Air Services Act 1995 - subsection 16(1) - Direction concerning the Sydney Airport long term operating plan

Long Term Operating Plan (the Plan). Defined in paragraph 1 of the schedule as the set of requirements set out in the direction itself, not the earlier Airservices Australia report. The Plan comprises flight path structures derived from maps in the Airservices Australia Report but amended by the Proponent’s Statement, plus all the specific runway selection, monitoring, and review obligations imposed by the direction. It is a living instrument: paragraph 10 requires Airservices to keep the Plan under review and to test proposed changes with the public through the Sydney Airport Community Forum before implementation.

Noise sharing and respite. The core operational objective is stated in paragraph 3.1: runway selection procedures should facilitate the more equitable sharing of aircraft noise impact, taking into account forecast or prevailing weather and traffic levels including the balance between arrivals and departures. Modes of operation are to be changed throughout each day, when traffic and weather conditions permit, to provide respite from noise affecting residents in different areas. This replaces a prior regime that effectively concentrated noise under certain wind conditions.

Runway modes. The direction defines 10 runway modes as described in the Airservices Australia Report: modes 1, 4, 5, 7, 8, 9, 10, 12, 13, and 14A (paragraph 3.2). Mode 8 is initially excluded (paragraph 3.3) but may be introduced later if it contributes to the Plan’s objectives. Paragraph 3.4(b) sets three new runway selection criteria: give preference to over-the-water operations (mode 4) to minimise residential overflights; restrict dedicated use of the east-west runway (modes 12 and 13) to circumstances when weather requires their use; and interchange use of the other modes to ensure fair sharing of unavoidable aircraft noise subject to weather and traffic demands. Paragraph 3.5 adds a preference for Runway 34L for arrivals when runways in that direction are in use, provided it assists noise sharing goals.

Implementation and Monitoring Committee (IMC). Established under paragraph 5.1, the IMC includes two community representatives appointed by the Minister, plus representatives from the aviation industry, the Federal Airports Corporation, the Civil Aviation Safety Authority, and the Department of Transport and Regional Development. It is chaired by a senior Airservices official and reports through Airservices’ Chief Executive to the Minister. Its terms of reference (Attachment A) are to monitor noise distribution, flight paths and runway movements; report results to the Sydney Airport Community Forum and broader community; comment on potential operational changes to improve the noise environment; and oversee specific studies.

Australian Noise Exposure Index (ANEI) and Australian Noise Exposure Forecast (ANEF). Paragraphs 7.1 and 7.2 require quarterly ANEI contours (cumulative to 12 months) and an ANEF as soon as robust forecasts are possible, with interim Australian Noise Exposure Concept (ANEC) contours updated six-monthly. These are the statutory noise measurement tools used to quantify and communicate aircraft noise exposure to the public.

Proponent’s Statement and Airservices Australia Report. These two documents, defined in paragraph 1, form the technical baseline for the Plan. The direction does not incorporate every aspect of those documents; it only requires implementation of the flight path structure and layout shown in the Airservices Australia Report maps as amended by the Proponent’s Statement, plus adjustments for safety and detailed airspace design.

Airservices Australia is the primary addressee of the direction. It bears all implementation obligations: progressive implementation of flight paths, runway selection changes, safety analyses, committee establishment, noise monitoring, reporting, and removal of the West Pymble beacon. It must establish and resource the Implementation and Monitoring Committee, produce quarterly ANEI contours, purchase mobile noise monitors, and maintain the Noise Enquiry Unit. The direction creates binding administrative duties enforceable under the Air Services Act 1996; failure to comply could lead to ministerial intervention or other statutory consequences.

Residents around Sydney (Kingsford Smith) Airport are the intended beneficiaries of the noise-sharing and respite provisions. The direction’s language of equitable sharing, respite, and minimising residential overflights directly targets their interests. However, the direction does not grant residents any private right of action; their involvement is channelled through the two community representatives on the Implementation and Monitoring Committee, the Sydney Airport Community Forum (which must be consulted on proposed changes under paragraph 10), and the public reporting obligations (quarterly reports and annual reports under paragraph 8). Residents in areas affected by specific changes, such as the north-south flight path modifications, the West Pymble beacon removal, and the curfew-period tracking route, will experience altered noise patterns.

