Airports (Protection of Airspace) Regulations 2026

The regulations hinge on a small set of technical and administrative concepts that determine scope, process and the applicable rules. Those concepts are defined or operationalised in section 5 and in the substantive provisions that follow.

Prescribed airspace, the central spatial concept, is defined expansively. Section 8(1) prescribes three categories: airspace over any part of an OLS for an airport; airspace over any part of a TIFPOP surface; and airspace specified in a Secretary’s declaration (s 9) connected with an airport. OLS and TIFPOP surfaces are themselves defined or cross‑referenced: OLS as established in Chapter 7 of the Part 139 Manual of Standards 2019 (s 5), and TIFPOP surfaces by reference to terminal instrument flight procedures and the Civil Aviation Safety Regulations 1998 design standards (s 5). The Secretary’s power of declaration (s 9) is constrained to airspace that the Secretary considers is in the interests of safety, efficiency or regularity of existing or future air transport into or out of the airport (s 9(2)), and the declaration must specify the lower boundary of the declared airspace (s 9(4)).

Primary airspace and secondary airspace are critical for distinguishing sensitive from other controlled activities. Primary airspace is the airspace above a primary surface, which is defined to include a TIFPOP surface or specific OLS types such as the approach, inner approach, transitional, baulked landing and take‑off climb surfaces (s 5). Secondary surfaces are listed OLS types such as outer horizontal, conical and inner horizontal surfaces (s 5). Section 6 classifies a controlled activity in relation to prescribed airspace as a sensitive controlled activity if it is carried out in relation to primary airspace, except where the activity is carried out entirely on an airport site, in which case it is not sensitive despite being in primary airspace (s 6(1)-(2)).

Controlled activity is a term taken from Division 4 of Part 12 of the Airports Act 1996 (s 5). The instrument creates rules governing whether an activity is a controlled activity in particular circumstances, for example by setting a turbulence threshold for emissions from stacks or vents (s 10: upward vertical velocity of 6.1 m/s at point of emission), and by addressing activities on terrain that intrudes into secondary airspace (s 7). Section 7 allows certain lower‑height activities on terrain intruding into secondary airspace to be treated differently, provided they are not in primary airspace and for certain activities the height does not exceed 30 metres above ground level.

Decision authority is centralised in the Secretary, subject to statutory obligations and delegations. Part 4 establishes the application process to the responsible entity (s 12), but where the airport‑operator company cannot decide under its own delegation, entire applications and submissions must be forwarded to the Secretary within 30 working days (s 15). The Secretary must approve unless satisfied that carrying out the activity would interfere with safety, efficiency or regularity (s 17(2)), but must refuse where CASA advises of an "unacceptable effect" on safety (s 17(3)(a)), where the airport‑operator company does not support the application (s 17(3)(b)), or where proposed works would intrude into primary airspace unless temporary (s 17(4)). The Secretary may impose conditions on approvals (s 20) and may revoke or vary approvals in the interests of safety, efficiency or regularity (s 21).

Consultation is a formalised ingredient. The responsible entity must notify CASA and, for joint‑user airports, the Department of Defence, and invite submissions within 10 working days of receiving an application (s 14(1)). For activities to which s 7 applies, the responsible entity may also notify Airservices Australia and CASA, and the Department of Defence for joint‑user airports (s 14(2)). If an authority requests a copy of the application, the responsible entity must provide it within 10 working days (s 14(3)).

Process timelines and document rules are tightly specified. Applications must set out particular matters including heights in Australian Height Datum (AHD), duration and purpose (s 12(2)). Applications must be accompanied by a copy of an Airservices Australia assessment if s 7 does not apply (s 12(3)(a)), and, for sensitive controlled activities, by the permission notice under s 13 (s 12(3)(b)). The Secretary has a 40 working day decision period (s 18(1)), may extend by up to 10 working days (s 18(2)), and the time taken to provide requested further documents pauses the clock (s 18(5)). If the Secretary does not decide within the statutory period, the application is deemed refused (s 18(6)). If requested further information is not supplied within 60 working days, the application is taken to have been withdrawn (s 16(2)-(3)).

Delegation is explicit and two‑tiered. The Secretary may delegate to SES or APS EL2 employees in the Department (s 26(1)). The Secretary may also delegate to officers or employees of an airport‑operator company in limited circumstances, specifically for temporary controlled activities and activities covered by s 7, and for s 13 functions in relation to that airport (s 26(2)). Delegates must comply with any written directions from the Secretary (s 26(3)-(4)).

Review rights are preserved. An internal review process applies where a delegate in an airport‑operator company refuses to grant permission under s 13, with the Secretary required to review such a refusal on application within 30 working days (s 24). Further, certain decisions , declarations under s 9, refusals of permission under s 13(8), approvals/refusals under s 17 or deemed refusals under s 18(6), and decisions under s 24 , are reviewable by the Administrative Review Tribunal (s 25).

The instrument links to other legal instruments and operational standards. It is made under the Airports Act 1996 (s 3), references the Part 139 Manual of Standards 2019 and the Civil Aviation Safety Regulations 1998 for design standards and TIFPOP surfaces (s 5), cross‑refers to the Airports (Building Control) Regulations 2025 for the definition of building authority (s 5), and invokes the Administrative Review Tribunal Act 2024 s 266 in notes about review rights (s 13 note, s 19 note, s 24 note). Transitional provisions preserve elements of the 1996 Regulations for certain in‑flight matters (ss 27-28).

Each of these concepts alters incentives and administrative flows in measurable ways, which the remainder of this analysis treats in terms of who pays, who decides, compliance burdens and potential operational trade‑offs.

The instrument distributes duties and decision rights across a set of public and private actors. The principal affected groups, and the statutory responsibilities that attach to them, are as follows.

