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Airports Amendment Bill 2016



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ISSN 1328-8091

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BILLS DIGEST NO. 73, 2016-17 15 MARCH 2017

Airports Amendment Bill 2016 Sophie Power Science, Technology, Environment and Resources Section

Contents

Purpose of the Bill ............................................................... 3

Background ......................................................................... 3

Airport planning and development ......................................... 3

Airport master plans .............................................................. 3

Major development plans ..................................................... 4

Proposals for changes to airport planning .............................. 4

Committee consideration .................................................... 4

Senate Standing Committee on Rural and Regional Affairs and Transport ............................................................... 4

Senate Standing Committee for the Scrutiny of Bills .............. 5

Policy position of non-government parties/independents ..... 5

Position of major interest groups ......................................... 5

Airports .................................................................................... 5

Pilots ........................................................................................ 6

Financial implications .......................................................... 6

Statement of Compatibility with Human Rights .................... 6

Parliamentary Joint Committee on Human Rights .................. 6

Key issues and provisions..................................................... 7

Airport master planning .......................................................... 7

Master planning cycles .......................................................... 7

Australian Noise Exposure Forecasts .................................... 8

Major development plans ....................................................... 8

Monetary threshold for major development planning ......... 8

Increasing the threshold ..................................................... 8

Future increases in the threshold ....................................... 9

What is included in the calculation of the threshold? ........ 9

Date introduced: 1 December 2016

House: House of Representatives

Portfolio: Infrastructure and Transport

Commencement: The seventh day after Royal Assent.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at

March 2017.

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Major development plan timeframes ................................... 9

Public consultation periods ................................................. 9

Completion of major developments ................................. 10

Withdrawing major development plans ........................... 10

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Purpose of the Bill The purpose of the Airports Amendment Bill 2016 (the Bill) is to amend the Airports Act 1996 (Cth) to adjust processes relating to the preparation of master plans and major development plans for federally-leased airports, including to:

• enable most federal airports (other than the major airports at Brisbane, Melbourne, Perth and Sydney) to submit new master plans every eight years instead of every five years

• ensure that a new Australian Noise Exposure Forecast (ANEF) is required in each new master plan

• increase the threshold that triggers the requirement for an airport major development plan from $20 million to $35 million and allow the threshold to be increased in the future via a legislative instrument and

• amend certain other processes relating to major development plans, such as imposing a new 15-day timeframe within which the Minister must consider applications for shorter consultation periods for major development plans.

Background Airport planning and development The Commonwealth regulates planning and development controls for federally-leased airports through the Airports Act.1 A key component of the planning framework in the Airports Act is the requirement for master plans for all federal airports2 and major development plans for major developments at those airports.3

Airport master plans Airport master plans are a ‘20 year strategic vision for the airport site’ which are currently renewed every five years:

The Master Plan includes future land uses, types of permitted development, and noise and environmental impacts. The Environment Strategy sets out the airport's strategy to manage environmental issues within a 5 year period and beyond. It is the basis on which the Commonwealth measures the environmental performance of airports and the document by which airport tenants will determine their environmental responsibilities.

4

Subsection 70(2) of the Airports Act sets out the purposes of airport master plans, which include 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

• ensure that uses of the airport site are compatible with the areas surrounding the airport

• ensure that all operations at the airport are undertaken in accordance with relevant environmental legislation and standards

• establish a framework for assessing compliance at the airport with relevant environmental legislation and standards and

• promote the continual improvement of environmental management at the airport.

1. Department of Infrastructure and Regional Development (DIRD), ‘Airports’, DIRD website, 9 April 2015. However, note that the land use and planning controls in Part 5 of the Airports Act do not apply to the federally-leased airports at Tennant Creek and Mount Isa: see Airports Act, sections 68 and 7.

2. Airports Act 1996, Part 5, Division 3. 3. Ibid., Part 5, Division 4. 4. DIRD, ‘Airport planning and regulation’, DIRD website, 3 February 2017.

