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2008-2009-2010
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
AIRPORTS AMENDMENT BILL 2010
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Infrastructure, Transport,
Regional Development and Local Government
the Honourable Anthony Albanese, MP)
AIRPORTS AMENDMENT BILL 2010
OUTLINE
The Airports Act 1996 (the Airports Act) establishes a comprehensive
framework for the regulation of Commonwealth-owned airports which have been
leased for 50 years (with a further 49-year option) to private companies.
These are the 21 airports previously operated by the Federal Airports
Corporation, a Commonwealth statutory authority.
As the airports remain Commonwealth places, the Australian Government has
applied a national regulatory regime on these airports. The regulatory
arrangements are set out in the Airports Act and its implementing
regulations, namely the:
. Airports Regulations 1997;
. Airports (Building Control) Regulations 1996;
. Airports (Control of On-Airport Activities) Regulations 1997
. Airports (Ownership - Interests in Shares) Regulations 1996; and
. Airports (Environment Protection) Regulations 1997.
On 16 December 2009, the Government released the National Aviation Policy
White Paper Flight Path to the Future (the White Paper) which outlines the
policy settings on aviation and airports and the long-term approach the
Government has taken, or will take, to achieve these policy objectives.
The Airports Amendment Bill 2010 (the Bill) amends the Airports Act to give
effect to the legislative reforms announced in the White Paper, in
particular, to improve the planning regulatory framework drawing on from
the lessons of the past 14 years.
The key areas in which the Bill amends the Act are as follows:
. strengthening the requirements for airport master plans and major
development plans to support more effective airport planning and
better alignment with State, Territory and local planning;
. in relation to the first five years of a master plan, requiring
additional information such as a ground transport plan and detailed
information on proposed developments to be used for purposes not
related to airport services (e.g. commercial, community, office or
retail purposes);
. restructuring the triggers for major development plans including
capturing proposed developments with a significant community
impact;
. prohibiting specified types of development which are incompatible
with the operation of an airport site as an airport. However, an
airport-lessee company will have the opportunity to demonstrate to
the Minister that such a development could proceed through a major
development process because of exceptional circumstances;
. integrating the airport environment strategy into the master plan
requiring only one public comment period for the combined document
recognising that an airport environment strategy is better
articulated in the context of the airport's master plan.
Transitional provisions are included to address how the expiry
dates of environment strategies will be aligned with the expiry
dates of master plans; and
. clarifying ambiguous provisions and making housekeeping amendments
to update certain provisions of the Airports Act.
The new requirements will commence operation on the day after Royal Assent.
Financial impact statement
There will be no impact on Commonwealth expenditure; therefore, a financial
impact statement is not required.
REGULATION IMPACT STATEMENT
Background
Planning and development on leased federal airport sites operate under
Commonwealth law, and are not subject to State, Territory or local
government planning laws.
The planning regulatory arrangements currently apply to 19 airports:
Adelaide, Alice Springs, Archerfield, Bankstown, Brisbane, Camden,
Canberra, Darwin, Essendon, Gold Coast, Hobart, Jandakot, Launceston,
Melbourne (Tullamarine), Moorabbin, Parafield, Perth, Sydney (Kingsford-
Smith) and Townsville.
Under the Airports Act, these airports are required to develop and seek
approval for long-term strategic master plans, as well as major development
plans for individual development proposals significant enough to warrant
specific assessment. An overview of the planning framework is shown below.
Overview of the current planning framework for leased federal airports
| |Master Plans |Major Development |Building approvals |
| | |Plans | |
|Purpose |20-year strategic |Approval process |Approval process |
| |vision for airport|for every 'major |for every building |
| |site, including |airport |activity (including|
| |future land uses, |development' |construction and |
| |types of permitted|specified in |demolition). |
| |development, |section 89 of the | |
| |environmental and |Airports Act and in| |
| |noise impacts. |the regulations. | |
|Decision |Minister |Minister |Airport Building |
|maker | | |Controller |
|Public |60 business days |60 business days |None required |
|consultation | | | |
|Assessment |50 business days |50 business days |28 calendar days |
|timeframe | | | |
Current airport planning framework
The Commonwealth's oversight of the operation of the leased federal
airports is set out in the Airports Act and its implementing regulations,
in the (head) leases for the airport sites and in the sales agreements with
the airport-lessee companies. The Airports Act ensures that the airports
continue to be subject, among others, to planning approvals, controls
relating to ownership issues, leasing and management of airports,
environmental management, access and demand management, certain on-airport
activities, financial reports and quality of service monitoring. All
airports are also subject to the safety requirements under the civil
aviation legislation administered by the Civil Aviation Safety Authority
(CASA). They are also subject to security controls under the aviation
transport security legislation.
Each airport is leased for 50 years (with a 49-year option to renew the
lease). Majority Australian ownership is required under the legislation
and there are limits on airline ownership of airports and cross-airport
ownership.
As noted, planning and development on airport sites continue to operate
under Commonwealth law and are not subject to State, Territory or local
government planning laws. The Airports Act requires each airport-operator
to prepare and obtain approval from the Minister for a master plan. The
master plan sets out the strategic planning framework for the airport for a
20-year period, as well as addressing noise, environmental and land use
issues. The master plan requires updating every five years or earlier, if
requested by the Minister, and is a subject to a public comment period.
The purpose of master plans is to:
. establish the strategic direction for efficient and economic
development at the airport;
. provide for the development of additional uses of the airport site;
. indicate to the public the intended uses of the airport site;
. reduce potential conflicts between uses of the airport site; and
. ensure that uses of the airport site are compatible with the areas
surrounding the airport.
An airport developing a master plan is required under the Airports Act to
directly inform the relevant State or Territory and local governments,
publish the draft master plan and invite comment from the public for a
period of 60 business days. The airport is further required to provide
information about public comments received when submitting the master plan
to the Minister for approval.
The Airports Act acknowledges the distinction between long-term plans and
firm development proposals. It therefore establishes a separate planning
process, known as major development plans, to allow for public consultation
and Ministerial assessment of specific major airport development proposals
on leased federal airport sites. The provisions of the Airports Act
relating to major development plans are intended to promote the orderly
development of leased federal airports and to ensure that major airport
developments are consistent with the terms of airport leases and master
plans. The existing major development plan framework is also intended to
ensure that the operational, safety, noise, environmental and community
impacts of such developments can be assessed.
In general terms, the requirement for a major development plan is triggered
if the development involves any of the developments listed in section 89 of
the Airports Act and this list includes:
. any new runway capacity;
. specified new passenger terminal capacity;
. new taxiway, railway or road capacity, where such an upgrade
significantly increases the capacity of the airport; or
. significant environmental impact.
Section 89 of the Airports Act also captures non-aeronautical developments
if the construction of the new building, which is not wholly or principally
for use as a passenger terminal, costs more than $20 million.
As is the case for master plans, an airport developing a major development
plan is required to directly inform the relevant State or Territory and
local governments, publish the draft plan, and invite comment from the
public for a period of 60 business days. The airport is further required to
provide information about public comments received when submitting the
draft major development plan to the Minister for approval.
Airports are not required to invite public comment on building activities
(including constructions and works) that do not trigger a major development
plan.
Problems and issues with the current airport planning framework
The White Paper identified a number of issues with the current airport
planning framework.
Investment and development on airport sites have on occasion generated
controversy, especially when people affected by developments feel that
their interests have not been adequately considered. Australia's modern
airports are large and complex operations that now support a wide range of
aeronautical and non-aeronautical activities. These activities can have
significant impacts on communities.
Airports play a significant role in the transport networks of the cities in
which they are located and are responsible for generating a significant
number of vehicle movements. Airport developments that significantly
increase the number of airport users can have a substantial impact on
connecting transport infrastructure, increasing urban congestion and
vehicle emissions and reducing the efficiency of the surrounding transport
network.
