KEITH AND NORMA MCLAUGHLIN and and AUSTRALIA PACIFIC AIRPORTS (MELBOURNE) PTY LTD - [2010] AATA 266

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 266
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/0054

GENERAL ADMINISTRATIVE DIVISION )

Re KEITH AND NORMA MCLAUGHLIN

Applicant

And

MINISTER FOR INFRASTRUCTURE, TRANSPORT, REGIONAL DEVELOPMENT & LOCAL GOVERNMENT

Respondent

And

AUSTRALIA PACIFIC AIRPORTS (MELBOURNE) PTY LTD

Joined party

DECISION

Tribunal Deputy President P E Hack SC
Date16 April 2010
PlaceBrisbane (heard in Melbourne)

Decision The matter is to be listed for further directions on a date to be fixed.
..............Signed.................
Deputy President

CATCHWORDS
AVIATION – airports and air services – airports – master plan amended as proposed satisfies requirements of Airports Act 1996 (Cth) – minor amendments proposed do not warrant refusing approval – matter be listed for further directions on a date to be fixed
POWERS AND FUNCTIONS – power of Tribunal limited by s 81(2) Airports Act 1996 (Cth) to approving plan or refusing to approve plan
Airports Act 1996 (Cth), ss 22(3), 70(2), 71(2), 71(5), 81(2), 81(3)
Airports Regulations 1997 (Cth), reg 5.02
Brisbane Airport Corporation v Wright [2002] FCA 359; (2002) 120 FCR 157
Queensland Investment Corporation v Minister for Transport and Regional Services [2004] AATA 1025; (2004) 84 ALD 717
REASONS FOR DECISION

