Botany Bay City Council, Rockdale City Council, Randwick City Council and Hurstville City Council v Minister of Transport and Regional Development, Minister of the Environment and Airservices Australia [1996] FCA 1507

Botany Bay City Council, Rockdale City Council, Randwick City Council and Hurstville City Council v Minister of Transport and Regional Development, Minister of the Environment and Airservices Australia [1996] FCA 1507 - FCA 1996 case summary — Zoe

[52]

Requests for exemptions

11.1 A Minister, Department or an authority of Australia may

request the Minister to exempt a Commonwealth action, or a class

of Commonwealth actions:

(a) from all or any of the requirements of these procedures; or

(b) from all or any of the requirements of these procedures for

a specified period; or

(c) from all or any of the requirements of these procedures

until the occurrence of a special event.

Consultation with Department, etc., concerning exemptions

11.2 Subject to the requirements of paragraphs 12.1.1. and

12.1.2. concerning communications with the States or the

Northern Territory and with authorities of the States or the

Northern Territory, the Minister, or the Department on behalf of

the Minister, may consult with any Department or authority of

Australia, any State or authority of a State, the Northern

Territory or an authority of the Northern Territory, any local

authority or any other person or body concerning whether a

Commonwealth action, or a class of Commonwealth actions, should

be exempted from all or any of the requirements of these

procedures.

Matters to be taken into account

11.3.1 Subject to paragraph 11.3.2., the Minister shall, in

determining whether to exempt a Commonwealth action, or a class

of Commonwealth actions, from all or any of the requirements of

these procedures, take into account -

(a) whether the application to the Commonwealth action, or the

class of Commonwealth actions, of the requirements of these

procedures from which exemption is sought would -

(i) be prejudicial to national security;

(ii) be prejudicial to the interests of Australia;

(iii) adversely affect commercial or other confidences; or

(iv) be otherwise contrary to the public interest; and

(b) any views on a matter referred to in subparagraph

11.3.1.(a) expressed by the Minister, Department or authority of

Australia making the request.

11.3.2 The Minister shall, in determining whether to exempt a

Commonwealth action, or a class of Commonwealth actions, from

all or any of the requirements of these procedures, have regard

to the general principle that it is desirable in the national

interest that the requirements of these procedures should, as

far as reasonably possible, apply to all Commonwealth actions.

Exemptions

11.4 If, following a request under paragraph 11.1 and having

regard to the matters set out in paragraphs 11.3.1 and 11.3.2,

the Minister thinks it appropriate to do so, he or she may

exempt, in writing, a Commonwealth action, or a class of

Commonwealth actions:

(a) from all or any of the requirements of these procedures; or

(b) from all or any of the requirements of these procedures for

a specified period; or

(c) from all or any of the requirements of these procedures

until the occurrence of a specified event.

Publication of exemptions, etc.

11.5 Unless the Minister is satisfied that to do so would be

contrary to the public interest, an exemption under paragraph

11.4., and a summary of the reasons for granting the exemption,

shall be made public.

[70]

ADMINISTRATIVE PROCEDURES

These are the reasons relied on by me for the grant of the

exemption from the Administrative Procedures that I have given

on 20 March 1996 concerning certain actions involving Sydney

airport.

2. I am satisfied that the residents of some communities in

Sydney are suffering grievous hardship because of the existing

arrangements at Sydney (Kingsford-Smith) Airport ('Sydney

Airport'). In particular, the use of the parallel runways and

the requirement to use legislated flight corridors, combined

with the effective closure of the east-west runway other than in

some limited weather conditions, has resulted in a concentration

of aircraft movements and related noise impacts in certain

suburbs. This concentration of aircraft overflights represents,

in my view, an inequitable distribution of aircraft noise

impacts.

3. I am informed that in the last full year for which data is

readily available for the Airport operating with intersecting

runways (1993), there were approximately 49,000 landings from

the north or take-offs to the north on the main north-south

runway. During the first year with the parallel runways this

number (take-offs to the north on the old north-south runway and

landings from the north on the parallel runways) more than

doubled to around 116,000 while the total number of movements on

the east-west runway fell to approximately 5,500. In 1993 there

were about 85,000 movements on the east-west runway.

