Day of reckoning for Albanese

Archerfield Airport’s well-organised and determined tenant group has launched a high-profile legal challenge seeking reversal of a decision by Infrastructure & Transport Minister Anthony Albanese’s on 24 May 2012 to approve the Archerfield Airport Corporation’s (AAC) Master Plan, submitted just 17 days earlier on May 7.

Van Zyl Lawyers, solicitors for the Archerfield Airport Chamber of Commerce Inc (AACCI), filed a comprehensive Statement of Facts, Issues & Contentions with the Administrative Appeals Tribunal on March 8, naming Minister Albanese as respondent and AAC as second respondent. Following directions hearings recently, AACCI members believe the matter is likely to be heard by AAT President and Federal Court Judge, the Hon Justice Duncan Kerr, assisted by Deputy President Phillip Hack SC.

Author’s note: This report was prepared from publicly available documents. The Archerfield Airport Chamber of Commerce declined to comment because the matter is now in the hands of the Administrative Appeals Tribunal.

The case is certain to be followed closely by aviation business tenants at most of the 22 former “Federal airports,” previously owned and operated by the then government’s Federal Airports Corporation (FAC). These include the secondary airports of Archerfield (Brisbane), Bankstown and Camden (Sydney), Jandakot (Perth), Moorabbin (Melbourne) and Parafield (Adelaide). These airports are Australia’s major centres of general aviation activity.

CASA Director John McCormick told a well-attended meeting of maintenance, repair and overhaul (MRO) businesses last week that there were currently 700 MRO certificate of approval holders and 800 air operator certificate (AOC) holders. With a sizeable proportion of these occupying leases at affected airports, the clock is ticking towards June 1, 2017, when existing leases begin expiring, with the threat of mass exodus from the industry if the AACCI’s appeal is not successful.

Some of the complaints raised in the statement are also likely to affect airports handed over to local governments under the federal government’s separate airport local ownership plan (ALOP) in the early 1990s, when the Federal government began its program to withdraw also from the ownership of over 230 regional airports over a five-year period.

The relief now being sought by AACCI details four alternative outcomes:

1.   The decision of the Minister dated 24 May 2012 to approve the Master Plan be set aside.

2.   The Master Plan, amended as per the attached summary of amendments, be approved and the AAC be directed to lodge a development plan within 9 months for the implementation of the amended Master Plan, failure of which the Minister is directed to issue a Notice of Cancellation of the Lease as provided for in Clause 19.1(a) read with the Definition of Airport Site in Clause 2.1 of the Lease.

3.   In the alternative, a decision refusing to approve the Master Plan be substituted for the Minister’s decision; and

4.   Such further and or alternative relief the Tribunal may find appropriate.

Item 2 in effect provides a draft revised Master Plan that would address AACCI’s concerns over the existing document, and which echoes the frustrations of aviation operators at all comparable Australian airports over acts of apparent non-compliance with the legislative framework and the intention of the Parliament in the airport privatisation process.

The AACCI document closely analyses events against the background of the legislative framework and compares the (then) government’s guiding philosophies for the sale process with statements by Archerfield Airport Corporation’s  managing director, Gavin Bird:

The Draft public statement attached to the sale agreement for the Archerfield Airport stated: John Sharp MP, Minister for Transport and Regional Development, stated in his “Objectives and Regional Opportunities in Phase II Airport Sales” address:
“The Managing Director of Miengrove, Gavin Bird, said that the company was grateful to have been entrusted with oversight of the future development of Archerfield, “We look forward to unlocking the potential of a strategic land bank which is at the hub of S.E. Qld transport,” he said. “Fifty hectares of prime industrial and commercial land which is surplus to aviation needs will be progressively developed to underpin the viability of the airport itself. Major corporations will be involved in best practice developments of the calibre of the recently completed BP Truckstop” “Archerfield will always remain the focus of general aviation in Queensland” Mr. Bird said, “and its surrounding infrastructure will be upgraded to reflect the importance of the site.” “Our sales objectives are clear – develop the airport; provide access; price reasonably; balance user interest with the environment. All these relate to an operating airport. If we wanted to see airports close we could do it ourselves and dispose of the property for real estate development for taxpayers’ benefit. So we are very up front. Do not buy an airport in the hope that you can close it down. The airport site will be protected by conditions set out in the sale contract, by the Commonwealth placing a restrictive covenant on the title and by the necessary commitments from the states that their planning, zoning and environmental laws will enable the airport to continue to operate. …the plan is and must be that each airport is always an airport at the end of the day.”

