Regional Express Holdings Limited v Dubbo City Council (No 3) - [2014] NSWLEC 87

Land and Environment Court

New South Wales

Medium Neutral Citation: Regional Express Holdings Limited v Dubbo City Council (No 3) [2014] NSWLEC 87
Hearing dates: 24, 25 February 2014
Decision date: 26 June 2014
Jurisdiction: Class 4
Before: Pain J
Decision:
1. The Applicant's Further Amended Summons dated 24 February 2014 is dismissed.
2. Costs are reserved.
3. Exhibits to be returned.

Catchwords: JUDICIAL REVIEW - challenge to local council decision to charge fee for service of passenger security screening at regional airport - whether power to charge entity not receiving the service - statutory requirements for notification of public of intended fee complied with - no failure to accord procedural fairness to applicant - council decisions not irrational or unreasonable - no failure to consider mandatory relevant matters - irrelevant matters not considered
Legislation Cited: Aviation Transport Security Act 2004 (Cth) s 9, Div 2 Pt 4, s 27, s 33, s 41A
Aviation Transport Security Regulations 2005 (Cth) reg 3.20, reg 4.02, reg 4.09
Civil Aviation Safety Regulations 1998 (Cth) Pt 1, reg 47.100
Evidence Act 1995 s 160
Interpretation Act 1987 s 33
Local Government Act 1993 s 6, s 7, s 8, s 9, s 24, s 66, s 117 s 192, s 197, s 405, s 496, s 501, s 561, s 608, s 610A, s 610C, s 610D, s 610F, Ch 15
Migration Act 1958 (Cth)
Cases Cited: Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 All ER 680
Bropho v State of Western Australia [1990] HCA 24; (1990) 171 CLR 1
Coco v R [1994] HCA 15; (1994) 179 CLR 427
Daly v Thiering [2013] NSWCA 25
Daly v Thiering [2013] HCA 45; (2013) 303 ALR 188
Fernando v Commissioner of Police (1995) 36 NSWLR 567
Gifford v Strang Patrick Stevedoring Pty Ltd [2003] HCA 33; (2003) 214 CLR 269
Hurstville City Council v Minister for Planning and Infrastructure [2012] NSWLEC 134; (2012) 189 LGERA 269
House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498
Kioa v West [1985] HCA; (1985) 159 CLR 550
Kong v Minister for Health [2014] FCA 34; (2014) 308 ALR 522
Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340; (2004) 141 FCR 346
Luu v Renevier (1989) 91 ALR 39
Marrickville Metro Shopping Centre Pty Ltd v Marrickville Council [2009] NSWLEC 109
Marrickville Metro Shopping Centre Pty Ltd v Marrickville Council [2010] NSWCA 145; (2010) 174 LGERA 67
Martino Developments Pty Ltd v Doughty [2008] VSC 517
Meriton Apartments Pty Ltd v Council of the City of Sydney (No 3) [2011] NSWLEC 65; (2011) 182 LGERA 256
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 308 ALR 280
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 297 ALR 225
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Parramatta City Council v R & R Fazzolari Pty Ltd [2008] NSWCA 132; (2008) 162 LGERA 1
Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 535
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
Reid's Farms Pty Ltd v Murray Shire Council [2010] NSWLEC 127; (2010) 182 LGERA 1
Salemi v MacKeller (No 2) (1977) 137 CLR 396
Sharples v Minister for Local Government [2008] NSWLEC 328; (2008) 166 LGERA 302
Sharples v Minister for Local Government [2010] NSWCA 36; (2010) 174 LGERA 129
Smith v Wyong Shire Council [2003] NSWCA 322; (2003) 132 LGERA 148
Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141
SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1
Texts Cited: Mark Aronson, "Jurisdictional Error and Beyond" in Matthew Groves (ed), Modern Administrative Law in Australia - Concepts and Context (2014 Cambridge University Press)
Mark Aronson and Matthew Groves, Judicial Review of Administrative Action, (5th ed 2013, Thomson Reuters)
Theresa Baw, "Illogicality, Irrationality and Unreasonableness in Judicial Review" in Neil Williams (ed), Key Issues in Judicial Review (2014 Federation Press)
D C Pearce and R S Geddes, Statutory Interpretation in Australia, (7th ed 2011 LexisNexis)
Category: Principal judgment
Parties: Regional Express Holdings Limited (Applicant)
Dubbo City Council (Respondent)
Representation: Mr J Simpkins SC with Mr J S Emmett (Applicant)
Ms S Duggan SC with Mr M Seymour (Respondent)
Mills Oakley Lawyers (Applicant)
Booth Brown Samuels & Olney Solicitors (Respondent)

File Number(s): 40372 of 2013

Judgment

Judicial review of decision to impose fee for service by local council

The Applicant Regional Express Holdings Ltd (Rex) challenges two resolutions of Dubbo City Council (the Council) concerning the imposition of fees for security screening of passengers at Dubbo City Regional Airport (the airport). The Council relied on s 608(1) of the Local Government Act 1993 (LG Act) in imposing these fees.

According to Rex there are two decisions of the Council under challenge. The first decision challenged is the resolution passed by the Council at its ordinary Council meeting on 22 October 2012 adopting the Report of the meeting of the Dubbo City Regional Airport Working Party (Working Party) (October 2012 report) held on the same day (the first decision). In the October 2012 report the Working Party recommended screening of all passengers travelling to Dubbo with the cost to be charged to RPT (Regular Public Transport) operators and spread across all RPT passengers flying into and out of Dubbo.

The second decision challenged is the resolution passed by the Council at its ordinary Council meeting on 25 February 2013 adopting the Report of the Working Party meeting held on the same day (the second decision). The Working Party had in turn adopted the Report of the Director Corporate Development titled "Draft Revenue Policy/Screening Charges Dubbo City Regional Airport" dated 12 February 2013 (February 2013 report) including the recommendation that the draft Revenue Policy for the recovery of passenger and checked baggage screening costs at the airport be adopted noting that such policy is on a full cost recovery basis payable by the RPT operators as contained in this report. By adopting this recommendation, the Council resolved to charge a fee for the costs of security screening at the airport to the two RPT operators which use the airport, namely Rex and QantasLink. The Further Amended Summons (FAS) dated 24 February 2014 seeks declarations of invalidity of both decisions and consequential orders, inter alia.

Local Government Act 1993

The Council's power to provide services and charge a fee for these is regulated by the LG Act.

Approved fee is defined in the Dictionary to the LG Act as:

approved fee means:

(a) in relation to a fee to which Division 2 of Part 10 of Chapter 15 applies, a fee determined by the council in accordance with that Division, or

(b) in relation to a fee to which Division 3 of Part 10 of Chapter 15 applies:

(i) the fee prescribed by the regulations for the purposes of the provision in relation to which the expression is used or determined by the council in accordance with any such regulations, or

(ii) if no such regulations are in force, the fee (if any) determined by the Director-General for the purposes of the provision in relation to which the expression is used, or

(iii) if no such regulations are in force and no fee is determined by the Director-General, the fee (if any) determined by the council for the purposes of the provision in relation to which the expression is used.

Section 6 of the LG Act provides:

6 Notes in the text

Introductions to Chapters, notes, charts and diagrams are explanatory notes and do not form part of this Act. They are provided to assist understanding.

Sections 7 and 8 of the LG Act provide:

Chapter 2 "What are purposes of this Act?"

7 What are the purposes of this Act?

The purposes of this Act are as follows:

(a) to provide the legal framework for an effective, efficient, environmentally responsible and open system of local government in New South Wales,

(b) to regulate the relationships between the people and bodies comprising the system of local government in New South Wales,

(c) to encourage and assist the effective participation of local communities in the affairs of local government,

(d) to give councils:

· the ability to provide goods, services and facilities, and to carry out activities, appropriate to the current and future needs of local communities and of the wider public

· the responsibility for administering some regulatory systems under this Act

· a role in the management, improvement and development of the resources of their areas,

...

Chapter 3 "What is a council's charter?"

8 The council's charter

(1) A council has the following charter:

· to provide directly or on behalf of other levels of government, after due consultation, adequate, equitable and appropriate services and facilities for the community and to ensure that those services and facilities are managed efficiently and effectively

...

· to raise funds for local purposes by the fair imposition of rates, charges and fees, by income earned from investments and, when appropriate, by borrowings and grants

...

(2) A council, in the exercise of its functions, must pursue its charter but nothing in the charter or this section gives rise to, or can be taken into account in, any civil cause of action.

Section 24 within Ch 6 "What are the service functions of Councils?" Pt 1 "General" provides:

24 Provision of goods, services and facilities and carrying out of activities

A council may provide goods, services and facilities, and carry out activities, appropriate to the current and future needs within its local community and of the wider public, subject to this Act, the regulations and any other law.

The introduction to Ch 6 relevantly states:

Introduction. This Chapter confers on councils their service or non-regulatory functions. Examples of these functions include the provision, management or operation of:

· community services and facilities

...

This list of examples is not exhaustive.

These functions are conferred in broad terms in Part 1. Particular provisions are made for the management of public land in Part 2. Part 3 imposes some restraints and qualifications on the exercise of the service functions.

A council may have other service functions under other Acts. For example, a council has functions relating to the provision and management of roads under the Roads Act 1993.

Section 192 within Pt 2, Div 2 provides:

192 Inspections and investigations

For the purpose of enabling a council to exercise its functions, a person authorised to enter premises under this Part may:

(a) inspect the premises and any food, vehicle, article, matter or thing on the premises, and

(b) for the purpose of an inspection:

(i) open any ground and remove any flooring and take such measures as may be necessary to ascertain the character and condition of the premises and of any pipe, sewer, drain, wire or fitting, and

(ii) require the opening, cutting into or pulling down of any work if the person authorised has reason to believe or suspect that anything on the premises has been done in contravention of this Act or the regulations, and

(c) take measurements, make surveys and take levels and, for those purposes, dig trenches, break up the soil and set up any posts, stakes or marks, and

(d) require any person at those premises to answer questions or otherwise furnish information in relation to the matter the subject of the inspection or investigation, and

(e) examine and test any meter, and

(f) measure a supply of water, and

(g) take samples or photographs in connection with any inspection.

Section 405 within Ch 13 Pt 2 provides:

Chapter 13 How are councils made accountable for their actions?

Part 2 Strategic planning

405 Operational plan

(1) A council must have a plan (its operational plan) that is adopted before the beginning of each year and details the activities to be engaged in by the council during the year as part of the delivery program covering that year.

(2) An operational plan must include a statement of the council's revenue policy for the year covered by the operational plan. The statement of revenue policy must include the statements and particulars required by the regulations.

(3) A council must prepare a draft operational plan and give public notice of the draft indicating that submissions may be made to the council at any time during the period (not less than 28 days) that the draft is to be on public exhibition. The council must publicly exhibit the draft operational plan in accordance with the notice.

(4) During the period of public exhibition, the council must have for inspection at its office (and at such other places as it may determine) a map that shows those parts of its area to which each category and sub-category of the ordinary rate and each special rate included in the draft operational plan applies.

(5) In deciding on the final operational plan to be adopted, a council must consider any submissions that have been made concerning the draft plan.

(6) The council must post a copy of its operational plan on the council's website within 28 days after the plan is adopted.

