Wilson and Minister for Infrastructure, Transport, Regional Development and Local Government (Practice and procedure)
[2025] ARTA 716
•10 June 2025
Wilson and Minister for Infrastructure, Transport, Regional Development and Local Government (Practice and procedure) [2025] ARTA 716 (10 June 2025)
Applicants:Eric and Tracey Wilson
Respondent: Minister for Infrastructure, Transport, Regional Development and Local Government
Other Party: Australia Pacific Airports (Melbourne) Pty Ltd
Tribunal Numbers: 2024/7965
2024/9936
Tribunal:Deputy President P Britten-Jones
Place:Melbourne
Date:10 June 2025
Decision: Pursuant to s 101(1)(b) of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal dismisses the applications for review brought by the Applicants because they do not have standing to apply to the Tribunal for review of the decision to approve the major development plan made by the Minister on 10 September 2024.
................[SGD]........................................................
Deputy President P Britten-Jones
Catchwords
APPLICATION FOR DISMISSAL – question of standing – statutory interpretation of the phrase “a person whose interests are affected by a reviewable decision” in s 17(1) of the Administrative Review Tribunal Act 2024 (Cth)– whether approval decision of major development plan adversely affects Applicants’ interests – Airports Act 1996 (Cth) - finding that the Applicants do not have standing – applications for review are dismissed
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Airports Act 1996 (Cth)
Cases
Allan v Transurban City Link Ltd (2001) 208 CLR 167
Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd (1994) 49 FCR 250
Argos v Corbell (2014) 254 CLR 394; [2014] HCA 50
Brisbane Airport Corporation Ltd v Wright (2002) 120 FCR 157
Hicks and Minister for Infrastructure and Regional Development [2016] AATA 437
NCVC and Secretary, Department of Infrastructure, Transport, Regional Development and Communications [2020] AATA 2662United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520
Statement of Reasons
Eric and Tracey Wilson (the Applicants) live on a rural property about 55 kilometres north of the Melbourne Airport. They claim that the third runway proposed for the Melbourne Airport will adversely affect their interests. They have applied to the Tribunal for review of the decision by the Respondent Minister made on 10 September 2024 to approve the major development plan (the MDP) for the third runway (the Approval Decision) under the Airports Act 1996 (Cth) (the Airports Act).
Australia Pacific Airports (Melbourne) Pty Ltd (the Other Party or APAM) leases and operates the Melbourne Airport and proposes to construct the new north-south runway. It is the airport-lessee company within the meaning of the Airports Act. The Other Party and the Respondent say that the Applicants have no standing to review the Approval Decision.
The parties were directed to provide written submissions and any evidence to be relied upon for the purpose of determining the issue of standing. Oral submissions were heard on 5 May 2025. For the reasons that follow, I have determined that the Applicants do not have standing and that their applications for review should be dismissed.
Background, Evidence and Submissions
The Other Party has filed affidavits from Laura Brannigan, Head of Noise Amelioration Plan & Program at APAM, and from Joseph Gandy, Senior Manager Strategic Airport Planning & Innovation at APAM.
Laura Brannigan deposes in her affidavit[1] that:
(a)Her primary function at APAM has been to coordinate and collate delivery of the Melbourne Airport’s third runway MDP through the process defined in the Airports Act.
(b)The MDP contains assessments related to flight paths and aircraft noise based upon the Australian Noise Exposure Forecast (ANEF) model which is a key determinant for aircraft noise effects in communities. The Airports Act describes “significant ANEF levels” to mean “a noise above 30 ANEF levels”.
(c)APAM defined a geographical area for the scope of community consultation based upon conservative noise metrics. This area is used by APAM to define the extent of consultation reach for the project. The area encompasses almost 1 million households and approximately 2.7 million residents and is depicted on a plan within the MDP.
(d)Significant ANEF levels (30 ANEF) extend about 10 kilometres from the airport. 20 ANEF levels extend about 20 kilometres from the airport. The property owned and occupied by the Applicants is approximately 55 kilometres away from the airport and is therefore 45 kilometres outside areas associated with significant ANEF levels and is outside the area of consultation for the project. Their property is in a region that is overflown, but 80% of flights pass above at an altitude of 10,000 feet (the remainder not below 7,000 feet).
(e)APAM conducted a formal public exhibition period in accordance with s 92 of the Airports Act between February and May 2022, for consulting on both the preliminary draft master plan and the preliminary draft MDP.
[1] Affidavit of Laura Brannigan affirmed 4 April 2025 3 [10].
In his affidavit, Joseph Gandy reproduced maps from the MDP showing the location of the Applicants’ property compared to the airport.
