of the proposed fourth runway.
He was also cross‑examined at some length about the helicopter training area concerns that he had expressed.
In re-examination, he emphasised that he was a flight school operator and on that basis was a member of the applicant and that he did not think he had interests that competed with those of the airport-lessee company.
He again expressed a preference for a location of a fourth runway that reflected the 1986 master plan, which he had seen quite a while ago.
He also made reference to noise levels, on the basis that he lived locally.
He again expressed his concern about the circuits that trainees would take to the north and east after taking‑off from the proposed fourth runway, which takes aircraft over the currently built commercial areas and then subdivisions to the north.
After also further discussing helicopter training, he mentioned the question of engine failure on take-off and incidents which had occurred in the past of which he was directly aware.
For these reasons, he was of the opinion that the southern option was the safer option.
The weight to be accorded his opinions is dealt with below
Ross Campbell
Mr Campbell provided a witness statement on behalf of the applicant that was tendered and went into evidence without objection. He was not required for cross-examination.
Mr Campbell is a Boeing 747 check and training pilot based in China.
He has been a commercial pilot for 41 years and has been a pilot in command for approximately 20,500 hours. He has worked for a wide variety of airlines and has extensive aviation qualifications.
In giving his evidence, he acknowledged the need to be impartial.
Mr Campbell expressed the opinion that the commercial development of Precincts 6 and 6A will limit future growth of the airport, as have a number of other witnesses.
He said that, in his opinion, the placement of the fourth runway was well thought out in the 1986 master plan and the non-aviation related development, and elimination of the 1986 option, ignores a number of safety concerns.
He believed that the implementation of the 2014 final master plan, particularly the proposed development in Precincts 6 and 6A, encroaches on the safety of all the runways at Jandakot Airport, not just “12/30”.
He also expressed the very same opinion as other witnesses, that the 2014 final master plan does not provide “for the future requirements of civil aviation users of the airport by locking in the airport to its present configuration completely eliminating any space that may be required in the future to meet the ever changing aviation industry and its community”.
He also said that the construction of the fourth runway as proposed in the 2014 final master plan will “represent an accident in the making” and while it meets the 300 m RESA guideline, that is only a provision for an under-shoot or over-run in the event of an aborted take-off or long landing.
Mr Campbell also expressed the opinion that the major failing of the 2014 final master plan is that it does not take into consideration the development of buildings and obstacles within the airport boundaries and that, in itself, endangers pilots, the community and property.
Finally, he concluded that the 2014 final master plan fails to consider that Jandakot Airport is primarily a training facility for new and inexperienced pilots and because of this, a wider buffer than that present in the 2014 final master plan is needed. He said that the 2014 final master plan is working to minimum standards when Jandakot Airport caters to pilots with “less than normal standard capacity”.
The weight to be accorded his opinions is dealt with below
Gary Gaunt
Mr Gaunt also provided a witness statement on behalf of the applicant that was tendered and went into evidence without objection. He was not required for cross-examination.
Mr Gaunt is a retired aviation consultant and businessman based in Perth and a former licensed pilot.
He has been a pilot for over 55 years. He learnt to fly at Perth Airport, shortly after RACWA moved from Maylands Airport to Perth Airport and then subsequently moved to the “new” Jandakot Airport. His witness statement disclosed a long association with Jandakot Airport in the businesses he was involved in.
In particular, he was involved in Murchison Air Charter, later Murchison Air Services Pty Ltd. He noted that the company was one of the first in Australia to be appointed as a third level commuter airline operator. This was at the time that Jandakot Airport was still in an embryonic form and was unsuitable for larger operations. Ultimately, the company became Skywest.
He later went overseas to join an international air charter organisation.
Mr Gaunt provided some detail concerning the development of various aviation‑related businesses in Western Australia.
He then introduced what he considered to be a relevant regulatory issue in regard to the operation of aircraft in order to put into context Perth Airport versus Jandakot Airport operational limitations. He said there are two distinct levels of aircraft certification which invoke important and discrete differences in the way in which aircraft are operated, and include performance analysis, runway or balanced field length, approach and landing gradients, and obstacle clearance conditions. He said these two levels may be described as SAFE and SAFEST.
He stated that small aircraft can be defined as those whose maximum take-off weight (“MTOW”) is =< 5,700kgs, generally described in certification terms as “normal or utility category” and includes the smaller training, private and business aircraft. He chose to define these types as SAFE.
He said larger aircraft can be defined as those whose MTOW is =>5,700kgs, generally described in certification terms as “transport or airline category”. These include small jets such as Citation, Learjet and Hawkers, up to the A380 and B747 aircraft. He chose to define these types as SAFEST.
He said the significance of the difference may simply be described by reference to exhibit GG-1 to his witness statement.
He said there has arisen in the intervening period a class of aircraft that lays across the earlier generation strict classification of small and large, which, while they fall under the 5,700kg certification divide, they may have the higher performance required of the larger aircraft. He said this only serves to complicate the argument. He said that laid on top of this difference, was a Federal Government intervention which he then addressed.

