Marrickville Council v Minister for Transport

[1994] FCA 933

9 3 3 J 9'r

JUDGMENT No. .... ,........ .. ,. .,

m ) )

NEW SOUTH WALES DISTRICT RE	GISTRY	1	No. NG 746 of 1994
1
GENERAL D I V m	1

BETWEEN :  -1CKVILLE COUNCIL

Applicant

AND :	m I S T E R FOR	TRANSPORT	and
OTHERS

Respondent

4 NOVEMBER 1994

BEASONS FOR JUDGMENT

LOCKWART J.

This is a motion for an interlocutory injunction brought by Marrickville Council (the Council) against the Minister for Transport (the Minister), the Civil Aviation Authority (the Authority) and the Federal Airports Corporation (the Corporation). The motion is to restrain the respondents until the final hearing of the substantive proceeding or further order from implementing certain interim air traffic control arrangements in respect of Sydney Kingsford Smith Airport (the interim arrangement).

REGISTRY

This is an urgent hearing of the motion, so it is not appropriate that the Court makes findings of fact or of law on any final basis. So most of my findings must be regarded as being solely for the purpose of this interlocutory hearing and not as representing any final or concluded view.

RECEIVED

FEDERAL COURT OF

AUSTRALIA PRINCIPAL

arv of the Evidence

Sydney Airport has for many years operated with two runways, one running north/south the other east/west. Aeroplanes use both runways to take off and land. Aircraft movements on the north/south runway are to and from the north and to and from the south. It is that runway with which this case is directly concerned, together with a new runway to which I shall refer in a moment.

On 13 November 1991 the then Minister for Shipping and Aviation Support announced a decision approving the construction of the new runway at Sydney Airport in a press release. Amongst other things, the Minister said that the Corporation could begin work immediately on a third runway at Sydney Airport and that the Commonwealth Government had taken the decision after comprehensive environmental assessments had been carried out over the previous two and a half years. He said that the environmental impact assessment was one of the

most thorough ever undertaken in Australia. He said the

runway, which was expected to be operating by early 1995,

would provide a parallel runway system to the existing north/south runway and that there would be no departures to the north from the new runway and that the east/west runway would be used only when weather conditions precluded the use of other runways for safety reasons.

There is evidence that as a result of the ministerial announcement, all planning by the Authority in relation to the new runway project proceeded on that and no other basis. In November 1991 following the approval by the Commonwealth Government to the Corporation to proceed with the construction of the third runway the Corporation adopted certain recommendations in environmental management made by the then Minister for the Arts, Sport, the Environment, Tourism and Territories to the extent that it was within the Corporation's

power to do so.