16 April 2010 Deputy President P E Hack SC

Introduction

Melbourne Airport, at Tullamarine, is Victoria’s principal domestic and international air terminal. It is situated on land owned by the Commonwealth but operated by the joined party, Australia Pacific Airports (Melbourne) Pty Ltd (APAM), pursuant to a lease from the Commonwealth. By virtue of the Airports Act 1996 (Cth) APAM is obliged to regularly propound an airport master plan and to have the plan approved by the respondent, the Minister for Infrastructure, Transport, Regional Development and Local Government. In 2008 APAM prepared a draft master plan for Melbourne Airport and submitted it to the Minister. The Minister approved the draft master plan on 8 December 2008. By virtue of that approval, and by operation of the Airports Act, the plan became a “final master plan”.
The applicants, Mr Keith McLaughlin and Mrs Norma McLaughlin, are the registered proprietors of land that adjoins part of the airport’s eastern land boundary. They would like to use that land to operate a car park to compete with the existing car parks at the airport. They contend in these proceedings that the master plan fails to recognise the presence of their land and its potential as a car park. For these reasons they say that the master plan is flawed because it does not satisfy the statutory criteria. The Minister erred, they say, in approving the plan put forward by APAM.
APAM and the Minister accept some of the criticism advanced by Mr and Mrs McLaughlin and acknowledge that some amendments, minor in nature, ought to be made to the plan so that it satisfies the requirements of the statute. But APAM and the Minister contend that the amendments that Mr and Mrs McLaughlin propose to the plan are not warranted. That is so, it is said, for two reasons. First, because Mr and Mrs McLaughlin claim interests in land to which they are not entitled. And it is said that even if, contrary to the case for the Minister and APAM, Mr and Mrs McLaughlin have the interests that they claim, the statute does not require the master plan to recognise those interests in the way that Mr and Mrs McLaughlin say.
Some uncontroversial background
I note, at the outset, that there are proceedings on foot in the Supreme Court of Victoria in which Mr and Mrs McLaughlin assert various interests in land that were touched upon in the course of the hearing in the Tribunal. Those interests are controversial and the controversies will necessarily be resolved in the Court. But it is necessary for me to record some uncontroversial matters by way of background in order to understand the case put forward by Mr Wilson, who assisted Mr and Mrs McLaughlin to present their case.
I should also note the somewhat unusual way in which the hearing was conducted with the agreement of the parties. On the morning of the hearing an inspection was undertaken of the land in question. When the hearing resumed the evidence comprised Mr Wilson, with the assistance of Mr McLaughlin, explaining the history of land dealings by reference to correspondence and other documents obtained. On occasions, counsel for the Minister, Dr Donaghue, or counsel for APAM, Mr Finanzio, or both, indicated that a particular matter asserted by Mr Wilson or Mr McLaughlin was in issue or was not common ground. The commentary that follows is taken from the documents that formed part of the evidence.
The Commonwealth appears to have commenced planning the airport at Tullamarine in the late 1950’s. At that time the land which is now owned by Mr and Mrs McLaughlin was owned by Mrs Wilhelmena Smith. She owned some 405 acres. Her land enjoyed road access to what was then called Bulla Road which traversed the whole of the south-western boundary of the land. In 1957 Mrs Smith and her husband granted a licence to Bayview Quarries Pty Ltd to undertake quarrying on the land for a term of 99 years. That licence obliged Bayview Quarries to construct a bitumen road between the area where quarrying was permitted to Bulla Road.
In 1960 the Commonwealth commenced dealing with Mrs Smith, and solicitors acting for her, with a view to acquiring a large portion of her land for the purposes of the proposed airport. Those dealings culminated in a purchase by the Commonwealth from Mrs Smith of approximately 286 acres of land on the northern and western sides of Mrs Smith’s land. Importantly for present purposes, the Commonwealth acquired all of the land on Bulla Road. That conveyance was completed on 30 September 1960. It needs to be emphasised that it was a sale and purchase of land, not an exercise of the Commonwealth’s powers to compulsorily acquire land. There was a subsequent agreement dated 19 October 1960 made between Mrs Smith and Mr Smith, and the Commonwealth. That agreement recited the fact of the license to Bayview Quarries and the fact of the Commonwealth’s purchase of 286 acres of Mrs Smith’s land (described as “the residual land”) and, so far as is presently relevant, contained a covenant on the part of the Commonwealth to,
“do such acts deeds and things and act generally in relation to the residual land as will be necessary to enable [Bayview Quarries] fully to enjoy the rights created in favour of [Bayview Quarries] under the [licence]”.