Chapter 15 How are councils financed

The introduction to Ch 15 relevantly states:

Introduction. The main sources of council finance are:

· rates, of which there are 2 kinds

- ordinary rates

- special rates

· charges

· fees

· grants

· borrowings

· income from business activities

· income from land

· income from other investments

· sales of assets.

This Chapter deals mainly with the making and collection of the different kinds of rates and the imposition of charges.

...

The Chapter also enables the making and collection of charges. A charge may be made in relation to specified services provided by a council (such as the provision of water, sewerage or drainage services or the collection of garbage). A charge may be set at a level that enables part or full cost recovery or, in some cases, that exceeds costs.

A council may impose charges in addition to ordinary rates and special rates or in substitution for special rates that may be made for the same purposes as a charge.

A charge, when made, has the same characteristics as a rate concerning payment, the accrual of interest (if the charge remains unpaid) and the procedures that may be taken for its recovery.

The reasonable cost to the council of providing domestic waste management services must not be recovered by the ordinary rate. It must be obtained from the making and levying of a charge.

Part 1 An overview of rates and charges

Section 496 provides:

496 Making and levying of annual charges for domestic waste management services

(1) A council must make and levy an annual charge for the provision of domestic waste management services for each parcel of rateable land for which the service is available.

(2) A council may make an annual charge for the provision of a domestic waste management service for a parcel of land that is exempt from rating if:

(a) the service is available for that land, and

(b) the owner of that land requests or agrees to the provision of the service to that land, and

(c) the amount of the annual charge is limited to recovering the cost of providing the service to that land.

Section 501 provides:

501 For what services can a council impose an annual charge?

(1) A council may make an annual charge for any of the following services provided, or proposed to be provided, on an annual basis by the council:

· water supply services

· sewerage services

· drainage services

· waste management services (other than domestic waste management services)

· any services prescribed by the regulations.

(2) A council may make a single charge for two or more such services.

(3) An annual charge may be levied on each parcel of rateable land for which the service is provided or proposed to be provided.

Part 7 Payment of rates and charges

Section 561 states:

561 Who is liable to pay charges?

The person liable to pay a charge is:

(a) the person who, if the charge were a rate and if the land on which the charge is levied were rateable in respect of that rate, would be liable under section 560 to pay the rate, or

(b) the Crown in respect of land owned by the Crown, not being land held under a lease for private purposes.

Part 10 Fees

Section 608 in Div 1 titled "Council fees - General" provides:

608 Council fees for services

(1) A council may charge and recover an approved fee for any service it provides, other than a service provided, or proposed to be provided, on an annual basis for which it is authorised or required to make an annual charge under section 496 or 501.

(2) The services for which an approved fee may be charged include the following services provided under this Act or any other Act or the regulations by the council:

· supplying a service, product or commodity

· giving information

· providing a service in connection with the exercise of the council's regulatory functions-including receiving an application for approval, granting an approval, making an inspection and issuing a certificate

· allowing admission to any building or enclosure.

(3) In particular, a council may charge an approved fee for inspecting premises that are reasonably required to be inspected in the exercise of the council's functions, whether or not the inspection is requested or agreed to by the owner or occupier of the premises.

(4) However, a council may not charge an approved fee for the inspection of premises that are not used for a commercial activity, except where it is necessary to inspect the premises in connection with an application for an approval concerning the premises or in connection with any inspection that is reasonably necessary to determine if an approval has been complied with.

(5) (Repealed)

(6) If inspections of premises are reasonably necessary to determine if an approval has been complied with:

(a) an approved fee may be charged for such an inspection only if the charging of the fee has been included as a condition of the approval, and

(b) an approved fee may not be charged for such an inspection before the approval is granted, and

(c) an approved fee may not be charged for the inspection of any thing for which the council relies on a certificate under section 93 that the thing has been done in compliance with the approval.

(7) An approved fee charged for inspecting premises must be repaid to the person who paid it if the inspection is not carried out.

(8) An approved fee charged in connection with a service provided at an airport established and maintained by the council may be recovered from the holder of the certificate of registration issued under the Civil Aviation Regulations of the Commonwealth for the aircraft in respect of which the service was provided. This subsection applies whether or not the holder is the person to whom the service is actually provided.

Section 610A within Div 2 titled "Council fees for business activities" provides:

610A Application of Division

(1) This Division applies to a fee charged by a council for any service relating to the following activities:

(a) the operation of an abattoir,

(b) the operation of a gas production or reticulation service,

(c) the carrying out of a water supply or sewerage service (other than a service provided, or proposed to be provided, on an annual basis for which the council is authorised or required to make an annual charge under section 501),

(d) the carrying out of work under section 67,

(e) the carrying out of graffiti removal work under section 11 of the Graffiti Control Act 2008,

(f) any other activity prescribed by the regulations for the purposes of this subsection.

(2) This Division does not apply to a fee charged by a council for a service relating to the following activities:

(a) the issuing of a certificate under Part 4A of the Environmental Planning and Assessment Act 1979,

(b) an activity prescribed by the regulations for the purposes of this subsection.

Section 610C within Div 3 titled "Council fees for non-business activities" provides:

610C Application of Division

This Division applies to a fee for a service other than a fee to which Division 2 applies.

Section 610D also within Div 3 provides:

610D How does a council determine the amount of a fee for a service?

(1) A council, if it determines the amount of a fee for a service, must take into consideration the following factors:

(a) the cost to the council of providing the service,

(b) the price suggested for that service by any relevant industry body or in any schedule of charges published, from time to time, by the Department,

(c) the importance of the service to the community,

(d) any factors specified in the regulations.

(2) The cost to the council of providing a service in connection with the exercise of a regulatory function need not be the only basis for determining the approved fee for that service.

(3) A higher fee or an additional fee may be charged for an expedited service provided, for example, in a case of urgency.

Section 610F also within Div 3 provides:

610F Public notice of fees

(1) A council must not determine the amount of a fee until it has given public notice of the fee in accordance with this section and has considered any submissions duly made to it during the period of public notice.

(2) Public notice of the amount of a proposed fee must be given (in accordance with section 405) in the draft operational plan for the year in which the fee is to be made.

(3) However, if, after the date on which the operational plan commences:

(a) a new service is provided, or the nature or extent of an existing service is changed, or

(b) the regulations in accordance with which the fee is determined are amended,

the council must give public notice (in accordance with section 705) for at least 28 days of the fee proposed for the new or changed service or the fee determined in accordance with the amended regulations.

...

Regulation of airports by Commonwealth government

The Commonwealth government regulates airport safety and security, inter alia.

Civil Aviation Safety Regulations 1998 (Cth)

Part 1 of the Dictionary to the Civil Aviation Safety Regulations 1998 (Cth) (CASR) contain the following definitions:

registered operator, of an aircraft, has the meaning given by regulation 47.100.

registration holder of an aircraft means the person whose name is entered in the Australian Civil Aircraft Register as that of the aircraft's owner.

Regulation 47.100 provides:

47.100 Identity of registered operator of aircraft

(1) If the registration holder of an aircraft is an eligible person, the holder is the aircraft's registered operator.

(2) However, the registration holder may appoint another eligible person as the registered operator.

...

A CASA Aircraft Register search dated 10 February 2014 shows that of the eight aircraft for which Rex is the registered operator, Rex is not the registered holder (exhibit B tab 39).

Aviation Transport Security Act 2004 (Cth) and Aviation Transport Security Regulations 2005 (Cth)

Section 9 of the Aviation Transport Security Act 2004 (Cth) (the Security Act) provides that an aircraft is a cleared aircraft if the only passengers who are allowed to board the aircraft are cleared passengers. Division 2 of Pt 4 of the Security Act sets out the manner in which passengers become cleared passengers by security screening. Section 27 of the Security Act states a security controlled airport has an airside area and a landside area. Section 33(1) provides that the regulations may prescribe types of landside security zones.

Regulation 3.02(a) of the Aviation Transport Security Regulations 2005 (Cth) (the Security Regulations) prescribes a sterile area as a landside security zone. The Security Regulations provide the security requirements for a sterile area in reg 3.20. These include, inter alia, at least one screening point (reg 3.20(3)(a)). All persons entering the sterile area must be screened and cleared (reg 3.20(d)). All passengers must be cleared in accordance with reg 4.09(2)(b) in order to enter the sterile area.

Section 41A(1) of the Security Act provides that a person who presents at a screening point in order to enter an area or zone of a security controlled airport is taken for all purposes to consent to each screening procedure that may be conducted. Section 41A(2)(b) provides that s 41A(1) does not apply if the passenger refuses to undergo the procedure.

Security reg 4.02 provides that an aircraft must be a cleared aircraft if its maximum take off (MTO) weight is more than 20,000kg.

Evidence

Rex tendered the Council's statement of reasons filed on 10 September 2013 (exhibit A). Rex also tendered two volumes of documents essentially providing the relevant council file, inter alia (exhibit B). A confidential report titled "Tender for screening services Dubbo Regional Airport by Director Corporate Development of the Council" dated 6 December 2012 was tendered by Rex (exhibit C).

The Council tendered emails between Mr Lodge of Rex, Mr Kim of Rex and Mr Dickerson, Mayor of the Council dated 18 October 2012 and 21 October 2012 (exhibit 1).

Rex read affidavits of Mr Warrick Lodge, General Manager for Network Strategy and Sales for Rex sworn on 24 June 2013 and 18 July 2013.

Agreed chronology of relevant events

The parties agreed a chronology of events as follows. On 19 September 2012 QantasLink advised the Council (the operator of Dubbo Airport) that it intended to fly Q-400 aircraft from Sydney to Dubbo from March 2013. The aircraft are above the 20,000kg MTO weight threshold for required security screening pursuant to the Security Regulations, with the result that the airport would need to commence security screening (exhibit B tab 3 p 13).

On 19 September 2012 a report entitled "Passenger and Baggage Screening at Dubbo Regional Airport" was produced (exhibit B tab 6 p 3). The report recommended that passenger and checked baggage screening be on a "full cost recovery basis", with four different options for recovery from operators/airlines, including:

(a) Only screening passengers and checked baggage on aircraft which are above the 20,000kg MTO weight and only charging QantasLink;

(b) Screening all passengers but only charging QantasLink;

(d) Screening all passengers and charging both airlines on a per passenger basis.

On 16 October 2012 the Council sent a notice of the Council meeting to be held on 22 October 2012 to Mr Maurice Gahan, NSW Sales Manager of Rex. The notice attaches the agenda for the meeting, as well as the 19 September 2012 "Passenger and Baggage Screening at Dubbo Regional Airport" report (exhibit B tab 3 p 1).

On 22 October 2012 the Working Party made the following recommendation:

That all RPT passengers and checked baggage travelling from Dubbo be screened for both passenger safety and security purposes, with the costs of such screening to be on an all encompassing user charge basis for use of the Dubbo City Regional Airport by RPT operators, and spread across all RPT passengers flying into and out of Dubbo.

Also on 22 October 2012, the Council resolved to adopt the report of the Working Party (October 2012 report), including the above recommendation (exhibit B tab 7 p 1) (the first decision).

On 23 October 2012 Rex received a letter from the Council notifying it of the meeting on 22 October 2012 (exhibit B tab 9 p 1).

On 24 October 2012 Rex wrote to the Mayor of Dubbo advising of its objections to the Working Party report it received that same day (exhibit B tab 9 p 1).

On 24 October 2012 Rex received an email from the Council summarising the "Council's resolution" (exhibit B tab 8 p 1).