The Applicants, through Eric Wilson, lodged an objection with APAM as part of the consultation process on 16 May 2022 stating that:
(a)they are affected by the proposal because their property where they live is in a rural conservation zone already subjected to noise from aircraft approaching Melbourne Airport;
(b)the proposed expansion is premature;
(c)the draft MDP does not address any environmental impact of increased aircraft noise or burnt fuel additives; and
(d)the community consultation process was inadequate.
On 14 November 2022, the Minister approved a draft master plan for Melbourne Airport.[2]
[2] T-Documents, T3 at 39 [6].
On 27 October 2024, the Minister provided written reasons for her decision made on 10 September 24 to approve the draft MDP.[3] Details of the process of public consultation were included in the reasons as follows:
[10] Between 1 February 2022 and 16 May 2022, APAM undertook public consultation on the dMDP in accordance with the requirements under section 92 of the Airports Act for a period of at least 60 business days.
[11] A copy of the written advice provided under subsection 92(1A) of the Act and a written certificate signed on behalf of APAM listing the names of those to whom the advice was given accompanied the dMDP, as required under subsection 92(1B) of the Act.
[12] On 10 February 2023, APAM gave me the dMDP for a decision as to whether I approve the plan or refuse to approve the plan.
[13] While the dMDP has been before me for consideration, there were a number of requests for further information under section 93A of the Act.
[14] In particular, I note that my delegate requested further information from APAM under section 93A of the Act...
[3] Ibid 40.
The Minister noted in her reasons that no aspect of the major airport development concerns a proposed sensitive development within the meaning of s 71A of the Airports Act.[4] In relation to the environment, the Minister noted that the draft MDP was referred to the Department of Climate Change, Energy, the Environment and Water who provided advice resulting in certain conditions being attached to the Approval Decision. The Minister was satisfied that the environmental impacts of carrying out the development could be managed by the imposition of these conditions. Further, the Minister noted that submissions were received from the public in relation to environmental impacts including aircraft noise and she was satisfied that APAM had carried out consultation as required under s 94(3)(d) of the Airports Act.[5]
[4] Ibid 43 [20].
[5] Ibid 49-50.
The Applicants lodged with the Tribunal written submissions as to standing dated 30 April 2025 which include claims as to how their interests are affected as follows:
(a)They have been deprived of a proper opportunity to comment because the processes for a master plan and a MDP have been rolled into one.
(b)They have a legitimate expectation that the environmental laws of Victoria will be observed by the Minister.
(c)They will suffer financial loss if the environment becomes permanently degraded by heavy jet air traffic since the special environmental values contribute to their land’s value.
(d)The effects of aircraft noise on the Applicants are greater than on ordinary members of the public because of large granite rock formations and boulders which do not absorb sound well.
(e)Their family income from the Weekaway Recreational Camp depends on the efficacy of the area’s special significance.
(f)Low altitude heavy jet aircraft traffic will upset the special sensitivities of their land.
The Applicants made oral submissions through Eric Wilson at the hearing including that:
(a)The Tribunal should follow the approach of the High Court in Argos v Corbell[6] instead of Brisbane Airport Corporation Ltd v Wright.[7]
(b)The relevant legislation is the Administrative Review Tribunal Act 2024 (Cth) (ART Act) at s 17(1). The only qualification to determine who has standing is whether the Applicants are persons whose interests are affected by the Approval Decision.
(c)Section 94(3)(c) of the Airports Act requires consideration of the environment.
(d)The Applicant’s property is different because it is in a rural conservation zone and is environmentally significant for its biodiversity.
(e)There will be more traffic and more noise due to the expected increase in the number of planes and the lowering of flight paths.
(f)Native wedge-tailed eagles will be impacted with a corresponding effect on the number of rabbits on their property.
(g)Part of the land is elevated to 600 metres above sea level and is therefore closer to the flight paths of the aircraft.
[6] (2014) 254 CLR 394; [2014] HCA 50 (‘Argos’).
[7] (2002) 120 FCR 157 (‘Brisbane Airport Corporation’).
Who may apply to the Tribunal?
Section 17(1) of the ART Act provides:
A person whose interests are affected by a reviewable decision may apply to the Tribunal for review of the decision.
It is not in dispute that the Minister’s decision to approve the MDP under s 94 of the Airports Act is a reviewable decision as defined by s 12 of the ART Act. The legislative instrument that provides for an application to be made to the Tribunal for review is the Airports Act which provides at s 242(1) that applications may be made to the Administrative Review Tribunal for review of decisions made by the Minister under the Airports Act. The section is silent as to who may bring an application, but s 242(3) says that if the Minister makes a decision and “gives to the person or persons whose interests are affected by the decision written notice of the making of the decision”, then that notice must advise of a right of review to the Tribunal.
