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

[2016] AATA 385

Jandakot Airport Chamber of Commerce Inc and Minister for Infrastructure and Regional Development [2016] AATA 385 (3 June 2016)

Division	GENERAL DIVISION
File Number(s)	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	3 June 2016
Place	Perth

The stay request is refused.

…(Sgd) M L Barker………..

The Honourable Justice ML Barker, Deputy President

CATCHWORDS

PRACTICE AND PROCEDURE – application to stay any applications and acts of approval concerning development of subject matter airport – whether stay orders would affect operation or implementation of decision under review – whether stay orders appropriate to secure the effectiveness of the hearing of the review application

LEGISLATION

Airports Act 1996 (Cth) ss 4, 67, 69, 70(1), 70(2), 71, 71(2), 72, 76, 76(2), 77, 78, 79, 80, 81(2), 81(3), 81(4), 88, 90, 91(1A), 94, 94(3), 94(4), 94(5), 94(6)

Administrative Appeals Tribunal Act 1975 (Cth) ss 41(1), 41(2)

REASONS FOR DECISION

The Honourable Justice ML Barker, Deputy President

3 June 2016

1. The Airports Act 1996 (Cth) (“Act”) is usefully described, immediately before Pt 1 – Introduction, as “An Act about airports”.  Its objects, stated in s 3, are as follows:

   (a)to promote the sound development of civil aviation in Australia;

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

   (c)to promote the efficient and economic development and operation of airports;

   (d)to facilitate the comparison of airport performance in a transparent manner;

   (e)to ensure majority Australian ownership of airports;

   (f)to limit the ownership of certain airports by airlines;

   (g)to ensure diversity of ownership and control of certain major airports;

   (h)to implement international obligations relating to airports.

2. Section 4 provides what is described as a “Simplified outline” of the Act, which commences by saying “The Act sets up a system for regulating airports” and that a “Commonwealth-owned airport can only be leased to a company. The company is called an airport-lessee company” (original emphasis).  “An airport-lessee company’s sole business will be to run the airport”.

3. The simplified outline goes on to state that, for each airport, there will be an airport master plan.  It further states that major development plans will be required for significant developments at airports.  Further, that building activities on airport sites will require approval and that buildings and structures on airport sites must be certified as complying with the regulations. 

4. The simplified outline adds that for each airport there will be an environment strategy.  And that the regulations may deal with environmental standards at airport sites.

5. The simplified outline further notes other forms of regulation.

6. Part 5 of the Act deals with land use, planning and building controls. Section 67, in Div 1, provides a “Simplified outline” to the following relevant effect:

   •For each airport, there is to be an airport master plan.

   •Major development plans will be required for significant developments at airports.

   •…

   •…

   •Building activities on airport sites will require approval.

   •Buildings and structures on airport sites must be certified as complying with the regulations.

7. Division 3 of Pt 5 provides for airport master plans. Section 69 provides a simplified outline of this division, to the following effect:

   •     For each airport, there is to be a final master plan.

   •     A final master plan is a draft master plan that has been approved by the Minister.

   •     A draft master plan is prepared by an airport-lessee company after taking into account public comments.

   •     A final master plan is relevant to the approval of major developments at the airport.

8. Section 70(1) makes it plain that for each airport there is to be a final master plan. The purposes of a final master plan are described in s 70(2), as follows:

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

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

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

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

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

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

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

9. Section 71 specifies the matters that must be set out in each draft or final master plan for an airport. Section 71(2)(a) to (g) deal with a range of matters, which do not presently need to be set out in detail, including the airport-lessee company’s development objectives for the airport, its assessment of the future needs of civil aviation users of the airport, its intentions for land use and related development of the airport site, an Australian noise exposure forecast, flight paths, and environmental issues.

10. Section 71(2)(ga) to (gc) deal with a range of plans, information and effects in relation to the first five years of the master plan, in relation to such matters as a ground transport system, the proposed developments in the master plan that are to be used for commercial, community, office or retail purposes, and employment levels.