Airlines and aircraft operators are indirectly affected. Runway selection procedures affect taxi times, fuel burn, scheduling, and operational costs. The preference for over-water operations (mode 4) and the restriction on east-west runway use (modes 12 and 13) will alter arrival and departure sequences. The requirement to study patterns of runway use by long-haul aircraft (paragraph 5.2) and to examine ICAO A and ICAO B departure procedures may lead to future operational changes. The discontinuance of the previous noise abatement requirements (paragraph 3.4(a)) removes a known operational constraint but replaces it with a more complex, weather-dependent selection regime. Airlines may need to adjust flight planning to accommodate dynamic runway changes.

The Civil Aviation Safety Authority and the Federal Airports Corporation are referenced as members of the Implementation and Monitoring Committee. CASA is also involved in the safety review process (paragraph 4). The direction does not impose direct obligations on these bodies, but they must participate in the committee’s monitoring and study activities.

The Australian Defence Force is mentioned in paragraph 9.5: Airservices must implement, in conjunction with the ADF, in-principle agreements for changes to military airspace surrounding Sydney. This affects military flight operations and airspace management.

The Sydney Airport Community Forum gains a formal consultative role: proposed changes to the Plan must be tested with the public through the Forum before implementation (paragraph 10). This gives the Forum influence but not veto power.

Airservices Australia’s core duty is to implement the Plan progressively in accordance with the schedule. This is not a one-off obligation; paragraph 10 requires ongoing review and adaptation. Specific implementation duties include: by 1 October 1997, produce the first quarterly ANEI contour (paragraph 7.1); as a matter of priority, simulate and evaluate alternatives to the departure track to the south on the 163 VOR radial (paragraph 9.3); and remove the West Pymble beacon at the earliest possible time (paragraph 9.2). The duty to implement flight paths (paragraph 2) is qualified by the need to incorporate amendments in the Proponent’s Statement and to make adjustments necessary for safety and detailed airspace design. This gives Airservices some operational discretion but within the framework of the Plan’s overall structure.

Duty to conduct safety analyses. Paragraph 4 requires Airservices to undertake formal safety analyses of operational components of the Plan before implementation, and to arrange an independent safety review by an independent third party with international expertise. This is a precondition to implementation of any component.

Duty to establish and resource the Implementation and Monitoring Committee. Paragraph 5.1 mandates the committee’s structure and membership. Airservices must appoint a chair (a senior official), include the specified members, and ensure the committee reports through the Chief Executive to the Minister. The committee’s terms of reference (Attachment A) impose monitoring, reporting, comment, and oversight duties on the committee itself, but the ultimate duty to resource and enable the committee rests with Airservices.

Duty to publish reports. Paragraph 8 requires regular reports using standard public-accessible indicators: at least quarterly reports and an annual report. These must be published.

Duty to consult on changes. Paragraph 10 requires that proposed changes to elements of the Plan be tested with the public through the Sydney Airport Community Forum before implementation. This creates a procedural right of the Forum to be consulted, but the Minister retains ultimate decision-making power; the direction does not require Airservices to obtain the Forum’s consent.

Rights of community representatives. The two community representatives on the Implementation and Monitoring Committee are appointed by the Minister, not elected. They have no veto power but can participate in monitoring, reporting, and commenting on operational changes. Their role is to provide a community perspective within an Airservices-chaired body.

No private rights created. The direction does not confer any right on individual residents, airlines, or other parties to enforce its terms. Breaches of the direction are enforceable through the Air Services Act’s internal mechanisms or potentially through judicial review of administrative action, but the direction itself does not create a statutory cause of action for noise-affected persons.