4. Introduction of the flight corridors to the north of the

Airport has resulted in all jet aircraft overflights being

concentrated over the suburbs which fall along the extended

centre-lines of the north-south runways. Abolition of the

northern corridors and increased use of the east-west runway

will significantly reduce the number of aircraft movements over

these suburbs.

5. The Commonwealth actions in respect of which an exemption is

sought were set out in a draft exemption from the Minister for

Transport attached to his letter to me of 19 March 1996. In

addition, I have subsequently been provided with a draft

direction to Air Services Australia that the Minister proposes

to issue if an exemption is granted.

6. I will refer to these actions as 'the proposed Commonwealth

actions'.

7. The proposed Commonwealth actions will, if taken, have the

effect of providing significant and immediate relief to the

residents of those communities in Sydney which are at present

most affected by the existing arrangements at Sydney Airport.

In particular, increasing the use of the east-west runway will

help ensure a more equitable distribution of the noise impacts

associated with Sydney Airport.

8. Details of the operating procedures for the east-west runway

have yet to be worked out. I am informed, however, by way of

example, that if the number of annual operations on the

northerly runways were cut by 50% and these movements

transferred to the east-west runway, take-offs to the north and

landings from the north would be reduced to around 58,000. The

total number of movements on the east-west runway would increase

to about 63,500.

9. In determining whether to exempt the proposed Commonwealth

actions from all of the requirements of the Administrative

Procedures, I am required to take into account whether the

application of the requirements of the Administrative Procedures

to the proposed Commonwealth actions would be contrary to the

public interest (see paragraph 11.3.1.(a)).

10. I accept that the application of the Administrative

Procedures to the proposed Commonwealth actions would delay the

taking of these actions. Accordingly, the application of the

Administrative Procedures would delay the provision of immediate

relief to the communities who, under the current arrangements at

Sydney Airport, are exposed to the greatest number of aircraft

overflights. In particular, it would delay an increase in the

use of the east-west runway and so would delay the

redistribution of the impacts, which is required to achieve a

more equitable outcome. In my view, it is contrary to the

public interest for there to be any delay in the provision of

immediate relief to the communities who are suffering most from

the adverse noise impacts associated with Sydney Airport.

11. Accordingly, I believe that the application of the

Administrative Procedures to the proposed Commonwealth actions

would be contrary to the public interest. (I note that the

issue I must consider is not whether an increase in the use of

the east-west runway is in the public interest).

12. I note that in considering how the application of the

Administrative Procedures will affect the 'public interest'

there may possibly be competing 'public interests'. In this

regard, I have had regard to the following:

. An increase in the use of the east-west runway and the repeal

of flight corridors to the north of the airport will have an

adverse effect on some communities in that it will increase the

impact of aircraft noise on residents in those communities. In

this respect, the fact that, if I grant an exemption, the

Administrative Procedures will not be complied with in relation

to the proposed Commonwealth actions means that:

. the adverse effect on these communities will occur without

relevant decision makers having had the benefit of any

environmental impact assessment that may have occurred under the

EPIP Act;

. the adverse effect on the communities will occur earlier than

it might have occurred if the Administrative Procedures were

complied with; and

. these communities will not have the opportunity of

participating in any assessment that may have occurred under the

EPIP Act.

13. Nevertheless, any public interest in having an

environmental assessment of the impact of aircraft noise in

these communities is in my view outweighed by the need for the

immediate relief of those most directly affected by aircraft

noise as a result of current arrangements.

. While not directly relevant, I have noted the public

commitment of government to implement noise amelioration

measures in areas affected by changes to runway usage on the

same terms as provided to those presently affected.

14. A number of assessments or inquiries have examined issues

associated with runway usage at Sydney Airport. In addition, I

am informed that it is intended that a review be conducted by

Airservices Australia with the assistance of the Civil Aviation

Safety Authority leading to a long term operating plan for the

Airport and associated airspace. The existence of the

assessments and inquiries which have already been conducted and

of the proposed review - combined with the obvious need for a

more equitable distribution of aircraft movements associated

with Sydney Airport - reduces the need (from a public interest

perspective) for compliance with the Administrative Procedures.