11. Section 72 makes it plain that a draft or final master plan must relate to a period of 20 years – the planning period (“planning period”).  However, the environment strategy must relate to a period of five years.

12. By s 76, if a final master plan (“the original plan”) is in force for an airport, the airport-lessee company must give the Minister, in writing, a draft master plan for the airport no later than five years after the original plan came into force or within a longer period that the Minister specifies in a written notice. The planning period for the draft master plan must begin immediately after the expiry of the original plan. A company commits an offence if it contravenes the requirement: see s 76(2).

13. A final master plan, by s 77, remains in force for five years. However, if, at the end of that five years, a fresh final master plan does not come into force, the original plan remains in force until a fresh plan comes into force.

14. By s 78, if a final master plan (the original plan) for an airport is in force, the airport-lessee company for the airport may give the Minister, in writing, a draft master plan that is expressed to replace the original plan. When the draft plan becomes a final master plan, the original plan ceases to be in force.

15. The Act makes further provision in s 79 and s 80 for public comment and consultations before an airport-lessee company gives the Minister a draft master plan.

16. Ultimately, by s 81(2), the Minister must approve the plan, or refuse to approve the plan. In deciding whether to approve the plan, by s 81(3), the Minister must have regard to the following matters:

    (aa)  the extent to which the plan achieves the purposes of a final master plan (see subsection 70(2));

    (a)  the extent to which carrying out the plan would meet present and future requirements of civil aviation users of the airport, and other users of the airport, for services and facilities relating to the airport concerned;

    (b)  the effect that carrying out the plan would be likely to have on the use of land:

    (i)  within the airport site concerned; and

    (ii)  in areas surrounding the airport;

    (c)  the consultations undertaken in preparing the plan (including the outcome of the consultations);

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

17. However, s 81(4) makes it plain that subs (3) does not limit the matters to which the Minister may have regard.

18. The Jandakot Airport, in Perth, Western Australia, is an airport to which Pt 5 of the Act applies. Jandakot Airport Holdings Pty Ltd, the joined party or other party (“other party”), as it is referred to in this review proceeding, is the relevant airport-lessee company.

19. In this case, the Minister on 17 February 2015, approved the Jandakot Airport Final Master Plan 2014 (“2014 final master plan”). 

20. The applicant, Jandakot Airport Chamber of Commerce Inc (“applicant”), seeks review of the Minister’s approval decision.  The review application is listed for hearing over five days commencing Monday 11 July 2016.

21. Relevantly, the other party, Jandakot Airport Holdings, has lodged with the respondent, the Minister for Infrastructure and Regional Development (“Minister”), for approval a draft major development plan.  As described by John Hugh Fraser, Managing Director of Jandakot Airport Holdings in his affidavit made 4 May 2016, the draft major development plan essentially involves an extension of a runway used in cross-wind conditions and construction of associated taxi-ways.  The purpose, he states, is to improve the safety of aircraft landing and takeoff in cross-wind conditions.

22. Pending the completion of the review proceeding, the applicant has made a request for a stay order, pursuant to s 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”), which provides:

    The Tribunal may, on request being made by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.

23. The particular order that the applicant seeks is in the following terms:

    During the pendency of AAT Application 2015/1202:

    1)    Any current applications and/or acts of approval by either the Respondent or the Other Party pertaining to any development of the subject matter Jandakot Airport property be stayed.

    2)    The Respondent be ordered not to take any action on the Other Party’s draft Major Development Plan entitled ‘Extension of runway 12/30 and taxiway system’.

    3)    The Other Party be restrained from any further applications, or acts requiring approvals by the Respondent pertaining to the subject matter Jandakot Airport property.

24. The grounds stated in the request are as follows:

    The Jandakot Airport Final Master Plan 2014 provided for future development of Precincts, runways and taxiways which are now the subject for review by the AAT (2015/1202). In furtherance of the Master Plan 2014, the Other Party has or will submit a draft Major Development Plan entitled ‘Extension of runway 12/30 and taxiway system’ to the Respondent.

