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High Court of Australia Transcripts |
Sydney No S221 of 1999
B e t w e e n -
RANDWICK CITY COUNCIL
Applicant
and
MINISTER FOR THE ENVIRONMENT
First Respondent
MINISTER FOR TRANSPORT AND REGIONAL DEVELOPMENT
Second Respondent
Office of the Registry
Sydney No S220 of 1999
B e t w e e n -
BOTANY BAY CITY COUNCIL
Applicant
and
MINISTER OF STATE FOR TRANSPORT AND REGIONAL DEVELOPMENT
First Respondent
MINISTER FOR STATE FOR THE ENVIRONMENT
Second Respondent
AIRSERVICES AUSTRALIA
Third Respondent
Applications for special leave to appeal
GLEESON CJ
CALLINAN J
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON FRIDAY, 16 JUNE 2000, AT 12.48 PM
Copyright in the High Court of Australia
MR A. ROBERTSON, SC: May it please the Court, I appear with my learned friend, MR S.J. GAGELER, for the respondents in that matter. (instructed by the Australian Government Solicitor)
MR W.R. DAVISON, SC: May it please the Court, I appear with my learned friend, MR D.R. PARRY, for the applicant in the Botany Bay City Council matter. (instructed Houston Dearn O'Connor)
GLEESON CJ: Yes, Mr Stevens.
MR STEVENS: Your Honours, as a result of a change in approach as to the movements of aircraft over Sydney, a proposal came into being which carried with it an acceptance of the obligation existing under the Environment Protection Act, as it then was and still is, in circumstances where it was available to the Minister and the Government to have excluded that relevant decision from being within the scope of that legislation. On the premise that a picture may be worth a thousand words and shorten the limited time available otherwise - - -
GLEESON CJ: Could I just interrupt you to ask a question? Does this matter raise different issues from the matter of Botany City Council?
MR STEVENS: It does, although there is a potential overlap of the two matters.
GLEESON CJ: I see. So the two matters are being dealt with separately?
MR STEVENS: Yes, although they had been heard coextensively both at first instance - - -
GLEESON CJ: Never mind. It is clear that we are just dealing with the Randwick City Council matter at the moment.
MR STEVENS: Yes, your Honour.
GLEESON CJ: Yes, go ahead.
MR STEVENS: Your Honours have the benefit of a white book and within that white book - - -
CALLINAN J: Can I just ask you one question before you go on? Would it be convenient for both applicants to address the Court before the respondents? Would that save any - - -
GLEESON CJ: Mr Davison is not here I see.
CALLINAN J: No.
MR STEVENS: Yes, he is - - -
GLEESON CJ: Is there any reason why we should not hear your argument then Mr Davison's argument before we hear the respondent?
MR STEVENS: No, your Honour.
GLEESON CJ: Are you content with that, Mr Davison?
MR DAVISON: Yes, your Honour.
GLEESON CJ: All right. All right. We will adjourn now until 2.00 pm.
AT 12.50 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.04 PM:
GLEESON CJ: Yes, Mr Stevens.
MR STEVENS: Your Honours, having initially outlined the situation of the Act I was about to take your Honours to the white book which contains within it two alternative forms of representation from the airport. If we perhaps start with the local government areas, jet departures north, and then by a minor juggling on your Honours' part, if you lay that 1995 map over that area, lining up for the airport for the departures to the north, that was the position that existed before this two operative administrative decisions which are challenged, and then if one characterises it by adding the 1998 one over it, lining it up in a like manner, your Honours can appreciate the significant variation effected as a result of those - - -
GLEESON CJ: I do not feel moved to disclose a personal interest, but I have watched this with great attention.
MR STEVENS: I would have, had Justice Gaudron been sitting, drawn attention to an alternative and a little hiccough around Coogee, but what is apparent - - -
GLEESON CJ: Yes. Well, Ku-ring-gai and Hornsby area - - -
MR STEVENS: What is apparent there, your Honours, of course, which is axiomatic, is that this manifests an obvious and significant change in relation to the configuration of the flight departures and it is in the context where, as indicated earlier, the Commonwealth had chosen expressly not to exclude this further process from the ambit of the review of the Environmental Protection (Impact of Proposals) Act and the administrative procedures under it and within that context we submit that the special leave questions which arise make this case a very appropriate vehicle to be able to do it because it focuses upon a consideration of what is the appropriate way of ensuring, to the greatest extent practicable, that the matters which affect the environment to a significant effect are, in fact, examined and taken into account as the first point.
GLEESON CJ: Well, I think most residents of Sydney are familiar with this issue and have followed its development with interest, but what is the error in the reasoning of the Full Court of the Federal Court on which you rely?
MR STEVENS: There are three areas, your Honour. The first is in what we describe as the scheme of the administrative procedures and that in particular is to be found in the reasoning of the Full Court that an ignorance of a non-compliance with the procedures when submitting material to the Minister, or even a partial ignorance, would not of itself to be sufficient to vitiate the consideration of that process by the action Minister or the Environment - - -
GLEESON CJ: Where do we see that?
MR STEVENS: I am sorry, your Honour?
GLEESON CJ: Where in the reasons for judgment of the Full Court do we see this?
MR STEVENS: That is dealt with in paragraph 75 to paragraph 78 on pages 119 and 120.
GLEESON CJ: Now, which is the part of it that reveals the error?
MR STEVENS: It commences at the foot of page 120:
There may be circumstances in which it might be said that the Minister had failed to perform such a duty. That might be so if, for example, he had purported to make - - -
CALLINAN J: It is 119, is it, or 120?
MR STEVENS: Page 119.
CALLINAN J: Yes.
MR STEVENS: So commencing with paragraph 74 by way of background and then crystallised in paragraph 76 on page 120.