On 9 November 2012 the Mayor wrote to Rex acknowledging that it was never expected that Rex or QantasLink would be in attendance at the Council meeting held on 22 October 2012 (exhibit B tab 11 p 2).

On 16 November 2012 Rex replied to the Mayor's letter of 9 November 2012 and informed the Mayor of new regulatory changes that permitted parallel departures of screened and unscreened flights (exhibit B tab 12 p 2).

On 17 December 2012 the Council resolved at a Council meeting:

that Council place on public exhibition for a period of 28 days the proposed fee in respect of screening at Dubbo City Regional Airport for the period 04 March 2013 to 30 June 2012, with such being "full cost recovery from RPT operators".

The Council also noted that negotiations with Rex and QantasLink were proceeding on the basis of all passengers being screened (exhibit B tab 15 p 2).

On 19 December 2012 Rex sent a further letter to the Mayor outlining its objections to the proposed screening (exhibit B tab 16 p 1).

In a letter dated 20 December 2012, the Mayor wrote to Rex advising that the Council had resolved that all RPT passengers and checked baggage travelling from Dubbo be screened. The Mayor also states that a "draft Revenue policy" would be placed on public exhibition for a period of 28 days that proposed for the period 4 March 2013 to 30 June 2013 that the cost of such screening be on the basis of "full cost recovery from RPT operators". The Mayor also states that recovery of fees would be on a pro rata basis based on the RPT traffic for the month (exhibit B tab 17 p 1).

On 14 January 2013 Rex wrote a further letter to the Mayor setting out its objections to the security screening (exhibit B tab 22 p 2).

On 17 January 2013 and 31 January 2013 the Council published notices about security screening fees in local newspapers (exhibit B tab 23).

On 12 February 2013 the Airport director produced a report for the Working Party entitled "Draft Revenue Policy/Screening Charges Dubbo City Regional Airport" (February 2013 report) (exhibit B tab 28 p 3). This report noted Rex's position that it should not be charged for security screening. It states that this was inconsistent with the Council's resolution of 22 October 2012. This report recommends:

that the draft Revenue Policy for the recovery of passenger and checked baggage screening costs at the Dubbo City Regional Airport be adopted noting that such policy is on a full cost recovery basis payable by RPT operators and as contained in this report.

On 25 February 2013 the Working Party met and recommended that its report from the meeting on 25 February 2013 be adopted. The report attaches the 12 February 2013 "Draft Revenue Policy/Screening Charges Dubbo City Regional Airport" report. The Council met and adopted the report of the Working Party that same day (exhibit B tab 28 p 1) (the second decision).

On 27 February 2013 the 22 October 2012 the Working Party Report and Council Report were published on the Council website (exhibit B tab 52 p 2).

On 28 February 2013 Rex received a letter from the Council advising it of the outcome of the 25 February 2013 meeting (exhibit B tab 30).

In March 2013 the Council issued Rex with its first invoice for security screening (continued on a monthly basis thereafter) (exhibit B tab 37). Rex has not paid any of the invoices issued to it.

Grounds of judicial review

Four grounds of judicial review are considered.

1. The Council has no power to impose fee for service on Rex under the LG Act

The FAS states that the first decision of the Council is invalid on the following grounds:

(a) The Council does not have the power to make a decision that:

(i) compels the Applicant to accept passenger and checked baggage security screening services; or

(ii) compels the Applicant to pay for services provided to third parties.

The Second Decision is invalid on the following grounds:

(a) The Council does not have the power to make a decision that:

(i) compels the Applicant to accept passenger and checked baggage security screening services; or

(ii) compels the Applicant to pay for services provided to third parties.

Rex's submissions

Rex has challenged both the first and second decisions in these proceedings. Rex's primary position is that the first decision is the only one that needs to be challenged. This was the decision in which the Council resolved to impose security screening on Rex's customers and charge Rex a fee for doing so. Neither the Working Party nor the Council revisited or reconsidered this decision at a later meeting. Properly understood, the second decision simply adopted a particular revenue policy to implement the first decision. If the first decision is invalid, then the consequential second decision cannot stand.

Rex also challenged the second decision. The second decision purportedly fixed the basis on which the impugned fee would be charged. Even if the first decision is not set aside (or if the Court forms the view that the second decision is capable of standing independently of the first decision), the second decision should be set aside.

Rex submitted that the Council did not have the power to impose the fee for security screening under s 608(1) for three reasons. Firstly, the fee is not for a service under s 608(1). Secondly, the section should not be construed to limit the common law presumption of statutory interpretation to refuse a service where the service is one that is not requested. Thirdly, the power to inspect is dealt with separately in s 192 of the LG Act and fees for security screening are not separately dealt with.

Not supply of a service under s 608(1)

Service is not defined in the LG Act. The qualities of a service referred to in s 608(1) can be considered by dictionary definitions. In the Oxford Dictionary the definition includes inter alia "the action of serving, helping, or benefiting; conduct tending to the welfare or advantage of another" and the "supply of the needs of persons". In the Macquarie Dictionary the definition includes inter alia "the supplying or supplier of any articles, commodities, activities, etc., required or demanded". These definitions were relied on to submit that the fee for security screening is not a service under s 608 because it is not requested or required by Rex or for the benefit of Rex.

Limit of common law right not to accept service not permissible

The Council's power to impose the fee under s 608(1) should not be inferred to include the power to set quantification of a fee where the service is not voluntarily accepted and the service is required to be taken. The Council's power should be construed so that common law rights to accept or reject a service should not be interfered with except in clear terms.

In Fernando v Commissioner of Police (1995) 36 NSWLR 567 the statutory power to medically examine an accused by taking blood without the consent of the accused was considered. Priestley JA at 572-573 provides an overview of the approach to statutory construction in which Parliament does not intend to change common law positions beyond what is clearly stated directly or by implication citing various authorities including Coco v R [1994] HCA 15; (1994) 179 CLR 427. Martino Developments Pty Ltd v Doughty [2008] VSC 517 Vickery J at [18]-[27] and Daly v Thiering [2013] NSWCA 25 Hoeben JA (McColl and Macfarlan JJA agreeing) at [43](j) were also relied on by Rex as statements of principle concerning the application of this presumption in statutory construction.

Statutory construction where no request for service

A fee a council seeks to impose for a service not required or requested of the council is dealt with separately in the LG Act. Section 608(3) expressly authorises a council to charge a fee for inspections, whether or not the owner or occupier agrees to the inspection. Section 608(4) limits this power by stating that the inspection of non-commercial premises may only be the subject of a fee in connection with an application for approval concerning the premises (that is in the course of a process voluntarily instigated by the owner/occupier). Furthermore, the power to inspect is expressly granted elsewhere in the LG Act, in s 192. There is no equivalent statutory provision empowering the Council to conduct involuntary security screenings.

Section 608(1) may be contrasted with the provision for charges in Ch 15, Pts 1-7 (in particular s 501). Those charges deal with the kind of services that councils provide whether or not the recipient agrees to accept them such as water supply, sewerage, drainage and waste management. They are the subject of a separate regime under the LG Act.

Even if the Court construed s 608(1) as authorising the Council to charge a fee to Rex for screening services, it does not authorise the Council to compel Rex or Rex's passengers to accept those services.

The Council cannot rely on s 608 because the screening services are provided not to Rex but to Rex's customers. The statutory context of the security clearing requirement is important. Regulation 4.02 of the Security Regulations provides that an aircraft must be a cleared aircraft if its MTO weight is more than 20,000kg. The aircraft used by Rex at the airport have a MTO weight less than 20,000kg. Section 9 of the Security Act provides that an aircraft is a cleared aircraft if the only passengers who are allowed to board the aircraft are cleared passengers. Division 2 of Pt 4 of the Security Act states that passengers become cleared passengers by security screening. In other words, it is the passengers who receive the security screening services, not Rex.

Subject to an inapplicable exception (discussed below), s 608 only permits fees to be charged to and recovered from persons who actually receive the services in question. So much is clear from the contrast with charges under Ch 15, Pts 1-7, where the legislation expressly sets out the persons from whom the charges may be recovered: s 561. The second sentence of s 608(8) also expressly states that a particular fee can be recovered from someone even though that person is not the person to whom the service is actually provided. These features of the legislation indicate an intention that (unless s 608(8) applies) s 608(1) only contemplates the recovery of fees for services from persons to whom those services are provided. That is consistent with the ordinary way in which one would interpret a power to impose fees for the provision of services.

Section 608(8) exception not applicable

The exception in s 608(8) is not applicable and the Council cannot rely on s 608(8) for several reasons. The CASR draw a distinction between a registration holder and registered operator. The registration holder of an aircraft is the person whose name is entered on the Australian Civil Aircraft Register as the aircraft's owner: Pt 1 of the Dictionary. The registered operator has the meaning in reg 47.100. The registered operator is either the registration holder or a person appointed by the registration holder.

The CASA registrations for Rex aircraft (exhibit B vol 1, tab 39) demonstrate that Rex is the holder of the registration for only some of its aircraft. The first decision and second decision purport to impose the fee on the RPT operator regardless of which aircraft is being used. That is not permitted by s 608(8).

Moreover, the first decision and the second decision do not purport to impose the fee by reference to the holder of the certificate of registration of the aircraft at all. Rather, the Council purported to impose the fee on the RPT operator. As is clear from the CASA aircraft registrations, the entity which is the registered operator is not the same as the entity which is the aircraft registration holder. Section 608(8) does not permit the Council to impose the fee on the RPT operator.

Section 608(8) can only sensibly apply in relation to services in respect of an aircraft. The manner in which the Council decided to impose security screening services (imposing them on all RPT passengers indiscriminately) means that the services are not provided in respect of an aircraft. They are services that the Council has purported to impose on passengers regardless of which aircraft they are boarding.

In reply to the Council's submissions concerning the construction of s 24 Rex submitted that none of the authorities cited by the Council suggest that s 24 provides a source of power for a council to impose services involuntarily. While Parramatta City Council v R & R FazzolariPty Ltd [2008] NSWCA 132; (2008) 162 LGERA 1 was concerned with compulsory acquisition of land, the power to acquire compulsorily was based on other legislation. The only authority cited in respect of s 608, Meriton Apartments Pty Ltd v Council of the City of Sydney (No 3) [2011] NSWLEC 65; (2011) 182 LGERA 256 involved a council establishing work zones on public roads for construction purposes. Those services were provided at the applicant's request and to the applicant in that case.

Rex submitted that any deemed consent of passengers at the airport as currently configured is irrelevant. The evidence indicates that the airport was reconfigured following the Council's decision to impose security screening on all passengers. The material before the Council on 22 October 2012 (when it made the first decision) indicated that Council had options that included imposing security screening only on passengers who required screening under Federal legislation (exhibit B tab 3 at 8-9). That material indicated that the airport needed to be extended regardless of which option was adopted. The reconfiguration was still only proposed at the time of the second decision on 25 February 2013 (exhibit B tab 28 at 17-18).

Accordingly, the requirement for all passengers to be cleared before entering the sterile area and the deemed consent of passengers in light of the current reconfiguration of the airport all followed the Council's impugned decisions. If the Court accepts that the first decision or the second decision was invalid, then this aspect of the structure of the airport cannot affect that invalidity.

