BAC Holdings Limited v Commissioner of Taxation

1. The respondent's objection to competency be upheld.
2. The appeal be dismissed.
3. The applicant pay the respondent's costs of and incidental to the appeal, including those related to the objection to competency, to be fixed by a registrar, if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LOGAN J: 1 At a time when, notoriously, Brisbane, as with the world generally, is in the midst of a virulent pandemic the many deleterious effects of which include the decimation, globally, of the airline industry, there is something at once surreal and also edifying in the prospect of deciding a taxation appeal at the heart of which lies a major, capital expenditure decision grounded in optimism as to the future volume of air traffic at Brisbane Airport. What is also surreal but hardly edifying is that it is quite obvious that there is a genuine difference between the applicant, BAC Holdings Limited (BACH) and the respondent Commissioner of Taxation (Commissioner) as to the meaning and effect of the beneficially intended "project pool" provisions of Subdiv 40-I (which, exceptionally, grants deductions for certain capital expenditure associated with "projects") of Div 40, Pt 2-10, Ch 2 of the Income Tax Assessment Act 1997 (Cth) (ITAA97) apply to resultant capital expenditure but the form in which that difference has been exposed for an exercise of judicial power to resolve it has provoked the Commissioner to object to the competency of the taxation appeal. 2 Lest it be thought otherwise, the latter observation is no reflection on the Commissioner's good faith. It is just a reflection of the lamentable technicalities which have, from the outset, beset the private ruling regime now found in Pt 5-5 of Sch 1 to the Taxation Administration Act 1953 (Cth) (TAA) and its interface with the limits of the permissible exercise of the judicial power of the Commonwealth under Ch III of the Constitution. 3 BACH operates Brisbane Airport pursuant to a lease from the Commonwealth of Australia. That lease was granted in 1997 for an initial term of 50 years with an option for the extension of that term for a further 49 years. For many years, there has been an identified need to bolster the capacity of Brisbane Airport by the construction of a further runway parallel to the existing main runway. In 2007, BACH received approval to construct a new parallel runway (NPR) to meet this need. Construction of the NPR began in 2012. 4 On 23 August 2017, BACH applied to the Commissioner under the TAA for a private ruling as to whether certain initial activities associated with the construction of the NPR were themselves a "project" for the purposes of Subdiv 40-I of the ITAA97 and, if so, when that "project" started to operate. The private ruling was sought in respect of the 2011 - 2047 years of income. The initial ruling application was supplemented by a further application on 31 January 2018. 5 By 12 April 2018, the Commissioner had made and issued assessments in respect of the 2011 to 2017 income years. Those assessments were, materially, predicated on a view of the meaning and effect of Subdiv 40-I of the ITAA97 which differed from that promoted by BACH in its private ruling application but which was consistent with the ruling made by the Commissioner in his private ruling of 13 February 2018 (Ruling). 6 The difference between BACH and the Commissioner was and remains whether, as BACH contended in its private ruling application, the two phases of the construction of the NPR in effect comprise discrete "projects" for the purposes of Subdiv 40-I of the ITAA97 or whether, as the Commissioner came to conclude, the construction of the NPR was but one "project", which would not commence to operate until the first aircraft landed. 7 Materially, in describing the scheme in its private ruling application, BACH described (at [30]) the phases in this way: • Phase 1 Civil works (August 2012 to February 2014) … • Phase 1 Foundation works - dredging of sand (October 2013 to June 2015): This phase involves undertaking certain ground treatments to improve geotechnical conditions of the NPR site. … • Phase 2 Foundation works - settlement period (2014 to mid-2017): … • Phase 2 Runway and taxiway construction (including a new road access tunnel) (mid 2017 to 2020) - This phase involves construction of all pavements, airfield drainage, airfield shaping, airfield lighting structures and navigation systems once the surcharge period is completed. It is expected that both flexible (asphalt) and rigid (concrete) pavements will be used in the construction of the NPR and associated taxiways. [Emphasis added] 8 The primary contention advanced by BACH in that application was that the relevant "project" was not the totality of the NPR project phases as described but instead a subset of those phases. The subset which it contended constituted a discrete "project" was the "geotechnical design of the NPR and related experimental land reclamation and monitoring activities". As so defined, the alleged "project" excluded the latter part of the second project phase from the definition. In other words, the Phase 2 Runway and taxiway construction (including a new road access tunnel) was, inferentially, said to be a separate "project". It was this characterisation of discrete initial and final "projects" which the Commissioner rejected in the Ruling. 