GLEESON CJ: Well, it is at paragraph 77; is that right?
MR STEVENS: And then reiterated and applied to this case in paragraph 77, your Honour, yes.
GLEESON CJ: So paragraph 77 where they upheld the finding of Justice Finn reveals what you say is an error of law; is that right?
MR STEVENS: Yes, your Honour.
GLEESON CJ: And what is the error?
MR STEVENS: The error is in relation to the construction of the procedures to be applied when being able to obtain a satisfaction of the requirements of paragraph 2.2 of the administrative procedures.
GLEESON CJ: I have to tell you that I would like to understand and I need to understand better than I do at the moment what you say is the legal principle and what was the mistake about the legal principle that was made.
MR STEVENS: The legal principle was that the administrative procedures defined a regime to be adopted to determine how the further issue will be considered and, as part of the consideration of that determination, material to be submitted or the absence of material to be submitted in a sufficient form, in our submission, constitutes an error of law in the construction of the administrative procedures - - -
GLEESON CJ: Error of law by whom?
MR STEVENS: Error of law by the Minister and error of law by the Full Court in considering that such a regime could apply that way.
CALLINAN J: What specifically did the Minister not do that the Minister should have done?
MR STEVENS: Two things. First, he accepted a submission that it appears all reasonable and prudent - sorry, all feasible and prudent alternatives have been considered.
CALLINAN J: And from whom did that submission come?
MR STEVENS: It came from the Department of the Environment and the Minister then adopted that as part of his consideration.
GLEESON CJ: What has that got to do with any question of law?
MR STEVENS: Well, your Honour, the obligation under the Act needs to have a construction of the administrative procedures considered, they being of a quasi-legislative nature, and that regime determines the way in which people are to go through the mechanics of the operation and the construction which was applied, in our submission, did not satisfy those requirements.
CALLINAN J: Where do we find the provision that you say was not properly construed?
MR STEVENS: It is conveniently or perhaps most conveniently set forth in our submissions, your Honour, page 143, which is the paragraph 2.2, and the error of law is whether or not - sorry, there are two errors of law. The first one is whether or not the obligation in 2.2(a) is a separate obligation to that required by (b) and (c). Justice Finn and the Full Court were of the view that subparagraphs (b) and (c) were an implementation of the obligation in paragraph (a). We submit that they should be considered disjunctively - - -
GLEESON CJ: Look, you are attributing an error of law to the Minister; is that right?
MR STEVENS: An error of law to the Full Court and to the Minister in the way that they applied or interpreted - - -
GLEESON CJ: But am I right in thinking that, at this level, what the case is about is whether the Minister made an error of law?
MR STEVENS: Yes, your Honour.
GLEESON CJ: And you say he made an error of law in relation to clause 2.2?
MR STEVENS: Yes, your Honour.
GLEESON CJ: Could you tell us what the error of law was that he made?
MR STEVENS: The error of law he made was failing to consider the likely affected environment of the proposed action and any feasible and prudent alternative to it in terms of subparagraph (b) and, additionally, in terms of failing to consider subparagraph (c) in respect of alternatives.
CALLINAN J: But it is:
the information required.....to the extent appropriate in the circumstances of the case -
so the Minister has to make a judgment in every case, or may make a judgment in any case, as to what he needs in order to make the decision, so that in some cases the Minister might say, and might not be wrong in saying, "I do not need more than this." What would be wrong with that?
MR STEVENS: It is a mixed question of an objective evaluation and of a subjective weighing determination by the Minister.
GLEESON CJ: But what would be the error of law if the Minister had said, "This issue has been thrashed out for years and all sorts of people have had things to say about it and opinions to express about it and facts to put forward. In the light of the background of the history of this dispute, the only additional information is this or that." Now, suppose the Minister said that, what question of law is raised?
MR STEVENS: Whether or not that action of the Minister is within or without the administrative procedures obligation on the Minister.
CALLINAN J: The Minister is not conducting a trial. He is making an administrative decision.
MR STEVENS: Yes, your Honour, but he is making - - -
CALLINAN J: It is not a case in which he says, "Every party who has the remotest interest in this matter can put before me whatever that party wishes to."
MR STEVENS: He is making that administrative decision within the parameters of the objects of the Act and within the constraints further imposed in relation to paragraph 2.2.
CALLINAN J: But say, as the Chief Justice has put to you, that the Minister knows, say, even 90 per cent of the relevant facts. Does he then, at enormous public cost, inconvenience and delay, have to look at all the material again that might bear upon the matter?
MR STEVENS: No, not at all, your Honour. That is why we focus upon what the Minister did in this case. The two ways in which he manifested the decision were, first, to say not that all feasible and prudent alternatives had been considered but, rather, it appears that they have and, with respect, we would draw a distinction between that occurring and an appearance of it in terms of reaching satisfaction.
GLEESON CJ: Well, he said it appeared to him - by appears, I presume it means, "It appears to me".
MR STEVENS: It appears - - -
GLEESON CJ: I was only asking who else would it need to appear to?
MR STEVENS: Your Honour, it ultimately needs to appear to him.
GLEESON CJ: Exactly.
MR STEVENS: But that so far as that is concerned, the material that he had provided to him expressly acknowledged that there were other and additional alternatives which were not being countenanced. So, therefore, notwithstanding the existence of such a possibility, the Minister has ignored that in that sense and effectively said, "It appears to me as if they have been done." So in that sense he diverged from the statutory guideline as embodied in that and, secondly, again, bearing in mind what your Honour the learned Chief Justice has said, he also has not considered the alternatives.
CALLINAN J: Where do we find specifically that part of the Minister's decision which you say offends in the respect to which you have just referred?