The standing of a person to bring an application for review of a decision to the Tribunal will depend upon whether their interests are affected by the decision. The High Court considered the expression “affected by” in Allan v Transurban City Link Ltd:[8]
[15] The expression “affected by” and cognate terms appear in a range of laws of the Commonwealth. … It is necessary to answer the questions posed above in respect of s 119(1) of the Authority Act by reference to the subject, scope and purpose of that statute, rather than by the application of concepts derived from decisions under the general law respecting what has come to be known as “standing”. “Standing” is a metaphor to describe the interest required, apart from a cause of action as understood at common law, to obtain various common law, equitable and constitutional remedies.
[16] In Re McHattan and Collector of Customs (New South Wales), Brennan J stated that “[a]cross the pool of sundry interest, the ripples of affection may widely extend”. However, as Davies J pointed out in Alphapharm Pty Ltd v SmithKline Beecham (Australia) Pty Ltd, Brennan J “did not propose that any ripple of affection would be sufficient to support an interest”. A particular statute may establish a regime which specifically provides for its own measure of judicial review on the application of persons meeting criteria specified in that statute. The present case involves such a statute. The starting point, as indicated by several authorities in the Full Court of the Federal Court, is the construction of the Authority Act with regard to its subject, scope and purpose.
[17] Transurban correctly submitted that the phrase in s 119(1) of the Authority Act “who is affected by a reviewable decision” has an ambulatory operation. What serves to identify a person as one affected by a reviewable decision will vary having regard to the nature of the reviewable decision itself. There is a range of such decisions by the Authority.
(Footnotes omitted)
[8] (2001) 208 CLR 167 (‘Allan v Transurban’).
In the earlier case of Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd,[9] Davies J quoted from United States Tobacco Co v Minister for Consumer Affairs[10] where the Full Court said:[11]
The nature of the interest required in a particular case will be influenced by the subject matter and content of the decision under review.
[9] (1994) 49 FCR 250 (‘Alphapharm’).
[10] (1988) 20 FCR 520.
[11] Ibid at 529.
Davies J went on to say in Alphapharm:[12]
This must be so with respect to the phrase "interests are affected", when used in a statute which provides for the administrative review of an administrative decision. In such event, the review, which forms part of the process of administrative decision-making, is provided to promote the achievement of the objects of the statute. The term “aggrieved”, when used in the context of judicial review, may have a different connotation, for the object of judicial review is to ensure that the law is observed.
[12] Alphapharm (n 9) at 260B.
Gummow J in Alphapharm said:[13]
Like the expression “a person aggrieved”, the phrase “a person whose interests are affected by the decision” and cognate terms, appear in a variety of statutes as the identification of the persons who are given standing to seek administrative or judicial review. The day is long gone when there was any general presumption that in such statutes the “interests” concerned must be proprietary or even legal or equitable in nature, or that the affectation be of a nature as understood in private law. However, it is important not to draw from what was said in any particular decision by way of identification of that which did or did not amount to a sufficient affectation of an interest any general proposition which may be translated to the instant dispute. In each case, the content of the terms “affect” and “interest” are to be seen in the light of the scope and purpose of the particular statute in issue.
[13] Ibid 272C.
Subject, scope and purpose of the Airports Act
It is helpful at this stage of my reasons to introduce the decision of Brisbane Airport Corporation ,[14] in which Dowsett J considered the Airports Act in the context of a decision to approve a master plan for the Brisbane Airport. His Honour confirmed that in seeking to identify a person “whose interests are affected” by the decision, the starting point is a construction of the subject, scope and purpose of the Airports Act.[15]
[14] Brisbane Airport Corporation (n 7).
[15] Ibid 165 [28].
The objects of the Airports Act are expressed in s 3 as follows:
(a) to promote the sound development of civil aviation in Australia;
(b) to establish a system for the regulation of airports that has due regard to the interests of airport users and the general community;
(c) to promote the efficient and economic development and operation of airports;
(d) to facilitate the comparison of airport performance in a transparent manner;
(e) to ensure majority Australian ownership of airports;
(f) to limit the ownership of certain airports by airlines;
(g) to ensure diversity of ownership and control of certain major airports;
(h) to implement international obligations relating to airports.
