Chapter 2
Key issues
Background
2.1
As discussed in Chapter 1, the Airports Act 1996 regulates leased
federal airports. As these airports are operating on Commonwealth land they are
subject to Commonwealth law and are not subject to state and local government
planning laws.
2.2
Concerns were raised during the National Aviation Policy White Paper
(White Paper) process that communities are not always afforded the opportunity
for consultation with regard to on-airport developments under the current
planning framework. The White Paper also noted that there is insufficient
detail provided in master plans and many developments fall outside the criteria
that would initiate a major development plan. The White Paper noted calls from
state, territory and local governments for better integration of the planning
framework applying on leased federal airports with planning laws applying to
neighbouring communities and surrounding regions.
2.3
The committee notes that the bill seeks to respond to these concerns by
creating a more transparent regulatory framework that balances the interests of
communities with the need for ongoing infrastructure investment on airport
land.
Support for the bill
2.4
Throughout the inquiry it has been evident that there is widespread
support for strengthening planning arrangements for developments on airport
land. As indicated in the previous chapter, issues relating to airport planning
and development were canvassed extensively during the White Paper process.
Submitters to the inquiry expressed general support for the outcomes of the
White Paper process and appear generally supportive of the broad intent of the bill.
An appropriate level of regulation
2.5
The Regulation Impact Statement (RIS) for the bill states that the
objective for the airport planning framework identified as a result of the
White Paper process is:
Improved planning at Australia's airports to facilitate
better integration and coordination with off-airport planning and continued
investment in Australia's airport infrastructure and land transport links.[1]
2.6
The RIS outlines four regulatory options for achieving this objective:
- Option A – the status quo
- Option B – tighter regulation of planning and development on
leased federal airports to facilitate better integration of on-airport and
off-airport planning;
- Option C – a balanced approach involving regulatory change to
facilitate investment in aeronautical infrastructure and better integration of
on-airport and off-airport planning; and
- Option D – accredit state and territory government planning laws
to apply to airports but allow the Commonwealth Minister to exercise decision
making power.[2]
2.7
The RIS notes the following feedback from key stakeholders on each of
these proposals:
Airports
- dispute the need for increased involvement of state, territory
and local government planning authorities in airport planning;
- dispute the need for more detailed analysis in master plans with
regard to inconsistencies between on-airport and off-airport planning;
- support the concept of a consultative forum for airports and off-airport
planning authorities and recognise benefit of such a forum in providing
feedback to each party;
- mechanisms for expert advice should not delay approval processes;
-
accept notion of requirement for regular consultation with the
wider community;
- welcome mechanisms for a reduction in consultation periods for
major development plans for specific aeronautical related developments.
Communities
- limited feedback suggests general support for improved
integration of airport planning in the interests of reducing negative impacts
on communities and suburban amenity.
Business users
-
support requirements for improved ground transport planning by
airports.
State, territory
and local governments
- support increased regulatory oversight of airport planning,
particularly in relation to non-aeronautical developments on airport land;
- support stricter requirements for airports to address and justify
variances between airport planning strategies and planning frameworks for
neighbouring communities;
-
have a preference for a formal decision making role in airport
planning but welcome the concept of a consultative forum and a means of better
coordination of strategic planning;
-
support requirement for airports to undertake regular community
consultation;
- are not opposed to relaxation of regulatory requirements on
aeronautical developments;
- support stricter control of developments on airport sites that
are potentially incompatible with airport operations;
- state and territory governments did not lobby for accreditation
of state or territory planning processes under the Airports Act;
-
other governments accepted that the Commonwealth Minister would
retain decision making power and would receive recommendations from
Commonwealth public servants in accordance with the terms and provisions of the
Airports Act.[3]
2.8
The RIS concludes that Option C represents the greatest net benefit. The
RIS notes that both Option B and Option C would provide for better integration
of on-airport and off-airport planning frameworks, with positive flow on
effects for suburban amenity and the economies of surrounding regions,
particularly through better planning of ground transport links.
2.9
The RIS also concludes that Option C alone will promote additional
investment in airport infrastructure. Option C also offsets the introduction of
new regulatory requirements in respect of master plans and some
non-aeronautical developments with a relaxation of certain of the current
regulatory requirements in relation to major development plans.[4]
2.10
The views expressed by submitters to this inquiry appear to accord with
the spectrum of views summarised in the RIS and reflect a general level of
acceptance of the regulatory framework proposed in the bill. The committee
notes that many submitters recognise that the regime established by this bill
is a compromise position between communities' need for greater transparency and
consultation and the expectation of airports and their users for a regulatory
environment conducive to investment and continued development.[5]
2.11
Notwithstanding this, the committee received a significant number of
submissions raising concerns with regard to specific aspects of the proposed
regulatory framework. For example, a number of local governments expressed a
preference for the tighter regulatory control provided for in Option B.[6]
In particular, these councils stressed the desirability of legislated,
mandatory formal consultative mechanisms and tighter regulation of
non-aeronautical developments on airport land.[7]
2.12
The Australian Mayoral Aviation Council (AMAC) told the committee that:
History provides clear evidence that a voluntary framework
has not worked. In any case a voluntary arrangement relies on the goodwill of
the parties. It is suggested that, where difficult decisions are to be made on
matters with a significant positive or negative consequence for either part,
goodwill will almost certainly finish second.[8]
2.13
The City of Belmont proposed that the regulatory framework should be
reviewed after 10 years. If the approach contained in the bill is shown to be
ineffective, a tighter regulatory approach should be introduced.[9]
2.14
Conversely, a number of airport corporations expressed concerns about
the cost in terms of time and resources imposed by these regulatory changes and
the potential impact this would have on the operation and the further
development of airports.
