Marrickville Council v Minister for the Environment, Sport and Territories
[1996] FCA 851
•25 SEPTEMBER 1996
CATCHWORDS
ADMINISTRATIVE LAW - application sought review of a decision that no Environment Impact Statement or Public Environment Report was required - “decision” - consideration of what is a “proposed action”.
ADMINISTRATIVE LAW - extension of time - when was the applicant “furnished” with the Minister’s decision - delay - discretionary nature of orders for relief discussed
ADMINISTRATIVE LAW - standing - whether a Council was a “person aggrieved” for purposes of s 5 Administrative Decisions (Judicial Review) Act
WORDS and PHRASES - “person aggrieved”
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 11, 16
Environmental Protection (Impact of Proposals) Act 1974 ss 5(1), 3, 6(1), 5, 5(2)
Administrative Procedures - paragraphs 1.1, 3.1.1, 3.1.2, 1.2.1, 1.2.3, 3.1.4, 3.1.3
Guthega Development Pty Ltd v Minister Administering the National Parks and Wildlife Act (NSW) 1974 (1986) 7 NSWLR 353 Foll
Australian Broadcasting Tribunal v Bond (1991) 170 CLR 321 Foll
Botany Bay City Council v Minister for Transport and Regional Development (1961) 137 ALR 281 Foll
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Refd
Attorney-General (NSW) v Quinn (1990) 170 CLR 1 Refd
BTR Plc v Westinghouse Brake & Signal Co (Australia) Ltd(1992) 106 ALR 35 Refd
Tasmanian Conservation Trust Inc v Minister for Resources & Anor (1996) 135 ALR 338 Refd
Australian Foreman Stevedores Association v Crone (1988) 20 FCR 377 Appl
Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 43 FCR 100 Refd
Onus v Alcoa of Australia Limited (1981) 149 CLR 27 Foll
Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 128 ALR 238 Refd
Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493 Refd
Marrickville Council v Minister for the Environment Sport and Territories
No NG 675 of 1995
Kiefel J Brisbane 25 September 1996
(Heard in Sydney)
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
No NG675 of 1995
BETWEEN:
MARRICKVILLE COUNCIL
Applicant
AND:
MINISTER FOR THE ENVIRONMENT SPORT AND TERRITORIES
Respondent
JUDGE MAKING ORDER: Kiefel J
DATE OF ORDER: 25 September 1996
WHERE MADE: Brisbane (Heard in Sydney)
MINUTES OF ORDERS
THE COURT ORDERS THAT:
The Application filed on 30 August 1995 be dismissed.
The applicant pay the respondent’s costs of the application to be taxed.
Note:Settlement and Entry of Orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
No NG675 of 1995
BETWEEN:
MARRICKVILLE COUNCIL
Applicant
AND:
MINISTER FOR THE ENVIRONMENT SPORT AND TERRITORIES
Respondent
CORAM:Kiefel J
DATE:25 September 1996
PLACE:Brisbane (Heard in Sydney)
REASONS FOR JUDGMENT
The Marrickville Council seeks review, under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (“AD(JR) Act”), of the decision of the Minister for the Environment, Sport and Territories made on 3 May 1994, that no Environmental Impact Statement (“EIS”) or Public Environment Report (“PER”) was required in relation to the Draft Planning Strategy (“the Strategy”) for Sydney Airport. The decision was one which was required by the Environment Protection (Impact of Proposals) Act 1974 (“EPIP Act”) and the Administrative Procedures thereunder. An application for relief under s 39B Judiciary Act is no longer pursued.
Background to Decision
The Strategy, for the further development of the Sydney Airport to allow for a forecast increase in its use through to the year 2010, was undertaken at about the same time as the assessment of the proposal for what came to be known as the “third
runway”. To say that controversy surrounded the proposal of developing that additional, and parallel, north-south runway would be an understatement. In early 1990 the Commonwealth Minister required an EIS with respect to the runway. The Federal Airports Corporation (the “FAC”) was designated proponent of that project under the EPIP Act and its Administrative Procedures. In September of that year a draft EIS was released for public comment and in October 1991 a Supplement, which took into account submissions received, was published. The following month Cabinet approved the construction of the third runway and construction was commenced in November 1992. It was in operation by late 1994.
