Moorabbin Airport Corporation Pty Ltd and Minister for Infrastructure and Regional Development and Ors - [2014] AATA 101

[2014] AATA 101

Division  GENERAL ADMINISTRATIVE DIVISION
File Number  2013/4302
Re  Moorabbin Airport Corporation Pty Ltd
APPLICANT

And Minister for Infrastructure and Regional Development
RESPONDENT

And Kingston City Council
PARTY JOINED

And Dingley Village Community Association Inc
Savlanut Properties Pty Ltd
TPSC Pty Ltd
City of Greater Dandenong
Ventana Pty Limited
APPLICANTS TO BE JOINED AS PARTIES

DECISION

Tribunal  Deputy President S A Forgie
Date  27 February 2014
Place  Melbourne
Decision:The Tribunal has decided to:
1.join the City of Greater Dandenong as a party to the application; and
2.refuse the applications by the Dingley Village Community Association Inc, Savlanut Properties Pty Ltd, TPSC Pty Ltd , and Ventana Pty Limited to be joined as parties to the application.

[sgd] SA Forgie
Deputy President

CATCHWORDS - PRACTICE AND PROCEDURE – applications for joinder – whether applicants are persons whose interests are affected by the decision – whether discretion should be exercised.

LEGISLATION

Administrative Appeals Tribunal Act 1975sections 2A, 27(1), 29(2)(a)-(b), 30(1)(c), 30(1A), 31(1A), 33(1)(b), 37(1)
Airports Act 1996; ss 3, 4, 68(1)-(2), 70(1)-(2), 71, 71(2)(e), 71A(1)-(2A), 72(1), 76, 77(1), 78, 79(1)(a), 79(1B), 80, 81(3), 81(4), 81(10), 83(1), 84, 84A, 85, 86, 87, 89(1)(c)-(g), 89(1)(nb), 89(5), 90(1), 91(1), 91(1A), 91(1)(a)-(d), 91(1)(c), 91(1)(ga), 91(4), 92(1), 92(1)(a)(iv), 92(1A), 92(2)(iii), 92(2A), 92(2B), 93, 93A, 94(1), 94(2)-(4), 94(7)-(9), 94(7A), 94A, 96(2), 242(1)-(3)
Development Allowance Authority Act 1992; ss 93A, 119(1)(a)
Planning and Environment Act 1987 (Vic); s 14
CASES

Allan v Transurban City Link Ltd [2001] HCA 58, (2001) 208 CLR 167; 183 ALR 380
Alphapharm Pty Ltd v Smithkline Beecham (Aust) Pty Ltd [1994] FCA 996; (1994) 49 FCR 250; (1994) 121 ALR 373; 32 ALD 71
Botany Bay City Council v Minister of State for Transport and Regional Development [1996] FCA 1507; (1996) 66 FCR 537; 137 ALR 281; 41 ALD 84
Brisbane Airports Corporation Ltd v Wright [2002] FCA 359; (2002) 120 FCR 157; 77 ALD 411; 35 AAR 192
Comptroller-General of Customs v Members of the Administrative Appeals Tribunal (1994) 123 ALR 140; 32 ALD 463
Direct Factory Outlets Pty Ltd v Westfield Management Ltd [2005] 34; (2005) 144 FCR 23
Edwards v Australian Securities Commission and Others (1997) 72 FCR 350; 142 ALR 455; 24 AAR 192
Kioa v West [1985] HCA 81; (1985) 159 CLR 550; 62 ALR 321
Marrickville Council v Minister for the Environment, Sport and Territories [1996] FCA 851
Minister for Immigration and Multicultural Affairs v Eshutu (1999) 197 CLR 611; 162 ALR 577
North Coast Environment Council Inc v Minister for Resources (No 2) (1994) 55 FCR 492
Ogle v Strickland (1987) 13 FCR 306
Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636; 290 ALR 616; 130 ALD 1
Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No 1) [1980] AATA 78; (1980) 3 ALD 74; 50 FLR 1
Re Coonan and Commissioner of Taxation [2006] AATA 329; (2006) 90 ALD 472; 43 AAR 29
Re McLaughlin and Minister for Infrastructure, Transport, Regional Development and Local Government [2010] AATA 266
Re Peters and Department of Health and Aged Care (1999) 56 ALD 561
Re Queensland Investment Corporation and Minister for Transport and Regional Services [2004] AATA 1025; (2004) 84 ALD 717
Re Scott and Secretary, Department of Social Security (1996) 42 ALD 738
Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (Right to Life) [1995] FCA 1060; (1995) 56 FCR 50; 128 ALR 238; 37 ALD 357
Salemi v MacKellar (No 2) (1977) 137 CLR 396
Sun v Minister for Immigration and Ethnic Affairs [1997] FCA 324
United States Tobacco Company v Minister for Consumer Affairs and Others Unreported, 15 September 1988, No. G158 of 1988
REASONS FOR DECISION

The Moorabbin Airport occupies approximately 294 hectares of land some 21 kilometres south east of Melbourne. It is owned by the Commonwealth, which leased it on 18 June 1998 to Moorabbin Airport Corporation (MAC) for a period of 50 years. MAC, which was formerly known as the Metropolitan Airports Corporation Pty Ltd, proposed a Master Plan for the Moorabbin Airport. When that Master Plan was approved in 2010, it identified various areas for future development. For each area, it set out key development objectives, principles of development control and preferred land uses. One is described as Precinct D. A key objective for Precinct D is to develop a strong employment node which includes commercial and retail uses. MAC could not proceed to develop the area in accordance with those objectives unless it first developed a draft major development plan (MDP) and had it approved by the Minister.

On 15 May 2003, MAC presented to the then Minister for Broadband, Communications and the Digital Economy (Minister)[1] a draft MDP for an area of 4.8 hectares in Precinct D. The development would include five stores in the Wesfarmers Group: Coles Supermarket, Kmart, Officeworks, Kmart Auto and a 1^st Choice liquor outlet. Together, the stores would cover 14,500 square metres comprising retail uses, built form, vehicle and pedestrian access, building and service infrastructure and landscaping treatments.
[1] The Minister with responsibility for administering the Airports Act is now the Minister for Infrastructure and Regional Development: Administrative Arrangements Order, 12 December 2013.

On 5 August 2013, the Minister refused to approve the draft MDP. After reviewing the draft MDP and the submissions that had been made on it during the consultation period, the Minister concluded that MAC had not adequately addressed the conclusions reached in the submissions that had been made on behalf of the Kingston City Council (KCC). Furthermore, in the Minister’s view, MAC had not demonstrated that it had paid sufficient regard to the comments made during the consultation period as required by s 92(2)(iii) of the Airports Act1996 (Airports Act).

MAC applied to the Tribunal for review of the Minister’s decision. With the consent of MAC and the Minister, the Tribunal made an order joining KCC as a party to the proceedings after it applied on 3 October 2013 for that order. There followed a further eight applications by persons seeking to be joined as a party to the proceedings. Three of those applicants for joinder have since withdrawn but MAC and the Minister oppose the remaining applications. KCC consents to their being joined. Those applications have been made by the Dingley Village Community Association Inc (DVCA), Savlanut Properties Pty Ltd (Savlanut), TPSC Pty Ltd (TPSC), the City of Greater Dandenong (CGD) and Ventana Pty Limited (Ventana). I have decided that, although each of the applicants for joinder has interests affected by the Minister’s decision, the CGD alone should be joined as a party. I now set out my reasons for making that decision.

THE MINISTER’S REASONS FOR DECISION

At Attachment A, I have set out the relevant provisions of the Airports Act that provide the backdrop to the decision that the Minister made under s 94(2). He first satisfied himself that the proposed building described in the draft MDP was a major airport development within the meaning of s 89(1)(e). He found that the building would neither be wholly nor principally for use as a passenger terminal and its cost exceeded $20 million. The Minister then went on to consider whether MAC and its proposed MDP had included material addressing all of the matters set out in ss 91(1), 92 and 93 of the Airports Act.[2] He found that it had done so.
[2] See [87]-[90] below

Then, as he was required to do, the Minister went on to consider the matters set out in
s 94(3).[3] He was not limited to them in deciding whether or not to approve, or refuse to approve, the draft MDP[4] and returned to the matters that a draft MDP must address under
[3] See [91] below
[4] Airports Act; s 94(4)
s 91(4).

In so far as they appear to relate to this matter at this stage, ss 91(1)(a), (c) and (ga) require a draft MDP to set out:
“(a) the airport-lessee company’s objectives for the development; and
(b)…
(c)a detailed outline of the development; and
(d)-(g)…
(ga)the likely effect of the proposed developments that are set out in the major development plan, or the draft of the major development plan, on:
(i)-(ii)…
(iii)the local and regional economy and community including an analysis of how the proposed developments fit within the local planning schemes for commercial and retail development in the adjacent area; …”

Section 91(4) provides:
“In specifying a particular objective or proposal covered by paragraph (1)(a), (c) or (ga), a major development plan, or a draft of a major development plan, must address:
(a)the extent (if any) of consistency with planning schemes in force under a law of the State in which the airport is located; and
(b)if the major development plan is not consistent with those planning schemes – the justification for the inconsistencies.”

With these provisions in mind, the Minister summarised the information that MAC had included in its draft MDP and further information that had been provided in response to a request under s 93A. He concluded that the expert reports that had been provided by MAC and KCC demonstrated conflicting conclusions on issues relating to the extent of the consistency of the proposed development with local planning schemes and with its predicted impact on the local community and economy. Furthermore, he formed the view that these conflicts had not been satisfactorily resolved in the processes relating to the development of a draft MDP and there remained a substantial question regarding the impact that the development would have.

This was so even though he acknowledged that views had been sought and obtained from other bodies. The Victorian Government, for example, had said that, although a Commonwealth owned airport was outside its area of responsibility, the development was considered to be broadly aligned with its overall planning policy direction and with its current planning policy. The Minister noted that the correspondence received from the Victorian Government had provided neither unqualified support for the proposal nor a substantive assessment of its impacts.