2.15
Many submitters expressed some concern regarding the drafting of
specific sections of the bill and proposed amendments to address the problems
identified. These concerns are discussed in greater detail below.
Consultation on draft legislation
2.16
A number of witnesses and submitters expressed disappointment that they
had not been consulted during the drafting of the bill.[10]
The Australian Airports Association (AAA) told the committee that it had sought
an opportunity to be consulted on the drafting of the bill, but had been
advised that the extensive consultation undertaken throughout the Aviation
Green Paper and White paper process was considered sufficient. The AAA told the
committee that in their opinion there is a significant difference between
consultation on the development of a policy and consultation in the preparation
of a legal document.[11]
2.17
Mr John Doherty, Executive Director, Aviation and Airports, Department
of Infrastructure and Transport, told the committee that while there had not
been an exposure draft of the bill released for consultation, the Department
had received valuable input throughout the process from the AAA, individual
airports and from state and territory governments and local councils. Mr
Doherty told the committee:
The decision to release a bill as an exposure draft is one
for government, It is not done as a matter of course; it is done where it is
seen as adding a value in the particular circumstances. The judgement was made
in this case that, after the extended consultation and the likelihood that the
comments would pull in different directions because this is a balance, the bill
was not released as an exposure draft before introduction.[12]
Requirements for greater detail in airport master plans
2.18
The Airports Act 1996 (the Act) provides for the development of
airport master plans. As discussed in Chapter 1, the White Paper notes that as
well as being an important element in an airport planning cycle, master plans
provide a key opportunity for state and local governments and communities to
influence airport planning. The master plan process also provides an
opportunity for airports and state and territory and local governments to work
through likely off airport impacts of future airport developments. The White
Paper concludes that the provision of greater detail in master plans should
inform and enhance this collaboration.[13]
2.19
Subsection 71(2) of the Act specifies the detail that must be included
in a draft or final master plan. The bill proposes that this list of items be expanded
to include:
- a ground transport plan on the landside of the airport;
- proposed developments for purposes not related to airport
services;
- the likely effect of proposed developments in the plan on
employment levels at the airport and on the local and regional economy and
community; and
- an environment strategy.[14]
2.20
Many submitters welcomed the requirements for greater detail,
particularly in relation to the coordination of on-airport and off-airport
airport transport infrastructure.[15]
The Northern Territory Department of Lands and Planning told the committee
that:
The proposed amendments relating to the information to be
included in the future into the preparation of masterplans for the airports
will aid this Department in its endeavours to integrate the developments at the
airports in the Northern Territory with the development happening around the
airports.[16]
2.21
Qantas told the committee that the coordination of transport on-airport
and off-airport and environmental concerns are of great importance and that the
master plan process will benefit from these inclusions.
2.22
The Western Australian Department of Planning expressed concern that the
five year planning time frame for the matters outlined in 71(2)(h)(ga) and (gb)
and 71(3) (h) (ga) and (gb) is too short. The Department of Planning told the
committee that:
The road network and public transport systems outside the
airport are significant infrastructure items. Longer planning time frames will
be required to ensure adequate integration with the surrounding networks and
the capacity of such networks are developed in a timely manner and not unduly
impacted by development at airports.[17]
2.23
A number of other submitters raised similar concerns.[18]
AMAC told the committee that, while it may be appropriate to provide detailed plans
for ground transport and other proposed non-aviation developments with a
five-year horizon, such plans should not be static. AMAC proposed that the
requirement should be a five-year rolling program with adequate opportunity for
appropriate consultation and input.[19]
The City of Belmont proposed that the detailed information provided in a master
plan should be reviewed each time the Master Plan is reviewed.[20]
The Perth Airports Municipalities Group Inc (PAMG) suggested that the transport
and economic impacts of a master plan should be reviewed in the same way that
environmental matters are to be revisited.[21]
The City of Belmont expressed concern that it is not clear how these revised
requirements will apply to existing master plans.[22]
2.24
A number of submitters expressed concern that the amendments do not go
far enough and expressed some doubt regarding the extent to which the
amendments would foster greater integration of planning.[23]
2.25
Submitters also expressed concern that the requirements for
consideration of the likely effects of proposed developments should extend
beyond the immediate surrounding communities to include the metropolitan and
regional implications.[24]
2.26
Airport lessees expressed concern at the lack of clarity with regard to
the new requirements of a master plan.[25]
The AAA told the committee:
... it is far from clear what degree of analysis will be
required by the Minister to meet the statutory requirement for "detailed
information" or exposition of "likely effect". Airports would
obviously be concerned if the level of analysis demanded under these new
provisions was unreasonably complex. Master Plans are intended to be long-term,
predictive and strategic documents, with individual major developments forecast
in them requiring separate approval under the Major Development Plan process.