Although the FAC had released the Draft Planning Strategy for Sydney Airport in July 1990, it was not until December 1993 that the Supplement to it was released. It may be inferred that no step in this direction was taken in this period because of the need for a decision as to the third runway, which was essential to the preferred airport configuration in the Strategy. In February 1994 the FAC designated itself proponent of the Supplement and, it would follow, of the Strategy. I shall, except where separate reference is required, refer to both documents as “the Strategy”. On 17 December 1993 the FAC had written to the departmental officer who appears to have had responsibility for the matter, attaching a copy of the Strategy Supplement and seeking a response as to the appropriate level of environmental review which should be undertaken. The matter eventually came to the Minister for a determination as to whether an assessment was necessary. It is not necessary to differentiate between an EIS or PER on this application.
The letter of December 1993 identified four main differences between the original Strategy and the Supplement to which I shall later refer. It also advised that a comparative evaluation between the components of the Strategy and Supplement and those dealt with in the EIS for the third runway and its Supplement, was being prepared and would be forwarded when completed. Such a document, by the consultants to the FAC, was prepared in January 1994. It is unclear whether it, or a draft of it, was before the Minister when the determination was made in May. The list and grouping of the material received by the Council after request under the Freedom of Information Act 1982 suggests not.
Application to the Court by the Council was not made until August 1995, shortly after the Council had received a copy of the Minister’s determination following the request I have referred to. In fact it had, much earlier and in about June 1994, received in its office a copy of the Minister’s letter to the FAC in its capacity as a member of the Airport Environment Sub-Committee, but I accept that this was overlooked. If the letter containing the decision is taken to have been furnished in June 1994, within the meaning of s 11 AD(JR) Act, the applicant seeks an extension of time for the bringing of this application. Delay is, in any event, an issue.
The Decision
The Minute from the departmental officer which was adopted by the Minister as his determination recited, as background, the fact that the FAC had constructed “a form of master plan, a long term strategic planning document, that guides the long term development of the airport to cater for projected growth in traffic”. So far as appears relevant it continued:
“3. The Sydney Airport Planning Strategy is the long range planning strategy for Kingsford Smith Airport, from 1988 up to the year 2010 and addresses an anticipated doubling of passenger traffic by the end of the period .... The Strategy is a framework for future development on which proposals may be based, but does not constitute a firm development proposal in itself. Existing and planned facilities include passenger terminals, cargo and maintenance facilities, road and rail access, fuel store and distribution, and commercial office and retail developments.
....
5. Assessment under the Commonwealth Environment Protection (Impact of Proposals) Act 1974 is usually conducted in relation to firm project proposals, for which the proponent is able to provide clear details in an environmental impact statement or similar document. An appropriate level of detail is important to enable potential impacts to be assessed and for mitigating measures to be recommended and incorporated into project design.
6. Under the impression that an environmental assessment would be conducted on the Planning Strategy, the FAC designated itself as proponent for the proposal on 18 February 1994... .
7. However, because the Sydney Airport Planning Strategy is a long term planning document, it does not contain an appropriate level of detail to enable a meaningful environmental assessment to be conducted. Elements of the Strategy are also subject to change in response to circumstances arising during the life of the Strategy. Therefore the Planning Strategy is not a suitable document on which to base an environmental assessment of the developments contemplated in the Strategy.
8. Although the Strategic Plan is not suitable for assessment, several elements within the Plan have the potential for significant environmental impacts if they were to be developed. The FAC has agreed to refer any environmentally significant element of the Strategy for assessment when their development becomes a firm proposal.
9. The Environmental Impact Study for the Third Runway proposal was prepared concurrently with the preparation of the Planning Strategy and was dealt with separately to the Strategy.”
