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Airports Amendment Bill 1999
Bills Digest No. 113 1998-99
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sour ces should be consulted to determine the subsequent official status of the Bill.
Airports Amendment Bill 1999
- extend the time period available to airport lessees to have access undertakings approved by the Australian Competition and Consumer Commission (ACCC)
- require approval by the Department of Transport and Regional Services for activities which may intrude into protected airspace, and
- clarify the rights of lessees to vary the boundaries of their leases.
Many of the facilities at airport sites, such as warehouses, hangars, terminal gateways and aprons represent fixed infrastructure involving an element of m onopoly, that is, they are facilities that would not normally be duplicated by users. The Principal Act therefore contains provisions which are designed to ensure that airport users are able to gain access to such facilities on a fair and reasonable basis.
The Principal Act sets out a mechanism which is designed to achieve this objective. Airport lessees may formulate access undertakings and have these approved by the ACCC within 12 months of gaining the lease. These undertakings would set out the policies and processes which would be followed by lessees in negotiating access to facilities by airport users. Where such an undertaking is approved by the ACCC, lessees may negotiate with users in accordance with the terms of that undertaking.
However, if ACCC approval for an access undertaking has not been granted within 12 months from the commencement of the lease, the Principal Act requires the Minister to formally declare that services at the airport concerned are to be subject to Part IIIA of the Trade Practices Act 1974 . If such a declaration is in force, any dispute between a lessee and an airport user must be notified to the ACCC, which may arbitrate the dispute and make a determination within the provisions of Part IIIA. The existence of an approved access undertaking enables a more flexible approach to be taken to negotiation and dispute settlement than the provisions applying to declared services.
However, airport lessees have argued that the workload involved in establishing their operations and complying with various other statutory requirements (such as the formulation of Airport Master Plans) has made it difficult for them to meet the 12 month deadline for the approval of access undertakings. None of the Phase 1 airport lessees (at Melbourne, Brisbane and Perth) were able to have undertakings agreed within the designated period and their services were thus declared. Similar problems are envisaged for those airports recently acquired in the second tranche of leases. The current Bill proposes that the period within which lessees may have access undertakings approved by the ACCC should be extended from 12 to 24 months.
The Bill also extends the range of activities, undertaken within protected airspace, for which approval must be obtained from the Department of Transport and Regional Services. Already the Principal Act requires such approval to be sought where physical structures in the vicinity of airports may impinge upon protected airspace. Such structures might include high buildings, extensions to existing buildings, towers, poles or even the use of large cranes and other construction equipment. The Bill would further require approval to be given for other, non-structural activities which might have an impact on safe aircraft navigation. Such hazards might include the discharge of smoke or heat from an installation (which may obscure vision or create air turbulence), glare from lights (such as sports stadiums), the use of lasers, or reflected light.
The Bill also clarifies the rights of airport lessees to make minor variations to the boundaries of their leases by disposing of and/or acquiring land. The proposed amendments will remove any doubt that a lessee may surrender a portion of a lease (in orde r to dispose of land) without having to surrender the entire lease. The Bill will also redefine an 'airport lease' to remove the requirement that the leased area must include a runway. This would make it clearer that additional land may be leased at the boundaries of airports. Nevertheless, land so leased must be used for airport-related activities. This redefinition of an airport lease would, concomitantly, remove the current definitional distinction in the Principal Act between leases at joint-user airports and ordinary airports. Whereas most leased airport sites would include a runway, leases at joint-user sites (such as Canberra) only relate to a defined area of the site, with the runways and other facilities still owned and operated by the Department of Defence.
Several amendments of a mechanical nature are also sought in the Bill. The Bill clarifies, for example, the definition of an 'interest' in a lease. The Principal Act only allows certain specified bodies to acquire airport leases or interests in such leases. It was not the intention of the Principal Act to extend the definition of 'interest' to encompass those interests which did not entail the ownership or management of a lease. The definition of 'interest' would be amended by this Bill to specifically exclude sub-leases, licences, easements or other incorporeal hereditaments(1), or restrictive covenants.
Item 18 of Schedule 1 of the Bill would amend subsection 192(5) of the Principal Act to extend the length of the designated period within which access undertakings may be approved by the ACCC from 12 to 24 months.
Item 14 of Schedule 1 seeks to amend section 182 of the Principal Act to specify those additional activities, which might impinge upon safe navigation in protected airspace, requiring approval from the Department of Transport and Regional Services. These activities may include the operation of a light source, the operation of plant which reflects sunlight, any activity creating air turbulence or any activity generating smoke, dust, steam or gas.
Item 2 of Schedule 1 would amend the definition of an airport lease in section 5 of the Principal Act to omit the requirement that such a lease must include a runway.
Item 12 of Schedule 1 would insert a new section 163A into the Principal Act to enable the Minister to respond to a request by a lessee to reduce the area of a lease by gazetting a declared variation to the lease.
Item 3 of Schedule 1 would amend the definition of 'interest' in section 5 of the Principal Act to specifically exclude sub-leases, licences, easements or other incorporeal hereditaments, or restrictive covenants.
The provisions of the current Bill do not represent any significant policy change in the regulation of airport leases an d the protection of airspace in the vicinity of airports. The provision of additional time to have access undertakings approved by the ACCC reflects the practical problems that have been faced by airport lessees to date in meeting the prescribed deadline. Requiring approval for an extended range of activities which might impinge upon protected airspace should foster safer air navigation. Other proposed amendments are designed to clarify the intent of existing legislation, especially in relation to the varying of lease boundaries and the definition of what constitutes an interest in an airport lease.
- Corporeal hereditaments are intangible objects, such as a title to land, which are capable of being inherited.
16 Feb ruary 1999
Bills Digest Service
Information and Research Services
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