It is at that latter stage that more detailed examination is appropriate.[26]
2.27
Submitters also cautioned against a predisposition to refuse approval
for any on-airport development that may have an adverse off-airport effect. The
AAA told the committee:
Inefficient off-airport businesses should not be insulated
from competing and more efficient businesses simply because they may be located
within the boundaries of an airport. Local communities deserve access to
competitive and efficient suppliers of goods and services, wherever they may be
located.[27]
Incorporation of airport
environment strategy in master plans
2.28
The bill also proposes the annexure of the airport environment strategy
in the master plan. AAA told the committee that it supports this change in
principle, recognising that it "offers the opportunity for more efficient
and comprehensive and less expensive consultation between airports, their local
communities and relevant Government authorities".[28]
2.29
However, the AAA expressed concern that the inclusion of the environment
strategy may lead to delays in the approval of the master plan. AAA told the
committee:
In particular, we would be very concerned if the
incorporation of the Environment Strategy allowed the Commonwealth Environment
Minister to place any conditions or other requirements on the broader Master
Plan through their involvement in the Environment Strategy, or if the
Environment Department did not afford such matters the same priority as they
receive from the Transport Department, thereby delaying the whole process.[29]
2.30
This view was shared by a number of other submitters.[30]
2.31
However, the committee notes that the City of Cockburn expressed concern
that non-environmental priorities should not cloud judgement regarding scrutiny
of the environmental acceptability of proposed developments.[31]
Regulatory burden
2.32
Airport lessees also expressed concern that the amendments to the master
plan process would result in an increase in the regulatory burden on airports.[32]
2.33
Submitters observed that this appeared to be contrary to trends toward
simplified regulatory structures.[33]
The AAA submitted that the bill would make the development planning process for
affected airports more intrusive, more expensive and more time consuming.[34]Airport
lessees also expressed concern that the amendments signalled a move away from
the concept of an airport master plan as a strategic document to a far more
detailed and prescriptive plan.
2.34
Airport lessees also expressed concern that some of the new inclusions
in a master plan may delay an already lengthy approval process. For example,
while airport lessees recognise the benefit of better coordination of
on-airport and landside infrastructure, many remain concerned that the reliance
on third parties to meet the expanded requirements of the master plan may delay
or compromise approval of the plan in certain circumstances.[35]
2.35
The AAA noted that airports will need to obtain from state and territory
governments details of how and when those governments intend to deliver the landside
road and public transport infrastructure and services required to complement
growth in aviation activity. The AAA expressed some concern in the event of any
unwillingness on the part of a state or territory government to provide
necessary landside infrastructure and services. The AAA told the committee it
would be concerned if such unwillingness "was interpreted by the
Australian Government in such a way as to prejudice the final approval of the
Master Plan or, indeed, to invalidate transport assumptions or conclusions post
approval".[36]
These concerns were echoed by the Tourism and Transport Forum who expressed
concern regarding the cancellation or deferment of major transport projects
referred to in a master plan. The Tourism and Transport Forum supports the
inclusion of the ground transport plan, but recommended that it be viewed as a
guide to future intentions rather than as a fixed requirement.[37]
2.36
Sydney Metropolitan Airports (SMA), which operates the Bankstown and
Camden General Aviation (GA) airports, expressed concern that the bill does not
differentiate between larger and smaller airports. SMA expressed concern that the
amendments proposed in the bill would increase the cost of running GA airports
without increasing the revenue capability and that this would not be
sustainable in the longer term. In its submission SMA said:
This approach continues a 25 year old framework of regulation
established for airports managed by the Federal Airports Corporation (FAC) as
far back as 1986. The one size fits all airport framework was developed at a
time when the Australian Government and the FAC subsidised operations at GA
airports.[38]
2.37
SMA illustrated its concerns with a comparison of airport activity
levels for Sydney Airport and Camden Airport.[39]SMA
recommends that GA airports should be either excluded from these amendments or
measures should be introduced to support GA airports.[40]
Expanded major development plan requirements
2.38
During the White Paper process, concerns were raised that many
developments on airport land that would have required community consultation,
had they taken place outside the airport boundary, fail to trigger the
requirement for a major development plan.[41]
The White Paper notes that there is a view that this has led to excessive use
of airport land for developments that are not directly related to aviation and
which are not consistent with the interests of surrounding communities.
2.39
The bill introduces a series of amendments that are intended to enable
public consultation for all airport developments that impact on surrounding
areas.
2.40
The bill also contains provisions intended to streamline certain
development applications in circumstances where there is little community
impact or where a major development plan is aligned with the latest master plan
and has therefore already been subject to public scrutiny.
Developments with a significant
community, economic or social impact
2.41
As noted above, The White Paper identified that major development plan
triggers fail to capture some non-aeronautical developments on airport sites
that potentially have significant community impacts. The White Paper also noted
that there is no general requirement for interested parties to be notified of
airport development plans falling outside the master plan and major development
plan processes.
2.42
The bill addresses these concerns through the inclusion of a provision
that a development of a kind that is likely to have a significant impact on the
local or regional community is a major airport development and will require a
major development plan. This includes any alteration to a runway, including a
runway alteration that changes flight paths. The Explanatory Memorandum to the
bill states that:
As is currently the case with the existing major development
plan trigger on significant environmental or ecological impact, proposed
developments with significant community impact, regardless of size or cost,
will be subject to the optimal level of public comment to enable members of the
community and other stakeholders to have input into the proposed developments
that may be contentious within the local area.[42]
2.43
The Explanatory Memorandum states that in determining whether a proposed
development is likely to have a significant impact on the local or regional
community, the following are examples of issues that may be considered:
- Will the proposed development impact on the amenity of the local
or regional community?
- Will the proposed development increase traffic in the immediate
surrounds of the airport?
- Will the proposed development likely create increased noise in
the area?
-
Will the proposed development create areas of risk for
individuals within, or adjacent to, the airport?