Council's submissions

Modification to the terminal building to accommodate an increased passenger load was necessary (exhibit B tab 3 p 8-9). The Council resolved to modify the terminal building, including building a sterile departure lounge (exhibit B tab 29 p 49, tab 20 p 2). That is, passengers enter into the sterile area (that is the departure lounge) in order to get to the tarmac and board any aircraft departing from the airport.

Rex inappropriately separates the decision-making process into two distinct phases and refers to these phases as the first and second decisions. The process is a continuum; a single determination. The decision-making process, the obligations that arise, and the meaning of the legislative provisions must be measured against the whole decision and not broken into parts.

Contrary to Rex's allegations, the decisions are supportable by direct reference to the text of s 608(1) because the services are provided under s 24 of the LG Act. Rex is not compelled to do anything by reference to the decisions of the Council. If it wishes to use the airport for its commercial purposes, then it must take into account the fees and charges involved in doing so, the same as any other operator.

The fact that it is a single composite decision-making process is derived from the statutory context:

(a) decision to provide service: s 24 LG Act;

(b) decision to charge a fee for service: s 608(1) with the need to create an "approved fee";

(i) consideration of matters under s 610D; and

(ii) public notice and further consideration: s 610F;

(iii) make an approved fee: s 405.

The Council had no power to levy the fee until after public exhibition and the consideration of objections. If they were separate decisions some liability for a fee would flow from the first decision, but it does not.

The calling for submissions and the consideration of the submission in the legislative context involves consideration of both the quantum of the fee and the levying of the fee in general. The Council's report (exhibit B tab 28) recognises this in both its text and its conclusions where it is noted that by adopting the draft revenue policy Council is "reconfirming" (tab 28 p 5) the position to charge all RPT airlines on a per passenger basis. The totality of the issues are considered to determine whether to alter the position notified, and in this case not to do so.

This singular process is also acknowledged as part of Rex's (at least initial) understanding by the nature of the submissions made by them on the revenue plan comprising the 20 minute presentation to councillors on 25 February 2012 (exhibit B tab 27 and tab 30 p 2) and the submission of the letters that were attached to that report (exhibit B tab 28 p 6-15 and tab 28 p 4).

In response to Rex's submissions on the meaning of service in s 608 of the LG Act the Council submitted that a purposive interpretation should be undertaken in accordance with s 33 of the Interpretation Act 1987. The objects of the LG Act (as in sections 7 and 8 of the LG Act), the Charter of the Council and the general statutory context speaks of an approach contrary to that taken by Rex.

The text and context of the LG Act should be considered. First, there is no express statutory limitation for a service to be voluntary. This issue only arises because Rex seeks to measure whether the service is one to them as individuals, whereas the LG Act makes it clear that the service is not to be measured against an individual desire or need but rather to provide services appropriate to the current and future needs of local communities and of the wider public: s 24 LG Act.

In Parramatta City Council v R & R Fazzolari Pty Ltd Tobias JA (Hodgson and Palmer JJA agreeing) considered s 24 of the LG Act at [134]-[135] and identified its broad scope. By analogy this reasoning must allow for the provision of airport screening services.

The Council accepted the general principle of statutory construction that absent clear words an Act is taken not to be construed to infringe common law rights, but that principle does not arise. Rex has not identified a common law right that has been infringed by s 608. Alternatively, if accepted that there exists a common law right of an individual only to be provided with services he or she consents to then that right has been expressly altered by the provision of the LG Act for the reasons outlined as to why the charge can be imposed without the need for consent.

The Council has the power to charge a fee for a service even if the recipient does not consent based on the statutory intent expressed in the LG Act. The power of a council to provide services is not limited in express terms, that is, there is no express requirement for consent. The only limitation on the provision of the service is that the service be appropriate to the current and future needs within its local community and of the wider public, subject to the LG Act, the regulations and any other law.

The charging of the fee for that service is dealt with in s 608(1) which contains no words of constraint. Constraints should not be implied in this section because:

(1) Subsection (2) contains no words of constraint but rather is illustrative (not exhaustive) of the types of services for which a fee can be charged. It includes the supply of a service, product or commodity.

(2) To the extent that subsections (3) -(7) do contain words of limitation:

(a) Those subsections specifically limit their application to a single circumstance being the inspection of premises;

(b) In some circumstances, the charge may still be levied notwithstanding that it was not requested or agreed to by the owner or occupier of the premises as the inspection of premises in the context of the LG Act may be requested by a person who is not the owner or occupier (for example a builder seeking inspections as required by an approval). This is made plain by subsection (7) that acknowledges that fees may be made and inspections requested by someone other than the owner.

(c) The limitations as to the provision of a service of inspection to non-commercial premises recognises the context of the LG Act which treats residential premises differently from commercial premises for the purposes of entry for inspection and the like: for example see s 192 and s 197 LG Act.

(d) Subsection (6) relates specifically to inspections for approvals and seeks to limit the occasions on which councils can charge for that particular service and is unrelated to the power generally.

(3) Subsection (8) is not a limitation on the power to charge but rather expands the power of recovery. The clear words of subsection (8) are that it relates to the recovery of the fee and not the charging of the fee.

This construction is also consistent with the stated purpose of the LG Act and the Charter which looks to the broader public good rather than the individual.

Council has power to impose fee for service on Rex under LG Act

This case raises fundamental questions about the power of councils to charge a fee for a service.

One decision or two?

The FAS asserts there are two separate decisions and both are invalid for the same reasons namely they compel Rex to accept the security screening services at the airport or compel Rex to pay for it when it is provided to passengers (third parties). The issue arises of whether the Council's first decision in October 2012 is justiciable, Rex's case assuming that it is, the Council arguing that it is not. The Council does not dispute the second decision in February 2013 is justiciable. Resolution of this question does not matter for the absence of power argument maintained by Rex as the same issues are identified in the FAS for both decisions. It may have implications for later grounds of review however. It is logical that the issue be determined first as the answer defines the relevant factual matrix the Court is to consider.

This case raises the question of justiciability in relation to the provision of council services for the first time in this Court so far as I am aware. No cases considering that question have been found. It is necessary to consider the particular statutory scheme and also the individual circumstances impacted by the Council's decision-making processes.

In Marrickville Metro Shopping Centre Pty Ltd v Marrickville Council [2009] NSWLEC 109 I considered whether several ad valorem rate setting decisions of a council were justiciable at [22]-[33]. My conclusion that such a decision was justiciable related to different provisions in the LG Act and does not apply directly here. It is useful to consider the authorities I cited at [22]-[23] and [30]:

22 Whether a decision of a local council under a statute is justiciable depends on whether the decision concerns a matter that is largely one concerning policy and/or political considerations. A lengthy consideration of justiciability was necessary in the full Federal Court in Minister for the Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 75 ALR 218. The Federal Court had to consider whether the exercise of a prerogative power by the Cabinet rather than a decision made under a statute was justiciable. The decision of the Federal Cabinet to nominate a national park for inclusion on the UNESCO World Heritage list was held to be non-justiciable as it involved a number of complex policy questions which were more appropriately dealt with in the cabinet rather than by a court. The lead judgment of Wilcox J at 244 - 253 analyses the leading cases and the relevant history leading to his determination that a cabinet decision could be justiciable depending on the nature of the decision made and its effect, see also Bowen CJ at 223 - 225.

23 The obiter passage in Kioa v West of Mason J relied on by the Council to argue that these judicial review proceedings are not justiciable is in the context of His Honour stating that the common law duty to act fairly applies to administrative decisions which affect rights, interests and legitimate expectations of individual citizens. As an example of a decision to which the duty does not attach, his Honour gave the imposition of a rate on ratepayers and at 584 quoted Jacobs J in Salemi v MacKellar (No 2) (1977) 137 CLR 396:

...the duty [to act fairly] does not attach to every decision of an administrative character. Many such decisions do not affect the rights, interests and expectations of the individual citizen in a direct and immediate way. Thus a decision to impose a rate or a decision to impose a general charge for services rendered to ratepayers, each of which indirectly affects the rights, interests or expectations of citizens generally does not attract this duty to act fairly. This is because the act or decision which attracts the duty is an act or decision:

" ... which directly affects the person (or corporation) individually and not simply as a member of the public or a class of the public. An executive or administrative decision of the latter kind is truly a `policy' or `political' decision and is not subject to judicial review." (Salemi [No 2] [99], per Jacobs J.)

...

30 While there is not a decision which has specifically considered the issue of justiciability in the context of ordinary rate setting, the lack of specific criteria in the Act to be satisfied when setting such a rate alone does not suggest the decision is non-justiciable. That there is broad discretion under the LG Act for the setting of an ordinary rate by a council in the context of the detailed statutory regime for the setting of rates also does not indicate the matter cannot be subject to a judicial review challenge. The Council has argued that the decision involves a balancing of policy considerations rendering it non-justiciable. The reasoning in Peko Wallsend of the full Federal Court that decisions of the Federal Cabinet were not automatically immune from judicial review also suggests that a finding of lack of justiciability in relation to a decision made under a statute should not be made lightly. In Wellington City Council v Woolworths New Zealand Ltd (No 2) [1996] 2 NZLR 537 relied on by the Council in relation to the nature of council decision-making on rates, discussed at par 112 below, the New Zealand Court of Appeal refers to rating decisions being judicially reviewable on grounds such as manifest unreasonableness.

The LG Act provides a very detailed scheme for rate setting as identified in Marrickville Metro at [13]-[15]. Appeal rights provided in the LG Act enable a review of a rate category and appeal against the date of declaration of a category to the Court. The LG Act gives the power to councils to provide services in s 24, a wide power which I discuss more fully in the next section. The LG Act does not mandate any specific requirement that must be met or considered before a decision to provide a service is made by a council, in marked contrast to the rate setting provisions in the LG Act considered in Marrickville Metro. The LG Act imposes specific obligations on a council when charging a fee for a service in Pt 10 Divisions 1 to 3 which apply to the second decision made by the Council in February 2012.

Rex submitted that its rights, interests and expectations were affected by the first decision in October 2012, drawing perhaps on the words in Kioa v West [1985] HCA; (1985) 159 CLR 550 cited above. In Kioa v West examples given of administrative decisions which were not justiciable were council rates and charging for services for ratepayers as these were described as affecting members of the public or a class of the public and not an individual directly. Those examples are provided in obiter comments and are not binding on me. In Marrickville Metro I held the ad valorem rate setting decisions of a council were justiciable in the circumstance that only one entity was the subject of a rate category under challenge.

While it is possible to characterise the first decision of the Council to accept a recommendation of the Working Party to change how the airport terminal operated to introduce screening for all passengers and charge operators for it as a policy change, that decision impacted on only two entities, Rex and QantasLink, according to the evidence before me. The characterisation of the administrative decision by Rex as the decision in which the Council resolved to impose security screening on all passengers and charge Rex a fee for doing so is correct given the adoption of the Working Party's recommendation by the Council to exactly that effect. That accords with my observation in Marrickville Metro at [30], set out above, that broad discretionary decisions are not necessarily immune from judicial review. While the Council could not legally charge the fee in October 2012 as the requirements of s 610F had not then been complied with by the Council, the February 2013 decision which adopted the revenue policy providing for the fee was confirming the earlier decision already made by the Council to take that course. The February 2013 decision did not seek to review the earlier decision in October 2012. Consequently Rex as one of only two airline operators did have its individual interests directly affected by the first decision.

