McLaughlin and Minister for Infrastructure, Transport, Regional Development and Local Government and Australia Pacific Airports (Melbourne) Pty Ltd (Party Joined)
[2009] AATA 562
•31 July 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 562
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/0054
GENERAL ADMINISTIVE DIVISION )
Re Keith and Norma McLaughlin
Applicants
And Minister for Infrastructure, Transport, Regional Development & Local Government
Respondent
And Australia Pacific Airports (Melbourne) Pty Ltd
Joined Party
DECISION
TribunalJustice Downes, President
Deputy President McDonald
Date31 July 2009
PlaceMelbourne
DecisionThe interests of the applicants, Keith and Norma McLaughlin, are affected by the decision sought to be reviewed.
.....................[sgd]......................
Garry Downes
President
CATCHWORDS
JURISDICTION - applicants own land with common boundary to Melbourne Airport - right of carriageway over airport land - draft and final master plan did not comply with statutory obligation to address applicants’ interests - interests of applicants affected – right to seek review.
Administrative Appeals Tribunal Act 1975 (Cth)
Airports Act 1996 (Cth)
Airports Regulations 1997 (Cth)
Airports (Building Control) Regulations 1996 (Cth)
Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 194 CLR 355 [1998] HCA 28
Brisbane Airport Corporation v Wright (2002) 120 FCR 157
Allan v Transurban City Link Ltd (2001) 208 CLR 167 [2001] HCA 58
REASONS FOR DECISION
| 31 July 2009 | Justice Downes, President Deputy President McDonald |
| Summary |
Keith and Norma McLaughlin own land which has a common boundary with the Melbourne Airport site. The airport land is owned by the Commonwealth of Australia. It is leased to Australia Pacific Airports (Melbourne) Pty Ltd. Access to Mr and Mrs McLaughlin’s land is through a right of carriageway granted by the Commonwealth over the airport land. The right of carriageway is an interest in the airport land. The question for us is whether Mr and Mrs McLaughlin have the right to invoke the jurisdiction of the Administrative Appeals Tribunal to review a decision of the Minister for Infrastructure, Transport, Regional Development and Local Government approving a master plan for the airport prepared by the lessee. We have decided that they do.
The Airports Act 1996 (Cth) makes provision for airport leases (s 13). Airport leases are “subject to all other existing interests in the land… (s 22(3))”. Part 5 of the Act deals with “Land use, planning and building controls”. The part provides for “Airport master plans” (Division 3), “Major development plans” (Division 4) and “Building control” (Division 5). These three divisions cover increasingly detailed aspects of airport development and requirements for approvals. The most general documents are airport master plans.
There is required to be “a final master plan” for each airport (s 70(1)). The “purposes of a final master plan” 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.”
Airport lessees must prepare and give a draft master plan to the Minister (s 76). The Minister must “approve” or “refuse to approve the plan” (s 81(2)). In deciding whether to approve a plan the Minister must have regard to a number of matters including “the effect that carrying out the plan would be likely to have on the use of the land… within the airport site” and “in areas surrounding the airport” (s 81(3)(b)). If the Minister approves a draft master plan it “becomes a final master plan” (s 83).
Section 71 specifies the matters that must be set out in each draft or final master plan for an airport (s 71(1)). Section 71(2) sets out the matters which a plan “must specify”. They include “the future needs of… users of the airport” (s 71(2)(b)), “intentions for land use and related development” (s 71(2)(c)) and “matters… specified in the regulations” (s 71(2)(f)). Section 71(5) authorises regulations to provide that “a draft or final master plan must address such things as are specified in the regulations”.
Regulation 5.02(3) of the Airports Regulations 1997 (Cth) provides that “a draft or final master plan must… address any interest to which the relevant airport lease is subject under subsection 22(3) of the Act”.
Airports (Melbourne) duly prepared a draft master plan. The Minister approved the plan. Neither the draft nor the final master plan made any mention of Mr and Mrs McLaughlin’s interest in the land even though that interest was directly covered by s 71 and reg 5.02(3). The plan states that it was prepared by Airports (Melbourne), but it says nothing about what standing it had to prepare the plan. It does not, for example, state that it is a lessee of the land. If it had it might have gone on to describe the limitation on its title which is represented by Mr and Mrs McLaughlin’s easement.
The Minister and Airports (Melbourne) accept that Mr and Mrs McLaughlin have an interest in the land which is an “interest to which the… airport lease is subject under subsection 22(3) of the Act” (cl 5.02(3)). This concession is plainly correct. Accordingly, neither the draft plan nor the plan approved by the Minister complies with the legislation.
A question may arise as to whether the final management plan is nevertheless valid even though it fails to comply with a mandatory requirement of the legislation. It may be valid if the invalidation of non-complying plans was not a purpose of the legislation (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355).
The proceeding before the Tribunal is not, however, judicial review, but merits review. We are required to substitute what we consider to be the correct or preferable decision for that of the Minister. It will be a rare case in which the correct or preferable decision favours the approval of a master plan which manifestly fails to comply with the requirements of the legislation authorising it.