The Minister noted that MAC had included a detailed analysis of all submissions made during the public consultation period and provided a response, whether in the form of an amendment to the draft MDP or some other action, while referring to assessments and conclusions reached in commissioned research. While acknowledging that MAC had taken this course in relation to the submission made by the KCC, the Minister observed that it had not provided any issue to show that it had worked through these issues with the council or its representatives in an attempt to resolve a shared position. Finally:
“The Minister considered MAC did not adequately address the conclusions reached in Kingston City Council’s submission and did not sufficiently demonstrate due regard to the comments made during the consultation period as required under
s 92(2)(iii) of the Act.”[5]

As he did not have independent expert advice on the issues, the Minister was not satisfied that the draft MDP should be approved.

APPLICANTS AND GROUNDS ON WHICH THEY APPLY TO BE JOINED

[5] Documents lodged under s 37(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act) (T documents) at T1 at 20

Ventana Pty Limited

On behalf of Ventana, Mr Morris QC with Mr Nekvapil of counsel submitted that Ventana’s interests are affected by the decision under review because it owns Westfield Southland, which is a large retail, entertainment and transport centre in the same catchment area as the proposed development at Moorabbin Airport. Any decision to allow the proposed development to proceed would adversely affect Ventana and would be unfair to it if made without proper regard to Victorian planning controls. As Ventana’s interests could be adversely affected by the Tribunal’s decision, it should be given the opportunity to be heard. In addition, it is in a position to lead evidence and make submissions that would not otherwise be available to the Tribunal. In that way, Ventana would assist the Tribunal to perform its functions.[6]
[6] Why Ventana should be made a party lodged on 10 December 2013 at [2]

These submissions were developed in the remainder of Mr Morris’s submissions. He referred to the principles that relate to the Tribunal’s power under s 30(1A). I will refer to them later in these reasons. The case of Re Queensland Investment Corporation and Minister for Transport and Regional Services[7] (Queensland Investment), Mr Morris submitted, is relevantly indistinguishable from this. The interests of the Queensland Investment Corporation (QIC) were affected by a draft Master Plan relating to the Essendon Airport. The focus was upon QIC’s investment in the Watergardens Shopping Centre located some 10 kilometres from the Essendon Airport and the compatibility of the proposed development with local planning schemes. The same considerations apply in this case. Their application is strengthened when it is remembered that the Airport Act has been amended since Queensland Investment was decided in 2004.
[7] [2004] AATA 1025; (2004) 84 ALD 717

In his reasons for decision, the Minister had said that he was not satisfied that the draft MDP sufficiently demonstrates that MAC had paid due regard to the comments made during the public consultation period as required by s 92(2)(iii). Ventana is unsure whether the Minister will want to uphold the decision of his predecessor, Mr Morris submitted. In that case, it may be that only KCC seeks to have the decision affirmed. Ventana’s evidence and submissions will be framed from a different perspective to that of the council. It should be made a party in preference to the other applicants for joinder as its interests are substantial and significantly different from their interests.
Mr Andrew David Robertson is the General Manager, Development and Asset Management of Westfield Limited. Mr Robertson’s affirmation was lodged in support of Ventana’s application. For the purposes of this hearing, I accept that the matters he deposes to and summarised in the following two paragraphs are accurate.

Ventana owns Westfield Southland, which is a major shopping centre. Westfield Southland is managed by Westfield Shopping Centre Management Co (VIC) Pty Limited (WSC Management). It straddles the Nepean Highway and is accessible by bus terminals. The Victorian Government has proposed that a railway station be developed at Westfield Southland but has asked Ventana to make a contribution towards its cost. It and Ventana are currently in negotiations.

Among the larger of the retailers operating from Westfield Southland are David Jones, Myer, Harris Scarfe, Big W, Kmart, Target, Coles, Woolworths and Aldi. The majority of retailers are smaller specialty retailers and are often sole proprietors. In addition to the retail stores there is a Village Roadshow complex comprising nine screens and including Gold Class and Vmax auditoriums. Overall, the retailers and businesses at Westfield Southland employ approximately 2,500 employees. Ventana estimates that, in 2012, there were approximately 15.7 million customer visits to its shopping centre. For planning purposes, it is located in the same catchment area as the Moorabbin Airport. The Kingston Planning Scheme is the applicable local planning framework.

Mr Robertson stated that to permit the development at Moorabbin Airport in a way that is inconsistent with the Kingston Planning Scheme would give rise to an inequitable commercial environment in which Ventana and others would be obliged to operate within planning constraints not applicable to its competitors on the airport site. A redirection of sales from Westfield Southland to the Moorabbin Airport would be inevitable. A decrease in sales leads to a decrease in rental and heighten the cost of Ventana’s investment in Westfield Southland as a Principal Activity Centre. Heightened costs influence Ventana’s decisions relating to the standard at which Westfield Southland is maintained and the investment it makes in the expansion of public amenities such as the bus network and proposed railway station. Reduced investment of this sort affects not only the tenants at Westfield Southland and their businesses but flows on to the community, which potentially faces a decrease in services.

City of Greater Dandenong

The municipality of CGD adjoins that of KCC. It is the responsible authority for administering the Greater Dandenong Planning Scheme (GD Planning Scheme), the planning authority for preparing planning scheme amendments and has responsibility for the preparation of structure plans for activity centres. In view of its responsibilities, CGD made a submission to the Minister raising its concerns that the proposed land uses in the draft MDP are not consistent with retail hierarchy in the Kingston and GD Planning Schemes. The draft MDP proposes commercial land uses on the basis that the uses could not generally be developed on more suitable land within the wider Kingston area. It is clearly evident, CGD submitted, that these proposed commercial land uses could be established in other areas of both municipalities that already have appropriate zoning, policies and strategies. In CGD’s view, there have been omissions from the retail analysis of key permitted retail sites within the municipality of CGD. Those omissions suggest to CGD that there is the possibility that the correct impact of the proposal has not been provided in the report. Therefore, the draft MDP has not adequately demonstrated that the need for such retail outlets is such close proximity to established centres is warranted. In addition, it is not adequately proven that there will be no adverse or unacceptable impact on the surrounding activity centres.

The GD Planning Scheme, CGD’s solicitor, Mr Barnaby McIlrath submitted, sets out a policy for a network of activity centres, each of which serves different roles. The Master Plan fails to identify a range of retail uses which exist in the area which bear on the question of consistency with the GD Planning Scheme. The expansion of commercial and retail operations at the airport threatens to undermine investment in the activity centres within CGD’s municipal district as well as that of KCC.

Councils’ planning exercises need to be considered in the context of the State Planning Scheme made under the Planning and Environment Act 1987 (Vic). Clause 11.01-2 of the State Planning Scheme sets out the following objective:
“Objective
To encourage the concentration of major retail, residential, commercial, administrative, entertainment and cultural developments into activity centres which provide a variety of land uses and are highly accessible to the community.”

Clause 11.04 sets out the policy underpinning the role that various activity centres will play.

Clause 17.01-2 seeks to manage development outside activity centres by setting out a number of strategies. Among those strategies are the following:
“Ensure that proposals or expansion of single use retail, commercial and recreational facilities outside activity centres are discouraged by giving preference to locations in or on the border of an activity centre.
Ensure that out-of-centre proposals are only considered where the proposed use or development is of net benefit to the community in the region served by the proposal or provides small scale shopping opportunities that meet the needs of local residents and workers in convenient locations.”

CGD has promoted the State Planning Policy by promoting its activity centres for the roles that they provide. Clause 21.02 of the GD Planning Scheme, which is headed “Municipal Profile”, depicts its major and principal activity centres in their regional context. Annexure A to the GD Planning Scheme contains a pictorial representation of their location within the CGD municipal area and also indicates the location of the Moorabbin Airport outside that municipal area. Land Use is the subject of cl 21.04 of the GD Planning Scheme. It sets out a local policy to develop the role, character and identity of activity centres outside of Central Dandenong. Strategy 2.1 for this objective is:
“Focus major new retail activities to Springvale, Parkmore and Noble Park – the major activity centres and in retail centres at the corner of Springvale/Athol Roads, at the corner of Corrigan Road and Kingsclere Avenue and at the corner of Princes Highway and Centre Road.”

The activity centres within the same economic catchment as the Moorabbin Airport clearly stand to be adversely affected by the expansion of retail uses of the type which can be expected if the Master Plan is approved. Therefore, it was submitted, the proposal threatens to undermine the achievement of policy objectives for which CGD is responsible. This is supported by the judgment of Lehane J in Botany Bay City Council v Minister of State for Transport and Regional Development[8] (Botany Bay).
[8] [1996] FCA 1507; (1996) 66 FCR 537; 137 ALR 281; 41 ALD 84 at [85]; 567-568; 310; 109-110; Lehane J

TPSC Pty Ltd

TPSC owns the Thrift Park Shopping Centre at 171 Nepean Highway, Mentone (TPS Centre). The TPS Centre has recently been redeveloped. It includes a large supermarket, a range of specialty shops, offices and related facilities and is regarded as a local neighbourhood Activity Centre. It operates alongside other local, sub-regional and regional centres and is described as “… providing important convenience and lower order comparison goods shopping services to the local Mentone and Cheltenham communities.”

At the hearing, TPSC was represented by its Director, Mr Jeremy Walker. He made oral submissions and also relied on a letter written on behalf of the company by Mr Ian d’Oliveyra of Network Planning Consultants Pty Ltd sent to MAC. A copy of that letter was lodged in the Tribunal as a summary of TPSC’s concerns. Mr d’Oliveyra had summarised those concerns:
“Our client has serious concerns that a development of this type will adversely impact on the existing balanced retail hierarchy in the sub-region with consequent adverse affects [sic] on the operation and future planning and development prospects of the existing Activity Centres nearby (including Thrift Park) and in turn on the economic and social well-being of local communities.”[9]
[9] Letter to MAC dated 4 March 2013 and lodged in the Tribunal on 6 December 2013 at 1-2

Mr d’Oliveyra’s submission addressed two main issues: jurisdictional and planning. In relation to jurisdictional issues, he submitted that there is:
“… certainly no intention in the Constitution or Government legislation that surplus Commonwealth Government land can be hived-off for a private commercial use unrelated to the purpose for which the land is being managed under the cloak of Constitutional protection and in the face of local community concerns.”[10]
[10] Letter to MAC dated 4 March 2013 and lodged in the Tribunal on 6 December 2013 at 2

In summary, Mr d’Oliverya submitted that the draft MDP does not adequately assess the likely social and economic effect of the proposal having regard to the relevant local planning scheme being the Kingston Planning Scheme. This is contrary to the requirements of s 91(ga)(iii) of the Airports Act. He referred to three clauses in the State Planning Policy:
[11] cl 11.01-2
[12] cl 11.04-2
[13] c 11.04-6
cll 11, 16, 17 and 18. He developed each. Clause 11, Mr d’Oliveyra submitted, requires planning to recognise diversity of choice, economic viability and energy efficiency. In that context, sub-clauses go on to deal with matters such as Activity Centre Planning,[11] Activity Centre Hierarchy[12] and Green Wedges.[13] Clause 16.01-2 is concerned with the location of residential development in or close to Activity Centres or other strategic redevelopment sites that offer good access to services and transport.