I did not accept the argument in Marrickville Metro that the existence of appeal rights in the LG Act excluded judicial review. Here there are no appeal rights provided for in the LG Act which further confirms my conclusion.

For the reasons identified in Kioa v West by Mason J that the common law duty to act fairly applies to administrative decisions which affect rights, interests or legitimate expectations of individual entities, here Rex, I consider that the decision is justiciable at least to the extent that a duty to act fairly was imposed on the Council in making the first decision. The observations of Jacobs J in Salemi v MacKeller (No 2) (1977) 137 CLR 396 at [99] also support this conclusion because his Honour states that decisions that directly affect a person or corporation individually attracts the duty to act fairly, as opposed to administrative decisions that indirectly affect members of the public or a class of the public which do not attract such a duty. I consider that Rex's interests are affected individually as a corporation, not as a class of the public, given that it is one of two airlines impacted by the decision.

Contrary to the Council's submission that the duty could only arise in relation to the second decision by virtue of s 610F, I agree with Rex that there is nothing in the LG Act that manifests a clear statutory intention to exclude such a duty in the context of the first decision. Section 610F provides for public notice of the amount of the proposed fee, to which the second decision is directed. The first and separate decision relates to the decision of the Council to provide the passenger screening service to all passengers.

Council's decision-making process in October 2012 and February 2013 is set out in the chronology and I do not need to consider the process in more detail in order to determine the first ground of review concerning the power of the Council to charge a fee for a service. As already identified in par 54-55 the same bases for invalidity are alleged for both decisions it is unnecessary in this ground to further distinguish between the two resolutions of the Council.

Scope of power to charge fee for service under LG Act where no request for service

In response to another airline operator wishing to fly aircraft requiring passenger security screening to and from the airport the Council redeveloped the airport terminal to include a sterile area (a landside security zone) as defined in the Security Act and Security Regulations. All passengers must be security screened before entering a sterile area, in this case within the airport terminal. The Council has commenced charging a fee to two operators, Rex and QantasLink, for that service.

There is no legal requirement imposed by the Security Act and Security Regulations that Rex passengers be security screened as its aircraft are below the required weight threshold of 20,000kg specified in the Security Regulations. As Rex submitted, the position is different if the Security Regulations are engaged (as they are in respect of QantasLink's aircraft). The Security Regulations specify that aircraft of more than 20,000kg MTO are not permitted to take off without security screening.

Rex does not require the service in order to operate under the Security Act and Security Regulations. The Council is the operator of the regional airport which Rex wishes to use as part of its commercial airline business. Rex is not compelled by law to use the airport. No issue was or could be raised before me of the commercial arrangements between Rex and the Council relating to that airport use and I am not making any findings on that matter. The issues before me rest solely on a consideration of the Council's powers under the LG Act. In the FAS Rex challenges both the first and second decisions on the basis that, in the first limb, the Council's power to compel Rex to accept passenger and checked baggage security screening services or, in the second limb, to compel Rex to pay the fee for that service to individual passengers.

Scope of power under s 24

The next section of the judgment considers statutory construction issues concerning the power of councils to provide services. Well understood principles of statutory construction require that the words of a statute be considered by a purposive approach to their construction. In Hurstville City Council v Minister for Planning and Infrastructure [2012] NSWLEC 134; (2012) 189 LGERA 269 I stated at [55]:

Section 33 of the Interpretation Act 1987 requires a construction which promotes the purpose or object of an Act over one which would not. Guidance on applying this approach was provided by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky at 381 - 382. Their Honours stated that the "primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute", that a "legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals" and that "a court construing a statutory provision must strive to give meaning to every word of the provision". Brennan CJ and McHugh J in IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 12 also referred to the necessity of applying a construction of a statute consistent with its purpose. Where words are plain and unambiguous they should be given their ordinary and grammatical meaning, per Gibbs CJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at 305. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47] the joint judgment (Hayne, Heydon, Crennan and Kiefel JJ) confirmed that statutory construction commences with a consideration of the language of the text, which may require consideration of the context, including the general purpose of the provision and the mischief it seeks to remedy. See also French CJ (in a separate judgment but agreeing with the orders of the joint judgment) at [4] - [5]. In Wilson v State Rail Authority of New South Wales [2010] NSWCA 198; (2010) 78 NSWLR 704 at [12] Allsop P stated that in construing an Act the legal and historical context must be considered at the outset. At [13] his Honour emphasised the principles in Project Blue Sky.

Close consideration of the LG Act as a whole as well as the words of the particular section is required, as identified in the previous paragraph. There is no definition of services in the LG Act. As identified in the Council's submissions, s 24 of the LG Act provides a wide power to councils to provide services. Services may be provided by a council which are appropriate to the current and future needs of the local community and the wider public. That broad power is informed by the objects of the LG Act in s 7 which specifies that a purpose of the LG Act is to give councils the ability to provide services and to carry on activities appropriate to the current and future needs of local communities and the wider public. Further the council's charter in s 8 includes the provision, after due consultation, of appropriate services and facilities to the community and to raise funds for local purposes by the fair imposition of rates, charges and fees.

In Fazzolari Tobias JA (Hodgson and Palmer JJA agreeing) considered s 24 of the LG Act at [134]-[135] and stated:

[134] Section 24 is drafted in the widest terms. It is entirely permissive and in no way prescriptive. Relevantly, it empowers a council to carry out activities appropriate to the current and future needs within its local community and of the wider public. According to the Introduction, which by s 6 is provided to assist in the understanding of the text of the Act, that function includes the provision, management or operation of, amongst other things, land and property development and housing. The Introduction to Ch 6 notwithstanding, in my opinion whatever might be the ultimate width of s 24, its ambit includes the implementation of the Civic Place Master Plan...

[135] The foregoing receives support following passage from the judgment of Stein J (as his Honour then was) in JR & EG Richards (NSW) Pty Ltd v Scone Shire Council & Anor [1995] NSWLEC 200 (24 November 1995) unreported:

The approach to council powers and functions under the 1993 Act is very different from that under the former legislation. In many ways the 1919 Act was more limited and prescriptive in its grants of power to councils to carry out functions. The 1993 Act approaches council powers and functions in a broader fashion: see for example s 24 quoted above. Indeed, it has been suggested that the wide grant of power in ss 21-24 of the Act was an attempt to overcome deficiencies of power under the 1919 Act and the application of the doctrine of ultra vires.

...

While Fazzolari was dealing with a different issue, a compulsory acquisition of land, these findings are pertinent to this matter. I consider the paragraphs above usefully and accurately describe the wide powers conferred by s 24. In Fazzolari Tobias JA referred to the introduction to Ch 6 "What are the service functions of councils?" which relevantly to this matter includes, as examples of functions, community services and facilities. On its face the power in s 24 is wide with no explicit constraints specified in the section. The decision to provide a sterile area, as defined in the Security Regulations, in the airport terminal which has resulted in the necessity for screening of all passengers is within the responsibilities of the Council as the airport operator. Given the wide range of areas in which councils can operate it is not feasible to be prescriptive in the LG Act in relation to all the kinds of services councils may provide. Hence the widely drafted provision in s 24. The security screening of passengers service which the Council can choose to provide as appropriate for the health and safety of the community and the wider public is enabled by s 24 of the LG Act. While it is relatively straightforward to conclude that the Council has wide powers under s 24 that finding alone does not answer the question of whether Rex can be charged for the security screening service.

Whose service?

The next issue to resolve is whether the service is provided to Rex or individual passengers and therefore which limb of Rex's ground of review in the FAS applies.

The first limb in the FAS states that Rex cannot be compelled to accept security screening. Whether the screening of individual passengers in the airport terminal is a provision of a service to those individual passengers unrelated to which airline they travel with must be considered. The Council's resolutions in October 2012 and February 2013 state that all RPT passengers and their bags will be screened for passenger safety and security purposes. This confirms that the service is to individual passengers. The service is not described by the Council as being provided to the RPT operators such as Rex.

Further, the Commonwealth statutory scheme for security screening focusses on individual passengers using the airport. This suggests they should be viewed separately for that purpose from the airline they are travelling with. Section 41A(1) of the Security Act states that all passengers are taken to consent to screening procedures that may be conducted if they present at a screening point. Section 41A(2) states subsection (1) does not apply if a passenger refuses to undergo the procedure. I do not know what happens if a passenger refuses screening but do not need to know for current purposes. To the extent there is an implied compulsion in accepting security screening services that compulsion falls on passengers as individuals. I do not consider the first ground raised in the FAS based on Rex being compelled to accept the service reflects the Council's resolution to provide the service or the Commonwealth statutory scheme regulating security screening at the airport by the Council through its contractors.

The second limb of the FAS refers to the Council charging Rex for the provision of the service to individual passengers pursuant to s 608(1) of the LG Act. That limb more accurately reflects the Council's decision under the LG Act. Given that the airport terminal is now built in such a way that all passengers move through the sterile area in order to board aircraft, as a practical matter that also appears the most appropriate way of considering the challenge (although I agree with Rex's submissions at par 72-73 that the fact the airport has been built in the present configuration by the Council does not support the validity of its decision to charge Rex the fee being challenged by Rex).

Construction of s 608(1)-(7)

It is now necessary to consider the scope of the power to charge a fee by a council under s 608(1). In support of its case, Rex relied on dictionary definitions of service to imply into the statutory scheme the limitation that any council services must be accepted voluntarily in order to be charged for them. I have found above that the recipients of the service are the individual passengers using the airport. The issue that arises under the second limb of the FAS is whether the Council's lawful powers to provide the service to one group of people means that it can charge someone else for the service (Rex) who does not receive (or need) the service provided to the recipient group. Sections 24, 608 and 610F do not provide any specific guidance on who services can be provided to or more importantly for this matter who can be charged for them.

Few cases have considered the power of a council to charge fees for a service under s 608. Meriton (No 3) was referred to by the Council, a judicial review challenge to the amount of fees imposed by a council under s 608 in relation to work zones established on a public road near the applicant's development site. The issues in that case were different to this matter. The challenge to the validity of the fees charged under s 608 related largely to the manner of calculation of the fees by the council requiring consideration of the amount of fees charged in light of the factors identified in s 610D(1) of the LG Act. While s 7 and s 8 of the LG Act were referred to as identifying the wide range of functions of councils informing fee setting by councils, the arguments were addressed to the amount of the fees and whether these were reasonable, inter alia. The question before me is whether the fees can be charged at all.

As already identified above the LG Act provision dealing with services is a widely defined power under s 24. A fee may be charged by a council for a service as provided in Ch 10 s 608 - s 610F. Rex submitted that s 608 allows the Council to only charge for those services it provides which are requested or accepted by recipients of the service unless the LG Act specifically provides for charging regardless of whether these services are requested. The LG Act does not specifically provide for passenger screening at airports. Section 608(1) states that a council may charge and recover an approved fee for any service it provides, other than those where an annual fee is required under other parts of the LG Act. Subsection (2) states services may be charged for the supply of a service. These sections are wide in their scope and have no explicit limitation on the power to charge in them. Subsection (2) is facilitative of the power in subsection (1).

