The Village Building Co Limited v Airservices Australia

[2008] FCAFC 57

FEDERAL COURT OF AUSTRALIA

The Village Building Co Limited v Airservices Australia [2008] FCAFC 57

AVIATION – anticipated endorsement of an ultimate capacity Australian Noise Exposure Forecast (ANEF) by Airservices Australia (“AA”) – application by an owner of land zoned Rural hoping for a rezoning to Residential for declaratory and injunctive relief in respect of the anticipated endorsement

ADMINISTRATIVE LAW – application for judicial review – whether there was a “matter” within meaning of s 39B of the Judiciary Act 1903 (Cth) – appellant’s standing – procedural fairness – whether AA in performing its obligation under s 9(2) of the Air Services Act 1995 (Cth) (“Air Services Act”) must examine all material used to prepare a draft ANEF

STATUTORY CONSTRUCTION – whether draft ANEF endorsed by AA pursuant to Air Services Act and in accordance with Ministerial direction becomes an ANEF “endorsed in the manner approved by the Minister” within s 5 of the Airports Act 1996 (Cth) (“Airports Act”) – whether an ANEF can be made for a period in excess of 20 year planning period provided by s 72 of the Airports Act

WORDS AND PHRASES – “the Minister” – s 19A(1) of the Acts Interpretation Act 1904 (Cth)

Held – appeal dismissed with costs

Acts Interpretation Act 1904 (Cth) s 19A(1)
Airports Act 1996 (Cth) ss 5, 70, 71, 72, 77 and 78
Airports Amendment Act 2007 (Cth)
Air Services Act 1995 (Cth) ss 8(1), 9(2), 16(1) and s 16(3)
Environmental Planning and Assessment Act 1979 (NSW) s 117(2)
Judiciary Act 1903 (Cth) s 39B(1A)(c)

Airports Regulations 1997 (Cth) reg 1.04

Australian Conservation Foundation Incorporated v The Commonwealth of Australia (1980) 146 CLR 493
Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334
Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Limited (1998) 194 CLR 247
Browne v Dunn (1893) VI The Reports 67
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Comptroller-General of Customs v Kawasaki Motors Pty Ltd (No 1) (1991) 32 FCR 219
Downey v Pryor (1960) 103 CLR 353
Gibbs v Federal Commissioner of Taxation (1966) 118 CLR 628
Johns v Australian Securities Commission (1993) 178 CLR 408
Kioa v West (1985) 159 CLR 550
Mobil Oil Australia Proprietary Limited v The Commissioner of Taxation (1963) 113 CLR 475
North Australian Aboriginal Legal Aid Service Inc v Bradley [2001] FCA 1728
Re Architects of Australia Association; Ex parte Municipal Officers Association of Australia (1989) 63 ALJR 298
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1
Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629
Re Refugee Review Tribunal; Ex parte AALA (2000) 204 CLR 82
Ruhani v Director of Police (2005) 222 CLR 489
Salemi v MacKellar [No. 2] (1977) 137 CLR 396
Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552
Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354
The Village Building Co Ltd (ACN 056 509 025) v Airservices Australia and Another (2007) 241 ALR 685
Village Building Co Limited v Airservices Australia [2007] FCA 1242
Village Building Co Limited v Airservices Australia [2007] FCA 1547
Transport Action Group Against Motorways Inc v Road and Traffic Authority NSW (1999) 46 NSWLR 598
Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591

THE VILLAGE BUILDING CO LIMITED ACN 056 509 025 v AIRSERVICES AUSTRALIA AND CANBERRA INTERNATIONAL AIRPORT PTY LTD ACN 080 361 548
ACD 37 OF 2007

MOORE, BRANSON AND GRAHAM JJ
10 APRIL 2008
CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 37 OF 2007

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

THE VILLAGE BUILDING CO LIMITED ACN 056 509 025
Appellant

AND:

AIRSERVICES AUSTRALIA
First Respondent

CANBERRA INTERNATIONAL AIRPORT PTY LTD ACN 080 361 548
Second Respondent

JUDGES:	MOORE, BRANSON AND GRAHAM JJ
DATE OF ORDER:	10 APRIL 2008
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondents’ costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 37 OF 2007

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

THE VILLAGE BUILDING CO LIMITED ACN 056 509 025
Appellant

AND:

AIRSERVICES AUSTRALIA
First Respondent

CANBERRA INTERNATIONAL AIRPORT PTY LTD ACN 080 361 548
Second Respondent

JUDGES:	MOORE, BRANSON AND GRAHAM JJ
DATE OF ORDER:	10 APRIL 2008
WHERE MADE:	CANBERRA

REASONS FOR JUDGMENT

MOORE J

1. Generally, the facts are set out by Graham J in that part of his judgment I have read in a draft form, and it is unnecessary to repeat the discussion of the relevant background and legislative provisions.

2. Central to Village's case, as developed at the hearing of the appeal, was that the draft Australian Noise Exposure Forecast ("ANEF") was not an ANEF having regard to the applicable Australian Standard and, as a result, was not an ANEF for the purposes of Airports Act1996 (Cth). Accordingly, it was incapable of endorsement by Airservices Australia. Considerable time was spent developing this argument.

3. Whether the impugned draft ANEF was an ANEF involves issues of fact.  In evidence before the primary judge was the applicable Australian Standard, "AS 2021-2000 Acoustics-Aircraft noise intrusion – Building siting and construction".  Also in evidence before the primary judge was the affidavit of Mr Kenneth Owen, an employee of Airservices Australia.

   
   
   
   

   The clear import of Mr Owen's evidence was that he had considerable expertise in evaluating ANEFs, had done so in relation to the draft ANEF in these proceedings and had concluded that, in relation to "technical accuracy", the draft ANEF was suitable for endorsement.  His evidence was not challenged in cross examination by Village before the primary judge.  Additionally, Village led no expert evidence before the primary judge to establish that the draft ANEF was not an ANEF because it did not comply with the applicable Australian Standard.  For my part, I do not see how we can conclude, as senior counsel for Village invited us to do, that the draft ANEF is not an ANEF having regard to the applicable Australian Standard.  The particular Australian Standard is a highly technical document.  It is replete with unfamiliar expressions, formulae and concepts.  Courts regularly construe documents both of a technical and non-technical nature. However, I fail to see how we can reach a conclusion that the draft ANEF is not an ANEF in the face of unchallenged expert evidence to the contrary.

4. I turn now to address a threshold issue concerning the nature of the appeal and the application below.  This issue arises because both Airservices Australia and Canberra International Airport Pty Ltd submitted below, and again on appeal, that there is no matter engaging the Court's jurisdiction.  Canberra International also argued that Village does not have standing to seek judicial review of conduct associated with the development of the draft ANEF. Before considering the applicable legal principles, it is necessary to describe the context in which they are to be applied.

5. In the appeal, Village contended that the primary judge failed to find that the draft ANEF submitted by Canberra International to Airservices Australia was being submitted for the purposes of endorsement and thereafter for inclusion in a draft master plan being prepared by Canberra International for the purposes of the Airports Act.  It appears that Village is correct in submitting that this was common ground between the parties.  It was said to be common ground in the submissions of Airservices to the primary judge which included the following:

   it is common ground that [Canberra International] intends to include the New ANEF in a draft master plan which is in the process of being prepared for the purposes of the [Airports Act].

6. In Village's statement of claim, two relevant facts were pleaded.  The first was that on or about 8 December 2006, Canberra International submitted to Airservices Australia a draft ANEF plan for the airport to be endorsed by Airservices Australia (see para [23] of the statement of claim).  This was admitted by Airservices Australia in its defence.  The second was that on 18 June 2007, Airservices Australia had completed its review of the draft ANEF plan and advised Canberra International that the draft ANEF plan was considered to be suitable for endorsement for technical accuracy following the completion of the consultation process (see para [28] of the statement of claim).  Again, this was admitted by Airservices Australia in its defence.

7. A finding of fact made by the primary judge (see Village Building Co Limited v Airservices Australia [2007] FCA 1242 at [4]) was that on 18 June 2007, Airservices Australia advised Canberra International that it considered the draft ANEF to be suitable for endorsement. This finding has not been challenged. In any event, since the hearing before the primary judge, uncontentious evidence has been led that Airservices Australia proposes to endorse the draft ANEF, a fact which underpinned Gyles J's decision to grant an injunction on 2 October 2007 restraining Airservices Australia from endorsing the draft ANEF pending the hearing of the appeal (see Village Building Co Limited v Airservices Australia [2007] FCA 1547). Thus the appeal can proceed on the footing that it is accepted by the parties that the draft ANEF will be endorsed by Airservices Australia and when endorsed, will be included by Canberra International Airport in a draft master plan. However, this raises the question of whether the agreed facts (or an agreement as to future conduct) lead to a justiciable controversy between Village, on the one hand, and Airservices Australia and Canberra International on the other.

8. The relief sought by Village entails three declarations and an injunction (two forms of injunction are proposed in the alternative).  The first declaration is to the effect that Airservices Australia is obliged to consider and determine the validity of assumptions underlying the draft ANEF before endorsing it.  This declaration is based on Village's contention concerning the obligations of Airservices Australia arising under the Air Services Act 1995 (Cth). The second declaration is to the effect that the draft ANEF is incapable of endorsement by Airservices Australia in a manner approved by the Commonwealth Minister for Transport and Regional Services. It is not clear to me what combination of contentions advanced by Village in the appeal would support this declaration. The third declaration is to the effect that Village was entitled to be heard before the draft ANEF was endorsed. The injunction, in one form, was to restrain Airservices Australia from endorsing the draft ANEF and in the other, to restrain it from doing so unless it engaged in the process of considering and determining the validity of assumptions underlying it.

9. The contention, propounded by the respondents, that there is no matter is not based on the fact that at least the first and second declarations concern future conduct or events.  Probably this is not a basis for concluding there is no matter: see Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 356. Rather, it is said that the proceedings do not concern a controversy as to some immediate right, duty or liability to be established by the determination of the Court.

10. The essential facts relied on by Village in support of its contention that there is a matter, and it has standing, are as follows.  Village is the registered proprietor of land it wishes to develop as residential land.  The land is presently zoned rural.  If it is rezoned residential, approval for development as residential land and how it can be developed may be influenced by the extent to which the land is potentially affected by aircraft noise.  Approval might be withheld having regard to potential affectation.  A means of determining this potential affectation is through the creation of an ANEF that is endorsed by Airservices Australia.  However, it is necessary to be more specific about this last matter.  The Tralee land is in the local government area of the City of Queanbeyan, NSW.  The Queanbeyan Local Environmental Plan 1998, prepared under the Environmental Planning and Assessment Act 1979 (NSW), is the current planning instrument (and was last updated in September 2006) and contains special provisions concerning residential development on land within the 20 - 25 ANEF "contour". In this context, the forecast "contours" are the lines that join points of equal aircraft noise exposure around aerodromes. Under the terms of the Queanbeyan Local Environmental Plan 1998, Queanbeyan Council is required to consider any noise exposure forecast prepared by, inter alia, Airservices Australia and assess whether the proposed use of land will be adversely affected by exposure to aircraft noise.  The expression "ANEF contour" is defined, in that plan, as "an ANEF contour on a plan of Canberra (Fairbairn) Airport or surrounding land prepared by an appropriate Commonwealth public authority or private lessor of the Airport".  While the effect of this plan received no real attention in this appeal, it appears that planning decisions will be made by reference to the ANEF embodied, at the relevant time, in the existing plan for Canberra airport.  The endorsement of ANEF by Airservices Australia and its incorporation into what may become a master plan for the airport can thus be said to impact on planning decisions concerning Village's land, if it is zoned residential.  A proposed amendment to the Queanbeyan Local Environmental Plan 1998proposes that the land be rezoned residential.