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The Airports Act currently requires that a new airport master plan be prepared for each federally-leased airport (except for Tennant Creek and Mount Isa airports) at least once every five years.5 This requirement currently applies regardless of the type or size of the airport's operations.6

The Airports Act sets out the required content of master plans as well as the process for developing master plans. In short, the airport company is required to prepare and publish a draft plan and invite comment on the plan from the public, usually for a period of 60 business days. Information about any public comment received is required to be provided to the Minister for Infrastructure and Regional Development (the Minister) when submitting the plan for the Minister’s approval.7

Major development plans In addition, major development plans are required for major developments at federally-leased airports (except for Tennant Creek and Mount Isa Airports).8 Section 89 of the Airports Act defines ‘major development’ and generally includes any significant building work or any development with a significant environmental impact on the airport site. Some developments also have a monetary trigger before a major development plan is required. This is discussed later in this Digest. Major development plans must provide details about the development and its likely effects (for example, on noise, flight paths, traffic flows and the environment).9 As with master plans, a draft version of the major development plan must undergo public consultation before being submitted to the Minister for approval.10

Proposals for changes to airport planning In July 2014, the Department of Infrastructure and Regional Development (the Department) circulated a discussion paper on ‘efficiency proposals’ for the master plan and major development plan processes under the Airports Act. This discussion paper was apparently distributed to a range of stakeholders, including federally-leased airport operators, state and local government authorities, members of airport consultative forums and the Australian Airports Association.11

Following analysis of the 39 submissions from this first round of consultation, the Department published a second discussion paper for consultation in May 2015 (the second discussion paper).12 The second discussion paper set out a number of ‘recommended better regulation proposals’, many of which are contained in this Bill, including proposed amendments to master planning cycles; require an updated ANEF in each new master plan; increase the monetary threshold for certain types of major airport developments and provide a mechanism in the Airports Act to allow airports to withdraw major development projects.13

Unfortunately, the discussion papers and the submissions received in relation to both these discussion papers do not seem to be currently available on the Department’s website.14 Nor is there any mention of the consultation process in the Explanatory Memorandum to the Bill.

Committee consideration Senate Standing Committee on Rural and Regional Affairs and Transport On 8 February 2017, the Senate Selection of Bills Committee referred the Bill to the Rural and Regional Affairs and Transport Legislation Committee for inquiry and report by 28 March 2017.15 The inquiry received five submissions on the Bill.16 Details of the inquiry are at the inquiry homepage.17

5. Airports Act, Part 5, Division 3. 6. DIRD, ‘Airport planning and regulation’, op. cit. 7. Airports Act 1996, sections 75-81. 8. Ibid., Part 5, Division 4. 9. Ibid., section 91. 10. DIRD, ‘Airport planning and regulation’, op. cit. 11. DIRD, Better regulation proposals: Airports Act 1996: regulatory streamline package, May 2015, p. 2. 12. Ibid., p. 2. 13. Ibid.

14. The second discussion paper linked to in footnote 11 was obtained from the Australian Government web archive, not the Department’s website. 15. Senate Standing Committee for Selection of Bills, Report, 1, 2017, The Senate, Canberra, 9 February 2017, p. 3.

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Most airport stakeholders generally supported the Bill,18 although some commented on specific provisions in the Bill. Other stakeholders, such as the City of Cockburn in Western Australia, suggested that there was no need for the Bill as the current processes are appropriate.19 The Australian and International Pilots’ Association suggested that, although the Bill contains ‘largely uncontroversial machinery amendments’, it should nevertheless be rejected unless amendments are made to require proper consideration of developments likely to compromise the efficient operation of airports by creating operational risks.20 These submissions are discussed in further detail in the ‘Position of major interest groups’ and ‘Key issues and provisions’ sections of this Digest.

Senate Standing Committee for the Scrutiny of Bills The Senate Standing Committee for the Scrutiny of Bills had no comment on the Bill.21

Policy position of non-government parties/independents At the time of writing, non-government parties and independents do not appear to have commented on the Bill.