    The draft major development plan, mentioned above, will have both a direct and indirect effect on the subject matter airport property currently under review by the AAT.

    Section 94(6) of the Airports Act provides the Respondent with 50 days to act upon the submission of any draft major development plan. The current AAT matter is programmed for Hearing 11 July 2016 and a final decision is likely to be months away. This matter will not be settled prior to the expiration of the 50 days in which the draft major development plan may become a final development plan.

    The Applicant submits any consideration of plans interrelated to the Decision under review is improper at this time. The likely approval of a draft major development plan in furtherance of the Final Master Plan 2014 will result in another appeal to the AAT. Australian Securities and Investment Commission v Administrative Appeals Tribunal [2009] FACAFC 185; (2009) 181 FCR 130

    In the interest of justice and judicial economy any further applications, acts or approvals by either the Respondent or the Other Party pertaining to any development of subject matter airport property should be stayed.

    [Conferral has been attempted prior to this application.]

25. Both the Minister and the other party oppose the making of any stay order.  The Minister contends that the proposed order does not affect the operation or implementation of the decision under review and is not appropriate in any event to secure the effectiveness of the hearing.

26. Jandakot Airport Holdings, the other party, adopts those reasons for refusing the stay request and further contends that the entire review application is misconceived if its intended purpose is to prevent commercial development of Precincts 6 and 6A as such development was already contemplated in the Jandakot Airport Final Master Plan 2009 (“2009 final master plan”), which the 2014 final master plan is intended to replace; commercial development of Precincts 6 and 6A is consistent with both master plans; and the Administrative Appeals Tribunal (“Tribunal”) has no jurisdiction to review the 2009 final master plan on the current review application.

27. The review proceeding, in the Tribunal, has had a contested history.  As noted, it is now listed for hearing.  It may be expected that the hearing will be conducted on time and within time and that a decision will be provided by the Tribunal in a timely manner following the end of the hearing.  Those matters are mentioned because they are, as explained further below, relevant to the disposition of this stay request.

28. The review application focuses, in particular, on the potential development of Precincts 6 and 6A, to which the above submissions of the Minister and the other party already refer.  By the applicant’s second amended statement of issues filed in the review proceeding on 17 May 2016, at [18], it is said that the development of Precincts 6 and 6A will effectively prevent further aviation-related expansion to meet future expansion of non-airline air services in Western Australia, Jandakot being unique in servicing the private, non-airline and pilot training needs of the State and international operators.

29. Further, in [19], the applicant states that the currently planned warehouse development of Precincts 6 and 6A eliminates all prospects for the fourth cross-wind runway 12/30 previously planned in the Jandakot Airport Final Master Plan 1986, south of the present third runway, ever being an option for development.  It is stated that this will prevent private jets from using the airport under certain wind direction conditions.  The benefits of a fourth runway, south of the third runway, are then contended for.

30. The applicant, at [21], seeks to contest the location of a fourth runway, as it considers is proposed in the 2014 final master plan, to be built north of the present third runway, specifying congestion, limited runway length and class of aircraft usage issues, as well as stating that the proposed site does not allow for a suitable runway end safety area.

31. In short, the applicant fears that, unless a stay order is made in the terms requested, or along those lines, the draft major development plan presently advanced by the other party will be approved, and the object of the review proceeding, to effectively alter the terms of the 2014 final master plan approved by the Minister in that regard, made redundant.

32. A number of issues are, however, raised regarding the nature of controls under the Act concerning the draft major development plan and its relationship to an approved master plan, as well as practical issues about when any such development would likely take place, if approved, having regard to the current timing of the review proceeding and when a decision may be expected.

33. Above, reference has already been made to Div 3 of Pt 5 of the Act dealing with airport master plans. Division 4 deals with major development plans. Section 88 provides a simplified outline of Div 4 as follows:

    •A major development plan is required for each major development at an airport.

    •A major development plan is prepared by the airport‑lessee company taking into account public comments.

    •Sensitive developments are prohibited, except in exceptional circumstances.