11. I am satisfied there is a matter and Village has standing to maintain these proceedings.  The existence of a matter and Village's standing are not wholly separate issues.  One approach to the relationship between them was discussed by Gaudron J in Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591 at [41] and by Gummow J at [122]. Whether Village has standing to seek the declaratory and injunctive relief depends upon whether it has an interest in the endorsement of the draft ANEF and its adoption in a draft master plan for Canberra airport greater than that of other members of the public: Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552. Other relevant authorities concerning standing are conveniently gathered together and discussed by Weinberg J in North Australian Aboriginal Legal Aid Service Inc v Bradley [2001] FCA 1728 at [28] – [50]. On the facts recounted in [10] above, Village plainly, in my opinion, has an interest which gives it standing.

12. While any damage to Village's economic interests (an expression used by Mason J in Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493 at 547) is contingent on the land being rezoned, its interest in protecting those economic interests is real and immediate. It challenges, to protect those interests, the stated intention of Airservices Australia to endorse the draft ANEF by challenging the lawfulness of this imminent decision. In so doing, it raises, in my opinion, a judicial controversy about the conduct of Airservices Australia involving the construction and operation of at least the Air Services Act and probably the Airports Act.  Village seeks to establish that Airservices Australia's power to endorse the draft ANEF is conditioned in at least two ways.  The first is that Airservices Australia is under a duty deriving from statute to test the assumptions underlying the draft ANEF and is also obliged to afford Village an opportunity be heard before endorsing it.  Both concern the existence of an "immediate duty" which is one of the indices of the existence of a matter: see generally Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591.

13. However, in the context of this discussion about standing and the existence of a matter, it is convenient to note one aspect of the cases as they have been presented. Village's thesis is that if Airservices Australia is endorsing the draft ANEF in accordance with the Ministerial direction made under the Air Services Act, it is endorsement for the purposes of the Airports Act.  Somewhat paradoxically, Airservices Australia and Canberra International contest this thesis and argue that endorsement under the Air Services Act is not endorsement for the purposes of the Airports Act, notwithstanding that it is apparently common ground that the endorsed ANEF will then be used by Canberra International to create a draft master plan on the apparent assumption that it is an ANEF for the purposes of the Airports Act.  If it is correct that endorsement under the Air Services Act would not create an ANEF for the purposes of the Airports Act then that would raise a real question, in my mind, whether the issues presented for determination in the original proceedings and in this appeal concerning the construction of the Airports Act are moot and hypothetical.  However, for reasons which are set out shortly, I accept Village's contention about the effect of endorsement under the Air Services Act on the scheme created by the Airports Act. 

14. It seems to me that the appropriate sequence in addressing the issues raised in the appeal is to deal with the process attending the imminent endorsement of the draft ANEF under the Air Services Act (the alleged duty to test assumptions together with the alleged denial of natural justice) and whether, if endorsed, the ANEF can be an ANEF for the purposes of the Airports Act (whether it can be in the absence of express Ministerial approval of a manner of endorsement and it if it can be, whether it is regard to the alleged need for it to address only a period of 20 years and to be a forecast).

15. Village's contention that Airservices Australia is obliged to test assumptions on which the draft ANEF is based is said to derive from s 9(2) of the Air Services Act.  Under that provision, Airservices Australia is directed to exercise its powers and perform its functions in a manner that, as far as is practicable, ensures the environment is protected from the effects of, and associated with, the operation and use of aircraft.  For my part, it is unnecessary to enter the debate about what the word "ensures" comprehends and whether the expression "as far as is practicable" limits or qualifies this direction and the consequential duty it imposes on Airservices Australia.  That is because one of the submissions made by Canberra International on this issue is, in my opinion, undoubtedly correct.  It was that one cannot proceed on the assumption that the draft ANEF, if not endorsed or approved, will prevent the flights forecast in the draft ANEF from occurring, thus affording (it may presently be assumed) a measure of protection to the environment.  As Canberra International submitted, the endorsement of an ANEF does not permit particular flights from an airport, or particular numbers of flights or particular development at an airport.  Conversely, it does not prevent any particular flights or the use of an airport.  For my part, I do not see the duty imposed on Airservices Australia as having any relevance at the time it is considering whether or not to endorse a draft ANEF.

16. The next issue, concerning whether Airservices Australia has denied Village procedural fairness, involves, potentially, both a factual and legal issue.  The factual issue is whether Airservices Australia has denied Village procedural fairness.  The legal issue is whether it was obliged to afford Village procedural fairness.  It is unnecessary to address the legal issue because, quite plainly, Airservices Australia has provided Village with an opportunity to make submissions about the draft ANEF.  Airservices Australia did so in a letter from its solicitors of 30 April 2007.  As Gaudron J observed in Re Architects of Australia Association; Ex parte Municipal Officers Association of Australia (1989) 63 ALJR 298 at 305, procedural fairness requires only that a party be given a reasonable opportunity to present their case, and it is not necessary for the person or body required to afford procedural fairness to ensure that the party takes best advantage of the opportunity.

1. This leads to a consideration of whether the draft ANEF, once it is endorsed by Airservices Australia, can be an ANEF for the purposes of the Airports Act.  As I noted earlier, somewhat paradoxically, Village contends it can be, while Airservices Australia and Canberra International adopt the opposite position.  An ANEF for the purposes of the Airports Act is defined as an ANEF endorsed in the manner approved by the Minister (see s 5 of the Airports Act). There appears to be no issue that since the introduction of that definition by amendments in 2007, the relevant Minister has not approved a manner of endorsement. The primary judge concluded (at [56]) that in the absence of approval by the Minister about a manner of endorsement, any endorsement of the draft ANEF by Airservices Australia would not result in it being an ANEF for the purposes of s 71(3)(d) of the Airports Act.

2. In my opinion, an ANEF endorsed by Airservices Australia after the definition came into force can be an ANEF for the purposes of the Airports Act, notwithstanding the absence of approval by the Minister of a manner of endorsement given after the enactment of the definition in 2007.  First, as Village submitted, in ascertaining what was intended by the introduction of the definition by the 2007 amendments to the Airports Act, it is necessary to have regard to the context, in a broad sense, in which the amendments were enacted.  This would include the existing state of the law (see CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408) which in turn, include the power of the Minister to give directions to Airservices Australia under the Air Services Act, which could involve (and, in fact, has involved) directions about the endorsement of an ANEF. It is, in my respectful opinion, too narrow a view to say that the definition was intended to engage only methods of endorsement approved after the definition was enacted. That approach tends to deny Parliamentary knowledge of the context existing at the time of the enactment concerning the Ministerial direction about the endorsement of ANEFs.

3. It is true that the 1999 direction did not, in terms, specify or identify a method of endorsement.  Rather it was a direction simply that Airservices Australia "be responsible for endorsing [ANEFs] for all Australian airports".  That direction reserved to Airservices Australia the responsibility for determining the method it would deploy for endorsing ANEFs consistent with its statutory obligations and obligations arising from the 1999 direction which included a direction that Airservices Australia carry out its activities specified elsewhere in the direction in accordance with government policy.  In this way, indirectly, the 1999 direction addressed the method of endorsement, namely the method thought by Airservices Australia to be appropriate.

4. Even if the preceding analysis is not correct, the absence of approval of a manner of endorsement does not necessarily mean an ANEF cannot be brought into existence for the purposes of the Airports Act, enabling an airport to comply with the requirement in s 71(3)(d) to include an ANEF in its draft master plan. A similar situation can arise when an Act provides that something be done in a way specified by regulation but no regulations have been promulgated. It is ultimately a question of ascertaining whether the prescription of the method is intended to be a condition precedent to the exercise or imposition of the right, authority or obligation conferred or created by the Act: see Downey v Pryor (1960) 103 CLR 353. In this case, the question is whether Parliament intended that an airport-lessee company is not authorised to include, in a draft master plan, an ANEF if that ANEF did not satisfy the definition containing, as it does, the element of endorsement by a method approved by the Minister in circumstances where there had been no Ministerial approval of a method. In my opinion, I doubt that Parliament intended that an airport-lessee company was not authorised to include an ANEF in a draft master plan in the absence of its endorsement in a method determined by the Minister but nonetheless endorsed by the public authority charged with the duty to endorse it.

5. This leads to the final two issues.  The matters relied upon by Village (having regard to the amended statement of claim) to support the contention that the draft ANEF was not an ANEF for the purposes of the Airports Act were twofold. The first was that the draft ANEF related to a period in excess of 20 years and secondly, that it was not a forecast, as it was contended it must be. The first proposition, based primarily on the provisions of s 72 of the Airports Act which provides that master plans (whether draft or final) must relate to a period of 20 years, was centrally dealt with by the primary judge in the following passages:

   [63] I am of opinion that on its proper construction the Airports Act does not prevent an ANEF being made for a period beyond the planning period provided that it relates to that planning period. Indeed, it can hardly have been the intention of the Parliament in enacting the Airports Act, as amended, to have stultified the future growth potential of an airport in the way contended for by Village. The consequence of Village’s argument, that an ANEF cannot extend beyond 20 years, absent a regulation under s 71(4), is that third parties would be able to engage in development or uses of land around an airport which created a planning conflict between the user of the airport and the surrounding development at a time over 20 years away, that prevented the future expansion of use of the existing capacity of the airport.
   ........ .

   [72]    I am of opinion that the Airports Act, in requiring a master plan to relate to the 20 year planning period, does not preclude the master plan from addressing in addition matters, such as ANEFs, for lengthier periods.  Such a construction gives effect to the objects in s 3 of promoting ‘the efficient and economic development and operation of airports’ and of promoting the sound development of civil aviation in Australia. 

   [73] More significantly, the ANEF which s 71(2)(d) requires is one endorsed in a manner approved by the Minister. Other ANEFs not so endorsed are not proscribed from being prepared or checked for accuracy by a body such as Airservices. However, they will not be capable of satisfying the requirement of s 71(2)(d) unless endorsed under the Airports Act in a manner approved by the Minister.

6. One aspect of Village's argument was that the draft ANEF does not specify any time in relation to which the forecast is made.  This appears to be correct and at least the second respondent conceded that the finding of the primary judge was wrong that the draft ANEF (an "ultimate capacity" ANEF) was formulated on the basis that the airport would reach its ultimate capacity in 2050, as his Honour said (at [4]) "some 43 years hence".  However, this point was not raised in the amended statement of claim, which focused only on the failure of the impugned ANEF to address a period of 20 years as, it was submitted, the Airports Act required.  Not only was this point not raised on the pleadings, it was positively asserted by Village as a particular to para 28A of its amended statement of claim that the draft ANEF was based on a projection for annual aircraft movements for 2050.  In these circumstances, this point now sought to be raised by Village can be ignored.

7. This leads to a consideration of whether the Airports Act requires that an ANEF (which s 71(2)(d) directs be included in a draft or final master plan) must concern a period coinciding with the period to which a master plan must relate, namely 20 years. It is tolerably clear that the requirement in s 72 that a draft or final master plan relate to a period of 20 years requires that the master plan address what is anticipated will happen or is proposed to be done during the period concluding 20 years from the time the plan was created in relation to the various matters referred to in s 71(3). Thus, the airport-lessee company must identify, for that period, its development objectives for civil use of the airport, the future needs during that period for civil aviation users of the airport and its intentions for land use and related development of the area of the airport site during that period.

8. In relation to aircraft noise, s 71(3)(e) the Airports Act requires that the master plan specify the airport-lessee company's plans for managing aircraft noise intrusion in areas forecast to be subject to exposure above the significant ANEF levels. Again, it is tolerably clear that the aircraft noise intrusion management plans must address what is proposed or intended for the period concluding 20 years after the creation of the plan. This is fairly clearly linked to at least two other matters referred to in s 71(3) of the Airports Act, namely the ANEF to be specified by para (d) and the flight paths at the airport to be specified by para (da) and, indirectly, to the future needs of civil aviation users to be specified by para (b).