Australia's cities are coming under increasing pressure from population
growth, higher densities, water scarcity and climate change. Airport
development is one aspect of an increasingly complex metropolitan planning
challenge. The current airport planning system is not properly integrated
with the off-airport transport planning system. This is contributing to an
uncoordinated transport system that is impacting cities' broader productive
capacity and imposing unnecessary social and economic costs.
The current planning framework has not always provided communities with the
opportunity to comment on airport developments that affect them, their
homes, their workplaces and their suburban amenity. This is because some
developments on airport sites are not canvassed in detail in master plans
and fall outside the trigger criteria for major development plans. Under
the current planning framework, such developments do not require broader
community consultation, as may have been the case if they had occurred
outside the airport boundary. Also, there is currently no general
requirement for airports to consult regularly and widely with communities
and State, Territory and local planning authorities. There is a view that
this has led to excessive use of land on airport sites for developments not
directly related to aviation operations and not consistent with the
interests of surrounding communities.
The planning framework that applies to leased federal airports is not
sufficiently integrated with the planning laws applying to neighbouring
communities and surrounding regions. Considerations relating to local and
regional planning, including community consultative requirements,
appropriate land uses, the economic impact of commercial facilities and
suitable connecting ground transport infrastructure, are not applicable to
developments taking place on the Commonwealth land occupied by airports
operating under federal leases. This has resulted in disjointed development
outcomes and negative community impacts, with both economic and social
costs.
The 2009 White Paper process identified specific problems in the current
regulatory framework, including the following:
. There is insufficient, or lack of, consultation and coordination
between leased federal airports and planning authorities for
neighbouring communities and regions, particularly on integration of
planning strategies, including coordination of connecting ground
transport infrastructure.
. There are insufficient or inconsistently applied mechanisms for leased
federal airports to develop a consultative dialogue with neighbouring
communities.
. There is insufficient provision for airport master plans to address
key issues such as strategic planning of ground transport investment
and reasons for inconsistencies between on- and off-airport planning.
. Major development plan triggers fail to capture some non-aeronautical
developments on airport sites that potentially have significant
community impacts, are not core aviation business and may have no, or
sometimes negative, impact on airport operations.
. There is no general requirement for interested parties to be notified
of airport development plans falling outside master plan and major
development plan processes.
. Airport environment strategies, while currently a requirement, are
approved under a separate process to master plans, rather than
incorporated as an integral part of master plans.
Infrastructure investment issues
During consultations with the Commonwealth, airports have reinforced the
importance of continued investment in federal airports as national economic
infrastructure. Specific problems identified through the White Paper
process in the current regulatory framework in relation to facilitating
investment are as follows:
. Major development plan triggers as currently framed may unnecessarily
capture some aeronautical developments that have little community
impact, represent core aviation business and are of significant value
to the wider economy in the form of infrastructure capacity upgrades.
There is no mechanism for an airport-lessee company to seek an
exemption from the major development plan process for these types of
aeronautical-related developments.
. Major development plan requirements sometimes result in an unnecessary
duplication of consultation processes where effective consultation
could have occurred had there been sufficient detail in the airport
master plan.
. Airport environment strategies are currently developed, consulted
upon, and approved in a process entirely separate from master plans,
creating unnecessary complexity and duplication of effort for
airports, communities and State and local governments.
The challenge is to create a more transparent aviation infrastructure
regulatory framework that will balance the interests of communities with
the need for ongoing infrastructure investment. This will ensure that
development at leased federal airports will be better integrated with
surrounding communities, whilst continuing to boost capacity in national
airport infrastructure to meet growing demand. Planning reforms should
seek to balance the legitimate interests of communities for more
consultation and transparency around airport developments with the equally
legitimate expectation of airports and their users for a regulatory
environment that is conducive to increased infrastructure investment.
Objectives
The objective for the airport planning framework identified in the White
Paper 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.
Options
In the December 2008 National Aviation Policy Green Paper, which preceded
the White Paper, the Commonwealth indicated that it would work with State
and Territory governments and industry on improved arrangements for
planning and development on airports, subject to some key principles:
. The Commonwealth Minister will retain final decision-making authority
for land use planning and development at federal airports.
. Arrangements for assessing plans and development proposals on federal
airports and their supporting consultative procedures should be
designed to encourage investor certainty and community confidence.
. Cooperative arrangements will be developed with the States and
Territories to better integrate airport planning, development and
regulatory oversight with local, State and Territory planning and
regulatory arrangements, whilst ensuring reasonable provision for the
protection and development of federal airports.
Successive governments have maintained a clear policy that planning
authority for the leased federal airports will remain with the
Commonwealth. This policy position:
. underpinned the airport privatisation process;
. was affirmed with the passage of the Airports Act through the
Commonwealth Parliament; and
. has been a presumption of subsequent amendments, subordinate
legislation, and planning decisions cleared by successive Commonwealth
Parliaments.
As such, the Green Paper explicitly reflected the key principle that final
decision-making authority for land use planning and development at leased
federal airports will continue to remain with the Commonwealth Minister.
The options in this Regulation Impact Statement have been framed in
accordance with this principle.
Option A: Status quo
Key elements of the current planning framework have been illustrated above.
This framework is characterised by broadly equivalent controls on
aeronautical and non-aeronautical developments on leased federal airports,
despite the potentially different priorities and impacts for these
development categories and the changing profile of development at airport
sites.
There is no formal mechanism facilitating constructive engagement between
airport planners and planning authorities for adjacent communities outside
the master plan and major development plan processes. There is also no
formal mechanism requiring airports to consult with communities themselves
outside the master plan and major development plan processes.
While comprehensive in most respects, master plans are neither required to
include detailed ground transport plans nor to address variances between on-
and off-airport planning in an analytical way. There is no flexibility
for consultation on development plans undertaken in a master plan process
to relax a corresponding requirement for further consultation on the same
issues in subsequent major development plan processes.
There is also no general requirement for airports to notify interested
parties of proposed developments that are undertaken once the master plan
has been approved.
Option B: Tighter regulation of planning and development on leased federal
airports to facilitate better integration of on-airport and off-airport
planning
Option B would consist of all of the elements of the current regime,
augmented by additional requirements to fulfil planning integration
objectives.
A formal mechanism, through a Planning Coordination Forum, requiring
airports to facilitate consultation and coordination with relevant State,
Territory and local government authorities on planning matters would be
applied. A requirement for airports to convene a regular Community
Aviation Consultation Groups would also be implemented.
The Planning Coordination Forum would provide a high level forum that would
meet a number of times a year to discuss planning issues on and off airport
that affect the airport. This would provide State, Territory and local
governments with the opportunity to influence airport planning decisions
outside of the master plan and major development plan processes. It would
also ensure that planning decisions taken by airports are better integrated
with planning objectives of State, Territory and local governments and
better integrate off-airport planning with future airport development. All
capital city regular passenger transport airports would be required to
establish and maintain Planning Coordination Forums.
Airports would also have to provide greater detail in master plans on
ground transport strategies and justifications for variances between on-
and off-airport planning.
Major development plan triggers would also be amended to capture a wider
range of non-aeronautical developments on airports via a significant
community impact test. Developments with a significant community impact
would have to go through a major development plan process, regardless of
development scale or cost.
A range of development types regarded as incompatible with airport
operations, such as hospitals, school, aged-care and residential housing,
would be prohibited.
Finally, airports would be required to notify interested parties of all
planned developments, regardless of type or value.