The recommendations of the then Minister for the Environment included the preparation of a noise management plan and the formation of a steering committee for that purpose to be convened by the Corporation and comprising various people in addition to the Authority. The same recommendations of the then Minister for the Environment call for the preparation of an air quality management plan, an environmental management plan for Botany Bay and the	commissioning of a study of possible health effects related to
aircraft noise.
A draft noise management plan was produced and exhibited for comment from the public. Interested parties including people and bodies affected by the proposed operation of the third runway participated in various ways in the process of developing the plan and in accordance with the recommendations, to which I have referred, the Corporation convened a steering committee to assist in the preparation of a plan. There resulted the Draft Sydney Airport Noise Management Plan consisting of two volumes, volume 1 of which is a summary report to which I have had recourse, and it sets out the majority view of the steering committee. Volume 2 is a technical report.
The new runway was completed some months ahead of schedule but a new control tower which is being constructed for the new runway will not be operational until February or March next year. The Authority evaluated the possibility of operating on the new runway prior to the commissioning of the new control tower and it was determined that it was feasible to operate on the runway. A team of experts was assembled under the direction of the Authority to develop the appropriate standards and operating procedures for aircraft using the parallel runway system. The result was that the Authority developed a three-phase approach to operations on
the new runway.
This approach covered operations using (1) the existing control tower; (2) the new control tower; and (3) the operation of a parallel approach radar monitor system (known
as PARM). In phase one, movements - that is arrivals and landings - would be in the order of 50 to 55 per hour and
phase two, applicable after the commissioning of the new control tower, the movement rate is expected to increase to 60 to 65 per hour. In phase three, following the commissioning of a new P M , the movement rate is expected to rise into the vicinity of 80 movements per hour.
In comparison, the existing airport crossing runway system - that is north-south, east-west - has a variable
capacity from 30 to 35 movements per hour when a single runway is in use during adverse weather conditions, to a maximum of 60 to 65 under ideal circumstances, using simultaneous operations on the two existing runways. The reduction in capacity experienced in conditions of strong Southerly winds and low cloud would, so it has been said in evidence, be lessened by parallel runway operations.
The new procedures would focus approximately 98 per cent of the traffic onto the parallel runways, that is the existing north-south and the new runway. Due to the prevailing weather, approaches from the north and departures over Botany
Bay are anticipated about 85 per cent of the time; approaches from the south and departures to the north are anticipated to
be used 13 per cent of the time. Consequently, east-west operations would account for no more than 2 per cent of aircraft activity.
In February 1994, the Minister decided to open the new runway in September of this year. It was later decided that
the operations of the third runway would commence tomorrow, Saturday, 5 November. Following the Minister's decision, to which I shall refer later, the Authority recognised that the new control tower would not be operational by September of this year and that that would therefore require a variation to the aircraft operations described in a document known as the EIS, and more fully as the Proposed Third Runway Sydney Kingsford Smith Airport Draft Environmental Impact Statement, which was prepared for the Corporation by a firm of consulting engineers.
The position with the present control tower is such that controllers will not have an optimal view of the new runway and approach paths and therefore it will reduce the number of flights from the two parallel runways. Also, the present tower is set up for only one aerodrome controller being the officer responsible for runway operations. The new tower will use two controllers so that a temporary reorganisation of the control tower operating positions and procedures is necessary pending completion of the new tower. Depending upon the wind direction, aircraft take off or land in a southerly flow,
landing over the city and departing over Botany Bay or a northerly flow, landing over Botany Bay and departing over the city (generally it is necessary to take off and land into the wind).
The interim arrangements involve, in brief, in southerly flow conditions scheduling all departures other than those that are operationally unable to use the new runway, for example, long range jets, to use the new runway and all arriving aircraft to use the old north/south runway, excepting about 50 per cent of the propeller-driven aircraft which will be scheduled to the new runway. The northerly flow conditions
it appears to be no different to those described in the EIS. There will be no operations on the eastlwest runway unless required by prevailing weather conditions in particular strong cross winds on the parallel runway.
There were discussions between the Authority and the Department and the Commonwealth Protection Agency (the CEPA). The Authority informed the Department that it would prepare an environmental assessment of the interim parallel runway operations. This assessment was prepared by Mr Ian Thomas Speed who is the Manager, Environment Operations, in the Planning and Development Division of the Authority in Canberra. He prepared the assessment over a period of some six to eight weeks with full time work and it is dated October 1994 and it is in evidence; I need not refer to it in any
depth.
Mr Speed, who has given evidence, said that he concluded that once any parallel runway operations commenced at the airport, people living to the east and west of the airport would benefit from a nearly complete absence of aircraft
overflight, and those living to the north of the airport would have a significant increase in aircraft overflight. He summarised the effect of the parallel runway operations in a table, having regard to the total number of people who became effected by the new runway operations and those who cease being to be effected.
They may be summarised as follows. First taking the existing crossing runways: north persons seriously effected: 17,030; moderately effected, 52,360; east/west, 26,1790; seriously effected, 86,460 are moderately effected; total of 43,200 people seriously effected, 138,820 moderately effected. With the interim arrangements in place seriously effected north, 23,350, moderately effected, 67,900, east/west, 690 seriously effected, 3190 moderately effected, total of 24,040 seriously effected, moderately effected 71,090. With what is indicated earlier, the MSP operations to be effective it is thought, approximately March next year, north, seriously
effected, 24,870, moderately effected, 70,740, east/west 700
25,570 people seriously effected, 74,580 people moderately seriously effected and 3840 moderately effected, total of
effected.
Mr Speed assessed the interim arrangements as being such that they do not vary significantly from the final parallel runway operations proposed to be introduced when the new tower opens early next year. Also in his opinion they do not vary
significantly from the long term operations of Sydney Airport described in the EIS. Long term takes one into the next century. In considering the interim arrangements and the subsequent MSP operations, Mr Speed took into account the environment consequences of each of those operations. He says that in effect the interim arrangements would bring forward by four months the effects described in the EIS flowing from the parallel runway operations, including noise reduction over large areas of the city, particularly to the east and west of the airport and an increase in noise to areas to the north of the airport.
Mr Speed has given evidence also that in calculating the expected aircraft runway distribution during the interim arrangements, he first examined aircraft movement records maintained by the Authority for Sydney Airport for an equivalent period of 1 October 1993 to 31 March 1994. He says:

in traffic at Sydney Airport will be such	"Current indications are that the growth
that for the interim period a five per cent increase can be expected."

And so, he has increased the figures obtained from the aircraft movement records maintained by the Authority by that amount. He has then said he examined long term meteorological conditions for that same period and determined that it could

be expected that the airport could operate with a southerly flow, that is, landings over the city and departures over

Botany Bay for approximately 80.4 per cent of the time. The

airport could be expected to operate with a northerly flow, landings over Botany Bay, departures over the city for

approximately 18.8 per cent of the time, with the cross runway (that is, east - west) being expected to be used for about 0.8

per cent of the time.