The concept of service as identified in the dictionary definitions referred to by Rex include the action of serving, helping or benefitting someone, and supplying the needs of persons, which wording is consistent with the wording in s 24 that a council can provide a service appropriate to the current and future needs of the local and wider community. That ordinary meaning of the service must be considered in this statutory context and cannot usurp that, consistent with the oft-quoted comment of Mason P in House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498 at 505:

A dictionary may offer a reasonably authoritative source for describing the range of meanings of a word, including obsolete meanings. Dictionaries recognise that usage varies from time to time and place to place. However, they do not speak with one voice, even if published relatively concurrently. They can illustrate usage in context, but can never enter the particular interpretative task confronting a person required to construe a particular document for a particular purpose.

Applying the dictionary definition of service to the effect that only persons receiving or benefiting from the service or whose needs are being met can be charged under s 608(1) is not the correct approach to statutory construction.

As an aid to construction, Rex relied on s 608(3)-(7) which authorises a council to charge a fee for carrying out inspections of premises whether or not the inspection is requested or agreed to by the owner or occupier and is limited in subsection (4) in the case of non-commercial premises. Rex also relied on other parts of Ch 15 which contain specific provisions allowing the council to charge for waste collection and other services. The other parts of Ch 15 are referred to in s 608(1) which states that a council may charge and recover an approved fee for a service provided by it other than fees which must be or will be charged on an annual basis for domestic waste management services under s 496. Section 608(1) also refers to s 501 under which an annual fee may be charged for water supply, sewerage, drainage and non-domestic waste management services inter alia. Rex relied on the sections of the LG Act regulating charging for domestic waste management which charges are compulsory in contrast, it was said, to unspecified services such as passenger screening.

There are no words of limitation in s 608(1) reflecting Rex's submissions so that if the limitation contended for exists it must be implied. As the Council submitted there are no constraints in subsection (2), which provides a non-exhaustive list of services for which a fee can be charged. Given the wide range of services which can be provided by a council it would be very difficult to specify how fees are to be charged for all services which may be provided.

Section 608(3)-(7) deals with a specific circumstance where a fee can be charged relating to the inspection of properties. The Council submitted that because these sections specifically limit their application to a single circumstance, the inspection of premises, the wide scope of the Council's powers to charge fees for services is confirmed. Rex's approach that the context of s 608(3) expressly providing for charging a fee for a service not requested impliedly limits the exercise of the otherwise broad power under s 608(1) to charge for a service does not reflect a purposive approach to statutory construction and is not required to give effect to the statute. That one area where councils do commonly provide services, building inspections, is specifically provided for in s 608(3)-(7), including charging a fee whether the service is requested or not, does not mean that the broad power to charge a fee for a service under s 608(1) is limited to those requesting or receiving a service.

The provisions for charging a fee annually for domestic waste collection and water supply services in s 496 and s 501 do not specify who can be charged. Those sections appear to be more directed to the timing of such charges, namely annually. They do not assist Rex's construction.

I consider the Council's construction of s 608(1) is correct. Before finalising my finding on the scope of s 608(1) I should address the parties' other related arguments.

Common law right not infringed

It is a well established principle of statutory construction that legislation which overrides common law rights must do so clearly, D C Pearce and R S Geddes, Statutory Interpretation in Australia, (7th ed 2011 LexisNexis) at [5.27]-[5.28] referring to Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277, Bropho v State of Western Australia [1990] HCA 24; (1990) 171 CLR 1, Coco v R inter alia. The common law right said by Rex to be infringed is the right not to have a fee imposed for a service not requested of a council. No specific authority was provided for that proposition in the sense that no similar case where such a right has been recognised was provided. Given the wide range of potential common law rights which might arise for consideration by a court that is not surprising and is certainly not a criticism of Rex's case. What must be identified is whether the right as articulated by Rex is a common law right. The Council submitted that Rex has not identified a common law right which is infringed by the Council's decision to charge this fee.

It is helpful to quote from Pearce and Geddes at [5.35], [5.36] where the authors quote McHugh J in Gifford v Strang Patrick Stevedoring Pty Ltd [2003] HCA 33; (2003) 214 CLR 269 at [36]:

... nowadays legislatures regularly enact laws that infringe the common law rights of individuals. The presumption of non-interference is strong when the right is a fundamental right of our legal system; it is weak when the right is merely one to take or not take a particular course of action. Courts should not cut down the natural and ordinary meaning of legislation evincing an intention to interfere with these lesser rights by relying on a presumption that the legislature did not intend to interfere with them. Given the frequency with which legislatures now abolish or amend "ordinary" common law rights, the "presumption" of non-interference with those rights is inconsistent with modern experience and borders on fiction. If the presumption still exists in such cases, its effect must be so negligible that it can only have weight when all other factors are evenly balanced.

Pearce and Geddes go on to state:

Notwithstanding McHugh J's pessimistic view of the value of the presumption against interference with common law principles and rights, there are many cases in which the principle has been applied. The following [extensive] list gathers together for ease of reference examples where the courts have required the need for a clear indication of an intention for the rights of individuals to be abrogated and the conduct referred to permitted ...

· limiting ability to carry on one's own business or trade; Commonwealth v Progress Advertising and Press Agency Co Pty Ltd (1910) 10 CLR 457; Committee of Direction of Fruit Marketing v Collins (1925) 36 CLR 410...

The nature of the common law means there are no fixed categories of such rights. The cases that were relied on by Rex, Fernando citing Coco v R, Martino and Daly consider personal rights that are more readily identifiable as fundamental personal rights which the common law protects in the absence of clear statutory language to the contrary. Fernando concerned the powers of police to take blood samples from a suspect in custody potentially in breach of a common law right prohibiting assault on a person. Martino considered whether a common law right to claim personal damages had been overturned by a Victorian statute. Daly considered a broadly similar right in relation to whether a common law right to claim damages was constrained by NSW motor vehicle accident legislation. In those cases it was accepted that specific common law rights existed (Fernando expressly at 583, Martino (Victorian Supreme Court) expressly at [17], Daly NSW Court of Appeal impliedly at [43], (reversed by the High Court in Daly v Thiering [2013] HCA 45; (2013) 303 ALR 188) which would be affected by the statutes in question.

The Council's reasons for decision filed 10 September 2013 were tendered in these proceedings (exhibit A). As these are referred to in detail in the FAS I will not set these out separately.

Rex alleged that the Council took into account irrelevant considerations in relation to the first decision, being:

(i) that passengers are screened at Sydney Airport regardless of aircraft size when travelling to Dubbo;

(ii) that it is a common way for the Council to do business;

(iii) that it was the easiest way to charge for screening services;

(iv) that it would lead to a better working environment for all parties.

The first decision was irrational, or was a decision that no reasonable decision-maker would make, by reason that it was made on the basis of reasons that had no rational grounds being:

(i) that the interests of fairness and equity required all RPT passengers and checked baggage to be screened;

(ii) that the decision promoted convenience of use of the airport for all passengers;

(iii) that all passengers utilising the airport are entitled to the same quality of safety and security where there was no material before the Council to support this conclusion;

(iv) that the decision facilitated ease of operation of the airport where there was no material before the Council to support this conclusion;

(v) that passengers are screened at Sydney Airport regardless of aircraft size when travelling to Dubbo;

(vi) that treating all RPT operators the same would mean there would be no competitive advantage to any RPT operator;

(vii) that the decision is the fairest option as there is one passenger lounge and one screening service;

(viii) that airside security would be compromised if all RPT passengers were not screened, where there was no material before the Council to support this conclusion;

(ix) that it is a common way for the Council to do business;

(x) that the fairest and most appropriate system is to screen all passengers and checked baggage and then recover the costs of those services from all RPT operators on a per passenger basis;

(xi) that screening all RPT passengers is a necessity due to the security and safety problems that have occurred around the world, where there was no material before the Council to support this conclusion;

(xii) that separate areas for screened and non-screened passengers is not a viable operational model for the airport, where there was no material before the Council to support this conclusion;

(xiii) that it is fair and equitable to share screening costs across all passengers;

(xiv) that it is the easiest way to charge for screening services, where there was no material before the Council to support this conclusion;

(xv) that it would lead to a better working environment for all parties, where there was no material before the Council to support this conclusion.

The decision failed to take into account relevant considerations, being:

(i) The financial or other impact of the decision on Rex, being an airline operating aircraft not required to have passenger security screening pursuant to the Federal Government's security regulations for airports;

(ii) the deprivation of a legitimate competitive advantage that Rex would have otherwise had, by virtue of being an airline operating aircraft not required to have passenger security screening pursuant to the Federal Government's security regulations for airports.

The same grounds were alleged in relation to the second decision. The only additional matters are as follows.

The Council took into account irrelevant considerations being a perceived desirability of reducing costs payable by QantasLink (relying on a letter from the mayor to QantasLink dated 20 December 2012 which stated that "as part of this public exhibition process and on the basis of all RPT passengers flying from Dubbo being screening, Council will be attempting to recover some screening costs from the other RPT operator operating from Dubbo in an attempt to reduce the cost payable by QantasLink Airlines" (exhibit B tab 18 p 3) (FAS par 11(d)(v)).

The decision was irrational, or was a decision that no reasonable decision-maker would make, by reason that it was made on the basis of reasons that had no rational grounds being that any other course would subject passengers to confusion and inconvenience, being a "split" screening service, where there was no material before the Council to support this conclusion.

The decision failed to take into account relevant considerations namely that the only other operator of RPT services at the airport QantasLink had agreed to pay or be responsible for all security screening fees at the airport (also relying on the letter dated 20 December 2012 from the mayor to QantasLink) (FAS par 11(f)(iii)).

Rex's submissions

Irrationality, unreasonableness, irrelevant considerations

According to the Council's reasons, the Council (through one or more of its members) took into account a list of matters in coming to the first decision and the second decision. Many of those grounds had no rational basis. Irrationality was identified as a ground of judicial review in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 by Crennan and Bell JJ at [130].

To the extent that particular fact-finding steps are challenged, present authority indicates that the proper challenge is for illogicality or irrationality: in SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1 at [83] per McKerracher J, Reeves J agreeing.

Where a finding, unsupported by evidence, is critical to the ultimate decision, it is impossible to sustain the decision: Luu v Renevier (1989) 91 ALR 39 at 47-48. The full Federal Court went on to say in that case that the resultant situation may be expressed in a number of ways, including unreasonableness or taking into account an irrelevant consideration. Having regard to the manner in which the conclusions are irrational (described below), Rex's position is that they are either irrational (so that a decision based on them is unreasonable in the Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 All ER 680 sense) or amount to irrelevant considerations.

Rex in its written submissions in chief at par 59 and 60 set out in detail an itemised list of why it submitted that the reasons given by the Council were irrational for the first and second decisions, largely going to the merits or that the Council did not have any material before it to support such a reason. Some of the asserted grounds are irrational on their face. Others are irrational when it is appreciated that the Council had no material before it on which to base the relevant conclusion. It is important to note, in this regard, the limited material on which the Council (or its members) relied in reaching the first decision and the second decision. Rex served a notice to produce seeking any documents relied on by any individual councillor of the Council in forming the conclusions that constitute the challenged grounds in the reasons. The Council produced no documents in response to this request. The Court should infer that, in relation to the grounds that have been challenged, the Council (or its members) relied on no documents other than those that were formally before the Council.

Some of the grounds, if not actually irrational, should be rejected as irrelevant to the Council's decision. The relevant aspect of the Council's decision was the decision to impose the screening (and concomitant fee) on Rex as well as QantasLink, despite that not being required by the Security Regulations.