Work on the airport and access to it was undertaken through the 1960’s. That work included the construction of what is known as the Tullamarine Freeway over part of the land acquired by the Commonwealth from Mrs Smith. The effect of that construction was that it was no longer possible to access Bulla Road from Mrs Smith’s remaining land. During this period there was correspondence between Commonwealth officers and solicitors acting for Mrs Smith about the grant of an easement to Mrs Smith to prevent her land from becoming landlocked. It would appear that in December 1963 the Commonwealth Department of the Interior proposed the grant of an easement over the land of the Commonwealth to enable Mrs Smith access in a south-easterly direction to Victoria Street. The solicitors rejected that proposal as being “unacceptable” and advised that Mrs Smith required “a direct outlet in a south easterly and north westerly direction” with a road constructed sufficient to carry a minimum of 3,000 tons of material daily. The material before me does not make clear what occurred in response to that correspondence however it is not suggested that any documented agreement resulted from, or followed, this exchange of correspondence.
Melbourne Airport opened for international operations in 1970 and for domestic operations in the following year.
In August 1970 Mrs Smith advised the Commonwealth in writing[1] of her willingness to sell to the Commonwealth a small portion of her land “sufficient to allow a 50’ wide roadway to extend to the common boundary with the Commonwealth’s land.” There is an inference available that that sale was necessary to align a road that had already been constructed to provide access to Victoria Street to the south[2].
[1] See the letter of 7 August 1970 in Exhibit 16.
[2] See the letter of 27 October 1970 from the Department of Civil Aviation to the Department of the Treasury in Exhibit 6.
It would seem that Bayview Quarries had up to this time been accessing the public road network to the north by traversing part of the Commonwealth’s land to obtain access to the northbound Tullamarine Freeway. That position was regularised by a deed dated 7 September 1970[3] between the Commonwealth for one part and Bayview Quarries and Albion Reid Pty Ltd (the quarry operator) for the other part. The deed recited that the Commonwealth was “the owner of certain land adjacent to the quarry across which there run access roads leading from the quarry to public carriageways”. The access road shown on the plan attached ran from the western boundary of what was then Mrs Smith’s land (but which was the subject of the licence to Bayview Quarries) in an arc to the north across the Commonwealth land and met the public carriageway at the underpass to the freeway. By that deed Bayview Quarries and Albion Reid acknowledged that they had no right to use that access road except by the licence of the Commonwealth which licence was granted by the deed.
[3] Part of Exhibit 23.
Access to the south was dealt with by deed dated 4 March 1971 by which the Commonwealth, in consideration of the transfer by Mrs Smith to it of three parcels of land totalling 57.9 perches, granted to Mrs Smith an access easement over a strip of land extending along the eastern boundary of the airport to Victoria Street. The grant of easement was in these terms,
“[the Commonwealth] DOTH HEREBY TRANSFER AND GRANT unto WILHEMENA SMITH and her transferees in fee simple or other the registered proprietor or proprietors for the time being of ALL THAT piece of land now comprised in Certificate of Title Volume 7736 Folio 181 or any part thereof and as appurtenant thereto full and free right and liberty to and for her and them and her and their servants agents workmen visitors and others to go pass and re-pass at all times hereafter and for all purposes and either with or without horses or other animals carts or other carriages into and out of and from the said land or any part thereof over and along ALL THAT piece of land delineated [on the map attached] and being part of Crown Section 15 Parish of Tullamarine.”
The grant of easement made no reference to the obligation to maintain the road that had, by then, been constructed on the area of the easement.
Between 1982 and 1987 Mr and Mrs McLaughlin managed Mrs Smith’s land. They eventually purchased the land in 1987. They take some comfort from the facts that the land is variously described as being located “off Sunbury Road”.
At some point, not clear from the material, access to the north from Mrs Smith’s (or the McLaughlins’) land ceased and is now prevented by a chain wire fence. The made bitumen road is now in a state of disrepair as is that providing access to Victoria Street.
In July 1997 the Commonwealth granted a 50 year lease over the airport to APAM.
In September 2003 APAM propounded a draft master plan for Melbourne Airport which was subsequently approved by the Minister. In September 2008 APAM delivered to the Minister the 2008 draft master plan. It was approved by the Minister on 8 December 2008.
These proceedings were commenced on 6 January 2009. At the outset the Minister and APAM put in issue the standing of Mr and Mrs McLaughlin. That question was determined in their favour by a decision of the Tribunal, constituted by the President, Downes J. and Deputy President McDonald, in July 2009[4].
[4] See [2009] AATA 562; (2009) 50 AAR 160.
The legislation
Part 5 of the Airports Act deals with land use, planning and building controls for airports, and does so by requiring that each airport have an airport master plan, that significant developments be the subject of a major development plan, that all building activity on airport sites be approved and be certified as complying with a regulatory framework. By virtue of s 70 of the Airports Act each airport must have a master plan. The airport-lessee is required to prepare a “draft master plan” which must be advertised for public comment and be submitted to the Minister with any comments made and how those comments are addressed in the master plan. A draft master plan, once approved by the Minister, becomes a “final master plan”. The master plan has a “planning period” of 20 years[5] but remains in force only for five years (or until a fresh plan comes into force).
[5] See s 72, Airports Act.
The purposes of a final master plan are set out in s 70(2) of the Airports Act in these terms:
“(2)The purposes of a final master plan for an airport are:
(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.”
.
Melbourne airport is “an airport other than a joint-user airport”. Sub-section 71(2) specifies the contents of a draft or final master plan for such an airport as follows:
“(2)In the case of an airport other than a joint‑user airport, a draft or final master plan must specify:
(a)the airport‑lessee company’s development objectives for the airport; and
(b)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; and
(c)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; and
(d)an Australian Noise Exposure Forecast (in accordance with regulations, if any, made for the purpose of this paragraph) for the areas surrounding the airport; and
(da)flight paths (in accordance with regulations, if any, made for the purpose of this paragraph) at the airport; and
(e)the airport‑lessee company’s plans, developed following consultations with the airlines that use the airport and local government bodies in the vicinity of the airport, for managing aircraft noise intrusion in areas forecast to be subject to exposure above the significant ANEF levels; and
(f)the airport‑lessee company’s assessment of environmental issues that might reasonably be expected to be associated with the implementation of the plan; and
(g)the airport‑lessee company’s plans for dealing with the environmental issues mentioned in paragraph (f) (including plans for ameliorating or preventing environmental impacts); and
(h)if a draft environment strategy for the airport has been approved—the date of that approval; and
(j)such other matters (if any) as are specified in the regulations.
Paragraphs (a) to (h) do not, by implication, limit paragraph (j).”
Sub-section 71(5) authorises the regulations to provide that, “in specifying a particular objective, assessment, proposal, forecast or other matter covered by subsection (2) or (3), a draft or final master plan must address such things as are specified in the regulations.”
The Airports Regulations 1997 (Cth) do specify matters and do so, so far as is presently relevant, in these terms:
“5.02Contents of draft or final master plan
(1)…
(2)For section 71 of the Act, an airport master plan must, in relation to the landside part of the airport, where possible, describe proposals for land use and related planning, zoning or development in an amount of detail equivalent to that required by, and using terminology (including definitions) consistent with that applying in, land use planning, zoning and development legislation in force in the State or Territory in which the airport is located.
(3)For subsection 71 (5) of the Act, a draft or final master plan must:
(a)address any obligation that has passed to the relevant airport‑lessee company under subsection 22 (2) of the Act or subsection 26 (2) of the Transitional Act; and
(b)address any interest to which the relevant airport lease is subject under subsection 22 (3) of the Act, or subsection 26 (3) of the Transitional Act.”
Once an airport-lessee company gives a draft master plan to the Minister the Minister must, by virtue of s 81(2),
“(a)approve the plan; or
(b)refuse to approve the plan.”
The matters to which the Minister must have regard in deciding whether to approve the plan are set out in a non-limiting manner in s 81(3) of the Airports Act in this way:
“(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.”
The arguments of the parties
In accordance with a direction made by the Tribunal the parties have, in effect, joined issue by identifying the changes that the McLaughlins say ought to be made[6], and the changes that APAM accepts may be made[7], to the plan. It is as well to start with the “interests” that the McLaughlins claim in the land that is the subject of the master plan. The claims are recorded in these terms[8],
[6]    Set out in Exhibit 14.
[7]    Set out in Exhibit 3.
[8]    Exhibit 13. The arguments in support have been omitted, the emphasis is in the original..
“1)We claim existing Airports Act Section 22(3) interests in the Melbourne airport land, including:
a)The right to enjoy fully-maintained, two-way, heavy-duty sealed bitumen service road access, connecting to the access road located on our land:
·in a south easterly direction to Western Avenue; and
·in a north westerly direction to the airport/Sunbury Road freeway entrance;
both being the Commonwealth’s duty and/or assumed responsibility to provide on an ongoing basis.
…
b) By reason of the above we also claim an interest in Sunbury Road and Centre Road as the north westerly replacement route for Bulla Road.
c) We also claim an easement of carriageway over the airport land D991658 granted by the Commonwealth in exchange for additional land acquired by the Commonwealth from Mrs. Smith in 1971 should also be acknowledged.
d) Victorian Caveat V981182R, being notice of the Quarry Road dispute not part of these proceedings before the AAT.
2) As airport neighbours and those dependent on the airport site’s own access, we also claim interests in the Minister’s decision based on the master plan’s function of:
i)ensuring that uses of the airport site are compatible with the areas surrounding the airport (ss 70(1)(d), 81(2)(aa), 81(3)(b)(ii)) and/or
ii)for the mater plan to provide for the development of additional uses of the airport site [s] 71(b)(3).
to promote the sound development of civil aviation in Australian (s 3(a)). In this regard, our land is about 350 meters away from the terminal building.”
In a postscript to the document Mr McLaughlin contends that,
“the Minister must not approve any master plan which shows no airport and Sunbury Road access to and from our land at all, nor a plan which fails to acknowledge the responsibility to provide fully maintained heavy-duty bitumen road access to our land.”

