Consideration
205 Before embarking on a consideration of the issues raised on the hearing of the appeal and the grounds of appeal it is appropriate to address the appellant's standing and rights, if any, to procedural fairness.
206 In my opinion, the appellant lacks standing to claim the relief sought in the application. True it is, that a declaration that the draft ANEF is incapable of lawful endorsement or that a lawful endorsement of it may not be given without all the assumptions upon which it was based being assessed for accuracy and validity, may profit the appellant if, in the absence of an endorsed ANEF chart, the New South Wales planning authorities see fit to rezone parts of Tralee North and Tralee South as Residential 2(d) or Residential 2(e). However, there would be no direct correlation between the one and the other. Such a declaration may simply create a window of opportunity for what might otherwise be an impermissible rezoning to slip through.
207 The rule requiring an applicant, seeking to secure compliance with a public duty, to have a special or sufficient material interest in the subject matter for determination in a proceeding, for that applicant to have standing, has not, in my opinion, been satisfied in this case. I accept the submissions of AA and of the second respondent that the interest of the appellant was no greater than that of any member of the public owning land in the vicinity of the airport. The appellant had nothing other than a hope that the land in which it had an interest and which was zoned Rural, would be rezoned in part as Residential under a Local Environmental Plan made under State planning legislation.
208 The present case may be distinguished from Truth About Motorways where the High Court held, inter alia, that s 163A of the Trade Practices Act 1974 (Cth) (the 'Trade Practices Act') was valid insofar as it purported to confer standing to obtain declaratory and other relief on an applicant who, in that case, was a company which did not claim any special interest in the subject matter of the dispute. It did not claim that it had suffered any loss or damage by reason of the respondent's conduct.
The High Court held that s 163A of the Trade Practices Act, which allowed 'a person' to institute proceedings seeking declaratory relief in relation to the operation or effect of, relevantly, the provisions of Part V of the Trade Practices Act, was constitutionally valid and that 'a person' included a person who had neither a direct nor a special interest in the subject matter of the proceedings.
No such comparable provision was contained in the Air Services Act.
209 The appellant, in this case, did not have a legitimate expectation of a benefit entitling it to procedural fairness. The discharge by AA of its functions of carrying out activities to protect the environment from the effects of, and the effects associated with, the operation of Commonwealth jurisdiction aircraft and performing its functions under s 8(1) of the Air Services Act in a manner that ensured that, as far as practicable, the environment was protected from the effects of the operation and use of aircraft and the effects associated with the operation and use of aircraft, including its responsibility for endorsing Australian Noise Exposure Indices/Forecasts for all Australian airports, did not, in my opinion, attract a requirement for the appellant, as a co-owner of certain land in the area surrounding Canberra International Airport, to be accorded procedural fairness by AA in relation to the endorsement process. Any endorsement by AA of the draft ANEF for Canberra International Airport would not directly affect the appellant individually, but simply as a member of a class of the public, that class being all landholders in the area surrounding Canberra International Airport.
210 In any event, a reasonable opportunity to be heard in relation to the process to be employed for the anticipated endorsement of the ultimate capacity ANEF contour chart for Canberra International Airport was afforded to the appellant, so that it would be inappropriate to grant declaratory relief as sought in paragraph 2 of the application even if, contrary to my opinion, the appellant's circumstances entitled it to be accorded procedural fairness. Fairness did not, in the circumstances of this case, require any more than was offered to the appellant by AA's solicitors' letter to the appellant's solicitors of 30 April 2007.
211 Whilst it is not strictly necessary to do so, I now turn to the question of whether the draft Australian Noise Exposure Forecast for Canberra International Airport was a 'forecast'. Was it based on mere speculation as the appellant has submitted? In relation to this issue, I agree with the observations of the primary judge especially as recorded at [162]-[163] above (see also Note 1 to Table 2.1 in AS 2021-2000 at [113] above, Note (b) to clause 1.5.6 of AS 2021-2000 at [114] above and paragraph 2(a) of the Guidelines at [117] above).