9 BACH did advance an alternative contention in its private ruling application. That was that the "construction and operation of the [NPR]" was one "project" comprising all of the phases described. The Ruling accepted this alternative characterisation of what constituted the "project". 10 Reflecting this view, the answers given by the Commissioner in the Ruling to the questions posed were as follows: Question 1 Is the taxpayer's Project, for the purposes of Subdivision 40-I of the Income Tax Assessment Act 1997 (ITAA 1997), the 'geotechnical design of the New Parallel Runway (NPR) and related experimental land reclamation and monitoring activities'? Answer No. Question 2(a) If the answer to question 1 above is yes, does the taxpayer's Project start to operate, for the purpose of section 40-855 of the ITAA 1997, by the time the NPR Committee was formed in January 2010? Answer Not applicable. Question 2(b) If the answer to question 2(a) is no, does the taxpayer's Project start to operate, for the purposes of section 40-855 of the ITAA 1997, by the time civil works carried out during Phase 1 commenced in August 2012? Answer Not applicable. Question 3 If the answer to question 1 is no, is the 'construction and operation of the New Parallel Runway (NPR)' a Project for the purposes of Subdivision 40-I of the ITAA 1997? Answer Yes. This Project is explained in the 'reasons for decision'. Question 4 (a) If the answer to question 3 is yes, does the taxpayer's Project start to operate, for the purposes of section 40-855 of the ITAA 1997, by the time the NPR Committee was formed in January 2010? Answer No. Question 4(b) If the answer to question 4(a) is no, does the taxpayer's Project start to operate, for the purposes of section 40-855 of the ITAA 1997, by the time civil works carried out during Phase 1 commenced in August 2012? Answer No. Question 4(c) If the answer to question 4(b) is no, does the taxpayer's Project start to operate, for the purposes of section 40-855 of the ITAA 1997, by the time the taxpayer begins to earn assessable income in the form of Aviation Charges levied by the taxpayer from 1 September 2012? Answer No. Question 4(d) If the answer to question 4(c) is no, does the taxpayer's Project start to operate, for the purposes of section 40-855 of the ITAA 1997, by the time aircraft start landing on the NPR? Answer Yes. 11 BACH objected against the Ruling on 12 April 2018. 12 By his decision of 12 November 2018, the Commissioner disallowed so much of the objection as related to income years after the 2017 income year and treated the objection as invalid insofar as it related to the 2011 to 2017 income years. To the extent that he disallowed the objection, the Commissioner maintained the views that he had expressed in his Ruling. His invalidity conclusion was based on s 359-60(3)(a) in Sch 1 to the TAA the effect of which is to deny a right of objection against a private ruling if there is an assessment for the income year(s) to which the ruling relates. 13 In form, BACH's notice of appeal seeks to invoke the jurisdiction conferred on the Court by s 14ZZ(1)(a)(ii) of the TAA in respect of an appeal against an objection decision. However, there is no qualification in the notice of appeal that only so much of the Commissioner's objection decision as concerns the 2018 to 2047 income years is challenged. The orders sought by BACH on the taxation appeal are that its objection be allowed in full and that the Ruling be varied by: 1. altering the Ruling by substituting the word "Yes" in the answer to Questions 1 and 2(b); 2. alternatively, altering the Ruling by substituting the word "Yes" in the answer to Questions 4(b) or alternatively 4(c). 14 The absence of the exclusion of the 2011 to 2017 income years and s 359-60(3)(a) in Sch 1 to the TAA underpin one of the grounds on which the Commissioner challenges the competency of the appeal. 15 This ground of the Commissioner's objection to competency does not go to all bases upon which BACH has, by its notice of appeal, sought to invoke the court's jurisdiction. Accordingly, to this extent, the objection to competency is itself incompetent: Belton v General Motors-Holden's Ltd (No 1) (1984) 58 ALJR 352; Zegarac v Dellios [2007] FCAFC 58; Coca Cola Amatil (PNG) Ltd v Kennedy [2012] 2 PNGLR 205. That is not to say that there is no merit in the point raised by the Commissioner, only that it does not go to the jurisdiction of the Court to entertain the appeal at all. That is because the objection decision also related to income years yet to become the subject of assessment. It is quite clear that s 359-60(3)(a) in Sch 1 to the TAA only denies a right of objection in respect of a private ruling where an assessment has issued in respect of a year covered by the ruling. So there is nonetheless an objection decision which may be the subject of an appeal to this Court. I understood BACH to concede that its appeal could not, for the reason given, challenge the objection decision to the extent that it related to the 2011 to 2017 income years. 