Applicants and landowners proposing works or emissions that could intrude into prescribed airspace. Anyone proposing a "controlled activity" in prescribed airspace must apply for approval under s 12, unless an exemption applies (s 22 for certain Sydney West works). For activities in primary airspace, the applicant must obtain permission to apply before lodging an application, under s 13. Applicants must supply detailed particulars (s 12(2)), including heights in Australian Height Datum, location, purpose and duration. If the Secretary requests further information, applicants must supply it within 60 working days or their application is taken to be withdrawn (s 16(2)-(3)). Applicants face potential criminal exposure under the Airports Act for carrying out activities without approval (see s 12 Note 2 referencing s 183 of the Act), and may face remedial orders under the Act (s 12 Note 2 referencing s 187).

Responsible entities for airports. The responsible entity, defined in s 5 as either the airport‑operator company or the Secretary where no airport‑operator company exists, carries duties to make a chart of prescribed airspace available for inspection or purchase (s 8(2)), to update the chart within 40 working days after changes (s 8(3)), and to publish a notice that the chart is available within 10 working days (s 8(4)-(5)). Responsible entities receive applications under s 12 and must notify authorities as specified in s 14, and may be required to obtain an Airservices Australia assessment to accompany applications (s 12(3)(a)). If an airport‑operator company receives an application but lacks delegations permitting its officers to decide, it must forward the application and submissions to the Secretary within 30 working days and state whether it supports the application (s 15).

Airport‑operator companies and their delegates. An airport‑operator company may receive applications and, where the Secretary has delegated functions under s 26(2), may have officers authorised to make decisions on temporary controlled activities and activities covered by s 7. Delegated officers must notify prescribed parties of decisions in accordance with s 19(2). Additionally, a delegate in an airport‑operator company who refuses permission under s 13 triggers internal review rights to the Secretary under s 24.

Airservices Australia. Airservices is incorporated into the approval process in multiple places. Applications (other than where s 7 applies) must be accompanied by an assessment by Airservices Australia obtained by the responsible entity (s 12(3)(a)). Responsible entities must consult Airservices Australia for certain applications and may give it notice and invite submissions (s 14(2)). Airservices Australia is a notified party for decisions under s 19.

Civil Aviation Safety Authority (CASA). CASA is a statutory consultee for all applications; the responsible entity must give CASA written notice and invite submissions within 10 working days of receiving an application (s 14(1)(a)(i)). CASA’s advice terminates applications in certain circumstances: if CASA advises that the controlled activity would have an unacceptable effect on safety, the Secretary must refuse (s 17(3)(a)). CASA is a mandatory notification recipient for decisions (s 19(1)(a)(iii)-(2)(a)(ii)).

Department of Defence. For joint‑user airports, the Department of Defence must be notified of applications and decisions (s 14(1)(a)(ii), s 19(1)(b), s 19(2)(b)). The Department is expressly listed when an airport is a joint‑user airport in several provisions.

Building authorities. The definition of building authority in s 5 links to the Airports (Building Control) Regulations 2025 and to the person or body authorised to regulate building activities off airport sites. Building authorities must notify the airport‑operator company of any proposal that would constitute a controlled activity as soon as reasonably practicable and before a final decision is made (s 23(2)-(3)). Failure to notify is an offence under the Airports Act (s 23 Note).

The Secretary and Departmental officials. The Secretary is the central decision maker for applications where no airport‑operator company delegate can decide (s 15), and must approve unless satisfied of interference with safety, efficiency or regularity (s 17(2)). The Secretary may make declarations of additional prescribed airspace (s 9) and must have regard to CASA advice and final master plan changes where applicable (s 9(3)). The Secretary may delegate to SES or EL2 employees in the Department (s 26(1)), and may delegate selected functions to airport‑operator officers (s 26(2)).

Members of the public and purchasers of charts. The responsible entity must make the chart available for inspection or purchase (s 8(2)) and publicise chart updates (s 8(4)-(5)). This creates an information flow that affects prospective developers, surveyors, planners and local councils who must consider prescribed airspace for land‑use and development decisions.

Those affected by the Sydney West exemption. Section 22 creates an exemption from Division 4 of Part 12 of the Airports Act for controlled activities connected with Sydney West Airport where an airport plan is in force and the development is covered by Part 3 of that plan, provided the activity is not carried out after 30 June 2026. This provision affects projects and approvals that fall within that narrow temporal and plan‑based window.

Legal representatives and administrative reviewers. The instrument specifies internal and tribunal review channels (ss 24-25). A person refused permission to apply under s 13 by a delegate in an airport‑operator company may seek internal review by the Secretary within tight time limits (s 24). Certain decisions are reviewable by the Administrative Review Tribunal under s 25.

Operationally, the regulations allocate costs and information duties in ways that matter to stakeholders. Applicants must assemble technical documentation and respond to information requests within strict timelines (ss 12, 16). Responsible entities are tasked with securing Airservices assessments and making prescribed airspace charts publicly available (s 8, s 12(3)(a)). CASA and Airservices are elevated as gatekeepers on safety grounds (s 14, s 17). Airport‑operator companies are given potential decision rights by delegation, but also required to forward applications and declare their support or opposition to the Secretary where they cannot decide (s 15). These allocations create incentives for early engagement between applicants, airport operators and the aviation authorities, and impose potential delays and compliance costs where documentation, assessments and permissions are required.

The instrument establishes a set of specific procedural duties, substantive constraints and rights to administrative review. The following is a précis of those duties and rights keyed to the operative provisions.

Duties to apply and to obtain permission. Anyone proposing a controlled activity in prescribed airspace must apply for approval under s 12, unless an exemption applies. A special duty applies for sensitive controlled activities (those in primary airspace), where the prospective applicant must first obtain written permission to apply under s 13(1). Section 13 sets out the form and content of the request for permission and specifies grounds on which the Secretary may grant the permission: (a) the activity is a temporary controlled activity required for emergency recovery/restoration/public infrastructure works (s 13(5)); (b) the activity is a temporary controlled activity and it is reasonably likely it can be carried out without significant interference to airport operations (s 13(6)); or (c) exceptional circumstances exist that justify permitting an application for a temporary controlled activity (s 13(7)). The Secretary must refuse permission if the applicant’s submissions do not satisfy the statutory tests (s 13(8)).