He says:

"When operating [under the interim arrangements] with a northerly flow, all departures will be allocated to [the present north - south runway].

Using the methodology which he has referred to in his affidavit sworn and filed today, he says:

"the numbers of aircraft that could be

departing, north of [Sydney Airport] was expected to operate, either landing or	calculated to be for the Interim Period
2 1 3 landings to the Old Runway, 58
landings to the New Runway and 61 departures from the Old Runway on a daily basis. The expected total aircraft movements on a daily basis for the Old Runway are 2 7 4 and for the New Runway 4 8 . "

There is evidence that has been given also by Mr Cooper,
who is an acoustical and vibration consulting engineer, and a
witness for the council. Some of the views expressed by Mr

Cooper are in conflict with the views expressed by some of the witnesses for the respondents, including Mr Speed. Mr Cooper has expressed, amongst other opinions, the opinion that the proposed interim arrangements are, as he perceives them to be, contrary to the operational procedures set out in the EIS, a document dated September 1990. He has expressed the opinion that they are also contrary to procedures contemplated by what I have already described as the draft noise management plan.

Evidence has been given also by a Mr Southgate. Mr Southgate is the acting director of the Environment Section Infrastructure and Industry Policy Branch, Aviation Division, within the Department. Mr Southgate played a role in relation to the assessment of environmental impacts of the interim arrangements. He has given evidence that after he returned from recreational leave on 17 October this year, he convened an urgent meeting that day with the CEPA. In addition to himself, Mr Speed, a Mr Hambly and a MS Alexander, both from

Authority's environmental assessment of the interim	CEPA were present. The purpose of the meeting was to consider the
arrangements and to give effect to the request of Senator Faulkner, the Minister for the Environment, Sport and Territories, for consultations between officers of the CEPA and the Authority to determine the environmental significance of the Authority's proposed interim parallel runway operations for Sydney Airport. After the meeting, Mr Southgate says he tabled a copy of the authority's environmental assessment which was explained to the CEPA officers by Mr Speed. I take it, and there is no suggestion to the contrary, that that
assessment is the one to which I have already referred as having been prepared by Mr Speed.
He sought CEPAts views on the proposed revised arrangements and in particular whether they considered further environmental assessment would be required. The CEPA officers undertook to respond as soon as possible. At the end of the meeting, Mr Southgate pressed the need for an urgent response. Shortly after that he spoke to Mr Hambly by telephone. Mr Hambly indicated that while CEPA had some concerns about the proposed arrangements, it had advised Senator Faulkner that the new proposals did not significantly fall outside the parameters of the EIS and had not recommended that action be initiated through further formal assessment under the
Act). Environment Protection Impact of Proposals Act 1974 (the EPIP Southgate advised a Mr Wolfe at the office of the Minister for Transport of CEPA1s views and the advice it had given its Minister (that is the Minister for Environment) on the interim arrangements. Mr Southgate also informed Mr Wolfe of his own views that the environmental effects of the interim arrangements did not fall outside those considered in the EIS. It was agreed between the two gentlemen at that stage the issue was really one for the Minister for the Environment, Senator Faulkner. Senator Faulkner met with the Minister for Transport on the afternoon of Monday 31 October prior to a consideration being given by the Federal Cabinet of the noise amelioration measures to be introduced for the airport, and Mr Southgate says that no advice to either CEPA or the Department of Transport came from this meeting indicating that the need for further environmental assessment of the proposed interim arrangements.
There were further discussions between Mr Southgate and officers of the CEPA which I need not refer to, but which are recorded in a file note of Mr Southgaters of 2 November 1994. Mr Southgate decided, it would seem, on 2 November, that the environmental effects of the interim arrangements had been fully examined and taken into account and that there was no requirement for further environmental assessment of the to the following matters in particular: interim arrangements. In coming to this view, he had regard (a) Between 1989 and 1991 the noise impacts of the new runway

were the subject of a very thorough EIS process;

(b) His view based on the authority S environmental

assessment on the interim arrangements that the total number of aircraft movements and the levels of community noise exposure to the north of the airport resulting from the interim arrangements did not significantly vary from those considered in the EIS;

(c) Based on the authority's environmental assessment on the

interim arrangements that the change from a cross runway to two parallel runway operations would provide significant gains in net community noise exposure in that it would halve the number of persons seriously and

moderately affected by aircraft noise;

(d) That the interim arrangements would bring forward that

benefit;

(e) That the CEPA8s advice that it was the Transport

Department's decision whether or not the procedures under the EPIP Act should be invoked; and

(f) The CEPA1s view that an EIS (that is an environment

impact statement) was not practical.