9. This scheme requires, in my opinion, the airport-lessee company to explain in its draft or final master plan how it will manage, in effect, excessive or intrusive noise in the following 20 years in the area around the airport having regard to the usage of the airport and the flight paths in and out of the airport. Section 71(3)(c) the Airports Act requires that the company's noise management plans be developed in consultation with, amongst others, the airlines that use the airport and local government bodies in the vicinity of the airport. In my opinion, it is likely that, to make this scheme efficacious, the ANEF referred to in para (d) would address or forecast noise levels in the area surrounding the airport having regard to anticipated or proposed changes (if any) in, amongst other things, usage of the airport and flight paths identified in the master plan and would address or forecast such levels at the conclusion of the same period. I think, with respect, that the primary judge's conclusion to the contrary is not correct. The fact that s 71(4) the Airports Act allows, by regulation, an alteration to this regime does not support the primary judge's conclusion.  If anything, it points to the opposite conclusion.  That is because the regulation would operate to alter what the Act otherwise requires (absent the regulation).

10. Village contended that the draft ANEF could not be an ANEF for the purposes of the Airports Act because it did not constitute or entail a "forecast".  The need for it to constitute or entail a "forecast" was said to flow from the use of the word "forecast" in the expression "Australian Noise Exposure Forecast" in the Airports Act.  For my part, I view this as a facile contention.  The expression is a plainly a term of art and is used in that way in the Airports Act.  For the reasons given at the beginning of these reasons, Village has not established that the draft ANEF is not an ANEF.  On that basis, this contention should be rejected.

11. On the issues raised in this appeal, Village has succeeded, in my opinion, on two points only.  Success on the first point (whether the draft ANEF can be an ANEF for the purposes of the Airport Act) is, in a sense, a foundation enabling it to advance the second point on which it succeeded (the timeframe for an ANEF for the purposes of s 71(2)(d) of the Airport Act).  None of the declarations it seeks is cast in terms which would readily reflect its success on those points and its failure on other points.  In any event, and notwithstanding the view I earlier expressed that there is a matter upon which this Court can adjudicate, I would be reluctant to make, as a matter of discretion, a declaratory order in circumstances where Canberra International has not yet incorporated any ANEF into a draft master plan. 

12. I would dismiss the appeal with costs. 

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:        10 April 2008

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 37 OF 2007

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

THE VILLAGE BUILDING CO LIMITED ACN 056 509 025
Appellant

AND:

AIRSERVICES AUSTRALIA
First Respondent

CANBERRA INTERNATIONAL AIRPORT PTY LTD ACN 080 361 548
Second Respondent

JUDGES:	MOORE, BRANSON AND GRAHAM JJ
DATE:	10 APRIL 2008
PLACE:	CANBERRA

REASONS FOR JUDGMENT

BRANSON J

INTRODUCTION

1. The appellant (“Village”) has a 57.5% interest as tenant in common in two parcels of land at North and South Tralee respectively in Queanbeyan, New South Wales (“the Land”).  The Land, which is currently zoned “rural”, is in the vicinity of the Canberra International Airport.  Village expects that the Land will be rezoned on the application of the local government authority so as to allow residential development.  Village is concerned that if the first respondent (“AA”) endorses a new draft Australian Noise Exposure Forecast (“ANEF”) for the Canberra Airport (“the draft ANEF”) this will result in New South Wales planning provisions operating to impose additional costs and restrictions on Village’s ability to exploit the Land should it be rezoned to permit residential development.

2. Village applied to the Court under s 39B(1A)(c) of the Judiciary Act 1903 (Cth) (“ the Judiciary Act”) for declaratory and injunctive relief intended to restrain AA from endorsing the draft ANEF. The primary judge (Rares J) dismissed the application with costs. This is an appeal from the judgment pronounced by his Honour.

   BACKGROUND

3. I have had the advantage of reading in draft form the reasons for judgment of Graham J.  I gratefully adopt his Honour’s recitation of the factual background.

   IS THERE A MATTER?

4. Before addressing the issues raised by the appeal it is appropriate to address the notice of contention filed by the second respondent, Canberra International Airport Pty Ltd (“CIA”). CIA contended that the proceeding before the primary judge was not a “matter” within the meaning of s 39B of the Judiciary Act because the proceeding did not involve any justiciable controversy between the parties. If there was no “matter” before the primary judge, the jurisdiction of the Federal Court was not properly invoked by the filing of the application heard by his Honour (ss 75, 76 and 77 of the Constitution). CIA Ltd placed particular reliance on Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591 (“Truth About Motorways”).

5. In Truth About Motorways the High Court upheld the validity of s 80 of the Trade Practices Act 1974 (Cth). It had been contended in that case that a private individual must have some special interest in the subject matter of the proceeding before the proceeding could constitute a matter for the purposes of Chapter III of the Constitution. This argument was unanimously rejected by the High Court. Relevantly, however, at [42]-[43] Gaudron J said:

   …Ch III selects ‘matters’ as the subject-matter of federal jurisdiction. And ‘matters’ is a word of such generality that it necessarily takes its content from the categories of matter which fall within federal jurisdiction and from the concept of ‘judicial power’…

   Although the constitutional meaning of ‘matter’ is to be derived, in significant part, from the concept of ‘judicial power’, it is not necessary in this case to attempt any exhaustive exposition of that concept. It is sufficient to describe judicial power as that power exercised by courts in making final and binding adjudications as to rights, duties or obligations put in issue by the parties. Similarly, it is sufficient to note that the constitutional meaning of ‘matter’ involves the existence of a controversy as to ‘some immediate right, duty or liability to be established by the determination of the Court’.  (footnotes omitted)

6. Her Honour at [45] referred to the observation contained in the joint judgment of Gaudron, Gummow and Kirby JJ in Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 at 262 that “in federal jurisdiction, questions of ‘standing’, when they arise, are subsumed within the constitutional requirement of a ‘matter’.”

7. In Truth About Motorways at [122] Gummow J said:

   The notion of ‘standing’ is an implicit or explicit element in the term ‘matter’ throughout Ch III, identifying the sufficiency of the connection between the moving party and the subject-matter of the litigation. However, it would be an error to attribute to this notion a fixed and constitutionally mandated content across the spectrum of Ch III.

8. CIA Ltd’s contention that the subject matter for determination in the proceeding before the primary judge was not a “matter” was founded on its submissions that the proceeding did not call for any immediate right, duty or liability to be established by determination of the Court and Village had no entitlement to any legal remedy for the wrong claimed by it.

9. No argument was advanced on this appeal that the issue raised by the notice of contention should be determined ahead of the determination of all other issues.  Nor was it contended that the primary judge erred in not addressing the same issue as a preliminary point.  Consideration of the question of whether a challenge to the Court’s jurisdiction based on the contention that the subject matter for determination in the proceeding is not a “matter” should always be heard and determined as a preliminary issue should thus be left for another day.

10. Notwithstanding that the jurisdiction of this Court is a jurisdiction in respect of “matters”, it is plain that the Court has jurisdiction to determine whether or not it has jurisdiction in respect of a proceeding instituted in the Court and to dismiss the proceeding if it determines that it does not (Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629 per Gleeson CJ, Gaudron, McHugh, Gummow, Haynes and Callinan JJ at [14]). Moreover, in the present case, a decision as to whether Village had a sufficient connection with the subject matter of the litigation to give rise to a “matter” depended, to some extent at least, upon the proper construction of laws of the Parliament, namely the Air Services Act 1995 (Cth) (“the Air Services Act”) and the Airports Act 1996 (Cth) (“the Airports Act”). On the construction of those Acts for which the appellant contended the interests of the appellant would be more directly affected by the conduct of AA in endorsing the draft ANEF than it would be on the construction for which the other parties contended.

11. In the event, neither the primary judge nor this Full Court has been persuaded that Village has any entitlement to relief under either enactment.  Nevertheless, the Court has and had jurisdiction to determine the extent of its jurisdiction.  Whether any wider “matter” was brought to the Court by the proceeding below need not now, in my view, be determined.

    RELEVANT LEGISLATION

12. The appellant’s claim to be entitled to relief depends upon the proper construction of various provisions of the Air Services Act and the Airports Act respectively. It is therefore convenient to give consideration to those Acts and to consider the extent to which, if at all, the provisions of one informs the proper construction of the other.

    Air Services Act

13. The Air Services Act establishes AA (s 7(1)), specifies its functions (s 8(1)), specifies the manner in which its functions are to be performed (s 9 and s 10), and vests in it various powers (s 11). The Minister is authorised to give written directions to AA relating to the performance of its functions or the exercise of its powers (s 16(1)). AA is required to comply with any such direction (s 16(3)).

1. Section 8 of the Air Services Act gives AA extensive functions concerning air navigation including the function specified by s 8(1)(d), namely:

   Carrying out activities to protect the environment from the effects of, and effects associated with, the operation of:

   (i)Commonwealth jurisdictional aircraft, whether in or outside Australia, or other aircraft outside Australia; or

   (ii)other aircraft outside Australia.

2. In exercising its powers and performing its functions AA must regard the safety of air navigation as the most important consideration (s 9(1)). Subject thereto, s 9(2) requires AA to exercise its powers and perform its functions in a manner that ensures that, as far as is practicable, the environment is protected from:

   (a)       the effects of the operation and use of aircraft; and
   (b)       the effects associated with the operation and use of aircraft

3. Section 20 of the Air Services Act establishes the Board of AA and s 21 gives that Board the function of ensuring that AA performs its functions in a proper, efficient and effective manner.

   The Ministerial direction

4. On 3 May 1999, in reliance on s 16(1) of the Air Services Act, the Minister for Transport and Regional Services directed AA “for the purposes of paragraph 8(1)(d) and subsection 9(2) of the Air Services Act” to:

   Make available data for the development of aircraft noise exposure analyses and prediction and be responsible for endorsing Australian Noise Exposure Indices/Forecasts for all Australian airports.

   This direction is referred to in these reasons for judgment as “the Ministerial direction”.

   Airports Act

5. The objects of the Airports Act include the promotion of the sound development of civil aviation in Australia and the establishment of a system for the regulations of airports that has due regard to the interests of airport users and the general community. To these ends, the Airports Act provides that for each airport there is to be a “final master plan” (s 70(1)) which must relate to a period of 20 years (s 72)). This period is called the “planning period” (s 72).

6. Amendments made to the Airports Act by the Airports Amendment Act 2007 (Cth) (“the Amendment Act”) are of importance in this matter. The Amendment Act inserted into the definition section of the Airports Act (s 5) the following definition:

   Australian Noise Exposure Forecast, for an airport, means an Australian Noise Exposure Forecast endorsed in the manner approved by the Minister.

   It is accepted that the Minister has not acted under the Airports Act to approve the manner in which an Australian Noise Exposure Forecast is to be endorsed. Importantly, in my view, the Ministerial direction makes no reference to the Airports Act and, in particular, no reference to the definition of ANEF contained in s 5 of that Act.

7. Although the Amendment Act did not introduce into the Airports Act the requirement that each airport must have a “final master plan”, it specified the purposes of a “final master plan”. Those purposes include:

   to ensure that uses of the airport site are compatible with the areas surrounding the airport.  (s 70(2)(d))

8. Additionally, the Amendment Act introduced into s 71(2) of the Airports Act, which is concerned with the content of a final master plan for an airport, the requirement that it specify:

   an Australian Noise Exposure Forecast (in accordance with regulations, if any, made for the purpose of this paragraph) for the areas surrounding the airport; (s 71(2)(d))

9. Further, the Amendment Act inserted s 78(2A) into the Airports Act. Section 78(2A) provides:

   (2A)If a final master plan (the original plan) for an airport is in force, and a more recent Australian Noise Exposure Forecast for the airport is endorsed in the manner approved by the Minister, the airport lessee company for the airport must give the Minister, in writing, a draft master plan that is expressed to replace the original plan. The company must give the Minister the draft master plan:

   (a)within 180 days of the more recent Australian Noise Exposure Forecast being endorsed; or

   (b)if the Minister, by written notice given to the company, allows a longer period—within that longer period.