The reasons of Dowsett J with respect to the objects of the Airports Act are apposite to a decision to approve a MDP:[16]
The “objects” of that Act. as set out in s 3, focus on the provision of airport services. Paragraph 3(b) refers to the interests of the “general community” but that seems to refer to collective, rather than individual interests. This is of some importance, given that the Airports Act assumes the continuing commercial operation by lessees of airports at existing locations. Inevitably, some, perhaps many people will be affected by the existing operation. They, and others, may be affected, favourably or otherwise, by any change in the mode of operation. In some cases, the effects of any change will be minor; in others, those effects will be extreme. It is of the nature of a major airport operation that it is likely to affect many people in varying degrees. A master plan is part of a business plan for an existing airport. It is not a town planning document.
[16] Ibid.
The point made by Dowsett J that a master plan is part of a business plan for an existing airport and is not a town planning document applies equally to a MDP.
Division 3 of Part 5 of the Airports Act provides for airport master plans and says in the simplified outline in s 69 as follows:
• For each airport, there is to be a final master plan.
• A final master plan is a draft master plan that has been approved by the Minister.
• A draft master plan is prepared by an airport-lessee company after taking into account public comments.
• A final master plan is relevant to the approval of major developments at the airport.
Division 4 of Part 5 of the Airports Act provides for MDPs and says in the simplified outline in s 88 as follows:
• A major development plan is required for each major development at an airport.
• A major development plan is prepared by the airport-lessee company taking into account public comments.
• Sensitive developments are prohibited, except in exceptional circumstances
Section 89 says that a major airport development includes constructing a new runway.
Section 90 says that a major airport development must not be carried out except in accordance with an approved MDP.
The purpose of a MDP is to establish the details of a major airport development that relates to the airport and is consistent with the airport lease and the final master plan for the airport: s 91(1A). This stated purpose may be compared and contrasted with the far more expansive purposes of the final master plan stated in s 70(2) which includes a purpose to ensure that uses of the airport site are compatible with the areas surrounding the airport: s 70(2)(d). This suggests that the initial airport master plan serves these broader purposes, which may give rise to a broader range of interests being affected, whereas the purpose of the MDP is narrower, namely, to ensure that major developments are consistent with the final master plan as already approved. This would inevitably result in a narrower range of interests being affected by a MDP. The narrow nature of a decision under s 94 was noted by the Tribunal in Hicks and Minister for Infrastructure and Regional Development,[17] in which the Deputy President accepted a submission that:
… the decision under review is really quite narrow. It relates only to developments at the airport …
[17] [2016] AATA 437 at [22] (‘Hicks’).
Section 91(1) says that a MDP must set out:
(a) the airport-lessee company's objectives for the development; and
(b) the airport-lessee company's assessment of the extent to which the future needs of civil aviation users of the airport, and other users of the airport, will be met by the development; and
(c) a detailed outline of the development; and
(ca) whether or not the development is consistent with the airport lease for the airport; and
(d) if a final master plan for the airport is in force--whether or not the development is consistent with the final master plan; and
(e) if the development could affect noise exposure levels at the airport--the effect that the development would be likely to have on those levels; and
(ea) if the development could affect flight paths at the airport--the effect that the development would be likely to have on those flight paths; and
(f) the airport - lessee company's plans, developed following consultations with the airlines that use the airport, local government bodies in the vicinity of the airport and--if the airport is a joint user airport--the Defence Department, for managing aircraft noise intrusion in areas forecast to be subject to exposure above the significant ANEF levels; and
(g) an outline of the approvals that the airport-lessee company, or any other person, has sought, is seeking or proposes to seek under Division 5 or Part 12 in respect of elements of the development; and
(ga) the likely effect of the proposed developments that are set out in the major development plan, or the draft of the major development plan, on:
(i) traffic flows at the airport and surrounding the airport; and
(ii) employment levels at the airport; and
(iii) the local and regional economy and community, including an analysis of how the proposed developments fit within the local planning schemes for commercial and retail development in the adjacent area; and
(h) the airport-lessee company's assessment of the environmental impacts that might reasonably be expected to be associated with the development; and
(j) the airport-lessee company's plans for dealing with the environmental impacts mentioned in paragraph (h) (including plans for ameliorating or preventing environmental impacts); and
(k) if the plan relates to a sensitive development--the exceptional circumstances that the airport-lessee company claims will justify the development of the sensitive development at the airport; and
(l) such other matters (if any) as are specified in the regulations.