Mr Southgate therefore concluded that the objects of the EPIP Act, to which I shall refer later, were met.

Mr Cooper, to whom I have already referred, summarised his opinion in these terms, he said:

"The interim ... arrangements will ... result in a noticeable and significant increase in noise exposure for residents in the ... local government area [of the council].

I should refer to one other aspect of the matter which may be of some significance. The Federal Cabinet approved recently what is described in a news release by the Minister

For Transport as a $183 .4 million package over the next ten

years aimed at reducing the impact of aircraft noise on residents living around Sydney Airport. The Minister said

that this included an extra $ 8 . 4 million for more insulation

of public buildings. The package would include the voluntary

acquisition of some 112 houses and the insulation of 3 5 0 0

houses. He said that:

"The Government recognises that schools, colleges, churches, hospitals, child and health care facilities have special needs. These buildings will be eligible for insulation in a wider area which will be

between the 25 and 4 0 Australian Noise Exposure Forecast (ANEF) contours based on the ultimate capacity of the airport."

He said that a study would be conducted after some three

years to further assess the application of insulation to

residences below the 3 0 ANEF contour.

He reaffirmed the Government's previously announced commitment that:

"The east-west runway will be used only when weather conditions preclude the use of the other runways for safety reasons, there will be no take-offs to the north from the new runway, take-offs to the south will be maximised and the curfew will be retained."

He said that residents living in the most exposed areas in the approaches to the airport, that is, within the 40 ANEF

contour, would be able to have their houses purchased if they

wished, and residents living between the 30 and 40 ANEF

contours would be eligible for acoustic insulation.

He said it was:

"The Government's view that the airline industry should pay for the measures and legislation will be introduced early next year to give effect to this decision.tt

Substance of the A~~lication

The substantive proceeding in which the motion is brought Administrative Decisions Judicial Review Act 1977 (the ADJR	is an application for an order of review under the
Act). The application describes as decisions the following:

'#The decision of [the Authority] made on or about 26 May 1994 for the adoption and implementation of the runway selection as specified in AIC-H11/94 entitled "Interim Operation of Parallel Runways at Sydney Airportn dated 26 May 1994 and in accordance with directions and conditions specified in AIP Supplement H48/94 (18 August 1994). AIC H23/94 (15 September

1994) and AIP Supplement H66/94 (13

October 1994) ."

Also mentioned is the decision by the Corporation made between 23 June and 12 October 1994 to:

ggProvide airport facilities necessary to implement the interim air traffic control arrangements pursuant to Aeronautical Information Circular H11/94, AIP Supplement H48/94 and AIC H23/94.I1

And the third decision is described as:

g8Directions by [the Minister] to [the Authority] for the implementation of the interim air traffic control arrangements.11

There is a difficulty in an urgent case as this, that confronts an applicant for a order of review in defining with precision decisions of persons and bodies such as the three	respondents in this case, when little may be known by the	applicant of the precise relevant decisions when urgent legal
process is issued. But counsel for the respondents informed the Court yesterday, that the respondents had sought to place before the Council's legal advisers material indicating what might have been relevant decisions that fell within the broad ambit of the decisions as described in the application before it was amended. I should add that what I have read out as the decisions under review are the decisions as described this morning in an amended application for an order of review to which I gave leave to have filed in Court.
I have asked counsel for the Council on more than one occasion yesterday to identify the relevant decision or decisions, though mindful of the problems that may lie in the Councilrs path of the kind I have indicated. But the identification of the relevant decisions under attack in an application under the ADJR Act is fundamental to the exercise and invocation of this Court's jurisdiction. The decisions as challenged and as set out in the amended application need some further elaboration. The references in the amended application to the alleged decisions are to documents described as Aeronautical Information Service publications or bulletins which are distributed from time to time, it would appear, under the authority of the Authority and the
distribution list is large indeed - it goes to all pilot
they either constitute decisions in themselves or are evidence licence holders and other persons. I have carefully examined those documents to determine if
of decisions made at or about the time of their issue. To the extent that the documents are evidentiary of any decision- making process is itself an arguable question and I am prepared to give the Council the benefit of that doubt. They are not decisions of a final operative or determinative character of the kind to which the High Court referred in Australian Broadcasting Tribunal v Bond (1991) 170 CLR 321. They are simply part of a process of governmental preparation for the prospective introduction of the revised arrangements, and deal essentially with operational matters which fall within the ambit of the Authority's powers.
I do not regard any decisions which may be evidenced by the documents constituting the Aeronautical Information Service bulletins as being decisions of the kind which are susceptible of review for present purposes. However, the matter must be viewed in a practical way, and I have in mind that the Minister announced as early as February this year the intention of the government to introduce the revised arrangements. The evidence before the Court shows clearly that although the Minister appears to have adopted a strong stand in relation to that, he has been quite conscious of the need for compliance with the requirements of the law,
refer shortly. He also knew that much remained to be done including the requirements of the EPIP Act, to which I shall before the interim arrangements could be introduced, including
a clearance in relation to any adverse environmental consequences or impacts that might follow the introduction of the revised arrangements.
Many events occurred after February 1994, and indeed after May 1994, the starting point for the relevant decision- making process that is attacked in this case. There does not appear to have been any final or operative decision that was taken so far as I can see from the evidence until a matter of a few days ago, on 1 November, when the final clearance was given to the introduction of the revised arrangements to occur as from tomorrow. That was indeed the ultimate decision. If, indeed, there are other decisions that have been taken that may constitute decisions of a reviewable kind in the light of Bond I would not exclude them from possibility, but they have
not been raised in this case.
The decisions must be identified. They go to the jurisdiction of the Court and to the very capacity of a Court to apply the AIXTR Act in matters of this kind. The documents which are said to evidence the decisions are essentially Aeronautical Information bulletins, which disseminate information. There is also evidence before the Court that subsequent to May this year not only did a lot remain to be
done before interim arrangements could be introduced, but consideration had to be given to environmental impacts, and it has indeed been assessed since then. Exhibit 11 contains a
bundle of correspondence and I will refer briefly to certain of it only. A letter was written by the Minister for the Environment to the Minister for Transport on 5 August 1994 saying a number of things including this:

" A possible consequence of this proposal

[that is the interim procedures] is that

a r e a s between the northern f l i g h t pa th for the e x i s t i n g nor th - sou th runway may be

noise which was not cons idered i n the	s u b j e c t e d t o a level of a i r c r a f t generated
env i ronmenta l assessment o f the t h i r d
runway proposa l .
I unders tand t h a t dur ing th is interim
per iod a i r c r a f t movements over a r e a s t o
the north of the e x i s t i n g nor th - sou th
runway may more t h a n double their c u r r e n t
level and exceed the EIS f o r e c a s t number
o f movements for the year 2010. In these
c i r cums tances I believe t h a t c o n s u l t a t i o n
w i l l be r e q u i r e d between off icers o f the
EPA and the CAA t o de t e rmine the
env i ronmenta l s i g n i f i c a n c e o f the proposed
a c t i o n s . I would a p p r e c i a t e your suppor t
i n th is r egard .

T h e Minister f o r T ranspor t responded t o t h a t let ter some

days t h e r e a f t e r i n which he s a i d , amongst o t h e r t h i n g s :

"When p r a c t i c a l a i r space management

o p t i o n s f o r this interim per iod have been

i d e n t i f i e d t h e y w i l l be a s s e s s e d f o r

env i ronmenta l s i g n i f i c a n c e i n accordance

w i t h s tandard CAA p r a c t i c e . I am mind fu l

o f	my	r e s p o n s i b i l i t i e s	under	the	EPIP	Act
and	can	a s s u r e	you	t h a t	due	c o n s i d e r a t i o n
w i l l	be	g i v e n	t o	noise	impac t s	when

d e c i d i n g on the f i n a l interim a i r space

arrangements . m

Then a letter i s w r i t t e n b y the General Manager o f A i r

T r a f f i c Services o f the A u t h o r i t y t o the C h i e f General

Manager, Opera t i ons , o f the Corpora t ion on 13 or 18 October

1984 i n which , amongst o t h e r t h i n g s , the writer s a i d :

" W e have been deve lop ing procedures f o r

interim o p e r a t i o n s . These procedures

cou ld not be f i n a l i s e d u n t i l the n e c e s s a r y

s e p a r a t i o n s t andards were agreed b y o u r

Safety Regulation Division who have had a dedicated project team o f a i r t r a f f i c controllers developing procedures t o be implemented from the existing tower that are designed t o maximise movements a t Sydney Airport once the parallel runway i s available. I t i s anticipated that the

runway w i l l be finalised i n the very near	operating procedures for the parallel
future and, subject t o no d i f f i c u l t i e s being encountered from an environmental point o f view, we w i l l be able t o commence operations from the new runway shortly a f t e r i t s o f f i c i a l opening. Once controllers and pilots have gained familiarity with the use of the new runway and associated procedures, we w i l l be able t o achieve the movement dates mentioned above.

What appears t o have happened i s that there has been a

series of interim decisions culminating i n the decision as recently as 1 November t o actually proceed with the revised arrangements.

The attack upon the decision set out i n the amended application i s made on various grounds. First, it i s said

that relevant decisions were made contrary t o law and the

procedures required by l a w t o be observed. Reference was made

f i r s t t o the EPIP Act and reliance was placed on ss. 5 and 6 .