Position of major interest groups Airports As noted in the background section of this Digest, the Department has conducted two rounds of consultation in relation to the proposed changes contained in this Bill. Unfortunately, the submissions relating to that consultation do not appear to have been made publicly available. However, the Australian Airports Association (AAA) has published its submission22 to the Department’s second discussion paper on its website.23 In that submission, AAA commented on many of the proposals to amend the Airports Act along the lines that are now contained in this Bill.24 The AAA welcomed some aspects of the proposed amendments, but considered that they ‘must be stronger and more substantive’ otherwise they would ‘result in a lost opportunity for the Government to achieve meaningful and significant regulatory cost savings for the industry’.25

In particular, the AAA welcomed the proposal for the five-year master plan cycle to be extended to eight years for certain airports. However, the AAA recommended the cycle be increased to ten years to ‘more closely align the airport planning process with those of many local and state government planning authorities, which operate on ten-year planning cycles’.26 The AAA also did not support the retention of the five-year master plan cycle for Sydney, Melbourne, Brisbane and Perth airports ‘without any consideration being given to the introduction of more flexibility in the current requirements’.27 The AAA noted:

16. Senate Standing Committee on Rural and Regional Affairs and Transport, Submissions, Inquiry into the provisions of the Airports Amendment Bill 2016, The Senate, Canberra. 17. Inquiry homepage, Senate Standing Committee on Rural and Regional Affairs and Transport, ‘Airports Amendment Bill 2016 [Provisions]’. 18. Bankstown Airport Limited and Camden Airport Limited, Submission to the Senate Standing Committee on Rural and Regional Affairs and

Transport, Inquiry into the provisions of the Airports Amendment Bill 2016, March 2017; Hobart International Airport Community Aviation Consultation Group, Submission to the Senate Standing Committee on Rural and Regional Affairs and Transport, Inquiry into the provisions of the Airports Amendment Bill 2016, 21 February 2017; Sydney Airport, Submission to the Senate Standing Committee on Rural and Regional Affairs and Transport, Inquiry into the provision of the Airports Amendment Bill 2016, 3 March 2017. 19. City of Cockburn, Submission to the Senate Standing Committee on Rural and Regional Affairs and Transport, Inquiry into the provisions of the

Airports Amendment Bill 2016, 3 March 2017. 20. Australian and International Pilots’ Association, Submission to the Senate Standing Committee on Rural and Regional Affairs and Transport, Inquiry into the provisions of the Airports Amendment Bill 2016, 28 February 2017. 21. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 1, 2017, The Senate, Canberra, 8 February 2017, p. 4. 22. Australian Airports Association (AAA), ‘Submissions’, AAA website, 2017. 23. AAA, Submission to Department of Infrastructure and Regional Development, Discussion paper—efficiency proposals: master plan and major

development plan, 29 May 2015. 24. Ibid.

25. Ibid., p. 1. 26. Ibid., p. 2. 27. Ibid.

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… the development of Master Plan documents is a very resource intensive exercise that imposes a multi-million dollar financial burden on each of these airports. Combine this with the fact that the development of a Master Plan can take up to 2 years to complete—effectively resulting in a 3 year gap between plans rather than 5 years. 28

The AAA recommended a ten-year master plan cycle for all Commonwealth airports, except Sydney, Melbourne, Brisbane and Perth airports, which the AAA suggested should have an option to review and update their master plan at the five-year point.29

The AAA did not make a submission to the Senate Committee inquiry into the Bill (discussed earlier). However, other comments in the AAA’s consultation paper submission relevant to this Bill are discussed in further detail in the ‘Key issues and provisions’ section below.

According to their submissions to the Senate Committee inquiry into the Bill, other airports, including Bankstown, Camden, Hobart and Sydney airports, generally support the Bill.30 Some commented on specific provisions in the Bill and these are mentioned in the ‘Key issues and provisions’ below.

