Queensland Investment Corporation and Minister for Transport and Regional Services and Anor - [2004] AATA 1025

CATCHWORDS – PRACTICE AND PROCEDURE – standing – whether applicant is a person whose interests are affected by the decision – whether discretion should be exercised – applicant has standing.

PRACTICE AND PROCEDURE – joinder – whether applicant for joinder is a person whose interests are affected by the decision – whether discretion should be exercised – joinder refused.

Administrative Appeals Tribunal Act 1975 ss. 3, 27, 29, 30, 30(1A) and 37
Airports Act 1996 ss. 3, 5, 7B, 71, 72, 75, 76, 77, 78, 79, 80, 81, 83, 84, 84A, 85, 86, 89, 98, 99, 106, 107, 112 and 242
Airport Regulations 1997 r. 5.02
Airports (Environment Protection) Regulations 1997 r. 6.07
Airports (Building Control) Regulations 1996 r. 4.01 and 6.01
Therapeutic Goods Act 1989
Corporations Law s. 344
Development Allowance Authority Act 1992 ss. 119 and 120
Income Tax Assessment Act 1936
Commonwealth Places (Application of Laws) Act 1970 ss.3 and 4
Commonwealth of Australia Constitution Act s. 52
Commonwealth Places (Applications of Laws) Regulations 1998 r. 3
Liquor Act 1982 (NSW)
Acts Interpretation Act 1901 s. 22

Brisbane Airport Corporation Limited v Deputy President CR Wright, Kevin Rudd and Minister for Transport and Regional Services (2002) 120 FCR 157, [2002] FCA 359
Alphapharm Pty Limited v Smithkline Beecham (Australia) Pty Limited and Others (1994) 49 FCR 250
Edwards v Australian Securities Commission and Others (1997) 72 FCR 350
Allan v Transurban City Link Pty Ltd (2001) 208 CLR 167
Urban Bushland Council WA Inc and Minister for Transport and Regional Services (oral reasons, unreported)
R v Holmes (1988) 93 FLR 405
R v Porter [2001] NSWCCA 441
Webster v McIntosh (1980) 32 ALR 603
Sustainable Fishing And Tourism Inc v Minister For Fisheries and Another (2000) 106 LGERA 322, [2000] NSWLEC 2
Newcastle City Council v Royal Newcastle Hospital (1957) 96 CLR 493; 4 LGRA 69
Council of the City of Newcastle v Royal Newcastle Hospital (1959) 100 CLR 1
Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1
Eaton & Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270
Stammers v Broadbridge (1987) 14 FCR 16
Onus v Alcoa of Australia Ltd (1981) 149 CLR 27
Re Control Investments Pty Ltd and Australian Broadcasting Tribunal (1980) 3 ALD 74
Arnold v Queensland (1987) 6 AAR 463
Re Dixon and Australian Fisheries Management Authority (1999) 57 ALD 481

DECISION AND REASONS FOR DECISION [2004] AATA 1025

ADMINISTRATIVE APPEALS TRIBUNAL )
) V2003/614

GENERAL ADMINISTRATIVE DIVISION )

Re QUEENSLAND INVESTMENT CORPORATION

Applicant

AndMINISTER FOR TRANSPORT & REGIONAL SERVICES
Respondent

And SHOPPING CENTRE COUNCIL OF AUSTRALIA
Applicant for Joinder

DECISION

Tribunal:                  Deputy President S A Forgie
Date:  30 September, 2004
Place:  Melbourne

Decision:The Tribunal has decided that:
the applicant, Queensland Investment Corporation, is a person whose interests are affected by the decision of the respondent, the Minister for Transport and Regional Services, and so a person who may make an application for review of that decision;
and declined to order that the Shopping Centre Council of Australia be joined as a party to the proceeding.
S A FORGIE
Deputy President

ADMINISTRATIVE APPEALS TRIBUNAL )

) V2003/614

GENERAL ADMINISTRATIVE DIVISION )

Re:QUEENSLAND INVESTMENT CORPORATION

Applicant

And:MINISTER FOR TRANSPORT & REGIONAL SERVICES

Respondent

And: SHOPPING CENTRE COUNCIL OF AUSTRALIA

Applicant for Joinder

Tribunal: Deputy President S A Forgie

Place: Melbourne

Date: 1 November 2004

CORRIGENDUM [2004] AATA 1025

The Tribunal amends its decision and reasons for decision published on 30 September 2004 as follows:

Reasons for decision

paragraph 77
delete the third dot point and replace with:
“ · “Many…decisions do not affect the rights, interests and expectations of the individual citizen in a direct and immediate way.” (at 260) A decision to impose a rate or a decision to impose a general charge for services is a decision that affects each ratepayer individually. It is also a decision of a “policy” or “political” nature and so is not subject to judicial review.”

S A FORGIE
Deputy President

REASONS FOR DECISION

On 27 March, 2003, the Minister for Transport and Regional Services (“Minister”) approved a draft master plan prepared by Essendon Airport Limited (“EAL”) in relation to the Essendon Airport. Among the proposals in that plan is a proposal to develop land that is surplus to aviation requirements for commercial, industrial and business use. Queensland Investment Corporation (“QIC”) owns a large shopping centre, which is approximately 10 kilometres to the north west of the western boundary of Essendon Airport. It is known as Watergardens and has been earmarked as a Principal Activity Centre in the strategic plan for Melbourne issued by the Victorian Government and known as Melbourne 2030: Planning for Sustainable Growth (“Melbourne 2030”). QIC applied on 11 July, 2003 for review of the Minister’s decision. Other companies own shopping centres in the region and are, as is QIC, members of the Shopping Centre Council of Australia (“SCCA”). It is an unincorporated association representing investors in shopping centres and applied on 29 August, 2003 to be joined as a party to the proceedings.

The Minister has challenged QIC’s right to apply for review of the Minister’s decision and submits, in essence, that it is not a person whose interests will be affected by the draft master plan. He also submits that the SCCA is not entitled to be joined as a party to the application.

THE ISSUES

There are two main issues in this case:
Is the applicant, QIC, a person whose interests are affected by the Minister’s decision to approve a draft master plan in relation to Essendon Airport? I have decided that it is.
Is SCCA entitled to apply to be joined as a party? This requires a consideration of:
(a)whether, SCCA is a person;
(b)whether, the deeming provisions in s. 27(2) of the Administrative Appeals Tribunal Act 1975 (“AAT Act”) relating to unincorporated associations apply to an application for joinder made under s. 30(1A);
(c)whether, if it is a person, whether its interests are affected by the Minister’s decision under review; and
(d)whether, if it is a person whose interests are so affected or if s. 27(2) is applicable, the discretion should be exercised to permit it to be joined as a party.
I have explored but not decided issues (a) and (b). I have decided that SCCA is not a person whose interests are affected by the Minister’s decision. Even if it were, I have decided not to exercise the discretion to join SCCA as a party.

SOURCES OF EVIDENCE

The documents lodged pursuant to s. 37 of the AAT Act (“T documents”) were admitted in evidence. Also admitted were an affidavit of Mr John Searle White, Investment Manager of QIC, sworn on 3 December, 2003, affidavits of Mr Milton Cockburn, Executive Director of SCCA, sworn on 2 December, 2003 and 16 February, 2004 and an affidavit of Mr Robert Milner sworn on 5 December, 2003. Mr Milner is an urban planner in Victoria with nearly 30 years of experience. He is a former State and National President of the Royal Australian Planning Institute as well as a member of the Local Government and Planning Advisory Council established by the Victorian Minister for Planning. At a further hearing of the matter, a further affidavit of Mr Cockburn was admitted in evidence.

BACKGROUND

There was no dispute between the parties or between them and the SCCA as to the facts forming the background to the issues that need to be decided. In view of that and on the basis of the evidence, I have made the findings of fact set out in the following paragraphs. Those findings of fact are made for the purposes of determining the issues but not otherwise.

Essendon Airport

On the basis of Mr Milner’s Planning Report prepared for the SCCA on 5 December, 2003 (Exhibit PJ2), I find that Essendon Airport is a general aviation aerodrome. It occupies 305 hectares of land and is situated 11 kilometres northwest of Melbourne’s Central Business District and seven kilometres southeast of Melbourne Airport. It is located within the City of Moonee Valley.

Essendon Airport is located within an established urban area. The uses of the surrounding land include industrial, commercial and residential. That land is subject to the Moonee Valley Planning Scheme. That Scheme has eight zones relating to Business, Industrial, Public Land and Residential uses. Essendon Airport is marked “CA” indicating that it is Commonwealth land that is not controlled by the Planning Scheme.

Essendon Airport Limited

Essendon Airport Holdings Pty Ltd (“EAHPL”) is the sole shareholder in EAL. EAL leased the Essendon Airport (“Airport”) for a 50 year term commencing on 30 June, 1998. It has an option to renew that lease for a further 49 years.

On 10 August, 2001, the Minister and the Minister for Finance and Administration announced in a Press Release that the Commonwealth had sold its shares in EAL to Edgelear Pty Ltd (“Edgelear”). It had done so for $22.044 million after a competitive tendering process. Edgelear is jointly owned by the Linfox Group and the Becton Group. The Ministers went on to say that:
“… The Government is encouraged that between them they bring strong aviation and property development experience and robust financial and managerial capability to Essendon Airport. Edgelear P/L will assume control of EAL following sale completion, scheduled to occur by mid September 2001. The offer from Egelear P/L has been evaluated at best meeting the Government’s sale objectives.
The sale of the Commonwealth’s shareholding in EAL to Edgelear P/L will ensure that Essendon Airport continues to operate as a general aviation airport. With Linfox’s strong airport management credentials, through its ownership of Avalon Airport, Essendon Airport will continue to play a vital role in providing access to Melbourne for rural and regional Victoria, including as an airbase to a number of regional service providers such as the Air Ambulance and the Victorian Police Airwing.
Under the Airports Act 1996 the new owner of the Essendon Airport lease will be subject to a comprehensive regulatory regime that will ensure the public interest is protected. The Airports Act requires an airport operator to submit an airport master plan and major development plans for the approval of the Minister for Transport and Regional Services, following a minimum 90 day ‘public comment’ process. This means there can be no major development occurring on the airport site without the community being fully informed. No radical changes to the runways will be countenanced.
Essendon Airport will continue to be subject to government controls relating to safety, curfews, security, environmental assessment and aircraft size. EAL will continue as the long-term leaseholder, with the Commonwealth retaining ownership of the Essendon Airport site.” (Attachment F to Exhibit A,)

Existing shopping centres in region of Essendon Airport

On the basis of the affidavit of Mr Cockburn, I find that there are eight shopping centres in the region of Essendon Airport. They are Gladstone Park, Broadmeadows, Airport West, Millera, Niddrie Central, Moonee Ponds Central, Highpoint and Sunshine Highpoint (now known as Homemaker City, Maribyrnong).