Option C: A balanced approach involving regulatory change to facilitate
investment in aeronautical infrastructure and better integration of on-
airport and off-airport planning
Option C would encompass the measures for improved regulatory oversight in
Option B, but would provide for the Planning Coordination Forums and the
Community Aviation Consultation Groups to be established non-legislatively.
The specific details of the changes to the legislation would be as follows.
Airport-lessee companies will be required to provide detailed information
in relation to the first five years of the master plan including:
. a ground transport plan on the landside of the airport;
. the likely effect of the proposed developments set out in the
master plans on employment at the airport and on the local and
regional economy and community. including an analysis of how the
proposed developments fit within the planning schemes for
commercial and retail development in the area adjacent to the
airport; and
. detailed information on the proposed use of precincts at the
airport that are to be used for purposes not related to airport
services.
As airport environment strategies are better articulated in a strategic
planning sense with airport master plans, the airport environment strategy
will be incorporated into the master plan. This will allow airports to
undertake only one approval process, thereby lowering compliance costs.
The cycle for updating and renewing the environment strategy will be
aligned with the master planning process.
The current major development plan triggers will be improved to more
effectively address developments that will have significant impact on the
local or regional community. 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 or may cause concern within the local area.
There will be mechanisms for the airport-lessee company to seek exemption
from the major development plan process for aeronautical-related
developments.
Further, the airport-lessee companies may be able to seek a reduction in
the public consultation period to not less than 15 business days, if the
draft major development plan aligns with the details of the proposed
development set out in the final master plan and the proposed development
does not raise additional issues that would have a significant impact on
the local or regional community.
Under Option C a range of development types regarded as incompatible with
airport operations, such as long-term residential development, residential
aged or community care facilities, nursing homes, hospitals and schools
would be prohibited. However, airports would have the opportunity to
demonstrate the existence of exceptional circumstances to the Minister to
seek the Minister's approval to proceed with the development.
Finally, to increase the transparency of airport developments, the
Government made regulations requiring airports to notify the community of
building applications by publishing them on the airports' websites.
Option D: Accredit State/Territory Government planning laws to apply to
airports but allow the Commonwealth Minister to exercise decision making
power
Option D would involve the Commonwealth Government negotiating and signing
bilateral agreements with the eight State and Territory governments to
accredit relevant State and Territory planning assessments under the
Airports Act. Under this option, planning issues that would require the
Commonwealth Minister to make a decision would be assessed under the
relevant State or Territory planning process and the relevant agencies
would provide a recommendation to the Commonwealth Minister. State and
Territory agencies would make their recommendations on the basis of the
relevant State or Territory legislation. The Commonwealth Minister would
retain the option of accepting or rejecting any recommendation.
Impacts and cost/benefit analysis:
Option A
Under the status quo, airports have relatively wide scope to undertake non-
aeronautical developments without the consultation and regulatory scrutiny
that a Major Development Plan would require. These developments
potentially have a significant impact on neighbouring communities and add
little value to the airport's core aviation business.
The current lack of provision for effective consultation and coordination
by airports and planning authorities on certain matters (such as ground
transport plan and improvements to the road network) has resulted in
negative impacts on neighbouring communities. For example, commercial
developments on airports undertaken without appropriate planning for
connecting roads has, on occasion, caused acute traffic congestion at roads
outside the airport leading to the airport site.
The current framework does not provide for effective coordination of
planning matters such as development of connecting ground transport
infrastructure. The consequence of this is that airport users may
experience interruptions in the transport chain, with flow-on effects to
the wider economy.
The current framework does not compel leased federal airports to engage in
consultation and coordination activity with State, Territory and local
governments. Such governments may therefore have few opportunities to
invest resources into coordination activities with airports. Furthermore,
the most significant cost for State, Territory and local governments in the
current regulatory framework is likely to be the lack of, or incomplete,
information about strategic airport growth, leading to poorly coordinated
investments in amenities such as connecting roads.
Option B
Option B involves an increase in oversight and control of development on
airports generally, and non-aeronautical developments in particular, which
may increase the airport's compliance costs. A more rigorous assessment
process for commercial developments in the form of a wider category of
developments requiring major development plans would lead to higher
development costs and reduced investment certainty.
Similarly, new (legislatively-based) requirements to consult on planning
matters with the relevant State, Territory and local government authorities
and with the general community through the establishment of Planning
Coordination Forums would involve increased costs for airports.
The continued close regulatory oversight of low impact, high priority
aeronautical developments also entails substantial costs for little
marginal benefit.
However, formal consultations with stakeholders (through the Planning
Coordination Forums) and members of the community (through the Community
Aviation Consultations Groups) would benefit the airports as these
consultations would result in improved community goodwill.
Measures in option B would assist in addressing urban amenity issues such
as poorly coordinated investment in ground transport infrastructure. This
would result in benefits for neighbouring communities in the form of more
efficient, less congested ground transport.
Measures to better integrate airport development with planning for
neighbouring communities and regions, leading to better coordinated road
infrastructure, would provide for improved ground access to airports for
airport users. This equates to a more seamless transport chain, with flow-
on benefits to the wider economy.
The most significant benefit for State and local governments under option B
would likely be in improved and more comprehensive information about
strategic airport growth, leading to better targeted and coordinated
investments in amenities such as connecting roads. Substantial efficiencies
could result.
Option C
Option C involves an increase in some elements of the oversight and control
of development on airports, particularly for developments of a non-
aeronautical nature. A more rigorous assessment process for commercial
developments in the form of a wider category of developments requiring
major development plans may lead to higher development costs and reduced
investment certainty.
Under Option C, there is scope to relax the compliance framework for
aeronautical-related developments by allowing the airports to seek
exemption from the major development process. There would also be an
opportunity to seek a reduction in the consultation period for non-
aeronautical developments sufficiently canvassed in a master plan and
raises no issues of significant impact on the local or regional community.
These streamlining of regulatory requirements may reduce business costs.
A streamlined framework for investment in aeronautical infrastructure would
have corresponding efficiency benefits and service improvements for airport
users, flowing on to the wider economy. Improved integration of ground
access to airports would result in a more seamless transport chain, with
flow-on benefits for the wider economy.
Measures in option C would assist in addressing urban amenity issues such
as poorly coordinated investment in ground transport infrastructure. This
would result in benefits for neighbouring communities in the form of more
efficient, less congested ground transport.
Under Option C, the Planning Coordination Forums and Community Aviation
Consultation Groups will be established administratively. Airports'
engagement and consultation with relevant State, Territory and local
government authorities and with other members of the community will be
assured. However, there will be flexibility in the consultation
arrangements allowing changes to be implemented within a reasonable time to
respond to circumstances of the relevant airport and stakeholders.
The most significant benefit for State, Territory and local governments
under option C would likely be in improved and more comprehensive
information about strategic airport growth, leading to better targeted and
coordinated investments in amenities such as connecting roads. It is
anticipated this will promote substantial efficiencies among airports as
they would be able to canvass support for their developments at these
planning forums and consultative group meetings.
Option D
Option D would impose additional compliance costs on airports. Airports
would need to deal with at least two different sets of bureaucracy and two
separate planning laws for airport development. Airports would deal with
the Commonwealth on day-to-day operational matters but with state and
territory jurisdictions on significant planning matters such as airport
master plans and airport major development plans.
Option D would not guarantee that the Government's proposal to streamline
the construction of aviation infrastructure, which would significantly
benefit airports, would occur as this need to be reflected in relevant
State and Territory legislation.
Option D will have little effect on neighbouring communities. Communities
will continue to have an engagement in the planning process through a
formal public consultation process.
Option D would significantly increase administrative costs for both the
Commonwealth and State/Territory Governments. Both levels of Government
would incur substantial costs around the negotiation of bilateral
agreements that would accredit State and Territory legislation.