Clause 17.01-1 is concerned:
“To encourage development which meets the communities’ [sic] needs for retail, entertainment, office and other commercial services and provides net community benefit in relation to accessibility, efficient infrastructure use and the aggregation and sustainability of commercial facilities.”
A key strategy of cl 17.01-2, Mr d’Oliveyra submitted, is to ensure that single retail use and commercial uses are discouraged outside Activity Centres.

Clause 18.04-2 is concerned with airports. Its objective is to strengthen their role within the State’s economic and transport infrastructure. Moorabbin Airport is specifically identified as an important regional asset and, the future development of which, should support and enhance the aviation industry and the functions of the airport.

Mr d’Oliveyra developed each of these against the draft MDP to support his submission that the proposed development is in conflict with the objectives of the State Planning Scheme. He:
“… submitted that if there is a seriously entertained proposal to develop the land for private commercial purposes unrelated to the airport, then the land should be alienated from the airport, placed in private hands and brought with the aegis of the Kingston Planning Scheme. In this way the future planning, development and use of the land would be subject to proper planning processes with the checks and balances that are inherent in the Victorian planning scheme.”[14]

Mr d’Oliveyra then turned to Local Planning Policy. He referred to the land uses set out in cl 21 and to the incompatibility of the proposed development with that policy.

[14] Letter to MAC dated 4 March 2013 and lodged in the Tribunal on 6 December 2013 at 7

With regard to the matters raised by s 94, TPSC would have expected to see MAC’s detailed response to each of the issues raised by that provision. It drew attention to what it saw as the following defects:
“· This proposal does not relate to the airport in terms of its landside operations and will do nothing to attract new businesses or attract a more diverse range of uses to and in the airport. The proposal in fact prejudices opportunities which may be realised in the longer term for the future optimum development of the airport with aviation-related facilities.
·The final Master Plan for the airport makes only superficial reference to a Coles Group development – with no detailed provision made. Certainly no rationale has been established in the Master Plan as to why and under what circumstances a large shopping centre at the airport is in any way relevant to the operation of the airport.
·It is implausible that the proposed big-box shopping centre will serve the future needs of either users or patrons of the airport.
·It is unlikely that the proposed development will enhance employment levels at the airport – bearing in mind that the leasing and sub-leasing arrangements proposed will mean that the land will have been alienated from the airport proper (and therefore will no longer form any part of it in practical terms).
·The proposal is for an ad hoc out-of-centre retail development which provides no ‘fit’ within the local Planning Schemes – and in particular the established and preferred activity centre hierarchy that is enshrined in the Kingston Planning Scheme. The strident opposition to the proposal by the Kingston City Council is a demonstration of the fact that the proposal has no town planning justification.”

TPSC supports the submissions made by KCC regarding the Economic Impact Assessment that has been prepared by Essential Economics Pty Ltd (Essential Economics). On its behalf, Mr d’Oliveyra developed submissions directed to showing the inconsistencies between the draft MDP and the Master Plan and those between the draft MDP and KCC’s Retail/Commercial Development Strategy prepared in 2006 and the objectives of planning in Victoria. He continued:
“The proposal has the potential to undermine the basis of an orderly planning system which provides a rational basis for decision-making, particularly on major commercial projects.”[15]

[15] Letter to MAC dated 4 March 2013 and lodged in the Tribunal on 6 December 2013 at 10

Savlanut Properties Pty Ltd

Mr Dean Savage made a submission on behalf of Savlanut, which owns the Dingley Village Shopping Centre (DVSC). That shopping centre is located approximately 2.5 kilometres south east of the site of the proposed development at the Moorabbin Airport. Savlanut holds a current planning permit allowing it to redevelop the DVSC and, in doing so, to significantly increase the size of the existing supermarket and other retail space. Mr Savage noted that an Economic Impact Statement commissioned by MAC from Essential Economics and dated August 2012 significantly underestimates the effect that the proposed development would have on the DVSC. While Essential Economics estimated that effect to be in the order of 8.5%, Savlanut pointed to the estimated 29% impact in the report of SGS Economics & Planning Pty Ltd (SGS). That is considered to be a conservative estimate of the impact of the Coles supermarket in the draft MDP because, in SGS’s view, the turnover of that proposed supermarket is likely to have been underestimated by Essential Economics. In any event, the impact of the turnover of the liquor store in the draft MDP had not been factored in to its estimate. If Savlanut were to proceed with the proposed expansion of its own supermarket, SGS estimated that the impact of the proposed MDP would be in the order of 46%. Even a decrease of 29%, Mr Savage submitted, would be likely to lead to a number of tenants’ being unable to pay their rent. That, in turn, would have serious financial consequences for Savlanut as the impact of the proposed development would be ongoing and it would be unlikely to attract tenants to replace those who could not continue.

Dingley Village Community Association Inc

DVCA is a community organisation with over 200 members representing the concerns of Dingley Village residents. At the hearing, it was represented by its Secretary, Mr David Madill, who made oral submissions supplementing those made in writing. His essential submissions are summarised in the following extract from DVCA’s written submissions:
“Should the Minister’s decision be overturned residents of Dingley Village would be adversely impacted by the effect on our existing shopping centre and village way of life.
·Along with our nearby Community centre, our local shopping centre forms and important part of our unique ‘Village’ ethos, encouraging residents to meet, socialise and interact.
·A large shopping complex less than 800m away from the Dingley Village boundary will have an adverse effect on our shopkeepers, many of whom live in Dingley and support our community.
·The viability of part of our shopping centre has already being [sic] cast into doubt by its current owner.
·The Airport has no residential catchment of its own and will draw shoppers from our centre.
·There are approximately 9,000 residents in Dingley Village, the nearest suburb to the proposed development. This number is only sufficient to support our own shopping centre.
·Dingley Village residents wish to see the orderly, ongoing refurbishment of their existing shopping centre rather than the proposed airport development.
·Many elderly residents live nearby and walk to our shops. Any reduction in services (from our shops being forced to close) would seriously disadvantage them.
·Our local traders generously support local organisations such as schools, kindergartens, sports clubs and the Senior citizens. Any downturn in business will restrict their ability to continue this support.”[16]
[16] Letter to the Tribunal dated 29 November 2013

MAC’S SUBMISSIONS

On behalf of MAC, Mr Niall SC with Ms Porter of counsel submitted that, when it is used in s 30(1A) of the Administrative Appeals Tribunal Act 1975 (AAT Act), the phrase “interests are affected” must be understood in light of the scope and purpose of the enactment under which the decision under review was made and by reference to the nature of the decision itself. They referred to the cases of Alphapharm Pty Ltd v Smithkline Beecham (Aust) Pty Ltd[17] (Alphapharm), Brisbane Airports Corporation Ltd v Wright[18] (Wright), Allan v Transurban City Link Ltd[19] (Allan) and Direct Factory Outlets Pty Ltd v Westfield Management Ltd[20] (DFO).
[17] [1994] FCA 996; (1994) 49 FCR 250; (1994) 121 ALR 373; 32 ALD 71; Davies, Burchett and Gummow at 272; 395-396; 91-92 per Gummow J
[18] [2002] FCA 359; (2002) 120 FCR 157; 77 ALD 411; 35 AAR 192 at [26]; 165; 418; 199-200 per Dowsett J
[19] (2001) 208 CLR 167; 183 ALR 380 (Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ, Kirby J dissenting)
[20] [2005] FCA 34; (2005) 144 FCR 23 at [51]; 42

While s 92 of the Airports Act is designed to invite comment from the general public on a draft MDP and while s 96 is designed to inform it of the content of an approved MDP, those provisions are not relevant to the Minister’s decision-making process under s 94. Citing the judgment of Dowsett J in Brisbane Airports Corporation Ltd v Wright[21] (Wright), they submitted that a person’s mere participation in the consultation process is not sufficient to give that person an interest affected by the decision that is made at the conclusion of that process. Not only is that the case, MAC was required to consult only with KCC and with no other.
[21] [2002] FCA 359; (2002) 120 FCR 157; 77 ALD 411; 35 AAR 192; Dowsett J

None of the applicants for joinder had submitted any evidence in support of their applications to be joined as parties. They made detailed submissions in relation to the Ventana’s application and made briefer submissions in relation to the other applicants. The main points they made were that, in his affidavit, Mr Robertson has not given any evidence, in the form of quantitative or empirical data or otherwise,[22] supporting his assertions that:
(1)Westfield Southland is in the same catchment area as the proposed development or how an area he describes as a “trade area” is said to correlate with a “catchment area”;
(2)existing patronage will be redirected away from Westfield Southland;
(3)redirection away from Westfield Southland would negatively affect the growth of sales at Westfield Southland;
(4)diminished growth would lead to there being a downward pressure on rent; and
(5)a slowdown of that sort would necessarily heighten the cost of Ventana’s investment in Westfield Southland.
[22] The submissions made the same criticism of Savlanut’s evidence when it relied on an affidavit of its representative at the hearing, Mr Dean Savage. Mr Savage relied on an SGS Economics and Planning Report that had been commissioned by KCC. On behalf of MAC, it was submitted that the author of the report had not been called to give evidence. Consequently, the author’s opinions remained untested.