The process for gaining approval for an MDP is much the same as gaining approval for an airport master plan. Section 92 says that before giving the Minister a draft major development plan, it must be made available to members of the public with an invitation to comment. Section 92(2) provides:
If members of the public … have given written comments about the draft version in accordance with the notice, the draft plan submitted to the Minister must be accompanied by:
(a) copies of those comments; and
(b) a written certificate signed on behalf of the company:
(i) listing the names of those members of the public; and
(ii) summarising those comments; and
(iii) demonstrating that the company has had due regard to those comments in preparing the draft plan; and
(iv) setting out such other information (if any) about those comments as is specified in the regulations.
Section 93 is entitled ‘Consultations’ and provides:
(1) This section applies if:
(a) an airport - lessee company gives the Minister a draft major development plan; and
(b) before the publication under section 92 of a notice about the plan, the company consulted (other than by giving an advice under subsection 92(1A)) a person covered by any of the following subparagraphs:
(i) a State government;
(ii) an authority of a State;
(iii) a local government body;
(iv) an airline or other user of the airport concerned;
(v) any other person.
(2) The draft major development plan submitted to the Minister must be accompanied by a written statement signed on behalf of the company:
(a) listing the names of the persons consulted; and
(b) summarising the views expressed by the persons consulted.
If an airport-lessee company gives the Minister a draft MDP, then s 94 provides:
(2) The Minister must:
(a) approve the plan; or
(b) refuse to approve the plan.
(3) In deciding whether to approve the plan, the Minister must have regard to the following matters:
(aa) the extent to which the plan achieves the purpose of a major development plan (see subsection 91(1A));
(a) the extent to which carrying out the plan would meet the future needs of civil aviation users of the airport, and other users of the airport, for services and facilities relating to the airport;
(b) the effect that carrying out the plan would be likely to have on the future operating capacity of the airport;
(c) the impact that carrying out the plan would be likely to have on the environment;
(d) the consultations undertaken in preparing the plan (including the outcome of the consultations);
(e) the views of the Civil Aviation Safety Authority and Airservices Australia, in so far as they relate to safety aspects and operational aspects of the plan;
…
(5) If a final master plan is in force for the airport, the Minister must not approve the draft major development plan unless it is consistent with the final master plan.
…
(8) As soon as practicable after deciding whether to approve the draft major development plan, the Minister must notify the company in writing of the decision.
(9) If the Minister refuses to approve the draft major development plan, the Minister must notify the company in writing of the Minister's reasons for the refusal.
…
Section 96 requires a MDP to be published.
I pause to note that ss 90 to 93 of the Airports Act impose obligations on APAM as the airport-lessee company which is required to prepare a MDP taking into account public comments. The obligations imposed upon APAM can be distinguished from the obligations imposed upon the Minister when deciding whether to approve or refuse the draft MDP under s 94. The High Court in Allan v Transurban[18] tells us that identifying a person as affected by a reviewable decision depends upon the nature of the reviewable decision itself. The nature of a decision to approve or refuse a MDP is derived from the terms of s 94 read in the context of the Airports Act, its general objects in s 3 and the stated purpose of a MDP in s 91(1A). The statutory provisions imposing obligations on APAM in ss 90 to 93 are distinct from the decision-making process which must be adhered to by the Minister under s 94. The obligations on APAM do not relate directly to the review process and therefore do not give rise to an interest which may be affected by a decision under the Airports Act.
[18] Allan v Transurban City Link (n 8) 174 [17].
In any event, it is my view that ss 90 to 93 do not give rise to an interest of the kind claimed by the Applicants. It follows that even if ss 90 to 93 could potentially give rise to an interest for the purposes of s 17(1) of the ART Act, no such interest arises on the facts when one considers the claims being made by the Applicants. I turn now to consider those claims.
The Applicants claim that their interests will be affected by increased aircraft noise and lowered flight paths. Relevant to the question of their standing is that there is no obligation in the Airports Act for the airport-lessee company to consult with occupiers of properties who may be affected by noise exposure levels and flight paths. With respect to a MDP and noise exposure levels and flight paths, s 91(1) of the Airports Act says that a MDP must set out:
(e) if the development could affect noise exposure levels at the airport--the effect that the development would be likely to have on those levels; and
(ea) if the development could affect flight paths at the airport--the effect that the development would be likely to have on those flight paths; and
(f) the airport - lessee company's plans, developed following consultations with the airlines that use the airport, local government bodies in the vicinity of the airport and--if the airport is a joint user airport--the Defence Department, for managing aircraft noise intrusion in areas forecast to be subject to exposure above the significant ANEF levels; …
Sections 91(1)(e) and (ea) refer to noise exposure levels and flight paths “at the airport” which operates to confine the area in which effects must be considered and set out in the MDP. With respect to aircraft noise in areas forecast to be above significant ANEF levels, s 91(1)(f) has the effect of requiring APAM to consult with, inter alia, “local government bodies in the vicinity of the airport” and then to set out in the MDP their plans for managing aircraft noise intrusion. Given that the Applicants’ property is 45 kilometres away from an area in which aircraft noise is forecast to be above significant ANEF levels, these provisions have no relevance to the Applicants and they do not give rise to an interest of the Applicants in this regard.