MR STEVENS: In the supplementary application book at page 88 is reproduced - commencing at page 87 is the section 13 statement and the relevant conclusion in paragraph 5 at page 88.
GLEESON CJ: Yes. Now, what particular part of that concerns you?
MR STEVENS: And, in particular, it is the first bullet point:
all prudent and feasible alternatives appear to have been taken into account - - -
CALLINAN J:
to the extent appropriate in the circumstances of the case -
why can we not read that into it because that is what the procedure requires?
MR STEVENS: Well, your Honour, the decision-making process requires that the proponent put forward to the Minister all of that and for the Minister to then be satisfied in relation to it.
CALLINAN J: No. The purposes of the paragraph:
the information required by these Procedures shall, to the extent appropriate in the circumstances of the case, be information
.....describing any feasible and prudent alternative -
but that is all subject, surely, to the qualification that it only has to be:
to the extent appropriate in the circumstances of the case - - -
MR STEVENS: Yes, your Honour.
CALLINAN J: You want to give those words no meaning at all.
MR STEVENS: No, no. No, we accept those words.
CALLINAN J: Well, why should we not read them into paragraph 5? Why should we not assume the Minister's degree of satisfaction is based upon his satisfaction that he has got what is necessary "in the circumstances of the case" or what is "appropriate in the circumstances"?
MR STEVENS: Then, your Honour, accepting that construction of the paragraph 5, the alternative approach is that the obligations in 2.2(b) and (c) are cumulative obligations separate from (a) and the construction of Justice Finn and of the Full Court was to say that when you satisfy (a) you take into account (b) and (c) as ancillary to the obligations in (a) and we - - -
CALLINAN J: What is KSA an abbreviation of?
MR STEVENS: Kingsford Smith Airport.
CALLINAN J: Well, what about the second dot point on page 88? Why does not that involve and embrace the matters in (a), "the impacts of aircraft movements"?
MR STEVENS: Because, your Honour, so far as that which was proposed and the movements ultimately put forward in 1998 were movements that had never previously occurred. Movements that were in respect of new areas and new - not completely, but largely new areas and new areas that had not been previously considered for impact. So, therefore, one has a prior history of some considerations but not in relation to that which was being proposed and it is within that circumstance that the obligation - - -
GLEESON CJ: The problem with this, Mr Stevens, everybody knows that this was an extremely controversial issue but the Federal Court was not sitting as some kind of court of appeal on a decision of the Minister, nor was the Federal Court conducting some kind of merits review of the decision of the Minister. All sorts of people have got their own opinions on the merits of that decision. They are entitled to have them. But they are not entitled to have the Federal Court substitute its view on the merits for that of the Minister. So what you had to find and what, according to the Federal Court, you were unable to find was a point of law, an error of law as distinct from some valid criticism of the merits of the decision making of the Minister.
MR STEVENS: Yes, your Honour.
GLEESON CJ: And I would have to tell you that at the moment I am having difficulty seeing anything that even looks remotely like a point of law.
MR STEVENS: Your Honour, if one focuses upon subparagraph 2.2 and the construction that we contend, which has been rejected, to be found at page 143, it comes back to whether or not (b) and (c) are ancillary to or is part of the obligation contained in (a). If one - - -
CALLINAN J: But why can the Minister not simply say, "I have got everything I require to the extent appropriate in the circumstances of the case", even though he may not have what you assert he should have had? Why can the Minister not make that decision?
MR STEVENS: Your Honour, because if the statutory obligation is for him to have that which is contained in (b) and (c) - - -
CALLINAN J: But it is not. The statutory obligation is to have what is required "to the extent appropriate in the circumstances of the case", which involves a value judgment by him, which itself is an administrative decision.
MR STEVENS: Yes, your Honour, but if one goes back to the step before that, as it were, the task of the Minister is made easier as to the steps to occur before it. First, the Minister for Environment is to be informed of the proposed action. Then that only arises if that proposed action is likely to have a significant impact on the environment. If that occurs, there will also have to be "feasible and prudent" alternatives that will be available to it to make it necessary - - -
CALLINAN J: Well, are you saying now that there is some error - but all of that is irrelevant. The Minister might say, "All of that can happen," and all of that may have happened, but the Minister can still say, can he not, "I still think I have got whatever I need to the extent that is `appropriate in the circumstances'"?
MR STEVENS: That ultimate weight argument, yes, your Honour, but - - -
CALLINAN J: Well, that is the end of the matter. It is a matter of weight then, is it not?
MR STEVENS: That ultimate weight argument, yes, your Honour, but we contend that there is an element of objective purpose to be satisfied before you then do that weighing exercise. In other words, the material to be presented to the Minister must satisfy certain objective criteria to which the Minister is then entitled to apply a subjective weight.
CALLINAN J: Where is the requirement as to the material that must be supplied? Where do I find that?
MR STEVENS: Yes, your Honour. We have set that forward in the supplementary application where we have reproduced the administrative procedures, which commence at page 181, and the relevant portion is in paragraph 2.1 commencing at 187 as to the information that the proponent must supply to the Minister at line 46 and then at 2.2 on page 188 as to the information that is then required by the procedures.
CALLINAN J: But 2.1 says:
shall supply to the Minister, or the Department, such information as is required by these procedures, or is otherwise necessary, for the purpose of consideration, by the Minister - - -
MR STEVENS: And, your Honour, so far as that is concerned, what arises there are two elements. First, what is required as to whether or not the Minister - there are two pathways that the Minister can have . The first is to therefore say, "I do not need any more information. This threshold that I have been given is sufficient to tell me it excites the need for an environmental impact statement or an alternative to that." And the second is, "I have an adequacy of information which satisfies me in the circumstances that nothing further is required.
GLEESON CJ: Thank you, Mr Stevens. Yes, Mr Davison.