Failure to take into account relevant considerations

In relation to the failure to take into account relevant considerations, Rex accepted that in order to succeed the matter must be one the Council is bound to take into account under the statutory scheme per Peko-Wallsend (1986) 162 CLR 24 at 39. When considering whether to exercise the power under s 608, a council must be obliged to take into account the impact of the decision on specially affected persons and to take into account the extent to which the imposition of services and concomitant fee would deprive any specially affected person of a competitive advantage in his, her or its business. As a matter of statutory construction, the imposition of services and fees must require consideration of these aspects of the business of a specially affected party. Rex is such a specially affected party, not only would it be one of the only two current airline operators subjected to the fee, but it would be the only airline operator subjected to the fee when the services were not made necessary by the Security Act and Security Regulations.

In relation to the financial or other impact of the decision on Rex, being an airline operating aircraft not required to have passenger security screening, in the context of a decision to impose screening services and charge Rex a fee for doing so, this was a consideration that the Council needed to take into account. In relation to the first decision, there is nothing to suggest that the Council turned its mind in any way to the financial or other impact on Rex having regard to its aircraft not requiring security screening according to the relevant federal regulation. None of the grounds provided in the reasons suggests that this was taken into account.

In relation to the deprivation of a legitimate competitive advantage that Rex would have otherwise had, by virtue of being an airline operating aircraft not required to have passenger security screening, in the context of a decision to impose screening services and charge Rex a fee for doing so, this was a consideration that the Council needed to take into account. One of the grounds relied on by the Council in relation to both the first decision and the second decision was that treating all RPT operators the same would mean there would be no competitive advantage to any RPT operator. As explained above, this misstates the position. Rex is deprived of a legitimate competitive advantage, while the decision ensures that QantasLink has the full benefit of its competitive advantage in flying larger aircraft. Given the inclusion of this misconceived ground in the reasons, the Court can conclude that the relevant consideration was not taken into account.

Council's submissions

Merits review of a decision is not permissible in judicial review proceedings. The allegations of irrationality are not based on the statutory scheme. Councils are inherently political bodies with wide discretionary powers in relation to the provision of services and raising finances. The charter in s 8 of the LG Act confirms that it should take a long term view and be responsible as the custodian of public assets. Fees must be fair and social justice principles must be maintained. The financial powers of councils under Ch 15 should be broadly construed in light of their political purpose and nature. A local council is not required to act fairly when imposing new rates Marrickville Metro Shopping Centre Pty Ltd v Marrickville Council [2010] NSWCA 145; (2010) 174 LGERA 67 at [75]. The Council acted rationally in deciding to screen all passengers rather than creating separate areas for screened and non-screened passengers.

The Council submitted that it was acting rationally when it chose to make the service cost-neutral so that the cost of passenger screening would not be borne by ratepayers but by users of the airport. The question is then whether there is something in imposing that fee on RPT operators (and specifically Rex) that is so irrational that no reasonable decision-maker able to provide services and charge and recover fees would ever do it: SZMDS at [130]. The Court should not make that finding.

A challenge to the decisions of the Council on the basis that any part of it "lacked evidence" to support it is also difficult to sustain when councillors are expected to bring their own understanding of the political and social needs of the community to the process: compare Marrickville Metro (CA) at [98]-[103], [110], especially [127]-[130].

Rather, consistent with the scope, intent and purpose of the LG Act such matters as were considered by the councillors were done so rationally and by a lawful process of weighing and balancing multiple considerations as they saw fit, with no legal consequences for putting, for example, practical considerations of passenger security and airport efficiency over preserving a competitive advantage for Rex.

To the extent that Rex alleged that there was "no evidence" the matters considered were beyond the documents before the Council. Findings of fact are not necessary or a pre-condition to the exercise of power under s 24 or s 608(1) of the LG Act.

No irrelevant matters considered, no unreasonableness or irrationality in Council decisions

The nature of elected councils and the powers being exercised by them under the LG Act in relation to the provision of services and charging for these must be considered in resolving these grounds of review. The broad nature of the power of a council to provide services has already been canvassed above in considering the first ground of review in relation to s 7 (purposes of the LG Act), s 8 (the council's charter), s 24 (power to provide services) and s 608 (power to charge for services), of the LG Act. The nature of council decision-making in this statutory context has not received much judicial consideration.

Under s 610D the matters a council must take into account when determining the amount of a fee for service are specified as the cost to the council of providing the service, the price suggested for the service by any relevant industry body or in any schedule of charges published from time to time by the Department (none were before the council), the importance of the service to the community and any factors specified in the regulations (none were specified in the regulations). Under subsection (2) the cost to the council of providing a service in connection with the exercise of a regulatory function need not be the only basis for determining the approved fee for that service.

As the Council submitted the range of matters which a council may otherwise take into account is wide given the broad purposes in the LG Act, the council's charter and s 24. In this context the Council was able to consider security and safety matters and ease of administration of the service which are the basis for most of the Council's fifteen reasons identified by Rex as unreasonable or irrational (namely (i), (ii), (iii), (iv), (v), (vii), (viii), (ix), (x), (xi), (xii), (xiv) and (xv)) in relation to the first and second decisions. Fairness in equal treatment of passengers and charging of RPT operators is identified in (vi), (vii), (x) and (xiii) also in relation to the first and second decisions. One additional matter is identified by Rex in relation to the second decision (par 217) of there being no evidence to support the statement that passengers would be confused by split screening service.

The Council's submissions at par 229 relying on Marrickville Metro (CA) properly reflect the nature of the Council's decision-making processes in this case, namely that councillors bring their own understanding of the needs of the community to bear in decisions of this kind. It is useful to set out several paragraphs from Marrickville Metro (CA) as they pertain to the parties' arguments. Tobias JA (Basten and Handley JJA agreeing) held:

97 It cannot be gainsaid that where the exercise of a statutory power by a body such as a council is dependent upon the existence of a fact or the holding of a particular opinion, then the absence of any evidentiary basis upon which that fact can be found to exist or that opinion held would vitiate a council's decision. Pestell was such a case. But it is not this case. As her Honour observed (at [106]) there is nothing in the scope of the Act or the rate setting scheme in relation to the fixing of an ad valorem rate that suggests that it is an irrelevant consideration giving rise to illegality to seek to impose a greater rate burden on one category or sub-category than another category or sub-category. Equally, the fact that the statute permits such a form of discrimination militates against any finding of manifest unreasonableness founded on that consideration.

98 The Council submitted that in the absence of any criteria in the Act for the setting of an ad valorem rate, it had a wide discretion allowing it to take into account whatever matters it regarded as relevant, but that it was not obliged to act judicially. It did not require "evidence" before it made its decision. As long as the Act permitted it to do what it did, its decision must be allowed to stand.

99 The Council was a collegiate body made up of community representatives who were relevantly performing in the present instance a quasi-legislative function. It was setting a tax, but one in which the empowering statute permitted differentiation and/or discrimination. It was not acting as a decision-maker determining some form of dispute between parties. There were no relevant statutory criteria that were required to be satisfied before it exercised the power.

100 Nevertheless, it was submitted by the appellant that the Council's decision, at least to set the ad valorem amount applicable to the sub-category of Business-Marrickville Metro, was based on an arbitrary choice as to what particular amount in the dollar to adopt. But in the present case the Council had before it the various reports of the General Manager, the relevant portions of which I have extracted earlier in these reasons as well as the benefit of the views of the various councillors during the course of the debate before a vote was taken.

...

102 ... However, in my view, no such probative evidence in the sense in which that concept is used in the context of a decision-maker who is required to make findings of fact or form an opinion as a condition of exercising a power, was required in the present case.

103 In any event the councillors must be taken to have local knowledge as to the success or otherwise of the Centre and in fact there are references in the material that I have extracted as to the drawing power of the Centre. The councillors were aware of the amount of the increase which, for the 2002/2003 year, appears to be less than $50,000 over and above what otherwise the Centre would have paid had its land remained in the Business-General sub-category. After all, this was a complex containing some 101 tenancies. It is the only such complex in the LGA which thus gave it a degree of monopolisation.

...

127 I have already expressed the view that in the context of the particular statutory provisions which relevantly invested the Council with what was essentially an unconfined power, there was no requirement that before that power was exercised the Council must have had before it probative material that would "justify" the decision it proposed to make. What would "justify" the decision to one person would not necessarily "justify" it to others. It would not be difficult to infer that the increase in the rates payable by the appellant would meet with the acclaim of those ratepayers whose rate burden was reduced. Of course, there would be limits even though there was no mandatory requirement to impose rates "fairly" (whatever that might mean in the present context). Thus to increase the rate burden on one ratepayer to the point where all other ratepayers or a significant class of them paid only nominal rates, would probably demonstrate irrationality. Such a conclusion would be justified if the purpose of the Council was to place such a financial burden on the Centre so as to force it out of business. But that is not this case.

...

130 At the end of the day the real complaint of the appellant is that the Council's decisions, including those in 2007 and 2008, were "unfair": but even if that be so, it does not support a finding of Wednesbury unreasonableness. To make the challenged decision the Council was not required by the Act to find any facts or form any opinion. The councillors were elected to, amongst other things, exercise their function to declare categories and sub-categories of rateable land and to fix the ad valorem rate to be applied to the land values of that land within those categories and sub-categories. This they did and the Act did not prevent them from doing so. They were therefore entitled to pass the resolutions they did. Accordingly, I would reject the appellant's challenge to the 2007 and 2008 rate setting decisions.

As Tobias JA identified the council is a collegiate body made up of community representatives, performing in that case a quasi-legislative function where the statute permitted discrimination with no statutory criteria required to be satisfied in relation to rate setting. While this matter raises the charging of fees for a service rather than rate setting the observations of Tobias JA apply equally by parity of reasoning to this circumstance given the wide discretion in providing services and charging for these under the LG Act. Considering [97], [130] the LG Act does not specify the existence of a fact or the holding of an opinion by a council is required before a service is implemented and a fee charged. It is not a decision where facts must be found to exist in order to exercise a power validly by the Council.

Rex's submissions on lack of rationality in the Council's first and second decisions appear to be based largely on the assertion of lack of evidence before the Council in relation to each of the numerous reasons given by the Council. A challenge based on the lack of probative evidence to support a local council decision was considered in Marrickville Metro at [97]-[100] as set out above. As the Council submitted there is no statutory requirement that certain facts must be found before the exercise of power in s 24 or s 608(1) of the LG Act. The Council had before it the Working Party report which it resolved to adopt in October 2012 and further reports before it when it determined to charge a fee in February 2013. These reports were in evidence and canvassed a number of operational issues pertinent to the decision. It is not necessary for a valid decision for the Council to identify for every reason given a factual circumstance which could be said to underpin it.

The statutory scheme for the provision of services by an elected council is not able to be equated with a tribunal or court process where fact finding is an essential part of the discharge of the decision-maker's function, often directed to a singular statutory precondition being satisfied in order to exercise power, for example. The collegiate decision-making of the Council on an issue with many variables such as the decision to implement this service and charge for it is a decision of a quite different nature. Rex's lack of probative evidence argument relied on Luu v Renevier, however the decision-making context of that matter was entirely different. There a minister's delegate was determining whether to allow a person to remain in Australia under the Migration Act 1958 (Cth). One factual issue was key to the delegate's determination. The Federal Court found his conclusion was not based on probative evidence on that key factual issue. Council's decision-making processes are different being far more multifaceted with many variables potentially relevant and the broad discretion in the LG Act. Luu should be distinguished for this reason.