At their highest, it was submitted on behalf of MAC, Ventana’s interests relate to its facing an increase in commercial competition. Interests of that sort are not relevant to the objects of the Airports Act, the scheme for regulating a major development project at an airport or the decision under review. Mr Niall and Ms Porter acknowledged that Ventana’s complaint seems to be that the development of the Moorabbin Airport in a way that is inconsistent with the Kingston Planning Scheme would give rise to an inequitable commercial environment. It would be inequitable in that Ventana and others are obliged to operate within town planning constraints that are not applicable to those with which they must compete but which are not bound by the same town planning constraints. On behalf of MAC, Mr Niall and Ms Porter submitted that Ventana’s submission amounts to no more than a complaint that Commonwealth land is not regulated by State planning law. It does not give rise to a finding that Ventana’s interests (or those of Savlanut) are affected by the decision under review.

In relation to the jurisdictional issues raised by TPSC, MAC takes the position that arguments of that sort were comprehensively dealt with by the Federal Court in Direct Factory Outlets Pty Ltd v Westfield Management Ltd.[23]
[23] [2005] FCA 34; (2005) 144 FCR 23; Cooper J

If it should prove the case that I find that any of the parties has an interest affected by the Minister’s decision, I should exercise the discretion not to join them, it was submitted on behalf of MAC. KCC, which is legally represented, has dealt comprehensively with all relevant issues raised by the applicants for joinder and has supported its submissions with planning and economic impact assessment reports prepared by SGS. There can be no doubt that, to the extent that any applicant for joinder has established an interest that will be affected in the relevant sense, KCC will address that issue at the hearing of the application. In the event that Ventana or other applicants for joinder wished to offer a perspective or information that would not otherwise be before the Tribunal, it could provide that information to KCC or give evidence in support of the submissions made by KCC.

If the Tribunal were to decide that the establishment of an interest affected is sufficient to attract the requirements of procedural fairness, then all persons whose interests are affected should be given the opportunity to be heard. To do that, though, is to render the discretion found in s 30(1A) devoid of any content. Finally and referring to , MAC submitted, it can be doubted that Parliament intended that any member of the public be heard in connection with the Minister’s decision-making process under s 94 of the Act. It distinguished my earlier decision in Queensland Investment on the following bases:
“(a) The decision under review was a decision to approve a draft master plan under Division 3 of Part 5 of the Act;
(b)The Minister in making that decision was bound to have regard to the effect that carrying out the master plan would be likely to have on the use of land in areas surrounding the airport (s 81(3);
(c)The Tribunal ‘decided no more than that the applicant had standing because one of the matters that the Minister was required to have regard [to] was the manner in which the draft master plan might affect the use of land in areas surrounding the airport’;[24]
(d)That was the effect referred to in the passage cite at para 35 of Ventana’s submissions, which is not an effect to which the Minister, or the Tribunal in his shoes, is bound to have regard under s 94; and
(e)The Tribunal made that decision on the basis of specific findings of fact following considerable lay and expert evidence summarised in paragraphs [5]-[24] and [38]-[39], including the fact that the relevant rival shopping centre had not been developed to its full potential ([38]).”[25]
[24] Re McLaughlin and Minister for Infrastructure, Transport, Regional Development and Local Government [2010] AATA 266 at [35]; Deputy President Hack
[25] Submissions on behalf of the Applicant for Review Joinder Applications at [18]

THE MINISTER’S SUBMISSIONS

The submissions made on behalf of the Minister were framed in terms looking at all of the applicants for joinder including KCC. After summarising the matters that concerned the Minister, the submission continued:
“The central concern in the dMDP process was in relation to the consistency of the proposed development with planning schemes and its impact on local communities. The competing views of Moorabbin Airport Corporation and Kingston City Council were, and remain, critical to determining this issue.
Kingston City Council is able to adequately assist the Tribunal to these issues. It has already expended significant resources in assessing them. As the local council, it shares responsibility for the local community and for planning and development in the region of Moorabbin Airport. Of all the parties who have been, or may become, joined to the proceedings, it is best placed to assist the Tribunal on the impact of the proposed development and its consistency with local planning schemes.”[26]
[26] Respondent’s Submissions on Joinder; dated 13 December 2013 at [14]

At the heart of the Minister’s submissions is the proposition that each of the remaining applicants for joinder is also indicating a concern that the proposed development is inconsistent with State and local planning schemes and would adversely affect the local retail economy. KCC not only dealt with these issues in its submission to on the draft MDP during the public consultation process, it is well placed to ventilate the issues at the hearing of the application. The Minister’s reasons for decision showed that his central concern with the draft MDP was with what he saw to be MAC’s failure to work through the issues raised by the KCC regarding the consistency of the proposed development with planning schemes and its impact on local communities.

After summarising the concerns raised by each of the applicants seeking to be joined as parties, the Minister submitted that each “… indicates a concern that the proposed development is inconsistent with State and local planning schemes and would adversely affect the local retail economy.”[27] Permitting each to be joined would be both unnecessary and add substantially to the expense and length of the Tribunal’s decision-making process. In any event, the submission continued:
“… Hearing from eight different parties on essentially the same issues is unlikely to materially and significantly assist the Tribunal to reach its decision. Ventana Pty Ltd notes in its Submissions that it will ‘provide direct evidence, and submissions from a different perspective, to that of the Council’. But it is not necessary for the Tribunal to have before it every possible permutation of evidence and submission about a limited number of issues in order to come to the correct or preferable decision.”[28]
[27] Respondent’s Submissions on Joinder; dated 13 December 2013 at [19]
[28] Respondent’s Submissions on Joinder; dated 13 December 2013 at [21]

The views of the applicants for joinder will, in any event, be among the material to be considered by the Tribunal because they are included within the draft MDP Supplementary Report. There is no need to join them as parties for the Tribunal can consider their views by reference to their submissions.

The Minister also submitted that the Airports Act does not require him to consider the submissions and comments that are made as a result of the public consultation phase. Section 92(2) of the Airports Act places an obligation on the airport-lessee company, in this case MAC, to have regard to those submissions and comments and to summarise them in the draft MDP.
“As Dowsett J noted in Brisbane Airport Corporation Ltd v Wright [2002] FCA 359 (in the context of very similar legislative provisions, under Part 5 Division 3 of the Act), it is ‘most unlikely’ that the obligation imposed to notify members of the public and invite comments to be made was intended to allow any member of the public to be heard in connection the decision-making process or review of the Minister’s decision: see [34]-[36].
The existence of a right in members of the public to comment on a draft MDP, and the fact that the Joinder Applicants have done so, does not support a finding that the Joinder Applicants should be joined to the proceedings.”[29]

[29] Respondent’s Submissions on Joinder; dated 13 December 2013 at [26]-[27]

THE TRIBUNAL’S POWER TO JOIN A PARTY
Section 30(1A)

The Tribunal’s power to make a person a party to a proceeding is found in s 30(1A) of the AAT Act. It provides:
“Where an application has been made by a person to the Tribunal for a review of a decision, any other person whose interests are affected by the decision may apply, in writing, to the Tribunal to be made a party to the proceeding, and the Tribunal may, in its discretion, by order, make that person a party to the proceeding.”

It is apparent that s 30(1A) requires two steps to be taken. First, the Tribunal must be satisfied that the person applying to be joined as a party is a “person whose interests are affected by the decision”. If the person is such a person, the Tribunal must take the second step. That is to decide whether it should make an order joining that person as a party. The Tribunal must take that second step because Parliament has given it the power to do so but has not required it to do so. That follows from the fact that s 30(1A) has provided that the Tribunal “may, in its discretion”, make a person whose interests are affected by the decision under review a party to the proceeding.

CONSIDERATION

Jurisdictional issue

With regard to the jurisdictional issue raised on behalf of TPSC Pty Ltd, I agree with Mr Niall that, at least as far as this Tribunal is concerned, Cooper J decided the issue in the DFO case. In that case, Cooper J decided that an airport-lessee company was not limited to the activities at an airport that were directly related to the operation of that airport as such. I will set out only a part of his judgment in which he explained his view:
“ The effect of Dr Kasarda’s evidence which I accept is that to operate and/or develop an airport by operating and developing it for a mix of uses which included both aviation and non aviation uses would not be outside the contemporary acceptance of what constitutes the operation and/or development of an airport.
There is nothing in the A Act or ATA [Airports (Transitional) Act 1996], or in the secondary materials accompanying such Acts, which would indicate an intention to limit the activities of an airport-lessee company under an airport lease to a narrower range of activities than those carried on by the FAC [Federal Airports Corporation] under its statutory functions to operate the core regulated airports including the extended functions. Those functions included carrying on commercial activities at or in relation to Federal airports, using land at a Federal Airport for a purpose not directly related to aviation and constructing buildings on land at a Federal Airport for a purpose not directly related to aviation: ss 7(2) and 8(1)(b) of the FAC Act. The secondary materials set out above, the provisions of the ATA and the inclusion of s 87 of the A Act, demonstrate a statutory intention that an airport lessee would acquire the whole of the activities carried on by the FAC at a core regulated airport and would continue those activities and develop the lands comprised in the airport lease, in accordance with the lease terms with or without the benefit of land use planning already undertaken by the FAC in respect of aviation and non-aviation uses.”[30]
[30] [2005] 34; (2005) 144 FCR 23 at [67]-[68]; 46

General principles

At Attachment B, I have analysed the principles that are relevant in determining whether a person is a person whose interests are affected within the meaning of s 30(1A) of the AAT Act. They underpin this part of my reasons. Having regard to them, it seems to me that I must first identify the decision of which review is sought, then identify the person’s interests that are affected and finally decide whether they are interests of the sort that bring the person within the scope of the provision.

This is consistent with the approach taken by the High Court in Allan. In essence, Mr Allan’s interest arose out of the fact of the construction of the proposed toll road and its effect on the environs through which it passed. The decision made by the Development Allowance Authority (DAA) in issuing a certificate to Transurban City Link Limited (Transurban) related to borrowing it intended to undertake in order to construct the toll road. A certificate would entitle any entity lending funds to Transurban to concessional tax treatment under the Income Tax Assessment Act 1936 (ITAA36). Transurban would be denied deductions under ITAA36 for interest payments on its borrowings but would benefit because lenders would have an incentive to offer it funds at a lower interest rate than would otherwise be the case.

Therefore, while the DAA’s decision would assist Transurban to build the toll road by enabling it to find funding more readily, it was not the decision that had authorised the building of the toll road in the first place. It was the decision to approve its being built that might have affected Mr Allan’s interests. Decisions relating to the manner of its funding did not.