Option D would also deliver higher ongoing administrative costs for State
Governments in conducting additional assessments for airport development
under relevant State and Territory jurisdictions. Similarly, the
Commonwealth would incur additional costs in engaging and liaising with
State and Territory Governments to ensure that the Commonwealth Minister is
properly apprised of sensitivities around individual assessments.
No State or Territory government supported Option D.
Consultation
In April 2008, the Commonwealth released the Aviation Issues Paper Towards
a National Aviation Policy Statement which formed the basis for
consultation and engagement with aviation stakeholders and other members of
the community to provide input to assist the Government's development of a
National Aviation Policy Statement. Issues to address future airport needs
were raised in the Issues Paper
In December 2008, the Commonwealth released the National Aviation Policy
Green Paper, which among other things canvassed a range of proposed reforms
to the planning and development framework for federal airports. The
proposals had been developed subsequent to stakeholder feedback on an
earlier discussion paper. The Commonwealth received 232 submissions in
response to the Green Paper, of which more than 90 addressed airport
planning issues.
Between April and May 2009, officers from the Department of Infrastructure,
Transport, Regional Development and Local Government undertook targeted,
face-to-face consultations on airport planning issues with 36 key
stakeholders, including federal airports, State and Territory governments,
local governments, airlines and industry organisations. Further direct
consultations with airports and state and territory governments took place
in between June and August 2009.
Feedback on proposals has been received from leased federal airports,
businesses and individuals from communities neighbouring airports, airport
users and all levels of government, including across planning, environment
and transport portfolio responsibilities.
Most airports disputed the need for increased involvement of State,
Territory and local government planning authorities and independent expert
planning advisers in airport planning processes, as well as proposed
requirements for more detailed analysis in Master Plans of inconsistencies
in on-airport and off-airport planning.
However, airports were supportive of the concept of a forum for airports
and off-airport planning authorities that is consultative in nature, rather
than furnishing a formal advisory or decision-making role. Airports also
saw such a forum as an opportunity to provide feedback to relevant State,
Territory and local government planning authorities on off-airport
developments, particularly where they could negatively impact airport
operations. Airports were supportive of any mechanism for the provision of
expert advice not delaying approval processes and of the independence of
expert advice from off-airport planning and development interests.
Airports generally accepted the notion of a requirement for regular
consultation with the wider community and expressed a desire for
operational flexibility in implementing the proposal.
Airports welcomed the introduction of mechanisms to seek reduction in the
consultation period required for a major development plan and the ability
to be able to get exemption from undertaking a major development plan for
specific aeronautical-related developments.
While detailed feedback from communities neighbouring airports on specific
airport planning proposals was limited, there was general support for
improved integration of airport planning in the interests of reducing
negative impacts on communities and suburban amenity.
Business users supported proposed requirements for improved ground
transport planning by airports.
State, Territory and local governments generally supported increased
regulatory oversight of airport planning, particularly in relation to non-
aeronautical developments on airport lands. This included support for
stricter requirements for airports to address and justify variances between
airport planning strategies and planning frameworks for neighbouring
communities and regions, and to develop comprehensive ground transport
plans.
While expressing a preference for a formal decision-making role in airport
planning, State, Territory and local governments welcomed the concept of a
forum in which airports and planning authorities could consult on and
better coordinate strategic planning. State, Territory and local
governments were supportive of the notion of airports being required to
undertake regular consultation with the wider community and did not express
opposition to a relaxation of regulatory requirements on aeronautical
developments. They were also generally supportive of stricter control of
developments on airport sites that are potentially incompatible with
airport operations.
No State or Territory government lobbied for State or Territory planning
processes to be accredited under the Airports Act. Other governments
accepted that the Commonwealth Minister would retain decision making power
and that recommendations to the minister would be made by the Commonwealth
public service in accordance with the terms and provisions of the Airports
Act.
The Commonwealth has used this consultation process to refine proposals for
improved oversight and integration of airport planning, and to augment
these measures with an easing of compliance requirements where they achieve
little marginal public policy benefit.
Recommendation
Option C represents the greatest net benefit.
Both options B and C would provide for better integration of airport
planning into the planning frameworks that apply to surrounding communities
and regions. This would not only improve suburban amenity, but would
further embed airports in strategic planning of urban centres as economic
hubs. Better planning of ground transport links in particular will have
major flow-on benefits across all sectors of Australia's economy, which
rely directly or indirectly on efficient linkages along transport and
supply chains.
Option C alone, however, will also promote additional investment in airport
infrastructure by streamlining regulatory requirements in relation to high
priority aeronautical infrastructure developments at airport sites.
Option C also satisfies the 'one in, one out' principle, in that it
involves a relaxation of certain regulatory requirements in relation to
major development plans in the current legislative framework. This offsets
new proposed regulatory requirements in respect of master plans and some
non-aeronautical developments.
Option D would represent a significant departure from existing practice and
was not advanced by any of the stakeholders during the consultation
process.
Implementation
In developing a package of legislation and other measures to implement the
proposed reforms, the Commonwealth has engaged in further consultation on
implementation with key stakeholders, including dialogue with airports,
governments and user groups.
AIRPORTS AMENDMENT BILL 2010
NOTES ON CLAUSES
Clause 1: Short Title
1. Clause 1 is a formal provision specifying the short title of the Act.
Clause 2: Commencement
2. Clause 2 specifies the commencement of the Act. Clauses 1 to 3 and
anything in this Act not covered by the table in clause 2 commence on the
day this Act receives the Royal Assent.
3. Schedules 1 and 2 of the Act commence on the day after this Act
receives the Royal Assent.
Clause 3: Schedules
4. This provision provides for amendments to the Act as set out in the
Schedules.
Schedule 1 - Amendment of the Airports Act 1996
Part 1 - Master plan amendments
Item 1 - Paragraph 71(2)(h)
5. Subsection 71(2) sets out what a draft or final master plan must
contain for airports other than joint-user airports. Existing paragraph
71(2)(h) is repealed. New paragraphs (ga), (gb), (gc) and a revised
paragraph (h) are inserted.
6. In addition to the items listed in existing subsection 71(2), a master
plan is required to contain, in relation to the first five years of the
master plan, the following:
. a ground transport plan on the landside of the airport;
. detailed information on proposed developments (set out in the master
plan) that are to be used for commercial, community, office or retail
purposes or for any other purpose not related to airport services.
The developments contemplated in this paragraph include construction
of retail outlets, supermarkets and the like, buildings and other
facilities for recreation or sporting events, theatre halls for
cultural performances, construction of business parks and other types
of offices not related to carrying out aviation business. These
examples are non-exhaustive. A draft or final master plan is required
to provide detailed information on these types of proposed
developments;
. the likely effect of the proposed developments set out in the master
plan on employment levels at the airport and on the local and regional
economy and community including an analysis of how the proposed
developments fit within the planning schemes for commercial and retail
development in the area adjacent to the airport.
7. Paragraph (ga) provides that a ground transport plan on the landside of
the airport should provide details on the following:
. road network plan; and
. facilities for moving people (including passengers, employees and
other airport users) and freight at the airport (these facilities
include the airport's road infrastructure, road connections and car
parking facilities in addition to transport vehicles); and
. linkages between those facilities [mentioned in paragraph (ii)], the
road network and public transport system at the airport and the road
network and public transport system outside the airport; and
. the arrangements for working with State or local authorities or other
bodies responsible for the road network and ground transport system
('Other bodies' may include private companies operating public
transport services connecting the airport to off-airport transport
system); and
. the capacity of the ground transport system to support airport
operations and other airport activities; and
. the likely effect of the proposed developments set out in the master
plan on the ground transport system and traffic flows at and
surrounding the airport.