Queensland Investment Corporation

QIC owns and operates three shopping centres on the fringe of metropolitan Melbourne: Eastland Shopping Centre at Ringwood; Watergardens at Taylors Lake; and Woodgrove Shopping Centre at Melton. None has been developed to its full potential. QIC, which has a long term investment in each, owns sufficient land to cater for future commercial and retail development in accordance with the relevant planning schemes and expected population increase in the trading catchment areas. Watergardens is closest to the Airport.

Watergardens

Although located at Taylors Lake, Watergardens is referred to as Sydenham on the Brimbank Planning Scheme. It is a 50 hectare site bounded by the Melton Highway, Kings Road and the Melbourne-Bendigo railway but also includes commercial developments to the north of the Melton Highway. Watergardens is situated approximately 10 kilometres to the north west of the western boundary of Essendon Airport. It is within the Brimbank City Council.

Watergardens has approximately 80,000 square metres of commercial floor area. It comprises 28,338 square metres of retail space, a further 41,500 square metres of restricted retail and trade supply outlets, including Bunnings and Harvey Norman, and approximately 10,000 square metres of mixed uses including a hotel, fast food outlets, offices and the automotive precinct. QIC has recently submitted a proposal to Brimbank City Council to increase Watergardens’ commercial floor area by a further 32,760 square metres. Of that additional floor area, it is proposed that 21,194 square metres will be retail. If approved, completion of construction of the additional floor area will mean that approximately two thirds of the Watergardens’ site will have been developed at a single level. There will be room for future commercial, office and retail development.

The Brimbank Planning Scheme relating to Watergardens

The Brimbank Planning Scheme categorises land to which it applies into 15 zones or sub-zones. The zones are Business, Industrial, Public Land, Residential, Rural and Special Purpose. The Special Purpose Zone has two sub-zones being the Comprehensive Development Zone 1 (“CDZ”) and the Special Use Zone 2. Watergardens is zoned CDZ.

The State Planning Policy Framework (“SPP Framework”) forms part of all Victorian planning schemes, including the Brimbank Planning Scheme. Clause 17 of that scheme is concerned with economic development. Included in economic development are the business, industry, tourism, agriculture, forestry and timber, mineral resources and extractive industries.

An objective of the SPP Framework is to encourage the concentration of major retail, commercial, administrative, entertainment and cultural developments into activity centres. Those activity centres include strip shopping centres. They are intended to provide a variety of land uses and to be highly accessible to the community (cl. 17.01-1). Planning for the City of Melbourne is intended to reinforce its role as a capital city and so as the prime focus for cultural, entertainment and business functions as described in Creating Prosperity: Victoria’s Capital City Policy (Government of Victoria/Melbourne City Centre 1994). The location of new activity centres in the metropolitan area are to be consistent with the objectives of Transporting Melbourne (Department of Infrastructure 1996).

A further objective of the SPP Framework was:
“To encourage developments which meet community’s needs for retail, entertainment, office and other commercial services and provide net community benefit in relation to accessibility, efficient infrastructure use and the aggregation and sustainability of commercial facilities.” (cl. 17.02-1)

Generally, the SPP Framework provided, this objective should be implemented by locating commercial facilities in existing or planned activity centres. The exceptions to the general implementation policy would occur if:

“New freestanding commercial developments in new residential areas which have extensive potential for population growth or will accommodate facilities that improve the overall level of accessibility for the community, particularly by public transport.
New convenience shopping facilities to provide for the needs of the local population in new residential areas and within, or immediately adjacent to, existing commercial centres.
Outlets of trade-related goods or services directly serving or ancillary to industry and which have adequate on-site car parking.

Cinema based entertainment facilities should be located within or on the periphery of existing or planned activity centres and should not require a permit for use in activity centre zones. Such facilities are not encouraged on freestanding sites.
A five year time limit for commencement should be attached to the planning approval for all shopping centres or expansions over 1,000 square metres in floorspace.” (cl. 17.02-2)

Activity centres are also the subject of cl. 21.08 of the Brimbank Planning Scheme. It is a clause that is specific to the Scheme and not part of the SPP Framework incorporated into the Scheme. Clause 21.08 is concerned with retail and commercial and begins with the statement that “Brimbank has yet to realise its full potential as a location for shopping and commerce.” Clause 21.08 then goes on to state that:
“… The most effective way to build up the critical mass needed to sustain a vibrant retail and commercial sector is by concentrating these activities in major regional centres, supported by a network of other activity centres and neighbourhood centres.”

Objectives of the Brimbank Planning Scheme are that activity centres should form part of an integrated retail hierarchy, be integrated into the surrounding urban fabric and be accessible by foot, bicycle and public transport as well as by motor vehicle. One of the strategies to achieve those objectives was said to be to facilitate the development of multi-purpose regional activity centres at a limited number of strategic locations in the municipality. Watergardens was designated as one of those multi-purpose regional activity centres under the name of the Sydenham Regional Activity Centre.

There are two purposes of the CDZ zoning, applying to Watergardens. One is to implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies. The other is to provide for a range of uses and the development of land in accordance with a comprehensive development plan incorporated in the Brimbank Planning Scheme itself. These purposes are set out in cl. 37.02.

Schedule 1 to cl. 37.02 deals specifically with the Sydenham Regional Activity Centre Structure Plan (“SRACS Plan”) dated April, 1999 and so specifically with Watergardens. The purpose is said to be:
“To facilitate development of the regional centre satisfying the needs of the existing and future population.
To encourage the provision of a comprehensive and balanced range of activities, services and facilities to meet the needs of the local and regional community.
To promote the regional centre as a community focal point and town centre.
To ensure that the regional centre is accessible to the community twenty-four hours a day in keeping with a traditional style of town centre.
To promote activities which will attract people to the regional centre after normal shopping and working hours.
To encourage development of a high quality, attractive environment prior to the occupation of each stage of development.
To ensure that the various land use activities in and adjacent to the regional centre are physically and functionally integrated.
To provide sufficient flexibility to enable changes to occur to the range of activities accommodated in the regional centre to satisfy changing demands in the community over time.
To provide for medium density housing to best utilise the proximity to the regional centre.
To enable provision of community and service infrastructure related to the regional centre.
To provide for an integrated public transport system to serve the regional centre.
To ensure that Taylors Creek’s drainage, flood control and open space functions are preserved and enhanced.
To provide certainty of approvals for development and uses which comply with the Structure Plan.” (Attachment D to Exhibit A)

Clause 1 of the Table to the SRACS Plan provides that all uses must comply with the Sydenham Regional Activity Structure Plan and also specifies those uses for which permits are and are not required. The Table identifies the uses by Precincts. The uses in the Local Centre Precinct, for example, are bank, convenience restaurant, car park, medical centre, convenience store, car wash, minor utility installation, office, informal outdoor recreation, service station, postal agency, restaurant, road, shop, betting agency and take-away food premises. The other Precincts are Retail Core, Restricted Retail Premises, Civic Centre/Offices, Civic Park, Transport Terminal, Contingency, Emergency Services, Fringe Commercial, Fast Food, Convenience Store, Office Accommodation Park, Education/Worship Residential, Town Centre Residential 1 and Town Centre Residential 2. No new buildings or works may be constructed within a Precinct until a Concept Plan has been prepared taking into account any comments of relevant public authorities including, as appropriate, the Department of Infrastructure, VicRoads and the Public Transport Corporation (Table, cl. 2 and see also cll. 3-6).

The Victorian Government has recently released a blueprint for metropolitan Melbourne: Melbourne 2030. Melbourne 2030 is intended to be a strategic plan prepared to manage growth and change across metropolitan Melbourne and its surrounding region. It is accompanied by six draft Implementation Plans relating to the topics urban growth boundary, growth areas, housing, activity centres, green wedges and integrated transport. Implementation Plan 4 relates to Activity Centres which are said to provide the focus for services, employment and social interaction in cities and towns. While they range in size and intensity of use from local neighbourhood strip centres to traditional universities and major regional malls, they are not just shopping centres but are multifunctional. Melbourne 2030 states that:
“Since the 1950s, activity centre policy has been a feature of urban planning in Victoria. Essentially, this is a matter of clustering – rather than dispersing – uses and activities to derive social, environmental and economic benefits for the community and business generally. These benefits include:
providing a strong basis for economic growth
creating opportunities for the more efficient and balanced concentration of goods and services
increasing the potential for the exchange of ideas and other synergies among businesses, and for new job creation
providing an important focus for communities by increasing opportunities for social interaction
making the most of the community’s investment in physical and social infrastructure
providing greater opportunities for integrating land use and transport, particularly public transport and walking.
Stand-alone single uses do not constitute activity centres, nor do industrial estates. In fact Melbourne 2030 seeks to restrict out-of-centre development and contains separate policies for industrial land.” (Attachment E to Exhibit A, page 3)

With regard to out-of-centre development, Melbourne 2030 states:
“Most developments in metropolitan Melbourne that are out-of-centre – outside activity centres – are purpose-built on stand-alone sites, are targeted to a specialised niche market and generate many individual trips. Given their stand-alone nature, they are often poorly served by public transport and depend on high levels of car access. Their isolated location means they achieve low levels of sustainability.
Consistent control of out-of-centre development means we can strengthen activity centres and maximise the community’s investment in physical and social infrastructure.
Melbourne 2030 discourages out-of-centre development by giving preference to in-centre and edge-of-centre locations for new development. Such out-of-centre proposals will only be considered where it can be convincingly demonstrated that the proposed use or development is of net benefit to the community in the region served by the proposal. This is important if we are to create a more mixed-use environment in activity centres.” (Attachment E to Exhibit A, page 10)

Melbourne 2030 categorises activity centres into the Central Activities District, which performs a capital city role, Principal Activity Centres, Major Activity Centres, Specialised Activity Centres and Neighbourhood Activity Centres. There are approximately 100 Principal, Major and Specialised Activity Centres and 900 small scale Neighbourhood Activity Centres. Melbourne 2030 envisages a network of activity centres of varying size and function linked with a strategic public transport network. Watergardens, noted as Sydenham in Melbourne 2030, is designated as a Principal Activity Centre. It and Sunshine, which is also designated as a Principal Activity Centre, are located in the Brimbank City Council municipality.