An examination of cases such as Botany Bay and Wright might suggest that it is relevant to examine the legislative scheme to examine whether or not the person had an entitlement to make submissions, or perhaps to be heard, before the decision was made and whether the person had an entitlement to be notified of the decision. An examination of Botany Bay reveals that these matters were considered but that they were considered in the context of the application that had been made under the ADJR Act. They were not referred to in the judgment of Lehane J and he specifically referred to its not being unusual in what could loosely be described as a “public interest case” that a person had standing, and so had interests affected by a decision, even though that person had no right to be heard in relation to its making. That was the case in Ogle v Strickland[31] and in North Coast Environment Council Inc v Minister for Resources (No 2), to which Lehane J referred, as well as in Botany Bay itself.
[31] (1987) 13 FCR 306

In deciding Wright, Dowsett J has had regard to the process leading to the decision under review. It might be thought that his Honour has taken a different approach to that taken in Allan and in cases such as Botany Bay. I do not think that is necessarily the case. Certainly, he has looked at such matters but he has done so in the context of an analysis of the decision. He then follows with a consideration of the nature of the interests that are capable of being affected given the nature of the decision. The decision was to approve a Master Plan for the Brisbane Airport against a background of a legislative scheme permitting a commercial arrangement to be entered into between the Commonwealth and the airport-lessee company. Dowsett J drew these strands together at [37]-[38] of his judgment that I have set out at [111] below.

This case is different from Wright in that it concerns a draft MDP which, if approved, would authorise a particular development. It is clear from the requirement in s 94(7A) of the Airports Act that, unless the Minister states otherwise, the approval is subject to the development’s being completed by a certain date. That date must be within five years of the approval.[32] That takes it from the realm of what might be called a concept in a Master Plan to reality. The concept might well change over time but, if approved, an MDP is changing what is the existing situation.
[32] See [92] below

In that context, considerations of whether or not those seeking to be joined were advised of the draft MDP or how they found out about it and the time they took to decide to apply to be joined, become of no consequence in determining whether their interests are affected by a decision. Considerations of that sort may become relevant in the exercise of the discretionary power to join them but not in considering whether they meet the criterion that gives the Tribunal that discretionary power.[33]
[33] They would also be relevant in determining whether a person, who had interests affected by the decision and wanted to apply for its review but who had not been given a document setting out the terms of that decision, had lodged an application for review within time. When given a copy of the terms of the decision, a person has 28 days from the day on which the document is given in which to lodge an application: AAT Act; s 29(2)(a). That may be modified by the enactment and s 29(2)(b) of the AAT Act prescribes the time period when a copy of the decision is not given but certain other documents are given to the person. When notice of a decision is given publicly through a newspaper, it cannot be said that it has been “given to the applicant”. In that case, ss 29(4), (5) and (6) would come into play. They provide for the situation in which no time has been prescribed for lodging an application and require the Tribunal to consider whether the application has been lodged within a reasonable time.

The fact that the Minister is required to notify the airport-lessee company of a decision whether to approve a draft MDP and, in the case of a refusal to approve, of the reasons for that refusal,[34] does not lead to the conclusion that other persons may not have interests affected by the decision whether it be to refuse to approve or to approve.
[34] Airports Act; ss 94(8) and (9)
Are the applicants for joinder persons whose interests are affected by the Minister’s decision?

I will now consider whether I am satisfied whether the applicants for joinder, or any of them, have interests affected by the Minister’s decision to refuse to approve the draft MDP. In so far as they do have any such interests, it cannot be said that, as the decision stands, they are adversely affected but there is no requirement in s 30(1A) that there need be an adverse effect.
A. City of Greater Dandenong

Like KCC, CGD is a responsible authority for administering the Planning Scheme under the Victorian Planning and Environment Act 1987. That means that it has statutory functions giving it responsibilities for planning the use of the land within its municipal area. While it is not responsible for carrying out those functions in an area around the Moorabbin Airport, it is responsible for doing so in an area that is contiguous to the area in which the airport is located. Indeed, the area for which KCC is the planning authority is bounded on its western border by Port Phillip Bay and on its eastern by the area for which CGD is responsible. What happens in planning terms in one area cannot be quarantined from what happens in an adjoining area and a development in one may have a consequential effect on the other. That is so in relation to both CGD and KCC for each has Planning Schemes complementing each other in terms of the planning principles they incorporate. Each, for example, sets out a policy for a network of activity centres, each of which serves different roles. Both CGD and KCC have invested in their activity centres.
Matters to which the Minister must have regard in deciding whether to approve, or refuse to approve, a draft MDP are set out in s 94(2) but s 94(3) makes it clear that that is not an exclusive list of matters. Although this is not the time to express a concluded view on the matter, for that will happen if the matter proceeds to a hearing, I would suggest that I must look to s 91 for other matters to which the Minister would be required to have regard. Section 91 sets out what a draft MDP or MDP must contain. If the Minister were not to have regard to that content just because it is dealing with a subject not listed in s 94(2), there would be no point in Parliament’s requiring that it be addressed in the document given to the Minister.
I refer, for example, to s 91(1)(ga)(iii) when it provides that the draft MDP or MDP must set out the likely effect of the proposed development on the “the local and regional economy and community including an analysis of how the proposed developments fit within the local planning schemes for commercial and retail development in the adjacent area.”[35] Although this is not the time to express a concluded view on the subject, it would seem that Parliament would not regard the GD Planning Scheme as relating to an “adjacent area”. The ordinary meaning of the word “adjacent” is “… lying beside or next to it …”.[36] That strongly suggests that the Minister must look to how the development would fit within the local planning schemes for commercial and retail development in the adjacent area being, in this case, the area for which KCC is the planning authority. That, however, does not exclude the area for which CGD is responsible. The draft MDP must also set out the likely effect of the proposed development on the broader areas being “the local and regional economy and community”. The focus on the planning schemes in the adjacent area is only part of that wider subject. It is in that wider subject that CGD’s interests are said to be affected as well as in relation to the maintenance of the planning schemes that are in place and that are said to be, in essence, both consistent and complementary.
[35] Airports Act; s 91(1)(ga)(iii)
[36] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

In view of the matters that may be among those that are relevant in the review of the Minister’s decisions, I am satisfied that CGD is a person whose interests are affected by the Minister’s decision.

B.Savlanut, TPSC and Ventana

I will consider the interests of Savlanut, TPSC and Ventana together for they are similar. All have commercial interests that may be affected by the proposed development and all are concerned that it is not in keeping with the KCC Planning Scheme. The shopping centres in which each has an interest vary in size but that variation is not relevant. Given their location to the site of the proposed development at Moorabbin Airport, I am satisfied that each has interests affected by the decision under review. Each faces the potential loss of customers. A loss of that sort would affect the role that each plays in the Planning Scheme. Westfield Southland, for example, is a Principal Activity Centre and the TPS Centre is a Local Neighbourhood Activity Centre. Each centre, including the DVSC owned by Savlanut, has its part to play in the Planning Scheme. A loss of viability in playing that role affects the owner’s interests as well as that of KCC as the responsible authority. In view of these matters, I am satisfied that each has interests affected by the Minister’s decision.

C. Dingley Village Community Association Inc

The DVCA is the only community group that has continued with its application to be joined as a party. As represented by its Secretary, Mr Madill, the DVCA is a community group committed to the preservation of its local shopping centre, the DVSC owned by Savlanut, so that the community’s existing amenities and the village atmosphere can be retained. Its interest in seeking to be joined to the proceeding for review of the Minister’s decision is to retain them.

Given that their interests are focused on the DVSC and their immediate community, I do not think that it can be said that their interests are simply those of the general community. Their interests stand out from those of the broader community of KCC and of the community in neighbouring council areas. They have a particular interest in Dingley Village and its environs. Therefore, I am satisfied that the DVSC is a person whose interests are affected by the Minister’s decision.

Should the applicants for joinder be joined as parties?

As I have explained in Attachment B, this is a different question from whether they have interests affected by the decision. As was said in Kioa v West, to which I refer at [97(7)] in Attachment B that, subject to one qualification:
“… The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations subject only to the clear manifestation of a contrary statutory intention. … “

The qualification is that this principle does not apply to every administrative decision. Decisions that have more general application do not but that the Minister’s decision is not a decision of that sort. The parties applying for joinder have very particular interests that are affected. Having said that, acting with procedural fairness does not necessarily lead to the conclusion that I must join each of the applicants for joinder, or any, of them as a party. I must also consider fairness as it applies to all parties and considerations of expedition as it applies to a system of review intended to resolve applications and to lead to a decision that is correct on the evidentiary material and the law and, if discretionary, also the preferable decision.

When I look at the competing considerations against that background, I note that, essentially, each of the applicants for joinder is concerned that the development proposed in the draft MDP is inconsistent with the Kingston Planning Scheme. Each points to the fundamental principles on which that planning scheme has been formed and each bases its argument on the inconsistencies between the proposed development in the draft MDP and the Kingston Planning Scheme and the planning principles underlying it. Savlanut, for example, also relies on the report commissioned by the KCC from SGS. KCC also seeks to ensure that any development at the Moorabbin Airport is consistent with the principles underpinning the Kingston Planning Scheme and, in particular, with the hierarchy of centres including local neighbourhood, sub-regional and regional centres.

Certainly, the evidence of the owners of shopping centres such as Ventana, Savlanut and TPSC may be relevant in explaining the impact that a development outside that hierarchy will have on the continuing availability of the services provided at various levels of the hierarchy of activity centres. Community interest groups such as DVCA may be able to offer evidence of the way in which any impact of the proposed development on that hierarchy may have on the community generally. Even though that is the case, evidence of the sort that they are likely to give is evidence of the sort that is likely to be led to establish the case that KCC is putting forward. After all, their interests are very similar. It is likely that there would be a considerable degree of overlap in the evidence. Certainly, that can be managed by restricting the evidence that certain parties are permitted to lead and the areas on which they are entitled to cross-examine. That might be a course I would consider were it not the case that KCC is the responsible authority for administering the Kingston Planning Scheme.