212 The draft ANEF was an 'ultimate capacity' ANEF contour chart. It recognised that there were 24 hours in a day, that there would be a minimal number of aircraft movements between midnight and 5.00 am, that during the day, different operations and aircraft types necessitated the consideration of seven different time periods, which were later subjected to a weighted average, that allowance had to be made for aircraft separation, that it was realistic to take into consideration 24 different fixed wing aircraft types and two helicopter types, that some of the services provided by the aircraft would be Regular International Public Transport Jet Services, some would be Regular Domestic Public Transport Jet Services, some would be Regular Regional Non-Jet Public Transport Services, some would be Freight Operations, some would be corporate aviation services, some general aviation services, some military aircraft operations, including VIP operations, some helicopter operations and some training activities.
It is unnecessary to recount the immense detail into which the Rehbein AOS Airport Consulting report descended.
213 The report of 28 May 2007 included matters of projection which were incapable of objective verification. They were simply forecasts. For example, under the heading '6.0 AIRCRAFT MOVEMENTS' the report included:
'Future domestic operations are forecast to include long haul destinations such as Darwin, Cairns and Townsville and an increased frequency of services to Perth. Direct services are also forecast to Alice Springs, the Sunshine Coast, Avalon, Hobart and Launceston. These have been modelled primarily as the B737-800 and A320 which are expected to dominate Australian domestic airline fleets. The continued peak hourly growth Sydney/Melbourne traffic will justify occasional operations by larger aircraft as well as frequent shuttle-type operations throughout the day.'
214 I cannot accept that the inclusion of forecasts such as these in the draft ANEF allow a finding that it was not a 'forecast' at all and was based on mere speculation.
215 Of necessity, circumstances will change over time such that an appropriately endorsed ultimate capacity ANEF for an airport will itself be superseded. As AS 2021-2000 indicates 'A more recently endorsed chart supersedes an earlier chart' and AA Guidelines published on 1 July 2005 make it clear that ANEFs 'are regarded as being valid for a period of five years at which time they should be replaced'. Apart from other considerations, it is self evident that aircraft types will change, newer engines may generate less noise, the mix of aircraft types using an airport will change and so on.
216 The function of endorsing Australian Noise Exposure Forecasts is not to convert a third party's forecast into an AA forecast.
217 It should not be overlooked that the Ministerial Direction contained a direction that AA carry out the relevant activities in accordance with government policy as determined from time to time. That policy would appear to be reflected in part in the 'agreed understanding' forwarded to AA by the Department on 18 August 1999 which included, in respect of AA's responsibility for endorsing Australian Noise Exposure Indices/Forecasts for all Australian airports, 'The formal endorsement of ANEF/ANEI for technical accuracy, a requirement of Australian Standard AS2021, will continue.'
218 I cannot accept the appellant's submission, in respect of the generation of the draft ANEF contour chart by the superimposition of the three ANEC contour maps produced during the consideration of options for the airport, set out at [123] above, that the superimposition required additional aircraft movements to be taken into account above and beyond the total runway capacity of the airport.
219 Under the heading '9.0 Runway Movement Tables' the Rehbein AOS Airport Consulting report of 28 May 2007 said:
'Aircraft have been allocated to specific arrival and departure tracks in accordance with established principles confirmed in discussions between Capital Airport Group, Canberra ATC [Air Traffic Control] Tower Manager (Peter Romeis) and Airservices Australia Canberra Approach Sector Manager, Melbourne Centre (Bill Phelan).
The track allocation principles applied to RPT and Freight operations are detailed in Tables 15, 16, 17 and 18. These constitute the majority of aircraft movements on runway 17/35. The application of these track allocation principles is demonstrated by reference to the sample listing of possible origins and destinations provided earlier in Table 6.
…
Runway utilisation for the runway 35 preferred scenarios was determined from Airservices NFPMS data for calendar year 2005 - the last full year results available on commencement of the INM study. Utilisation adopted in the runway 17 preferred was determined from the Canberra International Airport Meteorological Analysis after validating the calculated runway 35 usability against recorded 2005 NFPMS data, as detailed in Annex 3.'
220 Plainly, meteorological conditions will not permit the use of the 17/35 runway exclusively in the northerly (350o) direction at all times. This was recognised in the report under the heading '1.0 INTRODUCTION' as follows:
'The theoretical runway utilisation has been established for each runway direction by an analysis of meteorological data which considered wind speed and direction coupled with visibility/cloudbase criteria applicable to both non-precision and precision approaches. This report, Canberra International Airport: Meteorological Analysis,is included as Annex 2.