MR DAVISON: Your Honours, the context for the leave application brought by my client is that noise has moved, as your Honours well know, from the north-south flight path exclusively to areas that at the time of the movement did not suffer noise and, as my friend has indicated, many of those areas had never suffered noise at any point of time and it was irrelevant to the exercise as to whether some on the east-west runway may have suffered noise in the past because there is no capability of determining whether those people are still there or not.
So the assumption has to be made, we say, that there is a movement of noise from those suffering noise to those not suffering noise and the principal factual contention is as to whether there was the ability to assess the impact of that movement, both in terms of the reduction of noise upon those who suffered it on the basis that would continue to suffer noise, the north-south runway would continue to be the primary runway for landing, and the east-west runways would be more used for taking off with the consequence that the level of reduction would need to be assessed in terms of what the amount of reduction was and the perception of it and the impact on those who newly suffered it would need to be understood as well.
The statutory context begins with section 5 of the Environmental Protection (Impact of Proposals) Act, which is set out on page 8 of our appeal papers, in the judgment of Mr Justice Finn at line 27:
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 the particular context for the purpose of this argument is set out in the administrative procedures at paragraph 3.1.2, which is found on page 11 of the appeal papers, which provides, and here relevantly the Minister - because it was the Minister here deciding - and that is the - - -
GLEESON CJ: Just remind us of the relationship between these administrative procedures and the statute.
MR DAVISON: The administrative procedures are the manner in which the statute is given effect. They are made by the Governor-General pursuant to the Act.
GLEESON CJ: Like regulations.
MR DAVISON: Like regulations, your Honour, yes. The Minister:
must take into account at least:
(a) whether, and to what extent -
and we emphasise "to what extent" -
the proposed action may result in -
(i) a substantial environmental effect on a community;
and there is no issue in the proceedings but that the long-term operating plan would have substantial environmental effects on many communities around the airport. The question was whether it could be established - or whether the Minister was capable of forming a view about the extent to which that substantial environmental effect on a community might be assessed and in that context whether there was a need for an environmental impact statement.
The factual context in terms of the findings begins at page 20 and I go to Mr Justice Finn's decision because, on this point, the Full Court essentially adopted his findings and his reasons. At page 20 at line 14 there is a paragraph of evidence from the appellant's noise expert:
"Although it is correct to say that the proposal as put forward in the Proponent's Statement will give a distribution of aircraft overflights throughout various areas of Sydney, an assessment of equity based only on the number of overflights must be misconceived. It does not establish any form of equitable distribution of noise, because it does not take into account the height of aircraft, different types of aircraft, or the differential noise impact of the same aircraft at the same height depending upon whether the population concerned has already been exposed to aircraft noise, or is to be newly exposed. This latter consideration is discussed in detail below. However, to take a simple example, it is now accepted in acoustical analysis that a community which was not exposed to aircraft noise will suffer a considerably greater noise impact as a result of the introduction of 100 jet aircraft overflights than will a community which has previously had 75 aircraft overflights and will now be exposed to an additional 25, and even more so if those additional 25 aircraft were small aircraft."
And then at line 40 there is a finding by his Honour Mr Justice Finn in respect of the respondent's acoustical consultant, Mr Peploe:
Mr Peploe.....acknowledged the difference between the subjective response to noise and to changes in exposure -
which his Honour adds the gloss "impact" to -
and the measurement of noise itself. He accepted the proposition that while noise might be redistributed to reduce impact you could not know that so doing necessarily had that effect.
The result is no basis, in our contention, for a finding or the capability of a finding that the requirements of the procedures and the Act had been met, first, to say an understanding of the extent of the substantial effect on a community.
His Honour on page 23 of the appeal papers takes up an argument at line 5 that was put on the part of the respondents that where "impact" was discussed in the content of the proceedings it was being:
used ambiguously to mean variously noise exposure and an individual's subjective appreciation of noise exposure. Yet the applicant's case would seem to require that the latter be known and taken into account.
His Honour puts that cast on to what is meant by "impact" and it flows through - there is no finding then related to "effect", which appears to be dealt with synonymously with "impact" and it is our contention that there is no ambiguity. When one is dealing with "impact", one is dealing with what the consequence of the proposal is and the consequence has to be in terms of what the community that is being assessed for the purposes of paragraph 3.1.2 is suffering as a result of the proposed action. His Honour went on to say at line 29:
The primary focus of the whole LTOP exercise was actual noise and its redistribution. The Minister was not dealing with the subjective appreciation of individuals, nor was he required to.
His Honour does not deal with the proposition that the Minister was required to deal with and that is the impact upon the community or the communities and that is to say those under the new flight paths and that, in our respectful submission, the Minister was required to do and his Honour was required to consider it in that context and his Honour failed so to do. The next finding is at line 40:
It is contended that Mr Cooper's evidence on the matter is more concerned with noise simpliciter as witness his comments on overflight. And while Mr Peploe accepted the distinction between noise and its impact he equally indicated that it was not possible in his view to assess "at the moment" what the reductions in impact would be arising from the LTOP.
And we emphasise the "at the moment". His Honour rather concluded from that, or we assume he concluded from that from the balance of the reasoning, that he was taking the view that the decision could not then be taken. Our contention is what that should have alerted the Minister to in giving proper effect to section 5 and paragraph 3.1.2 is that if he could not know at that point of time what the effect was from the substantial environmental effect caused by noise, then that is the very reason why one has an environmental impact statement and that is - - -
CALLINAN J: What about what was said on page 23 though, the submission that was made by an official apparently:
Although requiring an EIS might lead to an improvement in methodology and add to the body of information available, the benefits would appear to be marginal".