16 The other ground upon which the Commissioner objected to the competency of the appeal does go to jurisdiction. Relying upon CTC Resources NL v Commissioner of Taxation (1994) 48 FCR 397 (CTC Resources v CT), the Commissioner submitted that BACH was not, in terms of s 14ZZ(1)(a)(ii) of the TAA, a person "dissatisfied" with the objection decision, because the scheme as ruled on in the Ruling was not implemented and never could be implemented in the terms described. 17 In CTC Resources v CT, at 408 Gummow J (with whom Jenkinson J agreed in this regard) accepted as correct a submission made by the Attorney-General for the Commonwealth as intervener in that case that: [When] CTC's arrangement was not implemented, any invocation of the original jurisdiction of this Court with respect to the ruling and the disallowance of CTC's objection to it, would be in relation to circumstances that had not occurred and could never happen; a decision by the Court could produce no legal consequences for CTC under the taxation laws. Since CTC Resources v CT, the private ruling regime has been relocated from the body of the TAA to Sch 1 but there is no material difference in the current regime which would call into question the continued correctness of the acceptance of the submission. The current regime uses the term "scheme" to describe what the regime considered in CTC Resources v CT termed "arrangement" but that is a distinction without a difference. 18 The root authority for the submission accepted as correct in CTC Resources v CT is the conclusion reached in In re Judiciary and Navigation Acts (1921) 29 CLR 257, at 265 that, in order for there to be a "matter" for the purposes of the exercise of judicial power under Ch III of the Constitution, there must be some "immediate right, duty or liability to be established by the determination of the Court". Hence there is a need for a controversy concerned with more than hypothetical questions. The intent of s 14ZZ(1)(a)(ii) of the TAA, materially including the requirement that the applicant be "dissatisfied", is to delineate a "matter" capable of the valid exercise of Commonwealth judicial power. Any consequential tax appeal then becomes a proceeding with respect to a justiciable "matter". 19 In an appeal against, or a tribunal review of, an objection decision in respect of a private ruling, and in the absence of any controversy of the present kind as to competence, as Gilmour J pithily observed in the course of a comprehensive review of pertinent authority in Cooperative Bulk Handling Ltd v Federal Commissioner of Taxation (2010) 79 ATR 582, at [16], "Neither the Commissioner nor the applicant can make good any deficiency in the scheme description."; see also, in addition to the authorities cited by Gilmour J, the later decided Rosgoe Pty Ltd v Federal Commissioner of Taxation (2015) ATC 20-539, at [20]. 20 However, as CTC Resources v CT exemplifies, evidence is admissible in a taxation appeal of the present kind for the limited purpose of demonstrating that the circumstances of the scheme as ruled upon have not occurred and could never occur. It is admissible because it goes to a jurisdictional fact, namely, whether there exists a justiciable matter. 21 To determine whether the ground taken by the Commissioner is made good, it is necessary to set out pertinent extracts of the scheme as ruled upon and to set out and make findings in respect of evidence led in relation to the objection to competency. 22 The starting point for the competency ground was the scheme as stated for the purposes of the Ruling. For the purposes of the ruling sought, the scheme included this statement (at [34]): Because of the uncertainty of outcomes associated with Phase 1 and Phase 2 Foundation works used to accelerate ground settlement and the need to achieve specific ground settlement rates before commencing construction of the runway and associated taxiways, no decision was made in respect of commencement of Phase 2 Runway and taxiway construction until the geotechnical experts had provided comfort that the specific ground settlement rates would be (or had already been) achieved. [Emphasis added] 23 In light of the way in which the Commissioner developed his submission in relation to this objection to competency ground, it is also necessary to set out these further statements of the scheme as reproduced in [35] and [36] of the Ruling: 35. In this regard the geotechnical engineers responsible for advising on ground settlement at the NPR site (Golder Associates) presented their findings to BACH on 15 May 2017, recommending that work on removal of surcharge material used to accelerate ground settlement commence from October 2017, and that post-construction settlement at the NPR site were within the design criteria set by BACH. Golders Associates then provided their formal recommendation on 11 July 2017 that work on removal of surcharge material used to accelerate ground settlement commence from October 2017 and that post-construction settlement at the NPR site were within the design criteria set by BACH. 36. On 3 July 2017 BACH announced that the Phase 2 Runway and taxiway construction contracts were awarded (i.e. after Golder Associates' findings were presented to BACH on 15 May 2017). [Emphasis added] 24 The Commissioner submitted that the "fact" stated in [34] of the scheme, especially that emphasised, was material to the objection to competency because it provided the foundation for the submission which BACH made on the taxation appeal as to why Question 1 should be answered "yes". In its submission in relation to Question 1, BACH put that it was "because (as stated as a fact in the Scheme at [34]), no decision had been made" that the Phase 1 works and Phase 2 Foundation works, as described, were a "discrete" project. 