It is clear on the evidence before the Tribunal, and the Tribunal finds, that the airport‑lessee company satisfied its consultation and reporting obligations under those sections of the Act.
There is no evidence to suggest that the Minister’s consideration of those consultations was inadequate or that a consideration of the consultations undertaken would or should yield a result that the 2014 final master plan be refused approval.
The Tribunal finds there is no proper basis to require a review of the Minister’s decision on this consultation ground.
Residential community concerns
The evidence of Mr and Mrs Elpitelli, which has been set out above, raises questions about the extent to which residential community concerns have been taken into account in the planning of Jandakot Airport and, in particular, in the preparation and approval by the Minister of the 2014 final master plan.
Having regard to the preceding findings on the consultation issue, the Tribunal does not consider that there is any relevant concern so far as community consultation is concerned that should lead to a review of the Minister’s decision.
It is also well understood, as explained in Mr Cohney’s evidence, that the procedures by which a master plan are ultimately approved and developments subsequently undertaken, engage local government planning controls under State legislation.
While the Tribunal can readily understand that residents, such as Mr and Mrs Elpitelli, who have lived in the vicinity of Jandakot Airport for some years, may not have been expecting the Jandakot Airport area to have been developed in the way it has been, replete with commercial developments, prior to the passage of the Act in 1996, there is no particular basis, having regard to the range of objects specified in s 3 of the Act, to find that the concerns expressed by Mr and Mrs Elpitelli should now result in a review of the Minister’s decision.
The Tribunal finds that the concerns expressed by Mr and Mrs Elpitelli (or others of a similar nature) concerning the residential community issues should not lead to a review of the Minister’s decision to approve the 2014 final master plan.
The safety issue
As explained above, in a number of contexts, the primary ground of review pressed by the applicant is that the location of a fourth runway in the position proposed by the 2014 final master plan represents a significant safety hazard.
The safety hazard was expressed by the applicant’s main witnesses in different ways. Principally, it was that, because Jandakot Airport would involve a number of flight school trainee pilots taking‑off on the proposed fourth runway in a northerly direction, if they experienced an emergency (such as an engine failure) they would have little room to manoeuvre their aircraft if making an emergency landing and might therefore crash into parked planes or trucks carrying fuel supplies in the vicinity, and possibly directly into the RACWA building, and so endanger human life.
It was suggested that trainee pilots, depending on just how experienced they were, would be best required to use a runway that did not present such challenges in the event of emergency.
Other concerns with the proposed fourth runway on that alignment included the nature of the circuit that a novice pilot would take for training purposes in taking-off in a northerly direction, as it would take them over dense residential subdivisions further to the north.
By contrast, the applicant submitted, if aircraft were taking‑off on a similarly aligned fourth runway, but a runway located to the south of the existing third runway, the trainee circuit would track the aircraft to the north and west, and it would be less likely to involve flying over dense residential subdivisions.
A further concern expressed was that wind turbulence might be caused by buildings, such as the RACWA building, on landing on the proposed fourth runway from the north, thus it would be better to have take‑off and landing away from such buildings.
Allied to these various concerns, a further concern was expressed that if there were an emergency landing required for an aircraft taking‑off on the proposed fourth runway to the north, that while the aircraft might clear the runway, pathway and buildings within the immediate vicinity, it might be faced with an emergency landing in the vicinity of other commercial developments within the airport, including that in Precinct 5.
By contrast, the applicant contended, if the take-off were on a runway with a similar alignment to the south, those concerns would be reduced, if not eliminated.
The Minister and the airport-lessee company both recognise that a fourth runway to the south of the existing third runway, as initially proposed in the 1986 and 1999 master plans, might be considered “safer” than the currently proposed 12L/30R runway, but say that the question posed for the Minister, and now for the Tribunal, in respect of the approval of the 2014 final master plan, is not as to which of those two locations would be the safest, but whether what is proposed by the airport-lessee company in the current 2014 final master plan meets all the relevant safety requirements. The Minister and the airport-lessee company observe that the airport planning reflected in the location of the proposed fourth runway meets the MoS requirements and, for that reason, it must be presumed to be safe.
As set out in the summary of their evidence above, a number of respected witnesses who are familiar with aviation generally and flying at Jandakot Airport in particular, object to the concept that aircraft, particularly aircraft piloted by trainee pilots, should have to take‑off in a northerly direction over or adjacent to such buildings as the RACWA building and the adjacent taxiway and hangars and parked planes and the like. Mr McElwee went so far as to say he considered that such a proposal was “an accident in the waiting”.
The Tribunal accepts, as stated above, that the witnesses called by the applicant who expressed concerns along these lines, are respected and hold their views strongly and honestly.
There is no doubt, as was said on more than one occasion during the course of the hearing, that one can imagine the location of a runway that would be considered “the safest”, taking into account all possible hazards or risks that might be contemplated in the take-off and landing of aircraft of the type that take-off and land at Jandakot Airport presently and are piloted by persons with a range of experiences, including trainee pilots. Mr Fraser, of the airport-lessee company, suggested that a runway near the country town of Narrogin would perhaps meet those requirements.