Albeit in relation to a master plan and noise exposure levels, Dowsett J in Brisbane Airports Corporation [19] noted that s 71(2)(e) referred to “consultations with the airlines that use the airport and local government bodies in the vicinity of the airport, for managing aircraft noise intrusion in areas forecast to be subject to exposure above the significant ANEF levels”. As to consultations with landowners impacted by aircraft noise at significant ANEF levels, Dowsett J said:[20]
[31] The Airports Act does not require that a lessee consult with occupiers of properties which, it is forecast, will be so affected. Their interests are presumably to be protected by the relevant local authorities. In those circumstances it seems unlikely that parliament intended that they should be able to commence proceedings for review of a decision to approve a master plan. It is even less likely that occupiers likely to be exposed to lower levels of noise intrusion should be able to do so. To paraphrase the words of Davies J, their relevant “ripple of affectation” is insufficient to constitute an affected interest for present purposes.
[19] Brisbane Airport Corporation (n 7) at 165-6 [29].
[20] Ibid [30].
Consistent with the observations of Dowsett J in relation to s 71(2)(e), it is my view that subsection 91(1)(f) may give rise to an interest for airlines, local government bodies, the Department of Defence and potentially persons in areas forecast to be above significant ANEF levels, but not an interest for persons generally residing in the region of the airport and certainly not an interest for the Applicants who live well away from any area affected by significant noise levels.
The Applicants claim an interest because they live in a rural conservation zone and their property is environmentally sensitive. Section 91(1)(ga) refers to effects at and surrounding the airport which suggests a confined area of interest which would not include the Applicants’ property 55 kilometres from the airport. The reference to effects on the local and regional economy and community refers to a collective interest rather than individual interests[21] and is too broad to define a category of persons whose interests are affected.
[21] Ibid 165 [28].
APAM is required to assess environmental impacts and to set them out in the MDP together with their plans for dealing with them: ss 91(h) and (j). The purpose of these provisions is to require the airport-lessee to turn its mind to environmental impacts “that might reasonably be expected to be associated with the development”, but it does not follow that anyone in the wider area with any environmental concern has a relevant interest. The reference to environmental impacts, similar to the reference to effects on the community, is a reference to a collective interest rather than individual interests. Further, the relevant environmental impacts are confined to those “that might reasonably be expected to be associated with the development”. There is no reasonable expectation of an environmental impact on persons situated 55 kilometres from the airport where aircraft fly at altitudes between 7,000 and 10,000 feet above sea level. Their relevant “ripple of affectation” (to adopt the words of Davies J in the Alphapharm case which were quoted favourably by the High Court in Allan v Transurban)[22] is insufficient to constitute an affected interest. It would be unreasonable and impractical for APAM to have to include in its MDP an assessment and plan in respect of the type of environmental impact asserted by the Applicants which is no more than many members of the public living in rural conservation zones over which aircraft fly.
[22] Allan v Transurban (n 8) 174 [16].
The Applicants argue that consultation was inadequate. Relevant to this issue is s 92(1) which requires that, prior to giving the Minister the draft MDP, APAM is required to make it available for public comment. APAM is required to give the Minister a copy of any comments from the public received and a certification demonstrating that they have had due regard to those comments. The Airports Act deals separately with consultations under s 93, which requires the airport-lessee company to give notice to the Minister of any consultations it had with a State government, an authority of a State, a local government body, an airline or any other person. The Applicants do not fall within s 93 but they are members of the public who were invited to and did make comments under s 92(1).
I turn now to consider the potentially relevant statutory provisions which relate to the review process. In deciding whether to approve a draft MDP, the Minister must have regard to certain matters in s 94(3) which include, relevantly, the impact on the environment and any consultations undertaken in preparing the plan.
An obligation to have regard to the likely impact on the environment, for the same reasons in respect to ss 91(h) and (j) which I considered above, is a reference to a collective interest rather than individual interests. In order to address this collective interest, the draft MDP was referred to the Department of Climate Change, Energy, the Environment and Water. As Dowsett J noted in Brisbane Airport Corporation,[23] it is the nature of a major airport operation that it is likely to affect many people in varying degrees. That would include what I would describe as tenuous environmental impacts such as those listed under the heading of “Personal affectations” at pages 23 and 24 of the Applicants’ Submissions as to Standing. It is most unlikely that parliament intended, by the reference in s 94(3)(c) to an impact on the environment, that persons could seek review if they could point to a tenuous impact of an environmental nature.