As it is, KCC is the responsible authority and, under s 14 of the Victorian Planning and Environment Act 1987, is responsible:
“(a) to efficiently administer and enforce the planning scheme; and
(aa) to enforce any enforcement order or interim enforcement order relating to land covered by a planning scheme for which it is the responsible authority; and
(b) to implement the objectives of the planning scheme; and
(c) to comply with this Act and the planning scheme; and
(d) to provide information and reports as required by the Minister.”

In my view, those responsibilities change the balance of the interests that I must consider. KCC has responsibilities that must take into account matters that lie at the heart of the interests of all of the parties to be joinder other than CGD. In those circumstances, I think that considerations of expedition and efficiency outweigh the understandable interests of each of Ventana, Savlanut, TPSC and DVSCA in presenting its own case.[37]

[37] I note that I reached a different decision in Queensland Investment but there is a marked difference between the cases. While both cases concern standing, the situation in Queensland Investment was that QIC wished to apply for review of the Minister’s decision. It was not seeking to be joined as a party to an application that had been brought by another as is the case here. Therefore, contrary to the situation in this case, there was no other party, whether as an applicant or as a party joined, already challenging the decision under review on a basis similar to that which it wished to pursue.

That leaves the application by the CGD. Like KCC, it is responsible for administering a planning scheme based on very similar principles to that administered by KCC. Where it differs from KCC is that its responsibilities and interests do not lie in the area administered by KCC. It is that difference that persuades me that CGD should be joined as a party.

AIRPORTS ACT: general outline

As the Long Title of the Airports Act says, it is “An Act about airports”. Its objects are:
“(a) to promote the sound development of civil aviation in Australia;
(b)to establish a system for the regulation of airports that has due regard to the interests of airport users and the general community;
(c)to promote the efficient and economic development and operation of airports;
(d)to facilitate the comparison of airport performance in a transparent manner;
(e)the ensure majority Australian ownership of airports;
(f)to limit the ownership of certain airports by airlines;
(g)to ensure diversity of ownership and control of certain major airports;
(h)to implement international obligations relating to airports.”[38]
[38] Airports Act; s 3
Section 4 sets out a simplified outline of the Airports Act. After providing that “The Act sets up a system for regulating airports”, it goes on to describe the limits that will be imposed on those who may lease a Commonwealth-owned airport to run it. That lessee is called the “airport-lessee company” and may contract the management of the airport to another company known as the “airport-management company”. The term “airport-operator company” covers either the lessee or the management company. There will be a master plan for each airport and major development plans will be required for significant developments at airports. Building activities on airport sites require approval and buildings and structures on airport sites must be certified as complying with regulations made under the Airports Act. For each airport, there will be an environment strategy. An airport operator company may be required to give various reports and accounts and comply with standards set out in regulations.

Airport master plans

Part 5 of the Airports Act is concerned with land use, planning and building controls. Provided there is an airport lease for the airport, Part 5 applies to a “core regulated airport” and to an airport prescribed by regulation.[39] The boundaries of an airport are the boundaries of the airport site for the airport.[40] The Moorabbin Airport is both a core regulated airport and an airport prescribed by regulations.
[39] Airports Act; s 68(1)
[40] Airports Act; s 68(2) The airport site for Moorabbin Airport is that described in Part 1.15 to Schedule 1of the Airport Regulations 1997.

Section 70(1) requires that each airport must have a final master plan relating to a period of 20 years[41] but remaining in force for a period of five years or until it is replaced by a fresh plan.[42] Its purposes 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 that the intended uses of the airport site; and
(d)to reduce potential conflicts between uses of the airport site, and to ensure that uses of the airport site are compatible with the areas surrounding the airport; and
(e)to ensure that all operations at the airport are undertaken in accordance with relevant environmental legislation and standards; and
(f)to establish a framework for assessing compliance at the airport with relevant environmental legislation and standards; and
(g)to promote the continual improvement of environmental management at the airport.”
[41] Airports Act; s 72(1)
[42] Airports Act; s 77(1). An airport-lessee company must give the Minister a further draft master plan before the expiration of the five year period: Airports Act; s 76. The master plan already in operation remains in operation, even beyond its five year term, until the further draft is approved by the Minister: Airports Act; s 78.

Section 71 specifies those matters that must be addressed in each draft and final master plan. Among those matters are:
“(a) the airport-lessee company’s development objectives for the airport; and
(b)the airport-lessee company’s assessment of the future needs of civil aviation users of the airport, and other users of the airport, for services and facilities relating to the airport; and
(c)the airport-lessee company’s intentions for land use and related development of the airport site, where the uses and developments embrace airside, landside, surface access ad land planning/zoning aspects; and
(d)-(ga)…
(gb)in relation to the first 5 years of the master plan – detailed information on the proposed developments in the master plan that are to be used for:
(i)commercial, community, office or retail purposes; or
(ii)for any other purpose that is not related to airport services; and
(gc)in relation to the first 5 years of the master plan – the likely effect of the proposed developments in the master plan on:
(i)employment levels at the airport; and
(ii)the local and regional economy and community, including an analysis of how the proposed developments fit within the planning schemes for commercial and retail development in the area that is adjacent to the airport; and
(h)-(j)…
Note 1: Airside means the part of the airport grounds, and the part of the airport buildings, to which the non-travelling public that does not have free access.
Note 2:Landside means the part of the airport grounds, and the part of the airport buildings, to which the non-travelling public has free access.”

A draft or final master plan must identify any proposed sensitive development in the plan.[43] Subject to certain exceptions specified in s 71A(2A), “sensitive development” is a development, or a redevelopment that increases the capacity, of a residential dwelling, a community care facility, a pre-school, a primary, secondary, tertiary or other educational institution or a hospital.[44]
[43] Airports Act; s 71A(1)
[44] Airports Act; s 71A(2)

An airport-lessee company must advise certain State and local authorities of its plan to give the Minister a draft master plan. It must do so in writing. Those it must advise are the State Minister having responsibility for town planning or use of land, the relevant State authority having responsibility for town planning or use of land and each local government body having responsibility for an area surrounding the airport.[45] After it has notified those bodies, the airport-lessee company must give notice of its preliminary version of a draft master plan. It must do that by publishing notice of it in a newspaper circulating generally in the State in which the airport is located and on the company’s website. In that notice, it must advise that copies are available for inspection and purchase and, through, the website, available free of charge as well as inviting members of the public to give their written comments about the preliminary version.[46]
[45] Airports Act; s 79(1B)
[46] Airports Act; s 79(1)(a)

If members of the public make written comments, their comments must be included in the documents that the airport-lessee company must submit to the Minister under s 70(2). If, before publishing the notice in the newspaper, the airport-lessee company consulted a State government, an authority of a State, a local government body, an airline or other user of the airport concerned or any other person, it must notify the Minister of that and summarise their views.[47]
[47] Airports Act; s 80

A Minister who has been given a written draft master plan, must either approve, or refuse to approve, the plan. Without limiting the matters to which the Minister must have regard,[48] matters to which regard must be had are:
[48] Airports Act; s 81(4)
“(aa) the extent to which the plan achieves the purposes of a final master plan (see subsection 70(2));
(a)the extent to which carrying out the plan would meet present and future requirements of civil aviation users of the airport, and other users of the airport, for services and facilities relating to the airport concerned;
(b)the effect that carrying out the plan would be likely to have on the use of the land:
(i)within the airport site concerned; and
(ii)in areas surrounding the airport;
(c)the consultations undertaken in preparing the plan (including the outcome of consultations)’
(d)the views of the Civil Aviation Safety Authority and Airservices Australia, in so far as they relate to safety aspects and operational aspects of the plan.”[49]
[49] Airports Act; s 81(3)

Although a sensitive development is not proposed in this case, I note that s 81(10) provides:
“The Minister’s approval of a draft master plan that contains a sensitive development does not stop the Minister from refusing to approve, under Division 4, a major development plan for a sensitive development.”

Once approved by the Minister, a draft master plan becomes a final master plan and comes into force at the time of approval.[50] Section 84 permits minor variation of a final master plan provided the process set out in s 84A is followed. Section 85 sets out the airport-lessee company’s obligations if it becomes aware of a matter that may significantly affect achievement of the plan.
[50] Airports Act; s 83(1)

MAC’s master plan

The Moorabbin Airport Master Plan was approved in 2010.

Major development plans

Division 4 of Part 5 of the Airports Act is concerned with major development plans. Unless a major development is either carried out in accordance with a major development plan approved under that Division or is a development of a kind declared by regulations to be exempt from that Division, an airport-lessee company must not carry out a major airport development relating to the airport. Nor may it cause or permit it to be carried out unless it is carried out in accordance with a major development plan.[51]
[51] Airports Act; s 90(1)

Developments that come within the description of a “major airport development” are those set out in s 89. Only a development of a kind described in s 89(1)(nb) is relevant but those in ss 89(1)(c), (d), (f), (g) and (na) will also provide contextual background:
“For the purposes of this Act, a major airport development is a development that is carried out at an airport site and that consists of:
(a)-(b)…
(c)constructing a new building wholly or principally for use as a passenger terminal, where the building’s gross floor space is greater than 500 square metres; or
(d)extending a building that is wholly or principally for use as a passenger terminal, where the extension increases the building’s gross floor space by more than 10%; or
(e)…
(f)constructing a new taxiway, where:
(i)the construction significantly increases the capacity of the airport to handle movements of passengers, freight or aircraft; and
(ii)the cost of construction exceeds $20 million or such higher amount as is prescribed; or
(g)extending a new taxiway, where:
(i)the construction significantly increases the capacity of the airport to handle movements of passengers, freight or aircraft; and
(ii)the cost of construction exceeds $20 million or such higher amount as is prescribed; or
(h)-(n)…
(na)a development of a kind that is likely to have a significant impact on the local or regional community; or
(nb)-(o)…”

If the airport-lessee company applies to the Minister to consider whether a development of the type specified in ss 89(1)(c), (d), (f), (g) or (ha) constitutes a major airport development, the Minister may determine in writing that the development does not constitute a major airport development. The Minister may only do that if:
“… satisfied, on reasonable grounds, that the development will not:
(ii)change the flight paths; or
(iii)change the patters or levels of aircraft noise; or
(iv)unduly increase the noise heard by, or unduly cause a nuisance to, the community adjacent to the airport.”[52]
[52] Airports Act; s 89(5)