The Minister then advised the FAC by letter the same day:
“.. I am advised that the proposal is not subject to environmental impact assessment under the requirements of the Commonwealth’s Environment
Protection (Impact of Proposals) Act 1974 (the Act) because the level of detail available in a strategic planning document is insufficient to enable a considered assessment of potential environmental impacts. Therefore I have determined, in accordance with paragraph 3.1.1(b) of the Administrative Procedures under the Act, that neither an environmental impact statement nor a public environment report is required for the purpose of achieving the object of the Act.
My advice should not be construed as an endorsement of the contents of the Draft Sydney Airport Planning Strategy. I would also expect that specific elements of the Plan that have the potential to cause environmentally significant impacts will be referred under the Act if a decision is to proceed with their development.”
The EPIP Act and Administrative Procedures
By s 5(1), the object of the Act is stated to be:
“¼ to ensure, to the greatest extent that is practicable, that matters affecting the environment to a significant extent are fully examined and taken into account in and in relation to:
(a) the formulation of proposals;
(b) the carrying out of works and other projects;
(c)the negotiation, operation and enforcement of agreements and arrangements ¼
(d)the making of, or the participation in the making of, decisions and recommendations; and
(e) the incurring of expenditure
by, or on behalf of, the Australian Government and authorities of Australia, either alone or in association with any other government, authority, body or person.”
The “environment” is widely defined (see s 3). Section 8 then charges the relevant Minister with the duty of ensuring that Procedures to be followed under the Act are given effect to and that any report, which results from those Procedures, is taken into account in relation to the matters to which they relate.
Administrative Procedures have been ordered under s 6(1) of the Act. Whilst the Procedures were amended in 1995 it is not disputed that those which relate to this application are those dated 29 May 1987.
The FAC was an “authority of Australia” within the meaning of the Act. Pursuant to paragraphs 1.2.1 and 1.2.3 of the Procedures, where such an authority is itself responsible for a “proposed action”, it is to be the designated proponent of that action with the obligation of ensuring that the Department or the Minister is fully informed. A “proposed action” is defined (paragraph 1.1) by reference to the matters set out in s 5. It was submitted for the Minister that the Strategy and Supplement amounted to a proposal.
The proponent is required by the Procedures to supply to the decision-maker, who may be the Minister or the Department, information required or necessary to a consideration whether some environmental assessment ought be undertaken. Here the Department did not itself determine the question, as it may do (paragraph 3.1.1). Instead it referred the question:
“¼whether the preparation or obtaining, and submission to the Minister of an environmental impact statement or a public environment report in relation to the proposed action is required for the purpose of achieving the object of the Act ¼.”
to the Minister, who then became obliged to “forthwith determine the question” and “make a direction accordingly”. (paragraph 3.1.1(b)).
In addition to bearing in mind the object of the Act, stated in s 5, the Administrative Procedures require the Minister to address the question of the potential effects of what is to be undertaken. Paragraph 3.1.2 commences:
“Subject to the Act, the Minister, or the Department on behalf of the
Minister, shall, in making a determination under paragraph 3.1.1 take into account - ”
(a)whether, and to what extent, the proposed action may result in -”
and then lists twelve matters relating to the environment, some stated generally such as “a substantial environmental effect on a community” “important long-term effects on the environment” and others more specifically such as, “the pollution of the environment”, “the endangering, or further endangering, of any species of fauna or flora” “environmental problems associated with the disposal of waste”.
It remains to mention, as relevant to the issue as to the extent of detail or certainty that is required of what is proposed, and the ambit of the Minister’s discretion, that the Procedures later list the matters to be dealt with in an EIS or PER. They include examinations of alternatives, safeguards which may be undertaken or monitoring which might be implemented. And the Minister may, in the event that it is determined not to require an assessment, nevertheless make suggestions and recommendations concerning conditions to which the proposed action should be subject (paragraph 3.1.4).