   ISSUES RAISED BY THE APPEAL

10. The Notice of Appeal is in an inappropriate and unhelpful form (see Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 per Branson J at [2]-[5] and Weinberg and Dowsett JJ at [49]). It is therefore probably unsurprising that no party other than the appellant made reference to it in its written or oral submissions. The appellant referred to it only for the purpose of abandoning certain of the grounds of appeal.

11. The parties accepted that the appeal raises the following issues:

    1.whether the draft ANEF, upon being endorsed by AA pursuant to the Air Services Act and in accordance with a Ministerial direction issued under s 16 of that Act, will become an ANEF “endorsed in the manner approved by the Minister” within the meaning of the Airports Act

    2.whether AA, when endorsing an ANEF under the Air Services Act and in accordance with the Ministerial direction referred to above, is obliged by s 9(2) of the Air Services Act to assess for itself the appropriateness of the data used to prepare the ANEF and, in particular, the data relating to the forecast numbers and timing of future aircraft movements for Canberra Airport;

    3.whether the draft ANEF is incapable of being endorsed by AA pursuant to the Air Services Act because it does not relate to a 20 year “planning period” as referred to in s 72 of the Airports Act;

    4.whether the draft ANEF is incapable of being endorsed by AA because it is not a “forecast”; and

    5.whether AA is under a duty to accord procedural fairness to Village before endorsing the draft ANEF and, if so, whether it has breached that duty in a way which would justify a grant of relief in favour of Village.

    ISSUE 1

    Whether the draft ANEF, upon being endorsed by AA pursuant to the Air Services Act and in accordance with a Ministerial direction issued under s 16 of that Act, will become an ANEF “endorsed in the manner approved by the Minister” within the meaning of the Airports Act.

12. Village contended that an ANEF endorsed pursuant to the Ministerial direction (ie a direction given under the Air Services Act) is an ANEF which falls within the definition of Australian Noise Exposure Forecast contained in s 5 of the Airports Act. This contention was based on the submission that the terms of the definition do not operate to confer on the Minister power to approve the manner in which an ANEF is to be endorsed under the Airports Act with the consequence that the definition must be understood to refer to a manner approved by the Minister under the Air Services Act. Village identified the Ministerial direction as the applicable Ministerial approval.

13. Village placed reliance on observations made by Barwick CJ, McTiernan and Taylor JJ in Gibbs v Federal Commissioner of Taxation (1966) 118 CLR 628 (“Gibbs v FCT”) at 635. In Gibbs v FCT the High Court was concerned with a definition of “dividend” in the Income Tax and Social Services Contribution Assessment Act 1936-1961 (Cth) which included bonus shares.  The primary judge had proceeded on the basis that as bonus shares, which are by their nature capital, fell within the definition of “dividend”, bonus shares were to be treated for all purposes under the Act as income.  It was in this context that Barwick CJ, McTiernan and Taylor JJ said at 635:

    The function of a definition clause in a statute is merely to indicate that when particular words or expressions the subject of definition, are found in the substantive part of the statute under consideration, they are to be understood in the defined sense – or are to be taken to include certain things which, but for the definition, they would not include. Such clauses are, therefore, no more than an aid to the construction of the statute and do not operate in any other way.

14. The above observations provided limited, if any, assistance on the question of whether the definition of Australian Noise Exposure Forecasts in s 5 of the Airports Act discloses a legislative intention to confer power on the Minister to approve the manner in which an ANEF is to be endorsed for the purposes of that Act. The first issue to be considered in determining the intention of the legislature in this regard is the intended meaning of the expression “the Minister” in that definition.

15. Unless a particular Act discloses a contrary intention, a reference in an Act to “the Minister” is to be understood in the way required by s 19A(1) of the Acts Interpretation Act 1901 (Cth). Section 19A(1) provides:

    If a provision of an Act:

    (aa)refers to a Minister by using the expression “the Minister” without specifying which Minister is referred to; or

    (ab)refers to a particular Minister;

    then, unless the contrary intention appears, the reference is a reference to:

    (a)if, for the time being, different Ministers administer the provision in respect of different matters:

    (i)if 2 or more Ministers administer the provision in respect of the relevant matter—any one of those Ministers; or

    (ii)if only one Minister administers the provision in respect of the relevant matter—that Minister;

    (b)if paragraph (a) does not apply and, for the time being, 2 or more Ministers administer the provision—any one of those Ministers; or

    (c)if paragraphs (a) and (b) do not apply—the Minister for the time being administering the provision.

16. The Airports Act does not, in my view, disclose an intention that the expression “the Minister” in the definition of Australian Noise Exposure Forecast should not be understood in the way required by s 19A(1) of the Acts Interpretation Act. Unless recourse is made to s 19A, the expression “the Minister” in the s 5 definition will lack content. Additionally it will be ill‑adapted to accommodate the exigencies of government. For these reasons it is, in my view, plain that if the Parliament had intended the reference to “the Minister” in the definition of Australian Noise Exposure Forecast in s 5 of the Airports Act to mean a Minister, in his or her capacity as the Minister administering relevant provisions of the Air Services Act, it would have so stated.

17. Section 19A(1) of the Acts Interpretation Act thus requires the expression “the Minister” in the definition of Australian Noise Exposure Forecast to be understood as referring to the Minister for the time being administering s 5 of the Airports Act (s 19A(1)(c)). Although logically (albeit not necessarily) that Minister is likely also to be the Minister responsible for administering the provisions of the Air Services Act, this does not provide justification for construing the reference to “the Minister” in the definition as a reference to the Minister in any capacity other than as the Minister administering s 5 of the Airports Act.

18. No source of authority for the Minister administering s 5 of the Airports Act to approve a manner of endorsement of an ANEF for the purpose of that Act other than s 5 itself has been identified. In the circumstances it is to be inferred that the legislature intended s 5 itself to provide the necessary authority.

19. It may additionally be noted that, even if s 19A of the Acts Interpretation Act is put to one side, a difficulty in the way of accepting Village’s contention is that the Ministerial direction identifies activities to be undertaken by AA, one of which is to be responsible for endorsing ANEFs for all Australian Airports; it does not specify any manner of endorsement of Australian Noise Exposure Indices/Forecasts. There is, it seems to me, a significant difference between directing someone to be responsible for doing something and identifying the manner in which the thing is to be done.

20. Of course, if the Executive intends, as it appears it may, that ANEFs for airports are to be endorsed by AA, the Ministerial direction is probably a necessary first step. It is the Minister administering the Air Services Act who can give AA directions relating to the performance of its functions and the exercise of its powers; that is, in the circumstances under consideration, direct it to endorse ANEFs. However, it is the Minister administering the Airports Act who has the responsibility of approving a manner of endorsement of an ANEF for an airport for the purposes of that Act.

    Conclusion

21. The learned primary judge correctly concluded that the draft ANEF proposed to be endorsed by AA pursuant to the Ministerial direction will not by reason of that endorsement alone become an Australian Noise Exposure Forecast for the Canberra Airport within the meaning of s 5 of the Airports Act.

    ISSUE 2

    Whether AA, when endorsing an ANEF under the Air Services Act and in accordance with the Ministerial direction referred to above, is obliged by s 9(2) of the Air Services Act to take steps to assess the appropriateness of the data used to prepare the ANEF and, in particular, the data relating to the forecast numbers and timing of future aircraft movements for Canberra Airport

    The Ministerial direction

22. As mentioned above, the Ministerial direction directs AA to be responsible for endorsing Australian Noise Exposure Indices/Forecasts for all Australian airports. On the view that I take, this direction seems likely to be a step on the way towards the establishment of a scheme whereby AA assumes responsibility for the endorsement of ANEFs for the purposes of the Air Services Act. However, until the Minister administering the Airports Act approves a manner of endorsement of ANEFs for the purposes of that Act, the scheme will not be complete.

23. The Macquarie Dictionary relevantly defines the verb “endorse” to mean “to approve; give support to”.  The Oxford Dictionary relevantly gives the meanings “[t]o confirm, sanction, countenance, or vouch for (statements, opinions, acts etc…), as by an endorsement”. These definitions seem to me to reflect the intended meaning of the Ministerial direction; that is, that AA is to be responsible for approving or vouching for Australian Noise Exposure Indices/Forecasts.

24. It is plain from the terms of the Ministerial direction that the assumption by AA of responsibility for endorsing Australian Noise Exposure Indices/Forecasts is to be an aspect of the performance of its function of carrying out activities to protect the environment from the effects of, and the effects associated with, the operation of Commonwealth jurisdiction aircrafts in Australia (s 8(1)(d)) of the Air Services Act (see [42] above)).

25. Neither the Ministerial direction nor the Air Services Act prescribes how AA is to assume responsibility for endorsing Australian Noise Exposure Indices/Forecasts; that is, what it is actually required to do. This lacuna, as it seems to me, will be filled when the Minister acts pursuant to the Airports Act to approve a manner for endorsement for ANEFs for airports. If the Minister administering the Airports Act wishes AA to endorse ANEFs for the purposes of that Act it will be necessary that any manner of endorsement of ANEFs approved by the Minister under s 5 of the Airports Act does not involve AA in performing its function and exercising its function in a way that is inconsistent with the Air Services Act, including s 9(2) of that Act.

    Section 9(2) of the Air Services Act

26. In arguing that the Ministerial direction requires AA to verify the reasonableness of assumptions concerning future aircraft movements underlying the draft ANEF, Village placed reliance on the requirements of s 9(2) of the Air Services Act which concerns the manner in which AA is to exercise its powers and perform its functions (see [43] above). Implicit in Village’s argument is the assumption that s 9(2) places an obligation on AA to undertake each of its individual activities in the manner described by the subsection. This assumption was not directly challenged by either respondent. However, I do not wish to be understood as necessarily accepting it. Section 9(2) is relevantly directed to the performance by AA of its functions. As mentioned above, the functions of AA are specified by s 8 of the Air Services Act. The critical function of AA for present purposes is the function specified by s 8(1)(d). The Ministerial direction concerns various activities (of which assuming responsibility for endorsing Australian Noise Exposure Indices/Forecasts for all Australian airports is only one) which fall within the function specified by s 8(1)(d).

27. Leaving aside for present purposes the intended significance of the disjunctive “or” between subparagraphs (i) and (ii) of s 8(1)(d)(see [42] above), s 8(1)(d) specifies one of a number of functions of AA. It seems to me to be strongly arguable that s 9(2) is concerned with how AA performs either the totality of its functions or alternatively each of its functions. I doubt that it is concerned to regulate the manner of performance of every activity carried out by AA within one of its functions. It would not logically follow that, because a particular activity had not been performed in accordance with the requirements of s 9(2), AA had not performed its functions, or any of them, in the way required by the subsection. A judgment concerning the manner in which AA had performed its functions, or any of them, could only be made by reference to the totality of the relevant activities undertaken by AA.

28. For the above reason, even if it be assumed that if AA endorses the draft ANEF it will become an Australian Noise Exposure Forecast for the Canberra Airport within the meaning of the Airports Act, I doubt the relevance of asking whether AA will thereby have acted in a manner that ensures that, as far as is practicable, the environment is protected from the effects of, and associated with, the operation and use of aircraft. It is more likely, in my view, that the relevant question is whether, if AA endorses the draft ANEF as proposed, it can be demonstrated (a) that AA has not performed its functions in the way required by s 9(2), or alternatively, (b) that AA has not performed the function identified in s 8(1)(d) in the way required by s 9(2). The evidence before the primary judge was plainly insufficient to demonstrate either of these things.