Pilots The Australian and International Pilots’ Association commented that the Bill contains ‘largely uncontroversial machinery amendments’.31 Nevertheless, the Association suggested the Bill be rejected unless amendments are made to ‘require proper consideration of developments likely to compromise the efficient operation of airports by creating operational risks’.32 More specifically, the Association suggested the Airports Act be amended to require a major airport development plan where a development is ‘likely to have significant impact on operational risks to aircraft using the airport’. The Association was specifically concerned with buildings and structures near runways that have the potential to ‘create dangerous turbulent wakes in strong winds, generate or reflect distracting light sources or interfere with in-flight visibility or critical navigation aids’.33 It suggested that some such developments may not currently come within the ambit of the airport development planning process and that an appropriate amendment would ‘serve to enhance flight safety’.34

Financial implications According to the Explanatory Memorandum, the Bill has no financial impact.35

Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.36

Parliamentary Joint Committee on Human Rights The Parliamentary Joint Committee on Human Rights considers that the Bill does not raise human rights concerns.37

28. Ibid.

29. Ibid.

30. Bankstown Airport Limited and Camden Airport Limited, Submission to the Senate Standing Committee on Rural and Regional Affairs and Transport, Inquiry into the provisions of the Airports Amendment Bill 2016, March 2017; Hobart International Airport Community Aviation Consultation Group, Submission to the Senate Standing Committee on Rural and Regional Affairs and Transport, Inquiry into the provisions of the Airports Amendment Bill 2016, 21 February 2017; Sydney Airport, Submission to the Senate Standing Committee on Rural and Regional Affairs and Transport, Inquiry into the provision of the Airports Amendment Bill 2016, 3 March 2017.

31. Australian and International Pilots’ Association, Submission to the Senate Standing Committee on Rural and Regional Affairs and Transport, Inquiry into the provisions of the Airports Amendment Bill 2016, 28 February 2017, p. 1. 32. Ibid.

33. Ibid., p. 2. 34. Ibid., p. 4. 35. Explanatory Memorandum, Airports Amendment Bill 2016, p. 1. 36. The Statement of Compatibility with Human Rights can be found at page 2 of the Explanatory Memorandum to the Bill. 37. Parliamentary Joint Committee on Human Rights, Scrutiny report, 1, 2017, The Senate, Canberra, 16 February 2017, p. 32.

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Key issues and provisions Airport master planning

Master planning cycles The Airports Act requires each federally-leased airport (except for Tennant Creek and Mount Isa Airports) to have a master plan approved by the Minister.38 Section 76 of the Airports Act requires airport-lessee companies to submit a new draft airport master plan to the Minister no later than five years after a master plan came into force. Similarly, section 77 of the Airports Act currently provides that airport master plans remain in force for five years.39

The Bill proposes to amend these provisions to enable most federal airports (other than the major airports in Brisbane, Melbourne, Perth and Sydney) to submit new master plans every eight years instead of every five years.

In particular, item 9 of the Bill proposes to amend section 76 to provide that, if a master plan is in force for an airport, the airport-lessee company must give the Minister, in writing, a draft master plan for the airport, no later than:

• five years after the original plan came into force in the case of Sydney (Kingsford Smith) Airport, Sydney West Airport, Melbourne (Tullamarine) Airport, Brisbane Airport or Perth Airport and

• eight years after the original plan came into force in the case of other federal airports (that is, Adelaide, Alice Springs, Archerfield, Bankstown, Camden, Canberra, Darwin, Essendon, Gold Coast, Hobart, Jandakot, Launceston, Moorabbin, Parafield and Townsville airports).

Item 14 proposes to amend section 77, which currently sets the duration of airport master plans as five years. The amendment reflects the proposed two different durations: five years for master plans for Sydney (Kingsford Smith) Airport, Sydney West Airport, Melbourne (Tullamarine) Airport, Brisbane Airport or Perth Airport and eight years for all other federal airport master plans.

Item 5 then proposes to insert a new subsection 71(3A) to introduce the concept of the ‘initial period’ of the master plan. As a consequence of the amendment in item 9, the initial period is five years in the case of the major airports in Sydney, Melbourne, Brisbane and Perth and eight years for all other federal airports.

Subsections 71(2) and (3) set out the requirements for the content of master plans. Some of the required content is specified to be required in relation to the ‘first 5 years’ of the master plan, while other matters must address a 20-year planning horizon. Items 1 and 3 contain consequential amendments to the paragraphs in section 71 which refer to the ‘first 5 years’ of a master plan, replacing them with a reference to the ‘initial period’ to align the requirements with the proposed new periods for the duration of master plans.