8. In relation to paragraph (ga), if the airport-lessee company is
intending to build a commercial or retail outlet on the airport site, it
must provide information, among others, on how its current road network and
transport system will support the increased number of people expected to
use the commercial or retail outlet. If its current road network is not
sufficient to service the proposed development, it must include details of
its planned development of the road network to support the current and
future operational requirements of the airport. It must also include the
airport's arrangements for working with relevant State or local authorities
to ensure its proposed on-airport developments do not cause traffic
congestion on off-airport roads surrounding the airport. These additional
requirements are in response to concerns raised by State, Territory and
local planning authorities that some non-aeronautical developments at the
airport have been built without providing for adequate road facilities to
service the increased traffic resulting from the new development.
9. Paragraph (h) provides for the inclusion of the airport environment
strategy in a draft or final master plan. The airport environment strategy
should detail the items enumerated in (i) to (ix) of paragraph (h). These
items are taken from the existing section 116 (contents of draft or final
environment strategy) which is now being repealed in view of the annexure
of an environment strategy in the master plan.
Items 2 and 3 - Paragraph 71(3)(d) and paragraph 71(3)(da)
10. Subjection 71(3) refers to the contents of a draft or final master
plan for a joint-user airport.
11. Paragraph 71(3)(d) is amended so that it now reads as 'an Australian
Noise Exposure Forecast for the areas surrounding the airport'. The
qualifying phrase "(in relation to civil uses of the airport and in
accordance with regulations, if any, made for the purpose of this
paragraph)" is deleted.
12. In paragraph 71(3)(da), the word 'civil' which qualifies 'flight
paths' is removed.
13. The amendments to paragraphs (d) and (da) remove the inconsistency
between the legislative requirements which allow a joint-user airport to
proceed with a civil-only Australian Noise Exposure Forecast and the manner
of endorsement for Australian Noise Exposure Forecasts by Airservices
Australia which makes no distinction between civil or military aircraft
movements.
Item 4 - Paragraph 71(3)(h)
14. Subsection 71(3) deals with the contents of a draft or final master
plan for a joint-user airport. Existing paragraph 71(3)(h) is deleted.
New paragraphs (ga), (gb), (gc) and a revised paragraph (h) are inserted.
The inserted paragraphs require the inclusion of additional items in a
draft or final master plan for a joint-user airport in relation to the
first five years of the master plan. These additional items are the same
as those discussed in item 1 above.
Item 5 - Subsection 71(6)
15. Existing subsection 71(6) provides that, in specifying an objective or
proposal covered by specified paragraphs in subsections 71(2) and 71(3), a
draft or final master plan must address the extent (if any) of consistency
with the planning schemes in force under a law of the State or Territory in
which the airport is located. Existing subsection 71(6) is amended to
include another paragraph which provides that if the draft or final master
plan is not consistent with those planning schemes, the draft or final
master plan must contain justification for the inconsistencies.
Item 6 - At the end of section 71
16. A definition for 'airport service' is provided.
Item 7 - Application provision - master plans
17. Section 71, as amended, applies to a draft or final master plan, if
this Schedule commences operation before an airport-lessee company complies
with the requirement in subsection 79(1A). This means that a preliminary
version of a draft master plan that was given to any of the persons listed
in subsection 79(1A) before the commencement of these amendments contained
in Schedule 1 will not be required to comply with the new requirements.
Part 2 - Other amendments
Item 8 - Section 4 (paragraph relating to an airport service)
18. Section 4 which provides for a simplified outline of the Act is
amended to remove the sentence "An airport service will be a declared
service for the purposes of the access regime set out in Part IIIA of the
Trade Practices Act 1974 unless an access undertaking is given within 12
months after responsibility for the airport is transferred to the private
sector". This sentence referred to the former section 192 which was
repealed in 2003.
Item 9 - Section 4 (last paragraph)
19. The last dot point in section 4 is amended to insert "aerodrome"
before "rescue and fire fighting services". This is consequential to the
amendments made to Part 14 of the Airports Act.
Item 10 - Section 5
20. This is a technical amendment.
Item 11 - Section 5 (definition of business day)
21. The definition of 'business day' is amended to make it clear that a
public holiday in either the place where the airport is located or in the
Australian Capital Territory is not a 'business day'.
Items 12 to 14 - Section 5 (definition of environment strategy)
22. The definitions of 'draft environment strategy' and 'final environment
strategy' are removed and a new definition of 'environment strategy' is
inserted. This is consequential to the amendment requiring an environment
strategy to be part of a master plan.
Item 15 - Section 5
23. A definition of 'incompatible development' is inserted. It has the
same meaning given in section 71A.
Item 16 - Section 5
24. The term 'State' is defined in the Act to include the Australian
Capital Territory and the Northern Territory.
Item 17 - At the end of section 5
25. Paragraph (2) is inserted to provide that for purposes of the
definition of 'airport site' in paragraph (a) of section 5, if the
identification number for a certificate of title for a leased federal
airport is changed in the relevant State or Territory Land Titles Office,
without the boundaries of the airport being changed, a reference in this
Act or the regulations to the identification number includes a reference to
the identification number as changed.
Items 18 to 20 - Hobart Airport and Darwin Airport
26. These are technical amendments to reflect the correct names of these
airports.
Items 21 and 22 - Section 7C
27. These are consequential amendments resulting from the amendments which
require an environment strategy to be a part of a master plan and no longer
a standalone document.
Item 23 - Subsection 8(1)
28. This is a consequential amendment resulting from the revised
definition of 'State'.
Item 24 - Paragraph 12(1)(a)
29. This is a technical amendment to make it clear that under subsection
12(1), Part 2 of the Airports Act applies to both a core-regulated airport
and an airport specified in the regulations.
Item 25 - Subsection 68(1)
30. This is a technical amendment to make it clear that under subsection
68(1), Part 5 of the Airports Act applies to both a core-regulated airport
(if there is an airport lease for the airport) and an airport specified in
the regulations (if there is an airport lease for the airport).
Item 26 - At the end of subsection 70(2)
31. Subsection 70(2) provides for the purposes of a final master plan for
an airport.
32. Because an environment strategy is now part of a master plan, the
purposes of a final master plan are being amended to include objectives
relevant to environmental issues. Paragraphs (e), (f) and (g) are inserted
which were taken from existing subsection 115(2) which deals with the
purposes of a final environment strategy. Subsection 115(2) is now being
repealed.
Item 27 - After section 71
71A Draft or final master plan must identify proposed incompatible
developments
33. By way of background, the Green Paper released by the Government in
December 2008 flagged that the Government would identify the categories of
development likely to be incompatible with the operation of an airport as
an airport and would consider options to prohibit or otherwise restrict any
such new developments on the leased federal airport sites. As an interim
measure, pending the release of the Government's final policy position on
this issue in the White Paper, the Government made regulations in September
2009 to make provisions in relation to developments identified as
incompatible.
34. Specifically, the Airports Regulations 1997 were amended to provide
that certain developments of the type, which the Government considers would
normally be incompatible with the operation of an airport as an airport,
would constitute 'major airport developments'. As a result, 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.
35. In the White Paper released in December 2009, 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.
Where, in the airport's view, exceptional circumstances exist, the airport
will have the opportunity to demonstrate to the Australian Government
Minister, through a major development plan process, that such a development
could proceed without posing unacceptable impacts. Particular regard will
be paid to whether the development would restrict the future use of the
site for aviation-related purposes, raise significant ground traffic
issues, or present risks in terms of safety, security or environmental
aspects".
36. New section 71A dealing with incompatible developments is inserted
into the Act. Under subsection 71A(1), an airport-lessee company intending
to develop an incompatible development on the airport must identify any
proposed incompatible development in the master plan.