The purpose of an MDP is twofold. It establishes details of a major airport development that relates to the airport and that is consistent with the airport lease for the airport and its final master plan.[53] The details it must set out are the subject of s 91(1). In addition to setting out the airport-lessee company’s objectives for the proposed major airport development, details of it and whether or not it is consistent with the airport lease and the final master plan,[54] it must set out matters such as:
[53] Airports Act; s 91(1A)
[54] Airports Act; s 91(1)(a), (c), (ca) and (d)
“(a) the airport-lessee company’s objectives for the development; and
(b)the airport-lessee company’s assessment of the extent to which the future needs of civil aviation users of the airport, and other users of the airport, will be met by the development; and
(c)a detailed outline of the development; and
(ca)whether or the development is consistent with the airport lease for the airport; and
(d)if a final master plan for the airport is in force – whether or not the development is consistent with the final master plan; and
(e)-(g)…
(ga)the likely effect of the proposed developments that are set out in the major development plan, or the draft of the major development plan, on:
(i)traffic flows at the airports and surrounding the airport; and
(ii)employment levels at the airport; and
(iii)the local and regional economy and community, including an analysis of how the proposed developments fit within the local planning schemes for commercial and retail development in the adjacent area; and
(h)-(l) …”

Section 91(4) expands upon the matters that must be addressed under ss 91(1)(a), (c) and (ga):
“In specifying a particular objective or proposal covered by paragraph (1)(a), (c) or (ga), a major development plan, or a draft of a major development plan, must address:
(a)the extent (if any) of consistency with planning schemes in force under a law of the State in which the airport is located; and
(b)if the major development plan is not consistent with those planning schemes – the justification for the inconsistencies.”

The process for gaining approval for an MDP is much the same as gaining approval for an airport master plan. Before giving a draft MDP to the Minister, the airport-lessee company must advise the same State and local government authorities as before of its intention to give the Minister the draft MDP.[55] There are three authorities: the Minister of the State in which the airport is situated with responsibility for town planning or use of the land; the authority of the State with responsibility for town planning or use of the land; and each local government body with responsibility for an area surrounding the airport.[56]
[55] Airports Act; s 79(1B) and see also s 92(1A)
[56] Airports Act; s 92(1A)

After giving those public authorities that notice but before giving the Minister the draft MDP, the airport-lessee company must also give notice of it to the public. That notice must be published in a newspaper circulating in the State as well as on its website. It must advise that a draft MDP has been prepared and how members of the public may either purchase a copy of that document or obtain it free of charge from the airport-lessee company’s website.[57] Members of the public must be invited to give written comments about the draft version to the airports-lessee company within the specified consultation period.[58] A period of 60 business days is generally allowed for comment but, with the approval of the Minister, it may be as short as 15 days.[59] If comments are made, those comments must be summarised and presented to the Minister together with the names of those who made them, the draft MDP and material demonstrating that the airports-lessee company has had due regard to those comments in preparing that draft.[60] Where the airports-lessee company has consulted with others before it gave notice of the draft MDP to the public, it must advise the Minister of those consulted and summarise their views.[61]
[57] Airports Act; s 92(1)
[58] Airports Act; s 92I1)(a)(iv)
[59] Airports Act; ss 92(1)(a)(iv), 92(2A) and (2B)
[60] Airports Act; s 92(2)
[61] Airports Act; s 93

Once given a draft MDP, the Minister must either approve, or refuse to approve, it. In deciding whether to approve the plan or not, the Minister is not limited to the matters set out in s 94(1)[62] but:
[62] Airports Act; s 94(3)
:… must have regard to the following matters:
(aa)the extent to which the plan achieves the purpose of a major development plan (see subsection 91(1A));
(a)the extent to which carrying out the plan would meet the future needs of civil aviation users of the airport, and other users of the airport, for services and facilities relating to the airport;
(b)the effect that carrying out the plan would be likely to have on the environment;
(c)the impact that carrying out the plan would be likely to have on the environment;
(d)the consultations undertaken in preparing the plan (including the outcome of the consultations);
(e)the views of the Civil Aviation Safety Authority and Airservices Australia, in so far as they relate to safety aspects and operational aspects of the plan;
(f)if the plan relates to a sensitive development:
(i)whether the exceptional circumstances that the airport-lessee company claims will justify the development of the sensitive development at the airport; and
(ii)the likely effect of the sensitive development on the future use of the airport site for aviation related purpose; and
(iii)the likely effect of the sensitive development on the ground transport system at, and adjacent to, the airport.”[63]
[63] Airports Act; s 94(3)

A.Previous authorities

Section 33(1)(b) of the AAT Act requires that:
“the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; …”

This provision was referred to by Davies J in Control Investment, to which I have referred above. He then continued by saying that the Tribunal “… may not, in a proper case, refuse to make an order joining a person whose interests are affected by the decision under review.”[107] His Honour gave an example of the circumstances in which making a person a party to a proceeding might not be “a proper case”. They:
“… may occur where the person applying to be made a party has not applied within a reasonable time and his joinder at a late stage would unduly impede the expeditious conclusion of the proceedings or where, although an organisation has an object or purpose to which the decision relates, joinder is sought not for the purpose of protecting or supporting that interest but with some other end view. … While it will ordinarily be the duty of the Tribunal to make an order joining a party whose interests are affected by the decision under review, that duty is limited by the function which the Tribunal performs and by its duty to provide a fair hearing and to deal with the matter as expeditiously as the subject matter of the review permits.”[108]
[107] (1980) 50 FLR 1; 3 ALD 74 at 10; 80
[108] Re Control Investments Pty Ltd and Australian Broadcasting Tribunal (No 1) [1980] AATA 78; (1980) 50 FLR 1; 3 ALD 74 at 10; 80-81 per Davies J

As for the three parties whom his Honour had decided had interests affected by the decision, he decided:
“ There are no grounds on which it would be proper to refuse to join the Australian Labor Party, Justice in Broadcasting or the Australian Journalists Association. They have interests which are affected by the decisions under review and their respective interests are different from each other. It is proper that they be made parties. There has been no undue delay in the making of their applications for joinder.”[109]
[109] [1980] AATA 78; (1980) 50 FLR 1; 3 ALD 74 at 13; 83-84

In Re Marine World Victoria Ltd and Minister for Arts, Heritage and Environment[110] (Marine World) Deputy President Thompson adopted the principles in Control Investment and added that:
“… That discretion must, of course, be exercised rationally with regard paid to all of the circumstances of the proceeding and the nature of the interest of each of the persons applying to be made a party. It is necessary to have regard to the nature of review proceedings before the Administrative Appeals Tribunal. As was pointed out in Re Control Investments [sic] Pty Ltd,^[[111]] the Tribunal is required by the AAT Act to provide a fair hearing and to carry out the review as expeditiously as the subject matter of the review permits … The increased cost of the proceeding to the applicant and the respondent which will result from the joinder of additional parties in the proceeding is a factor to be taken into account … I am unable to accept that the Tribunal should allow Marine World to be subjected to greater expense than is necessary for the proper review of the Minister’s decision. Further, the Tribunal must be concerned with the cost not only to Marine World but also to public funds and endeavour to contain it to what is sufficient to enable it to undertake a proper review.
(33) There is also the requirement that the matter be dealt with expeditiously. That, and the need to keep the cost within proper bounds, make it undesirable that there should be a multiplicity of different parties each separately represented and presenting a separate case. …”[112]
[110] (1986) 10 ALD 262
[111] Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No 1) [1980] AATA 78; (1980) 50 FLR 1; 3 ALD 74; Davies J, President
[112] (1986) 10 ALD 262 at 271-272, [32]-[33]. Deputy President Thompson went on to direct that parties whose interests were substantially the same should be represented by a common representative. In Re Peters and Department of Health and Aged Care (1999) 56 ALD 561 at 577, Senior Member Bayne directed that the joined parties be limited in their participation to making written submissions in relation to one issue.

Some cases have sought to introduce a requirement that the interests of the person applying to be made a party must be substantially and significantly different from those who are already parties to the proceeding.[113] For the reasons I have previously given in Re VBN and Australian Prudential Regulation Authority,[114] I am of the view that Deputy President Thompson’s statement on this issue has been misunderstood. He was considering separate applications by a number of people to be joined to an application for review of a decision refusing a permit to take cetaceans in Commonwealth waters for live display and educational purposes. He took into account that the costs to the applicant and respondent would be greater than were necessary for the proper review of the application were he to grant each application. He also looked to the cost to public funds in containing the hearing to that which was sufficient to enable the Tribunal to undertake a proper review. It was in that context that he thought that an application should only be granted if that person had interests substantially and significantly different from others applying to be made parties. The decision cannot be read as supporting a more general proposition that a person applying to be made a party must have interests substantially and significantly different from those of one or other of the parties.

B.The place of procedural fairness in the balance of interests

[113] See, for example, Re Peters and Department of Health and Aged Care (1999) 56 ALD 561 in which Senior Member Bayne referred to Re Boyd and Comcare (1991) 23 ALD 392 at 394; O’Connor J, President and Re Scott and Secretary, Department of Social Security (1996) 42 ALD 738 at 741; Senior Member Dwyer in support of the proposition.

[114] [2005] AATA 861; (2005) 92 ALD 437; 44 AAR 192 at [26]-[31]; 450-452; 206-209

B.1 Statutory requirements: sections 2A and 33(1)(b)

Since Control Investment and Marine World were decided, s 33(1)(b) has been

complemented by s 2A of the AAT Act. It provides that:
“In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.”

Provisions of this sort have been described as “general exhortatory provisions”.[115] They are intended to be facultative and not restrictive.[116] Section 2A, I respectfully suggest is expressing nothing more than is said in s 33(1)(b) and the principles in Control Investment do not require adjustment as a result of the subsequent addition of s 2A. I will explain why I have reached that conclusion.