Application content obligations. Section 12(2) prescribes required particulars: a description of the proposed activity, location, duration and purpose; for building works, proposed maximum heights expressed in Australian Height Datum; and for activities covered by s 7 that involve erection of structures, maximum heights above ground level for the works and temporary equipment (s 12(2)(e)-(f)). Applications must be accompanied by, where relevant, an Airservices Australia assessment obtained by the responsible entity (s 12(3)(a)) and the permission notice for sensitive controlled activities (s 12(3)(b)). Applicants may withdraw applications prior to decision (s 12(4)), but withdrawn applications are taken never to have been made (s 12(5)).

Consultation duties. The responsible entity must notify and invite submissions from CASA for all applications and, where the airport is joint‑use, the Department of Defence (s 14(1)). For activities to which s 7 applies, the responsible entity may also notify Airservices Australia (s 14(2)). If any authority requests a copy of the application, the responsible entity must provide it within 10 working days (s 14(3)).

Duty to publish and keep charts up to date. The responsible entity must make charts of prescribed airspace available for inspection or purchase (s 8(2)). Where the prescribed airspace changes, the responsible entity must bring the chart up to date within 40 working days and publish a notice that the new or updated chart is available within 10 working days (s 8(3)-(5)). The notice must be reasonably prominent and accessible to the public (s 8(5)).

Decision duties of the Secretary. Section 17 imposes a duty to approve or refuse. The Secretary must approve unless satisfied the controlled activity would interfere with the safety, efficiency or regularity of existing or future air transport operations into or out of the airport (s 17(2)). Mandatory refusal grounds include CASA advice of an unacceptable effect on safety (s 17(3)(a)), and lack of support from an airport‑operator company where such a company exists (s 17(3)(b)). Additionally, the Secretary must refuse any application that would result in a building, structure or thing intruding into primary airspace unless the controlled activity is temporary (s 17(4)). The Secretary must take into account opinions of the applicant, the airport‑operator company and any authority that made submissions (s 17(5)(a)), and may consider other relevant matters (s 17(5)(b)).

Timing duties and deemed refusal. A decision must be made within 40 working days after the application, with a possible extension of up to 10 working days given by written notice (s 18(1)-(3)). Time stops when the Secretary requests further information until the first working day after the information is provided (s 18(5)). If the Secretary fails to decide within the statutory period (including any extension), the Secretary is taken to have refused the application (s 18(6)). The Secretary must notify the applicant of any deemed refusal as soon as practicable (s 19(3)).

Conditioning, variation and revocation powers. Approvals may be subject to conditions if the Secretary reasonably believes that carrying out the controlled activity without conditions would not be in the interests of safety, efficiency or regularity (s 20(1)). Conditions may be about how, when or by whom the controlled activity is carried out and may include completion dates, marking or lighting requirements and management plans (s 20(2) and Note 1). The Secretary may also revoke an approval or impose or vary conditions where necessary in the interests of safety, efficiency or regularity (s 21).

Notification and information duties on decision makers. Decisions made by the Secretary or departmental delegates must be notified in writing, as soon as practicable, to the applicant, airport‑operator company, CASA, Airservices Australia, the building authority and, where applicable, the Department of Defence (s 19(1)). Where an airport‑operator company officer decides under a delegation, the notification list differs slightly, and the airport‑operator company receives separate notice obligations (s 19(2)).

Delegation and direction powers. The Secretary may delegate functions to SES or EL2 employees in the Department (s 26(1)). The Secretary may also delegate selected functions to officers or employees of an airport‑operator company for that airport, limited to temporary controlled activities, activities to which s 7 applies, and any of the Secretary’s functions under s 13 in relation to that airport (s 26(2)). Delegates acting under either form of delegation must comply with written directions of the Secretary (s 26(3)-(4)).

Building authority notification duty. Building authorities that receive proposals for building activity that would constitute a controlled activity must notify the airport‑operator company as soon as reasonably practicable and before a final decision is made (s 23(2)-(3)). This duty does not apply where the proposed activity is exempt under the Sydney West exemption (s 23(4)). The note to s 23 records that a building authority that fails to comply commits an offence under the Act.

Review rights. Internal review is available where an airport‑operator company delegate refuses permission for a sensitive controlled activity: the applicant may request review by the Secretary within 10 working days of notification, and the Secretary must decide within 30 working days (s 24). The Administrative Review Tribunal may review specified decisions including Secretary declarations under s 9, refusals of permission under s 13(8), decisions under s 17 or deemed refusals under s 18(6), and decisions under s 24 (s 25).

Penalty framework referenced. The instrument references offences and penalties in the Airports Act. It notes that carrying out a controlled activity other than in accordance with an approval may constitute an offence under s 183 and attract remedial orders under s 187 (s 12 Note 2). It also records that contravening a condition of an approval may attract a penalty of 250 penalty units under s 185 of the Act (s 20 Note 2). The building authority notification duty is likewise backed by an offence under the Act (s 23 Note).

Collectively, these duties and rights create an administrative architecture in which applicants carry document and timing burdens, responsible entities hold information disclosure and consultation duties, CASA and AirservicesAustralia operate as safety consultees and arbiters, airport‑operator companies may be delegated limited decision rights but also bear forwarding responsibilities, and the Secretary retains ultimate statutory control over declarations and approvals, backed by suspension, revocation and conditioning powers. Decision timelines and deemed refusals allocate procedural risk to both applicants and the Secretary.

The instrument itself contains few independent penalty provisions, but embeds enforcement consequences by cross‑reference to the Airports Act 1996 and by specifying behaviours that will attract statutory consequences under that Act.