37. An 'incompatible development' is defined to be a development of any of
the following facilities
. a residential dwelling (except accommodation for students studying at
an aviation education facility at the airport);
. a community care facility;
. a pre-school;
. a primary, secondary, tertiary or other educational institution
(except an aviation educational facility);
. a hospital (except a facility with the primary purpose of providing
emergency medical treatment to persons at the airport and which does
not have in-patient facilities).
38. A redevelopment of any of the facilities listed above, if the
redevelopment increases the capacity of the facility, is also an
incompatible development. A redevelopment of a facility existing prior to
the commencement of this Act, if the redevelopment increases the capacity
of the facility, is also an incompatible development (see item 75,
application provision on incompatible developments in Part 3 on
transitional provisions).
39. The development of an aviation educational facility as defined in the
Act is not an incompatible development. A residential dwelling or
accommodation for students studying at an aviation educational facility at
the airport is not an incompatible development as well.
Items 28 and 29 - Section 72
40. These are consequential amendments resulting from the annexure of an
environment strategy into a master plan.
Item 30 - Subsection 76(1)
41. Subsection 76(1) is amended to make it clear that an airport-lessee
company is required to give the Minister, in writing, a draft master plan:
(a) no later than five years after its current final master plan came
into force; or
(b) a longer period that the Minister specified in a written notice to
the airport-lessee company.
42. This provision makes it clear that an airport-lessee company is
required to give the Minister in writing a draft master plan no later than
five years after the original pan came into force. An airport-lessee
company that is in breach of this requirement is liable to commit an
offence.
43. This provision also allows the Minister to extend the period of
submission of a draft master plan. An airport-lessee company that fails to
submit a draft master plan within this longer period is liable to commit an
offence.
Item 31 - At the end of section 76
44. A new subsection 76(4) is inserted to make it clear that a company
commits an offence under subsection 76(2) even if because of subsection
77(1), the original plan remains in force for longer than five years after
the original plan came into force.
Item 32 - At the end of section 78
45. A new subsection 78(5) is inserted to make it clear that a company
commits an offence under subsection 78(3) even if because of subsection
77(1), the original plan remains in force for longer than five years after
the original plan came into force.
Item 33 - Subsection 81(5)
46. Section 81 deals with the approval of a draft master plan by the
Minister. Under subsection 81(5), the Minister has a period of 50 business
days to either approve or refuse a draft master plan. If the Minister
neither approves nor refuses to approve a draft master plan within 50
business days, the Minister is taken to have approved the plan at the end
of the 50-business-day period.
47. Subsection 81(5) is amended to allow the Minister to make a decision
within a period longer than 50 business days, but not exceeding 60 business
days. If the Minister neither approves nor refuses to approve a draft
master plan within this longer period, the Minister is taken to have
approved the plan at the end of that period.
48. A new subsection 81(5A) is inserted which provides that the Minister's
written notice under subsection 81(5) is not a legislative instrument
within the meaning of that term under the Legislative Instruments Act 2003.
Item 34 - At the end of section 81
49. A new subsection 81(10) is inserted to provide that the Minister's
approval of a draft master plan that contains an incompatible development
does not stop the Minister from refusing to approve, under Division 4, a
major development plan for the incompatible development.
50. A master plan may foreshadow an incompatible development with a clear
statement of the prohibition and that a subsequent approval process will be
undertaken. Information about a incompatible development could also be
included in a minor variation to a master plan.
51. The Minister may approve a master plan foreshadowing an incompatible
development without in any way pre-empting a decision about whether
exceptional circumstances apply to the proposed development.
Item 35 - After section 83
83A Compliance with environment strategy in final master plan
52. New section 83A is inserted. This amendment is consequential to the
new requirement that an environment strategy becomes part of a master plan.
The contents of section 83A are derived from section 130 which is now
being repealed.
Item 36 - Subsection 84(3)
53. Section 84 deals with the minor variation of a final master plan.
Under subsection 84(3), the Minister has a period of 50 business days to
either approve or refuse a variation to a final master plan. If the
Minister neither approves nor refuses to approve a variation to a master
plan within 50 business days, the Minister is taken to have approved the
variation at the end of the 50-business-day period.
54. Subsection 84(3) is amended to allow the Minister to make a decision
within a period longer than 50 business days, but not exceeding 60 business
days. If the Minister neither approves nor refuses to approve the
variation within this longer period, the Minister is taken to have approved
the variation at the end of that period.
55. A new subsection 84(3A) is inserted which provides that the Minister's
written notice under subsection 84(3) is not a legislative instrument
within the meaning of that term under the Legislative Instruments Act 2003.
Item 37 - After section 86
86A Transitional - expiry of standalone environment strategies
56. A new section 86A is inserted in the Airports Act.
57. The transitional provisions apply to an airport environment strategy
that is not contained in the master plan for the airport under paragraph
71(2)(h) or 71(3)(h).
58. If the environment strategy is due to expire before the master plan
expires, the airport-lessee company may apply to the Minister to extend the
expiry date of the environment strategy to the date when the replacement
master plan is approved. For example, if the environment strategy of the
airport expires on 10 October 2013 and its master plan expires on 10
December 2013, the airport-lessee company may apply to the Minister to
extend the expiry date of its environment strategy until the date when the
new master plan commences. The draft master plan, that the airport is due
to submit to the Minister in December 2013, must contain an environment
strategy.
59. The Minister is required to give the airport-lessee company a written
notice of the Minister's decision.
60. If the environment strategy is due to expire after the master plan
expires, the environment strategy expires on the date when the replacement
master plan is approved. For example, if the environment strategy of the
airport expires on 10 December 2015 and its master plan expires on 10
October 2015, the airport-lessee company is required to incorporate a new
environment strategy in its draft master plan that it is required to submit
to the Minister in October 2015. The final airport environment strategy
that is due to expire on 10 December 2015 will expire on the date the new
master plan is approved.
Item 38 - Before section 88
Subdivision A - Introduction
61. "Subdivision A - Introduction" is inserted before section 88.
Item 39 - At the end of section 88
62. Section 88 provides for the simplified outline of Division 4. Another
sentence is included dealing with incompatible developments.
Item 40 - After paragraph 89(1)(b)
63. Section 89 provides for the meaning of a 'major airport development'.
A proposed development that consists of any of the developments listed in
section 89 requires a major development plan. New paragraph 89(1)(ba) is
inserted to provide that altering a runway, including altering a runway in
any way that changes flight paths or the patterns or levels of aircraft
noise, is a major airport development requiring a major development plan.
Item 41 - Paragraph 89(1)(n)
64. This amendment is consequential to the new requirement that an
environment strategy becomes part of a master plan.
Item 42 - After paragraph 89(1)(n)
65. New paragraph 89(1)(na) is inserted which provides 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. 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. In determining whether the 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?
66. Administrative guidelines on what may constitute 'significant impact
on the local or regional community' will be provided to relevant industry
stakeholders.
67. A new paragraph 89(1)(nb) is inserted. If the Minister has given
approval to the airport-lessee company to undertake a major development
plan in relation to an incompatible development (in accordance with new
section 89A), that proposed development becomes a major airport development
that will require a major development plan.
Item 43 - Subsection 89(2)
68. This is a consequential amendment in view of the inclusion of new
paragraphs in subsection 89(2).
Item 44 - Subsection 89(4)
69. Existing subsection 89(4) is amended to make it clear that the
Minister may determine in writing that specified developments that are
proposed to be carried out at an airport site together constitute a 'major
airport development' if the conditions provided for in paragraphs (a) and
(b) are fulfilled.
Item 45 - Subsection 89(5)
70. Existing subsection 89(5) is repealed and replaced with a new
subsection 89(5).