25 The Commissioner led evidence (found in annexures to the affidavits of Ms Dempsey) to the end of persuading me to find, on the balance of probabilities, that, contrary to the "fact" stated in [34], BACH in actual fact made a decision to commence the Phase 2 Runway and taxiway construction, as described, before "geotechnical experts had provided comfort". 26 BACH did not gainsay the admissibility of this evidence but did dispute that it established the finding of fact for which the Commissioner pressed. Alternatively, it submitted that even if the statement in [34] were incorrect, its relevance was limited to its contention that the final phase was a "project" for the purposes of Subdiv 40-I. It submitted that any such difference between the scheme facts as posited and what in fact occurred, could not "rationally affect the existence of the dispute concerning the Commissioner's decision about when [the initial project] 'starts to operate'". I understood that, for this reason, BACH submitted that any such "scheme posited" and "actual fact" difference did not have jurisdictional consequences. 27 In its 2013 Annual Report, under the heading, "Likely developments", BACH stated: The Consolidated entity will continue to pursue its objectives consistent with the Airport Master Plan and Business Plan. This includes a proposed new runway, currently forecast to cost $1.4 billion. Construction commenced in 2013 and is expected to be completed in 2020. A decision to progress this project further is subject to Board approval and airline pricing negotiations. 28 In its 2014 Annual Report, under the heading "The New Parallel Runway", BACH stated: Scheduled for completion in 2020, the NPR will deliver regional economic benefit … The dredge and reclamation works for the NPR, which commenced in October 2013, are still underway. … Dredging is due for completion by mid-2015, at which time the site will be left to consolidate for up to three years before the excess sand surcharge is removed from site and the construction of pavements and airfield infrastructure can begin. … 29 In its 2015 Annual Report, under the heading "The New Parallel Runway", BACH stated: The consolidation of the site is being monitored closely to track its progress against the geo-engineered design model. The effective completion of Phase 1 works is when the ground consolidation process, expected to take up to three years, has achieved suitable settlement for the excess sand surcharge to be pushed off and construction of main pavement and airfield infrastructure to begin. Jacobs was appointed as the NPR Phase 2 designer in January 2015 and concept design was finalised by June 2015 with detailed design and documentation progressing. Phase 2 is planned to be delivered as three main contract packages including the Seawall and Early Site Access Works, the Dryandra Road Diversion Works and the Airfield Works. [Emphasis added] 30 In its 2016 Annual Report, under the heading "The New Parallel Runway", BACH stated: Following completion of the ground improvement works (Phase 1) in 2015 the NPR team continued with final design works in preparation for release of tenders for construction of the new airfield system (Phase 2). Request for tender for all three major construction contracts were released in accordance with BAC's targeted programme. Scheduled for completion in 2020, the NPR will deliver regional economic benefit … 31 In its 2017 Annual Report, under the heading "The New Parallel Runway", BACH stated: Works on the Dryandra Road Underpass are currently underway … Works commenced on site in March 2017 … 32 The Commissioner also relied on statements by BACH in press releases published by it in June and July 2016 respectively. In the June 2016 press release, the following statement appears: Our focus is on attracting new direct services as when the new parallel runway opens in 2020, Brisbane airport will have the most runway capacity of any airport in Australia … . 33 In the July 2016 press release, the following statement appears: BAC continues to build for the future with more than 100 construction projects currently underway, including Brisbane's New Parallel Runway which has entered Phase 2 of its construction, with one of three major contracts recently awarded and two more currently in the tender process. 34 The Commissioner also relied upon various statements in Chapter 7 - Operations in BACH's 2014 Master Plan, as approved on 13 January 2015. He cited this passage from p 132 of that plan: Construction of the NPR is being undertaken in stages. This is mainly due to the need to stabilise the existing poor in situ soils before a runway pavement can be constructed. The six main construction elements of the NPR are as follows: • Enabling civil works - drainage, services relocation, modifications to the 14/32 runway system (completed in mid 2013) • Site clearing and preparation (commenced in 2013 and completed in 2014) • Dredging and sand fill placement (commenced in October 2013 and due for completion in June 2015) • Site settlement and monitoring • Runway, taxiway and supporting facilities construction • Operational commissioning. The current planned delivery program for the NPR envisages operations commencing in 2020. 