[23] Brisbane Airport Corporation (n 7) 165 [28].
Similar to the approval process for a master plan, there is no reference in s 94 of the Airports Act to consulting with occupiers of properties who may be affected by environmental issues or noise exposure levels during the approval process for a MDP. It follows that, consistent with the approach of Dowsett J in relation to a master plan, their interests (if they exist) are presumably to be protected by the relevant local authorities. In those circumstances it seems unlikely that parliament intended that they should be able to commence proceedings for review of a decision to approve a MDP. There is nothing in s 94 that gives rise to an interest due to the asserted ‘legitimate expectation’[24] that environmental laws will be observed. Further, referring again to the approach of Dowsett J, it is even less likely that occupiers likely to be exposed to lower levels of noise intrusion should be able to do so. As previously stated, the Applicants’ property is approximately 45 kilometres from “significant” noise levels and is not situated in an area immediately surrounding the airport.
[24] See pages 16 and following of the Applicants’ Submissions as to Standing dated 30 April 2025.
The reference to consultations in s 94(3)(d) is a reference to the consultations carried out by the airport-lessee company as provided for in s 93. The Airports Act draws a distinction between “consultations” in s 93 and “public comments” in s 92.[25] The public comments, under s 92, must be summarised and a certificate must be given to the Minister demonstrating that due regard has been paid to them in preparing the MDP. However, s 94(3) does not require the Minister to have regard to the public comments.
[25] See the decision of NCVC and Secretary, Department of Infrastructure, Transport, Regional Development and Communications [2020] AATA 2662 at [49] where Deputy President Forgie noted the distinction in the Airports Act between “public comment” in s 79 and “consultations” in s 80.
The obligation on APAM to make the draft MDP available for public comment under s 92 and to publish the approved MDP under s 96 does not give rise to an interest in the Applicants who provided written comments subsequent to the invitation to the public under s 92(1). I note that the terms of ss 79 and 80 (dealing with public comment and specific consultations during the approval process for a master plan) are materially similar to ss 92 and 93 (dealing with public comment and specific consultations during the approval process for a MDP). It follows in my view, that the comments of Dowsett J in relation to ss 79 and 86 are equally apposite to ss 92 and 96:[26]
[34] … s 79 requires notice to “members of the public”. It is most unlikely that it was intended that any member of the public might seek review of a decision to approve a master plan. Further, although the lessee must have due regard to public comment, that is part of the formulation of the draft master plan and not necessarily part of the minister’s decision-making process. As I have said, s 81 does not compel consideration of such comments by the Minister.
[35] As to s 86, it appears to be designed to advise members of the public as to how they can inform themselves of the content of the master plan during its currency. The notice must appear within 90 days after approval. That means that for a period of up to 3 months, the plan may be in force and action taken pursuant to it without public notification of its approval. … Further, there is no requirement that a s 86 notice should contain any reference to the AAT Act procedure. In this respect it is to be contrasted with the provisions of s 242(3).
[36] The difficulty inherent in relying upon ss 79 and 86 as justifying a wide approach to the question of entitlement to seek review is that those sections offer no guidance in that respect. The requirement is for notice to the general public, but it is most unlikely that parliament intended that any member of the public could seek review. Nonetheless, it is difficult to see how these sections can be read so as to narrow the relevant range of affected interests if it be conceded that they are designed to facilitate the review process. The better view is that while s 79 is intended to invite comment from the general public, s 86 is designed to inform the general public of the content of the approved plan. They are not relevant to the review process. …
[26] Brisbane Airport Corporation Ltd (n 7) 166-7.
Section 92 provides for notice to the general public, but this does not give rise to an interest in any member of the public to seek a review. Section 92 is intended to invite comment from the general public, but it is not relevant to the review process. As previously stated, any public comment concerning a draft MDP must be considered by the airport-lessee and summarised in a report to the Minister, but there is no intention that any member of the public be heard in connection with the Minister’s decision-making process, nor may such a person seek review of the Minister’s decision.[27]
[27] Ibid [36].
Likewise, section 96 is designed to inform the general public of the content of the approved MDP, but it is not relevant to the review process.