The AACCI’s submission exposes the breadth of the gap between those two philosophies, providing comprehensive detail of inequitable rental increases, asset dispossession, realignments and reductions in runway/taxiway capacity, buildings intruding into approach/departure airspace required to be obstacle-free, disregard or blocking of tenant consultation as required by the Act, dismissal of representations to the Minister, and the apparent lack of any constructive input from Airservices Australia, ATSB, or CASA over specific safety concerns.

Asset dispossession

On the central issue of the forced transfer of improvements owned by airport users on airport land, AACCI complains that the disputed Master Plan makes provision for commercial development on airport land but offers no compensation to current aviation tenants on land that is earmarked for those purposes:

The Second Respondent has a history of refusing further leases, forcing airport tenants from their premises with little or no compensation. The second respondent then leases the premises to tenants at inflated improved site rentals…….and are refusing to give permission to airport users for airport developments on areas less than 3000 m² in area.

ArcherfieldAirport’s plan (except in para 8.1.3 of the Master Plan) [T document 5421] does not recognise:

a.         pre-existing lessees (except as to first term),

b.         the pre-existing rights of renewal being collateral agreements with the Commonwealth or the Federal Airports Corporations and or representations to lessees as to policies of renewal.

c.         the waiver by the Commonwealth of the requirement that improvements on leased sites would revert to the Commonwealth and/or compensation to tenants for their improvements on just terms or relocation of affected businesses at AAC’s expense; and therefore has not addressed the requirements of Regulation 5.02(3) in relation to obligations that have passed to Archerfield Airport Corporation Pty Ltd under section 22(2) of the Airports Act 1996 or section 26(2) of the Airports (Transitional) Act 1996 and interests to which the airport’s lease is subject under section 22(3) of the Airports Act 1996 or subsection 26(3) of the Airports (Transitional) Act 1996 and as a result incorrect certificates provided to the Minister by the AAC pursuant to sections 79(1B)b, 79(2)(b) and 80(2) of the Airports Act 1996.

This conduct by the Second Respondent is contrary to the provisions of Clause 24 and 25 of the Airports Transitional Actl 1996 read with Section 51 (xxxi) of the Commonwealth of Australia Constitution Act.

Citing the relevant legislation in detail, the submission further claims that the Master Plan also fails to address breaches of several Commonwealth Acts covering airport sales, protection of airspace, Civil Aviation Safety Regulations, the Airservices Act, Airservices regulations particularly related to safety issues, and various State Acts and Regulations.

Consultation

As has long been the case in airport privatisation disputes, AACCI asserts that the airport management “has failed to consult or communicate in any constructive way with airport users and when objections were received from the applicant during the ‘so-called consultation process” reacted by vilifying the applicant in a letter to the first respondent [reference quoted.]

The submission asserts that the Master Plan addressed none of the complaints contained in the 903 objections that were lodged, most of which were opposed to the closure and/or replacement of runways.

It adds that the plan has the effect of downgrading current aviation facilities, damages and destroys current and existing aviation infrastructure including runways, taxiways, aviation fuel storage and refuelling facilities, helipads, aircraft hangars and aviation businesses, in favour of commercial non-aviation development, and significantly reduces the operational capabilities of the airport.

The Master Plan proposes realigning two parallel unsealed grass “cross runways” which are aligned in the 04/22 directions, and their replacement with proposed 01/19 runways which some aircraft types presently using the 04/22 runways would be unable to use because of operational performance limitations. The proposed replacement runways are on average 18.1% shorter in available takeoff length than the runways they are proposed to replace. All four runways are proposed to be reduced in length by an average of 17.27%, representing a total net runway length loss of 810 m.

In total, says the AACCI, the proposed measures “will result in the removal and/or forced closure of current aviation businesses, helipads, aircraft parking areas, shortening and realignment of the existing cross runway in a less favourable direction, (taking the most prevailing wind directions over time into consideration), removing the existing control tower without any provision in the master plan for its replacement, removal of the current aviation fuel farm without any plans for its replacement and reducing the area of land that may be used in the future for aviation purposes.”