The point being made by Mr Fraser, which the Tribunal accepts, is that with the growth of large metropolitan areas in Australia, secondary airports such as Jandakot Airport are no longer, as they were when first envisaged and constructed, in non-built up, largely rural areas, and are now very much within the residential areas of fast growing cities. Thus, the development of Jandakot Airport today occurs in a new city, residential and commercial context. The suburbs have encroached on Jandakot Airport. The planning of the adjacent residential subdivisions plainly has taken account of the fact that Jandakot Airport exists. The planning of Jandakot Airport necessarily takes into account that there are adjacent local government areas and residential areas, with different zonings and densities, around it. Mr Cohney confirmed this in his evidence, which I accept. There are challenges for airport planning in this setting.
One might say that ideally, therefore, having aircraft take‑off in the vicinity of and over buildings in the airport precinct is less desirable than having them take‑off over clear country, which presents no such obstacles, or fewer obstacles, in the case of an emergency landing. Even in the latter case, of course, a natural landscape such as bushland presents its own set of obstacles to a plane landing in an emergency.
Added to this planning context is the passage and requirements of the Act itself. It was brought into being in 1996 in order to ensure the continued appropriate development and management of airports in Australia. Its objects require a balancing of a variety of considerations. These are, however, firmly and clearly posited on the understanding that an airport-lessee company will be entitled to commercially develop precincts for profit within the boundaries of an airport. The obvious intention is that by this profit mechanism, an airport-lessee will be able to provide the appropriate infrastructure to enable the continued maintenance and development of the relevant airport. This was all recognised in what Justice Cooper said in Westfield.
Many of the respected witnesses called on behalf of the applicant plainly were not supportive of the policy developments that resulted in the passage of the Act in 1996, and appear to remain sceptical about these policy underpinnings of the Act. The Tribunal, however, necessarily takes those policy underpinnings of the Act as they are and does not, indeed cannot, second guess them.
The question is not whether commercial development in the precincts of the airport should be permitted – something that has been dealt with above – but whether, as a result of the airport planning engaged in by the airport-lessee company, and ultimately approved by the Minister in this case, the location of a proposed fourth runway presents risks that should be considered unacceptable. The Minister, and this Tribunal on review, is not obliged to approve the final draft master plan presented to him or her by the airport‑lessee company, regardless of risk. The planning and approval process required by the Act is designed to ensure that all proper questions of planning, including risk, and aviation and general community reaction in respect of a proposed plan, have been taken into account. As Deputy President Hack SC said in Archerfield, there may be occasions where, having regard to what is actually proposed in respect of a runway, the risks associated with it should lead to a refusal of the approval.
In this case, the Tribunal accepts that the best way to assess the safety concerns expressed on behalf of the applicant by a number of the respected witnesses, is by reference to the MoS requirements. While Mr Douglas, a highly experienced person in the aviation industry, explained that the MoS is subject to revision from time-to-time, the Tribunal considers that the requirements of the MoS, as they currently apply, constitute the requirements to which the Tribunal must now have regard. They are the same requirements that the Minister obviously had regard to in approving the 2014 final master plan. There is no basis to consider that any of the relevant requirements of the MoS are not relevant or are soon to be removed upon any relevant review of them. Mr Douglas’ evidence did not go that far.
The position is, as all relevant witnesses called by the applicant acknowledged, that the proposed fourth runway is MoS compliant. While the Tribunal would not go so far as to say that MoS compliance is the sole test for assessing safety questions, that this fourth runway proposal is MoS compliant is, in the circumstances, of considerable relevance.
While a MoS compliant proposal may possibly be demonstrated to present risks that are unacceptable in safety terms in a particular case, in this instance it has not been demonstrated that the proposed fourth runway produces any unacceptable risks.
The most significant of the concerns expressed on behalf of the applicant, to which I will return below, is that concerning the distance between the end of the proposed fourth runway 12L/30R, and the RACWA building and the adjacent taxiway and nearby associated hangar area.
The other concerns expressed are not as significant. For example, the concern that trainee pilots taking-off from the proposed fourth runway in a northerly direction would necessarily track towards the north and east on a circuit over dense residential areas for at least part of their flight, must be considered a fact of life which cannot entirely be avoided in any circuit scenario. If the applicant’s preferred fourth runway to the south of the existing 12/30 runway were to be favoured, trainee pilots would track to the north and west, flying over other residential areas for part of the flight. While arguably a circuit on that alternative axis would over-fly, in total, a smaller area of dense residential suburbs, the consequences, in the case of an emergency, are not obviously or necessarily different. There is no reason to require reconsideration of the Minister’s approval because of the circuit a trainee pilot will take on a northerly take-off from the proposed fourth runway.
The further concern expressed, that wind turbulence might be caused by buildings, such as the RACWA building, and affect landings on the proposed fourth runway from the north, was not the subject of any detailed evidence. Accepting the broad proposition that air conditions may be affected by wind and buildings in the vicinity of an aerodrome, there is no compelling evidence before the Tribunal that this is likely to be an issue of serious concern in this case. It follows that the expressed air turbulence concern should not lead to the Tribunal requiring the Minister to reconsider his approval for this reason.