Offences referenced in the instrument. The instrument expressly warns that undertaking a controlled activity other than in accordance with an approval may give rise to an offence under section 183 of the Airports Act 1996, and that remedial orders may be made under section 187 of the Act (s 12 Note 2). It similarly notes that carrying out a controlled activity otherwise than in accordance with a condition of approval may contravene section 185 of the Act, which the instrument records carries a penalty of 250 penalty units for each such offence (s 20 Note 2). The requirement for building authorities to notify airport‑operator companies of building proposals that would be controlled activities is also linked to an offence under the Airports Act, as noted at s 23 Note.

Implied enforcement pathways. While the Regulations set out administrative processes and decision‑making duties, the enforcement levers and penalty quantum (other than the one illustrative reference to s 185 as 250 penalty units) reside in the Airports Act. That Act, not reproduced here, provides the statutory offences (for example the referenced ss 183, 185 and 187) and mechanisms for enforcement and remedial action. The Regulations therefore operate as the procedural and definitional scaffolding for enforcement action that may be taken under the Act.

Administrative revocation, variation and conditions as regulatory enforcement. The Secretary is authorised to impose conditions on approvals where necessary for safety, efficiency or regularity (s 20), and to revoke or vary approvals in those same interests (s 21). Those powers are administrative enforcement tools that can be exercised without criminal process, and they enable regulators to modify or terminate rights to carry out controlled activities post‑approval when new information or changing circumstances warrant it. Conditions may require specific operational measures such as marking and lighting or completion dates (s 20 Note 1). Failure to comply with a condition may convert into a criminal offence under the Act (s 20 Note 2).

Deemed refusal and procedural enforcement. The deemed refusal mechanism in s 18(6) operates as a form of deadline enforcement: if the Secretary does not decide within the statutory period (including permitted extension), the application is taken to have been refused. Deemed refusal shifts the immediate remedy to the applicant, who may then seek Administrative Review Tribunal oversight under s 25. Deemed refusal also imposes practical costs on applicants (delay or re‑application risk), and is an enforcement backstop ensuring decisions are made within a bounded period.

Information and notice duties backed by offence. The duty on building authorities to notify the airport‑operator company of proposals for building activity that would be controlled activities is coupled with an offence under the Act (s 23 Note). The Regulations therefore create an obligation on building regulators to supply information that supports enforcement of airspace protections. The responsible entity’s obligation to make charts publicly available and update them on changes (s 8(2)-(5)) is not, in the instrument, explicitly linked to a penalty; however the availability requirement imposes an administrative duty whose breach would likely have consequential regulatory and legal implications in context.

Review and appeal as enforcement checks. The instrument preserves internal review (s 24) and Administrative Review Tribunal oversight (s 25) for certain decisions. These avenues provide administrative law checks on decisions, enabling applicants or affected parties to seek remedies short of criminal enforcement. Tribunal review is listed for s 9 declarations, refusals of permission under s 13(8), refusals under s 17 (and deemed refusals under s 18(6)), and decisions under s 24 (s 25). The presence of these review rights shapes enforcement by allowing judicially reviewable scrutiny of alleged procedural or substantive error by decision makers.

Inter-agency enforcement levers. CASA and Airservices are given formal consultative roles. CASA’s advice that a controlled activity would have an unacceptable effect on safety is a mandatory refusal trigger (s 17(3)(a)). This elevates CASA’s technical assessments into de facto enforcement inputs; a safety opinion from CASA can terminate an application on safety grounds without further administrative discretion. Airservices assessments are required to accompany many applications (s 12(3)(a)), and those assessments feed into the Secretary’s decision under s 17 and the consultation obligations under s 14. Thus technical advisory agencies are functionally integrated into the enforcement chain.

Temporal and scope limits on exemptions can affect enforcement. The instrument creates a narrow exemption for controlled activities connected with Sydney West Airport where an airport plan is in force and the activity is covered by Part 3 of that plan, but only if the activity is not carried out after 30 June 2026 (s 22). Activities outside this narrow temporal and plan‑based window remain subject to the Act and the Regulations, and non‑compliance may therefore be enforced.

In sum, the Regulations provide the architecture and procedural obligations that enable enforcement under the Airports Act 1996, elevate technical agencies (CASA, Airservices) to decisive roles in enforcement outcomes, authorise administrative conditionality and revocation, and preserve internal and tribunal review as checks on exercise of power. They do not create many standalone penalty provisions; instead enforcement primarily flows through the Act’s offence and remedial regime as signposted by the instrument.

The Regulations are expressly made under the Airports Act 1996 (s 3) and are designed to operate in concert with other aviation, administrative and planning instruments. Several cross‑references and dependencies are embedded in the text.

Dependence on the Airports Act 1996. The Regulations implement and detail provisions in Part 12 of the Airports Act concerning prescribed airspace and controlled activities. Numerous procedural and offence consequences are tied back to the Act: carrying out a controlled activity without approval or in breach of conditions references the Act’s offence provisions (s 12 Note 2, s 20 Note 2 and s 23 Note). The Regulations do not duplicate the Act’s substantive penalties, but rely on the Act to provide enforcement teeth.

Civil Aviation instruments and standards. The Regulations reference technical aviation standards and instruments. OLS are defined by reference to Chapter 7 of the Part 139 (Aerodromes) Manual of Standards 2019 (s 5), and TIFPOP surfaces are linked to terminal instrument flight procedure design standards required by regulation 173.085 of the Civil Aviation Safety Regulations 1998 (s 5). Section 10 uses an aerodynamic parameter (upward vertical velocity of 6.1 metres per second at the point of emission) for turbulence caused by emissions from a stack or vent to operationalise subparagraph 182(1)(f)(i) of the Act. These cross‑references integrate the Regulations with ongoing regulatory standards administered by CASA and Airservices and anchor spatial definitions to contemporary aviation technical standards.