Shopping Centre Council of Australia

The SCCA represents the interests of major owners and managers of shopping centres in Australia. It has 18 members: AMP Henderson Global Investors, FPD Savilles/Byvan, Centro Properties Group, CFS Gandel Retail Trust (“CFS Gandel”), Deutsche Asset Management (Australia) Limited, Intro International, Jones Lang LaSalle, Leda Holdings, Lend Lease Retail (“Lend Lease”), Macquarie Country Wide Trust, McConaghy Holdings Pty Limited, MCS Property Limited, Mirvac Investments, Perron Group, Queensland Investment Corporation, Stockland, Westfield Holdings Limited (“Westfield”) and Yu Feng Group. Among them, SCCA’s members own approximately 7.5 million square metres of gross lettable area retail (“GLAR”) in Australia and so more than 70% of the total GLAR in Australian shopping centres.

The Charter of the SCCA sets out its purpose as being:
“… to represent investors in shopping centres in working for public policy outcomes which are conducive to the wellbeing of the industry and assist member companies to achieve their business objectives.
This will be achieved through:
Highlighting the responsibility of shopping centre management to generate competitive returns on assets which are held in trust for the millions of Australians who invest in retail property.
Enhancing the reputation of our industry by promoting better understanding and acceptance of the valuable contribution shopping centres made to the economy and the community life of Australia.
Promoting awareness of the highly competitive nature of the retail industry. Shopping centres compete with each other, with other retail formats and emerging technologies to attract successful retailers and customer traffic.
Engaging in dialogue with the industry’s stakeholders – consumers, investors, retailers, government policy makers and community opinion leaders – and working with them to create a regulatory and commercial environment that will assist shopping centre owners and retailers to provide the best possible service to consumers.
Promoting the shopping centre industry as setting high professional standards and establishing our business relationships on sound commercial terms.
The Council will be an effective advocate for the shopping centre industry and engage actively in public debate to promote vigorously the interests of shopping centres and their stakeholders.” (Exhibit PJ1, Annexure D at 15)

In August, 2003, the SCCA endorsed a planning policy for its members. That planning policy had not substantially changed since May, 2002. The planning policy is set out in a document entitled “Guidelines for Members” (“Guidelines”). Its objective is “one rule for all types of retail centre development” (Exhibit PJ1, Annexure E at 17). The SCCA goes on to state that its:
“… planning policy seeks to encourage investment in existing urban or activity centres in order to:
provide greater certainty for investment decisions on shopping centre and retail/activity centre development within an accepted retail hierarchy;
protect the private and public investment in centres and encourage full use of this infrastructure; and
ensure that there is a level playing field for competitive retail development and that development proposals are assessed on a consistent basis.” (Exhibit PJ1, Annexure E at 17)

The Guidelines state that the SCCA will achieve its objective by encouraging:
“… State and Territory Governments to introduce and enforce metropolitan centre policies that recognise, protect and promote the retail hierarchy in accordance with urban planning principles.
However, the SCCA cannot become involved in determining the merits or otherwise of individual development proposals.
Therefore, as a general rule, the SCCA will not become actively involved in individual development applications or objections, unless the development issue directly relates to the SCCA’s planning objective of ‘one rule for all types of retail centre development’, and it:
raises or is likely to raise an important precedent for the industry generally; or
threatens the integrity of the state or federal planning laws; or
relates to a subject of Government policy review (eg. review of Airports Act); or
is of national or State significance.” (Exhibit PJ1, Annexure E at 17)

On the basis of the evidence of Mr Cockburn, I find that the SCCA has lobbied governments and councils to adopt planning regimes encouraging the development of the shopping centre industry and substantial investments involved in developing and upgrading shopping centres by ensuring:
“a. that the planning regime does not alter substantially over the life of a project; and
b.that shopping centres are not put at risk by ad hoc development applications or irregular developments that occur outside accepted planning guidelines and which seriously undermine confidence in the planning process.” (Exhibit PJ1, par. 10)

Interests of SCCA members in shopping centres in region of Essendon Airport

CFS Gandel owns Broadmeadows, Westfield and the Perron Group own Airport West and Lend Lease owns Homemaker City, Maribyrnong. Taken together, these three shopping centres represent an investment of approximately $336m.

The progress of the draft master plan

At the time, EAL was granted the lease, a final master plan for the Airport was not in force. Therefore, it was required by s. 75(1) of the Airports Act 1996 (“Act”) to submit to the Minister a draft master plan under Division 3 of Part 5 of the Act. Before doing so, it gave notice to the public that it had prepared a preliminary version of the draft master plan and invited written comments on it. The notice was given on 24 August, 2002 in accordance with s. 79.

Westfield, a member of SCCA, made a submission to EAL on 19 November, 2002. On 21 November, 2002, QIC made a submission to EAL regarding the preliminary version of the draft master plan. Also on 21 November, 2002, Lend Lease made a submission to EAL. On 3 December, 2002, the SCCA made a submission to the Minister regarding it and seeking a meeting with him. In his response, the Minister noted that the public consultation period had ended on 21 November, 2002. He advised SCCA that EAL was required to submit a plan for his consideration by 31 December, 2002 and that, in considering whether or not to approve it, he would consider the Act’s requirements. Westfield made a further submission to EAL on 12 February, 2003.

A meeting was held on 17 February, 2003 between the Minister’s Chief of Staff and officers of the Department of Transport and Regional Services (“Department”) and representatives of SCCA. On 11 March, 2003, representatives of QIC met with the Department to explain the nature of QIC’s concerns regarding the draft master plan. These concerns were reiterated in a letter dated 19 March, 2003.

On 27 March, 2003, the Minister approved the draft master plan under s. 81 of the Act. QIC was advised of the approval in a letter from the Department dated 11 April, 2003. It lodged an application seeking review of that decision on 11 July, 2003. SCCA sought to be joined as a party to those proceedings in an application dated 29 August, 2003. Westfield and Lend Lease have both written to the effect that SCCA is representing their interests.

The draft master plan as approved by the Minister

The draft master plan as approved by the Minister on 11 March, 2003 states that:
“Essendon Airport Pty Ltd has established objectives to achieve the vision:
1.To maintain safe, secure and efficient airport operations;
2.To add value to the airport by realising and taking advantage of development opportunities;
3.To increase market awareness of development opportunities at the airport;
4.To improve the integration of the airport with its surrounds; and
5.To consolidate airport operations and aviation requirements to ensure efficient and sustainable land use.
The main airside features include:
Retention of the two-runway system;
Reduction of the Runway 08/26 strip width from 300m to 150 m consistent with Runway 17/35 (this does not involve any change to the length or width of the pavement surface, only the points from which the Obstacle Limitation Surface is calculated);
Relocation of aviation operations in the northwest to a more central location; and
Consolidation of aviation facilities consistent with aviation operations;
The main landside features include:
Identification of land surplus to aviation requirements suitable for commercial or industrial redevelopment;
Redevelopment of existing commercial areas centred English Street and the extension of the Bulla Road into high quality commercial precincts; and
Development of areas in the north of the airport which were formerly vacant or used for aviation uses for a variety of business uses including office, storage and distribution.” (T documents, pages 281-282)

Further details of the landside developments are given in clause 11.4 of the draft master plan (T documents, pages 310-311). The area is divided into five precincts, each with a separate emphasis. The emphases include a business park, low level office buildings and commercial activities with associated car-parking. In the case of office buildings, serviced offices, child minding facilities, a gymnasium, cafes, restaurant and retail are also envisaged.

The draft master plan stated that it had been prepared in a format that was generally consistent with Victorian planning provisions. It noted, though, that it is not a planning scheme and is not subject to any Victorian planning provisions.

THE EVIDENCE

QIC’s investment in shopping centres

Mr White stated in his affidavit that none of QIC’s three shopping centres in Melbourne has been developed to its full potential. The planning policy in the planning scheme relating to each shopping centre encourages intensive retail and commercial development at each of them, he said. QIC owns sufficient land to cater for those future commercial and retail development as the population increases in the trading catchment areas of each of the shopping centres.

QIC, Mr White said, paid market price for its land holdings at Watergardens. It had purchased that land in 1995 through a public tender process. QIC had then invested many millions of dollars in developing Watergardens, which included public utilities and infrastructure. Mr White said that QIC has made that investment on the basis that the potential growth in western metropolitan Melbourne was supported by planning policy under Victorian planning laws. That meant that the potential growth of Watergardens was also supported by that planning policy, which limits the scope for out-of-centre commercial development.

QIC’s concerns

The submission made to EAL on 21 November, 2002 expressed QIC’s concern to “… ensure the continuation of an attractive climate for development and investment. Integral to this is the preservation of a level playing field for participants in the process to both encourage and support such involvement.” (Attachment G to Exhibit A). QIC’s primary concerns were:
“the site seems to be regarded as having very little to do with the area of which it forms part. As a consequence, it pays little or no heed to prevailing use and development patterns in the area;
in particular, the draft masterplan pays no regard to the existing and committed commercial centre network operating in the area;
this places existing development and investment at a distinct advantage by virtue of its obligation to conform with laws, rules and regulations that do not apply to the site;
this is not to deny the opportunity for competition. Competitive development on the site would be welcomed where it is subject to similar tests and levels of scrutiny as applies off site. It is to be hoped that this masterplanning process and the assessment which follows ensures that site outcomes are sensitive to and respect development and investment commitments elsewhere;
to not do so could potentially allow activity contrary to the provisions of the National Competition Policy;
the general land use and development thrust for the airport should, in our view, respond to the policies and initiatives of the recently released metropolitan strategy, ‘Melbourne 2030’;
the future provision of services and facilities on site should, in our view, take account of its essential, continuing role as an airport given that this is a priority. Its function for active aviation purposes should not be compromised by the commitment of large amounts of the airport to development; and
at the same time, development envisaged for the site should focus on its primary airport function, serving to reinforce this as opposed to attracting non-aviation related activities.” (Attachment G to Exhibit A)

The submission concluded by observing that the masterplan documentation was “vague in the extreme, providing limited details as to proposed land uses, the quantum of proposed development and the timing of proposed development.” (Attachment G to Exhibit A)

SCCA’s concerns

Mr Cockburn provided maps showing the primary, secondary and tertiary trade areas of Airport West and Homemaker City, Maribyrnong. He stated that, although there is no official definition of the primary, secondary and tertiary trade areas, the primary trade area of a shopping centre is generally thought to be the area from which 55 to 60% of expenditure at that shopping centre is generated. Mr Cockburn had been informed by Ms Kyley Burke of Westfield that the percentages for Airport West’s primary, secondary and tertiary trade areas were 39.5%, 27.2% and 11.5% respectively.

Any significant new retail developments in an existing shopping centre’s main trade area, which comprises its primary and secondary trade areas, or adjoining that main trade area, has a significant impact on the existing shopping centre’s trading. Mr Cockburn said that any retail development at Essendon Airport is likely to have its own main trade area. If it is a significant development, it may have a main trade area of five or more kilometres. Where the main trade areas of retail centres overlap each other, they may have a significant impact on each other. Mr Cockburn was of the view that if a substantial retail centre were established at Essendon Airport, it would be likely to have a substantial impact on the trading of existing retail centres within a ten kilometre radius of it. Watergardens is approximately ten kilometres from Essendon Airport.