MR DAVISON: He there, your Honour, is not dealing with a question of the impacts identified by Mr Cooper. He is dealing with what the balance of that paragraph refers to, methodology and health impacts.
CALLINAN J: Although what about the beginning:
the impacts of aircraft movements around Sydney KSA have been studied on many occasions - - -
MR DAVISON: Indeed, your Honour, he does say that. The context of what has been "studied on many occasions" and the primary area within which it has been studied is the third runway environmental impact statement, the very reason why this proposal came into effect: because of the perception of the error in the third runway analysis which caused what was perceived to be the impact upon those to the north of the airport which was believed to be unfair. That is the very basis and it would not be open to the Minister to rely upon those studies to say, "No more needs to be done," because it is those studies and what were contended to be the erroneous conclusions from them that led to the new procedures. Mr Justice Finn's ultimate conclusion begins at page 22, saying:
Furthermore, the Minister was not concerning himself simply with noise as an abstraction. He was considering the environmental effect of the proposed redistribution - ie of the proposed changes in community exposure to noise -
not the impact, but the levels of noise -
And the information he was provided related sufficiently to that "environmental effect". It is difficult to resist the conclusion that in its focus on "impact" of noise - and I agree with the ambiguity in this highlighted by the respondents -
and that is the ambiguity that is referred to at line 5 at page 23 -
the applicant has, in fact, sought to engage in a merits review of the fairness of the redistribution itself.
GLEESON CJ: Well, that is a proposition that is a little difficult to resist, is it not? I mean, I understand all the arguments that people might have about the merits of the Minister's decision, but looking for a point of law in this dispute is like fossicking for gold, is it not?
MR DAVISON: Well, with respect, no, your Honour. The error is failing to take account of a relevant consideration. The relevant consideration was the one required to be taken into account, that is to say that in 3.1.2 in the context of section 5, and that is:
whether, and to what extent, the proposed action may result in -
(i) a substantial environmental effect on a community - - -
GLEESON CJ: But the unreality to which reference was made in the judgment might not be unrelated to the fact that this is a decision that was made by a politician - - -
MR DAVISON: Yes, your Honour.
GLEESON CJ: - - - who had people leaping up and down and pressing on him points of view about the way this was going to have an impact on them.
MR DAVISON: Yes, your Honour.
GLEESON CJ: The environmental effect of these decisions on communities around Sydney and around the airport must have been one of the most extensively canvassed political issues of the day.
CALLINAN J: We even know about it in Brisbane.
MR DAVISON: It is canvassed politically - - -
GLEESON CJ: Well, that is part of Greater Sydney.
MR DAVISON: We are extending the runway again, your Honour. The fact that it was canvassed politically is not a basis for setting aside the requirements of this very important piece of legislation, the Environmental Protection (Impact of Proposals) Act, and its very purpose is to ensure that ministers do give proper attention to significant impacts upon the environment and there was no doubt that this proposal involves significant impacts upon the environment in the form of those under the proposed flight paths, no doubt about that at all.
The point is that the Minister did not have before him, and could not have had before him on the evidence that was before Mr Justice Finn, the respondent's own evidence, did not have information before him and could not have had at that point in time of what the impact of that noise was. He knew what the noise was. It had been calculated. But he did not know what the impact of it was and one can interchange, in our respectful submission, the word "impact" with "effect". There is no significant difference in terms of what the legislation and the procedures are directed towards. It is what the consequence is upon the community suffering from the proposal and that cannot be done, in our respectful submission, without an understanding of that very important question which was acknowledged - - -
GLEESON CJ: Is this a way of expressing your argument, that he was obliged to take into account the extent of the "environmental effect on a community" of these proposals; on the material before him it was not possible to assess the extent of the "environmental effect on a community" of these proposals so, therefore, he could not have taken them into account?
MR DAVISON: Yes, your Honour. Could I just - - -
CALLINAN J: That sounds like a Wednesbury unreasonableness argument, does it not?
MR DAVISON: Well, there are many authorities that say that in this context the two flow together and that there is not a substantial basis for a distinction between the two, but we would accept that both apply, your Honour. His Honour manifests his approach in that respect dealing with the Wednesbury unreasonableness argument at page 29 at line 30 where he notes that:
The submissions here are little more than an elaboration upon those earlier made in relation to noise "impact". Their preoccupation again is with the impact of noise and not noise itself.
A critical passage, in our respectful submission. It indicates that his Honour has turned from his mind the impact of noise and sought to address, in the context of the hearing, the absolute measurement of noise rather than its impact or effect, which is the very thing that is required to be assessed in the context of the procedures and the Act. I will not take time - the Full Court, in effect, adopted Mr Justice Finn's approach and I will not take your Honours to that.
Could I deal with the second point very briefly, your Honours, and that is the Wednesbury unreasonableness argument simpliciter and begins in the decision of Mr Justice Finn at page 33 dealing with the proposition put by Mr Sachman - described himself as a specialist in airport systems and facilities planning.
There is a contention on the part of the respondent that our submissions in the appeal papers made a factual error in asserting that there was each of the three elements that we have referred to, land side and air side and access, were equally critical. That is the evidence of Mr Sachman and it is at paragraph 18 of his affidavit and I will hand that up simply to respond to the proposition that is put by way of objection to the proposition.
GLEESON CJ: Thank you.
MR DAVISON: It is at about point 5 of page 9.
GLEESON CJ: Yes.
MR DAVISON: And Mr Sachman expressed the view that all three elements were of equal importance. Mr Justice Finn said at line 23:
Accepting all of the consequences suggested by Mr Sachman, it is not apparent to me that Mr Sharp was, in consequence of his portfolio responsibilities or otherwise, required either to subordinate or to accommodate the particular policy objective he was seeking to pursue, to strategies for KSA that had been developed by the FAC, notwithstanding the impact that that policy might have on those strategies. The Minister was responsible to Parliament for his administration including the reconciliation of potentially conflicting objectives pursued by statutory bodies within his portfolio dealing with a related subject matter.