29. However, having regard to the way in which the appeal was argued, it is appropriate to give consideration to whether the evidence was sufficient to show that, if it endorses the draft ANEF as proposed, AA will have performed the activity of endorsing the draft ANEF in a manner contrary to the requirements of s 9(2).

    The Evidence

30. The only witness who gave evidence about the process whereby AA formed the view that the draft ANEF should be endorsed was Kenneth John Owen, the Senior Environment Specialist of the Environment Branch of AA.  Mr Owen gave affidavit evidence before the primary judge on which he was not cross examined.  His evidence may therefore be accepted.

31. Mr Owen’s evidence was that there are three types of noise control maps which are produced using the ANEF system.  He said that each of them is produced using the same computer model, namely the FAA-1NM, which is a software package used widely all over the world for the modelling of aircraft noise.  Mr Owen’s affidavit included the following paragraphs:

    34.Typically ANEFs are prepared by specialist aviation consultants engaged by airport operators.  Those consultants use the FAA-INM as the basis for the preparation of the ANEF.

    35.Once a draft ANEF is prepared by an aviation consultant, it is forwarded to Airservices. The materials which must be submitted include the following:

    (a)a draft ANEF chart;

    (b)a report of assumptions used; and

    (c)a copy of the input files and contours in digital form.

    36.The Airservices review panel, which I lead, then requires the following technical and administrative determinations to be undertaken:

    (a)that the appropriate selection of aircraft types has been used as input data;

    (b)that the runway usage and flight path data used as input to the FAA-INM are operationally suitable;

    (c)that the forecast numbers of aircraft operations are not greater than the anticipated physical capacity of the airport;

    (d)that the assumed data have been correctly entered into the model;

    (e)that the correct version of the software has been used;

    (f)that the shake and size of the ANEF contours appears to be consistent with the input data;

    (g)that the chart and data as presented in the Draft ANEF format contained all the items required; and

    (h)that the sources of data submitted with the Draft ANEF can be identified.

    37.I work to a checklist when undertaking the technical endorsement review procedure.  At pages 102 – 133 of exhibit “KO 1” is a copy of a checklist used in relation to the draft ultimate capacity ANEF for Canberra International Airport (CIA), the subject of this Application.

    38.As can be seen from the checklist used for the ANEF technical endorsement review, the data source for the proposed ANEF is recorded in relation to each of the following items:

    (a)airport and runway descriptions;

    (b)movement numbers;

    (c)aircraft types;

    (d)day/night splits;

    (e)track locations; and

    (f)runway usage.

    39.In undertaking the technical endorsement review against each of the ‘data source’ headings, I check that the submitted report of assumptions attributes the source of the data relied upon by the applicant for the ANEF. In doing so, I am not assessing any of the data in a qualitative way or seeking to determine the likelihood of the assumption behind the relevant data occurring.  Likewise, I am not undertaking an audit of the business plan of the airport operator which stands behind the assumptions used in the ANEF application. I check that the modelling data and parameters presented to me are attributed to an appropriate and relevant source. I also consider the runway usage used as input to the model is operationally suitable and that the forecast numbers of aircraft operations are not greater than the capacity of the airport.

    40.I then discuss with the applicant (or its consultants) the technical data contained in the draft report and contour maps submitted. I prefer to do this early in the process, before a final draft is presented to me for endorsement.

    41.Once I am satisfied that the information provided is in accordance with my checklist and that the FAA-INM has been run correctly, I then inform the General Manager, Corporate Affairs that the ANEF has been assessed as ready for endorsement for technical accuracy. The General Manager, Corporate Affairs, being the delegate, may then inform the airport operator that the ANEF has been assessed as ready for endorsement for technical accuracy.

1. As can be seen from the above evidence, in undertaking the technical endorsement review procedure for the proposed ANEF, AA, amongst other things, checked that the sources of data relied upon for the purposes of the ANEF were attributed to an appropriate and relevant source.  It considered whether the runway usage used as input to the model was operationally suitable and that the forecast numbers of aircraft operations were no greater than the capacity of the airport.  It also considered whether the FAA-INM had been run correctly.

   Conclusion

2. Significance must be attributed to the fact that the Ministerial direction does not require AA to prepare Australian Noise Exposure Indices/Forecasts for all Australian airports; it requires AA to assume responsibility for endorsing indices or forecasts prepared by others. The Ministerial direction does not specify how AA is to perform this activity. On the view that I take, the manner in which ANEFs for airports are to be endorsed for the purposes of the Airports Act awaits the approval of the Minister administering that Act (see [63] above). If I am wrong in this regard, it is appropriate, in my view, to conclude that the Minister was content to leave responsibility for this matter with the Board of AA which has the function of ensuring that AA performs its functions in a proper, efficient and effective way.

3. Of course, for AA to perform its functions in a proper manner it must perform them as required by s 9(2) of the Air Services Act. However, s 9(2) recognises the limits of practicability. In the circumstances that AA has been directed to endorse, but not to formulate, Australian Noise Exposure Indices/Forecasts, Village has not demonstrated that the endorsement procedure of which Mr Owen gave evidence was inadequate to satisfy the requirements of s 9(2).

4. For the above reasons I conclude that it has not been established that if AA endorses the draft ANEF under the Air Services Act it will have acted inconsistently with the requirements of s 9(2) of that Act.

   ISSUE 3

   Whether the draft ANEF is incapable of being endorsed by AA pursuant to the Air Services Act because it does not relate to a 20 year “planning period” as referred to in s 72 of the Airports Act

5. Village contended that AA is precluded from endorsing the draft ANEF because it is not limited to the 20 year planning period referred to in s 72 of the Airports Act (see [46] above). This contention was based on the premise that an ANEF endorsed under the Air Services Act in the performance by AA of the function identified in s 8(1)(d) of the Act is an ANEF endorsed in the manner approved by the Minister within the meaning of s 5 of the Airports Act. For the reasons given above under Issue 1, this is, in my view, a false premise. No other basis was advanced for Village’s contention that AA is precluded from endorsing an ANEF not limited to a 20 year period.

6. However, as this issue has been considered by both the primary judge and Moore J, it may be of value for me to express the following views.

7. Canberra Airport is no longer a joint‑user airport (see reg 1.04 of the Airports Regulations 1997 (Cth)).  Section 71(2)(d) thus requires a draft or final master plan for the Canberra Airport to specify “an Australian Noise Exposure Forecast (in accordance with the regulations, if any, made for the purpose of [par 71(2)(d)]) for the areas surrounding the airport”. It appears that no regulations have been made for the purpose of s 71(2)(d). No party contended that s 71(2)(d) discloses a legislative intention to use the expression Australian Noise Exposure Forecast other than in accordance with its defined meaning. Consequently, s 71(2)(d) requires a draft or final master plan for the Canberra Airport to specify an ANEF endorsed in the manner approved by the Minister.

8. Section 71(4) authorises the making of regulations that, amongst other things, provide that a forecast or other matter specified by s 71(2) may relate to one or more of the following:

   (a)the whole of the planning period of the plan;

   (b)one or more specified 5 year periods that are included in the planning period of the plan;

   (c)subject to any specified conditions, a specified period that is longer than the planning period of the plan.

9. The Explanatory Memorandum for the Bill that, when enacted, became the Amendment Act, reveals that para 71(4)(c) was enacted primarily to allow for a draft or final master plan to include Australian Noise Exposure Forecast information that extends beyond the 20 year planning period, enabling State and Territory land use planning agencies to implement long-term planning goals that are compatible with an airport’s proposed long term aeronautical operation (Airports Amendment Bill 2006, Explanatory Memorandum, note 37 of the notes on clauses). It appears that no regulation relevant to the issue presently under consideration has been made in reliance on s 71(4).

10. As mentioned above, s 71(2)(d) requires the specification of an ANEF endorsed in the manner approved by the Minister. For the reasons set out above (see [53]-[62]) I have concluded that this means an ANEF endorsed in the manner approved by the Minister in the Minister’s capacity as the Minister administering s 5 of the Airports Act. As noted above, the Minister has not as yet approved a manner of endorsement in this, or as it seems to me, any capacity. For this reason it is, in my view, presently impossible for the requirement of s 71(2)(d) to be met. I conclude that it is appropriate to assume that the Minister will act promptly to rectify this situation.

11. The question of whether an implication should be identified in the Act that, absent any regulation made in reliance on s 71(4), an ANEF endorsed in a manner approved by the Minister must relate to the whole of the planning period of the plan, and additionally may not relate to any longer period, is in the above circumstances moot. It should, in my view, be left to be answered in the context of factual circumstances that call for its determination.

    ISSUE 4

    Whether the draft ANEF is incapable of being endorsed by AA because it is not a “forecast”

12. As mentioned above, the Ministerial direction, which was given pursuant to s 16(1) of the Air Services Act, requires AA to be responsible for endorsing Australian Noise Exposure Indices/Forecasts for all Australian airports. Village submitted that an ANEF is a document that must conform with the definition section of the Australian Standard.

13. The relevant Australian Standard, as I understand it, is “AS 2021-2000 Acoustics – Aircraft noise intrusion – Building siting and construction” published by the Council of Standards Australia on 10 August 2000 (“the Standard”).  Paragraph 1.5 of the Standard is headed “Definitions”.  Subparagraph 1.5.6 reads:

    1.5.6    Australian Noise Exposure Forecast (ANEF)

    A single number index for predicting the cumulative exposure to aircraft noise in communities near aerodromes during a specified time period (normally one year).

    NOTE: The computation of this index includes‑

    (a)measurements of aircraft noise (expressed in Effective Perceived Noise Decibels, EPNdB), which take account of the spectral, temporal and spatial aspects of the noise;

    (b)estimates and generalizations of aircraft type grounds and mix, number of operations, runway utilization, flight paths and operational procedures; and

    (c)time of day, i.e. whether daytime (0700 hours to 1900 hours) or evening/night-time (1900 hours to 0700 hours)

    This simple number index is useful for rating the compatibility of various land uses with respect to aircraft noise.  For this purpose, equivalent ANEF values at individual positions around an aerodrome are combined on a map to form ANEF contours. (See Appendix A for a description of the ANEF system and the method for its determination.)

14. Appendix A to the Standard provides information concerning the “Australian noise exposure forecast system”.  It describes three different types of aircraft noise contour charts produced using the ANEF system.  The description of an ANEF is in the following terms:

    ANEF – Australian Noise Exposure Forecast

    This is a contour map showing the forecast of noise exposure levels that will exist in a future year. It may be for a particular year, generally about 10 years from the date of issue, or in the case of some of the busier civil airports, it may represent the airport operating at ‘ultimate capacity’. It is based on a firm forecast of aircraft movement numbers and operating times, aircraft types, destinations, flight paths and a given use of runways at the aerodrome.

    The ANEF chart is the only one of the three types of chart which is intended to have status in land-use planning decisions. It will have been subjected to review by relevant authorities before release, and the chart will display the official endorsement of AirServices Australia or the Department of Defence. Only one ANEF chart for a given aerodrome can be current at any one time. A more recently endorsed chart supersedes an earlier chart.

15. It is plain that, unless incorporated therein by reference, a definition or description of a term contained in an Australian Standard cannot dictate the meaning of a term used in legislation.  Nonetheless, there may be circumstances in which the content of documents such as the Standard may throw light on the meaning of a technical term or expression.  The evidence indicates, as it seems to me, that “Australian Noise Exposure Forecast” is a technical expression.