LEGISLATIVE FRAMEWORK

Administrative Appeals Tribunal Act

Section 27(1) of the AAT Act provides, in so far as it is relevant, that:
“Where … any … enactment … provides that an application may be made to the Tribunal for a review of a decision, the application may be made by or on behalf of any person or persons … whose interests are affected by the decision.”

A person may apply to be joined as a party to a proceeding where another person has made an application to the Tribunal for review of a decision. An application to be joined as a party is made in writing and may be made by “any other person whose interests are affected by the decision” (AAT Act, s. 30(1A)). The Tribunal may, in its discretion, order that such a person be made a party to the proceeding.

Provided that the decision was given after the organisation or association was formed or after its objects or purposes included the matter concerned, s. 27(2) provides that:
“An organization or association of persons, whether incorporated or not, shall be taken to have interests that are affected by a decision if the decision relates to a matter included in the objects or purposes of the organization or association.”

The objects of the Airports Act

The Act establishes a system for the regulation of airports in Australia. 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)to ensure majority Australian ownership of airports;
(f)to limit the ownership of airports by airlines;
(g)to ensure diversity of ownership and control of certain major airports;
(h)to implement international obligations relating to airports.” (s. 3)

Lease of certain airports

A core regulated airport or an airport, which is located on a Commonwealth site and which has been specified in the Airport Regulations 1997 (“Regulations”) (“specified airport”), may be leased by the Commonwealth to a company. The sole business of that company, known as the “airport-lessee company”, is to run that airport. There are certain restrictions on the term of the lease, any sub-lease and the transfer of the lease. These matters are the subject of Part 2 of the Act. That Part also deals with the variation and termination of the lease.

The airport-lessee company may enter an airport-management agreement with certain corporations in relation to the airport but only if the Minister has given written approval. The corporation that enters the agreement is known as an “airport-management company”. Parts 3 and 4 of the Act places certain restrictions on the ownership of airport-operator companies. An airport-operator company, which includes both an airport-lessee company and an airport-management company, has an obligation to use the leased airport site as an airport. An airport-operator company must not carry on substantial trading or financial activities other than activities relating to, or incidental to (or declared by the Regulations to be incidental to), the operation and/or the development of the airport. These are matters that are also the subject of Part 2 of the Act.

Airport master plan

Part 5 of the Act is concerned with land use, planning and building controls at core airports and at specified airports. For each such airport, there must be an airport master plan, major development plans for significant developments, approval for building activities on airport sites and certification that any buildings and structures built on airport sites comply with the Regulations.

Airport master plans, the subject of these proceedings, are provided for in Division 3 of Part 5 of the Act. If, when a company acquires or is granted a lease, there is no final master plan in place for that airport, it is required to give the Minister a draft master plan within the following 12 months or within any longer period allowed by the Minister (s. 75(1)).

The matters that must be set out in the draft master plan depend on whether the airport is a joint-user airport or not. As Essendon Airport is a specified airport, it is a joint-user airport according to the terms of s. 7B(1) of the Act. Therefore, the matters that must be specified in its draft master plan are set out in s. 71(3) of the Act. They are:
“(a) the airport-lessee company’s development objectives for civil use of the airport; and
(b)the airport-lessee company's assessment of the future needs of civil aviation users of the airport, and other civil users of the airport, for services and facilities relating to the area of the airport site leased to the company; and
(c)the airport-lessee company's proposals for land use and related development of the area of the airport site leased to the company, where the proposals embrace:
(i)in all cases—landside, surface access and land planning/zoning aspects; and
(ii)if the leased area includes one or more runways or taxiways—airside aspects; and
(d)forecasts relating to the civil use of the airport; and
(e)the airport-lessee company's plans, developed following consultations with the airlines that use the airport, local government bodies in the vicinity of the airport and the Department of Defence, for managing aircraft noise intrusion in areas forecast to be subject to exposure above the significant ANEF levels; and
(f)the airport-lessee company's assessment of environmental issues that might reasonably be expected to be associated with the implementation of the plan; and
(g)the airport-lessee company's plans for dealing with the environmental issues mentioned in paragraph (f) (including plans for ameliorating or preventing environmental impacts); and
(h)if a draft environment strategy for the airport has been approved—the date of the approval; and
(j)such other matters (if any) as are specified in the regulations.
Paragraphs (a), (b), (c), (d), (e), (f), (g) and (h) do not, by implication, limit paragraph (j).”

The meanings of “airside” and “landside” are given in Notes to s. 71(3):

“Note 1: Airside means the part of the airport grounds, and the part of the airport buildings, to which the non-travelling public 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.”

The objectives or proposals set out in s. 71(3)(a) and (c) are developed by s. 71(6), which provides:
“In specifying a particular objective or proposal covered by paragraph … (3)(a) or (c), a draft or final master plan must address the extent (if any) of consistency with planning schemes in force under a law of the State or Territory in which the airport is located.”

Those set out in s. 71(3)(e) are also developed:
“In developing plans referred to in paragraph … (3)(e), an airport-lessee company must have regard to Australian Standard AS2021—1994 (‘Acoustics—Aircraft noise intrusion—Building siting and construction’).” (s. 71(8))

Section 71(9) goes on to provide that s. 71(8) “… does not, by implication, limit the matters to which regard may be had.”

The Regulations may also make provisions in relation to particular aspects of the draft master plan. Section 71(5) provides that:
“The regulations may provide that, in specifying a particular objective, assessment, proposal, forecast or other matter covered by subsection … (3), a draft or final master plan must address such things as are specified in the regulations.”

The scope of any regulations that may be made is not limited by the requirements of s. 71(6) (s. 71(7)).

A regulation has been made under the authority of s. 71(5). It provides, in part, that:
“For subsection 71(5) of the Act, a draft or final master plan must:
(a)address any obligation that has passed to the relevant airport-lessee company under subsection 22(2) of the Act …; and
(b)address any interest to which the relevant airport lease is subject under subsection 22(3) of the Act …;
(c)…” (r. 5.02(3))

The Regulations have specified further matters. Under the authority given by s. 71(3)(j), the following matters are specified:
“(a) any change to the OLS or PANS-OPS surfaces for the airport concerned that is likely to result if development proceeds in accordance with the master plan;
(b)for an area of an airport where a change of use of a kind described in subregulation 6.07(2) of the Airports (Environment Protection) Regulations is proposed:
(i)the contents of the report of any examination of the area carried out under regulation 6.09 of those Regulations; and
(ii)the airport-lessee company’s plans for dealing with any soil pollution referred to in the report.” (r. 5.02(1))

The change of use described in r. 6.07(2) of the Airports (Environment Protection) Regulations1997 is:

“… a change that necessitates greater environmental protection measures because the use will result in the land being used in a way, or for a purpose, that will, or is reasonably likely to, cause greater harm:
(a)to an aspect of the environment; or
(b)to the health, safety or, in any respect, the welfare of, human beings.”

Regulation 5.02(2) elaborates more generally on the obligations set out in s. 71 of the Act. It provides that:
“For section 71 of the Act, an airport master plan must, relation to the landside part of the airport, where possible, describe proposals for land use and related planning, zoning or development in an amount of detail equivalent to that required by, and using terminology (including definitions) consistent with that applying in, land use planning, zoning and development legislation in force in the State or Territory in which the airport is located.” (r. 5.02(2))

A draft master plan, and so a final master plan, must relate to a planning period. The “planning period” is a period of 20 years (s. 72). The Regulations may make provision for aspects of the draft master plan to relate to particular time periods in providing that:
“The regulations may provide that the objectives, assessments, proposals, forecasts and other matters covered by subsection … (3) may relate to either or both of the following:
(a)the whole of the planning period of the plan;
(b)one or more specified 5-year periods that are included in the planning period of the plan.” (s. 71(4))

Once a preliminary version of the draft master plan has been prepared, the airport-lessee company must give the public notice of its existence, make copies available for inspection and purchase and invite comments on it. It must give notice of these matters in a newspaper circulating generally in the State in which the airport is located and it must allow 90 days for the inspection and for any comments to be made (s. 79(1)). If members of the public do make comments, the airport-lessee company must give the Minister a written certificate when it submits the draft master plan to the Minister. That certificate must list the names of those who made comments, summarise the comments, state that the airport-lessee company has had due regard to them and set out any other information about those comments as specified in the Regulations (s. 79(2)). If the airport-lessee company has consulted a State or Territory government or one of its authorities, a local government body, an airline or other user of the airport concerned or any other person and has done so before inviting public comment under s. 79, it must give the Minister another certificate. That certificate lists the names of the persons consulted and summarising the views of those persons consulted (s. 80(2)).

When given the draft master plan, the Minister must either approve it or refuse to approve it (s. 81(2)). While not limiting the range of matters to which the Minister may have regard (s. 81(4)), s. 81(3) provides that:
“In deciding whether to approve the plan, the Minister must have regard to the following matters:
(a)the extent to which carrying out the plan would meet the present and future requirements of civil aviation users of the airport, and other users of the airport, for services and facilities relating to the airport concerned;
(b)the effect that carrying out the plan would be likely to have on the use of land:
(i)within the airport site concerned; and
(ii)in areas surrounding the airport;
(c)the consultations undertaken in preparing the plan (including the outcomes of the consultations);
(d)the views of the Civil Aviation Safety Authority and Airservices Australia, in so far as they relate to safety aspects and operational aspects of the plan.”

The Minister effectively has 90 days in which to decide to approve the draft master plan or to refuse it. If no decision has been made at the end of that period, the draft master plan is taken to have been approved (s. 81(5)). If approval is refused, the Minister may direct the airport-lessee company to submit a fresh draft master plan and to do so within 180 days or some longer period (s. 81(8)).

After making a decision, the Minister must notify the airport-lessee company of the decision in writing (s. 81(6)). If the decision is to refuse approval, the Minister must give reasons (s. 81(7)).

Once approved by the Minister, a draft approval plan becomes a final master plan (s. 83). Within 90 days, the airport-lessee company must give notice of the approval (ss. 86(1) and (2)). It must do so in a newspaper circulating generally in the State or Territory in which the airport is situated. The notice specifies where the plan may be inspected or purchased.

The airport-lessee company may ask the Minister to approve a minor variation to the final master plan by following the procedure set out in s. 84 and making the draft variation available for public comment in accordance with s. 84A. Once approved by the Minister, the airport-lessee company must give notice of the variation in accordance with ss. 86(1) and (2).

