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

SVC Co Pty Ltd sought a review by the Administrative Appeals Tribunal of a decision made by the Secretary of the Department of Infrastructure, Transport, Regional Development, Communications and the Arts. The dispute concerned an application to undertake a 'controlled activity', specifically the erection of a structure that would intrude into 'prescribed airspace' around an airport.

The primary legal issue before the Tribunal was whether it could grant approval for the proposed controlled activity, given the limitations imposed by the Airports (Protection of Airspace) Regulations 1996 (Cth). The Tribunal was required to determine if it was empowered to make a decision that the original decision-maker, the Secretary, could not lawfully make. This involved considering the specific requirements of Regulation 14(5) of the Regulations, which governs the approval of controlled activities that intrude into PANS-OPS airspace.

The Tribunal reasoned that it steps into the shoes of the original decision-maker and is bound by the same constraints. Applying Regulation 14(5), the Tribunal noted that if a controlled activity would result in an intrusion into PANS-OPS airspace, the Secretary may only approve it if the activity is short-term and the relevant airport-operator company supports the approval. In this case, it was not disputed that the proposed activity was a controlled activity intruding into PANS-OPS airspace and was short-term. Therefore, the Secretary's power to approve was contingent on the support of the airport-operator company.

Consequently, the Tribunal concluded that the application for review had no reasonable prospect of success because the necessary condition for approval – the support of the airport-operator company – had not been met. The application for review was dismissed pursuant to s 42B of the Administrative Appeals Tribunal Act 1975 (Cth).