The direction itself does not specify penalties. It is a direction made under subsection 16(1) of the Air Services Act 1996. Enforcement relies on the parent Act. Section 16 of the Air Services Act empowers the Minister to give directions to Airservices Australia with respect to the performance of its functions. Failure to comply with a direction is likely to constitute a breach of Airservices’ statutory duties. Potential consequences include: the Minister may take steps to ensure compliance, possibly through further direction, removal of board members, or other mechanisms under the Air Services Act; the direction may be judicially reviewed if Airservices fails to comply (though standing requirements would apply); and in extreme cases, non-compliance could be grounds for ministerial intervention under other provisions of the Act. However, the direction uses the word “should” throughout the schedule (e.g., “Airservices Australia should implement”, “should introduce”, “should establish”). Despite the permissive tone, as a direction under s 16(1) it is legally binding; the “should” phrasing is a drafting style, not an expression of discretion. In practice, the direction creates mandatory duties subject to the qualifications expressly stated (e.g., safety adjustments, weather permitting). No pecuniary penalties, infringement notices, or criminal sanctions are referenced. The absence of explicit penalty provisions means enforcement relies on administrative and political pressure, with the ultimate sanction being ministerial removal of Airservices board members or a formal direction to take specific action. The Implementation and Monitoring Committee’s reports to the Minister provide a mechanism for transparent accountability; persistent non-compliance would become publicly visible through quarterly and annual reports. The safety review requirement (paragraph 4) carries implicit enforcement: if Airservices implemented a component without first conducting the required safety analysis or independent review, that implementation would be in breach of the direction and could expose Airservices to legal challenge for acting beyond its lawful authority.

Air Services Act 1996. The direction is made under s 16(1) of this Act. It exercises the Minister’s power to give binding directions on the performance of Airservices’ functions. The Act also governs Airservices’ functions, including air navigation services, safety regulation (via delegation from CASA), and charging. The direction does not override any other provision of the Act; it supplements the Act by prescribing operational details for Sydney Airport.

Civil Aviation Act 1988 and Civil Aviation Safety Regulations 1998. The direction expressly recognises safety as a paramount consideration. Flight path implementation (paragraph 2) includes adjustments necessary to satisfy safety requirements. The independent safety review (paragraph 4) must be conducted by a person with international expertise. Compliance with CASA’s safety standards is preserved. The direction does not purport to override any safety regulation; where safety and noise-sharing goals conflict, safety takes precedence because the direction’s own terms require adjustments to meet safety requirements. CASA is also a member of the Implementation and Monitoring Committee.

Environment Protection (Impact of Proposals) Act 1974 (now repealed). The recitals note that the Minister followed this Act’s processes: designation of the Department as proponent, provision of a Proponent’s Statement, and the Minister for the Environment’s determination that neither an EIS nor a PER was required. This direction is the culmination of that environmental assessment. The Act is no longer in force, but at the time it provided the public participation framework.

Sydney Airport Curfew Act 1995. Paragraph 9.4 addresses aircraft tracking during the curfew period (2300-0600): aircraft tracking from Sydney to Bankstown must be at 3,000 feet via non-populous areas of the Royal National Park and Holsworthy military areas. This is consistent with the curfew Act, which restricts scheduled aircraft movements but does not dictate tracking routes. The direction effectively elaborates on the operational implementation of the curfew regime.

Airspace Regulations 2000 (or equivalent military airspace arrangements). Paragraph 9.5 requires Airservices to implement, in conjunction with the Australian Defence Force, in-principle agreements for changes to military airspace surrounding Sydney. This interacts with Defence’s control over military airspace and may require amendments to airspace designations under the Airspace Regulations.

Federal Airports Corporation Act 1986 (now repealed). The Federal Airports Corporation (which managed the airport at the time) is a member of the Implementation and Monitoring Committee. The direction’s operational changes affect airport infrastructure use, but does not override the Corporation’s statutory functions.

No inconsistency with common law nuisance. The direction does not expressly address its effect on common law nuisance claims by residents. By requiring dynamic noise sharing, the direction may reduce the likelihood of nuisance claims against Airservices or the airport operator, but it does not provide a statutory immunity. Residents retain any rights they have at common law, subject to the usual principles of statutory authority.