A final master plan may be replaced on the initiative either of the airport-lessee company or of the Minister (s. 78). If not replaced, it remains in force for five years and beyond if a fresh plan has not yet come into force (s. 77). Before the expiration of the five year period, the airport-lessee company must give the Minister a draft master plan for the airport (s. 76(1)). The 20 year planning period to which the draft master plan relates commences from a date immediately after the expiration of the original airport master plan (ss. 76(1) and 72).

Notification of matters that may affect the achievement of final master plan

If a final master plan for an airport lease is in force and the airport-lessee company becomes aware that a particular matter may significantly affect the achievement of the plan, the company must give the Minister notice of it. The notice must be given within 60 days of the airport-lessee’s becoming aware of the matter. It must set out particulars of the matter and explain its effect on the achievement of the master plan (s. 85(1)).

Major airport development

A major development plan is required for each major development at an airport. The airport-lessee company prepares a major development plan after taking public comments into account. A “major airport development” is defined in s. 89(1). It includes such matters as constructing or extending a runway or a taxiway in some circumstances, constructing a new building wholly or principally for use as a passenger terminal where its gross floor space is greater than 500 square metres or extending an existing building that is used wholly or principally as a passenger terminal and whose floor area is increased by more than 10% (ss.89(1)(a)-(g)). The expression also includes such matters as constructing a new road, vehicular access facility, railway or railway handling facility or extending one of them where the construction significantly increases the capacity of the airport to handle movements of passengers, freight or aircraft and the cost of construction exceeds $10 million or such higher amount as prescribed (ss. 89(1)(h)-(l)). A development of a kind that is likely to have a significant environmental or ecological impact is also a major airport development (ss. 89(1)(m)).

Division 4 of Part 5 sets out the procedure that must be followed in relation to the preparation of a draft major development plan, notice of that plan, public comment, consultation and approval or refusal to approve by the Minister. It mirrors that set out for the draft master plan.

Building control

Division 4 of Part 5 is concerned with “building activities” that require approval before they are carried out. “Building activities” include constructing or altering the structure of buildings or other structures as well as demolishing, destroying, dismantling or removing them (s. 98(1)(a), (b) and (e)). Unless approval has been given under the Airports (Building Control) Regulations 1996 (“Building Control Regulations”) or the building activity has been declared under those regulations to be exempt from the approval process and it is consistent either with a final master plan or with a major development plan that is in force, a building activity may not be carried out (s. 99(1)). An airport-lessee company may not permit a building to be used or occupied unless:
“(c) a certificate of compliance for the building, structure, … or eligible alteration, as the case requires, is in force under regulations made for the purposes of this Subdivision; or
(d)if the building, structure, … or eligible alteration, as the case may be, was completed before the time when the an airport lease for the airport was granted under the Airports (Transitional) Act 1996 – a certificate of fitness for occupancy or use or a similar document was issued before that time in respect of the building, structure, … or eligible alteration, as the case requires, by:
(i)the Commonwealth, a State or Territory; or
(ii)an authority of the Commonwealth, a State or a Territory; or
(iii)a local government body; or
(e)the building, structure, … or eligible alteration, as the case requires, is of a kind declared by the regulations to be exempt from this Subdivision.” (s. 106(1))

Similar provisions apply to a sub-lessee of an airport-lessee company (s. 106(4)).

Section 107(1) provides that regulations may provide for certificates of compliance stating that a building, structure or eligible alteration is to be treated as complying with those regulations. They may also provide for other matters including the conditions of certificates of compliance, their variation, revocation and surrender. The regulations may make provision for a matter by applying, adopting or incorporating the Building Code of Australia (either generally or as it applies in a particular State or Territory), the law of a State or Territory, a standard proposed or approved by the Standards Association of Australia or a standard made by, or by an authority of the United States of America or the European Union (s. 107(2)).

The Building Control Regulations establish a system for the approval of building activity as contemplated by Division 4 of Part 5 of the Act. It provides for the appointment of an airport building controller for an airport site. It may be a person, local government body or authority of Commonwealth or of the State in which that airport site is located (r. 4.01).

Regulation 6.01 of the Building Control Regulations provides that an application may be made by certain persons to the Tribunal for review of certain decisions by the airport building controller. Those decisions are set out by reference to specific regulations and subregulations. The persons are identified by reference to their either being the applicant for the approval referred to in the provision, the person carrying out the building activity in relation to which certain orders have been made, conditions imposed or approval revoked, the holder of the building approval or the certificate of compliance in other specified circumstances, the person who applied for a certified copy of a certificate of compliance or the person who was served with an infringement notice.

The review process

Section 242 of the Act provides that, other than those decisions set out in s. 242(2), applications may be made to the Tribunal for review of decisions made by the Minister under the Act. Decisions under Part 5 are not excluded.

Notification of the right to seek review of the Minister’s decision is set out in s. 242(3). It provides that:
“If the Minister:
(a)makes a decision of a kind covered by subsection (1); and
(b)gives to the person or persons whose interests are affected by the decision written notice of the making of the decision;
that notice is to include a statement to the effect that, subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for review of the decision.”

The validity of the decision is not affected if notice is not given in accordance with s. 242(3) (s. 242(4)). A “decision” has the same meaning as in the AAT Act (s. 242(5)).

CONSIDERATION

I will begin with whether QIC is a person whose interests are affected by the decision under review. Although Dowsett J considered a similar question in Brisbane Airport Corporation Limited v Deputy President CR Wright, Kevin Rudd and Minister for Transport and Regional Services (2002) 120 FCR 157, [2002] FCA 359 (“Brisbane Airport Corporation”), he specifically stated that he had “… dealt only with the position where the attack upon a master plan is based upon ‘noise issues’. A proper construction of Division 3 of Part 5, especially ss 71 and 81, may arguably permit other persons to seek review upon other bases.” (at 168, [38]) It was not necessary for him to consider the viability of those other bases but I must do so. QIC’s concern centres not on noise emanating from Essendon Airport but on the effect of the development of land for business, commercial and retail development. In summary its concern has two aspects. One is the effect of any development of that kind on QIC’s significant investment in purchasing and developing Watergardens. The other is the incompatibility of the proposed development of the Essendon Airport with the Brimbank Planning Scheme to which Watergardens is subject as well as with the Hume Planning Scheme and Melbourne 2030. Those planning schemes are predicated in part on there being a hierarchy of strategically placed activity centres and encourage co-location of community and commercial activities within those centres. Generally, they discourage development outside those activity centres.

Earlier authorities considering whether interests affected by a decision under review: Alphapharm and Edwards

The parties referred to two earlier authorities: Alphapharm Pty Limited v Smithkline Beecham (Australia) Pty Limited and Others (1994) 49 FCR 250 (Davies, Burchett and Gummow JJ) (“Alphapharm”) and Edwards v Australian Securities Commission and Others (1997) 72 FCR 350 (Lee, Carr and RD Nicholson JJ) (“Edwards”).

In Alphapharm, the Full Court of the Federal Court considered a generic product manufactured by Alphapharm. It had been registered under the Therapeutic Goods Act 1989 but the manufacturer of the original product, Smithkline Beecham, sought review of that decision. The Minister declined to review his decision on the basis that Smithkline Beecham’s interests were not affected by the decision. The Full Court decided that Smithkline Beecham’s interests were not affected by the Minister’s decision. In setting out the general principles to be applied, Davies J made the following main points:
“The question of standing is … related to issues of procedural fairness.” (at 260)
“If a person has interests which ought to be taken into account in the making of a decision, then ordinarily that person should be entitled to be heard.” (at 260)
“Many … decisions do not affect the rights, interests and expectations of the individual citizen in a direct and immediate way.” (at 260) A decision to impose a rate or a decision to impose a general charge for services. Even though it is also a decision that affects each ratepayer individually, it is a decision of a “policy” or “political” nature and so is not subject to judicial review.
Whether or not a person has a right to be heard during the decision-making process, is a matter to be taken into account in deciding whether or not that person has a right to seek judicial review of the decision.
The Therapeutic Goods Act is dominated by public interest concerns. It does not provide for the joinder of persons, including competitors, in the decision-making process.

Gummow J emphasised that “… it is important not to draw from what was said in any particular decision by way of identification of that which did or did not amount to a sufficient affectation of an interest any general proposition which may be translated to … [a particular] dispute. In each case, the content of the terms ‘affect’ and ‘interest’ are to be seen in the light of the scope and purpose of the particular statute in issue.” (at 272). Furthermore, there is “… no ‘general principle’ that a decision under an enactment which favours one corporation cannot relevantly affect the interests of a competitor …” (at 272). In view of the range of decisions that are made under the Therapeutic Goods Act and that are reviewable under it:
“… The denotation of the phrase ‘whose interests are affected’ … should not be assumed to be the same across this spectrum of decision making. It has a series of distinct operations and, in this sense, is of an ambulatory nature. …” (at 272)

Given that spectrum of decision-making, which includes decisions made on the initiative of the Secretary and not on the basis of any application, “… it cannot be correct that … the class of persons whose interests are affected by an initial decision is limited to disaffected applicants. Persons whose existing situation under the legislation is changed by operation of the initial decision, which was not sought but was imposed upon them, must be persons whose interests are affected by the initial decision.” (at 273)

In relation to the particular case he had to consider, Gummow J noted that there is no requirement that third parties be heard on an application for registration under the legislation. An interpretation that treated a third party as interested in a grant of registration of a product would not sit well with the object of the Therapeutic Goods Act, which is concerned with the timely availability of therapeutic goods after evaluation by an expert body and in accordance with a complex and delicate administrative scheme. Permitting review of a decision to register a product could lead to the substitution of a decision that had the effect of rendering unlawful activities that were lawful under the decision as it originally stood. There are provisions for cancellation of a product’s registration but they operate prospectively and not retrospectively. In conclusion, Gummow J decided that Smithkline Beecham did not have interests that were affected by the decision.

The Full Court of the Federal Court applied similar principles in Edwards. Mr Edwards and another had applied to the Tribunal for review of a decision of the Australian Securities Commission to register Bell Group NV (“Bell Group”) as a foreign company under s. 344 of the Corporations Law. They were engaged in litigation with the Bell Group and opposed an application by its Netherlands Antilles liquidator for the appointment of a liquidator in Western Australia. RD Nicholson J, with whom Lee and Carr JJ concurred, drew comparisons between that case and Alphapharm: the regime resulted in criminal penalties being imposed if a foreign company were to carry on business without being registered, third parties did not have to be heard on the application for registration and there was no requirement that reasons had to be given or that any that were given had to be published. The only person having an interest that could be affected by a decision to register a foreign company is the company itself. No other person can have such an interest.