16. In contending that the draft ANEF is incapable of being endorsed because it is not a “forecast”, Village placed reliance on what it contended, by reference to the Oxford English Dictionary, 2^nd Ed, Vol 14, was the natural or ordinary meaning of “forecast”. That meaning is “a conjectural estimate or account, based on present indications, of the course of events or things stated in the future”. Village placed particular emphasis on the words “based on present indications”. It claimed that the draft ANEF is not based on present indications of likely future noise exposure levels in the vicinity of the Canberra Airport. Rather, it claimed, the draft ANEF is based on a hypothetical maximum capacity for the Canberra Airport without any future temporal reference. Village submitted that the draft ANEF is thus not a “forecast” and therefore not an ANEF within the meaning of either the Air Services Act or the Airports Act.

17. Village called no evidence in support of the above submissions.  For this reason it could point to no evidence in support of its contention that the draft ANEF was not an ANEF within the technical meaning of that expression.

18. The only witness before the primary judge with qualifications in the relevant area of technical expertise was Mr Owen.  Mr Owen accepted that the draft ANEF was an ANEF.  He was not challenged in this, or indeed any, regard.  It would therefore appear reasonable to conclude, and I do conclude, that the draft ANEF was an ANEF within the technical meaning of that expression.

19. The primary judge was, in my view, correct to conclude that the draft ANEF is not incapable of being endorsed as an ANEF – albeit that it will not thereby become an ANEF within the meaning of the Airports Act.

    ISSUE 5

    Whether AA is under a duty to accord procedural fairness to Village before endorsing the draft ANEF and, if so, whether it has breached that duty in a way which would justify a grant of relief in favour of Village

20. Village contended that AA was under an obligation to notify it of the basis upon which it proposed to endorse the draft ANEF; that is, what matters AA was taking into account including the consideration given by AA to the number of predicted aircraft movements and how the modelling of contours had been achieved.  It may be assumed that Village wished to be notified of those things so that it would be heard in relation to them.

21. Village’s concern that enforcement of the draft ANEF will adversely affect its ability to exploit the Land arises from the terms of Direction No 12 issued to all councils by the New South Wales Minister for Planning under s 117 of the Environmental Planning and Assessment Act 1979 (NSW). Direction No 12 applies when a council prepares a draft local environmental plan that creates, removes or alters a zone or a provision relating to land subject to noise from a licensed aerodrome. Direction No 12 relevantly states:

    (1)In the preparation of a draft Local Environmental Plan affecting land in the vicinity of a licensed aerodrome, the council shall:

    (a)consult with the Department of the Commonwealth responsible for aerodromes and the lessee of the aerodrome,

    …

    (2)Draft Local Environmental Plans shall not rezone land:

    (a)for residential purposes, nor increase residential densities in areas where the Australian Noise Exposure Forecast (ANEF) as from time to time advised by that Department of the Commonwealth exceeds 25, or

    (b)for schools, hospitals, churches and theatres where the ANEF exceeds 20, or

    (c)for hotels, motels, offices or public buildings where the ANEF exceeds 30.

    (3)Draft Local Environmental Plans that rezone land:

    (a)for residential purposes or to increase residential densities in areas where the ANEF is between 20 and 25, or

    (b)for hotels, motels, offices or public buildings where the ANEF is between 25 and 30, or

    (c)for commercial or industrial purposes where the ANEF is above 30,

    shall include a provision to ensure that development meets AS 2021 regarding interior noise levels.

    (4)A draft LEP may be inconsistent with this direction only if council can satisfy the Director-General that any particular provision or area should be varied or excluded having regard to the provisions of section 5 of the Environmental Planning and Assessment Act, and

    (a)the land has been identified in a strategy prepared by the council and approved by the Director-General, or

    (b)the rezoning is justified by an environmental study, or

    (c)the rezoning is in accordance with the relevant Regional Strategy prepared by the Department, or

    (d)the rezoning is, in the opinion of the Director-General, of a minor significance.

    (5)For the purposes of (4)(b), an environmental study has the same meaning as in s 57 of the Environmental Planning and Assessment Act.

22. The evidence shows that by a letter dated 18 April 2007 Village’s solicitors wrote to AA’s Chief Executive Officer asserting that it was clear that Village’s interests would be adversely affected by AA’s endorsing the draft ANEF.  The letter further advanced arguments as to what AA was required to do before it could endorse the draft ANEF.  The letter asked AA to acknowledge that it was required to do those things and also to acknowledge that Village was entitled to be heard on those matters before any endorsement took place.

23. The solicitors for AA responded to the above letter by a letter dated 30 April 2007.  Their letter concluded in the following way:

    We are instructed that our client intends to follow its usual procedures in relation to the endorsement of the draft ANEF.  On this basis, if your client wishes to meet with Airservices Australia to discuss its processes please let us know.  In addition, if your client wishes to make any further submissions in relation to the process of endorsing ANEFs, our client will give them due consideration.

    Please contact us if you wish to arrange a mutually convenient time for our clients to discuss the process to endorse ANEFs or if you have any questions in relation to this letter.

24. There is no evidence that Village, or its solicitors, responded to the above letter or otherwise took up the offer to meet with AA to discuss its processes or to make further submissions in relation to the process of endorsing ANEFs.  In the circumstances, even if it be assumed that Village had an entitlement to be heard before AA endorsed the draft ANEF, Village is unable to show that it was denied that entitlement.

25. However, it is, I consider, plain that Village’s interest in the decision of AA to endorse the draft ANEF is insufficiently direct to give rise to any obligation to AA to afford it procedural fairness (Kioa v West (1955) 159 CLR 550 per Mason J at 584, Brennan J at 619 and Deane J at 632; Comptroller-General of Customs v Kawasaki Motors Pty Ltd (No 1) (1991) 32 FCR 219 per Hill and Heerey JJ at 238-241; Transport Action Group Against Motorways Inc v Road and Traffic Authority NSW (1999) 46 NSWLR 598 per Mason P, with whom in this regard Sheller JA agreed, at [88]-[102]). It is not just that Village’s interest is a financial interest of a kind likely to be shared by other landowners in the vicinity of the Canberra Airport. Village’s interest arises because of State planning regulations and is conditional upon the rezoning of the Land on the application of a third party, namely the local council. The mere fact that Village purchased its interest in the Land with the intention of developing it for residential purposes does not give Village a more direct interest in AA’s decision than other affected landowners.

26. Moreover, the application and content of the supposed duty of AA to afford procedural fairness depends, at least to a large extent, on the construction of the Air Services Act (Kioa v West per Mason J at 584). The subject matter, scope and purpose of that statute, while extending to the protection of the environment from the effects of the operation of aircraft, are far removed from private financial interests in land development. The carrying out by AA of its functions will not ordinarily affect individuals other than as members of the public or a class of the public. In particular, as mentioned above, in endorsing Australian Noise Exposure Indices/Forecasts for Australian airports, AA is carrying out an activity calculated to protect the environment from the effects of, and the effects associated with, the operation of Commonwealth jurisdiction aircraft in Australia. The nature and purpose of this activity strongly suggests against a legislative intention that an individual landholder should have a right to be heard in respect of the carrying out of the activity because it may indirectly by reason of the planning law of a State, impact on a private interest, or perhaps more accurately, a private expectation, of the landholder’s, namely the landholder’s ability to redevelop the land in the event of the land being rezoned.

27. I conclude that AA is not under a duty to accord procedural fairness to Village before endorsing the draft ANEF.

    CONCLUSION

28. I would dismiss the appeal with costs.

I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:        10 April 2008

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 37 OF 2007

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

THE VILLAGE BUILDING CO LIMITED ACN 056 509 025
Appellant

AND:

AIRSERVICES AUSTRALIA
First Respondent

CANBERRA INTERNATIONAL AIRPORT PTY LTD ACN 080 361 548
Second Respondent

JUDGES:	MOORE, BRANSON AND GRAHAM JJ
DATE:	10 APRIL 2008
PLACE:	CANBERRA

REASONS FOR JUDGMENT

GRAHAM J

1. This case concerns the anticipated endorsement by the first respondent of an Australian Noise Exposure Forecast for Canberra International Airport.

   Air Services Act

2. Airservices Australia (‘AA’), the first respondent, was empowered by the Air Services Act 1995 (Cth) (the ‘Air Services Act’) to exercise a number of functions. Relevantly for present purposes s 8(1) provided as follows:

   ‘8(1)    AA has the following functions:

   ….

   (d)carrying out activities to protect the environment from the effects of, and the effects associated with, the operation of:

   (i)Commonwealth jurisdiction aircraft, whether in or outside Australia; …

   …

   (i)any functions incidental to any of the above functions;

   …’

1. In Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Limited (1998) 194 CLR 247 (‘Bateman’s Bay’) the first respondent, the Aboriginal Community Benefit Fund Pty Ltd, operated a contributory funeral benefit fund business catering for members of the New South Wales Aboriginal community. The second respondent, the Aboriginal Community Benefit Fund No 2 Pty Ltd, operated a contributory life insurance business for members of the same community.

   The first appellant, the Bateman’s Bay Local Aboriginal Land Council, was a body corporate constituted under s 6 of the Aboriginal Land Rights Act 1983 (NSW). Its functions were set out in s 12(1) of that Act. The second appellant, the New South Wales Aboriginal Land Council, was a body corporate constituted under s 22 of the same Act. Its functions were set out in s 23(1) of that Act. There was no power permitting the second appellant to expend monies by providing a subsidy, guarantee or indemnity.

   By a deed of trust between the first appellant as trustee, the second appellant as guarantor and the State of New South Wales, the New South Wales Aboriginal Land Council’s Funeral Contribution Fund was established.  The second appellant provided an indemnity to the first appellant in respect of any liability the first appellant might suffer in connection with the New South Wales Aboriginal Land Council’s Funeral Contribution Fund.

2. The respondents instituted proceedings in the Supreme Court of New South Wales seeking an order restraining the appellants from carrying on the New South Wales Aboriginal Land Council’s Funeral Contribution Fund.  At first instance, McLelland CJ in Eq held that the respondents lacked standing to maintain the proceedings.  That decision was reversed on appeal to the New South Wales Court of Appeal.  The matter was remitted to McLelland CJ in Eq for hearing.  His Honour proceeded to make declarations and grant injunctions in the respondents’ favour.  The appellants proceeded to appeal against the decision of the Court of Appeal in respect of standing.  Special leave to appeal was granted on the condition that the appellants withdrew their appeal against McLelland CJ in Eq’s decision on the merits.  The High Court dismissed the appeal in respect of standing, with costs.

3. It held that the public interest in equity may be vindicated at the suit of a party with a sufficient material interest in the subject matter.

4. At [51]-[52], Gaudron, Gummow and Kirby JJ stated their conclusions as follows:

   ‘51 … the use of equitable remedies to ensure compliance by the executive and legislative branches of government with the requirements of the Constitution should not be overlooked. No doubt special considerations may apply in that context, but it would be an odd result if the requirements for standing outside the constitutional sphere were more stringent than within it. Prejudice to a sufficient material interest, such as that in the practice of a profession or occupation, will suffice in constitutional cases.

   52       Here, the respondents had an interest in the observance by the appellants of the statutory limitations upon their activities with respect to contributory funeral funds which, as a matter of practical reality, was immediate, significant and peculiar to them.  The primary judge found that because the parties would be operating in substantially the same limited market it was highly probable that, if not restrained from commencing and concluding their activities, the appellants would cause severe detriment to the business of the respondents.  That, in the circumstances of this litigation, gave the respondents a sufficient special interest to seek equitable relief.’