[115] Sun v Minister for Immigration and Ethnic Affairs [1997] FCA 324 per Lindgren J

[116] Minister for Immigration and Multicultural Affairs v Eshutu (1999) 197 CLR 611; 162 ALR 577 at 628; 588 per Gleeson CJ and McHugh J and 659; 613 per Hayne J and see also similar views expressed by Gaudron and Kirby JJ at 635; 592-594

Certainly, no reference is made in s 33(1)(b) to a proceeding’s being conducted economically but I would have thought that inherent in the nature of merits review of administrative decisions and woven into the fabric and structure of the Tribunal itself. No express reference is made in s 2A, as it is in s 33(1)(b), to the need to have regard to the requirements of the AAT Act and of the enactment under which the decision is made as well as the need to engage in a proper consideration of the matters raised by the review of a particular decision. That must, however, be taken to be inherent in the recognition in the opening words of s 2A when it specifies the qualities that the Tribunal must pursue in “carrying out its functions”. Those functions must be to resolve applications for review lodged with it either by means of processes that may generally be described as those of alternative dispute resolution or by means of a formal review. In either case, in giving proper consideration to the matters before it regard must be had to the requirements of the AAT Act and of the enactment under which the decision under review was made as well as to the general law and the evidentiary material. Except for the reference to the general law, those are matters specifically addressed in s 33(1)(b). I will return to the general law below.

A mechanism of review leading to a “just” outcome, as required by s 2A, must be one that has regard to the requirements of the law and the evidentiary material as required by
s 33(1)(b). Finally, the requirement in s 33(1)(b) that the “… proceeding shall be conducted with a little formality and technicality, and with as much expedition, as …” the legislative requirements permit equates with the exhortation in s 2A that, in carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is “economical, informal and quick”.

On behalf of the Minister, his solicitor, Mr Palfrey, drew my attention to a passage from the decision of Re Coonan and Commissioner of Taxation.[117] Mr and Mrs Coonan had applied under the Freedom of Information Act 1982 (FOI Act) for access to documents relating to the valuation of certain properties. The Australian Capital Territory Planning and Land Authority (Authority) and a corporate body applied to be joined as parties to the application the Coonans made to the Tribunal for review of a decision refusing them access. Both parties for joinder asserted that their interests would be affected by access being given under the FOI Act. The Authority argued that access would release trade secrets, diminish the value of information and have an adverse effect on its business, commercial or financial interests. The corporate body asserted that intellectual property it owned in information in the documents would be adversely affected were access to be given to those documents.
[117] [2006] AATA 329; (2006) 90 ALD 472; 43 AAR 29
Mr Webb, Member, decided that both the Authority and the corporate body had interests affected by the decision.

In asking himself whether there were sufficient grounds to exercise the discretion under s 30(1A) of the AAT Act in relation to either or both of the Authority and the corporate body, Mr Webb weighed the matter in terms of s 2A:
“ In the circumstances if standing is granted delay and additional costs will result. That is the basis of the applicant’s stated objection to the joinder applications. However, the increase in costs and delay that will ensue from the grant of standing must be weighed against the particular interests pressed by those seeking standing.
… In performing its functions, the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick (s2A, AAT Act). Those values stand in relation to each other. No one stated objective is to be advanced without reference to and consideration of the other stated objectives. Economy and quickness, however desirable, do not outweigh fairness, but are measured in relation to it. In the circumstances it is proper and fair to permit those seeking standing in these proceedings, whose interests are affected by the decision under review, to present their cases and be heard. It is also proper and fair to bring these proceedings to conclusion without undue delay or any unreasonable increase in costs to the existing parties.”[118]
[118] [2006] AATA 329; (2006) 90 ALD 472; 43 AAR 29 at [20]-[21]; 473; 33

In deciding to join the Authority and the corporate body as parties to the proceeding,
Mr Webb balanced these competing interests by setting a tight timetable for them to lodge and serve affidavits setting out the evidence on which they wished to rely in support of the claimed exemptions and by accepting an undertaking on behalf of the Commissioner of Taxation that the number of witnesses called would remain the same.

B.2 Common law requirements

Unless contrary to an enactment, there is a requirement under the general law that the Tribunal act with procedural fairness. This is clear from the judgment of Mason J in Kioa
v West:
“ The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations subject only to the clear manifestation of a contrary statutory intention. … But the duty does not attach to every decision of an administrative character. Many such decisions do not affect the rights, interests and expectations of the individual citizen in a direct and immediate way. Thus a decision to impose a rate or a decision to impose a general charge for services rendered to ratepayers, each of which indirectly affects the rights, interests or expectations of citizens generally does not attract this duty to act fairly. This is because the act or decision which attracts the duty is an act or decision:
‘...which directly affects the person (or corporation) individually and not simply as a member of the public or a class of the public. An executive or administrative decision of the latter kind is truly a `policy' or `political' decision and is not subject to judicial review.’
(Salemi [No 2] (99), per Jacobs J).”[119]

[119] Kioa v West [1985] HCA 81; (1985) 159 CLR 550; 62 ALR 321 at 583-585; 346 per Mason J

This was cited with approval in the majority judgment of Gummow, Hayne, Crennan and Bell JJ in Plaintiff S10/2011 v Minister for Immigration and Citizenship,[120] to which
Mr Morris with Mr Nekvapil drew my attention. Later in their judgment, they returned to this:
“ The principles and presumptions of statutory construction which are applied by the Australian courts to the extent to which they are not qualified or displaced by an applicable interpretation Act, are part of the common law. … [O]ne may state that ‘the common law’ usually will imply, as a matter of statutory interpretation, a condition that a power conferred by statute upon the executive branch be exercised with procedural fairness to those whose interests may be adversely affected by the exercise of that power …”[121]
[120] [2012] HCA 31; (2012) 246 CLR 636; 290 ALR 616; 130 ALD 1 at [68]; 659; 633-634; 18-19
[121] [2012] HCA 31; (2012) 246 CLR 636; 290 ALR 616; 130 ALD 1 at [97]; 666; 639-640; 24-25
B.3 Procedural fairness and s 30(1A)

On a plain reading of s 30(1A) it appears that Parliament has qualified the operation of the general law in so far as it would require me to accord procedural fairness to every person whose interests are affected by the decision under review. If it were otherwise, it would have provided that, if a person applies to be joined as a party to a proceeding and if the Tribunal is satisfied that the person is a person whose interests are affected by the decision under review, the Tribunal must join the person as a party. The only task for the Tribunal to undertake would have been to decide that the person was a person whose interests are so affected. As it is, s 30(1A) requires the Tribunal to undertake that task and then provides that it “… may, in its discretion, … make that person a party to the proceeding.” Although
s 2A is exhortatory, the qualities that it encourages the Tribunal to incorporate in the mechanisms of review it provides in carrying out its functions of resolving applications for review and that are inherent also in s 33(1)(b) must be relevant in guiding the exercise of that discretion.

While there is a relationship between principles of procedural fairness and a person’s interests affected by the decision, both are but considerations to be weighed in the balance. Where that balance lies will not always be the same for the nature of the person’s interests affected and the extent to which they are affected will differ as will the context in which principles of procedural fairness are to be applied. Lehane J explained how factors of this sort lead to distinct and different sets of principles:
“…Where, of course, a decision affects an individual interest it is highly likely that a conclusion on one matter will dictate a conclusion on the other: it is of course inconceivable that someone entitled to a hearing in relation to a proposed deportation order would not, if denied a hearing, be entitled to challenge the order once made. It is, however, different I think in what may be described loosely as a public interest case, such as the present. In such a case it would not be at all unusual, I think, to find that a person with standing to challenge a decision once made had, nevertheless, no right to be heard in relation to its making: as will be apparent, I think this is such a case. Ogle v Strickland (1987) 13 FCR 306 was, I should think, another; and North Coast Environment Council [North Coast Environment Council Inc v Minister for Resources (No 2) (1994) 55 FCR 492] may well have been a third. In reality, they are in my view separate questions, in relation to each of which there is a distinct set of principles, emerging from strikingly separate lines of authority.”[122]
[122] Botany Bay City Council v Minister for Transport [1996] FCA 1507; (1996) 66 FCR 537; 137 ALR 281; 41 ALD 84 at 568; 310-311

The case with which Lehane J was concerned was an application made under the Administrative Decisions (Judicial Review) Act 1977. The Botany Bay City Council had applied for review of the Minister’s decision to exempt certain Commonwealth actions at the Sydney Airport from complying with certain administrative procedures established under the Environment Protection (Impact of Proposals) Act 1974. The actions related to the use of runways and the flight paths of aircraft using the airport. His Honour found that the councils had standing as they were local councils responsible for areas whose environment might well suffer at least as an indirect consequence of the Minister’s decision. Each had a statutory charter obliging it to, among other things, to enhance and conserve the environment of its area. That interest was considerably greater than that of an ordinary member of the public. Despite that, and a conclusion that the councils had standing,
Lehane J decided that there was no basis on which the Minister’s decision could be challenged under the ADJR Act.

B.4Ability of person to represent interests

In Ogle v Strickland, Wilcox J touched on the case in which a person whose interests are affected by a decision cannot represent those interests. In the following passage, his Honour is referring to a plaintiff but his comments are equally applicable to a person seeking to be joined as a party:
“ However, notwithstanding this record, cases occasionally arise in which a person who presents as plaintiff is manifestly incapable of representing in an adequate way the interest which he or she espouses. The answer to that problem is not to deny standing to the many in order to cope with the few; but rather to refuse the claim of the few on discretionary grounds. …”[123]
[123] (1987) 13 FCR 306 at 324 per Fisher, Lockhart and Wilcox JJ

I certify that the one hundred and thirty preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,

Signed: ……[sgd]…......................................................

Shivanthi Herath Associate
Date of Hearing 29 November 2013

Date of Decision 27 February 2014

Applicant’s counsel Mr R Niall SC with Ms E Porter
Applicant’s solicitor Clayton Utz Lawyers

Respondent’s solicitor Mr M Palfrey
Sparke Helmore Lawyers

Party Joined’s solicitor Mr R Appudurai
Russell Kennedy

Dingley Village Community Mr D Madill
Association Inc’s advocate Secretary

Savlanut Properties Pty Ltd’s Mr D Savage
advocatePerry Town Planning

TPSC Pty Ltd’s advocate Mr J Walker
Director

City of Greater Dandenong’s Mr B McIlrath
solicitorMaddocks Lawyers

Ventana Pty Limited’s counsel Mr S Morris QC with Mr E Nekvapil
Ventana Pty Limited’s solicitor Holding Redlich