Recent authorities considering whether interests affected by a decision under review: Allan and Brisbane Airport Corporation

Whether I am considering whether QIC may apply for review of the Minister’s decision or whether SCCA may be joined as a party, the central issue is whether each is a person “whose interests are affected by the decision”. Each must be such a person whether I am considering ss. 27(1) or s. 30(1A) of the AAT Act. The High Court has considered the meaning of that expression in the context of ss. 119(1) and 120(1) of the Development Allowance Authority Act 1992 (“DAA Act”) as well as s. 27(1) of the AAT Act. It did so in Allan v Transurban City Link Pty Ltd (2001) 208 CLR 167 (Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ, Kirby J dissenting) (“Allan”). Section 119(1) of the DAA Act provides that a person who is “affected by a reviewable decision” may apply for review of that decision.

The majority of the High Court said:
“ The expression ‘affected by’ and cognate terms appear in a range of laws of the Commonwealth. … It is necessary to answer the questions posed … in respect of s 119(1) of the Authority Act by reference to the subject, scope and purpose of that statute, rather than by the application of concepts derived from decisions under the general law respecting what has come to be known as ‘standing’. …
… A particular statute may establish a regime which specifically provides for its own measure of judicial review on the application of persons meeting criteria specified in that statute. … The starting point, as indicated by several authorities in the Full Court of the Federal Court …, is the construction of the Authority Act with regard to its subject, scope and purpose.” (at 174, [17])

They went on to observe that “… What serves to identify a person as one affected by a reviewable decision will vary having regard to the nature of the reviewable decision itself. …” (at 174, [17]).

The DAA Act required the Development Allowance Authority to issue a certificate to a person in relation to a proposed infrastructure borrowing. Holding such a certificate entitled the person to concessional taxation treatment under the Income Tax Assessment Act 1936. A certificate had been issued in relation to borrowings for the development of a toll road in Melbourne. Mr Allan had owned a house close by the road and he was a member of the Australian Conservation Foundation. Mr Allan claimed that he was concerned about the environmental damage that would be caused by the toll road.

The majority observed that the Act required notice to be given of a refusal to give a grant of a certificate but not of a grant`. They continued that “This suggests that where … the decision is one to grant, the legislation treats that as the end of the matter, save for the potential operation of the variation and cancellation provisions …” (at 178, [31]). There were further aspects of the DAA Act to which they had regard. There is no provision in the DAA Act for public inquiries or for public participation in the process of considering an application for a certificate. That legislation is not concerned with “… broader public interests such as those relating to environmental, engineering, social or other aspects of the proposed infrastructure project.” (at 179, [34]) If a member of the public were entitled to seek review of a decision to issue a certificate within 21 days of becoming aware of that decision, it is possible that the reconsideration would be delayed. In some cases, reconsideration might occur after the completion of the infrastructure project. It would be an odd result, the majority considered, if a person in Mr Allan’s position were able to apply for reconsideration of the decision to issue the certificate but the lender of the money had not been a party to the original application for a certificate. He was not, in the majority’s opinion, a person whose interests were affected by the decision to issue a certificate.

The majority’s reasoning was applied by Dowsett J in Brisbane Airport Corporation. While his Honour was concerned with the same legislation as I must consider and with a decision approving a master plan for an airport, the grounds on which Mr Rudd sought to show that his interests were affected by the decision are different from those on which QIC and SCCA rely. Mr Rudd based his claim on his position as a member of Parliament, as a representative of a community group known as BARB and as one of the joint owners of a house about 9 or 10 kilometres from the nearer end of the existing runway at the Brisbane Airport. The Tribunal had rejected the first two grounds but accepted the third. Dowsett J focused on the third ground.

Dowsett J noted that the objects of the Act focus on airport services. The reference in s. 3(b) refers to “collective, rather than individual interests”. The Act assumes that the airport-lessee company will continue the commercial operation of the airport. Inevitably, people will be affected by that continuing operation but it is in the nature of a major airport operation that they will be affected in varying degrees. A master plan, Dowsett J continued, is part of a business plan for an existing airport; it is not a town planning document. The Act does not require the airport-lessee company to consult with the occupiers of properties which, it forecasts will be subject to aircraft noise above specified levels. In requiring that the airport-lessee company consult with relevant local authorities, it is presumed that those local authorities will protect the interests of those occupying properties that may be affected in that way.

The Minister must take account of the effect that carrying out the plan would have on the use of land, both within the airport site and in the areas surrounding it. Dowsett J noted that “Significantly, the focus is on the use of land, not amenity or value” (at 166, [32]). There was no suggestion that the use of Mr Rudd’s land would be affected even if its amenity were reduced. Although passages in Allan, Alphapharm and Edwards, might be thought to suggest that the absence of any opportunity for the public to comment was at the heart of their drawing the class of persons interested in the decision narrowly, the fact that there was such an opportunity did not lead to the conclusion that the class should be drawn more widely. Public comment had been invited and the airport-lessee company was obliged to summarise it in submitting the draft master plan. The Minister, however, was not obliged to have due regard to it. Dowsett J thought it most unlikely that the Act intended that any member of the public might seek review of a decision to approve the master plan.

The airport-lessee company, Dowsett J said, is a person whose interests are affected by the decision to approve or to refuse to approve the master plan. The Minister would clearly have to give it a notice of the right to apply for review. He was not required by the Act to give a similar notice to anybody else. That suggested that the matter was at an end when the decision was to approve as it had been found to be in Allan at 178, [31]. Dowsett J also pointed to the provisions of s. 86 of the Act. The effect of that section is that the plan may have been approved and action taken under it for three months before any member of the public is made aware that it has been approved. A member of the public may not become immediately aware of the approval even when notice has not been given but at some later stage. It cannot have been intended, Dowsett J said, “… that a person becoming aware of the content of a plan at any time during its five year term should be able to seek review of the decision to approve it” (at 166, [35]).

I note that on 19 August, 2004, Deputy President Hotop decided Urban Bushland Council WA Inc and Minister for Transport and Regional Services (oral reasons, unreported). He decided that the Urban Bushland Council WA Inc did not have standing. Deputy President Hotop did so on the basis that “… standing is to be confined generally to the relevant airport lessee body in question and not to be granted to third parties – even to bodies such as the UBC.” Furthermore, he decided that, “… having regard to … considerations in relation to the Airports Act, UBC is not a person whose interests are affected, within the meaning of section 27(1) of the AAT Act, by the Minister’s decision in this case. ...”.

The planning laws relating to Essendon Airport

Planning schemes, whether formulated by the Victorian Government or by a local municipality are made under the laws of the State of Victoria. Subject to certain exceptions and pursuant to s. 4(1) of the Commonwealth Places (Application of Laws) Act 1970 (“CPAL Act”), the laws of a State apply in relation to each place in a State that is a Commonwealth place. A “Commonwealth place” includes Essendon Airport when regard is had to its definition in s. 3. That is so because, despite its having been leased to EAL, it remains a place that has been acquired by the Commonwealth for a public purpose within the meaning of s. 52 of the Constitution.

Regulations made under the CPAL Act may provide that State laws do not apply and r. 3 of the Commonwealth Places (Applications of Laws) Regulations 1998 (“CPAL Regulations”) provides that, until 31 December, 2005, the Liquor Act 1982 (NSW) does not apply to a place that is subject to a lease authorising the sale of liquor, is acquired by the Commonwealth for the construction of a civil airport and is not subject to an airport lease under, among others, the Act (r. 3). Quite apart from that exception, s. 112 of the Act excludes the operation of State laws in relation to matters under Part 5 of that legislation. It provides that:
“(1) It is the intention of the Parliament that this Part is to apply to the exclusion of a law of a State or Territory.
(2)In particular, it is the intention of the Parliament that this Part is to apply to the exclusion of a law of a State or Territory relating to:
(a)land use planning; or
(b)the regulation of building activities (within the meaning of Division 5).”

Although the CPAL Act refers only to the CPAL Regulations excluding the application of certain State laws, it does not provide for their exclusion by other Commonwealth legislation. In enacting the CPAL Act, however, the Commonwealth has not abrogated its power to make laws for Commonwealth places. As King CJ said in R v Holmes (1988) 93 FLR 405:
“It is a fundamental principle of constitutional law that Parliament cannot effectively divest itself of its sovereign legislative power, nor assign or transfer or abrogate that power, and in that sense it cannot abdicate its legislative power: Cobb & Co Ltd v Kropp [1967] 1 AC 141 at 157. The Parliament is entitled, however, to use any machinery considered appropriate for carrying out its purposes, Cobb & Co Ltd v Kropp …The machinery chosen by the legislature for present purposes is the application to a Commonwealth place of the body of law existing from time to time in the State in which the place is located. … The Parliament may amend or repeal the Act and replace it with a new body of law, at any time. …” (at 406-407 and cited with approval by Spigelman CJ (with whom Studdert and Ireland JJ concurred) in R v Porter [2001] NSWCCA 441 at [30-33])

The subject, scope and purpose of the Act

Dowsett J observed in Brisbane Airport Corporation that the focus of s. 3 of the Act is “… on the provision of airport services” (at 165, [28]). He went on to elaborate on that but in terms of the operation of an airport. I adopt his Honour’s observations and would add that, within s. 3, which I have set out above, are three emphases. One is upon the general development of aviation in Australia, the proper regulation of airports having regard to the interests of airport users, the general community and Australia’s international obligations and the manner in which airport performance can be compared. Another is upon the ownership of airports. The third is upon the efficient and economic development of airports.

Clearly, an airport is at the heart of the subject, scope and purpose of the Act. What is an “airport”? It is defined only in geographic terms by s. 5 of the Act in the sense that it means “… an airport in Australia” (s. 5). In its ordinary meaning, the word “airport” means “An airfield catering for passenger travel, esp. a large one with customs facilities” (Shorter Oxford English Dictionary, 5th edition, 2002) or a “… large airfield usu. equipped with a control tower, hangars, and accommodation for the receiving and discharging of passengers and cargo.” (Macquarie Dictionary, 2nd edition, 1991). The lease, however, is not given in relation to an airport but to an “airport site”. An “airport site” is defined by reference to its being declared by regulations to be an airport site, being a Commonwealth place and being “used, or intended to be developed for use, as an airport (whether or not the place is used, or intended to be developed for use, for other purposes)” (s. 5).

Although the objects of the Act focus on the airport, some of the matters that the draft master plan must focus on relate to the airport and some to the airport site. Section 71(3) makes it clear that Parliament contemplated that some of the airport site would be used for aviation and those connected with aviation be they carriers, passengers or other users. It is also clear that Parliament contemplated that the master plan might address use of the airport site to which the non-travelling public has free access. This represents a use of the airport site that does not relate to its use as an airport. Just how this use relates to the objects of the Act in s. 3 is not immediately clear. Perhaps it is to be seen as something that is necessarily ancillary to the promotion of the efficient and economic development and operation of airports as set out in s. 3(c).