As to the primary concern, as expressed in many of the applicant’s witnesses’ evidence, that the take‑off and landing point for air traffic taking‑off to the north and landing to the south on the proposed fourth runway is simply too close to buildings, hangars, taxiways and aerodrome based traffic, such as parked planes, fuel trucks and the like, I find that, on proper consideration of the evidence led at the hearing, the safety concern expressed is not borne out on proper examination.
The first fact to be noted is that, contrary to the apparent assumption of a number of the applicant’s witnesses who were cross‑examined about their safety concerns, to the effect that the distance between the end of the proposed fourth runway to the north and the existing building line was only 300 m, the distance is in fact about 532 m.
As submitted on behalf of the Minister, I accept that even if the asserted 300 m minimum distance were correct, the proposed runway exceeds that requirement by some 67%.
The MoS Pt 139 establishes safety standards for Australian aerodromes, based on international and local studies and experience, and draws no distinction between aerodromes with a high incidence of training activity and those without. In other words, there is no separate rule to be adopted in the case of trainee pilots who may be taking‑off in a northerly direction on the proposed fourth runway.
I also accept and find that the opinions expressed by a number of the applicant’s witnesses were based on what might be called calamity theory, related to a complete engine failure of an aircraft after the point of take-off. I accept the submission made on behalf of the Minister that, on the evidence led, were an engine failure to occur, as Mr Douglas agreed, the most likely point at which that would occur would be during the first power reduction, which is generally when the aircraft reaches approximately 300 ft. By the time the aircraft reaches that altitude it will generally be at, or close to, the upwind runway threshold. At that point, the location of the RACWA building and the adjacent taxiway is taken out of the equation because an aircraft in that situation is likely to glide and come down further than 500 m from the end of the runway.
In those circumstances, the point really is that, regardless of whether the runway is to the south of the existing 30/12 or to its north, aircraft in the circuit will over‑fly commercial development and residential areas and, in either case, if they were to crash, would crash into similar areas in the event of a serious emergency. There is no additional risk, in my view, to the general public arising purely out of the fact of a northern location for the proposed fourth runway.
I also accept and find, on the evidence led, that engine failures at the point of take‑off, or shortly thereafter, are a very rare occurrence. According to the evidence of Mr Murray, there have only been three such incidents at Jandakot Airport since June 2002, a period of some 14 years.
One should also note that the proposed fourth runway is a cross‑wind runway that is used relatively infrequently.
In the result, I consider that the evidence given on behalf of the applicant failed credibly to establish that the proposed fourth runway to the north is inherently unsafe.
It is interesting to note, in passing, that in September 2006, the applicant itself conveyed to the then responsible Minister that it “fully accepted the Masterplan with an approved fourth runway …” and that it “would like to see Jandakot Airport developed in line with the approved Masterplan”. At that time, the 2005 master plan envisaged the proposed fourth runway in its currently proposed and approved northern location.
I generally accept, so far as the fourth runway and the RACWA building are concerned, that the concerns expressed are remote and speculative and may, in light of the standards set by the MoS, be relevantly disregarded. Certainly they do not lead to the conclusion that the Minister should reconsider his approval.
There is much in the Minister’s submission that no credible expert evidence has been led to suggest that the southern location will be any safer, having regard to either general topography or existing and future residential and commercial developments, particularly in Precinct 5.
As I have also indicated above, it is apparent that the applicant sought to marshall as many possible or potential or tangential issues as it could in an attempt to strengthen its case for a reconsideration of the Minister’s decision. This undoubtedly led, as the Minister submits, to additional arguments being mounted beyond the immediate safety concerns in the vicinity of the RACWA building. Thus, the additional concerns, dealt with above, about the circuit to the north and east over-flying residential areas, was expressed.
In the result, I consider that, while opinions may undoubtedly differ about whether it might be preferable to have a fourth runway to the south of the existing 30/12 runway, rather than to the north, an appeal to which might be considered the “safest” runway is not the standard by which this review proceeding should be assessed. The question is whether the proposed fourth runway to the north is shown to present no unacceptable risks in the circumstances. For the reasons stated above, I consider no unacceptable risk has been demonstrated.
The broad scenario painted by the applicant is that the airport-lessee company in this case is a rapacious private land developer that is making exceptional profits from the commercial redevelopment of land within the airport precinct and, being driven by such an objective, has chosen to propose the location of the fourth runway in a less than desirable or preferable location than might otherwise have been the case. The reality is that the Tribunal must operate within the confines of the Act and the parameters it has created. The airport-lessee company is entitled to propose a master plan to the Minister, and the Minister is obliged, pursuant to the terms of the Act, to assess it, the statutory assessment procedure having been followed. The Tribunal, in this review proceeding, stands in the shoes of the Minister. The primary question, when all other concerns are put to one side, is whether the proposed fourth runway presents an unacceptable risk to human life and property in the immediate vicinity to the north of that runway. The primary argument has been that trainee pilots might crash in that vicinity. To approach the decision‑making task before the Tribunal on such a calamity scenario is not appropriate, in my view, where there is no sufficient evidence to support the occurrence of the risk alleged. It might be added that if there were a real risk of such a calamity, one would also not place a proposed fourth runway to the south of the existing 30/12 runway either, because in the case of engine failure, aircraft are equally likely to crash into commercial and residential areas in the vicinity of any alternative runway and endanger human life.

