City of Botany Bay Council v Minister of State for Transport and Regional Development & Or S175/1996 [1996] HCATrans 455 (15 November 1996)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S175 of 1996

B e t w e e n -

CITY OF BOTANY BAY COUNCIL

Applicant

and

MINISTER OF STATE FOR TRANSPORT AND REGIONAL DEVELOPMENT

First Respondent

MINISTER OF STATE FOR THE ENVIRONMENT

Second Respondent

AIRSERVICES AUSTRALIA

Third Respondent

Application for special leave to appeal

BRENNAN CJ

GAUDRON J

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 NOVEMBER 1996, AT 11.49 AM

Copyright in the High Court of Australia

MR W.R. DAVISON, SC: May it please the Court, I appear with my learned friend, MR D.R. PARRY, for the applicant. (instructed by Houston Dearn O'Connor)

MR S.J. GAGELER: If the Court pleases, I appear with DR J. RENWICK for the respondents. (instructed by the Australian Government Solicitor and instructed by Freehill, Hollingdale & Page)

MR DAVISON: Your Honours, the application relates to a decision by the Minister for Environment to grant exemption from the provisions of the Environmental Protection (Impact of Proposals) Act of a direction by the Minister for Aviation as to the method of take-off and landing for aeroplanes arriving and leaving Sydney airport.

The context, your Honours, is firstly the Environmental Protection (Impact of Proposals) Act. I regret that the copies in the papers filed were of alternate pages. Could I hand up a full copy of the Environmental Protection (Impact of Proposals) Act and also the Air Services Act though I do not intend to take your Honours to that Act. For completeness, I should hand that up as well. Section 5 of the Environmental Protection (Impact of Proposals) Act provides the objects for the Act and then subsection (1) provides:

The object of this Act is to ensure, to the greatest extent that is practicable, that matters affecting the environment to a significant extent are fully examined and taken into account -

and then it describes the types of activities. The Act is given force by section 6 which provides for administrative procedures and those administrative procedures are said to be:

for the purpose of achieving the object of this Act, being procedures that are consistent with relevant laws -

In section 6(2), it is provided that:

Without limiting the generality of subsection (1), the approved procedures may provide for -

and then:

(h) exemptions from all or any of the requirements of the procedures.

The procedures are to be found behind tab 7 in the authorities and legislation that have been filed. It is to be seen that the procedures provide for the detail by which proposals are to be assessed for their environmental impact and in paragraph 11 of the procedures, at page 17, there is the provision for exemption: 11.1 provides as to who might request and for what; 11.2 deals with consultation; 11.3 deals with matters to be taken into account and they are detailed in 11.3.1 and 11.3.2 is the provision which gives effect to section 6, that the procedures should be so as to give effect to the object of the Act. In 11.3.2 it is provided:

The Minister shall, in determining whether to exempt a Commonwealth action, or a class of Commonwealth actions, from all or any of the requirements of these procedures, have regard to the general principle that it is desirable in the national interest that the requirements of these procedures should, as far as reasonably possible, apply to all Commonwealth actions.

And the matters to be taken into account in granting exemption in 11.3.1 are:

whether the application.....of these procedures from which exemption is sought would:

(i) be prejudicial to national security;

(ii) be prejudicial to the interests of Australia;

(iii) adversely affect commercial or other confidences; or

(iv) -

which is the relevant one here -

be otherwise contrary to the public interest.

GUMMOW J: That is the heart of the matter, is it not?

MR DAVISON: That is the heart of the matter, your Honour, yes.

GUMMOW J: Then you have to demonstrate error with respect to what the trial judge said, he being affirmed by the Full Court, at page 52.

MR DAVISON: That is so, your Honour, and what the trial judge has done is to take the reasons as a whole and come to the conclusion that the Minister's discretion did not miscarry. One has to go, in our respectful submission, then to the statement of reasons and they are set out at page 15 of the application book, and after a recital of the surrounding facts in paragraphs 1 to 8, the decision maker comes, in paragraph 9, to deal with the question of exemption and says:

In determining whether to exempt the proposed Commonwealth actions from all of the requirements of the Administrative Procedures, I am required to take into account whether the application of the requirements of the Administrative Procedures to the proposed Commonwealth actions would be contrary to the public interest.