This instrument is a single, standby direction under s 16(1) of the Air Services Act 1996. It has not been amended on the face of the source text. The direction was issued on 30 July 1997 and took effect from that date. It does not contain a sunset clause or expiry date; paragraph 10 requires Airservices to keep the Plan under review and to test proposed changes with the public before implementation. This implies that the direction can be varied or replaced by a subsequent ministerial direction under the same provision. Any amendment would require a new direction, either revoking or modifying this one. The recitals reference two prior directions: an initial direction on 20 March 1996 requiring the report, and then this direction implementing the resultant Plan. There is no evidence in the source of subsequent amendments. The schedule is integral to the direction; any change to the schedule would require a formal amendment instrument. The direction’s terms of reference for the Implementation and Monitoring Committee (Attachment A) are set out in full; they could be altered only by a fresh ministerial direction. The source text is the original 1997 instrument, not a consolidated version. Given the age (over 25 years), it is highly probable that new directions have superseded parts of this instrument, particularly the operational details and committee structure. However, the source provided does not indicate any amendment history. Practitioners should check the current status of the direction on the Federal Register of Legislation, as this instrument may have been varied, revoked, or replaced by later directions. The direction’s requirement for ongoing review (paragraph 10) and public testing of changes suggests that the Plan itself has evolved over time, but those changes would be implementation decisions within the scope of the original direction, not amendments to the direction itself.

The source text contains no reference to any court proceedings. No cases are cited. The direction is an administrative instrument, not legislation passed by Parliament, so it is not subject to the usual amendment and litigation history of an Act. However, it is possible that the direction has been the subject of judicial review proceedings in the Federal Court or High Court, particularly under the Administrative Decisions (Judicial Review) Act 1977 or the Constitution. Common grounds for challenge could include: that the decision to issue the direction was procedurally flawed (e.g., insufficient environmental assessment), that the direction is unreasonable or ultra vires the Air Services Act, or that it infringes on property rights or common law rights of residents. Given the direction’s age and the politically sensitive nature of Sydney Airport noise, it is plausible that the direction was challenged or that its implementation was contested in litigation involving other parties (e.g., airlines challenging a particular runway mode use, or community groups seeking to enforce noise-sharing provisions). However, without source evidence, we cannot assert that any specific litigation occurred. The direction itself does not contain any privative clause or ouster of judicial review. The Implementation and Monitoring Committee’s decisions and Airservices’ compliance could also be subject to review if they were makeable under the Administrative Decisions (Judicial Review) Act. Practitioners should conduct a case law search for “Sharp v Airservices Australia” or “Sydney Airport Long Term Operating Plan” if advising on the current legal status of the instrument. The litigation history is effectively unknown from the source text provided.

“Should” is mandatory. Practitioners accustomed to statutory interpretation may assume “should” is directory rather than mandatory. In the context of a s 16(1) direction, it is a binding legal command. The direction uses “should” throughout but it is not permissive; it is the Minister’s direction, and non-compliance would be a breach of duty.

Safety override is broad. Paragraph 2 allows “any adjustments necessary to meet the detailed design of the airspace arrangements and to satisfy safety requirements.” This gives Airservices a wide discretion to modify flight paths, potentially undermining noise-sharing goals. A safety justification could be used to avoid implementing a particular runway mode or flight path change. The independent safety review (paragraph 4) is a safeguard, but Airservices itself conducts the formal safety analyses; the independent review is separate but its recommendations are not explicitly binding.

Community representation is ministerial-appointed. The two community representatives on the Implementation and Monitoring Committee are appointed by the Minister, not elected by residents or the Sydney Airport Community Forum. This limits the independence of community input; the Minister could appoint representatives aligned with government policy. The committee reports through Airservices’ Chief Executive to the Minister, not directly to the community or the Forum.

Mode 8 exclusion. Runway mode 8 is initially excluded (paragraph 3.3). It can be introduced later “if experience indicates that it would contribute to the Plan’s objectives.” This is an open-ended string; Airservices could introduce it without public consultation if it deems experience supports it. The broader review obligation (paragraph 10) requires public testing of proposed changes, but that applies to “elements of the Plan”, and mode 8 is already listed as a permitted mode; its introduction may be argued as implementation, not a change.

Noise sharing vs. weather and traffic demands. Paragraph 3.1 requires equitable sharing “taking into account forecast or prevailing weather and traffic levels including the balance between arrivals and departures.” This is a balancing test; if weather or traffic demands high capacity, noise sharing may be abandoned. The criteria in paragraph 3.4(b) give preference to over-water operations and interchanging other modes, but they are all subject to weather and traffic demands. This gives Airservices substantial operational flexibility that could be used to prioritise efficiency over noise equity.