71. New subsection 89(5) enables an airport-lessee company to request the
Minister in writing that the following developments specified in subsection
89(1) be exempt from the requirement of a major development plan:
. (c) 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;
. (d) 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%;
. (f) 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;
. (g) 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.
72. The Minister may determine that a development of a type listed above
is not a 'major airport development' and therefore does not require a major
development plan, if the Minister is satisfied, on reasonable grounds, that
the development will not:
(i) increase the operating capacity of the airport; or
(ii) change the flight paths; or
(iii) change the patterns or levels of aircraft noise; or
(iv) unduly increase the noise heard by, or unduly cause a nuisance
to, the community adjacent to the airport.
73. New subsection 89(6) is inserted which provides that a determination
under subsection (4) and (5) is not a legislative instrument within the
meaning of that term under the Legislative Instruments Act 2003.
Item 46 - After section 89
Subdivision B - Incompatible developments
89A Incompatible development prohibited except in exceptional
circumstances
74. A new Subdivision B is inserted dealing with incompatible
developments. New section 89A is added which provides that a person must
not carry out, or cause or permit to carry out, an incompatible development
unless the Minister gives an approval under section 89A for the airport-
lessee company to prepare a major development plan for the incompatible
development and the Minister approves the major development plan under
section 94. The carrying out of the development should be in accordance
with the major development plan approved under the Airports Act.
75. An incompatible development is prohibited (except in exceptional
circumstances) on leased federal airports regulated under Part 5 concerning
land use, planning and building controls. This includes all leased federal
airports except Mount Isa Airport and Tennant Creek Airport.
76. Under subsection 89A(2), a person who contravenes subsection 89A(1)
commits an offence punishable by a maximum penalty of 400 penalty units. A
note is included to provide that if an airport-lessee company is convicted
of the offence, a court may impose a fine not more than five times the
penalty provided in subsection 89A(2). This is consistent with subsection
4B(3) of the Crimes Act 1914.
77. Subsection 89A(3) provides that the offence under subsection 89A(2) is
a strict liability offence.
78. Subsection 89A(4) provides that 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
before the company commences giving advice to State, Territory and local
government authorities under subsection 92(1A).
79. The airport-lessee company's written representation to the Minister to
seek the Minister's approval to prepare a draft major development plan for
the incompatible development must detail the exceptional circumstances that
the company claims will support the preparation of a draft major
development plan. The Minister may give the company approval to undertake
a draft major development plan only if the Minister is satisfied that there
are exceptional circumstances that support the preparation of the draft
major development plan for the incompatible development at the airport.
80. The Minister is required to give the airport-lessee company written
notice of the decision and the reasons for the decision.
81. If the Minister gives the approval, the incompatible development is
taken to be a major airport development for the purposes of Division 4.
General requirements in relation to major airport developments, including
the requirement for public consultation then apply. Additional matters
that the Minister must have regard to when deciding to approve a draft
major development plan that relates to an incompatible development are
found in new paragraph 94(3)(f).
82. The Minister's approval for the airport-lessee company to proceed with
the draft major development plan does not stop the Minister from refusing
to approve the major development plan for the incompatible development.
83. The Minister's power to give an approval under section 89 will not be
subject to delegation [see new subsection 244(2)].
Subdivision C - Approval process
84. Before section 90, a new title "Subdivision C - Approval process" is
inserted.
Item 47 - After paragraph 91(1)(g)
85. Section 91 provides for the contents of a major development plan. New
paragraph (ga) is inserted to require that a major development plan must
set out the likely effect of the proposed development on:
(i) traffic flows at the airport and surrounding the airport; and
(ii) employment levels at the airport; and
(iii) the local and regional economy and community, including an
analysis of how the proposed developments fit within the local
planning schemes for commercial and retail development in the area
adjacent to the airport.
Item 48 - Paragraph 91(1)(k)
86. Existing paragraph 91(1)(k), which refers to a draft environment
strategy, is deleted. It is replaced by new paragraph 91(1)(k) which
requires that if the major development plan relates to an incompatible
development, the plan must set out the exceptional circumstances that the
airport-lessee company claims will justify the development of the
incompatible development at the airport.
Item 49 - Subsection 91(4)
87. Existing subsection 91(4) provides that a major development plan, or a
draft major development plan, must address the extent (if any) of
consistency with the planning schemes in force under a law of the State or
Territory in which the airport is located. Existing subsection 91(4) is
amended to include another paragraph which provides that if the major
development plan, or a draft of the plan, is not consistent with those
planning schemes, the major development plan or its draft must contain
justification for the inconsistencies.
Item 50 - After subparagraph 92(1)(a)(i)
88. This is an amendment consequential to the amendments in subsections
92(2A) and 92(2B).
Item 51 - Subparagraphs 92(1)(a)(ii) and (iiia)
89. This is an amendment consequential to the amendments in subsections
92(2A) and 92(2B).
Item 52 - Subparagraphs 92(1)(a)(iv)
90. This is an amendment consequential to the amendments in subsections
92(2A) and 92(2B).
Item 53 - After subsection 92(1)
91. New subsections 92(2A) and (2B) are inserted into the Act. These
provisions allow the Minister to shorten the 60-business-day consultation
period to a shorter period of not less than 15 business days.
92. An airport-lessee company or another person with the written consent
of the airport-lessee company may request the Minister to shorten the
public consultation period. The Minister may, by written notice, approve
the request if the Minister is satisfied that:
. the draft major development plan aligns with the details of the
proposed development set out in the final master plan; and
. the development proposal does not raise additional issues that have a
significant impact on the local or regional community.
93. The Minister's written notice is not a legislative instrument within
the meaning of that term in the Legislative Instruments Act 2003.
Item 54 - At the end of subsection 94(3)
94. Subsection 94(3) provides for the matters that the Minister must have
regard to in deciding whether to approve a draft major development plan.
New paragraph (f) is added so that in relation to an incompatible
development, the Minister must have regard to paragraphs (f)(i) to (iv) in
addition to the matters listed in (aa) to (e).
95. In making a decision whether to approve a draft major development
(which relates to an incompatible development), the Minister will have
regard to these additional matters:
. Whether the exceptional circumstances which the airport-lessee
company claims will justify the development of the incompatible
development - The Minister will make a judgment on the existence of
'exceptional circumstances' on a case by case basis. Every
proposal for the development of an incompatible development will be
considered on its merit based on the exceptional circumstance of
every airport.
. The likely effect of the incompatible development on the future use
of the airport site for aviation-related purposes - Consistent with
the primary object of the Airports Act which is to promote the
sound development of civil aviation in Australia, regard will be
given as to whether the development (of the incompatible
development) will limit the future flexibility in the use of the
airport site for aeronautical-related purposes.
. The likely effect of the incompatible development on the ground
transport system at, and adjacent to the airport - One of the
concerns of the Government in relation to incompatible development
is the creation of additional congestion in roads at or near the
airport.
Item 55 - Subsection 94(6)
96. Section 94 deals with the approval of a major development plan by the
Minister. Under subsection 94(6), the Minister has a period of 50 business
days to either approve or refuse a draft major development plan. If the
Minister neither approves nor refuses to approve a draft major development
plan within 50 business days, the Minister is taken to have approved the
plan at the end of the 50-business-day period.
97. Subsection 94(6) is amended to allow the Minister to make a decision
within a period longer than 50 business days, but not exceeding 60 business
days. If the Minister neither approves nor refuses to approve a draft
major development plan within this longer period, the Minister is taken to
have approved the plan at the end of that period.
98. A new subsection 94(6AA) is inserted which provides that the
Minister's written under subsection 94(6) is not a legislative instrument
within the meaning of that term in the Legislative Instruments Act 2003.