   (Footnotes omitted)

5. McHugh J also concluded that the appeal should be dismissed.  In his reasons he said at [83], [86] and [103]:

   ‘83      The enforcement of the public law of a community is part of the political process; it is one of the chief responsibilities of the executive government.  In most cases, it is for the executive government and not for the civil courts acting at the behest of disinterested private individuals to enforce the law.  There are sometimes very good reasons why the public interest of a society is best served by not attempting to enforce a particular law.  To enforce a law at a particular time or in particular circumstances may result in the undermining of the authority of the executive government or the courts of justice.  In extreme cases, to enforce it may lead to civil unrest and bloodshed.
   …

   86       The decision when and in what circumstances to enforce public law frequently calls for a fine judgment as to what the public interest truly requires.  It is a decision that is arguably best made by the Attorney-General who must answer to the people, rather than by unelected judges expanding the doctrine of standing to overcome what they see as a failure of the political process to ensure that the law is enforced …
   …

   103      As Australian Conservation Foundation and Onus show, a special interest in the subject matter of the proceedings is sufficient to give standing in a case such as the present.  The subject matter of this suit is the legality of the Councils' arrangements setting up the State Fund.  The respondents had a special interest in that subject.  The allegedly unlawful activities of the appellant affected them financially and to an extent that exceeded the injury to any other individual.  Moreover, if the arrangement between the appellants was illegal, the continuing financial injury to the respondents, caused by the arrangement, would be remedied by a grant of the injunction they sought.’

   Procedural Fairness

6. It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it. 

7. The reference to ‘legitimate expectation’ makes it clear that the doctrine applies in circumstances where the order will not result in the deprivation of a legal right or interest.  Take for example, an application for renewal of a licence where the applicant, though he has no legal right or interest, may nevertheless have a legitimate expectation which will attract the rules of natural justice.  The expectation may be based on some statement or undertaking on the part of the authority that makes the relevant decision (per Mason J in Kioa v West (1985) 159 CLR 550 (‘Kioa v West’) at 582-583).

8. A failure to observe an expectation reasonably attributable to a party such as the appellant does not reasonably (perhaps better expressed as ‘necessarily’) found a case of denial of natural justice.  The notion of legitimate expectation serves only to focus attention on the content of the requirement of natural justice in the particular case.  The ends sought to be attained by the requirement of natural justice may be variously identified.  The concern is with the fairness of the procedure adopted rather than the fairness of the outcome.  It is with the decision-making process, not the decision (per McHugh and Gummow JJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 (‘Lam’) at [105]).

9. On no view can the doctrine of ‘legitimate expectation’ give rise to substantive rights rather than to procedural rights (per Callinan J in Lam at [148]; see also per Gleeson CJ at [28]).

10. The duty to act fairly, in the sense of according procedural fairness, 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 impost 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 (per Mason J in Kioa v West at 584. See also per Jacobs J in Salemi v MacKellar [No. 2] (1977) 137 CLR 396 (‘Salemi [No. 2]’) at 452).

11. If a power is apt to affect the interests of an individual in a way that is substantially different from the way in which it is apt to affect the interests of the public at large, the repository of the power will ordinarily be bound or entitled to have regard to the interests of the individual before he exercises the power.  No doubt the matters to which the repository is bound or is entitled to have regard depend on the terms of the particular statute and, if there be no positive indications in its text, the subject-matter, scope and purpose of the statute must be looked at to determine whether the repository is bound or is entitled to have regard to individual interests (per Brennan J in Kioa v West at 619).

12. Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests.  That entitlement extends to the right to rebut or qualify by further information and comment by way of submission upon adverse material from other sources which is put before the decision-maker (per Northrop, Miles and French JJ in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (‘Alphaone’) at 591-2).

13. A person likely to be affected by an administrative decision to which requirements of procedural fairness apply can support his or her case by providing appropriate information but cannot complain if it is not accepted (per Northrop, Miles and French JJ in Alphaone at 591).

14. A general duty to accord procedural fairness in executive decision-making may arise at common law but may be excluded as a matter of statutory construction.  Such a right may also arise as a matter of positive statutory implication.  The requirement for procedural fairness is part of the background of judicial decision-making against which the legislative process is undertaken.  The implication can be made in the ordinary course and may be defeated by a contrary intention expressly stated or otherwise discernable as a matter of proper implication (per Northrop, Miles and French JJ in Alphaone at 589-590).

15. Natural justice and fairness are to be equated.  In the context of administrative decision-making it is more appropriate to speak of a duty to act fairly or to accord procedural fairness (per Mason J in Kioa v West at 583).

16. The expression ‘procedural fairness’ more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case.  The statutory power must be exercised fairly i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as a legitimate consideration (per Mason J in Kioa v West at 585 cf Salemi [No. 2] at 451 per Jacobs J).

17. In most cases the critical question is not whether the principles of natural justice apply.  It is:  what does the duty to act fairly require in the circumstances of the particular case?  (see per Kitto J in Mobil Oil Australia Proprietary Limited v The Commissioner of Taxation (1963) 113 CLR 475 at 504 and per Mason J in Kioa v West at 585).

18. The content of the requirement for procedural fairness may fluctuate during the course of particular administrative decision-making (per Gaudron and Gummow JJ in Re Refugee Review Tribunal; Ex parte AALA (2000) 204 CLR 82 (‘AALA’) at [62]; see also per McHugh and Gummow JJ in Lam at [48]).

19. Fairness is not an abstract concept.  It is essentially practical.  Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice (per Gleeson CJ in Lam at [37]).

20. If, in making a decision, a decision-maker is obliged to act with procedural fairness, the decision-maker must give a sufficient opportunity to those directly affected by the decision to present material and argument before the decision is made (per Hayne J in Lam at [114]).

21. An intention to exclude the rules of natural justice must be clearly evident in the express words of a statute.  Such an intention cannot be gleaned from ‘indirect references’, ‘uncertain inferences’ or ‘equivocal considerations’ (per McHugh J in Johns v Australian Securities Commission (1993) 178 CLR 408 at 470).

    Consideration

22. Before embarking on a consideration of the issues raised on the hearing of the appeal and the grounds of appeal it is appropriate to address the appellant’s standing and rights, if any, to procedural fairness.

23. In my opinion, the appellant lacks standing to claim the relief sought in the application.  True it is, that a declaration that the draft ANEF is incapable of lawful endorsement or that a lawful endorsement of it may not be given without all the assumptions upon which it was based being assessed for accuracy and validity, may profit the appellant if, in the absence of an endorsed ANEF chart, the New South Wales planning authorities see fit to rezone parts of Tralee North and Tralee South as Residential 2(d) or Residential 2(e).  However, there would be no direct correlation between the one and the other.  Such a declaration may simply create a window of opportunity for what might otherwise be an impermissible rezoning to slip through.

24. The rule requiring an applicant, seeking to secure compliance with a public duty, to have a special or sufficient material interest in the subject matter for determination in a proceeding, for that applicant to have standing, has not, in my opinion, been satisfied in this case.  I accept the submissions of AA and of the second respondent that the interest of the appellant was no greater than that of any member of the public owning land in the vicinity of the airport.  The appellant had nothing other than a hope that the land in which it had an interest and which was zoned Rural, would be rezoned in part as Residential under a Local Environmental Plan made under State planning legislation.

25. The present case may be distinguished from Truth About Motorways where the High Court held, inter alia, that s 163A of the Trade Practices Act 1974 (Cth) (the ‘Trade Practices Act’) was valid insofar as it purported to confer standing to obtain declaratory and other relief on an applicant who, in that case, was a company which did not claim any special interest in the subject matter of the dispute. It did not claim that it had suffered any loss or damage by reason of the respondent’s conduct.

    The High Court held that s 163A of the Trade Practices Act, which allowed ‘a person’ to institute proceedings seeking declaratory relief in relation to the operation or effect of, relevantly, the provisions of Part V of the Trade Practices Act, was constitutionally valid and that ‘a person’ included a person who had neither a direct nor a special interest in the subject matter of the proceedings.

    No such comparable provision was contained in the Air Services Act.

26. The appellant, in this case, did not have a legitimate expectation of a benefit entitling it to procedural fairness. The discharge by AA of its functions of carrying out activities to protect the environment from the effects of, and the effects associated with, the operation of Commonwealth jurisdiction aircraft and performing its functions under s 8(1) of the Air Services Act in a manner that ensured that, as far as practicable, the environment was protected from the effects of the operation and use of aircraft and the effects associated with the operation and use of aircraft, including its responsibility for endorsing Australian Noise Exposure Indices/Forecasts for all Australian airports, did not, in my opinion, attract a requirement for the appellant, as a co-owner of certain land in the area surrounding Canberra International Airport, to be accorded procedural fairness by AA in relation to the endorsement process. Any endorsement by AA of the draft ANEF for Canberra International Airport would not directly affect the appellant individually, but simply as a member of a class of the public, that class being all landholders in the area surrounding Canberra International Airport.

27. In any event, a reasonable opportunity to be heard in relation to the process to be employed for the anticipated endorsement of the ultimate capacity ANEF contour chart for Canberra International Airport was afforded to the appellant, so that it would be inappropriate to grant declaratory relief as sought in paragraph 2 of the application even if, contrary to my opinion, the appellant’s circumstances entitled it to be accorded procedural fairness.  Fairness did not, in the circumstances of this case, require any more than was offered to the appellant by AA’s solicitors’ letter to the appellant’s solicitors of 30 April 2007.

28. Whilst it is not strictly necessary to do so, I now turn to the question of whether the draft Australian Noise Exposure Forecast for Canberra International Airport was a ‘forecast’. Was it based on mere speculation as the appellant has submitted? In relation to this issue, I agree with the observations of the primary judge especially as recorded at [162]-[163] above (see also Note 1 to Table 2.1 in AS 2021-2000 at [113] above, Note (b) to clause 1.5.6 of AS 2021-2000 at [114] above and paragraph 2(a) of the Guidelines at [117] above).

29. The draft ANEF was an ‘ultimate capacity’ ANEF contour chart.  It recognised that there were 24 hours in a day, that there would be a minimal number of aircraft movements between midnight and 5.00 am, that during the day, different operations and aircraft types necessitated the consideration of seven different time periods, which were later subjected to a weighted average, that allowance had to be made for aircraft separation, that it was realistic to take into consideration 24 different fixed wing aircraft types and two helicopter types, that some of the services provided by the aircraft would be Regular International Public Transport Jet Services, some would be Regular Domestic Public Transport Jet Services, some would be Regular Regional Non-Jet Public Transport Services, some would be Freight Operations, some would be corporate aviation services, some general aviation services, some military aircraft operations, including VIP operations, some helicopter operations and some training activities.

    It is unnecessary to recount the immense detail into which the Rehbein AOS Airport Consulting report descended.

30. The report of 28 May 2007 included matters of projection which were incapable of objective verification.  They were simply forecasts.  For example, under the heading ‘6.0 AIRCRAFT MOVEMENTS’ the report included:

    ‘Future domestic operations are forecast to include long haul destinations such as Darwin, Cairns and Townsville and an increased frequency of services to Perth.  Direct services are also forecast to Alice Springs, the Sunshine Coast, Avalon, Hobart and Launceston.  These have been modelled primarily as the B737-800 and A320 which are expected to dominate Australian domestic airline fleets.  The continued peak hourly growth Sydney/Melbourne traffic will justify occasional operations by larger aircraft as well as frequent shuttle-type operations throughout the day.’

1. I cannot accept that the inclusion of forecasts such as these in the draft ANEF allow a finding that it was not a ‘forecast’ at all and was based on mere speculation.

2. Of necessity, circumstances will change over time such that an appropriately endorsed ultimate capacity ANEF for an airport will itself be superseded.  As AS 2021-2000 indicates ‘A more recently endorsed chart supersedes an earlier chart’ and AA Guidelines published on 1 July 2005 make it clear that ANEFs ‘are regarded as being valid for a period of five years at which time they should be replaced’.  Apart from other considerations, it is self evident that aircraft types will change, newer engines may generate less noise, the mix of aircraft types using an airport will change and so on.