It is very surprising to us that the first time the obligation for the master plan to address Mr and Mrs McLaughlin’s interest emerged was during the hearing, when it was raised by Mr Wilson, a person assisting Mr and Mrs McLaughlin, who is not a lawyer. This was after both the Minister and Airports (Melbourne) had concluded their submissions. The Master Plan itself has been published as a sophisticated colour production with many fold-out coloured maps and plans. It must have been subject to a costly preparation process within Airports (Melbourne). Next it was considered in the Minister’s department and possibly his office. Lawyers for both sides must have examined it. Detailed written submissions were prepared in support of the Minister’s argument that the Tribunal had no jurisdiction to consider Mr and Mrs McLaughlin’s application for review. Counsel prepared for and presented oral submissions in support of this argument. The primary basis for the argument was that Mr and Mrs McLaughlin did not have a sufficient interest to bring their case. Accordingly, what interest they had, and how it was affected by the legislation, was central to the question before the Tribunal. It is unfortunate that Airports (Melbourne) did not specifically address something which is, after all, a requirement of the legislation and that those advising the Minister did not draw this to his attention. One would have thought that the first stage in what must have been a costly process of preparing the plan would have been an analysis of the provisions governing the preparation of the master plan and the preparation of a check list to make sure they were all covered.
The way in which the matter was raised before us suggests that Mr and Mrs McLaughlin and their adviser were in fact aware of the relevant provisions. What they were not aware of was that their interest as owner of the dominant tenement in their carriageway easement amounted to an interest in the airport land. It appeared to be as a result of our placing emphasis on that matter that Mr Wilson realised that Mr and Mrs McLaughlin’s interest fell within reg. 5.02.
The master plan makes no reference to Mr and Mrs McLaughlin’s interest. It does, however, include plans on which the airport land is colour coded and classified. This includes the land over which the easement passes although nothing in the classifications or anywhere in the plans recognises that. The boundary to Mr and Mrs McLaughlin’s freehold land is also shown. A number of the plans appear to show a presently unmade road called Apac Drive, which appears to pass, at least partly, over the area of the easement, giving access to significantly developed airport land. One plan classifies the area of the easement, although not so described, along with other land, as “Road Zone 1”.
Section 99 precludes a person other than an airport lessee from carrying out any building activities on an airport site unless it “is in accordance with an approval granted under regulations…” (s 99(3)(c)). The relevant regulations are the Airports (Building Control) Regulations 1996 (Cth). Application for approval of building activities must be made to the “airport building controller”. A fee is payable. If the applicant is not the airport lessee the application must be refused “unless the application for approval has the consent of the airport lessee” (reg 2.03(2)). Consent must not be refused unless the activity is “inconsistent with… the final master plan” (reg 2.04(1)). Consent must not be refused “if, to do so, would be inconsistent with an obligation of the [airport lessee], relating directly or indirectly to approval of the building activity… under an interest to which subsection 22(3) of the Act… applies”. (reg 2.04).
Jurisdiction to appeal to the Administrative Appeals Tribunal always comes from the Tribunal Act and an enabling act specifying the reviewable decision. Subject to limited exceptions, not presently relevant, s 242 of the Airports Act permits application to the Tribunal “for review of decisions made by the Minister under this Act”. We note that the exceptions do not separate decisions approving master plans from decisions refusing approval. Section 27 of the Tribunal Act identifies who may apply, namely, “persons… whose interests are affected by the decisions”.
Uninstructed by authority, one might have thought that the above matters demonstrate that Mr and Mrs McLaughlin have a sufficient interest to make this application for review. They have an interest in the airport land. The master plan appears to affect that land. They need consent of the airport lessee for any building work they propose. The need for consent may apply even to maintenance and improvement of the carriageway.
The Minister argues, however, that Mr and Mrs McLaughlin do not have jurisdiction to bring these proceedings. He argues this on two broad grounds. First, only a refusal to approve a lease is reviewable in the Tribunal and only on the application of the airport lessee. He relies on the decision of Dowsett J in Brisbane Airport Corporation Ltd v Wright (2002) 120 FCR 157. Secondly, even if third parties can acquire a sufficient interest, Mr and Mrs McLaughlin, on any view of the facts, do not have such an interest, because, in effect, the master plan does not relevantly affect their land.
In the Brisbane Airport case the Federal Member for the electorate of Griffith, which covers areas adjacent to the airport, and who lives in the electorate, sought review of a decision to approve the Airport master plan. The Tribunal said that the member’s home was not so remote from the Airport as to deny the Tribunal jurisdiction. On appeal, Dowsett J held that the Tribunal did not have jurisdiction. Dowsett J said this (at p 167, [38]):
“My preferred view is that at least where the decision in question concerns approval of a master plan, only the lessee is an interested party for the purposes of seeking review. If the plan is approved, that is an end of the matter. If it is not approved, reasons must be given, and the lessee may seek review. A wider approach might also permit such an application by the airlines and local authorities referred to in s 71(2)(e). An even wider approach might include property owners likely to be exposed to noise intrusion above significant ANEF levels. As I have said, I prefer the first-mentioned approach. None of these approaches would permit an application by the second respondent. In the above observations, I have dealt only with the position where the attack upon a master plan is based upon "noise issues". A proper construction of Div 3 of Pt 5, especially ss 71 and 81, may arguably permit other persons to seek review upon other bases. It is not necessary to consider that possibility.”