10. I accept that the application of the Administrative Procedures.....would delay the taking of these actions. Accordingly, the application of the Administrative Procedures would delay the provision of immediate relief to the communities who, under the current arrangements at Sydney Airport, are exposed to the greatest number of aircraft overflights. In particular, it would delay an increase in the use of the east-west runway and so would delay the redistribution of the impacts, which is required to achieve a more equitable outcome. In my view, it is contrary to the public interest for there to be any delay in the provision of immediate relief to the communities who are suffering most from the adverse noise impacts associated with Sydney Airport.

Then he goes on in paragraph 11 to say:

Accordingly, I believe that the application of the Administrative Procedures to the proposed Commonwealth actions would be contrary to the public interest.

Now, in our respectful submission, one cannot characterise the decision as being anything other than delay in the implementation of the decision. If that is to be the basis for exemption, then the entire purpose of the Act is subverted and capable of being subverted in every case because there is necessarily delay in the process of environmental assessment. That is what it involves. One sees from the procedures that it involves a detailed examination of environmental impact. The impact of aircraft noise has been one of considerable notoriety in terms of its environmental impact and the assessment of it is a matter which requires to be evaluated in the context of any decisions made in relation to it.

If it can be said that delay in the implementation of a decision is a reason for not applying the procedures, then the will of Parliament expressed in sections 5 and 6 of this Act is set at nought. That will becomes subverted by this decision of the executive.

BRENNAN CJ: Why would one not consider the nature of the proposal and the extent of delay, having regard to the nature of that proposal? It seems to me to be a very different case to think that those who are suffering from flight noise stand in need of relief which is the proposition that the Minister puts forward here as against the question of whether or not a dam should be constructed?

MR DAVISON: The context and the second limb of the argument here is what is to be the alternative? The alternative is to shift the impact either in whole or in part - and there is nothing in the decision which dictates any particular course - to others. That impact on the others is the matter which requires to be assessed, in our respectful submission. It is to be assumed that the purpose is to relieve the impact upon a section of the public affected by aircraft noise but the consequence is to shift that impact onto another section of the public and, in our respectful submission, it cannot be said that the public interest in the context of this national legislation is to be read as only that section of the public now affected and not that section of the public who will be affected. It is the assessment of the impact of noise, and the very purpose of this Act, which requires the Minister to take account of the consequences of his decision.

To say delay in providing relief to those now suffering and providing an impact to those now not suffering, without any environmental assessment, is entirely contrary to the object of the Act and cannot, in our respectful submission, reflect the public interest which is the impact of aircraft noise from Sydney airport. It is dealing in that context only with the interest of one section of that public. The public interest cannot be other than the totality of persons affected or, if the decision in contemplation is implemented, potentially affected by the impact of aircraft noise.

What the Minister has done is to say, "I can't accept delay in the provision of relief but the consequence is that there will be, without environmental assessment, an impact upon those now not suffering." It is that, in our respectful submission, which leads to the conclusion that he did not adequately consider the public interest.

The learned trial judge, in his finding, said that the reasons are to be read as a whole. In our respectful submission, when one reads the reasons, one cannot come to any conclusion other than it is the avoidance of delay by the operation of the procedures to protect the environment which is the reason for granting the exemption and that, in our respectful submission, is impermissible and for the Act to be so interpreted has the consequence, as I have submitted, of subverting the will of Parliament.

It is not, with respect, a one-off situation. The Minister has taken precisely the same course in respect of a further decision in respect of the same airport, and could I - - -

MR GAGELER: I object. I object to material being tendered of apparently another matter being sought to be raised.

BRENNAN CJ: Yes.

MR DAVISON: I deal with that only by way of example, your Honour, as to demonstrate that it is not a one-off decision and it does not need evidence to establish the proposition that if that decision can be taken in this case, it can be taken in any case and the object of the Act is set at nought. Those are our submissions.

BRENNAN CJ: Yes, thank you, Mr Davison. We need not trouble you, Mr Gageler.

Notwithstanding the careful argument presented by Mr Davison, the prospect of success on an appeal in the particular circumstances of this case is insufficient to warrant a grant of special leave. Accordingly, special leave will be refused.

MR GAGELER: I seek costs, your Honour.

BRENNAN CJ: Have you anything to say about that, Mr Davison?

MR DAVISON: No, your Honour.

BRENNAN CJ: Special leave will be refused with costs.

AT 12.04 PM THE MATTER WAS CONCLUDED