Further, says the statement, the proposed “Barton Precinct” commercial real estate project would represent a business development on the airport of non-aviation industrial facilities, contrary to the requirements regarding access to and use of the airport site, and would be a breach of the Commonwealth’s lease conditions. Also it says, the move would “force the removal of all aviation related entities from this part of the airport with no alternative accommodation, hangar facilities, or land for the displaced aviation business and aircraft owners.

“At the same time, the Barton precinct will also be under the current helicopter training area, making the use of this airspace no longer available for helicopter training (in that it would be too dangerous to do so) with no other provision for helicopter training to take place at Archerfield Airport.”

Other significant air safety issues that have been raised with the Minister include:

  • On April 28, 2006, AAC confirmed in the downgrading of Archerfield from “certified” aerodrome status to “registered aerodromes.” This had the effect of removing the requirement for CASA to conduct regular aerodrome inspections, which also effectively removed the need for the necessary safety oversight. This has also caused Brisbane to be the only Australian capital city not to have a certified secondary aerodrome. Among other consequences, this removes the pre-privatisation requirement for a safety management system so that no safety exercises are required to be conducted on the airport with emergency services.
  • AAC has permitted structures to be erected on the airport that are in apparent breach of Regulation 9 of the Airports (protection of airspace) regulations 1996, Section 99 of the Airports act 1996, The Civil Aviation Safety Regulations 1998 (Manual Of Operating Standards Part 139) requirements for the aircraft for the published data.
  • One of the most serious issues is the close proximity of Archerfield to the overlying Brisbane control zone’s lower limit for aircraft approaching Brisbane’s main (01) runway, which would immediately stop any realignment of the existing 04/22 complex to a more northerly direction. The original airport planners understood this, and although the 04/22 direction was retained, the displaced threshold was applied for aircraft approaching runway 22R to ensure aircraft in the circuit kept well clear of the CTR boundary. As well, aircraft departing to the north on a proposed 18/36 runway would penetrate the Brisbane control area shortly after making a procedure turn in either direction – and would then climb into the lower level of the Brisbane 01 approach splay to reach Archerfield circuit height. This would effectively preclude circuit training that originated from a future runway 01.

Drainainge Plan F

  • A deep open road cutting across the runway end safety area of the main runway 28R/10L, serves no aviation purpose and increases risk in the event of a runway overrun or undershoot. Under previous FAC management the cutting was intended to be bridged to provide for an extension of the 28R/10L runway. However negotiations with the Brisbane City Council for completion of that work, although well advanced, stopped when the airport was privatised.
  • Before the cutting was excavated there had been at least three aircraft overrun accidents in which aircraft ran through the area occupied by the current road and even through the western fence of the airport into Brisbane City Council land.
  • Following the road cutting there have been two aircraft accidents. On March 7 2003 a runway overshoot occurred when an aircraft suffered engine control issues touched down before the threshold, impacted the fence to negotiate the road crossing, and come to rest on the runway side of the road culvert. The second occurred on the 28R runway, with the YAK 52 aircraft barely managing to land on the opposite side of the culvert to the runway after a propeller strike on the runway. AACCI has warned: “the eventual crash of an aircraft into the 28R/10L culvert is a reasonably foreseeable event that an average man in the street (“a reasonable man”) would know to be unsafe. This situation continues to be a great liability risk to the Commonwealth as landlord.
  • AAC publicly stated that they “will enclose the road either by a concrete pipe and closed over the top, however this was never included in the 2005 draft master plan nor is such a needed and now legally required rectification in this preliminary draft master plan.”

The AACCI’s Statement of Facts, Issues & Contentions covers virtually every grievance we’ve heard in the airport privatisation context over the last 15 years, the differences being that this application is supported by wide-ranging professional legal research and presentation, and that it finally addresses not the faceless men and women in the Minister’s department, but the responsible Minister in person.

 

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About Paul Phelan

Paul Phelan flew for over 50 years in private, charter, corporate and regional aviation, worked in senior management roles with a major regional airline, and retains his license. In parallel he has been writing for Australian and international aviation journals for well over 20 years on all aspects of aviation including aircraft evaluation, flying, industry affairs, infrastructure, manufacture, regulatory affairs, safety, technologies and training. He has won three separate National Aviation Press Club awards for "best technical aviation story of the year."

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