3. The function of endorsing Australian Noise Exposure Forecasts is not to convert a third party’s forecast into an AA forecast.

4. It should not be overlooked that the Ministerial Direction contained a direction that AA carry out the relevant activities in accordance with government policy as determined from time to time. That policy would appear to be reflected in part in the ‘agreed understanding’ forwarded to AA by the Department on 18 August 1999 which included, in respect of AA’s responsibility for endorsing Australian Noise Exposure Indices/Forecasts for all Australian airports, ‘The formal endorsement of ANEF/ANEI for technical accuracy, a requirement of Australian Standard AS2021, will continue.’

5. I cannot accept the appellant’s submission, in respect of the generation of the draft ANEF contour chart by the superimposition of the three ANEC contour maps produced during the consideration of options for the airport, set out at [123] above, that the superimposition required additional aircraft movements to be taken into account above and beyond the total runway capacity of the airport.

6. Under the heading ‘9.0 RUNWAY MOVEMENT TABLES’ the Rehbein AOS Airport Consulting report of 28 May 2007 said:

   ‘Aircraft have been allocated to specific arrival and departure tracks in accordance with established principles confirmed in discussions between Capital Airport Group, Canberra ATC [Air Traffic Control] Tower Manager (Peter Romeis) and Airservices Australia Canberra Approach Sector Manager, Melbourne Centre (Bill Phelan).

   The track allocation principles applied to RPT and Freight operations are detailed in Tables 15, 16, 17 and 18.  These constitute the majority of aircraft movements on runway 17/35.  The application of these track allocation principles is demonstrated by reference to the sample listing of possible origins and destinations provided earlier in Table 6.
   …

   Runway utilisation for the runway 35 preferred scenarios was determined from Airservices NFPMS data for calendar year 2005 – the last full year results available on commencement of the INM study.  Utilisation adopted in the runway 17 preferred was determined from the Canberra International Airport Meteorological Analysis after validating the calculated runway 35 usability against recorded 2005 NFPMS data, as detailed in Annex 3.’

7. Plainly, meteorological conditions will not permit the use of the 17/35 runway exclusively in the northerly (350^o) direction at all times.  This was recognised in the report under the heading ‘1.0 INTRODUCTION’ as follows:

   ‘The theoretical runway utilisation has been established for each runway direction by an analysis of meteorological data which considered wind speed and direction coupled with visibility/cloudbase criteria applicable to both non-precision and precision approaches.  This report, Canberra International Airport:  Meteorological Analysis, is included as Annex 2.

   Observed differences in theoretical and practical usability of runway 35 suggest that ATC is not always able to adopt the runway direction most favoured by meteorological considerations.  This has been taken into account by applying a lower percentage than indicated in the meteorological analysis in modelling the runway 17 operations.  The practical, as opposed to theoretical runway utilisation, is derived in a further analysis of the meteorological report which is included as Annex 3.’

8. The report took into account Global Positioning System-based Required Navigational approach/departure Procedures which had recently been introduced for Qantas operations.  It noted that those procedures were to be progressively adopted by Virgin Blue in 2007 and that it was expected that the RAAF VIP squadron and additional aircraft operators providing future services to Canberra would also utilise that technology.  The Report then continued:

   ‘A future RNP [Required Navigation Procedures] approach has been modelled for ultimate capacity operations to provide a 15° offset approach to runway 35 for long haul domestic/international aircraft.  The current RNP approaches have shown this is feasible and Capital Airport Group expects the additional arrival track to be adopted as a further noise abatement measure.  It will also reduce track miles – and associated fuel consumption and greenhouse emissions – for aircraft arrivals from the south or west (Adelaide, Perth, Southern or South-east Asia or the Middle East) or from the north after tracking around the Canberra Noise Abatement Area (Cairns, Darwin or Northern Asia).

   A reverse operating mode has also been considered as this has been shown feasible once GPS-based precision approaches are possible from the north using GBAS technology which is currently being proven by Airservices Australia.  A 3° offset precision approach has been agreed by the former Head of CASA’s Airspace and Aerodrome Standards Branch as compliant with ICAO design requirements.   The existing 17 RNP approach already greatly enhances procedures for arrivals from the north.

   RNP departures are also modelled and it has been assumed that these will continue to be based on the existing standard instrument departures.

   The predominant use of precision approaches and RNP approaches and departures will provide sufficient tracking accuracy to allow the use of single vector tracks in modelling except for general aviation and a portion of corporate aircraft movements.’

9. The report clearly indicated that a 15° offset approach track to runway 35 was considered to be feasible and there was an expectation that it would be adopted as a noise abatement measure.

10. To develop an ultimate capacity noise exposure forecast for Canberra International Airport, it seems to me to have been reasonable to have contemplated a transitional development from the currently preferred runway 35 operating mode and route/track structure, including RNP approaches/departures, to the preferred runway 35 operating mode with both the current RNP approaches/departures and the additional 15° offset RNP track for long haul domestic/international arrivals.

    A comparison of Tables 19 and 20 in the Report with Tables 21 and 22 make it clear that ultimate capacity has been determined by reference to 446 day time aircraft movements and 335 night time aircraft movements.  The significant difference is an anticipated use by Boeing 737, 747, 757 and 777 aircraft and Airbus A320, A330 and A340 aircraft of an arrival track to Runway 35 identified as JET 35A7 in lieu of arrival tracks JET 35A1, JET 35A2, JET 35A3 and JET 35A4. 

    As the transition or development, in respect of approach tracks occurs, the ANEF contour map will inevitably change.  This seems to me to be clearly and appropriately recorded in the draft ultimate capacity ANEF chart of which endorsement by AA is sought and which was derived by the superimposition of the three different contour maps.

    As has already been observed, the appellant’s argument in relation to superimposition was not put to the primary judge and there was no suggestion put to Mr Owen, as one might have expected, that an efficacious ANEF contour map or chart could not be derived from the superimposition of the three separate and different ANEC contour maps (see Browne v Dunn (1893) VI The Reports 67).

11. The superimposition did not require additional aircraft movements beyond the capacity of the runways to be taken into account.  Clearly, on different days, in different meteorological conditions, runway usage will vary.  Likewise, approach tracks may change.  For an ultimate capacity ANEF to be of value to those who are concerned with the siting and construction of buildings within 15 km of an international or major domestic airport, it would be of little comfort to learn that aircraft noise levels will be tolerable in a particular location so long as aircraft use the currently preferred approach tracks.  If, by the time that ultimate capacity is achieved, aircraft are employing different preferred approach tracks, noise levels at the relevant location which is of concern may be dramatically increased.

    To that end the draft ANEF for Canberra International Airport which is, after all, only a forecast, has been derived in a way which will provide useful ANEF contours for those who are contemplating or concerned with the construction of buildings in the areas surrounding the airport.  As was explained in AS 2021-2000 an Australian Noise Exposure Forecast is based on a firm forecast of aircraft movement numbers and operating times, aircraft types, destinations, flight paths and a given use of runways. 

    It may well transpire that, by the time that ‘ultimate capacity’ is achieved at Canberra International Airport, all the current aircraft types on which the draft ANEF is based will have ceased to operate.  The next generation of commercial aircraft could, for all one knows, be vertical takeoff and landing aircraft, perhaps even with different methods of propulsion.

12. Given that Mr Owen was not cross-examined to suggest that the expansion of the aircraft parking aprons and/or the passenger terminal could not be achieved to meet the needs of Canberra International Airport with the runways operating at ‘ultimate capacity’, I reject the appellant’s submission that the draft ANEF was nothing more than a forecast for the runways rather than for the airport itself.

13. It follows that the draft ANEF was an Australian Noise Exposure Forecast in accordance with AS 2021 or, more accurately, the ANEF system referred to in AS 2021, and within the AA ‘Guidelines for the production of noise contours for Australian airports’.

14. The Ministerial Direction conferred responsibility for endorsing Australian Noise Exposure Indices/Forecasts for all Australian airports on AA. The responsibility was conferred in the context of a prevailing Australian Standard AS 2021-1994 and the existence of the revised Noise Exposure Forecast (NEF) technique first developed in the United States of America in the late 1960s and revised by the Department of Aviation in Australia to become the ANEF system.

15. Whilst s 9(2) of the Air Services Act required AA to perform its functions in a manner that ensured, as far as was practicable, the environment, which I would understand to mean the built or potentially built environment, was protected from the effects of the operation and use of aircraft and the effects associated with the operation and use of aircraft, it seems to me that both the Ministerial Direction and the section were silent on the manner of endorsement of Australian Noise Exposure Indices and Forecasts to be employed by AA.  That was a matter left to AA’s discretion. 

16. Insofar as the ‘agreed understanding’ of 18 August 1999 recorded ‘government policy’ within the meaning of paragraph (xiii) of the Schedule to the Ministerial Direction, it seems clear that AA’s responsibility for endorsing Australian Noise Exposure Indices and Forecasts under paragraph (x) of the Schedule was capable of being satisfied by ‘formal endorsement … for technical accuracy’ and that is just what AA was prepared to provide in accordance with ‘Procedure 2’ as set out in paragraph 4 of AA’s published ‘Guidelines for the Production of Noise Contours for Australian Airports’ of 1 July 2005.

17. The relevant technical and administrative checks as detailed in paragraph 4 of the Guidelines were repeated and amplified by Mr Owen in paragraph 36 of his affidavit declared 27 June 2007.  No suggestion was put to him that the relevant checks were inappropriate or that they were not performed or that the checks revealed flaws in the draft ANEF.  I am satisfied that the draft ANEF was an Australian Noise Exposure Forecast in accordance with AS 2021 and also the Guidelines.

18. Not only did the Ministerial Direction not specify a ‘manner’ of endorsement of Australian Noise Exposure Indices or Forecasts approved by the Minister administering the Air Services Act, but also no manner of endorsement of Australian Noise Exposure Forecasts has been approved by the Minister administering the Airports Act. In the circumstances, there could be no requirement that an ANEF relate to a planning period, for a draft or final master plan, of no more 20 years. In any event, an ‘ultimate capacity’ Australian Noise Exposure Forecast ‘may relate to’ the periods mentioned in s 71(4)(a) and (b) of the Airports Act and, if specified, a period contemplated by s 71(4)(c), also.

19. The Airports Act in no way regulated the discharge by AA of its responsibility for endorsing Australian Noise Exposure Indices and Forecasts under the Ministerial Direction given under s 16(1) of the Air Services Act.

20. The obligation upon an airport-lessee company, pursuant to s 78(2A) of the Airports Act, to give a draft replacement master plan for an airport to the Minister, is not triggered by the endorsement of an Australian Noise Exposure Forecast by AA in accordance with the Ministerial Direction under the Air Services Act. Section 78(2A) is only triggered by the endorsement of an Australian Noise Exposure Forecast in the manner approved by the Minister administering the Airports Act, and, as previously observed, no such manner has been approved.

21. In my opinion the appeal should be dismissed with costs.  No ground of appeal has been made good such as would lead to the appellant having an entitlement to the relief sought in the application or any of it.

I certify that the preceding one hundred and thirty-four (134) paragraphs numbered [101] to [234] are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

Associate:

Dated:        10 April 2008

Counsel for the Appellant:	A S Martin SC and G M Drew
Solicitor for the Appellant:	J S O'Connor Harris & Co
Counsel for the First Respondent:	Dr J E Griffiths SC and S J Free
Solicitor for the First Respondent:	Minter Ellison
Counsel for the Second Respondent:	L McCallum SC
Solicitor for the Second Respondent:	Mallesons Stephen Jaques
Date of Hearing:	29 October 2007
Date of Judgment:	10 April 2008