In these circumstances, there is no basis for requiring reconsideration of the Minister’s approval on the safety grounds alleged.
Related other issues
To the extent that they have not already been dealt with above, I should also mention two issues raised in the applicant’s second amended statement of issues, even though they were not specifically pressed in the course of the hearing or in the closing submissions.
First, the applicant submits that the requirement in s 71(2)(c) of the Act for a master plan to specify the airport-lessee company’s intentions for land use and related development of the airport site, where the uses and developments embrace airside, landside, surface access and land planning/zoning aspects, was not met. The contention is that the specified land use does not provide any timetable for development of the fourth runway or any other aviation services to the airport. In my view, there is no requirement for a timetable for development to be established. The 2014 final master plan facilitates and provides for such developments. In some cases, including the actual construction of the proposed fourth runway, further approval will be required.
Secondly, the applicant submits that the requirement under s 81(3)(d) of the Act for the Minister to consider the views of CASA and Airservices, insofar as they relate to safety aspects and operational aspects of the plan, was not met. The applicant contends that the Minister “failed to seek any clarification from CASA or [Airservices] regarding their stated qualifications as to the safety and operational aspects of the proposed commercial development of Precincts 6 and 6A”. I do not consider there has been any breach of this requirement in that there does not appear to be any obvious reason why the Minister should have sought such clarification.
I, therefore, do not consider that there is any basis for requiring reconsideration of the Minister’s approval of the 2014 final master plan on either of these grounds.
CONCLUSION
For the reasons given above, I find that the decision of the Minister made 17 February 2015 should be affirmed.