34. Section 90 provides that a major airport development must not be carried out except in accordance with an approved major development plan. Section 91(1A) provides that the purpose of a major development plan in relation to an airport is to establish the details of a major airport development that:

    (a)relates to the airport; and

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

35. In that regard, unlike in some land use, planning and building control schemes provided for by State and Commonwealth statutes, an approved master plan does not itself directly control the details of a major development at an airport, but rather requires that the “purpose” of the major development plan is to establish the details of a development that “is consistent with” the airport lease and the final master plan.  The use of the expressions “purpose” and “consistent” raise obvious questions as to just how prescriptive and controlling a final master plan actually is, when it comes to the approval of a major development plan, and the decision-making flexibility the Minister has in approving a draft major development plan.

36. By s 94, the Minister must approve the major development plan given to him or her, or refuse to approve the plan. By s 94(3), in deciding whether to approve the plan, the Minister must have regard to a range of matters, although by s 94(4), they do not limit the matters to which the Minister may have regard.

37. It will be noticed that none of the specified matters to which the Minister must have regard is whether the major development plan “complies with”, for example, the master plan.  Rather, the mandatory factors to be regarded are as follows:

    (aa)the extent to which the plan achieves the purpose of a major development plan (see subsection 91(1A));

    (a)the extent to which carrying out the plan would meet the future needs of civil aviation users of the airport, and other users of the airport, for services and facilities relating to the airport;

    (b)the effect that carrying out the plan would be likely to have on the future operating capacity of the airport;

    (c)the impact that carrying out the plan would be likely to have on the environment;

    (d)the consultations undertaken in preparing the plan (including the outcome of the consultations);

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

    (f)if the plan relates to a sensitive development:

    (i)whether the exceptional circumstances that the airport‑lessee company claims will justify the development of the sensitive development at the airport; and

    (ii)the likely effect of the sensitive development on the future use of the airport site for aviation related purposes; and

    (iii)the likely effect of the sensitive development on the ground transport system at, and adjacent to, the airport.

1. However, s 94(5) makes it plain that if a final master plan is in force, the Minister must not approve the major development plan unless it is consistent with the final master plan.  The question of “consistency” becomes the relevant legal touchstone.

2. The result is that the relationship between the approval power in respect of a major development plan and the existence of a final master plan is of a subtle nature.  The content of the master plan plainly provides a broader, more strategic environment within which more detailed plans such as a major development plan are developed and approved.  Section 91, concerning the content of a major development plan has already been referred to.  The processes by which public comment and consultation then occur, under ss 92 and 93, enable full regard to be given to the desirability of a particular major development plan being advanced and approved.  The final requirement is that there be consistency.

3. In this case, the primary contention of the applicant is that, if it were to succeed in its review application and the currently approved 2014 final master plan were to be set aside, then the area the subject of the current major development plan should, in effect, be designated for a future runway, for the reasons that the applicant contends for.  If that were the inevitable outcome it may be very difficult to argue, on any view of the word “consistent”, that the current major development plan would be inconsistent with such a revised master plan. 

4. The Minister contends the proposed orders do not affect the operation or implementation of the decision under review and, in any event, are not appropriate to secure the effectiveness of the hearing, for s 41(2) purposes. As to the second line of argument, the Minister says there are five difficulties with the applicant’s argument that approval of the draft major development plan will directly or indirectly affect the review proceeding and the outcomes that it seeks. First, it says that under s 94(6), the Minister has 50 days to decide to approve or refuse to approve the draft major development plan and this period can be extended by up to 10 days. If the Minister is prevented from considering the draft major development plan then there would be a deemed approval under s 94(6). The Minister submits that the Tribunal cannot, by a stay, negate the clear statutory deemed approval provision. Therefore, any orders to that effect sought by the applicant are futile and do not secure the effectiveness of the review hearing.

5. Secondly, the Minister submits the applicant’s arguments proceed from the unproven premise that the construction process would be substantially progressed before the Tribunal’s decision on the review proceeding.  On the Minister’s calculations a 60 business day period presently would expire on 30 June 2016. 