GLEESON CJ: Yes, thank you, Mr Davison. Yes, Mr Robertson.
MR ROBERTSON: Your Honours, dealing first with the Randwick application. The approach of the Full Court to the question of a failure or constructive failure to administer the procedures really had its starting point in section 8 of the Environmental Protection (Impact of Proposals) Act, that is that the ministers shall give directions and do all such things to ensure that the procedures are carried out, and that is what their Honours were looking at. This is the Act that is due to be repealed on 16 July this year. So that is another point we make about how it does not have any ongoing significance, even if your Honours were otherwise minded to find that there was a point of legal significance.
If I could take up the point that your Honour Justice Callinan was putting to my learned friend, Mr Stevens, really what it comes down to, if one looks at page 188 of the administrative procedures in the supplementary application book, is - and we would respectfully agree with your Honour that not only does 2.2 say:
the information required by these procedures shall, to the extent appropriate in the circumstances of the case, be information -
of various characters, but, of course, the remedy is to be found in clause 2.3, that is, to put it colloquially, if the Minister thinks he does not have enough information, then he:
may require the proponent to provide.....such other information as is specified and is necessary for that purpose.
That is in 2.3 on the middle of page 188 and then, of course, the actual decision in light of section 8 of the Act, but the actual mental process that the Minister for the Environment goes through, and went through in this particular case, is towards the foot of that same page, 3.1.1(b), the Department, that is the Department of the Environment, shall:
refer the question whether the preparation or obtaining, and submission to the Minister, of an environmental impact statement.....is required -
so that question is referred to the Minister, the question of whether that is required -
for the purpose of achieving the object of the Act to the Minister who shall forthwith determine the question and shall make a direction accordingly.
So that is what the Minister was deciding, the Minister for the Environment.
CALLINAN J: Mr Robertson, in 2.2(a) it is provided that:
the information required by these procedures shall, to the extent appropriate in the circumstances of the case, be information -
(a) summarizing any preliminary planning, consideration or work.....and, in particular, describing -
Now, are the words "and, in particular, describing any feasible and prudent alternative" - those words apply - do they apply to the summaries earlier referred to? In other words, only to the extent that the work that has been undertaken does "describe any feasible and prudent alternative", is it necessary to provide "any feasible and prudent alternative"? In other words, it is not a separate head of information or category of information.
MR ROBERTSON: Quite so.
CALLINAN J: It is information which, if it is available, must be provided.
MR ROBERTSON: We would so submit and, your Honours, could we take the Court to page 34 of the application book itself in the Randwick matter because that sets out or summarises the copious information that was before the decision maker as to what the alternatives were. It is page 34 - and this is in the judgment of Justice Finn - line 35, if I could take your Honours to that, beginning:
When Environment Australia made its recommendation to Senator Hill on 18 July 1997, accompanying that memorandum was a number of attachments. Attachment A.....made the following comment:
.....
46. There were many claims that the LTOP had not taken into account all of the possible alternatives and proposals for alternative flight paths. The evidence is that DoTRD and AsA have considered many alternatives, adopted sophisticated computer modelling and amended the original plan where practicable and safe to take account of the many public representations received -
and there were 7,500 of them -
It is reasonable to conclude that feasible and prudent alternatives have been taken into account -
and they are, or some of them are, set out by his Honour on the following pages. So the point was that if one asks the question, "What is it that was being decided?" because you cannot deal with alternatives unless you know the subject matter. The subject matter was the proposal more equitably to distribute noise caused by the airport and to alter flight paths accordingly, and the evidence was that there were many hundreds of alternative flight path configurations take into account by the person who had the portfolio responsibility for knowing what those alternatives might be, that is the Minister for Transport.
CALLINAN J: Well, the reference is to summarise in 2, is it not?
MR ROBERTSON: Quite so.
CALLINAN J: You could not expect the Minister to embark upon all of the technical details of what is obviously a highly technical subject.
MR ROBERTSON: Quite so, and even more so - if I could accept what your Honour puts to me - the point that I was making is that this is the Minister for the Environment who is said to have failed to consider the "prudent and feasible alternatives", not the action Minister who might have a better prospect of being able to get to grips with the technological and scientific detail, but the Minister for the Environment, and the point of statutory construction that my learned friends seek to put is that somehow there is a failure by the Minister for the Environment to address himself to the right question when he looks at what the proponent Minister did and looks at the number of alternatives there referred to and says in a sense, "Well, I am satisfied that the administrative procedures have been adhered to and that the requisite information has been put up to me because it is set out."
So he, in our respectful submission, and Justice Finn and the Full Court agreed with this matter of construction that he, the Environment Minister, does not have to go out and do his own inquiry into "prudent and feasible alternatives". But we make this further point and we have described it as the applicants' case having an air of unreality because no evidence was brought at the trial that there were, in fact, any other "prudent and feasible alternatives". So the point is an abstract one at best. There was no expert evidence admitted by Justice Finn that there were available "prudent and feasible alternatives".
In fact, the evidence was that when one is considering flight paths, the maximum number of flight paths configurations that an air traffic controller could carry in his or her mind at any one time was between 10 and 15 and after that it was a recipe for chaos.
CALLINAN J: Mr Robertson, after the - the repeal becomes effective in a month, does it? Is that right?
MR ROBERTSON: Yes, on 16 July.
CALLINAN J: Is there any replacement legislation?