15. I have also had regard to the general principle that it is

desirable in the national interest that the requirements of the

Administrative Procedures should, as far as reasonably possible,

apply to all Commonwealth actions. See paragraph 11.3.2 of the

Procedures. However, this principle is overridden in this case

by the public interest I have identified above.

16. I have also had regard, as required by paragraph 11.3.1(b)

of the Procedures, to the views expressed by the Minister for

Transport as to the public interest reasons he sees as

justifying an exemption. I consider that these reasons, in all

the circumstances, generally further support an exemption on

public interest grounds. In particular, I note his view that

the availability of existing material and evidence as to the

relevant environmental effects suggest the application of the

Administrative Procedures would represent an unnecessary use of

public resources.

17. After considering all of the above matters, I am satisfied

that the application to the proposed Commonwealth actions of the

Administrative Procedures would be contrary to the public

interest. In the circumstances, the need to avoid any delay in

providing immediate relief to the communities most affected by

aircraft overflights and to ensure that, as soon as possible,

there is a re-distribution of aircraft noise across Sydney

outweighs the fact that, as a result of my granting an

exemption, some other communities in Sydney will be adversely

affected by the increase in the use of the east-west runway and

there will be no assessment under the EPIP Act of these impacts.

Robert Hill

Minister for the Environment

20 March 1996

[73]

THOSE FINDINGS WERE BASED

1. The use of the parallel runways at Sydney (Kingsford Smith)

Airport and the requirement to use legislated flight corridors,

combined with the effective closure of the east-west runway

other than in some limited weather conditions, resulted in a

concentration of aircraft movements and related noise impacts in

certain suburbs immediately to the north of the Airport. This

concentration of aircraft movements, in my opinion, represented

an inequitable distribution of aircraft noise impacts.

2. In 1993, the last full calendar year of operations of the

Airport with intersecting runways, there were approximately

49,000 landings from the north or take-offs to the north on the

main north-south runway. There were about 85,000 movements on

the east-west runway. During the first year of operations with

the parallel runways the total number of take-offs to the north

(on the old north-south runway) and landings from the north (on

the parallel runways) more than doubled to around 116,000 while

the total number of movements on the east-west runway fell to

approximately 5,500. The data for 1993 was extracted from the

published Australian Noise Exposure Index for that year. The

data for the first year with the parallel runways was derived

from information provided by AA to the Sydney Airport Community

Consultative Committee.

3. During 1995, a Senate Select Committee on Aircraft Noise in

Sydney received over 5,200 submissions and held public hearings

over 14 days. The Committee handed down its report "Falling on

Deaf Ears?" in November 1995. The Committee considered the

present policy of concentrating aircraft flightpaths into narrow

bands north of the airport to be a form of discrimination. The

Committee noted that while fewer people were seriously affected

they were affected much more severely whereas sharing that noise

over a larger number of people would affect more people more

moderately. The Committee considered the correct approach is to

share the burden of noise. Relevant extracts from "Falling on

Deaf Ears?" are at Attachment A.

4. On 29 January 1996 the then shadow Minister for Tourism,

Aviation and Customs, Senator Warwick Parer, released the

Coalition policy on Sydney Airport and Sydney West Airport,

"Putting People First". That policy contained a commitment that

the Coalition Government would, within 10 working days of taking

office, issue a direction to AA to begin work on reopening the

east-west runway to distribute the noise generated by the

Airport in a fair way. A copy of "Putting People First" is at

Attachment B.

5. On 13 March 1996 the Director of Aviation Safety wrote to me

setting out the views of the Civil Aviation Safety Authority on

the safety aspects of using the east-west runway. A copy of

that letter is at Attachment C.

6. On 18 March 1996 I was briefed by AA on the short term

measures to increase the use of the east-west runway. I was

subsequently provided with a brief setting out short term

measures to increase the use of the east-west runway. A copy of

that brief is at Attachment D.