Airports (Building Control) Regulations 2025. The definition of building authority in s 5 refers to the airport building controller within the Airports (Building Control) Regulations 2025 for airport sites, and to the person or body authorised by law to regulate building activities elsewhere. This links building approvals law with the airspace protection regime by imposing notification obligations (s 23).

Administrative Review Tribunal Act 2024. The instrument invokes administrative review procedures and references s 266 of the Administrative Review Tribunal Act 2024 in notes regarding notification of review rights for those refused permission under s 13 and for deemed refusals under s 18(6) (see notes to s 13 and s 19, and s 24 note). The Regulations list specified decisions reviewable by the Administrative Review Tribunal (s 25), which interfaces the Regulations with administrative law remedies and adjudication processes.

Existing Airports (Protection of Airspace) Regulations 1996 and repeal. Transitional provisions preserve certain declarations and pending applications made under the 1996 Regulations (ss 27-28). Regulation 27 continues the 1996 Regulations for applications made under regulation 7 of the 1996 Regulations before the commencement of the repeal regulations, and regulation 28 preserves declarations that were in force under regulation 5 of the 1996 Regulations as if made under s 9 of the new instrument. The instrument therefore creates continuity with prior regulatory decisions while laying down new procedures.

Department of Defence and Defence Act 1903. The definition of Department of Defence refers to the Department administered by the Minister administering section 1 of the Defence Act 1903 (s 5). For joint‑use airports, the Department of Defence is a mandatory consultee in the application process and must be notified of decisions (s 14(1)(a)(ii), s 19(1)(b)). This binds the Regulations into the broader interplay of civil and defence aviation use.

Local and planning law interface. Although the Regulations do not directly alter states’ land‑use laws, they create procedural and informational linkages relevant to planning decisions. The duty on building authorities to notify airport‑operator companies of proposals for building activities that would constitute controlled activities (s 23) places local planning regulators within the airspace protection governance chain. The requirement for responsible entities to make prescribed airspace charts available publicly (s 8(2)-(5)) supplies spatial data that is germane for planning approvals, environmental assessments and development consent processes.

Operational agency roles and inter‑instrument dependencies. CASA and Airservices are required consultees and technical inputs in multiple places (s 12(3)(a), s 14, s 17(3)(a), s 19). Decisions made under the Regulations will therefore interact with CASA’s separate regulatory regimes under the Civil Aviation Safety Act and associated regulations. The Secretary must have regard to CASA advice when making declarations (s 9(3)(a)(ii)).

Administrative delegation law. The Secretary’s delegation powers are subject to Acts Interpretation Act principles (s 26 Note referencing ss 34AA-34A). Delegations to airport‑operator company officers are limited in scope (temporary activities, s 7 activities and s 13 functions) and are subject to written directions (s 26(2)-(4)), which creates an implementation layer that must align with the broader executive delegation framework.

In sum, the Regulations operate as a specialised procedural layer sitting on top of the Airports Act and interfacing with aviation technical standards, building control rules, administrative review law and defence arrangements. Anyone operating at the intersection of planning, construction and aviation must account for these cross‑instrument interactions, including technical standards, consultation obligations and potential overlaps with state and local building approval regimes.

This instrument is presented as a newly made instrument, with a single commencement entry and transitional provisions bridging from the earlier 1996 Regulations. The text contains only what follows; it does not record subsequent amendments.

Commencement and original making. The instrument records that the whole instrument commences on 1 April 2026 (s 2). The front matter records the Governor‑General and Ministerial signatories dated 5 March 2026. Section 3 identifies the statutory authority as the Airports Act 1996.

Transitional continuity with the 1996 Regulations. The instrument contains transitional provisions that preserve certain prior legal acts. Regulation 27 preserves the Airports (Protection of Airspace) Regulations 1996 for applications made under regulation 7 of the 1996 Regulations before the commencement of the Airports (Protection of Airspace) Legislation (Repeal and Consequential Amendments) Regulations 2026 (s 27). Regulation 28 continues in force any declaration that was in force under regulation 5 of the 1996 Regulations immediately before the commencement of the repeal instrument, and treats them as if made under s 9 of the new instrument (s 28). These transitional clauses ensure that pre‑existing decisions and applications are not invalidated or stranded by the regime change.

No amendment schedule recorded. The instrument does not list later amendments; the commencement table expressly notes it relates only to the provisions as originally made (s 2 Note). There is no schedule of amendments, no later historical entries inside the instrument text, and no recorded variations. Users should therefore take the instrument as the initial text subject to future legislative amendment processes (which would appear in amending instruments or consolidated versions outside this document). The instrument also includes a note that information in the commencement table column 3 is not part of the instrument and may be edited in published versions (s 2(2)), a housekeeping detail relevant to how consolidated web‑published versions may display metadata.

Relationship to other instruments and potential consequential amendments. The instrument references the Airports (Building Control) Regulations 2025, the Part 139 Manual of Standards 2019, and the Civil Aviation Safety Regulations 1998; those instruments may themselves be amended independently. The instrument was made contemporaneously with "Airports (Protection of Airspace) Legislation (Repeal and Consequential Amendments) Regulations 2026" (referenced in the transitional provisions), indicating a legislative package approach that included repeal of prior regulations and consequential changes. The text does not include the repeal instrument itself, but the transitional references show the drafters anticipated a statutory substitution of the 1996 Regulations.

Practical implication for practice. Because the instrument is newly made and carries transitional arrangements, practitioners should assume (a) certain existing declarations remain in force as carried over; (b) pending applications governed by the old regulation continue under the old rule specified in s 27; and (c) any future changes to relevant manuals, CASA standards, or the Airports Act could alter application of these Regulations. The instrument’s delegation provisions (s 26) and reliance on external technical assessments (s 12(3)(a)) also mean that operational amendments to those delegated authorities’ internal policies can have practical effect without amendment to the Regulations themselves.