Section 5(1), so f a r as relevant, provides that:

"The object of th i s act i s t o ensure t o the greatest extent that i s practicable that matters af fect ing the environment t o

and taken into account i n and i n relation	a significant extent are fu l ly examined
t o ( a ) the formulation of proposals; ( d ) the making o f , or participation i n the making of decisions and re~ommendation.'~

Reference was made to section 6 which provides, so far as

relevant:

"6 (1) The Governor-General may, from time to time, by order, approve, and approve variations of, administrative procedures for the purpose of achieving the object of this Act, being procedures that are consistent with relevant laws, as affected by regulations under this Act."

The Governor-General, Sir Ninian Stephen, made an order under S. 6 on 29 May 1987 approving the administrative

procedures, set out in the schedule to the order, to be operative as from 1 June 1987 and those administrative procedures, so far as relevant, provide as follows:

"1.2.1 Subject to these procedures, the action Minister, or a person on behal+ of the action Minister, shall, as soon as possible after any initiative has been taken in relation to a proposed action designate a person or Department as the proponent of the proposed action and shall ensure that the Department is thereupon informed of the proposed action and of the	name and address of the person or
Department so designated."

Paragraph 1.1 is the interpretation paragraph and it

defines, amongst other things, "proposed action" as meaning "a

lnatter referred to in any of the paragraphs of S. 5" of the

EPIP Act.

The relevant sections of the Act are set out below:

Before a proposed action i s completed the proponent shall do a l l things necessary t o ensure that these

procedures are complied with i n

relation t o the proposed action.

As soon as possible a f t e r the Department has been informed o f a proposed action under paragraph 1 . 2 . 1 . or 1 . 2 . 4 , the proponent shall supply t o the Minister, or the Department, such information as i s required by these procedures, or i s otherwise necessary, for the purpose of consideration, by the Minister or on the minister's behalf, o f the

necessity for an environmental impact statement or a public environment report i n relation t o the proposed action.

Subject t o the Act and these procedures, the Department shall , as soon as possible a f t e r the information referred t o i n paragraph 2 . 1 . , and any further information requlred under paragraph 2.3 ., has been received i n relation t o a proposed action -

( a )	Minister, that the preparation determine on behalf o f the
or obtaining, and submission t o
t h e M i n i s t e r , o f a n environmental impac t statement or a public environment report i n relation t o the proposed action i s not required for the purpose o f achieving the object o f the Act; or
(b) r e f e r the question	o f	whether

the preparation or obtaining, and submission t o the Minister, o f an environmental impact s t a t e m e n t o r a p u b l i c environment report i n relation t o the proposed action i s

required for the purpose of achieving the object of the Act to the Minister who shall forthwith determine the question and shall make a direction accordingly.

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 -
(i) a substantial environmental effect on a community; ...

(viii)  the degradation of the quality of the environment;

. . .

(X) the pollution of the

environment. "

It was argued that one of these procedures was observed
in this case in relation to the interim arrangements or if

they were observed or any of them was observed the decision

have so decided. Hence, the argument was put in the was so unreasonable that no reasonable decision maker could	alternative, the first being an argument that an error of law
was committed, and the second reminiscent of the unreasonableness addressed in the Wednesbury Corporation v
Ministry of Housing and Local Government [l9651 1 All ER 186;
but the argument is predicated on the assumption that the relevant decisions are as set out in the amended application for an order of review.

As I have indicated in relating the facts, an environmental impact statement was considered and prepared in October 1994 by Mr Speed. Even if the relevant decision was the one taken on 1 November it would have been taken after Mr Speed had prepared that report, to which I have fairly fully referred, but then no attack is made on that particular decision. I mention that because, as I said earlier, I have some sympathy with an applicant who prepares a case at short notice and is seeking to identify the relevant decisions made by government instrumentalities. However, as I have said already, the relevant decisions under attack are not, in my view, decisions of a reviewable kind, so that, if I were to stop there, that will be an end to the matter.

I emphasise again that I have reached tentative or provisional conclusions because of the nature of the application, but I must take it a step further than that in defining the relevant decisions under review because they are,

reviewable decisions, I cannot ignore the fact that they were	as I have said, fundamental to the Court's jurisdiction. Even if the decisions referred to in the amended application were
but steps in a chain of events that culminated in the 1 November decision, and I have already described the decisions in relation to the information bulletins. The fact is that the issue of those bulletins was followed by Mr Speed's impact statement and by the discussions between relevant authorities as set out in the file note of Mr Southgate, to which I have
referred.
In my view, it has not been established that there is a serious question to be tried on the question of procedural requirements of the EPIP Act and the administrative procedures thereunder not having been observed by any of the relevant authorities in this case. I should add that I have taken into account the exposition of principle by a Full Court of this Court in the Australian Postal Corporation v Botany Municipal
Council (1989) 69 LGRA 86, in particular at 93.
The second ground of attack is based on the Civil Aviation Act and the Federal Airports Corporation Act. It is
said that the authority contravened S. 9A of the CAA Act which
provides that:

"The Authority must endeavour to perform its functions, other than its regulatory functions, in a manner that ensures that, as far as is practicable, the environment is protected from the effects of, and the	effects associated with, the operation and	use of aircraft (other than state
aircraft) .