The McLaughlins have propounded, in exhibit 14, the precise amendments that they contend ought to be made to the master plan.
For its part APAM has produced amendments to the master plan that it says will address any interest to which the lease is subject under s 22(3) of the Airports Act thereby addressing the defect identified in the earlier Tribunal decision[9]. It does so by identifying, and acknowledging, the easement in favour of the McLaughlins’ land and by acknowledging, but rejecting, the claimed right of way.
[9] [2009] AATA 562 at [8].
Is the master plan deficient?
It is accepted that the south easterly easement in favour of the McLaughlins’ land is an interest to which APAM’s lease is subject. Notwithstanding very considerable doubts, I propose to assume, rather than decide, that the McLaughlins’ land has, or is capable of obtaining by action, the benefit of a further access easement in a north westerly direction over an area of the Commonwealth’s land, serviced by a road to the standard that the McLaughlins’ claim. I do so because, even on that assumption, the McLaughlins’ case fails.
At the outset I should say that there are two aspects of the statutory scheme that need separate consideration. First, Reg 5.02(3)(b) requires the master plan to address any existing interest to which the lease is subject. That is a narrow obligation which can be satisfied by acknowledging the interest and exposing any plans that might potentially affect that interest. The broader obligation is to address what Dowsett J aptly described in Brisbane Airport Corporation v Wright[10] as the “business plan”, in essence, the matters comprehended by s 71(2)(a) to (h) of the Airports Act.
[10] [2002] FCA 359; (2002) 120 FCR 157
The case for the McLaughlins on the first of these aspects is that the master plan should acknowledge both the actual and claimed interest in the land as well as the obligation to provide a surfaced road. The amendments proposed by APAM to the master plan deal with this aspect of the matter in an entirely appropriate way. In my judgment nothing further is required. In particular, the master plan is not required by Reg 5.02(3)(b) to address the claim for a surfaced road because that is not now, and cannot be on the McLaughlins case, an interest in the lease. The case articulated in the Supreme Court is not easy to comprehend however it is plain that it does not make a claim that there exists an obligation to provide a surfaced road that touches and concerns the land such as would amount to an interest in the land. At its highest, the claim is for specific performance of a contractual obligation not, for example, a claim for rectification of an agreement concerning an interest in land.
Additionally, the Regulation requires that the master plan address any interest to which the lease is subject by virtue of s 22(3) of the Airports Act. That sub-section refers to “existing interests”. Whatever may be said of the McLaughlins’ claim regarding a surfaced road, it was not an interest which existed at the time of grant of the lease.
The McLaughlins’ case on the other aspect of the matter, the broader obligation to address the matters comprehended by s 71(2)(a) to (h) of the Airports Act, fails as well. It does so, in my view, because it misunderstands the tasks that a master plan is required to perform in at least two respects.
First, the argument treats the master plan as a detailed blueprint for immediate development rather than as a document to establish the “strategic direction … at the airport” over the following 20 years. Moreover, it is a master plan for the airport site and the operator’s plans for that site. It is not a document that is required to address the aspirations of adjoining owners. Dowsett J touched upon these matter in Brisbane Airport Corporation v Wright[11] where his Honour said:
“The ‘objects’ of that Act as set out in s 3, focus on the provision of airport services. Section 3(b) refers to the interests of the ‘general community’ but that seems to refer to collective, rather than individual interests. This is of some importance, given that the Airports Act assumes the continuing commercial operation by lessees of airports at existing locations. Inevitably, some, perhaps many people will be affected by the existing operation. They, and others, may be affected, favourably or otherwise, by any change in the mode of operation. In some cases, the effects of any change will be minor; in others, those effects will be extreme. It is of the nature of a major airport operation that it is likely to affect many people in varying degrees. A master plan is part of a business plan for an existing airport. It is not a town planning document.” [emphasis added]
[11] [2002] FCA 359; (2002) 120 FCR 157 at [28].