- Will the proposed development likely cause significant concern by
the local or regional community?[43]
2.44
The Explanatory Memorandum also states that administrative guidelines on
what may constitute 'significant impact on the local or regional community'
will be provided to relevant industry stakeholders.[44]
2.45
The committee received numerous submissions seeking clarification of the
scope of these provisions.[45]
For example, the City of Belmont applauds the intent of these provisions, but notes
that there needs to be clear guidelines produced to define what a significant
community impact is and how it is triggered. The council considers that the
questions set out in the discussion paper are "too vague and open" to
aid interpretation and expresses concern that unless the criteria are
clarified, substantial problems will be encountered by both airport lessees and
the general public in trying to apply this requirement.[46]
2.46
Qantas notes that major development plans are very costly and time
consuming and that it is imperative that there is clarity around whether or not
a major development plan is required. Qantas and Australian Pacific Airports
Corporation both told the committee that there is a need for further
consultation in relation to these provisions and in the formulation of
guidelines regarding their application.[47]
Requirement for major development
plans for alterations to an airport runway
2.47
The amendments to the requirements for major development plans in
relation to alterations to runways were a source of some concern to a number of
airport lessees. The committee notes that these concerns appear to stem from
uncertainty regarding routine maintenance of runways. Airport lessees stressed
the need for clarification of the types of runway development activities that
would require a major development plans.[48]
2.48
The Department told the committee that it was not the government's
policy intention that routine runway maintenance would trigger the requirement
for a MDP.[49]
Mr Doherty told the committee:
We would certainly never envisage routine maintenance as
triggering this. I do not see that as an alteration of a runway. The point that
has been raised is that it is not in the longer term an alteration of runway,
but maybe for the period that you are doing the work it may alter operations.[50]
2.49
The Department told the committee that the Explanatory Memorandum to the
bill has been amended to clarify this point. The committee heard that the Explanatory
Memorandum now reads:
The reference to altering a runway, including altering a
runway in any way that changes flight paths ... is not intended to capture
routine maintenance works, for example patch, repair of runways, taxiways,
aprons, crack sealing, runway resurfacing, line marking ...[51]
2.50
The Department undertook to re-examine the provisions in the bill to
determine if further clarification of the provisions themselves is necessary.
Mr Doherty told the committee that:
... the explanatory memorandum, of course, cannot override the
words of the bill itself, so we do still need to make sure that that provision
is consistent.[52]
2.51
In subsequent correspondence to the committee, the Department has clarified
that it has not been the government's intention to capture "routine
maintenance works such as patch repair of runways, taxiways and aprons, crack
sealing, runway resurfacing, line marking, jet blast protection and the repair,
maintenance and upgrade of aviation navigation aids". As the committee
notes earlier in this report, the Explanatory Memorandum has been amended to
clarify this. However, the Department has advised that the intention is now to
make this clear in the bill.[53]
2.52
The Department has also advised that consideration is also being given
to the introduction of a materiality test to provide that only a runway that
significantly changes flight paths or the patterns of levels of aircraft noise
will require a major development plan. The Department states that this will ensure
that essential runway maintenance works which may result in temporary closure
of part of a runway are not captured. The Department states that such an
approach would align with existing provisions in section 89 of the Airports
Act 1996.[54]
2.53
The Department confirmed that the Minister, the Hon. Anthony Albanese
MP, has given in-principle agreement to these proposed amendments.[55]
Incompatible developments
2.54
The bill inserts a new subdivision into the Act to deal with what are
considered to be incompatible developments.
2.55
In 2009, the Airports Regulations 1997 were amended to provide that
certain types of developments, which the government considers would normally be
incompatible with the operation of an airport as an airport, would constitute
'major airport developments'. Such developments could only be carried out where
they have been subject to a public consultation process and a major development
plan is approved by the Minister under the Act.[56]
2.56
In the White Paper, the government indicated it would "reinforce this
action by introducing legislation to set up a prima facie prohibition of such
developments on federal airport sites".[57]
Under subsection 71A (1) of the bill, an airport lessee company must identify
any proposed incompatible development in the master plan. Subdivision B
provides that an incompatible development is prohibited on leased federal
airports, except in exceptional circumstances. If an airport-lessee company
wants to prepare a draft major development plan in relation to an incompatible
development, the company must first obtain the approval of the Minister.[58]
2.57
A number of submitters expressed the view that there should be a
prohibition on certain categories of non-aviation developments on airport land.
In its submission the AMAC said:
Incompatible developments should be exactly that.
Incompatible in this sense means that there is a conflict between the
development activity and airport operations or that either or both will need to
modify their behaviour to accommodate the other, often to the detriment of one
or both parties.[59]
2.58
Other submitters told the committee that where there are exemptions from
this prohibition, local council should be given an opportunity to comment on
the developments.[60]
2.59
The committee notes that while there appears to be a general
acknowledgment of the need for certain developments to be subject to greater
scrutiny through a public consultation process and approval by the Minister,
there is significant concern regarding the use of the term
"incompatible" to describe such developments.
2.60
The committee heard that there is nothing inherently incompatible about
any of the developments listed in sub section 71A (2) of the bill. The
committee heard that the current drafting of the proposed amendments may deny
airports the opportunity to have development proposals dealt with on their
merits.[61]
2.61
Mr Skehill, Legal Adviser, AAA, told the committee:
We certainly accept that the Commonwealth has a very
legitimate interest in ensuring that airport land can continue to operate into
the future as an airport. Building warehouses all over airport land will at a
point render the land unusable as an airport. The existing law deals with that
by requiring that certain developments be subject to ministerial approval, and
the minister can stop that happening. Equally, you could put aviation
infrastructure in inappropriate places on airport land and be inconsistent.