No retrospective amendments recorded beyond transitional bridging. The instrument does not purport to apply retrospectively beyond the transitional scope in ss 27-28. For projects straddling the commencement date, the transitional provisions dictate which regime applies to specific applications and declarations. Practitioners dealing with legacy approvals should therefore review the 1996 Regulations for any pending matters preserved by the transitional provisions.

The Regulations text supplied contains no report of litigation or judicial decisions concerning the instrument. There are no cases named in the Regulations, and no court decisions or tribunal determinations are referenced in the instrument itself.

Statutory review channels and likely litigation pathways. While no litigation history is recorded, the instrument establishes administrative review and tribunal pathways that are likely to be the appropriate fora for disputes arising from its application. Section 24 creates an internal review process by which an applicant refused permission by an airport‑operator company delegate under s 13 can have that decision reviewed by the Secretary. Section 25 expressly permits applications to the Administrative Review Tribunal for review of decisions under specified provisions: Secretary declarations under s 9, refusals to give permission under s 13(8), decisions of the Secretary under s 17 or deemed refusals under s 18(6), and decisions of the Secretary under s 24 (s 25). The instrument further references s 266 of the Administrative Review Tribunal Act 2024 in notes accompanying specified refusal notifications, indicating that statutory notices must include information about review rights (see notes to s 13 and s 19 and the note to s 24).

Potential grounds for litigation. Given the decision‑making architecture in the Regulations, litigation or tribunal review would most likely focus on procedural fairness, statutory interpretation, failure to take into account relevant materials, improper reliance on particular technical assessments, or unreasonableness and jurisdictional error in the Secretary’s exercise of discretion under s 17. The Regulations require the Secretary to have regard to opinions of the applicant and the airport operator and any authority that made submissions (s 17(5)(a)); failure to consider such mandatory matters could be a basis for review. Deemed refusals under s 18(6) will also generate tribunal claims where applicants argue the Secretary failed to make a lawful decision within the time permitted.

Internal review as a mandatory preliminary step in certain cases. For refusals to grant permission to apply for sensitive controlled activities where the refusal was made by an airport‑operator company delegate under s 13, the Regulations require an internal review by the Secretary if sought under s 24. The applicant must request review within 10 working days and set out reasons (s 24(2)-(3)); the Secretary must review and decide within 30 working days (s 24(4)-(5)). The existence of this compulsory internal review process, and a deemed affirmation if the Secretary does not respond in time (s 24(8)), will influence the litigation pathway. Tribunal review under s 25 includes decisions under s 24, so applicants denied permission can both pursue internal review and thereafter challenge the Secretary’s decision at the Tribunal.

No recorded judicial precedent. Because the instrument is new and the supplied text contains no litigation history, there is no recorded precedent interpreting these Regulations. Any judicial or tribunal decisions interpreting the Regulations will be important for clarifying issues such as the scope of the Secretary’s discretion under s 9, the meaning of "interfere with the safety, efficiency or regularity" under s 17(2), the threshold of "unacceptable effect" in CASA’s advice in s 17(3)(a), and the interplay between temporary controlled activities and the s 17(4) prohibition on intrusion into primary airspace.

Practical note for practitioners. In the absence of established litigation history, practitioners should carefully document procedural steps, submit comprehensive technical materials (including responding to any Airservices requests), preserve communications with responsible entities and airport‑operator companies, and be prepared to deploy internal review (s 24) before tribunal remedies under s 25 where the regulations so require. Accurate records will be critical if litigation or tribunal review arises because the Regulations place emphasis on prescribed timelines, required particulars and mandatory consultation inputs.

The Regulations contain several nuanced provisions and timing traps that can yield practical pitfalls. The following items identify concrete "gotchas" rooted in the statutory text that practitioners, applicants and authorities should watch for.

Permission required before applying for sensitive controlled activities. A person must not apply under s 12 for approval to carry out a sensitive controlled activity unless they have first been given permission under s 13(1). For activities in primary airspace (s 6), this permission is mandatory. Applicants who proceed to apply without the s 13 permission risk having the application invalid or being non‑compliant with the procedural prerequisites. The permission regime constrains applicants to show either emergency/essential public works, a lack of likely interference to operations, or exceptional circumstances, and is limited to temporary controlled activities in the grant conditions (s 13(5)-(7)).

Airservices assessment requirement and the practical cost/ownership ambiguity. Section 12(3)(a) requires that the application be accompanied by a copy of an assessment by Airservices Australia obtained by the responsible entity, unless s 7 applies. The instrument places the onus on the responsible entity to obtain the assessment, not the applicant. However, the instrument does not specify who pays for that assessment or how quickly the responsible entity must obtain it. This creates potential operational friction: the applicant cannot lodge a complete application without the assessment copy, but the responsible entity controls procurement of that assessment. Practitioners should therefore engage early with the responsible entity to understand timing and cost allocation for Airservices assessments.

Deemed refusal traps. The Secretary must decide within 40 working days, with possible extension of up to 10 working days, and time is tolled only when further information is requested and until the first working day after that information is provided (s 18(1)-(5)). If the Secretary fails to decide within the statutory period, the application is taken to have been refused (s 18(6)). Applicants who rely on inaction as an implicit approval will be disappointed; the default is refusal, not approval. Deemed refusal may prompt tribunal review and restart the application cycle, so applicants should monitor the decision timeline carefully and be prepared to pursue internal or tribunal remedies.

Application withdrawal and information deadlines. The Secretary may request further information or documents that must be supplied within 60 working days (s 16(1)-(2)). If the applicant fails to provide those materials, the application is taken to have been withdrawn (s 16(3)). This is a strict deadline risk: an applicant expecting more time or delayed in assembling materials risks automatic withdrawal and the need to reapply, restarting the clock and incurring additional costs.