The flaw in the argument for the McLaughlins appears most clearly in the passage from post-hearing submissions dated 26 March 2010 where it is contended that the master plan “must not hinder but encourage the creation of near-terminal facilities on our competing land.” That, in my view, misunderstands the purpose of a master plan.
Let it be assumed that the McLaughlins’ land was an ideal location for a car park to service the airport and that it had access to the airport site in the manner argued by Mr Wilson. That would not, without more, require the master plan to acknowledge that possibility because the presence of the adjoining land and its potential uses says nothing about the strategic direction of the airport site or about the development of additional or intended uses of the airport site. The purpose of ensuring that uses of the airport site are compatible with the areas surrounding the airport does not require the airport user to adapt its “business plan” because an adjoining user contends that a proposed use of adjoining land is, or would be, compatible with the overall use of the airport site. There is no present or even potential incompatibility between the airport uses and the uses the McLaughlins propose for their land; indeed the essence of the McLaughlins’ case is that the uses are compatible. But that does not mean that the master plan is required to acknowledge the apparent commercial interest that the McLaughlins may have in developing their land in a particular manner.
Were it ever to be the case that APAM concluded that it would be desirable to enter into some type of commercial arrangement with the McLaughlins to utilise their land for additional car parking, it would then be the case that the master plan would be required to detail those plans, as part of an “assessment of the future needs” of users or as an intention “for land use and related development”. But that obligation would only arise once APAM had made its own commercial judgment on the subject. APAM, and not its neighbours, must make commercial judgments about airport uses and strategic planning.
Some reliance is placed on the decision in Queensland Investment Corporation v Minister for Transport and Regional Services[12]. In that case the proposed master plan for Essendon airport contemplated the development of airport land for commercial, industrial and business use. The applicant owned a shopping centre approximately 10 km from the airport. The Tribunal decided no more than that the applicant had standing because one of the matters that the Minister was required to have regard was the manner in which the draft master plan might affect the use of land in areas surrounding the airport. But the master plan here does not affect the use that the McLaughlins may make of their land.
[12] [2004] AATA 1025; (2004) 84 ALD 717.
The McLaughlins press the argument that the master plan, with the amendments proposed to it by APAM, could “mislead persons relying on it”. I do not accept that that could be so. Any reading of the master plan must be informed by the statutory purposes of the plan and knowledge of the level of detail required by the statute. I do not consider that the reasonable reader, properly informed, could be
misled in the way suggested.
In the result, I do not regard the legislative purposes of the master plan or the required contents as obliging the master plan to do anything beyond acknowledging the undoubted interest created by the easement.
For completeness I should address exhibit 14 in which the McLaughlins specify the precise amendments that they sought ought to be made to the master plan. The majority of those matters are, as Dr Donaghue submits, matters of drafting style. It is for APAM to propound the master plan and, where necessary, amendments proposed to it. As I explain subsequently, I am satisfied that the substance of the amendments proposed meet the statutory criteria. I see no reason to suggest changes in style or emphasis. Paragraph 3 of exhibit 14 suggests that the diagrams in the master plan ought to be amended to show details of the claimed access roads. The areas are not part of the present or anticipated surface access to the airport. They are not part of any development proposed for the airport. I can see no basis for including them even on the assumption I have made in favour of the McLaughlins’ case.
Paragraphs 7, 9 and 10 all relate to the claimed access roads and the further assertion that there exists an obligation, presumably upon the Commonwealth, to construct a heavy duty bitumen carriageway to both the south east and the north west. As I have sought to explain, the master plan is not a town planning document. Its task is to explain the plans that its operator has for the site for the following 20 years. It is not required to demonstrate the uses that adjoining owners may make of other land.