Is QIC a person whose interests are affected by the decision under review?

Commonsense suggests that potentially the development of part of the Essendon Airport for commercial, retail and other uses will have an effect on existing centres outside the airport and permitting similar use. At any one time, there is a finite demand for services that are provided as a result of those permitted land uses. The introduction of another venue for their supply must necessarily have some effect on existing venues in the same locality. Watergardens is one of the existing venues at which commercial, retail and mixed uses are permitted. Potentially, the use that QIC may make of the site for future development may be curtailed by the use that is made of land at Essendon Airport. If I were free to consider the matter outside the constraints of the Act, I would take these matters into account and conclude that QIC is a person whose interests are affected by the decision under review.

When I look only to s. 242 of the Act, it would appear that QIC is entitled to apply for review. The right of review given by s. 242 of the Act is not, on its face, limited to any particular person or class of persons other than those that are encompassed by the words of s. 27(1) of the AAT Act to the effect that the person must be a person “… whose interests are affected by the decision.” In this, it may be contrasted with r. 6.01 of the Building Control Regulations. That regulation identifies with great specificity the person who may make an application for review to the Tribunal. As a general rule, the provisions made in regulations cannot be used to glean Parliament’s intention in enacting the Act to be interpreted (Webster v McIntosh (1980) 32 ALR 603 at 606 per Brennan J, with whom Deane and Kelly JJ agreed). There are, however, exceptions to that general rule. Of relevance in the circumstances of this case are two exceptions. One occurs when regard must be had to both an Act and the delegated legislation made under it in order to ascertain the nature of a scheme. The other is perhaps a variation on the theme of the first. That occurs where an Act and the delegated legislation is prepared contemporaneously and establish an interdependent regime (Pearce and Geddes, Statutory Interpretation in Australia, 5^th edition, 2001, paragraph 3.37 and cases referred to therein).

In this case, it is not the case that regard must be had to both the Act and the Building Control Regulations to ascertain the scheme. The scheme is clear from the Act. Rather, it is the case that the Building Control Regulations supplement one of the details of the scheme provided for in the Act. They came into force some three months after the Act. Together, they form an interdependent regime regarding building control on airport sites. Those who may make an application for review under those regulations are closely confined to those who are the applicants for approval, carrying out certain building activity, the holders of the building approval or the certificate of compliance in specified circumstances, the persons who applied for a certified copy of a certificate of compliance or the persons who were served with an infringement notice. Unlike the situation that would normally apply under State planning laws, no provision is made for any wider range of persons to apply for review of decisions by the airport building controller.

The precision adopted in the Building Control Regulations and the seeming lack of precision in the Act do not determine the matter. It is important to distinguish between its interests as affected by that decision and its interests as affected by the introduction of the scheme itself. There is a difference between a decision made under the Act, and so within the parameters that are defined by the Act, and the decision to formulate the scheme and draw those parameters. It is feasible that a person may have interests affected by one but not by the other. If a person is to have a right to apply to the Tribunal, that person’s interests must have been affected by the decision made within the parameters of the Act. If those parameters do not permit regard to be had to the interests of the type raised by QIC, it is difficult to see how it could be said that QIC’s interests are affected by the decision. That is so even though it may be said that its interests are affected by the underlying policy decisions to structure a scheme that excludes regard being had to interests of that type.

The Act establishes in Part 5 a careful framework of provisions in relation to land use, planning and building controls on the airport site. A reading of Part 5 shows that it is setting out a comprehensive scheme in relation to those matters. That this is so is emphasised by the provisions of s. 112 excluding the operation of State or Territory planning laws and building regulations. It is clear that the processes set out in Part 5 itself incorporate aspects of town planning but that they also incorporate aspects of business planning. As Dowsett J said in Brisbane Airport Corporation, “A master plan is part of a business plan for an existing airport” (at 165, [28]). The Building Control Regulations regulate the types of matters regulated by State or Territory building regulations.

The scheme incorporates steps that ensure that the public has notice of the development of the draft master plan and gives the public an opportunity to comment upon it. There is no obligation upon the airport-lessee company to take those comments into account but merely to tell the Minister that it has had due regard to them. The Minister is made aware of those who have made comments and is given the airport-lessee company’s summary of them but is not under any obligation to have regard to them. This contrasts with his obligation to have regard to any consultations undertaken by the airport-lessee company under s. 80 in preparing the plan.

The scheme could be regarded as very introspective; it is focused on the airport and the use of the airport site. It does not, however, entirely disregard those unconnected with the airport. The airport-lessee company must, for example, deal with noise emanating from the airport and is directed to consult with various bodies including local government bodies. It must also deal with environmental issues. The Minister is not specifically directed to have regard to those matters but he is required to have regard to consultations of the sort listed in s. 80 (s. 81(3)(c)).

Once he has made his decision, the Minister is obliged to give the airport-lessee notice of his decision and to tell it of his reasons if he refuses to approve the draft master plan. He is not obliged to notify anyone else of the decision or to give reasons for his decision. Indeed, once the draft master plan has been approved, it is the airport-lessee company that gives notice of the approval through a newspaper circulating in the State.

I have already set out the three focuses of the Act. The first is clearly concerned with the various facets of airport services. The second is upon the ownership of airports. The third is upon the efficient and economic development of airports. The first and second are clearly related to the airport. Specific regard is had to people outside the airport and the way in which they are affected but only in limited ways. One way is through the airport-lessee company’s being required to address noise issues in the vicinity of the airport and environmental issues. The airport-lessee company is not directed to address other issues that may affect people in the vicinity of the airport.

The matters to which the Minister must have regard do not mirror those that the airport-lessee company must address in the draft master plan although the matters addressed in the plan are clearly relevant to his consideration. One of the matters to which he must have regard is the effect that carrying out the plan would be likely to have on the use of land both within the airport site and in areas surrounding that site. When regard is had to the third focus of the Act, which the efficient and economic development of airports, it could be thought that the Minister is required to have regard to the use of land in order to enhance the commercial viability of the airport. When the Minister’s obligation is viewed against the requirement that public notice be given of the draft master plan and to the public’s being able to make comment upon it, it can be seen in a different light. Presumably public comment will not limit itself to what is good for the airport. It will address a range of issues relating both to the airport and matters in the vicinity of the airport. That such comment is conveyed to the Minister suggests that a wider range of issues is relevant. That suggestion is confirmed by the requirement of s. 81(3)(b)(ii) itself i.e. the Minister must have regard not only to the use of land within the airport site but to “use of land … in areas surrounding the airport” (s. 81(3)(b)(ii)).

What is meant by “use of land”? That expression and the word “use” have been considered in a number of cases. As Talbot J said in Sustainable Fishing And Tourism Inc v Minister For Fisheriesand Another (2000) 106 LGERA 322, [2000] NSWLEC 2, “The question of what is a use of land in the present context is one of fact and degree” (at 330, [28]). Taylor J in Newcastle City Council v Royal Newcastle Hospital (1957) 96 CLR 493; 4 LGRA 69 had earlier explained:
“The word ‘used’ is, of course, a word of wide import and its meaning in any particular case will depend to a great extent upon the context in which it is employed. The uses to which property of any description may be put are manifold and what will constitute ‘use’ will depend to a great extent upon the purpose for which it has been acquired or created.” (at 515; 86-87)

Land may be used even when nothing is done on it and it is not visited by its owner from one year to the next (Council of the City of Newcastle v Royal Newcastle Hospital (1959) 100 CLR 1 at 4 per Lord Denning delivering judgment of the Privy Council (Viscount Simonds, Lord Cohen, Lord Somervell of Harrow and Lord Denning) and see also Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1 at 21-2 per Gibbs J; Eaton & Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270. In general terms, the cases show that the word “use” means “… that one is to enjoy, hold, occupy, or have some manner of benefit thereof. Use also means usefulness, utility, advantage, productive of benefit.” (Black’s Law Dictionary, 6^th edition, 1991)

The “amenity” of a property is a concept known in land valuation. “Amenities may include facilities for eduction, worship, shopping and social life …” (Land Valuation and Compensation in Australia, RO Rost and HG Collins, 3^rd edition, reprinted 1996 at 93). In more general terms, they are:
“… such circumstances, in regard to situation, view, location, access to a water course, or the like, as enhance the pleasantness or desirability of the property for purposes of residence, or contribute to the pleasure and enjoyment of the occupants, rather than to their indispensable needs. Extras or intangible items often associated with property. They may be tangible. Often amenities in a condominium include swimming pools, landscaping, and tennis courts.” (Black’s Law Dictionary)

Noise, for example, may affect the amenity of a property and Dowsett J noted in Brisbane Airport Corporation that it might affect the amenity of Mr Rudd’s property (at 166, [32]). It is possible to envisage situations in which noise could also affect the use of property if that use required peace and quiet. There is nothing in s. 81 to suggest that the Minister is limited to a considering the effect that carrying out the plan would have on land use in so far as noise is concerned. Given that the public is not limited in the comments it may make, I consider that limitations centred on noise may not be introduced into s. 81. I consider that the word “use” relates to use in its general sense but does not extend to that which is properly described as an amenity.

Section 81 does not require the Minister to have regard to the use of any land but to the use of land within adjacent to the airport site or “in areas surrounding the airport”. The ordinary meaning of “surround” when used as a verb and in so far as it is relevant is:
“… stand or be situated around; extend round, encircle; edge. …: (Shorter Oxford English Dictionary and see also the Macquarie Dictionary)

There is no suggestion in the ordinary meaning of the word or in the manner in which it is used in s. 81(3)(b) that the land in areas surrounding the airport is limited to the minimum necessary for the airport site to be used as an airport. In view of that and of the significant size of the airport site and so the various range of activities that could potentially be carried out on that site, I consider that the “area surrounding the airport” should not be limited to those areas that are adjacent to the airport. Its size and uses and potential uses mean that it can affect a broader range of land uses over a far greater area than could, for example, an average building block. The effect on those closer to the airport may be greater than on those located further afield or they may not but there will be ripple effect emanating from the airport. The effect of those ripples may not be limited to the land adjacent to the airport but may extend in varying intensities for some distance before flattening out and becoming insignificant. Therefore, it seems to me that the expression “area surrounding the airport” should be interpreted broadly to include those that can be said to be in or about the neighbourhood of the airport.