Subsection 72(1) of the Airports Act provides that master plans must generally relate to a period of 20 years. However, subsection 72(2) currently provides that the environment strategy in a master plan must relate to a period of five years. Item 8 of the Bill proposes to delete subsection 72(2), while items 2 and 4 of the Bill then amend paragraph 71(2)(h) and 71(3)(h) which set out the details required in the environment strategy to provide that the environment strategy address ‘the initial period of the master plan’. The Explanatory Memorandum suggests that this means that the wording applied to the provisions relating to the environment strategy component of master plans will be ‘consistent’ with the other specifications.40

Items 13, 14 and 16 of the Bill contain consequential amendments relating to these new time periods.

As noted earlier in this Digest, the AAA considered in 2015 that the proposed amended master planning cycle was still too short, and should be ten years for all airports, with an option for the Sydney, Melbourne, Brisbane and Perth major airports to review and update their plans at the five-year mark.

38. Airports Act, sections 70-83. 39. Although if a new master plan does not replace the original plan, that original plan remains in force until the fresh plan is finalised and enters into force. 40. Explanatory Memorandum, Airports Amendment Bill 2016, p. 3.

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Camden and Bankstown airports supported this change, noting that for Camden Airport, ‘the cost of carrying out a Master Plan equates to 1.7 years of aeronautical revenue for that airport’.41

Australian Noise Exposure Forecasts Paragraphs 71(2)(d) and 71(3)(d) of the Airports Act currently require airport master plans to include an ANEF which forecasts future aircraft noise patterns for the areas surrounding the airport.42

The Bill proposes to amend the Airports Act to require a new ANEF in each new master plan. Item 11 proposes to insert a new subsection 76(1A) which provides that airports must obtain and include a new ANEF when preparing a new draft master plan. As the Minister explained in the second reading speech:

While the Airports Act currently sets out an Australian Noise Exposure Forecast must be included in a master plan, it does not specify the Australian Noise Exposure Forecast must be renewed for each new plan. 43

The Explanatory Memorandum states that this amendment will:

… ensure each final master plan comprises an up-to-date representation of the potential noise impacts of airport operations. The amendment also facilitates integrated and coherent land use planning outcomes; in particular, to manage incompatible and sensitive land uses from encroaching too close to airports. 44

In practice, most airports provide an updated ANEF with each new master plan ‘even though this requirement is not clearly mandated in the Airports Act’.45

Items 12 and 15 of the Bill contain consequential amendments relating to this change.

Major development plans

Monetary threshold for major development planning Section 89 of the Airports Act sets out the meaning of ‘major airport development’, which in turn triggers the requirements for a major development plan. For example, it includes constructing a new runway, or extending a runway. It also currently includes certain construction activities (such as constructing new buildings, taxiways, roads, railways, or extending taxiways, roads or railways) where the construction costs of those activities exceed $20 million.

Increasing the threshold Items 18 and 19 propose to amend section 89, and in particular the construction threshold of $20 million. New subsection 89(9) will provide for a new, increased threshold of $35 million or an amount determined by legislative instrument.

The threshold amount was last increased from $10 million to $20 million in 2007.46 The Minister suggested in his second reading speech that, since that time, increases to the construction activity costs and inflation ‘have resulted in an increased number of on-airport developments unnecessarily triggering the requirement for a major development plan’.47 However, no specific examples are given in the speech or Explanatory Memorandum.