Paragraph 13 proposes adding a “development objective” of promoting “efficient and economic development at the airport through healthy competition with the areas surrounding the airport”. Even if the assumed premise were to be made out the objectives identified in the master plan are those of APAM and it is for APAM to identify its own objectives.
I turn then to the amendments proposed to the master plan by APAM. It acknowledges the need to “address” the interest in the airport land constituted by the easement over the land in favour of the McLaughlins’ land. It does so in a manner that acknowledges the existence of the easement and comments, correctly as it seems to me, that the master plan does not affect such rights as are enjoyed under the easement or restrict such rights and obligations to maintain or upgrade existing roads as may exist as a consequence of the easement. As well, the amendments acknowledge the existence of the assertion of right of way claimed in the caveat lodged by the McLaughlins. The proposed amendment records that the Commonwealth and APAM acknowledge that the rights are claimed but note that, in any event, nothing in the master plan would affect such right as might exist.
In my view, the amendments proposed are adequate to remedy the accepted omission from the master plan. I do not consider that any further acknowledgment of the McLaughlins’ claim is warranted. I am satisfied that the master plan, amended as proposed, satisfies the requirements of the Airports Act. Were it within power to do so, that conclusion would warrant a decision varying the master plan however the power of the Minister, and hence of the Tribunal, is limited by s 81(2) of the Airports Act to approving the plan or refusing to approve the plan. The Minister and APAM submitted that if I were to reach that conclusion I ought not refuse to approve the plan, rather, it was submitted, the reasons for decision ought be published and the matter adjourned to enable APAM to propose, and the Minister to consider, the proposed amendments as “minor variations”. It is suggested that if the Minister gives that approval the matter can be re-considered once those amendments have been made in anticipation that the decision will then be affirmed, consistent with the conclusions already reached.
Subject to the formulation of an appropriate mechanism for doing so It seems to me that that is a proper course to follow, noting, of course, that I could not bind the Tribunal, whether as presently constituted or otherwise, to affirm in advance of any further hearing that was sought or required, a decision not yet made in final form. To proceed in that way, whilst unusual, is consistent with the Tribunal’s statutory objectives. The amendments proposed are quite minor. They certainly do not warrant refusing approval which would simply result in the unnecessary expenditure of private and public funds in undertaking the processes of drafting and propounding a new master plan. The McLaughlins, the only persons who contend that the master plan is deficient, do not suggest that refusal of approval of the master plan is called for; they merely suggest amendments to it that go further than I consider to be warranted.
Given the terms of s 26 of the Administrative Appeals Tribunal Act 1975 (Cth) it may be preferable to use the power in s 42D of that Act to achieve the desired purpose however I propose to simply publish these reasons and allow the parties to consider, and propose, an appropriate form of decision or direction and a time frame for further steps. I will then simply direct that the matter be listed for a directions hearing on a date to be determined in consultation with the parties.
For completeness I would add that leave was given at the hearing for the McLaughlins to lodge additional submissions limited to a particular topic. The written submissions subsequently lodged went well beyond that topic. I have, nonetheless, had regard to the entirety of the submissions because the complaint appeared to be made that the McLaughlins had not had sufficient time during the course of the three days of the hearing to properly articulate their case.
I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC
Signed: ..........Signed....................................................
  Associate
Dates of Hearing  17, 18 & 19 March 2010
Date of Decision  16 April 2010
Date of last submissions          29 March 2010
For the applicant  Mr E Wilson
Counsel for the respondent      Dr SP Donaghue
Solicitor for the Respondent     Australian Government Solicitor
Counsel for the joined party     Mr AJ Finanzio
Solicitors for the joined party    Corrs Chambers Westgarth

GENERAL ADMINISTRATIVE DIVISION		)
Re		KEITH AND NORMA MCLAUGHLIN