As the Council identified there is no requirement that a council be fair when rate-setting citing Marrickville Metro (CA) at [127]. The same can and should be said for providing a service or charging a fee for service by parity of reasoning. In any event the Council explicitly considered its approach of treating all passengers and RPT operators the same way as being fair, as identified above in par 234. That is a judgment open to the Council.

The nature of the Council's decision-making outlined above does not require a finding of jurisdictional fact and that is what the irrationality ground identified in SZMDS is directed to. It is not necessary to consider the case law referred to by Rex on irrationality in decision-making such as SZOOR given an inevitable finding that there is no such error in fact finding in the circumstances of this case.

Rex also submitted that the decisions were so irrational that they were unreasonable in the Wednesbury sense. The principle of unreasonableness as found in Wednesbury which requires the exercise of discretionary power in making a decision to be so unreasonable that no reasonable council could reach it, a high hurdle to overcome, has been broadened by the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 297 ALR 225. In Li Hayne, Kiefel and Bell JJ held that the legal standard of unreasonableness is not limited to what is irrational at [68]. The degree of unreasonableness depends on the statutory context particularly where discretions are ill-defined at [67]. French CJ held at [28] decision-making under the relevant statute cannot be capricious or arbitrary or contrary to common sense. Gageler J held the stringency of the Wednesbury unreasonableness approach remained and was met in the circumstances of that case, at [113]-[124]. That decision has been the subject of comment: Theresa Baw, "Illogicality, Irrationality and Unreasonableness in Judicial Review" in Neil Williams (ed), Key Issues in Judicial Review (2014 Federation Press) 72-76, Mark Aronson, "Jurisdictional Error and Beyond" in Matthew Groves (ed), Modern Administrative Law in Australia - Concepts and Context (2014 Cambridge University Press) at 259, and further judicial consideration by the Full Federal Court in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 308 ALR 280 at [43]-[52]. As this case is simply not close to being arbitrary or capricious or lacking in common sense (to adopt French CJ in Li) in the context of the LG Act I do not need to further examine these authorities or other sources.

In light of these findings the fifteen grounds in the FAS set out in par 213, reflecting the Council's stated reasons, are not irrational or unreasonable. Nor is the additional ground raised in relation to the second decision that a split screening service would cause confusion and inconvenience.

The ground of taking into account an irrelevant consideration presents Rex with a high hurdle as there is no fixed list of matters described as irrelevant for these decisions under the LG Act. As stated by Mason J in Peko-Wallsend at 40, in order to succeed on a challenge based on a decision-maker considering irrelevant matters those matters must be either expressly or by implication matters which the decision-maker must ignore. The determination depends on the statutory framework, including the objects and purposes of a particular Act. The applicant must demonstrate that having regard to that framework a certain matter is irrelevant. There are no matters which were specifically referred to under the LG Act which the Council had to ignore in making the decision to provide security screening services under challenge. Accordingly, in order to succeed Rex must establish that the matters it says are irrelevant had to be ignored as a matter of statutory interpretation in light of the objects and purposes of the legislation.

Demonstrating there was an error by the Council in taking into account irrelevant matters is a difficult task for Rex, particularly given the broad policy nature of the decision to provide a service and charge for it. Five matters are cited as taking into account irrelevant considerations, that passengers are screened at Sydney Airport, that Council commonly does business this way, that it is the easiest way to charge for screening services and that it would lead to a better working environment for all parties. Apart from Rex asserting, essentially, that in its opinion these are irrelevant that is not a self evident matter.

In an amendment to the FAS in relation to the second decision in par 216 Rex identified a further matter said to be irrelevant, namely the desirability of reducing costs to QantasLink. The same comment applies to this matter also. Rex has not demonstrated as a matter of statutory construction that this matter is an irrelevant consideration. I consider this is attempting to raise matters of merit about which there may be genuine differences of subjective opinion which I cannot consider in judicial review proceedings.

No failure to take into account relevant considerations in Council decisions

The allegation of a failure to consider a mandatory relevant consideration also entails a consideration of the statutory scheme. The test for whether a matter is a mandatory relevant consideration is identified by Mason J in Peko-Wallsend (1986) 162 CLR 24 at 40 (Gibbs CJ, Brennan, Dawson and Deane JJ concurring with this formulation):

In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard: see Reg v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [33], adopting the earlier formulations of Dixon J in Swan Hill Corporation v Bradbury [34] , and Water Conservation and Irrigation Commission (NSW) v Browning [35] . By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act.

The relevant mandatory matters alleged by Rex as not having been taken into account by the Council must be inferred as they are not identified explicitly in s 610D. That section specifies matters which must be taken into account when determining the fee for a service. As already identified above, the factors are the cost to the council of providing the service, the price suggested for that service by any relevant industry body inter alia, and the importance of the service to the community. No factors are specified in the regulations (subsection (1)(d)). Subsection (2) states the cost to the council need not be the only basis for determining the approved fee in relation to the exercise of a regulatory function. As operating an airport is not a regulatory function this subsection does not apply. Subsection (3) also does not apply.

The matters relied on by Rex set out in par 214 and 218 concern the financial impact on Rex's business of charging for passenger screening where this is not required by the Security Act and Security Regulations, and that Rex will be deprived of a competitive advantage. This underpinned the submission that Rex was a specially affected person and therefore the statutory scheme required that its interests be considered. The evidence in fact shows that Rex's submissions were considered by the Council before the decision to charge a fee was made so that the strength of this submission, assuming it is otherwise maintainable, is somewhat undermined. An additional ground alleged in relation to the second decision was that QantasLink had agreed to pay or be responsible for all the fees for passenger screening.

Apart from asserting these considerations were relevant and that this was supported by the statutory scheme there was little basis provided to support that submission. In a sense there cannot be because there are no provisions in the LG Act which can impliedly support these submissions. No part of s 7 (purpose) or s 8 (charter) of the LG Act is relied on, for example, to underpin Rex's submission that the Council was required to consider Rex's competitive advantage or the exercise of discretion in providing services at an airport was fettered in some way by the Security Act and Security Regulations. I have found above in relation to the first ground of review that there was no breach of any common law right of Rex in the Council's decision to charge RPT operators the fee. Given the broad charter of councils in s 8, a council's powers to provide services for the community under s 24 and the broad nature of the matters in s 610D the impact of a charge on the competitive advantage of an individual is not readily identifiable as a mandatory relevant consideration. This finding is consistent with the approach to statutory construction I took in relation to whether s 610F(1)-(3) was complied with.

Rex is unsuccessful on this ground of review also. Rex's summons should be dismissed. I will reserve the question of costs.

Orders

The Court makes the following orders:

(1) The Applicant's Further Amended Summons dated 24 February 2014 is dismissed.

(2) Costs are reserved.

(3) Exhibits to be returned.

**********

Decision last updated: 27 June 2014

Medium Neutral Citation:	Regional Express Holdings Limited v Dubbo City Council (No 3) [2014] NSWLEC 87
Hearing dates:	24, 25 February 2014
Decision date:	26 June 2014
Jurisdiction:	Class 4
Before:	Pain J
Decision:	1. The Applicant's Further Amended Summons dated 24 February 2014 is dismissed. 2. Costs are reserved. 3. Exhibits to be returned.
Catchwords:	JUDICIAL REVIEW - challenge to local council decision to charge fee for service of passenger security screening at regional airport - whether power to charge entity not receiving the service - statutory requirements for notification of public of intended fee complied with - no failure to accord procedural fairness to applicant - council decisions not irrational or unreasonable - no failure to consider mandatory relevant matters - irrelevant matters not considered
Legislation Cited:	Aviation Transport Security Act 2004 (Cth) s 9, Div 2 Pt 4, s 27, s 33, s 41A Aviation Transport Security Regulations 2005 (Cth) reg 3.20, reg 4.02, reg 4.09 Civil Aviation Safety Regulations 1998 (Cth) Pt 1, reg 47.100 Evidence Act 1995 s 160 Interpretation Act 1987 s 33 Local Government Act 1993 s 6, s 7, s 8, s 9, s 24, s 66, s 117 s 192, s 197, s 405, s 496, s 501, s 561, s 608, s 610A, s 610C, s 610D, s 610F, Ch 15 Migration Act 1958 (Cth)
Cases Cited:	Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 All ER 680 Bropho v State of Western Australia [1990] HCA 24; (1990) 171 CLR 1 Coco v R [1994] HCA 15; (1994) 179 CLR 427 Daly v Thiering [2013] NSWCA 25 Daly v Thiering [2013] HCA 45; (2013) 303 ALR 188 Fernando v Commissioner of Police (1995) 36 NSWLR 567 Gifford v Strang Patrick Stevedoring Pty Ltd [2003] HCA 33; (2003) 214 CLR 269 Hurstville City Council v Minister for Planning and Infrastructure [2012] NSWLEC 134; (2012) 189 LGERA 269 House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498 Kioa v West [1985] HCA; (1985) 159 CLR 550 Kong v Minister for Health [2014] FCA 34; (2014) 308 ALR 522 Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340; (2004) 141 FCR 346 Luu v Renevier (1989) 91 ALR 39 Marrickville Metro Shopping Centre Pty Ltd v Marrickville Council [2009] NSWLEC 109 Marrickville Metro Shopping Centre Pty Ltd v Marrickville Council [2010] NSWCA 145; (2010) 174 LGERA 67 Martino Developments Pty Ltd v Doughty [2008] VSC 517 Meriton Apartments Pty Ltd v Council of the City of Sydney (No 3) [2011] NSWLEC 65; (2011) 182 LGERA 256 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 308 ALR 280 Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 297 ALR 225 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 Parramatta City Council v R & R Fazzolari Pty Ltd [2008] NSWCA 132; (2008) 162 LGERA 1 Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 535 Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 Reid's Farms Pty Ltd v Murray Shire Council [2010] NSWLEC 127; (2010) 182 LGERA 1 Salemi v MacKeller (No 2) (1977) 137 CLR 396 Sharples v Minister for Local Government [2008] NSWLEC 328; (2008) 166 LGERA 302 Sharples v Minister for Local Government [2010] NSWCA 36; (2010) 174 LGERA 129 Smith v Wyong Shire Council [2003] NSWCA 322; (2003) 132 LGERA 148 Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1
Texts Cited:	Mark Aronson, "Jurisdictional Error and Beyond" in Matthew Groves (ed), Modern Administrative Law in Australia - Concepts and Context (2014 Cambridge University Press) Mark Aronson and Matthew Groves, Judicial Review of Administrative Action, (5th ed 2013, Thomson Reuters) Theresa Baw, "Illogicality, Irrationality and Unreasonableness in Judicial Review" in Neil Williams (ed), Key Issues in Judicial Review (2014 Federation Press) D C Pearce and R S Geddes, Statutory Interpretation in Australia, (7th ed 2011 LexisNexis)
Category:	Principal judgment
Parties:	Regional Express Holdings Limited (Applicant) Dubbo City Council (Respondent)
Representation:	Mr J Simpkins SC with Mr J S Emmett (Applicant) Ms S Duggan SC with Mr M Seymour (Respondent) Mills Oakley Lawyers (Applicant) Booth Brown Samuels & Olney Solicitors (Respondent)
File Number(s):	40372 of 2013