As part of the submission that the Minister was required to consider the environmental impact of the Strategy as a whole, and not just elements of it, the Council characterised it as a “proposal” although programmatic in nature. And, it was submitted, the list of matters in s 5 can be seen by their extension to the formulation of proposals and negotiation of arrangements, not to be limited in their application to undertakings capable of present construction. So, it would follow, the words “proposed action” elsewhere appearing in the Act and Procedures, would need be understood in this way. I have no difficulty with the submission that the matters listed in s 5 are about as wide as can be. But a characterisation of something as a proposal, or one in the process of being formulated, does not answer the question whether it qualifies for assessment by reference to its potential effects. And, in relation to the object of the Act, to ensure that informed decisions are made, it must be observed that the guarantee sought in s 5 is itself qualified by the phrase “to the greatest extent practicable”. In the National Environment Policy Act in the United States account is to be taken of matters affecting the environment “to the fullest extent possible” and these words were also used in the New South Wales Act. It has however been held to require the implication of some element of “reasonableness and practicality”: Guthega Development Pty Ltd v Minister Administering the National Parks and Wildlife Act (NSW) 1974 (1986) 7 NSWLR 353, 365. Section 5 of the Commonwealth EPIP Act has already contained within it an allowance for practical considerations and they would include questions as to whether an assessment was capable of being undertaken or undertaken at that time. In this process I would think the Minister or the Department would have regard to whether the effects of what was proposed were revealed, whether they were susceptible of analysis and whether the matters referred to in paragraph 3.1.4 of the Procedures could be addressed whilst the words preceding “practicable” in the section, namely “to the greatest extent”, are to serve as a constant reminder that it is desired that environmental impacts be looked into wherever possible and, therefore, that apprehended practical difficulties which might weigh against that course ought be substantial.
There is a further qualification to the stated objective in paragraph 3.1.3 of the Procedures, which provides that the Minister shall not require an assessment where it would be contrary to the public interest. Its application does not arise for consideration here.
The Sydney Airport Draft Planning Strategy and Supplement
It is useful to recall, as mentioned in submissions, that an airport in the planning sense is made up of three principal elements: runways, terminals and ground access facilities. To that may be added infrastructure necessary to accommodate those elements and other necessary support facilities such as control towers and fire and rescue services.
The summary to the Strategy explains that it is intended as a long term planning Strategy, a “framework for future development” and that it is “not a detailed assessment of environmental impact” and, as decisions are taken to implement the several parts of the Strategy, an appropriate level of environmental review is envisaged to be then undertaken. Some reliance was placed on this early statement by Counsel for the Minister, as an accurate description of the Strategy and as one absent certainty and detail. An alternative view of course is that it simply discloses an intention to have review of the constituent parts of the Strategy undertaken later and on a piecemeal basis. Either way, it is to the plans disclosed in the Strategy to which attention must focus.
The Strategy is expressed to be based on parameters set by forecasts of passenger and cargo traffic to the year 2010 and applies to them assumptions, including some with respect to the likely mix of aircraft to be used, which are said to be conservatively assessed. The Strategy discusses, in general terms, the expansion of airport facilities at another location, Badgerys Creek, after the design period. The general thesis of the Strategy appears to be that Sydney airport should expand to accommodate the increase to 30 million passengers in about 2010. It outlines a preferred land use plan, “Concept D”, which depends upon the operation of a third, north-south runway, although the Strategy makes mention of alternative courses that might have to be pursued if that runway were not to be provided. The plans forming part of the Strategy show Concept D as fully developed. They include the positioning of the runways, extension and relocation of international and domestic terminals, and aircraft parking positions and contact gates together with the associated facilities I have referred to above. In addition to the airlines’ interest in expansion and the relocation of passenger terminals and cargo facilities, mention is made within the Strategy, in very general terms, of some other commercial development. Whilst the Strategy contains plans, as I have said, showing the location of the terminals, cargo facilities and support services, it is in the context of expansion of existing terminals and then in a fairly constrained area of land. What might occur is to be determined to an extent by the runway configuration chosen. The cargo facilities provide a good example, for it is explained that the development of them is controlled by the future of the east-west runway. The plan, then, was to reduce that runway by shortening it in its western end, thereby freeing land for development. This was to occur late in the development phases.