35 In addition, and also from within Chapter 7 of that plan, the Commissioner cited these statements, "The New Parallel Runway (NPR) will provide Brisbane Airport with the capacity to sustain over 100 aircraft movements/hour", "The NPR will necessitate changes to flight paths", "The construction of the NPR will make Brisbane the most efficient operational airport in Australia", and "The NPR will basically operate as an independent runway system" (at pp 108, 132, 134 and 153) (Commissioner's emphasis added). 36 For its part, BACH led evidence from Mr Paul Coughlan, who is, within its wholly owned subsidiary, Brisbane Airport Corporation Pty Limited (BAC), the Project Director "of the New Parallel Runway project". He has held that position for twelve years. Introduced through Mr Coughlan's evidence were certain business records and board minutes of BACH. From Mr Coughlan's evidence and those documents, the following facts emerge. 37 There was significant technical uncertainty associated with the land reclamation processes that were underway before NPR construction commenced. It was necessary for BAC to be satisfied that the site had settled and consolidated to a satisfactory extent before proceeding with the NPR works. 38 Phase 2 of the NPR is being delivered under two primary works packages, namely the realignment of Dryandra Road (and associated services) into a new underpass (Dryandra Road Works) and the construction of the new runway, taxiways and associated infrastructure (Runway and Taxiway Works). The Dryandra Road Works needed to commence ahead of the Runway and Taxiway Works. 39 On 24 November 2016, at a working dinner on the evening before the November meeting of the Board of Directors of BAC (Board), Mr Coughlan briefed the Board on the Dryandra Road Works contract. The briefing included information about the ground settlement findings for the purpose of giving the Board comfort about that issue before the decision to approve the capital expenditure for the construction of the Dryandra Road Works was made. 40 At the subsequent meeting of the Board on 25 November 2016, and as the Minutes record, approval was sought and given for the necessary capital expenditure for the construction of the Dryandra Road Works in the amount of $118.13 million (excluding GST). 41 At the time of the 25 November 2016 Board meeting, BAC had received a geotechnical expert report by Golder Associates Pty Ltd dated 25 November 2016. That report provided comfort that ground settlement rates in the proposed Dryandra Road Works construction area had been achieved to an acceptable degree, such that construction of those works could commence. 42 A meeting of the Board was held on 8 June 2017. At that meeting, Mr Coughlan briefed the Board and presented a related Board paper about the ground settlement findings for the purpose of giving the Board comfort about that issue before the decision to approve the capital expenditure for the construction of the Runway and Taxiway Works was made. At that meeting and as the Minutes record, the Board resolved to approve the necessary capital expenditure for the construction of the Runway and Taxiway Works (described in the Board paper as the "Airfield Works") in the amount of $479,085,713 (excluding GST). Prior to that meeting, BAC had received a draft geotechnical expert report by Golder Associates Pty Ltd dated 19 May 2017. This report provided comfort that ground settlement rates in the proposed construction area had been achieved to an acceptable degree, such that construction of the Runway and Taxiway Works could commence. 43 The Commissioner submitted that the conclusion to be reached on the evidence, which he submitted was apparent from the 2014, 2015, 2016 and 2017 Annual Reports of BACH, taken in conjunction with the 2014 Master Plan and the press releases, was that a decision had been made to commence what [30] of the scheme description described as "Phase 2 Runway and taxiway construction (including a new road access tunnel)" by October 2013. I do not accept this submission. Reading these statements in context, they are just statements as to what is planned to occur. A plan and the execution of a plan are distinct concepts. 44 I am quite satisfied that BACH had adopted a plan to deliver the NPR by October 2013. In a general sense, there must, inferentially, have been a plan as far back as the 2007 approval. Whatever plan there was beforehand looks to have been updated in the 2014 Master Plan. However, the decisions to execute these plans were always materially dependent upon the completion of the Phase 1 Civil and then Foundation Works, followed by ground settlement at a predicted but uncertain rate of sufficiency. Execution of the plans to deliver the NPR occurred as a result of staged decisions of BACH's subsidiary, BAC. I accept Mr Coughlan's evidence unreservedly. It is completely congruent with contemporaneous documents. 