The Applicants submit that the Tribunal should take the approach of the High Court in Argos[28] rather than Dowsett J in Brisbane Airport Corporation. I reject that submission because the Tribunal is conducting the review as part of the process of administrative decision making and therefore adopts the approach for merits review in Allan v Transurban and Brisbane Airport Corporation. Argos considered the question of standing in the context of an application for judicial review under the Administrative Decisions (Judicial Review) Act 1989 (ACT). This distinction between the approach to be taken on merits review compared to judicial review was highlighted by Gageler J who said:[29]
Alphapharm Pty Ltd v SmithKline Beecham (Australia) Pty Ltd, on which the first respondent principally relies, does not assist the first respondent's argument. The holding of the Full Court of the Federal Court in that case was that a pharmaceutical company was not a person whose interests were affected by a decision to register its competitor's drug under the Therapeutic Goods Act 1989 (Cth) (“the TG Act”) for the purposes of a provision of that Act which conferred an entitlement to administrative review of the merits of a decision made under the TG Act. There was no dispute in that case that the pharmaceutical company was a person aggrieved by the decision to deny it administrative review so as to entitle it to challenge that decision under the ADJR Act. The contextual distinction so illustrated by the case was articulated by Davies J when he explained that a review “which forms part of the process of administrative decision-making, is provided to promote the achievement of the objects of the statute” but that “the object of judicial review is to ensure that the law is observed”. Allan v Transurban City Link Ltd was similarly a case about administrative review.
(Footnotes omitted)
[28] Argos (n 6).
[29] Ibid at [82].
The Applicants rely upon the Tribunal decision in Hicks[30] in which the Deputy President says:
[17] I do not think Wright assists me to resolve the different question of standing that arises in applications for review of a decision made under Part 5, Division 4 of the Airports Act. I must instead have regard to the more general authorities in relation to standing …
[30] Hicks (n 17).
The approach of the Tribunal in Hicks would appear to be contrary to the High Court authority of Allan v Transurban,[31] which favoured an approach ‘by reference to the subject, scope and purpose of that statute, rather than by the application of concepts derived from decisions under the general law respecting what has come to be known as “standing”’.
[31] Allan v Transurban (n 8) 174 [15] – see the full passage quoted earlier in these reasons. See also Gummow J in Alphapharm (n 9) at 272.
I note that even on the approach taken by the Tribunal in Hicks, the fact that Mr Hicks owned a home to the north of the airport which would experience increased noise if the MDP in that case was approved did not give him standing. The Tribunal said that Mr Hicks was not directly affected as an individual because the effects on him were no more deleterious than thousands of other residents who might soon find themselves living beneath revised flight paths. The same thing can be said about the Applicants in this case who will be impacted, along with thousands of others, by increased aircraft noise as a result of the Approval Decision.
The Applicants assert an economic impact from the Approval Decision because Tracey Wilson is employed by Weekaway Recreational Camp situated nearby. There is a suggestion that her employer will be impacted adversely which may impact her as an employee. This is at best an indirect impact without factual foundation of how and why the camp would be negatively impacted. It is too remote and does not give rise to an interest which is affected by the reviewable decision.
Conclusion
Having considered the subject, scope and purpose of the Airports Act, it is my view that the Applicants are not persons whose interests are affected by the decision to approve the MDP under s 94(1) of the Airports Act. It is apparent from the legislative scheme in the Airports Act that the reviewable decision is relatively narrow in nature and therefore gives rise to a narrow set of interests that may be affected by it. This is not a case of judicial review. The decision being made by the Tribunal is part of the process of administrative decision-making and is provided to promote the achievement of the objects of the Airports Act. The legislative scheme, including the references to the general community, the environment and public comments, does not give rise to an interest of the Applicants which is affected as required in s 17(1) of the ART.
Although it is not necessary to say so, it is my view that the legislative scheme suggests that, for the purposes of s 17(1) of the ART, the persons whose interests may be affected by a decision relating to approval or refusal of a MDP are the airport-lessee company, airlines and other users of the airport, local government bodies, the Department of Defence and potentially persons in areas forecast to be above significant ANEF levels.
The Applicants do not have standing to apply to the Tribunal for review of the decision to approve the major development plan made by the Minister on 10 September 2024. Consequently, the applications for review brought by the Applicants are dismissed.
I certify that the preceding 56 (fifty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President P Britten-Jones.
.............[sgd]...........................................................
Associate
Dated: 10 June 2025
Date of interlocutory hearing: 5 May 2025 Applicants’ Representative Self-represented Respondent’s Representative: Clayton Utz Respondent’s Counsel: Ms Fiona Batten Other Party’s Representative: King & Wood Mallesons Other Party’s Counsel: Mr Emrys Nekvapil SC and Ms Julia Watson
1
7
0