The Department’s second discussion paper proposed an increase in the threshold to $30 million.48 In response, the AAA considered that increasing the monetary figure to $30 million would be ‘an improvement’. However, the AAA considered that the increase would not be sufficient to ‘create any material change to the regulatory burden imposed on industry’:

41. Bankstown Airport Limited and Camden Airport Limited, Submission to the Senate Standing Committee on Rural and Regional Affairs and Transport, Inquiry into the provisions of the Airports Amendment Bill 2016, March 2017, p. 2. 42. See further DIRD, ‘Aircraft noise disclosure—avoiding "surprise noise"’, DIRD website, 29 October 2014. 43. D Chester, ‘Second reading speech: Airports Amendment Bill 2016’, House of Representatives, Debates, 1 December 2016, p. 5135. 44. Explanatory Memorandum, Airports Amendment Bill 2016, p. 4. 45. DIRD, Better regulation proposals, op. cit., p. 7. 46. Item 72 of Schedule 1 to the Airports Amendment Act 2007. Explanatory Memorandum, Airports Amendment Bill 2016, p. 6; Chester, ‘Second

reading speech: Airports Amendment Bill 2016’, op. cit., p. 5135. 47. Chester, ‘Second reading speech: Airports Amendment Bill 2016’, op. cit., p. 5135. 48. DIRD, Better regulation proposals, op. cit., p. 8.

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By the Department’s own admission in the Discussion Paper, based on a review of MDPs [Major Development Plans] submitted in the 2013/14 period, the number of projects subject to the MDP process is unlikely to be substantially reduced as a result of raising the monetary trigger to $30 million… 49

The AAA recommended the monetary threshold be increased to $50 million.50

Sydney Airport supported the proposal to increase the threshold to $35 million and then to index that amount in future (as outlined below), noting that the real value of the current threshold had eroded over time.51

Future increases in the threshold In addition, new subsection 89(10) provides that ‘before each third anniversary’ of the commencement of the subsection, the Minister may, by legislative instrument, determine a new amount which must be higher (than $35 million or an amount previously determined by legislative instrument). In other words, three years after the subsection commences, and every three years thereafter, the Minister may increase the monetary threshold for construction activities that will require a major development plan. Although there does not appear to be any upper limit on the amount by which the Minister may increase the threshold, proposed subsection 89(12) provides that the Minister must take into account changes in construction activity costs since the last determination.

The second discussion paper proposed the inclusion of an ‘appropriate cost inflator mechanism’ to be applied every three years in the Airports Act to ensure the ‘trigger keeps pace with marketplace costs’.52 The AAA supported this proposal.53

What is included in the calculation of the threshold? Proposed subsections 89(12), (13) and (14) set out the matters that the Minister must or can take into account in determining a new monetary threshold for major airport developments, including changes in construction activity costs.

In addition, proposed subsection 89(8) would enable the Minister to make a legislative instrument to determine the ‘cost of construction’ for the purposes of calculating the costs that must be included and excluded in determining whether the construction costs trigger the requirement for a major development plan. In his second reading speech the Minister explained:

For example, airports must include costs of base building fit-out in its [sic] calculations. Base building fit-out includes the internal cladding to finish off the base building prior to tenancy fit-out. However, the airport is not required to include tenant specific fit-out costs and tenant supplied items. This instrument will remove any confusion for industry and ensure a consistent costing application across all federal leased airports.

54

Major development plan timeframes

Public consultation periods Section 92 of the Airports Act provides for draft major development plans to be published for public comment. The public consultation period is specified in subsection 92(2A) as 60 business days or the Minister may approve a shorter period (of not less than 15 business days). Subsection 92(2B) provides that the Minister may only approve a shorter consultation period if requested in writing to do so by the airport company,55 and if satisfied that the proposed development is consistent with the airport master plan and ‘does not raise any issues that have a significant impact on the local or regional community’.

49. AAA, op. cit., p. 3. 50. Ibid., p. 4. 51. Sydney Airport, Submission to the Senate Standing Committee on Rural and Regional Affairs and Transport, Inquiry into the provision of the Airports Amendment Bill 2016, 3 March 2017, pp. 2-4.

52. DIRD, Better regulation proposals, op. cit., p. 8. 53. AAA, op. cit., p. 4. 54. Chester, ‘Second reading speech: Airports Amendment Bill 2016’, op. cit., p. 5135. 55. Note that this aspect is being amended in a very minor technical amendment in item 21 of the Bill.