In addition to dealing with infrastructure requirements, there is attention given to the upgrading of the road system to accommodate the numbers of persons travelling to and from the airport. Some discussion is had with respect to the regional road network but with more detailed attention to a ring road to be constructed around the airport and an internal traffic layout.
The Strategy also produced a timetable for implementation by four phases, the first occurring at about the time of the report. In the third phase, to occur some years after the new runway commenced operation, there was to be downgrading of the east-west runway and in the final phase the runway was to exist only to the east of the north-south runway. Many issues came to be seen as raised by the limitation of the use of that runway. At this point the Strategy expressed as relevant those relating to its use in certain weather conditions and to the timing of the airlines’ requirement for the additional land.
By the time the Supplement to the Strategy was published in December 1993, not only was the third runway a reality and environmental assessment of it complete, there had also been input concerning the future of the east-west runway. The proposals contained in the Supplement were that it now proceed only to phase 3 and to retain the present length of the east-west runway, which however could be reduced “if the aviation industry requires more land for terminal development and support facilities ¼”. There do not appear to have been any other substantial changes in layout. And, whilst there had been further upgrading of forecasts, they were not considered by the authors of the Supplement to be out of the range of those previously used, so that in all respects the research, planning and policies contained in the Strategy (which is there described as comprehensive and as showing recommended layouts) were said to remain valid.
The FAC itself, in its letter to the departmental officer in December 1993 shortly prior to its designation as proponent of the Strategy and Supplement noted four differences between the two documents: that of retention of the east-west runway at its current length through to the planning horizon of 2010; alterations to the passenger terminal; some provision for the possibility of new larger aircraft, and that phases three and four are now combined. In view of the prospect for alteration of that runway, if further expansion were required, the accuracy of this latter observation might be doubted. It does not however seem to be critical. The letter goes on to express the FAC’s view that the majority of the impacts have been assessed.
It is convenient at this point to make some observations with respect to the detail and certainty of elements of the Strategy. The provision of the additional north-south runway and its location was not deficient in the former respect and a decision with respect to it would simply render necessary the other extension and facilities. The exact layout of the terminals might not be known until the respective airlines submitted plans, but the area within which they could develop was limited and the number of passengers they would have to accommodate was known. It is not too difficult however to infer that the timing of extensions, which would presumably be staged, was not known. The requirements for other facilities on the airport land were known in general terms though it was not the subject of design. The airport road
system, and in particular the ring-road, seems to have been the subject of careful consideration, although no doubt it was subject to alteration and detailed design. In general terms it was also known, at the wider sphere of influence on the regional road system, the level of increase to be accommodated but I have little difficulty in assuming that there may be a number of ways in which this might be done. The extent to which these decisions were within the control of the Commonwealth was unclear. Negotiations were said to be necessary with State authorities.
The Third Runway EIS and Supplement
The construction detail of the third runway and operational aspects of the airport functioning with the forecast numbers of aircraft now able to use the airport were gone into in detail in the EIS. The principal potential environmental impacts identified, and the subject of report, were those on areas to be affected by aircraft noise; on water and air quality; and on development in surrounding areas which might now be further restricted. But, whilst the EIS spoke of the additional on-site developments and of the changes to the road systems of which the Strategy spoke, it could not be said to amount to an assessment of impacts. Despite the claims made in the evaluation by the FAC’s consultants, in these respects the EIS and Supplement only re-stated what had been said to be required by the Strategy.