Curfew provision applies only to Bankstown tracking. Paragraph 9.4 is narrow: it applies only to aircraft tracking from Sydney to Bankstown during curfew hours, and only requires tracking at 3,000 feet via non-populous areas. It does not apply to all curfew-period movements, nor does it impose a noise-sharing requirement for those movements.

Noise monitors are discretionary. Paragraph 7.4 requires Airservices to add permanent noise monitors “where appropriate” and to purchase additional mobile monitors. The condition “where appropriate” leaves room for Airservices to decide not to add monitors in certain areas, potentially leaving affected residents without objective noise data.

No direct enforceability for third parties. As noted, the direction creates no private right of action. A resident who believes the noise-sharing goal is not being achieved cannot sue Airservices for breach of the direction; they could seek judicial review of a particular decision, but would need standing and would face the wide discretion granted to Airservices.

For Airservices Australia, compliance is a matter of implementing the schedule progressively and continuously. The first step is to treat the policy direction as a binding operational framework, not a non-binding wish list. Specific actions required:

• Flight paths. Implement the general structure and layout from the Airservices Australia Report maps as amended by the Proponent’s Statement. Make adjustments only for detailed airspace design and safety. Document all adjustments and ensure they align with the direction’s intent.

• Runway selection. Discontinue the former noise abatement requirements permitting runway 16L/16R use with 5-knot downwind. Adopt the new selection criteria: give preference to over-water (mode 4), restrict east-west runway (modes 12 and 13) to weather necessity, and interchange other modes fairly. Mode 8 is initially excluded; do not use it unless and until a decision is made that it contributes to the Plan’s objectives. When runways in the 34 direction are in use, give preference to Runway 34L for arrivals subject to noise-sharing goals.

• Safety review. Before implementing any operational component, conduct formal safety analyses. Also arrange an independent third-party safety review with international expertise. Ensure the independent review is genuinely independent and not just a rubber stamp.

• Implementation and Monitoring Committee. Establish the committee promptly with the specified members (two community representatives appointed by the Minister, plus industry, Federal Airports Corporation, CASA, Department). Chair with a senior Airservices official. Ensure reporting through the Chief Executive to the Minister. Hold regular meetings, produce terms of reference (already provided in Attachment A), and conduct the specific studies listed in paragraph 5.2 (long-haul runway use patterns, trident flight path development, ICAO departure procedure assessment, propeller aircraft departure taxiway restriction, public monitoring systems, noise monitoring terminal review, portable monitor deployment program). Publish committee reports to the SACF and broader community.

• Noise monitoring and reporting. Produce quarterly ANEI contours starting from 1 October 1997, with cumulative 12-month figures. Produce an ANEF as soon as robust forecasts are possible; until then, update ANEC contours every six months. Maintain and enhance the Noise Enquiry Unit with appropriate staffing, equipment, and best-available methodology. Add permanent noise monitors where appropriate, and purchase additional mobile monitors. Publish quarterly and annual reports using standard public-accessible indicators.

• Miscellaneous operational changes. Remove the West Pymble beacon from service at the earliest possible time. Simulate and evaluate alternatives to the 163 VOR radial departure track as a priority. For curfew-period aircraft tracking from Sydney to Bankstown, ensure tracking at 3,000 feet via Royal National Park and Holsworthy. Implement changes to military airspace with the ADF.

• Ongoing review. Continuously monitor the Plan’s performance against its integrity, intent and targets. Before making any change to elements of the Plan, test the proposed change with the public through the Sydney Airport Community Forum. Document the results of that testing and consider them before implementing the change.

• Record-keeping and due diligence. Document all decisions, safety analyses, independent review reports, committee minutes, noise contours, and public consultation outcomes. Maintain compliance records for the Minister and for any future judicial review. Ensure that any exercise of discretion (e.g., adjusting flight paths for safety, mode 8 introduction, decisions not to add permanent monitors) is supported by a clear rationale linked to the direction’s criteria.