7. I formed the view that it was possible for AA to implement

changes in a short period of time which would have the effect of

diverting immediately some flights from the north to the

east-west runway. I formed the view that it was possible for AA

to progressively bring into operation procedures which would

achieve the objective of a more equitable distribution of

aircraft flights over affected communities in Sydney by

increasing the use of the east-west runway. I also formed the

view that it was important for AA to undertake a wider review of

airspace management at Sydney to enable permanent, equitable,

efficient operating procedures to be put in place at the

Airport.

8. Against the possibility that my actions might otherwise be

within the Environment Protection (Impact of Proposals) Act 1974

and the Administrative Procedures made thereunder, I decided to

request the Minister for the Environment to grant an exemption

under paragraph 11 of the Administrative Procedures. A copy of

my letter of 19 March 1996 to the Minister for the Environment

is at Attachment E.

9. On 20 March 1996 the Minister for the Environment granted an

exemption from the Administrative Procedures for, amongst other

things, the issuing of a direction to AA. A copy of the letter

from the Minister for the Environment enclosing the exemption is

at Attachment F.

10. On 20 March 1996, after receiving the Minister for the

Environment's letter, I wrote to the Chairperson of AA attaching

a copy of my direction. A copy of my letter, together with the

direction, is at Attachment G.

REASONS FOR DECISION

11. I considered that people living to the north of the Airport

were unfairly bearing the burden of aircraft noise generated at

the Airport.

12. The Government gave an election commitment to issue a

direction to AA to begin work on re-opening the east-west runway

so as to equitably distribute the noise generated by the

Airport.

13. I considered that the level of hardship in the worst

affected communities to the north of the Airport required that

immediate relief be provided.

14. I considered that AA was able progressively to implement

increased usage of the east-west runway without compromising the

safe operations of the Airport.

15. I therefore directed AA to take the immediate steps set out

in clause 1 of my Direction.

16. I also considered that AA should develop longer term

operational arrangements for the airport subject to certain

policy principles.

17. I therefore directed AA to report to me by 16 December 1996

on a longer term operating plan as set out in clause 2 of my

Direction.

Dated this twenty eighth day of March 1996.

John Sharp

Minister for Transport and Regional Development

[82]

28. I admitted evidence to the effect that the effective closure of the east-west runway resulted in a substantial diminution of noise from aircraft in the areas for which each applicant is responsible: indeed, it is obvious that that would have been so and it is equally obvious that the reopening of that runway to regular use by large aircraft will result in a significant increase of noise from aircraft in those areas; that - and there was no dispute about this - is likely in turn to result in significant detrimental effects on the environment of those areas. It follows that it makes no difference to the outcome of the case that no evidence was admitted in support of para (ii). As for para (iii), the draft EIS (at page 2-7) refers to "continuing liaison on technical matters" with a number of local councils, including the four applicants. As to para (iv), a supplement to the draft EIS indicates that among those who made the submissions were the first, second and fourth applicants. There is no material before me, other than that supplement, as to the contents of those submissions: the supplement indicates that the submission of the first applicant canvassed a considerable number of matters dealt with in the draft EIS, that of the second applicant with a substantially smaller, though still significant, number of issues and that of the fourth respondent with a small number of issues only. An inspection of the supplement suggests that it is likely that among the individuals and bodies making submissions were a number living, working or carrying on business within the applicants' areas: there is, in fact, no evidence that that is so but, again, I doubt that in the end it much matters. No particular comment is required in relation to para (v). As for para (vi), it will be recalled that para 11.2 of the Administrative Procedures empowers the second respondent to consult with governmental and local authorities "or any other person or body" in relation to proposed exemptions from the Administrative Procedures. Counsel for the applicants relied particularly on statements of principle in two recent judgments of the High Court. In Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596, Mason CJ, Deane J and McHugh J said at 598:

At a glance

Court

Decision date

Before

Source

Judgment (163 paragraphs)

Botany Bay City Council, Rockdale City Council, Randwick City Council and Hurstville City Council v Minister of Transport and Regional Development, Minister of the Environment and Airservices Australia [1996] FCA 1507 (28 May 1996)

Parties

Legislation Cited (8)

Cases Cited (26)