The Council, in its submissions, sought to differentiate between what the EIS dealt with and what the Strategy planned for. It will be recalled that the Minister made reference to the EIS in the reasons leading to his determination, although whether he is to be taken as saying the EIS dealt with all the principal environmental
issues is a matter to which some attention was given in argument and I shall return to it shortly. Save in the respects that I have just mentioned, namely predicted changes to the terminals and other facilities and to the road systems, the argument for the Council that the Court should have substantial doubts about whether the third runway EIS was speaking of the same scenario when it assessed operational effects, can be seen as either without substance in fact or as not permitting a relevant legal conclusion. Doubt was said to arise in three respects. The EIS relied, for its assessments of impact, on a mix of aircraft which differed to an extent from those referred to in the Strategy. The reason for this, it is apparently to be inferred, is that they had different purposes. The Strategy, as a plan of development, was concerned principally with terminal or gate capacity. For the purpose of the EIS, which largely centred on noise impacts, it was preferable to use a higher number of the noisier aircraft in the mix. Even if one assumed that the Minister was unaware of this difference in the approaches it does not seem to me possible to conclude that it would have materially affected the decision ultimately made, that an assessment or further assessment be undertaken. And that is what would need be shown to permit a conclusion that there has been an error of law; see Australian Broadcasting Tribunal v Bond (1991) 170 CLR 321, 353. Indeed the fact that the mix of aircraft predicted to use the airport had been altered to permit a more conservative assessment of noise impacts would serve merely to confirm the view that major environmental aspects flowing from an increase in aircraft over particular areas had been examined.
It was also sought to draw a distinction between forecasts of requirements, which the third runway EIS dealt with, and the capacity of the airport. The construction of the runway would, it was argued, permit even greater capacity and this full potential for use had never been the subject of examination. Certainly there were references in the documents to what might be some residual capacity, in respect of which there might conceivably then be a further increase in the use of the airport in the next century. But, again, this is not to the point, for the “proposal” which was being considered for assessment did not extend beyond the design period specified nor the forecast of its use to that time, and there was nothing to oblige the Minister to have regard to any possible increase thereafter.
Lastly, it was submitted that there was shown, by the Strategy and its Supplement, to be considerable doubt remaining as to the continued use of the east-west runway. In this the applicants were correct. However the submission does not seem to assist them, since it tends to support the Minister’s contention that, apart from the operational aspects of the third runway, further assessment was presently not practicable.
The Minister’s 1996 Direction Concerning the East-West Runway
That there was uncertainty about the extent to which this runway would continue to be used was not in dispute and it remained a highly contentious issue which eventually drew ministerial action. In March 1996 the Minister for Transport and Regional Development directed that the full length of the runway continue to be used and that a report be submitted to him by 16 December 1996 on a “proposed long term operating plan for the airport and associated airspace” based on all three runways. Shortly afterwards the Minister for the Environment exempted that
direction, and necessary regulations from the operation of the administrative Procedures and the EPIP Act. Those decisions were the subject of an application for review heard by Lehane J (Botany Bay City Council v Minister for Transport and Regional Development (1996) 137 ALR 281) which did not meet with success. His Honour’s reasons for dismissing the application have recently been confirmed by the Full Court. The operation of the direction is said to be relevant both to the question of delay and to the utility of any order to require the Minister to reconsider whether an assessment of Concept D in the Strategy ought be undertaken when he is in any event about to receive a report on the use of all three runways presumably for the purposes of further decision.
Consideration of the Minister’s Determination
It was submitted for the Minister that his decision was supported by four premises:
:that the Strategy lacked detail sufficient to enable an environmental assessment;
:that the Strategy was also subject to change;
:that the third runway proposal had been the subject of an EIS and many (but not all) of the elements of the Strategy had, by that means, already been examined;
:that the FAC had committed itself to referring a particular element for assessment when it became a firm proposal.
I have already expressed the view that the third runway EIS did not contain an environmental assessment of all principal elements of the Strategy. The subjects of
terminal expansion, construction of cargo and other facilities and the internal and external road systems were not assessed. I am unable to accept the submission that the Minister is to be taken, by the last paragraph of the Minute, to have concluded that the third runway EIS covered these topics.
