SVC Co Pty Ltd and Secretary, Department of Infrastructure, Transport, Regional Development, Communications and the Arts

[2023] AATA 4155

SVC Co Pty Ltd and Secretary, Department of Infrastructure, Transport, Regional Development, Communications and the Arts [2023] AATA 4155 (18 December 2023)

Division:TAXATION AND COMMERCIAL DIVISION

File Number(s):      2023/1438

Re:SVC Co Pty Ltd

APPLICANT

AndSecretary, Department of Infrastructure, Transport, Regional Development, Communications and the Arts

RESPONDENT

DECISION

Tribunal:Deputy President Bernard J McCabe

Date:18 December 2023

Place:Melbourne

The application for review is dismissed pursuant to s 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth).

................................SGD........................................

Deputy President Bernard J McCabe

CATCHWORDS

AIRPORT REGULATIONS – limitation to compel a third party – controlled activity – application with no reasonable prospect for success

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)
Airports Act 1996 (Cth)

Airports (Protection of Airspace) Regulations 1996 (Cth)

CASES

Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; 266 CLR 250

REASONS FOR DECISION

Deputy President Bernard J McCabe

18 December 2023

1. SVC Co Pty Ltd is a construction company that was engaged by Elite Property Group, a developer, in connection with a construction project adjacent to Moorabbin Airport in Victoria. SVC wants to erect a crane on the building site. The crane is so tall that it intrudes into ‘prescribed airspace’ above the airport and its approaches. In those circumstances, the erection of the crane would amount to a ‘controlled activity’ within the meaning of s 182 of the Airports Act 1996 (Cth). Section 183 of the Airports Act says a person must not carry out a controlled activity (or cause such an activity) in relation to prescribed airspace except in accordance with an approval granted pursuant to the regulations.

2. The applicant was unable to obtain the approval required from the respondent, the Secretary of the Department of Infrastructure, Transport, Regional Development, Communications and the Arts. (As a technical matter, the decision was a deemed refusal because the respondent did not make the decision within the time contemplated under the legislation – but it gave decisions after the event explaining why it would have refused the approval in any event.)

3. SVC has asked the Tribunal to review the decision. For reasons I will explain, I am satisfied the application for review should be dismissed pursuant to s 42B of the Administrative Appeals Tribunal Act 1975 (Cth) on the basis there is no reasonable prospects of success.

   The decision-making process

4. The Tribunal steps into the shoes of the original decision-maker (in this case, the Secretary) and re-makes the reviewable decision. In doing so, the Tribunal exercises all the Secretary’s powers that were available in relation to the decision, but the Tribunal is also subject to the same constraints. The Tribunal cannot ordinarily make a decision on review that could not lawfully be made by the primary decision-maker precisely because the primary decision-maker and the Tribunal are participating in the same decision-making process. As the High Court explained in Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; 266 CLR 250, Bell, Gageler Gordon and Edelman JJ explained (at [53]) the Tribunal forms part of a continuum of executive decision-making. It is therefore important to understand the steps required in making a particular decision under the relevant enactment.

5. An applicant wishing to undertake a ‘controlled activity’ – like erecting a structure that intrudes into ‘prescribed airspace’ – must seek an approval in accordance with s 183 of the Airports Act. The approval process is established and regulated under the Airports (Protection of Airspace) Regulations 1996 (Cth) (the Regulations). The object of the Regulations is explained in Regulation 2, which refers to the establishment of:

   …a system for the protection of airspace at, and around, airports in the interests of the safety, efficiency or regularity of existing or future air transport operations into or out of airports.

6. Part 4 of the Regulations provides for the notification and approval of a ‘controlled activity’. A person seeking approval to carry out a ‘controlled activity’ must first provide the application – which includes relevant information – to the airport-operator company (where there is one) pursuant to Regulation 7. The application is forwarded in due course to the Secretary for decision under Regulation 14(1). Importantly, Regulation 14(5) includes a limit on the Secretary’s discretion in the following terms:

   5If a controlled activity would, if carried out, result in a building, structure or thing intruding into PANS-OPS airspace, the Secretary may approve a proposal for the activity only if:

   (a)the activity is a short-term controlled activity; and

   (b)the airport-operator company (if any) for the airport concerned supports the approval.

   What happened in this case

7. As I understand it, there is no dispute between the parties that the proposed activity in this case is a ‘controlled activity’ because the structure in question will intrude into ‘prescribed airspace’. In particular, there appears to be no dispute that the’ prescribed airspace’ qualifies as ‘PANS-OPS airspace’ within the meaning of Regulation 4, and that the intrusion in question is a ‘short-term controlled activity’ within the meaning of Regulation 3. It follows the Secretary may only approve the proposed ‘controlled activity’ if “the airport-operator company [i.e., Moorabbin Airport Corporation] for the airport concern supports the approval”.

8. Unfortunately for SVC, there is no evidence that Moorabbin Airport Corporation supported or consented to the proposal. The Secretary confirms the airport operator has not given its support.

9. SVC has been critical of the airport operator in written and oral submissions, and in other communications. I was told Moorabbin Airport Corporation failed to engage with the applicant in good faith. I am not able to comment on those interactions or any of the considerations which led Moorabbin Airport Corporation to withhold its support. The plain fact remains that support has not been forthcoming. The absence of support means the Secretary’s hands are tied: Regulation 14(5) means the Secretary was bound to reject the application. The Tribunal, standing as it does in the Secretary’s shoes, would be constrained to make the same decision.

   Consequences for the applicant

10. SVC cannot succeed in its application for review precisely because the Tribunal’s hands are also tied in the same way and to the same effect as the Secretary. I cannot compel Moorabbin Airport Corporation to participate in the proceedings or respond to a direction to reconsider its position.

11. I did ask the Secretary to invite the Moorabbin Airport Corporation to participate in a ‘round table’ discussion which included the applicant so the applicant might explore any legitimate opportunities to secure the airport operator’s support. If such a conversation incurred, I infer it has been unsuccessful.

12. In the absence of any change in the airport operator’s position, the decision under review cannot be made any differently. There is no point requiring the parties to press on with a review process that cannot change the outcome. In that sense, the application before me has no reasonable prospects of success. It is therefore appropriate to dismiss the application for review pursuant to s 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth).
    
    

I certify that the preceding 12 (twelve) paragraphs are a true copy of the reasons for the decision herein of Deputy President Bernard J McCabe

...................................SGD.....................................

Associate

Dated: 18 December 2023

Date(s) of hearing:	Not applicable
Applicant:	In person
Solicitors for the Respondent:	Holding Redlich Lawyers