I certify that the preceding 743 (seven hundred and forty three) paragraphs are a true copy of the reasons for the decision herein of The Honourable Justice ML Barker, Deputy President
.......[Sgd].................................................................
Associate
Dated 12 September 2016

Date(s) of hearing 11 to 13 July 2016 and 15 July 2016

Representative for the
Applicant Mr J Garber

Representative for the
Respondent

Mr R Wade

Solicitors for the Respondent Ashurst

Representative for the Other
Party
Mr M Hotchkin

Solicitors for the Other Party Hotchkin Hanly

[2016] AATA 705

12 September 2016

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Division	GENERAL DIVISION
File Number	2015/1202
Re	Jandakot Airport Chamber of Commerce Inc
APPLICANT
And	Minister for Infrastructure and Regional Development
RESPONDENT
And	Jandakot Airport Holdings Pty Ltd
OTHER PARTY

Tribunal	The Honourable Justice ML Barker, Deputy President
Date	12 September 2016
Place	Perth

Date(s) of hearing	11 to 13 July 2016 and 15 July 2016
Representative for the Applicant	Mr J Garber
Representative for the Respondent	Mr R Wade
Solicitors for the Respondent	Ashurst
Representative for the Other Party	Mr M Hotchkin
Solicitors for the Other Party	Hotchkin Hanly