6. Further, the Minister says that there are a substantial number of tasks that would need to be undertaken by the other party before work could begin.

7. Thirdly, the Minister submits the applicant appears to assume that the result of being successful in the review proceeding would be that its preferred development agenda for the airport would necessarily be adopted in any future master plan, which is not correct. If successful, the Minister submits the result would be that the 2009 final master plan would continue in force until replaced with a new master plan. The Minister says this is a proper interpretation of the effect of ss 77 and 78, referred to above. Any new draft master plan presented to the Minister would then be assessed according to the criteria set out in the Act. That process could produce one of any number of possible outcomes.

8. Fourthly, the Minister submits, there is nothing in the draft major development plan that would prevent the applicant’s preferred development agenda from being progressed if it ended up forming the basis of a future master plan for Jandakot airport.  That is because the draft major development plan does not propose any construction works in Precincts 6 and 6A. 

9. Fifthly, even if all those matters are not so, the Minister submits the applicant’s members will suffer no real prejudice because the commercial risk is possibly redundant construction works, likely to be borne by the other party.

10. As noted above, the other party adopts the Minister’s submissions and argues that, in any event, there is no “inconsistency” between the draft major development plan and the 2009 final master plan, which would continue to operate if the review proceeding were to result in the current 2014 final master plan being set aside. 

11. In my view, this is not a case where a stay order should be made.  There is no doubt, as explained above, that the Minister cannot approve a major development plan if it is inconsistent with a final master plan.  No doubt, if a final master plan clearly rejected development of a certain type in a certain precinct, or clearly provided for future runway planning in a designated area, inconsistency between a later major development plan and a final master plan might be demonstrated. 

12. In the present case, however, it is not entirely clear to the Tribunal that should the applicant succeed on the current review application, any such inconsistency would arise.  To that extent, as observed above, there is little doubt that a master plan has something of a strategic character.  The question of consistency between a major development plan and a final master plan, as noted, is a subtle concept.  It provides a Minister with a degree of what might be characterised as decision-making flexibility.

13. Presently it is not entirely clear whether the 2009 final master plan, if it were to govern the current situation, would disclose inconsistency. There are arguments in both directions. The point is that it is not obvious that there would be inconsistency. I accept in making that statement that, for present purposes, it would appear that if the current master plan were set aside on the review application, the 2009 final master plan would, under the Act, continue to apply.

14. I further consider that, in all the circumstances, it is unlikely that there will be any development pursuant to any approved major development plan in the immediate period ahead, up to and including the delivery of a decision on the current review application.  The Minister’s submissions in that regard are accepted.  To the extent that there is any risk in this regard, it is the risk of the other party.  Should it incur expense in pursuing the approval of the major development plan, it will bear the expense.  The question of risk to members of the applicant is much more diffuse and not presently persuasive.

15. In the circumstances, I do not consider it is appropriate that the stay requested should be granted, assuming that it is arguable that a stay might be ordered in terms that truly affect the operation or implementation of the decision under review.

16. In this regard, s 41(1) of the AAT Act provides that the making of an application to the Tribunal for a review of a decision does not affect the operation of the decision or prevent the taking of action to implement the decision. Assuming, but not ultimately needing to decide, that the orders sought by the applicant may, in an amended form, be characterised as orders staying or “otherwise affecting” the “operation” or implementation of the decision to which the review proceeding relates, the Tribunal does not consider it appropriate to make such orders for the purpose of “securing the effectiveness of the hearing and determination of the application for review”. That is for the reasons set out above. There is, in the event, an insufficient risk that the relief that the applicant seeks in the review proceeding – the setting aside of the 2014 final master plan – will be made redundant by virtue of the current making or progress of the major development plan of the other party under the Act. The stay order is not appropriate in the circumstances.

17. In these circumstances, the stay request is refused.

I certify that the preceding 54 (fifty-four) paragraphs are a true copy of the reasons for the decision herein of The Honourable Justice ML Barker, Deputy President

…(Sgd) Z Bush...…..

Associate

Dated 3 June 2016

Date(s) of hearing	31 May 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