The Minute itself contains no statement to that effect. Nor do I think it can be reasonably inferred from the terms of the Minute, which contains the only expression of the Minister’s view. There is no evidence of other material, such as the consultant’s evaluation, being before him and there was none from any advisor responsible for briefing him. In that respect whilst one could accept that the Minister was reasonably familiar with the EIS and the Strategy it would not follow that the opinion now sought to be advanced was held by him. For the reasons I have earlier given it seems to me that the contrary would be indicated. So far as the terms of the other parts of the Minute are concerned they also tell against the view now contended for. The matters which were said to have been considered by the Minister, as dealt with by the EIS, were not identified in argument. Nevertheless it seems somewhat inconsistent to argue that he thought the main questions had been addressed but that there were also some matters which would have impact substantial enough to require that they be later addressed.
The question which then arises is whether the Minister was obliged, having regard to the requirements of the Procedures and the object of the Act, to require an assessment of what remained. I think it clear enough that this is not what the Council is in truth seeking, its concerns being not so much with road or traffic implications as with aircraft noise a consequence of the operation of the runways. But I put this to one side.
The Council’s answer to such an approach is that it would defeat the object of the Act, which is to be seen as requiring an assessment of the “proposal” which must be that constituted by the whole Strategy. It is in this connexion that I understand the evidence, that other airport proposals have been assessed in this way, to be said to be relevant. The evidence would certainly not permit any particular conclusion to be drawn from what is said about the other airports and it is not possible to properly compare what was contained in them with that proposed by the Strategy. That it might even have been usual to approach airport development, by assessment of a composite plan, does not however render it a necessarily compelling consideration and certainly not one which could be said to be relevant, in the sense that the Act or the Procedures expressly or impliedly, required it to be taken into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39-40.
It is clear enough from the matters listed in paragraph 3.1.2 of the Procedures that there may, in a particular case and with respect to a contemplated action, be elements of it which could be productive of the impacts spoken of. And s 5 of the Act is concerned to identify and examine that which will have effect. In any event it seems to me that whether one describes an environmental effect as flowing generally from a project or development, in reality it will usually be particular aspects of them which produce that result. There is, I consider, no statutory embargo upon the Minister approaching the question by considering, as it seems was here done, that part
of the proposal has already been the subject of report and then to consider whether assessment of what remains should be undertaken and how it ought be done. I am also unable to conclude that the approach taken by the Minister, to separate the questions is, in the factual context one which was so unreasonable as to imply that there must have been some fundamental error of law involved, a very confined ground for review: Attorney-General (NSW) v Quinn (1990) 170 CLR 1, 36-7; BTR Plc v Westinghouse Brake & Signal Co (Australia) Ltd (1992) 106 ALR 35, 45; Botany Bay City Council v Minister, 303-4. And, insofar as the Minister then determined that no present assessment of the remaining element of the Strategy could be undertaken, such an approach was warranted by s 5, which permitted and required the Minister to consider whether an assessment was practicable in the sense I have referred to above. As was submitted for the Minister, this involved a judgment. It has not been shown by the Council that the conclusion reached was unreasonable.
In any event there was, in each respect, a basis for concluding that matters such as the location of buildings needed to be first ascertained before any report on the environmental impact, if any, were directed. Wider traffic implications might be thought to be of potential importance. But the Minister was entitled to hold the view that, for instance, further discussions or negotiations with the relevant state authorities should be first undertaken, as has now apparently occurred in part. Indeed this topic is one of such breadth that it is difficult to conclude presently which part of the alteration to the regional system is a proposal falling under s 5(1) or (2) of the EPIP Act, that is, a proposal which is to be undertaken by the Commonwealth itself or on its behalf: see Tasmanian Conservation Trust Inc v Minister for Resources & Anor
(1996) 135 ALR 338, 348.