Height metrics and datum specificity. The Regulations require heights to be stated in Australian Height Datum when the activity consists of the erection of a building, structure or thing (s 12(2)(e)(i)). For activities covered by s 7, certain heights must be given above ground level (s 12(2)(f)). Confusion between AHD and above ground level submissions could lead to non‑compliance or mischaracterisation of intrusion. Practitioners should ensure survey and design documentation clearly distinguishes datum and units, and that temporary equipment heights are included.

Sensitive controlled activities exclusion for airport site works. A controlled activity in primary airspace is not a sensitive controlled activity if it is carried out entirely on an airport site (s 6(2)). This means that works within airport fences may avoid the s 13 permission hurdle even when they intrude into primary airspace. However, the definition of "airport site" is in the Act and may vary; practitioners must check site boundaries and ownership to determine whether s 6(2) applies.

Terrain intrusions and the 30 metre rule. Section 7 applies where terrain intrudes into a secondary surface and the activity is not in primary airspace. For activities falling under paragraph 182(1)(a), (b) or (c) of the Act, the height of the building, structure or thing is capped at no more than 30 metres above ground level for s 7 to apply (s 7(c)). Misreading whether an activity falls within s 7 or primary airspace can affect whether Airservices assessment is required, whether the responsible entity must consult Airservices, and whether airport‑operator company delegations can apply.

Delegation pitfalls. The Secretary may delegate functions to airport‑operator company officers limited to temporary controlled activities and s 7 activities, and to perform s 13 functions for that airport (s 26(2)). Where an airport‑operator company officer refuses permission under s 13, internal review by the Secretary is available (s 24). However, if the company lacks delegations for particular applications, s 15 requires that the company must forward the application and submissions to the Secretary within 30 working days and advise whether it supports the application. Delays or failures in that forwarding obligation can stall applications or create uncertainty over who holds decision authority.

Public availability of prescribed airspace charts and update timelines. Responsible entities must make charts available and update them within 40 working days of a change and publish a notice within 10 working days (s 8(2)-(5)). Practitioners cannot rely on informal or out‑of‑date charts; the statutory chart is the official instrument. Failure by a responsible entity to publish or update charts promptly may leave applicants without accurate spatial information, but the Regulations do not specify remedies for chart‑availability failures. Applicants should require confirmation of current chart status before finalising design or committing to works.

Sydney West exemption scheduling risk. The exemption in s 22 is tightly time‑limited: a controlled activity connected to Sydney West Airport is exempt from Division 4 of Part 12 of the Act only if an airport plan is in force, the development is covered by Part 3 of that plan, and the activity is not carried out after 30 June 2026 (s 22). Projects that rely on the exemption but that overrun that date will lose the exemption and become subject to the full approval regime, potentially exposing developers to enforcement risk.

Building authority notification duty. Building authorities must notify airport‑operator companies if a proposal would constitute a controlled activity, and must do so before a final decision (s 23(2)-(3)). Failure to notify is an offence under the Act (s 23 Note). Local approval authorities need to integrate this duty into their workflow to avoid legal risk and to ensure airport operators can protect airspace interests early in the planning process.

CASA’s "unacceptable effect" terminates applications. If CASA advises the Secretary that carrying out the controlled activity would have an "unacceptable effect" on safety, the Secretary must refuse (s 17(3)(a)). The Regulations therefore magnify the importance of CASA technical engagement; a negative CASA view is dispositive. Applicants should plan for early CASA engagement and address potential CASA concerns in the application materials.

Document supply and the responsible entity’s control. The Airservices assessment must be obtained by the responsible entity (s 12(3)(a)), and responsible entities may be gatekeepers for copies of applications when requested by other authorities (s 14(3)). This centralises information control with the responsible entity, which may be a private airport‑operator company. Applicants should be aware that the responsible entity’s processes, timelines and priorities will materially affect application completion and decision timing.

In combination, these "gotchas" show the importance of precise technical documentation, early stakeholder engagement (CASA, Airservices, airport operator and building authorities), careful attention to timelines, and understanding of delegation pathways. The Regulations place procedural forms and data requests at the core of the approval path, so small procedural missteps can become large practical delays.

This section provides a practical compliance checklist and recommended sequencing for applicants, responsible entities, airport‑operator companies, building authorities and other stakeholders based strictly on the obligations and mechanisms set out in the Regulations.

Preliminary mapping and chart checks

• Before any design or contract commitment, obtain the current prescribed airspace chart for the airport concerned from the responsible entity, which must make it available for inspection or purchase (s 8(2)). Confirm whether changes to the chart have been made recently and whether the chart on file is the updated version (s 8(3)-(5)).
• Determine whether the proposed activity would be within OLS, TIFPOP or declared airspace (s 8(1)), and whether it relates to primary or secondary airspace for the airport (s 5). For primary airspace intrusions, treat the activity as a potential sensitive controlled activity (s 6).

Determine whether permission is required (s 13)

• If the activity is in primary airspace and is not entirely on an airport site, you must not apply under s 12 unless you first obtain permission under s 13(1). Prepare the s 13 request with the particulars required by s 13(4): proposed activity, location, duration, heights in AHD, and one of the items in s 13(4)(e) (emergency works, how the activity can avoid significant interference, or exceptional circumstances).
• Frame the request to match the statutory grounds for permission: temporary activity required for emergency/public infrastructure works (s 13(5)); temporary activity reasonably likely to be carried out without significant interference to airport operations (s 13(6)); or exceptional circumstances for temporary controlled activities (s 13(7)). If permission is refused under s 13(8) by an airport‑operator company delegate, note internal review rights to the Secretary under s 24 and comply with the 10 working day request deadline for review (s 24(2)).