The exception of state aircraft is, of course, obviously inserted for constitutional reasons.

The functions of the authority are defined in section

9 (1) relevantly as follows:

"The functions of the Authority are:

(a)

As provided by this Act and the

regulations, to conduct safety
regulation of:

(i)	civil air operations in Australian territory; and
(ii)	Australian aircraft operating outside Australian territory;

(b)

to provide air route and airway facilities;

(C) to provide air traffic control services, and flight service services, for, in either case, surf ace traffic of aircraft and vehicles on the manoeuvring area of aerodromes;

- - -

(m)	any functions incidental to any of
the foregoing functions. 1'

It was argued that the Authority did not consider the relevant effects of the interim arrangements, in particular, the impact upon the environment and, therefore, did not pursue its statutory duties and, so, the subsequent decisions were vitiated. A similar argument is put with respect to the

Corporation under the FAC Act.	It is said the Corporation
contravenes section 7 (2)	(c) which requires the Corporation to

endeavour to perform its functions in a manner that:

(c) ensures that, as far as is practicable, the level of the noise at airports is not such as to be detrimental to the communities near airports;

(ca) ensures that, as far as is

practicable, the environment is protected from the effects of, and the effects associated with, the operation and use of aircraft (other than state aircraft within the meaning of the Civil Aviation Act

1988) operating to or from Federal

airports."

As to these arguments I make the same observations as I have already made. In the light of what I have said about the decisions under review, there is strictly no necessity to consider them but as I have done I am not persuaded that there has been on the evidence a serious question established of contravention by either of those statutory authorities of the provisions to which I have referred. There is thus in my view no serious question to be tried in relation to the alleged activities of the Authority or the Corporation said to be contrary to law, nor do I think there is such a question established as to unreasonableness of the Wednesbury kind such that no reasonable decision-maker could make them.

Little, if anything, has been established in relation to relevant decisions against the Minister, but I am not persuaded that any serious question has been made out in relation to him. It is not necessary to consider the balance of convenience, but I shall do so lest I be wrong in what I have said thus far as to the serious question to be tried. It must not be forgotten that the two questions of serious question to be tried and balance of convenience, though sometimes quite separate, are usually intertwined to a degree,

sometimes substantially so. If the interim arrangements proceed to be put into effect then there will be aircraft movements, both take-off and landing, on the existing north- south runway in a northerly direction, which will increase substantially the noise level in the suburbs of Sydney located to the north of the runway and within, generally speaking, the boundaries of the Marrickville Local Government area.

There is no dispute about that, and there will be an adverse effect on the residential amenity of portions of the area within the Marrickville Council's boundaries. It has been argued by counsel for the applicants that that is the status quo and it ought to be preserved and the residents of the relevant areas affected by the increased noise level and persons who conduct business or other activities there should not be subjected to this interference over a period of some months between now and FebruaryIMarch next year when the new control tower will come into operation.

There is evidence of other considerations that must be taken into account on the question of balance of convenience. The evidence has been touched on to some extent by me already in what I have said from Mr Speed's evidence from which, amongst other things, it emerges that although the noise level will be greater to persons within the areas to the immediate north of the north-west runway that presently exists there will be a very substantial reduction in the noise level for

people living to the east and west of the airport and I must

take all those matters into account also.

There is also evidence that, in order for air traffic control at Sydney Airport to implement the revised arrangements for the parallel runway, controller training was required which entailed the training of 30 tower controllers and 57 approach departure controllers responsible for safe, orderly and expeditious flow of air traffic within 30 nautical miles of Sydney. The training required about 100 person days of controller training which included the development and use of simulation exercises. Mr Cappelletti who is the Assistant General Manager of Air Traffic Services in the Sydney District Office of the Authority has said that, and he goes on to say, (and the evidence is not challenged), that in his opinion, should the implementation of the interim arrangements be delayed by more than one week, a re-training programme would be required to maintain proficiency. Controllers currently apply a different set of procedures and to expect them to	perform in accordance with a training programme which they	have not practised for a period of time would be unreasonable.
As there are no surplus controllers in Sydney, this re- training would impinge upon other training activities, for example, ongoing training for controllers who are being transferred interstate, and thereby this has the potential to reduce the Authority's ability to deliver services.