MR ROBERTSON: There is an Act, as the way these things go, to replace the Act which is presently I think 20 pages, there is an Act of 535 pages. So the answer is, yes, but if your Honour is going to ask, "Does it use the language of `prudent and feasible alternatives'?" The answer is, no, it does not. So it does not have that coincidence of language. It has coincidence of subject matter, of course. So we submit, to summarise, if I may, that the administrative procedures have been correctly construed by Justice Finn and by the Full Court.
The "prudent and feasible alternatives" were put forward, in any event. The Minister for the Environment did not have to embark on his own inquiry. Further, there was no evidence that there were any other available "prudent and feasible alternatives" and, in any event, the Act is to be repealed with effect from 16 July this year.
So for those reasons, in our submission, this is not an appropriate case for the grant of special leave. One thing we have mentioned in our submissions, but I might reiterate, is, of course, that the matter of whether there are "prudent and feasible alternatives", judges of the Federal Court have held is itself a matter of value judgment and not of objective or jurisdictional fact.
Could I then, your Honours, go to the Botany appeal and by way of opening draw your Honours' attention to the fact that of the three grounds set out at page 68 of the application book, the second one - I am looking there at the draft notice of appeal, if your Honours have that; I am looking in the other application book - no submissions either in writing or orally are made by my learned friends as to ground 2, that is that it was "an irrelevant consideration" to look at the previous environmental impact statement in relation to the Sydney Airport, so I would not propose to say anything about that.
So far as the point most fully developed by my learned friend, Mr Davison, that is this question of environmental effect, the point has to be based, of course, in the administrative procedures and it has to amount to, in effect, a constructive failure on the part of the Minister to take into account:
whether, and to what extent, the proposed action may result in -
(i) a substantial environmental effect on a community - - -
GLEESON CJ: That argument is ultimately based upon a proposition of fact which was that the information that was available did not permit this to be assessed.
MR ROBERTSON: Well, it goes to a further fact, as Mr Davison developed it, as well, your Honour, which was that on the then state of science it was not a matter that was capable of assessment. So my learned friend's submission was, well, the Minister should have stopped and waited until it was possible scientifically to assess it. Now, we would submit that that is a proposition that is quite inimical to public administration generally. There is no occasion for construing the statute, the administrative procedures, to require a minister, as a proposition of law, to wait for science to catch up with what it is that the Botany Council says is essential information.
GLEESON CJ: What is actually involved here is assessment of the impact of a nuisance, noise nuisance as it happened - - -
MR ROBERTSON: Noise, yes, noise.
GLEESON CJ: - - - but it is no different in quality, I should have thought, from the sort of nuisance that might arise from smells or from - - -
MR ROBERTSON: Quite so, your Honour, and, with respect, the highest point that the evidence goes to, which was from one of the witnesses called by the respondents, was that he accepted that there was no basis for scientific measurement of subjective noise response, which is not a surprising proposition. We submit, however, that that is a long way away from saying that a decision maker cannot, because the science is not available, take into account whether or not, and to what extent, there is "a substantial environmental effect on a community".
In other words, to a large extent it is a false factual trail because if you can take into account impact - and there was, as one could imagine, large amounts of documentation about impact - then that sufficiently satisfies the statutory provision and this is summarised, if I could take your Honours to this, at two or three pages of the Full Court decision which is perhaps beginning at the foot of page 50 of the book, the last two lines of page 50, and this is in the Full Court's judgment:
Senator Hill's reasons for decision also recited that he had taken into account the advice and recommendations for the long-term operating plan.....including various attachments to the Department's advice. Those attachments included documents which contained lengthy discussions of aircraft noise, its measurement and its environmental effects. Some of this material is referred to in the reasons for judgment of Finn J.
And then their Honours go on:
there was a 20 page section dealing with the environmental impact of aircraft noise, that it discussed "noise assessment methodology" and that it acknowledged criticisms of the Australian Noise Exposure Forecast (ANEF) and outlined the steps taken to address its shortcomings. Finn J also noted that the Proponent's Statement provided a more detailed examination of noise and its impacts and he reproduced parts of Chapter 3 -
then if your Honours go down to line 45:
the LTOP.....used five fundamental ways of describing "noise impacts", namely runway use data; flight path maps; contours showing total noise exposure (ANECs); contours showing single event noise levels for the number of single events.....and "respite".
And so there was:
extensive discussion and analysis of aircraft noise and its effects -
so that we submit that factually the point does not get off the ground and, in any event, if there was some difference between noise and impact, it is not a point that arises under 3.1.2(a)(i), which merely requires the Minister to take into account:
whether, and to what extent, the proposed action may result in -
(i) a substantial environmental effect on a community;
So there was abundant evidence, abundant material, before the decision maker in relation to that. So we do not accept, as your Honour the Chief Justice was putting to my learned friend, that the answer to the question or the formulation of the question on the material it was not possible for the Minister to assess the material and, therefore, he could not take it into account. We do not accept that on the material it was not possible for him to assess what he was required to assess, which is the "substantial environmental effect", and that is all that he was required to take into account. It does not make it a relevant consideration, that is a mandatory consideration, to take into account scientific measurement of subjective response to particular levels of noise.
The second point that my learned friend, Mr Davison, developed as a Wednesbury unreasonableness point was that it was unreasonable for the Minister - this is as we understand it - to deal only with aircraft movements but without at the same time doing a similar exercise on land movements and access, I think is the way that is put. Justice Finn and the Full Court said that these matters were political matters for the Minister - and I am talking now about the Minister for Transport.