There is no reason why you would, but conceivably you could. There are clearly
some things that would be incompatible with the operation of an airport, but
they are not these things that are listed here in the definition of
incompatible development. They might be things that for policy reasons a
minister thinks would be best located off airport. We might disagree with that
view but let that question be judged on its merits and not by tagging it with
this inappropriate, misleading term ‘incompatible’.[62]
2.62
Mr John Doherty told the committee that the Minister is keen to send a
clear message that the airports sites are primarily for aviation uses. He said:
There is certainly a range of uses which support aviation and
are to be encouraged but there are a range of developments which would not
normally be compatible with an airport site because of the attraction of
traffic, of exposure of people to noise or of limiting the possible flexible
use of the site into the future to maximise aviation operations.[63]
2.63
Mr Doherty explained that the provisions as currently drafted do not
preclude the developments listed in proposed new section 71A of the bill. Mr
Doherty said the bill sets a range of special procedures and clearly sets the
expectation that the exceptional circumstances relating to each development
proposal will need to be carefully justified.[64]
2.64
The committee also heard concerns about the impact of these provisions
on currently approved proposals, including tertiary institutions on airport
land. Queensland Airports Limited told the committee of its concerns regarding
the impact of these provisions on current tertiary educational developments on
airport land at Gold Coast Airport by Southern Cross University. The committee
heard that Building A was completed and opened in early 2010 and that approval
for Building B had been received in October 2009. Both developments are located
at some distance from aviation related facilities and received approval after
extensive community and industry consultation and the submission of major
development plans to the Minister.[65]
2.65
Ms Elissa Keenan, General Manager Corporate Affairs, Queensland Airports
Limited, told the committee that the White Paper had not referred to tertiary
institutions but that the airport had since been advised that the term
"incompatible development" would include a primary, secondary,
tertiary or other such educational institution. Ms Keenan said:
... for us, the retrospective changes to the definition of what
constitutes incompatible development are of concern, particularly when the
Southern Cross University had planned to continue its expansion on our airport
land.[66]
2.66
Other submitters also expressed concern regarding the lack of clarity
regarding the types of developments which might be considered
"incompatible". Mr Mark Willey, Executive Manager, Brisbane Airport
Corporation (BAC) told the committee that BAC had recently been "subjected
to an MDP process for a relatively minor fit-out works to develop a maritime
simulator training facility in an existing building" within a precinct of
Brisbane Airport specifically established for that type of use. He said:
BAC support the intent of the white paper policy to not place
sensitive receptors such as primary or secondary schools in high-noise or
high-risk zones adjacent runway-ins [sic] but contend that this training
facility example was not a target of the policy intent.[67]
2.67
In correspondence to the committee, the Department clarified that an
amendment to address concerns over the scope of what constitutes 'other
educational institution' in proposed section 71A is under active consideration.
The Department advised the committee that:
Whilst clause 41 of the EM seeks to clarify that the
intention is not to capture facilities for the purpose of providing training to
staff members employed by organisations on the airport, an amendment is being
developed to make this clear in the Bill.[68]
2.68
The Department advised that the Minister has given his in-principle
agreement to such an amendment.[69]
2.69
Mr Willey suggested to the committee that consideration should be given
to the use of the terminology "assessable development" to convey that
such activities will be subjected to further assessment, such as a major
development plan.[70]
The committee notes that there appears to be some support for this proposal.[71]
The City of Belmont told the committee that the use of the term
"incompatible" is questionable and that the current provisions only
serve to increase the administrative burden for airports and exacerbate the
belief in the wider community that airports and communities are incompatible.
Canberra Airport also submitted that the scope of the term "incompatible
developments" risks inviting much greater stakeholder opposition to such
developments.[72]
The City of Belmont suggested that the blanket prohibition on such developments
should be removed and replaced with a requirement for a major development plan.[73]
Relaxation of major development
plan requirements in certain circumstances
2.70
As noted in Chapter 1, subsection 89(5) of the bill is intended to
enable an airport-lessee company to request the Minister to waive the
requirement for a major development plan where the Minister is satisfied that
the development will not:
- Increase the operating capacity of the airport; or
- Change the flight paths; or
-
Change the patterns or levels of aircraft noise; or
-
Unduly increase the noise heard by, or unduly cause a nuisance
to, the community adjacent to the airport.
2.71
The Explanatory Memorandum clarifies that this exemption can be sought
for the following developments specified in subsection 89(5):
- Constructing a new building wholly or principally for use as a
passenger terminal where the building's gross floor space is greater than 500
square metres;
- Extending a building that is wholly or principally for use as a
passenger terminal where the extension increases the building's gross floor
space by more than 10%;
- Constructing a new taxiway, where: (i) the construction
significantly increases the capacity of the airport to handle movements of
passengers, freight or aircraft; and (ii) the cost of construction exceeds $20
million or such higher amount as is prescribed;
- Extending a taxiway, where: (i) the extension significantly
increases the capacity of the airport to handle movements of passengers,
freight or aircraft; and (ii) the cost of construction exceeds $20 million or
such higher amount as is prescribed.