45 Acceptance of Mr Coughlan's evidence is a mixed blessing for BACH. 46 It is pellucid that no decision to commence the construction of the Runway and Taxiway Works (described in the Board paper as the "Airfield Works") was taken until 8 June 2017. That is consistent with the statement in the scheme, at [36], that it was on 3 July 2017 that "BACH announced that the Phase 2 Runway and taxiway construction contracts were awarded". It is also at least not inconsistent with the statement in that paragraph that "Golder Associates' findings were presented to BACH on 15 May 2017". Mr Coughlan addressed only the position of the subsidiary, BAC. It does appear that the execution of plans was committed by BACH to BAC. 47 The difficulty for BACH in relation to the scheme posited for a private ruling is in relation to the later "Phase 2 Runway and taxiway construction (including a new road access tunnel)". It is clear to the point of demonstration that the "new road access tunnel" is what is elsewhere termed the "Dryandra Road Works". It is likewise clear that the decision to undertake the latter works was taken not in May or even June 2017 but on 25 November 2016. Further, while those "Dryandra Road Works" were undertaken with the benefit of geotechnical advice, the pertinent advice was given in November 2016, not May 2017. 48 The point is that there is a difference between the scheme facts as posited and what actually occurred in fact. The "Phase 2 Runway and taxiway construction (including a new road access tunnel)" undertaken only after a decision on geotechnical advice was made in May 2017 never occurred and could never occur. Not only had a decision (in November 2016) been made to undertake the "new road access tunnel" before then but also work on that "tunnel" had commenced on site, as BACH's 2017 Annual Report records, in March 2017. The difference is a material one. 49 It follows that, narrow though the Commissioner's competency objection ground may be, I must, having regard to CTC Resources v CT, uphold it. 50 In the event that this conclusion is erroneous, because, for example, the difference is immaterial, because each aspect of the "Phase 2 Runway and taxiway construction (including a new road access tunnel)" was in fact undertaken on relevant geotechnical advice as to ground settlement rates, such that sufficiency of ground settlement was always as scheme posited, and contended by BACH, a delineator between that and the earlier stages said to be a discrete "project", I propose to consider the merits of the Ruling. 51 The Ruling was also made against scheme facts concerning BACH's pricing and related assessable income. In particular, it was stated, at [37] to [39]: 37. BACH's aeronautical pricing structure has two key charges (together referred to as 'Aviation Charges'), being: • Charges for the use of the 'Runway System' as defined in the Brisbane Airport Aviation Services and Charges Agreement - Runway System effective 1 September 2012 (the Runway System Agreement) including the NPR (the Runway Charge), and • Charges for the use of the terminals, aprons and related infrastructure (the Terminal and Infrastructure Charge). 38. The Runway Charge and the Terminal and Infrastructure Charge are calculated separately so as to differentiate the capital and operating costs between these two airport infrastructure groups. This is reflected in the fact that each of the Aviation Charges is dealt with under a separate agreement. 39. The Aviation Charges make up a significant portion of BACH's assessable income in any given year. 52 In my view, these internal pricing structures and the related agreements with users of BACH's facilities, prior to the completion of the NPR are not relevant to the determination of whether or not, for the purposes of Subdiv 40-I of the ITAA97, the "Phase 2 Runway and taxiway construction (including a new road access tunnel)" were discrete from a "project" constituted by the earlier activities, described as "the geotechnical design of the New Parallel Runway … and related experimental land reclamation and monitoring activities". On the scheme facts as posited, the latter were not an end in themselves, only a means to an end, and that end was always the completed NPR. That was always the "project" for the purposes of Subdiv 40-I of the ITAA97. Axiomatically, an airfield, large or small, once constructed, commences to operate when the first aeroplane lands on it or takes off from it, whichever is the sooner. That, after all, is the purpose of constructing an airfield. 53 Perhaps the best way of understanding the nature of the distinction is to recall Winston Churchill's observation in his speech at The Lord Mayor's Luncheon at the Mansion House, London on 10 November 1942 after the victory by Commonwealth Forces at the Second Battle of El Alamein: Now this is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning. Victory in that battle did not mark the end of the war with Germany but it did mark the end of the beginning of the path to winning that war. The objective of the United Kingdom, the other Commonwealth powers, the United States of America (by then) and other Allies was to win that war, not just that battle. 54 A "project" is to be ascertained by its objective and will begin to operate when there is a relevant connection with the attainment of that objective. 55 In short, were the appeal competent, and it is not, the Commissioner was correct to rule as he did. I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.