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Item 22 proposes to insert a new subsection 92(2BA) which will provide that, if the airport makes a request for a shorter consultation period, and the Minister does not make a decision on the request within 15 business days, then the Minister is deemed to have approved that shorter period. In other words, this amendment imposes a time limit on the Minister within which he or she must decide on a request for a shorter public consultation period. The Explanatory Memorandum states:

This amendment will not impact the prescribed requirements for public consultation, however it will provide industry with certainty regarding the Ministerial decision timeframe, which could then be accounted for in the airport’s planning process. 56

However, currently, the Minister may only approve a request for a shorter consultation period if satisfied that the proposed development is consistent with the airport master plan and ‘does not raise any issues that have a significant impact on the local or regional community’. This amendment seems to raise the possibility that the Minister could simply not decide on the request, and then be deemed to have approved the short period, even if the development is inconsistent with the airport master plan, or raises issues that have a significant impact on the local or regional community. In other words, it appears that new subsection 92(2BA) could potentially be used to circumvent the requirements in subsection 92(2B).

Note also that this amendment does not seem to have been among the amendments proposed in the Department’s second discussion paper in 2015.

Completion of major developments Section 94 provides for the Minister to approve airport major development plans. Under subsection 94(7A), approvals are subject to a condition that the development be substantially completed within five years after the approval (unless the approval states otherwise). Subsection 94(7B) provides that the Minister may extend that period by up to two years. That period may currently only be extended once, meaning airport major developments must be completed within seven years.

Item 23 of the Bill proposes to replace subsection 94(7B) to allow the Minister to further extend the period for ‘substantial completion’ of the major development for up to two years. Under the proposed amendment, the Minister may extend the period an unlimited number of times, for up to two years at each extension. The proposed subsection 94(7B) would also allow conditions to be placed on those extensions.

The Minister stated in his second reading speech:

While the majority of approved major development plans are completed in the prescribed timeframe, on rare occasions some larger or more complex developments, such as a new runway, may be subject to unforeseen delays and exceptional circumstances beyond airports’ control. As a result, achieving a substantially complete status may require more than the standard seven-year timeframe.

Where an airport is committed to substantially completing an approved major development plan, the airport should be given the opportunity to do so without the threat of legislative penalty. Therefore, the Bill proposes to remove the restriction on the number of times the Minister may extend the timeframe for substantial completion. 57

The AAA supported the removal of the limit on the number of times airports can apply to the Minister to extend the major development plan completion period, but suggested it would be preferable to refer to ‘substantial commencement’ instead of ‘substantial completion’.58

Withdrawing major development plans Finally, item 24 of the Bill proposes to add a new section 96AA to the Airports Act to allow airports to withdraw an approved major development plan by giving notice to the Minister of its intention not to proceed with the development if the project has not commenced59 and the airport considers that ‘exceptional circumstances beyond its control’ have made proceeding with the development unviable. Under proposed subsection 96AA(4),

56. Explanatory Memorandum, Airports Amendment Bill 2016, p. 7. 57. Chester, ‘Second reading speech: Airports Amendment Bill 2016’, op. cit., p. 5136. 58. AAA, op. cit., p. 4. 59. Ibid; see also proposed paragraph 96AA(1)(b).

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the plan then ceases to be in force the day after the Minister has given the airport a written notice acknowledging receipt of the withdrawal notice. ‘Exceptional circumstances’ is not defined further by the Bill, and the Explanatory Memorandum does not give any further explanation or examples.

The AAA supported the proposal to enable airports to notify the Minister of an intention not to proceed with an approved major development project. However, as the AAA noted in 2015, ‘there needs to be more clarity provided on what constitutes “exceptional circumstances”’.60 Further, the AAA did not support the notion that this provision would not apply in the event that an approved project has commenced. The AAA considered this to be ‘overly restrictive’, suggesting that a circumstance could arise where site preparation commences, and a third party then decides they no longer need that facility. In this situation, the airport would still be required to proceed with the project because it had commenced. The AAA recommended that this element of the provision be removed, or that it should ‘stipulate that the project must have “substantially commenced”’.61

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60. AAA, op. cit., p. 4. 61. Ibid., p. 4.