Prepare a compliant application under s 12

• Ensure the application contains the required particulars under s 12(2): full description, precise location, proposed duration, purpose, proposed maximum heights in Australian Height Datum for permanent and temporary structures and equipment (s 12(2)(e)), and, where s 7 applies, heights above ground level as required (s 12(2)(f)).
• If the application is for a controlled activity to which s 7 does not apply, expect the responsible entity to obtain an Airservices Australia assessment and to require a copy with the application (s 12(3)(a)). Engage the responsible entity early to ascertain timeline and any cost arrangements for obtaining that assessment. Ensure your project schedule allocates time for the responsible entity to procure the assessment.
• If the controlled activity is a sensitive controlled activity, include the s 13 permission notice with the application (s 12(3)(b)).

Engage early with stakeholders

• Notify or consult the airport‑operator company (if any) at the earliest stage, because the company may have delegations or may be required to forward the application and express support or opposition within 30 working days (s 15). Early engagement can surface operational constraints that CASA or Airservices will raise.
• Expect the responsible entity to give written notice to CASA, and to invite CASA to make submissions within 10 working days of receiving the application (s 14(1)(a)(i)). For joint‑user airports, the Department of Defence must also be given notice (s 14(1)(a)(ii)).
• For activities to which s 7 applies, the responsible entity may notify Airservices Australia and CASA and invite submissions (s 14(2)). If an authority requests a copy, the responsible entity must provide it within 10 working days (s 14(3)).

Manage timelines and information requests

• The Secretary (or delegated decision maker) must make a decision within 40 working days beginning on the first working day after the day the application is made (s 18(1)). The Secretary may extend the decision period by up to 10 working days with written notice to the applicant and airport‑operator company (s 18(2)-(3)). Be prepared to monitor the decision clock and request updates.
• If the Secretary requests further information under s 16(1), you must provide the requested documents within 60 working days, or the application is taken to be withdrawn (s 16(2)-(3)). Time during the period from the request to the first working day after the information is given is excluded from the 40 working day decision period (s 18(5)). Keep tight control over response deadlines to avoid automatic withdrawal.
• If contesting a delay, be aware that failure to obtain a decision within the statutory decision period results in deemed refusal (s 18(6)), which is an enforceable outcome that can then be taken to the Administrative Review Tribunal under s 25.

Anticipate CASA and Airservices positions

• CASA’s view is decisive on safety: if CASA advises that the activity would have an unacceptable effect on safety, the Secretary must refuse (s 17(3)(a)). Engage CASA early, address technical safety concerns in the application, and, where practicable, obtain supporting technical documentation to rebut likely CASA points.
• Airservices assessments are required and will feed into the Secretary’s decision. Consider commissioning your own technical reports and modelling so you can respond promptly to any questions raised by Airservices.

Prepare for conditions and post‑approval obligations

• The Secretary may condition approvals regarding how, when or by whom the activity is carried out (s 20(1)-(2)). Typical conditions cited in the instrument include completion dates, marking or lighting, management plans and communications plans (s 20 Note 1). Prepare compliance systems to manage conditions and avoid contravening a condition, which could attract penalties under the Act (s 20 Note 2).
• Be aware that approvals may be revoked or varied where necessary for safety, efficiency or regularity (s 21). Maintain surveillance of operational changes or new technical information that might provoke a variation or revocation.

Building authority and local planning compliance

• Building authorities must notify the airport‑operator company of proposals that would constitute a controlled activity, as soon as reasonably practicable and before a final decision (s 23(2)-(3)). If you are a local planning authority, integrate this notification step into standard referral templates so that airport operators are alerted early.
• For applicants, ensure your planning and building approvals timeline incorporates the building authority’s notification duty and any potential hold points that airport operators may impose.

Delegation and internal review procedures

• If the airport‑operator company decides under a delegation under s 26(2), check whether the decision maker is an airport‑operator delegate or the Secretary; different notification lists and review paths apply (s 19(1)-(2), s 24).
• If refused permission by an airport‑operator company delegate under s 13, the applicant may request internal review by the Secretary within 10 working days and must set out reasons (s 24(2)-(3)). The Secretary must review and decide within 30 working days (s 24(4)-(5)).

Documentation and recordkeeping

• Maintain contemporaneous records of all submissions, communications and technical attachments, including AHD elevation data, temporary equipment heights, Airservices assessment copies and evidence of the responsible entity’s chart versions. These records will be essential in any tribunal review or internal review under the Administrative Review Tribunal Act 2024 and related statutory provisions (s 25 and notes at s 13, s 19, s 24).
• Keep careful track of working day calculations, including public holidays and excluded days (the Regulations define working day at s 5).

Mitigating risks and practical tips

• Begin engagement with the responsible entity, CASA and Airservices well before lodgement to identify technical objections early.
• If the activity may be classified as temporary, document the temporary nature carefully to fit the s 13 and s 17(4) exceptions where relevant.
• For developers relying on the Sydney West exemption (s 22), ensure the development is covered by Part 3 of the airport plan and that works are completed before 30 June 2026, otherwise the exemption lapses.
• Where possible, design works to avoid intrusion into primary airspace or to limit heights and emissions below thresholds such as the turbulence threshold in s 10.

Compliance by responsible entities and building authorities

• Responsible entities must publish and keep charts current (s 8(2)-(5)). Put processes in place to update charts within 40 working days of any change and to publish notice within 10 working days.
• Building authorities must identify proposals that may constitute controlled activities and notify airport‑operator companies early (s 23). Embed this as a mandatory referral in development application workflows.

Review options and appeals

• If an application is refused or deemed refused, or permission is refused under s 13, evaluate internal review (s 24) and Administrative Review Tribunal avenues (s 25). Assemble grounds of review focusing on whether the Secretary properly considered required opinions (s 17(5)(a)), whether procedural prerequisites were followed, and whether CASA’s or Airservices’ technical inputs were lawfully applied.

By following this sequencing and checklist grounded in the Regulations’ text, applicants and authorities can reduce timing risk, minimise information gaps and ensure procedural compliance. The Regulations place a premium on early engagement with aviation agencies and airport operators, precise height and datum information, and rapid responses to information requests.