Similarly, he says the introduction of interim procedures tomorrow followed by a reversion to the existing system at some future date would be unacceptable from an operational safety point of view. He says:

"The reason for this conclusion is the necessity to retrain controllers and pilots and disseminate significant operational documentation at short notice, which has the strong potential of introducing errors. Any change in procedures in the aviation industry presents an opportunity for error, and hence there is a requirement for proper training and documentation.

The introduction of new procedures and equipment in air traffic control necessitates short term reduction in traffic handling capability, which must then be built back up over a short period of time.

It would therefore be necessary to

implement the new procedures by 12 Novelnber 1994 so as to minimise any adverse effect on airline Christmas schedules.

The development of the procedures for the parallel runways has been undertaken by the Authority in conjunction with, amongst

others, Civil Air (the controllers

professional and industrial organisation) and representatives of the airline industry. Subsequent to the development of procedures an extensive pilot and industry briefing programme has been undertaken which included:

(a)	explaining in detail the affect of the new procedures to international and domestic airline representatives; and
(b)	assisting airlines in the development of internal training material ."

I take into account those matters also on the balance of convenience and the fact that an environmental impact study was undertaken by Mr Speed, to which I have already referred.

I will deal very briefly in a moment with the question of undertaking as to damages, but the fact is, no undertaking as to damages has been proffered by the Council, so that if any of the events should occur to which Mr Cappelletti has referred, there is no offer of monetary compensation for them. In those circumstances, there may be in due course, if interlocutory relief were granted, no financial recourse that could be had by the relevant government agencies and particularly the Authority in respect of them. Overall in my view the balance of convenience, if it had become a relevant question, would have favoured the refusal rather than the grant of interlocutory injunctive relief.

There remain four questions. First, the right of the Council to bring this action is challenged by the respondents.

It is said that the Council is not a person aggrieved within

the meaning of the ADJR Act. The Council says that it is a council in whose local government area the most directly affected persons reside and carry on business or otherwise engage in activities including schools, kindergartens, libraries and day child-care activities. Some of these activities, such as day child-care activities, libraries and kindergarten are owned and operated by the Council itself and there is evidence from a Mr Arnett, a town planer, to the effect that these facilities of the Council would be significantly adversely affected by the interim arrangements.

I do not find it necessary to decide whether or not the
Council is a person aggrieved for the purposes of the AIMR
A c t . It is sufficient if I say that as at present advised, on

that particular question I think the Council has a reasonable prospect of success in contending that it is such a person, on two grounds. First, as to its contention that it itself has an interest, such as is a person aggrieved, because of its owning and operating the facilities I have referred to; secondly, because of the very nature of the Council itself as a public body attending to the needs of its residents and rate-payers. But as I say, I express no firm view on that question.

The second question is that of alleged delay in must operate heavily against the grant of interlocutory relief	instituting these proceedings by the Council, such that it
in favour of the Council. I do not propose to deal with that
question.
Thirdly, it has been argued by certain of the respondents that no relevant decision under an enactment within the meaning of S. 3 of the ADJR Act has been made. Again, I do not find it necessary to determine that question from this interlocutory footing, interesting though it is.
The fourth question arises as to an undertaking as to damages. It does not, of course, strictly arise at all in view of my findings; but it was argued by counsel for the Council that it was not appropriate to require an undertaking as to damages if the Court had otherwise been disposed to grant interlocutory relief, because of the very nature of the Council and the public interest body which it is and the public interest which it represents in relation to rate-payers and residents. Again, I do not find it necessary to decide this question, which is an interesting and important one.
In conolusion, I say that the issues before the Court are legal questions. The Court has no power to pass judgment on whether the impact of increased noise levels of aircraft taking off from and landing at Sydney Airport is intolerable and ought to be allowed. These are social and political questions which are entrusted under our legal system to persons other than judges. It is for them to make these difficult decisions. The motion for interlocutory injunction
is dismissed.

I certify that this and the preceding thirty-four (34) pages are a true copy of the reasons for judgment herein of the Honourable Mr. Justice Lockhart.

-	a	~ c A - ^ -
M: 4 November 1994

Counsel for the Applicant	Mr P Hall QC & Mr B
Shields
Solicitors for the Applicant :	Principal Solicitor, Marrickville Council

Counsel for the First Respondent	:	Mr B Walker SC
Solicitors for the First Respondent:	Australian Government Solicitor
Counsel for the Second Respondent:	Mr A Robertson
Solicitors for the Second Respondent:	c o r r s	C h a m b e r s
Westgarth

Counsel for the Third Respondent:	Mr J Griffiths
Solicitors for the Third Respondent:	Blake Dawson Waldron
Date of Hearing	4 November 1994
Date of Judgment	4 November 1994