One of the curiosities about this point is that his Honour Justice Finn noted at page 36 of the book at point 8 that at the time - of course it has been abolished now - but at the time the Federal Airports Corporation had responsibility for land side at Kingsford Smith Airport and, as his Honour notes at page 36, that the FAC - this is line 49:
the FAC, no less than AsA, was subject to a power of direction in Mr Sharp -
the Minister, and, indeed, as his Honour makes the point there, at or about this time a direction was issued by the Minister to the Federal Airports Corporation to deal with the land side consequences of the change in aircraft movements. Now, of course, that decision, a contemporaneous decision, was never challenged in these administrative law proceedings. The FAC was, as his Honour observes, obliged to comply with the direction, but the fundamental point is that the whole of the evidence of Mr Sachman, who was referred to, proceeded on a misconception.
The plans that he said were not sufficiently dealt with by the Minister were not plans of the Minister. They were plans of the Federal Airports Corporation, plans that were inherently flexible, the FAC's idea of how the airport land side might be developed or might respond to change, but, of course, the point that Mr Sachman, who was from California, missed was that the FAC was subject to direction by the Minister.
GLEESON CJ: Thank you, Mr Robertson.
MR ROBERTSON: If your Honours please.
GLEESON CJ: Yes, Mr Stevens.
MR STEVENS: Your Honours, my learned friend referred to the prospect of this matter having no application consequent upon the amendment under the Environmental Reform (Consequential Provisions) Act applying. Could I hand to your Honours two copies of extracts, not the full 500 pages. What is apparent, your Honours, is that there is a regime whereby, under section 3 of Schedule 1, which your Honours will find at page 4, the page numbered 4, that in relation to actions to which there has already been an allowed activity under the administrative procedures, then those matters, if that administrative procedure has been complied with, will fall outside the ambit of it in relation to Part 3 and Subdivision A.
In subsection (1) that is then dealt with and elaborated upon in terms of subsection (2) and this would be a situation that falls fairly and squarely within that subsection (2)(a) of Schedule 1. Additionally, the final page of the excerpt we have handed up to your Honours is Part 2, the "Saving and transition provisions" of Schedule 3, which is that the continued application of the earlier Act in relation to its continuation and that is in respect of and in the procedures. So that this regime, in so far as it has purportedly, in our submission, been done under the administrative procedures, will continue to be governed by those into the future and only in the event of there being a substantial change will it change that.
The second circumstance is that the equivalent of the administrative procedures of the earlier legislation have not yet been promulgated in any form. There has been a consultation paper of the equivalent which does refer to "feasible and prudent alternatives" within it but there is, at this point in time, no equivalent document of the administrative procedures, which suggests that a different course is going to be adopted.
With respect, we would anticipate, having regard to the length of time in the Commonwealth regime and the existence of similar words in the State environmental legislation, that the concept of "feasible and prudent alternatives" will continue to be applied but in any way in relation to this substantial activity of Sydney Kingsford Smith Airport the existing administrative procedures continue to have application. So in that sense it remains of relevance and utility, both in respect of what has occurred and, in our submission, also as well in terms of the community benefit of a statement by the High Court in respect of the argued errors of laws and the circumstances pertaining to the administrative procedures that brought about the LTOP. If your Honours please.
GLEESON CJ: Thank you, Mr Stevens. Yes, Mr Davison.
MR DAVISON: Your Honours, my learned friend Mr Robertson put the proposition that our contention in respect of noise impact was one whereby, if the Minister had determined he could not assess the impact on the state of then current scientific knowledge, he should have stopped. We do not contend that at all. We contend that what that should have alerted him to, in order to understand the impact of noise, is an environmental impact statement, a further analysis. There does not have to be a scientific basis.
As your Honour the Chief Justice pointed out to my friend, the courts deal with noise nuisance, odour nuisance every day. It is a question of going to the trouble of assessing that impact and coming to a conclusion about it and the appropriate formula for doing that was through an environmental impact statement. That is our contention. The assertion was that Mr Peploe had said there was no scientific basis. The only material there as to what Mr Peploe said in the material before your Honours, and it is my memory of his evidence correctly recorded in Mr Justice Finn's judgment in the two passages that I referred to at page 20 line 40 and page 23 line 40, and he does not refer to an absence of scientific basis. He refers to an absence of ability to determine the impact on the material that was before the Minister.
The second point that - it was put that the question of the impacts on the land side and access elements of the operation of the airport were not adequately dealt with. The point was they were not dealt with at all. They were simply not addressed in any of the huge volume of material that was considered in respect of this application. It was the point that it was not adverted to at all and, by way of example, Mr Sachman had identified the fact that the proposed extensions to the international airport which were essential to accommodate the Olympics could not take place if the plan was implemented in the form that it was. The point was that it was manifestly unreasonable because those impacts were not considered at all.
As to the repeal, your Honour, we adopt what my learned friend, Mr Stevens, says as to that but, further, from our point of view we say that the new regime for environmental assessment still calls for considerations of impact upon the environment. Can I hand up two copies with passages that refer to impact upon the environment highlighted? In the context of the finding by the Federal Court as to what is meant by "impact on the environment", that finding stands in the context of the new legislation and questions of impact upon the environment, of course, arise in State legislation dealing with environmental assessment; there is the Environmental Planning Assessment Act of New South Wales. Can I hand up a copy of section 79C and the Planning and Environment Act of Victoria section 60 which deals with it in the context of effect on the environment rather than impact on the environment. Those are the submissions we put by way of reply.
GLEESON CJ: Thank you.
These two applications were heard together. In each matter, the Court is of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave. The applications are refused.
Can you resist an order as to costs, Mr Stevens of Mr Davison?
MR STEVENS: We said in our submissions the basis in relation to the public interest element and I would not want to add anything further to that which we said, your Honour.
GLEESON CJ: Mr Davison.
MR DAVISON: No, your Honour.
GLEESON CJ: The applicants must pay the respondents' costs of the applications.
AT 3.14 PM THE MATTER WAS CONCLUDED
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