Extension of Time/Delay
The Council was not, I consider, “furnished” with the terms of the Minister’s decision within the meaning of s 11(1)(c) AD(JR) Act until 2 August 1995 and an extension of time is therefore not necessary. If it had been I am of the view that the matter to which the application relates, involving questions of public interest, would have warranted an extension, subject to the question of delay which I discuss below. In Australian Foreman Stevedores Association v Crone (1988) 20 FCR 377, 385 Pincus J was of the view that “furnished to the applicant” appears to contemplate delivery of a document specifically to the applicant, rather than general publication of it and that delivery be by or on behalf of the decision-maker. I respectfully concur. Here a copy was provided to the applicant by the Convenor of the Sub-committee. And, whilst submissions were not addressed to it, I observe that it appears that reasons for not directing an EIS or PER, as contemplated by paragraph 3.1.5, do not appear to have been published. This may have assisted in alerting interested parties to the decision, as they were no doubt intended to be.
As to the effect of the delay in bringing the matter before the Court, evidence was called as to what had already been undertaken at the airport by the time the Minister’s decision was made in May 1994 and what had taken place since. This included some terminal reconfiguration and extension. And some further proposals were, more recently, put forward with respect to the taking up of the “expansion land”. There had been some additions in the numbers of aircraft gates, a review of the ground access study had been implemented and negotiations commenced with State authorities regarding roads.
Whilst these matters are not insubstantial they do not operate to preclude consideration of further expansion. That they have occurred would simply be a matter to be taken into account by the Minister.
Any consideration as to whether the Minister’s decision ought be the subject of reconsideration must however have regard to the Direction now made by the Minister, the report which is to be furnished with respect to the operation of all three runways and the fact that a decision which will likely be made on it. In these circumstances it may well be that a reconsideration of Concept D of the Strategy as modified by the Supplement, would almost certainly be considered as impractical and as overtaken.
The cases, whilst confirming the discretionary nature of the orders which may be made under s 16 AD(JR) Act, disclose that where an error of law is involved, relief will only usually be declined where it would be pointless to make any order: see, for example, Lek v Minister for Immigration, Local government and Ethnic Affairs (1993) 43 FCR 100, 136. There is of course nothing desirable about an order which is impractical, of no real effect and one which simply adds to the burden of administrative decision-making. But there also seems to me to be strong reasons why the Court should not assume a likely outcome. And, in cases where there are possible different outcomes, the result should be left to the proper decision-making process.
Here, whilst one tends to the view that this is all too late, the Strategy remains a proposal. Whilst it would then be open to the now Minister to take account of all that has since occurred in coming to his decision, had I concluded that the decision of the former Minister ought be set aside, I would have referred it back for that further consideration. In this connexion I have also had regard to what may be reasonably perceived as the Council’s real area of interest and as to whether this might be reflected in any outcome, but discounted it in the end as irrelevant.
Standing
The question whether the Council qualified as an applicant for review was also argued before me. The issue, in similar context, was also raised in the Botany Bay City Council case before Lehane J. It involves an assessment of the importance of the concern which an applicant has with respect to the particular subject matter of the decision and of the closeness of the applicant’s relationship to that subject-matter: Onus v Alcoa of Australia Limited (1981) 149 CLR 27, 42; and see also Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 128 ALR 238, 251-2. The Minister’s principal contention was that, in truth, the Council was pursuing a matter of principle: see Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493. Whilst there were on this application questions of likely public interest that does not mean that the Council’s interest is so confined. As Lehane J found (310) Councils have responsibilities in their local government areas which include the conservation of the environment and that environment may at least be indirectly affected by the decision. His Honour held that the Council there was a “person aggrieved” within the meaning of the Act and I respectfully adopt his Honour’s reasoning.
Conclusion
There is no basis shown to set aside the Minister’s decision of May 1994. The application will be dismissed with costs.
I certify that this and the preceding twenty two pages are a true copy of the reasons for judgment herein of the Honourable Justice Kiefel.
Associate
Date:25 September 1996
Counsel for the applicant: J Basten QC and R Beech-Jones
Solicitors for the applicant: ` Angela Penklis (Marrickville Council)
Counsel for the respondent: J Hilton SC and N William
Solicitors for the respondent: Australian Government Solicitor
Date of Hearing: 16, 17, 18, 19 April 1996
Place of Hearing: Sydney
Place of Judgment: Brisbane
Date of Judgment: 25 September 1996
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