It is to be noted that Dowsett J described his conclusion as his “preferred view”. More importantly, he noted that his decision applied only to an attack on a master plan “based upon noise issues”. The presently asserted basis for jurisdiction is not noise, but an interest in the airport land itself which has priority over the airport lease. It is difficult to imagine a stronger basis for claiming a sufficient interest.
The matters which led Dowsett J to his conclusion, and upon which the Minister relies, are as follows:
(a)“A master plan does not authorise any development in the absence of a major development plan or building approval, although it may close-off some options during its currency, at least in the absence of an approved variation” (p 167 [37]).
(b)“Pursuant to s 81(6), the Minister must notify the lessee of any decision as to the master plan and, pursuant to s 81(7), if he or she refuses to approve it, give reasons… The absence of any requirement for notice to other persons or for reasons in case of approval might well suggest that when the decision is to approve, the matter is at an end…” (p 166 [33]).
(c)“… [Section] 79 requires notice to ‘members of the public’. It is most unlikely that it was intended that any member of the public might seek review of a decision to approve a master plan. Further, although the lessee must have due regard to public comment, that is part of the formulation of the draft master plan and not necessarily part of the Minister’s decision-making process. As I have said, s 81 does not compel consideration of such comments by the Minister.” (pp 166 [34]).
Phrases such as “persons whose interests are affected by the decision” are to be construed “by reference to the subject, scope and purpose of [the relevant] statute, rather than by the application of concepts derived from decisions under the general law respecting what has come to be known as ‘standing’” (Allan v Transurban City Link Ltd (2001) 208 CLR 167 at 174 [15]-[17] per Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ).
In the case of appeals to the Tribunal one must bear in mind that the qualifying interest is specified in the Act regulating the Tribunal and not in the Act regulating airports. The section of the Airports Act conferring jurisdiction (s 242) is relevantly unqualified although it only requires notice of the right of review to be given to persons to whom notice of the making of the decision is given (s 242(3)). In passing, we observe that it is provided that a failure to comply with the notice subsection “does not affect the validity of a decision” (s 242(4)). No similar provision qualifies the obligation imposed by s 71.
Without our seeking to reconsider what was said by Dowsett J it seems to us that there must be a sufficient interest to justify an application for review where, as here, the applicant has an interest, albeit limited, in the airport land, the master plan relates in part to the land (even if it is not clear whether there is any actual affectation) and the master plan does not comply with a statutory obligation to address the applicants’ interests.
The second matter relied upon by the Minister builds on the argument that only the airport lessee has a sufficient interest. It relies particularly on the first of the matters referred to above. The master plan is not a building plan or even a development plan. It is simply concerned “to establish the strategic direction for efficient and economical development at the airport….”. Mr and Mrs McLaughlin will have an opportunity to put forward their position if and when there is any actual development proposal. There being no such proposal, even though Mr and Mrs McLaughlin might have a technical interest, they have no basis for a claim at present. In the meantime their interest in the land stands outside the master plan and is fully protected by law.
There are at least two problems with this argument. First, it confuses jurisdiction with merit. Jurisdiction is to be determined without determining whether facts show actual affectation. It is not to the point that the Tribunal might hold that the decision to approve the master plan should be affirmed because, in fact, nothing was said in the master plan about Mr and Mrs McLaughlin’s interest. Secondly, the matters we have identified above do show a factual basis for claiming affectation.
To say that there is no current development proposal is not an end of the matter. A lender might be reluctant to advance moneys for development of the applicant’s land without sighting recognition of the existence of the easement on the master plan. This is particularly so if the lender becomes aware of the obligation to include reference to it. Most importantly, the plan simply does not include matters relating to the applicant’s interest which the statute requires it to include.
For all these reasons we consider that the interests of Mr and Mrs McLaughlin are affected by the decision of the Minister for Infrastructure, Transport, Regional Development and Local Government to approve the draft final master plan prepared by Australia Pacific Airports (Melbourne) Pty Ltd so that the Tribunal has jurisdiction, pursuant to s 24 of the Tribunal Act and s 242 of the Act, to review the decision.
I certify that the twenty-six (26) preceding paragraphs are a true copy of the reasons for the decision herein of Justice Downes, President and Graham McDonald, Deputy President.
Signed: ...........................[sgd].................................................
Claire Doherty, Associate
Date/s of Hearing: 12 May 2009
Date of Decision: 31 July 2009
Representative for the Applicant: Mr Wilson
Solicitor for the Respondent: Australian Government Solicitor
Counsel for the Respondent: Mr Donaghue
Solicitor for the Joined Party: Corrs Chambers Westgarth
Counsel for the Joined Party: Mr Finanzio
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