2.72
A number of submitters told the committee that, while they supported the
proposal to reduce the circumstances in which a master development plan would
be required, in reality, many of the triggers would continue to result in
simple, routine developments being categorised as major developments.[74]
2.73
In correspondence to the committee, the Department advised that it has
given consideration to the comments made by representatives of the airports
that the inclusion of a requirement that a proposed development would not
"increase the operating capacity of the airport" makes provision
89(5) unworkable. The Department told the committee that:
The Minister has agreed in-principle to an amendment to the
Bill removing this requirement to ensure the practical operation of this
provision.[75]
Non-legislative changes
2.74
In his second reading speech, the Minister stated that the changes to
the Act proposed in this bill are supported by other non-legislative reforms
contained in the government's White Paper.[76]
2.75
These include the requirement for all leased federal airports to establish
and lead Community Aviation Consultation Groups, to give local residents and
businesses an opportunity to provide input to airport planning and operations,
and Planning Coordination Forums, to improve planning coordination between
major airports and all levels of government.
Community Aviation Consultation
Groups
2.76
Community Aviation Consultation Groups are consultative only and are not
decision making bodies. The primary purpose of the groups is to ensure that
community views are effectively heard and to give members the opportunity to
obtain information. The White Paper states that:
The work of an ongoing group of community representatives is
likely to support an informed dialogue, which is not always possible in one off
open forums.[77]
2.77
The White Paper states that, in recognition of the variety of community
and operational contexts that different airports operate within, each lessee company
will have the flexibility to define the scope and membership of the Community
Aviation Consultation Groups as long as certain core prescribed conditions are
met:
- The chair is independent;
- A record of the outcomes of key discussions is published;
- A report on the group's work is to be reviewed as part of the
annual lease review; and
-
The activity is to be funded by airports.
2.78
The Western Australian Department of Local Government considers that the
bill does provide for increased consultation and joint planning on issues
potentially affecting local government areas adjacent to airports. In its
submission to the Green Paper, the Western Australian Government had proposed
that a written bilateral agreement be developed regarding how consultation and
joint planning activity would be progressed. In its submission to this inquiry,
the Department of Local Government stated that the measures in the bill will
allow local governments and communities to make comment on and influence
significant future developments.[78]
2.79
In its submission, AMAC emphasised that effective, meaningful and
respectful consultation involving all tiers of government and effected
communities remains essential.[79]
AMAC told the committee that the "structure, composition, agenda and
reporting requirements of the proposed consultative and coordinating committees
will be critical in their success as will the mechanisms ensuring their ongoing
relevance".[80]
AMAC considers that the scope of these mechanisms should be spelt out either in
legislation or regulations.[81]
The committee notes that this position is supported by a number of submitters. [82]
The committee also notes that other submitters support legislation as a long
term option in the event that the non-legislative approach fails.[83]
2.80
Mr John Doherty told the committee that if necessary, legislation could
be introduced. He told the committee:
... we see this as being for the airport to work out what is
going to work best with its community, building on the consultation
arrangements that most airports already have. As I mentioned earlier on, there
is the possibility of backing that with legislation, should it prove necessary.
But we would rather provide the possibility at this stage for airports to adopt
what works best.[84]
2.81
Mr Doherty advised the committee that the Department is proposing to
recommend that the Minister issue guidelines relating to the establishment of
the consultation groups. Mr Doherty told the committee that the guidelines
would set some parameters, including the importance of having an independent
chair.[85]
Planning Coordination Forums
2.82
The White Paper recognises the importance of ongoing strategic
engagement between airports, the Commonwealth, and states and territories. The White
Paper highlighted the desirability of regular engagement continuing beyond the
development of an airport's master plan to enable an ongoing dialogue and
working relationship to develop.[86]
2.83
The White Paper states that each main capital city passenger airport
will be required to establish a Planning Coordination Forum. The White Paper
states that the Forums will build on existing mechanisms and are intended to:
... act as a vehicle to lead constructive ongoing dialogue on
matters such as Master Plans, the airport's program for proposed on-airport
developments, regional planning initiatives, off-airport development approvals,
and significant ground transport developments that could affect the airport and
its connections.
2.84
The White Paper also states that, as is the case with the Community
Aviation Consultation Groups, there is currently no intention to set
prescriptive requirements for the Forums as the preference is to allow
flexibility for arrangements to be tailored to the particular circumstances of
the parties involved.[87]
2.85
However, the committee notes that some submitters appear sceptical
regarding the likelihood of an ongoing dialogue or working relationship
developing without some form of legislative requirement. Bankstown City Council
told the committee:
While the provision in [71(2)(ga) ] for a ground transport
plan is supported, mere requirements in 71(2)(h)(iv) for detailing
"arrangements for working with the State or local authorities ..." is
likely to achieve very little or nothing, without any formal mechanism in place
to ensure that this will occur, once the master plan is approved and
implemented.[88]
2.86
Bankstown City Council favours a mandatory requirement for airport
lessees to "meaningfully and effectively" use the input received as a
result of working with state or local authorities and for the outcome of such
consultation to be included in the master plan.[89]
2.87
Submissions from other local governments indicated that local
governments would like formal provision to be made for local governments to
comment on any proposed development within airport land.[90]
Other issues
Airport contributions to infrastructure
costs
2.88
A significant issue for many submitters is the extent to which airports
contribute to the cost of infrastructure, particularly infrastructure for which
the airport is a key beneficiary.