I note that s. 81(3)(b)(i) refers to the use of land within the airport site and s. 81(3)(b)(ii) refers to the use of land surrounding the airport and not the airport site. Does that make any difference to the way in which the expression “area surrounding the airport” should be interpreted? I think not. I have set out the definitions of “airport” and “airport site” above (at par. 94). Arguably, the area of land comprising the airport in the sense of a “… large airfield usu. equipped with a control tower, hangars, and accommodation for the receiving and discharging of passengers and cargo” is smaller than the land declared to be an airport site. At the same time, the word “airport” is not used in that narrow sense in Part 5 of the Act. The draft master plan is made in respect of the “airport” but may refer to matters that clearly relate to uses other than as an airport in so far as landside activities are concerned. The word “airport” must be construed as referring to the whole of the land on which the airport is operated and so to the airport site.

This brings me back to the ambit of the Minister’s obligation in s. 81(3)(b). I have concluded that it requires the Minister to have regard to the use of land not only within the airport site itself but to the use in neighbouring areas that could be affected by the use made of that site as an airport or for other purposes. In reaching his decision, the Minister is not required to have regard to Victorian planning laws. Just how he balances the varying matters to which he must have regard under s. 81 is not a matter that curtails the scope of the matters themselves.

What of the Minister’s submission that permitting a wide range of people to seek review of the Minister’s decision could threaten the airport-lessee’s capacity to carry on its business, which is a business of considerable public importance? As Dowsett J said Brisbane Airport Corporation:
“…the plan must be available for inspection throughout the period of its currency. It cannot have been intended that that a person becoming aware of the content of a plan at any time during its five year term should be able to seek review of the decision to approve it. Yet no other time frame is prescribed other than that which appears in s 29(2) and (4) of the AAT Act. There are obvious difficulties in applying those provisions to a decision of this kind. Further, there is no requirement that a s 86 notice should contain any reference to the AAT Act procedure. In this respect it is to be contrasted with the provisions of s 242(3).” (at 167, [35])

In general terms, s. 29(2) of the AAT Act permits a person to lodge an application for review on or before the “…twenty-eighth day after … the day on which a document setting out the terms of the decision is furnished to the applicant”. Where no time limit is prescribed for lodgement, s. 29(4) provides that the Tribunal may refuse to entertain an application if is not lodged within a reasonable time after the decision was made. The Tribunal must take into account when the applicant became aware of the decision and the period within which other persons were required to lodge applications for review of the decision concerned (AAT Act, s. 29(5)). If it considers that there are special circumstances, the Tribunal may entertain the application notwithstanding s. 29(4) (s. 29(6)).

The time limit prescribed in s. 29(2) is predicated upon the decision’s having been “furnished” to the applicant. Section 3(4) of the AAT Act provides that a decision is deemed to have been furnished in certain circumstances. Those circumstances relate to posting the letter. The provision does not take the meaning of “furnished” any further. That word simply means “… provide or supply with something necessary, useful or desirable …” (Shorter Oxford English Dictionary). Reading the AAT Act as a whole and s. 29 in particular, it seems to me that s. 29(2) is concerned with the situation in which notice of the decision is furnished specifically to the person making the application. Where a decision is not furnished to the person and the legislation conferring jurisdiction does not set a time limit, s. 29(4) would come into play.

In the context of the Act, s. 29(4) would come into play when a person who is not the airport-lessee company (which would have been furnished with notice of the decision under s. 242(3)) but has simply had notice of the decision. That is to say, it would come into play if a person were to read a newspaper and see the notice of the draft master plan’s approval inserted in the newspaper by the airport-lessee under s. 86. Merely reading a public notice of a decision does not mean that a person has been furnished with notice of that decision within the meaning of the AAT Act. The interaction of the provisions of ss. 29(2) and (4) of the AAT Act with those of the Act mean that there are limits imposed upon applications may be made to the Tribunal. They must be lodged within a reasonable time.

Having regard to the whole scheme established by the Act and regulations made under it, I have concluded that it is a scheme that does provide for its own measure of review. The measure it provides is delineated by those matters to which the Minister must have regard. As the Minister must have regard to the manner in which the draft master plan may affect the use of land in areas surrounding the airport, one of the delineating features is the use of that land. Therefore, those who have land whose use may be affected may come within the scope of review provided by the Act but only if they also pass a further test. That further test is whether they can show, if they were successful to some degree, that they would have an advantage that is over and above the satisfaction of righting a wrong and that is not generally shared by other land users in the area of the airport. “That question must be answered affirmatively.” (Stammers v Broadbridge (1987) 14 FCR 16 per Wilcox J at 19 and see also Onus v Alcoa of Australia Ltd (1981) 149 CLR 27)

In the case of Watergardens, I consider that operating a shopping centre on a piece of land is a use of land within the meaning of s. 81(3)(b). So too is developing or extending that shopping centre. QIC is not simply enjoying the intangible benefits offered by land at Taylors Lake. It is using the land on which Watergardens has been developed and it is its ability to use the land to its full potential that QIC considers is threatened by the developments contemplated in the draft master plan. Is Watergardens in an area “surrounding the airport”? As I have said, it is located approximately 10 kilometres to the north west of the western boundary of Essendon Airport. Given its size and location and the size and location of the airport and of the proposed development on the airport site, I am satisfied that Watergardens is in an area surrounding the airport. Therefore, the Minister is required under s. 81(3)(b)(ii) to have regard to the effect that carrying out the plan would have on its use.

This alone does not mean that QIC is a person whose interests may be affected by the decision made by the Minister to approve the draft master plan. There are a great number of people who use land in varying ways in the area surrounding the airport. The Minister would also be required to consider the effect that carrying out the plan would have on their use. I am satisfied, however, that QIC is to be regarded as a person whose interests are affected by the Minister’s decision.

Is SCCA a person whose interests are affected by the decision under review?

Section 30(1A) of the AAT Act has two aspects. The first is that the Tribunal may make a person a party to an application. The second is that its discretion to do so is limited to those persons whose interests are affected by the decision under review.

Section 30(1A) refers to a “person”. SCCA is an unincorporated association comprising a group of corporate bodies having interests in shopping centres. While each of its members is a “person” within the ordinary meaning of that word as extended by s. 22(1)(a) of the Acts Interpretation Act 1901, SCCA is not a person in either its ordinary meaning or within that extended meaning of a “… a body politic or corporate as well as an individual”. Despite that, s. 27(2) of the AAT Act provides that an unincorporated association shall be taken to have interests that are affected by a decision in certain circumstances. The apparent conflict between the provisions of s. 22(1)(a) and those of s. 27(2) has been resolved by Davies J in Re Control Investments Pty Ltd and Australian Broadcasting Tribunal (1980) 3 ALD 74 at 80 (“Re Control Investments”) and by Wilcox J in Arnold v Queensland (1987) 6 AAR 463 at 468 (“Arnold”). Section 27(2) is a deeming provision deeming the interests of “… unincorporated organisations … to be affected by a decision if the relevant decision relates to a matter included in their objects or purposes. …” (Arnold at 468).

Wilcox J in Arnold went on to add that “… this deeming provision is for the purposes of sub-section (1) …” (at 468) i.e. for the purposes of s. 27(1) of the AAT Act. His Honour did not address whether regard could be had to the deeming provision when applying the provisions of s. 30(1A) of the AAT Act. It is arguable that the placement of the deeming decision in s. 27 rather than in s. 30 of the AAT Act indicates that it is limited in its application to those who may make an application. Section 30 after all is concerned with the parties to the proceeding generally rather than simply with those who may apply to the Tribunal for review of a decision. If it were to have a wider application, it would be expected that it would have been placed in the general, and not in the specific, section.

I will not take either of these matters further and will not decide them for they were not addressed by the parties. Instead, the hearing was conducted on the basis that SCCA was a person and that advantage could be taken of s. 27(2) of the AAT Act. Submissions were also made on the basis of the interests held by members of SCCA. I do not accept that I can have regard to the members’ interests separate from those of the SCCA. The application for joinder has been made by the SCCA and not by its individual members. To do otherwise would be to treat the application for joinder as having been made in reality by each and every one of the SCCA’s members and that is not a conclusion that I have been able to draw from the application.

Assuming that s. 27(2) is relevant, I must first find that the decision “… relates to a matter included in the object or purposes of …” SCCA. I do not accept the submission made on behalf of the Minister that this means that there must
be a direct relationship between the decision and those objects or purposes. I was referred to Senior Member Burton’s reasons in Re Dixon and Australian Fisheries Management Authority (1999) 57 ALD 481 at [48] and [51] but I do not consider that she interpreted the provision in this way. I have had regard instead to Davies J statement in Re Control Investments that “… it is necessary to keep in mind that the words ‘relates to’ are words of wide but not unlimited operation” (at 80). When I do that, I do not consider that SCCA’s objects or purposes relate to the decision under review. The SCCA represents investors in shopping centres. It does so in working for public policy outcomes that are conducive to the wellbeing of the industry. It does so to assist member companies to achieve their business objectives. SCCA’s objects or purposes are focused on commercial outcomes and foundations, the industry’s reputation, provision of service and the maintenance of professional and business standards in the industry.

The Minister’s decision relates to the use of land at Essendon Airport.
Inherent in the operation of shopping centres is the use of land but there is no focus in the objects or purposes of the SCCA upon the use of land as such. It is instead upon outcomes associated with that use. I do not consider that the Minister’s decision relates to a matter included in the objects or purposes of SCCA. It could not, therefore, be regarded as a person affected by the Minister’s decision pursuant to s. 27(2) of the AAT Act.

Assuming that SCCA is a person for the purposes of s. 30(1A) without reference to s. 27(2), I do not consider that its interests are affected by the Minister’s decision. Unlike QIC, the SCCA (as opposed to some of its members) does not own or operate a shopping centre in the area of Essendon Airport. Its interests as an association of shopping centre investors, which is pursing its objects and purposes, is not affected by that decision.

If I am incorrect in this decision and SCCA’s interests are affected by the Minister’s decision, I must consider whether it should be joined as a party. In doing that, I continue to assume that SCCA is a person for the purposes of the AAT Act and that s. 27(2) does not act as a deeming provision in relation to s. 30(1A). I am not satisfied that the SCCA would bring any different point of view to the matters that must be reviewed as a result of QIC’s application. I would not exercise my discretion to join it as a party.

For the reasons I have given, I have decided that:
the applicant, Queensland Investment Corporation, is a person whose interests are affected by the decision of the respondent, the Minister for Transport and Regional Services, and so a person who may make an application for review of that decision;
and declined to order that the Shopping Centre Council of Australia be joined as a party to the proceeding.
I certify that the one hundred and twenty nine preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie,

Signed: ...............................................................

R. Crook Associate

Date of Interlocutory Hearing                8 December, 2003
Date of Decision  30 September, 2004
Counsel for the Applicant  Mr P. Hanks QC and Dr J. Beard
Solicitor for the Applicant  Australian Government Solicitor
Solicitor for the Respondent                  Mr T. Power,
Freehills

Solicitor for Applicant for Joinder Mr M. Leering
Speed and Stracey