Item 56 - Subsection 94(6A)
99. Subsection 94(6A) provides that if the advice of the Minister
administering the Environment Protection and Biodiversity Conservation Act
1999 (EPBC Act) is sought under Subdivision A of Division 4 of Part 11 of
that Act in relation to a draft major development plan, subsection 94(6) of
the Airports Act applies as if it referred to the day on which the advice
was given, instead of the day the draft major development plan was
received. Pursuant to section 160 of the EPBC Act, the Minister
administering the Airports Act must obtain and consider advice from the
Minister administering the EPBC Act prior to approving a draft major
development plan.
100. There have been qqueries on when the advice is "given" by the
Minister administering the EPBC Act for purposes of subsection 94(6A) of
the Airports Act. Is it on the day the advice is signed or on the day it
is posted, faxed or delivered?
101. To remove the ambiguity in subsection 94(6A), the 'day on which the
advice is given' is replaced with the 'day on which the Minister received
the advice'. This will make it clear that the decision period starts on
the first business day after the day the Minister has received advice from
the Minister administering the EPBC Act.
Item 57 - Subsection 95(3)
102. Section 95 deals with the approval of a minor variation of a major
development plan by the Minister. Under subsection 95(3), the Minister has
a period of 50 business days to either approve or refuse a draft variation.
If the Minister neither approves nor refuses to approve a draft variation
within 50 business days, the Minister is taken to have approved the
variation at the end of the 50-business-day period.
103. Subsection 95(3) is amended to allow the Minister to make a decision
within a period longer than 50 business days but not exceeding 60 business
days. If the Minister neither approves nor refuses to approve the draft
variation within this longer period, the Minister is taken to have approved
the variation at the end of that period.
104. A new subsection 95(3A) is inserted which provides that the
Minister's written notice under subsection 95(3) is not a legislative
instrument within the meaning of that term in the Legislative Instruments
Act 2003.
Item 58 - Subsection 95(3A)
105. Subsection 95(3A) provides that if the advice of the Minister
administering the Environment Protection and Biodiversity Conservation Act
1999 (EPBC Act) is sought under Subdivision A of Division 4 of Part 11 of
that Act in relation to a draft variation to a major development plan,
subsection 95(3) of the Airports Act applies as if it referred to the day
on which the advice was given, instead of the day the draft major
development plan was received. Pursuant to section 160 of the EPBC Act,
the Minister administering the Airports Act must obtain and consider advice
from the Minister administering the EPBC Act prior to approving a draft
major development plan.
106. There have been qqueries on when the advice is "given" by the
Minister administering the EPBC Act for purposes of subsection 95(63) of
the Airports Act. Is it on the day the advice is signed or on the day it
is posted, faxed or delivered?
107. To remove the ambiguity in subsection 95(3A), the 'day on which the
advice is given' is replaced with the 'day on which the Minister received
the advice'. This will make it clear that the decision period starts on
the first business day after the day the Minister has received advice from
the Minister administering the EPBC Act.
Item 59 - Subparagraphs 106(1)(d)(i) and (ii) and 4(d)(i) and (ii)
108. These are consequential amendments.
Item 60 - Section 113 (first, second and third paragraphs)
109. Section 113 provides for a simplified outline of Part 6 of the Act.
The amendments to section 113 are consequential to the annexure of an
airport environment strategy into the airport master plan.
Item 61 - Division 2 of Part 6
110. Division 2 of Part 6 is repealed because of the new requirement that
an environment strategy becomes part of a master plan.
Item 62 - Subsection 131A(1)
111. This is a technical amendment to make it clear that under subsection
131A(1), Part 6 of the Airports Act applies to both a core-regulated
airport (if there is an airport lease for the airport) and an airport
specified in the regulations (if there is an airport lease for the
airport).
Item 63 - Subparagraph 131B(1)(a)(i)
112. This is a consequential amendment.
Item 64 - Subsection 168
113. This is a consequential amendment.
Item 65 - Subsection 169(1)
114. This is a technical amendment to make it clear that under subsection
169(1), Part 11 of the Act applies to both a core-regulated airport (if
there is an airport lease for the airport) and an airport specified in the
regulations (if there is an airport lease for the airport).
Item 66 - Paragraphs 180(1)(a) and (b)
115. This is a technical amendment to make it clear that under subsection
180(1), Part 12 of the Act applies to all three types of airports listed in
paragraphs (a) to (c).
Item 67 - Section 191 (first paragraph)
116. Section 191 provides a simplified outline of Part 13 which deals with
access to airports and demand management at airports.
117. Section 191 is amended to remove the sentence "An airport service
will be a declared service for the purposes of the access regime set out in
Part IIIA of the Trade Practices Act 1974 unless an access undertaking is
given within 12 months after responsibility for the airport is transferred
to the private sector". This sentence referred to the former section 192
which was repealed in 2003.
Item 68 - Subsection 194(1)
118. This is a technical amendment to make it clear that under subsection
194(1), Divisions 4 to 10 of Part 13 of the Act apply to a core regulated
airport, other than Sydney (Kingsford-Smith) Airport,(if there is an
airport lease for the airport) and an airport specified in the regulations
(if there is an airport lease for the airport).
Items 69 to 71 - Part 14 and sections 215 and 216
119. The word 'aerodrome' is inserted before the words 'rescue and fire
fighting services'. These amendments clarify that the types of services
covered by these provisions relate to the defined aerodrome rescue and fire
fighting services covered under the Civil Aviation Act 1988 and Civil
Aviation Safety Regulations and not to other non-aviation fire fighting
services at the airport.
Item 72 - Subsection 224(4)
120. This is a technical amendment.
Item 73 - At the end of section 244
121. A new subsection 244(2) is inserted to provide that the Minister's
power to give an approval for an airport-lessee company to undertake a
draft major development plan in relation to an incompatible development
under section 89A must not be delegated.
Item 74 - Subsection 250(8) (definition of airport services)
122. This is a technical amendment. Existing subsection 250(8) provides
for a definition of 'airport service'. The definition is slightly changed
to conform with drafting practice.
Part 3 - Transitional provisions
Item 75 - Application provision - incompatible developments
123. New section 71A, as inserted by this Schedule, applies to a facility
that existed before this Schedule commenced operation and to a facility
that is redeveloped, after this Schedule commences, in a way that increases
the capacity of the facility. For example, if there is an existing
educational institution at an airport before this Schedule commenced
operation, any redevelopment of this facility in a way that increases the
capacity of the facility (e.g. increases the number of students) after this
Schedule commenced operation, will be taken as an incompatible development.
Item 76 - Application provision -final master plans
124. The amendments made to sections 76 and 78 by this Act apply to a
final master plan that is in force when or after this Schedule commences
operation.
Item 77 - Application provision - major development plans
125. The amendments made to sections 89, 91, 92, 94 and 95 apply to a
draft major development plan if this Schedule commences before the airport-
lessee company (or a person other than the airport-lessee company) gives a
written advice to the persons listed in subsection 92(1A) which formally
starts the consultation period for a draft major development plan. This
means that if an airport-lessee company has given written advice to the
persons listed in subsection 92(1A) in relation to a draft major
development plan before this Schedule commenced operation, the amendments
made by this Act in relation to sections 89, 91, 92, 94 and 95 do not apply
to such draft major development plan.
Item 78 - Transitional provision - environment strategies
126. A final environment strategy which is in force before the
commencement of this Schedule continues to be in force even after this
Schedule commences operation.
127. However, a standalone final environment strategy ceases to be in
force when the master plan containing an environment strategy is approved.
This makes it clear that a leased federal airport cannot have a standalone
final environment strategy and at the same time an environment strategy
annexed to a master plan.
Schedule 2 - Technical amendment of the Airports Act 1996
Items 1 to 25
128. These are technical and consequential amendments.