2.89
The Australian Local Government Association (ALGA) told the committee
that while it is common practice for councils to seek developer contributions
toward the upgrading of infrastructure associated with major facilities, there
is no requirement for developers on airport land to make such contributions.[91]
Mr Adrian Beresford-Wylie, Chief Executive, ALGA, told the committee that this
anomaly should be addressed through consideration of the scope for charging
commercial developers of airport land developer contributions.[92]
He told the committee:
It seems reasonable to us that there ought to be a mechanism
in place to ensure that some of the burdens that are placed on surrounding
communities to support aviation developments that occur on those pieces of
land, that are to the benefit of the airport owners but in a sense have also
been realised as a benefit to the Commonwealth as a result of the lease
payments it has received for those airports, are borne by those who are
enjoying those benefits. Whether that is the airport owner or indeed the
Commonwealth which in some way provides for the gap that has developed between
the demands on communities to provide for infrastructure and their ability to
recoup the cost of the infrastructure is certainly a point for debate.[93]
2.90
This sentiment was echoed by a number of submitters.Both the Western
Australian Department of Planning and the Western Australian Department of
Local Government expressed the view that airport lessee companies should
contribute to related off-airport developments of which they are key
benefactors.[94]
The Western Australian Department of Planning submitted that:
... airport lessee companies and/or the Federal Government
should take responsibility for capital and re-current funding agreements for
private passenger, public transport and the freight demands they generate.[95]
2.91
Mr John Doherty, Executive Director, Aviation and Airports, Department
of Infrastructure and Transport, confirmed that "it is a standard
provision in airport leases to require rates equivalent payments and that there
have been agreements reached with councils". Mr Doherty told the committee
that while there had been some longstanding disputes he was not aware of any
remaining disputes of this nature.[96]
2.92
Mr Chris Woodruff, Chief Executive, Australian Pacific Airports
Corporation, expressed the view that as the benefits of aviation and tourism
are widely shared, he did not believe that airport lessees should take the
place of the state in providing access to and from an airport.[97]
Review of the ANEF process
2.93
The committee received evidence regarding the recommendation of the
former Rural and Regional Affairs and Transport References Committee in its
inquiry into the effectiveness of Airservices Australia's management of
aircraft noise that:
... the government revise the current process through which
ANEFs are developed to establish an independent body charged with the
coordination of the process and the review of the accuracy and reasonableness
of the data upon which the forecasts are made.[98]
2.94
Urban Taskforce Australia expressed concern that amendments to address
this recommendation have not been included in this bill. Mr Aaron Gadiel, Chief
Executive Officer, Urban Task Force Australia, expressed support for the former
committee's proposal that an independent authority be appointed to test the
underlying assumptions that are made by an airport in preparing the ANEF
contours. He said:
I am all for the airport operator preparing the ANEF contours
initially and explaining their assumptions. I am certainly supportive of the
idea that they need to be technically checked off in the way that Airservices
Australia do. But there is this gap that is unfilled and the legislation needs
to fill it because, through litigation by participants in our industry, we have
discovered that Airservices Australia are under no obligation whatsoever to
consider these commercial assumptions or accord any procedural fairness for any
member of the community who takes issue with the commercial assumptions.[99]
2.95
Mr Gadiel told the committee that Urban Taskforce Australia considers
that the legislative reforms announced in the White Paper and given effect in
this bill "dovetail very neatly" with the recommendations of the
former committee. He drew the committee's attention to statements in the White
Paper that government will "improve the technical processes and
independence associated with assessment and scrutiny of ANEFs" and that
there would be better planning integration which "will be further
supported through strengthening the Minister's access to expert ... advice in the
assessment of ... Master Plans ...". Mr Gadiel noted that despite these
statements:
The bill does not introduce a mechanism for the establishment
of a new independent body to ensure that more robust process for the
endorsement of ANEF contours, and it should do so.[100]
2.96
Mr Doherty told the committee that the Department is very conscious of
the committee recommendation regarding the ANEF process. He advised the
committee that a working group of Commonwealth and state officials is
considering a range of safeguarding issues around trying to better integrate
the planning for areas surrounding airports. He said:
One of the issues we are looking at in that group is the
suite of noise metrics and I thought that in the evidence this morning it was
quite well stated that the ANEF is an imperfect tool.
...
So we are looking at the possibility of additional metrics or
improving the system and we would then look at the processes relating to
putting those in place.
2.97
AMAC is supportive of the ANEF metric being partnered with other metrics
to provide a clearer understanding of the impacts of aircraft noise for the
purposes of development on and adjacent to airports. Mr John Patterson, Project
Manager, AMAC, told the committee that AMAC has been a long-term critic of ANEF
as a standalone metric in assessing noise impacts. He also agreed that by
simply validating the data provided in ANEF forecasts, Airservices Australia is
left open to criticism that there is no independent review of the process.[101]
Mr Patterson expressed the view that as the Minister for Infrastructure and
Transport is responsible for approving the master plan, there should be
resources to verify the assumptions in the plan within the Minister's department.[102]
2.98
Mr Doherty told the committee that this is a contested issue as there is
a significant amount of pressure around the country in continuing to develop in
areas which have a degree of aircraft noise. He said that while the Working
Group is trying to move its work forward, they have not yet reached a point
where amendments to legislation could be drafted.[103]
Conclusion
2.99
The committee recognises that the planning regime for developments on
airport land has been in need of significant reform for some time. The public
has a right to better information and consultation with regard to airport
development, particularly the impact of such developments on neighbouring
communities. This has been sadly lacking in the past and, as a result,
developments on and around airport land have frequently been the focus of
significant contention and acrimony.
2.100
At the same time airports are essential community infrastructure and
contribute significantly to the economies of their surrounding local community,
state and to the nation. It is essential that planning in and around airports
is a cooperative exercise between all tiers of government so as not to
compromise that contribution in the long term.