Observed differences in theoretical and practical usability of runway 35 suggest that ATC is not always able to adopt the runway direction most favoured by meteorological considerations. This has been taken into account by applying a lower percentage than indicated in the meteorological analysis in modelling the runway 17 operations. The practical, as opposed to theoretical runway utilisation, is derived in a further analysis of the meteorological report which is included as Annex 3.'
221 The report took into account Global Positioning System-based Required Navigational approach/departure Procedures which had recently been introduced for Qantas operations. It noted that those procedures were to be progressively adopted by Virgin Blue in 2007 and that it was expected that the RAAF VIP squadron and additional aircraft operators providing future services to Canberra would also utilise that technology. The Report then continued:
'A future RNP [Required Navigation Procedures] approach has been modelled for ultimate capacity operations to provide a 15° offset approach to runway 35 for long haul domestic/international aircraft. The current RNP approaches have shown this is feasible and Capital Airport Group expects the additional arrival track to be adopted as a further noise abatement measure. It will also reduce track miles - and associated fuel consumption and greenhouse emissions - for aircraft arrivals from the south or west (Adelaide, Perth, Southern or South-east Asia or the Middle East) or from the north after tracking around the Canberra Noise Abatement Area (Cairns, Darwin or Northern Asia).
A reverse operating mode has also been considered as this has been shown feasible once GPS-based precision approaches are possible from the north using GBAS technology which is currently being proven by Airservices Australia. A 3° offset precision approach has been agreed by the former Head of CASA's Airspace and Aerodrome Standards Branch as compliant with ICAO design requirements. The existing 17 RNP approach already greatly enhances procedures for arrivals from the north.
RNP departures are also modelled and it has been assumed that these will continue to be based on the existing standard instrument departures.
The predominant use of precision approaches and RNP approaches and departures will provide sufficient tracking accuracy to allow the use of single vector tracks in modelling except for general aviation and a portion of corporate aircraft movements.'
222 The report clearly indicated that a 15° offset approach track to runway 35 was considered to be feasible and there was an expectation that it would be adopted as a noise abatement measure.
223 To develop an ultimate capacity noise exposure forecast for Canberra International Airport, it seems to me to have been reasonable to have contemplated a transitional development from the currently preferred runway 35 operating mode and route/track structure, including RNP approaches/departures, to the preferred runway 35 operating mode with both the current RNP approaches/departures and the additional 15° offset RNP track for long haul domestic/international arrivals.
A comparison of Tables 19 and 20 in the Report with Tables 21 and 22 make it clear that ultimate capacity has been determined by reference to 446 day time aircraft movements and 335 night time aircraft movements. The significant difference is an anticipated use by Boeing 737, 747, 757 and 777 aircraft and Airbus A320, A330 and A340 aircraft of an arrival track to Runway 35 identified as JET 35A7 in lieu of arrival tracks JET 35A1, JET 35A2, JET 35A3 and JET 35A4.
As the transition or development, in respect of approach tracks occurs, the ANEF contour map will inevitably change. This seems to me to be clearly and appropriately recorded in the draft ultimate capacity ANEF chart of which endorsement by AA is sought and which was derived by the superimposition of the three different contour maps.
As has already been observed, the appellant's argument in relation to superimposition was not put to the primary judge and there was no suggestion put to Mr Owen, as one might have expected, that an efficacious ANEF contour map or chart could not be derived from the superimposition of the three separate and different ANEC contour maps (see Browne v Dunn (1893) VI The Reports 67).
224 The superimposition did not require additional aircraft movements beyond the capacity of the runways to be taken into account. Clearly, on different days, in different meteorological conditions, runway usage will vary. Likewise, approach tracks may change. For an ultimate capacity ANEF to be of value to those who are concerned with the siting and construction of buildings within 15 km of an international or major domestic airport, it would be of little comfort to learn that aircraft noise levels will be tolerable in a particular location so long as aircraft use the currently preferred approach tracks. If, by the time that ultimate capacity is achieved, aircraft are employing different preferred approach tracks, noise levels at the relevant location which is of concern may be dramatically increased.
To that end the draft ANEF for Canberra International Airport which is, after all, only a forecast, has been derived in a way which will provide useful ANEF contours for those who are contemplating or concerned with the construction of buildings in the areas surrounding the airport. As was explained in AS 2021-2000 an Australian Noise Exposure Forecast is based on a firm forecast of aircraft movement numbers and operating times, aircraft types, destinations, flight paths and a given use of runways.