2.101
The committee notes that there is a broad level of support for many of
the changes to be implemented by this bill. At the same time, the committee also
notes the concerns regarding, on the one hand the potential regulatory burden
imposed by these amendments and on the other hand concerns that the bill
affords too much flexibility and discretion. The committee recognises the
intent of the bill is to balance the needs of all parties to ensure effective
community consultation, the integration of airport planning with local, state
and territory planning regimes and ongoing investment in aviation
infrastructure. The committee considers that the bill appears to achieve this
balance.
Consultative mechanisms
2.102
The committee welcomes the provision for greater information regarding
airport planning and developments and the establishment of Community Aviation
Consultation Groups and Planning Coordination Forums. The committee observed
during its previous inquiry into management of aircraft noise the benefits to
all parties when changes on airport land are adequately communicated to the
communities who will be impacted by them.
2.103
The committee notes the concerns raised during this inquiry regarding
the need for consultative mechanisms to be mandated in the legislation. The
committee also notes that, in the event that the government's expectations
regarding consultation are not met, it could move to prescribe consultation
measures in the future.
Expanded master plan requirements
2.104
The committee notes the broad support for the requirements for greater
detail and analysis in airport master plans, particularly the requirements for
the inclusion of a ground transport plan, the identification of proposed
non-aeronautical developments and the need to align developments on airport
land with state, territory and local government planning laws. However, the
committee notes from the evidence received that there is a need for
clarification of the level of detail and analysis required.
2.105
The committee considers that clear guidelines are needed to enunciate
the expectations placed on airport lessees and to safeguard the interests of
all parties to the airport planning process. The committee believes that such
clarity is essential to ensure that the cost burden of the expanded
requirements is realistic.
Recommendation 1
2.106
The committee recommends that the Department of Infrastructure and
Transport develop guidelines in consultation with key stakeholders to clarify
the level of detail and analysis to be included in airport master plans in
order to satisfy the requirements set out in paragraph 71(2)(h) and 71(3)(h) of
the Airports Amendment Bill 2010.
Incompatible developments
2.107
The committee concurs that given that the primary purpose of an airport
is the provision of aeronautical services, there are a range of activities that
may potentially be at odds with the long-term operation of an airport. The
committee supports the intention of the bill that such developments should only
be permitted in exceptional circumstances and should be subject to a greater
level of scrutiny if they are to proceed.
2.108
However, the committee acknowledges the concerns raised by individual
airport operators and by the AAA with regard to these provisions as currently
drafted. The committee accepts the argument that proposals for the kinds of
projects identified in section 71A should be considered on their individual
merit and that this may be compromised by the use of the term
"incompatible". The committee notes that there is nothing inherently
incompatible about the developments listed and considers that it is really a
question of considering the particular circumstances of each such proposal on a
case by case basis. In this context the committee is mindful of the concerns
raised regarding the Southern Cross University development at the Gold Coast Airport.
2.109
The committee is also persuaded that greater clarity is required
regarding the range of developments caught by these amendments. The committee
also considers that the introduction of a prima facie prohibition on such
projects, coupled with a mechanism for waiving the prohibition, does appear to
send a confused message to the community. As a number of submitters have
observed, the provisions as currently drafted risk placing consultation around
such developments on an unnecessarily adversarial footing.
2.110
The committee welcomes the Minister's in-principle agreement to an
amendment to clarify the scope of what constitutes 'other educational
institution' in proposed section 71A of the bill.
Changes to major development plan
requirements
2.111
The committee recognises the government's intention to balance the expanded
requirements of the master plan process with amendments to streamline
development applications in certain circumstances. While the committee notes
there is support for the intent of these amendments, further consideration
needs to be given to their practical implementation. The committee acknowledges
that uncertainty around the interpretation of the provisions as currently
drafted has the potential to flow-on to investment confidence. This, together
with the costs associated with undertaking major development plans in
circumstances where they are not warranted, will inevitably have some impact on
the regulatory costs faced by airport lessees.
2.112
The committee therefore welcomes the Minister's in-principle agreement
to amend Item 40 of the bill in relation to the requirement for alterations to
a runway to undergo a major development plan to clarify that routine
maintenance works are not captured by this provision. The committee also
welcomes the Department's advice that consideration is being given to the
introduction of a materiality test to provide that only a runway alteration
that significantly changes flight paths or the patterns or levels of aircraft
noise will require a major development plan.
2.113
The committee is also pleased to note the Minister's in-principle
agreement to an amendment to the bill removing the requirement in new section
89(5) that a proposed development would not 'increase the operating capacity of
the airport'.
Consultation on draft bill
2.114
The committee recognises that the policy positions which underpin these
legislative amendments were developed after lengthy consultation during the
National Aviation Policy Green and White Paper process. The committee therefore
understands the view that further consultation on an exposure draft was not
warranted. However, the committee also agrees that many of the concerns raised
during this inquiry in relation to the need for clarification and finetuning of
the bill may have been avoided had there been consultation on an exposure
draft. The committee welcomes the Minister's in-principle agreement to the
drafting of a small number of amendments to the bill to clarify its operation
and to avoid unintended consequences. However, the committee considers that the
preferable situation would have been for these drafting inconsistencies to have
been identified and clarified in consultation with key stakeholders prior to
the bill's introduction into the parliament.
Recommendation 2
2.115
The committee recommends that, subject to the amendments foreshadowed by
the Department of Infrastructure and Transport in correspondence to the
committee dated 15 November 2010, the bill be passed.
Senator Glenn Sterle
Chair
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