It may well transpire that, by the time that 'ultimate capacity' is achieved at Canberra International Airport, all the current aircraft types on which the draft ANEF is based will have ceased to operate. The next generation of commercial aircraft could, for all one knows, be vertical takeoff and landing aircraft, perhaps even with different methods of propulsion.
225 Given that Mr Owen was not cross-examined to suggest that the expansion of the aircraft parking aprons and/or the passenger terminal could not be achieved to meet the needs of Canberra International Airport with the runways operating at 'ultimate capacity', I reject the appellant's submission that the draft ANEF was nothing more than a forecast for the runways rather than for the airport itself.
226 It follows that the draft ANEF was an Australian Noise Exposure Forecast in accordance with AS 2021 or, more accurately, the ANEF system referred to in AS 2021, and within the AA 'Guidelines for the production of noise contours for Australian airports'.
227 The Ministerial Direction conferred responsibility for endorsing Australian Noise Exposure Indices/Forecasts for all Australian airports on AA. The responsibility was conferred in the context of a prevailing Australian Standard AS 2021-1994 and the existence of the revised Noise Exposure Forecast (NEF) technique first developed in the United States of America in the late 1960s and revised by the Department of Aviation in Australia to become the ANEF system.
228 Whilst s 9(2) of the Air Services Act required AA to perform its functions in a manner that ensured, as far as was practicable, the environment, which I would understand to mean the built or potentially built environment, was protected from the effects of the operation and use of aircraft and the effects associated with the operation and use of aircraft, it seems to me that both the Ministerial Direction and the section were silent on the manner of endorsement of Australian Noise Exposure Indices and Forecasts to be employed by AA. That was a matter left to AA's discretion.
229 Insofar as the 'agreed understanding' of 18 August 1999 recorded 'government policy' within the meaning of paragraph (xiii) of the Schedule to the Ministerial Direction, it seems clear that AA's responsibility for endorsing Australian Noise Exposure Indices and Forecasts under paragraph (x) of the Schedule was capable of being satisfied by 'formal endorsement … for technical accuracy' and that is just what AA was prepared to provide in accordance with 'Procedure 2' as set out in paragraph 4 of AA's published 'Guidelines for the Production of Noise Contours for Australian Airports' of 1 July 2005.
230 The relevant technical and administrative checks as detailed in paragraph 4 of the Guidelines were repeated and amplified by Mr Owen in paragraph 36 of his affidavit declared 27 June 2007. No suggestion was put to him that the relevant checks were inappropriate or that they were not performed or that the checks revealed flaws in the draft ANEF. I am satisfied that the draft ANEF was an Australian Noise Exposure Forecast in accordance with AS 2021 and also the Guidelines.
231 Not only did the Ministerial Direction not specify a 'manner' of endorsement of Australian Noise Exposure Indices or Forecasts approved by the Minister administering the Air Services Act, but also no manner of endorsement of Australian Noise Exposure Forecasts has been approved by the Minister administering the Airports Act. In the circumstances, there could be no requirement that an ANEF relate to a planning period, for a draft or final master plan, of no more 20 years. In any event, an 'ultimate capacity' Australian Noise Exposure Forecast 'may relate to' the periods mentioned in s 71(4)(a) and (b) of the Airports Act and, if specified, a period contemplated by s 71(4)(c), also.
232 The Airports Act in no way regulated the discharge by AA of its responsibility for endorsing Australian Noise Exposure Indices and Forecasts under the Ministerial Direction given under s 16(1) of the Air Services Act.
233 The obligation upon an airport-lessee company, pursuant to s 78(2A) of the Airports Act, to give a draft replacement master plan for an airport to the Minister, is not triggered by the endorsement of an Australian Noise Exposure Forecast by AA in accordance with the Ministerial Direction under the Air Services Act. Section 78(2A) is only triggered by the endorsement of an Australian Noise Exposure Forecast in the manner approved by the Minister administering the Airports Act, and, as previously observed, no such manner has been approved.
234 In my opinion the appeal should be dismissed with costs. No ground of appeal has been made good such as would lead to the appellant having an entitlement to the relief sought in the application or any of it.
I certify that the preceding one hundred and thirty-four (134) paragraphs numbered [101] to [234] are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.