Posted on October 17, 2018 by Stuart Simington and

Western Sydney Airport – development in protected airspace

The protected airspace for Western Sydney Airport was declared under the Airports Act 1996 (Cth) and the Airports (Protection of Airspace) Amendment Regulation 1996 (Cth) on 19 October 2017.

Development that infringes on protected airspace may require approval from the Australian Government’s Department of Infrastructure, Regional Development and Cities (the ‘Department’) in addition to any approvals required under the Environmental Planning and Assessment Act 1979 (NSW). Consent authorities and certifiers are obliged to notify Western Sydney Airport of applications received for development that infringes on protected airspace.

The protected airspace

The protected airspace map for Western Sydney Airport (the ‘protected airspace’) can be found here. The regulation of development that infringes on the protected airspace will affect some land in the following local government areas: Penrith, Blacktown, Fairfield, Liverpool, Campbelltown, Camden, Wollondilly and Blue Mountains.

Consent authorities’ and certifiers’ obligation to notify

Consent authorities and certifiers that receive applications for development that would constitute a ‘controlled activity’  are required to give notice of the application to Western Sydney Airport under reg 8 of the Airports (Protection of Airspace) Regulations 1996 (the ‘Airspace Regulations’). Failure to notify is a strict liability offence under s 186 of the Airports Act 1996 (Cth) (the ‘Airports Act’).

The obligation to notify is imposed on the ‘building authority’. The building authority is defined by reg 3 of the Airspace Regulations to mean the person or body authorised by law to regulate the carrying on of building activity in that place.

Councils and accredited certifiers that receive applications for complying development certificates for commercial and industrial development under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 are also obliged to notify Western Sydney Airport of those applications if they relate to a ‘controlled activity’.

Proponent’s obligation to obtain approval

‘Controlled activities’ must not be carried out without approval of the Secretary to the Department under s 183 of the Airports Act. To do so is an offence. The proponent of the ‘controlled activity’ must apply to the Secretary to the Department for approval under reg 7 of the Airspace Regulations 1996. Applications must first be sent to Western Sydney Airport.

Controlled Activities

  ‘Controlled activities’ are defined in s 182 of the Airports Act 1996 and include:

• constructing a building or other structure that intrudes into the protected airspace;
• altering a building or other structure so as to cause the building or structure to intrude into protected airspace;
• any other activity that causes a thing attached to, or in physical contact with, the ground to intrude into the protected airspace;
• operating a source of artificial light that exceeds the intensity prescribed in the regulations and the light is capable of blinding or confusing pilots;
• operating prescribed plant or a prescribed facility that reflects sunlight that exceeds the intensity prescribed in the regulations and the reflected sunlight is capable of blinding or confusing pilots;
• an activity that results in air turbulence that exceeds the level prescribed in the regulations and the air turbulence is capable of affecting aircraft;
• an activity that results in the emission of smoke, dust or other particulate matter where the emission exceeds the level prescribed by the regulations and the emission is capable of affecting aircraft; 
• an activity that results in the emission of steam or other gas which exceeds the level prescribed by the regulations and the emission is capable of affecting aircraft. 

‘Controlled activities’ do not include ordinary domestic or household activities.

Certain ‘controlled activities’ are exempted from the obligations to obtain approval and to notify Western Sydney Airport by reg 16A of the Airspace Regulations. The exempt controlled activities include:

• a building, structure or thing does not extend above the ground by more than 10 metres and is not carried out after 31 December 2025;
• the activity does not continue for more than 12 months and does not alter a building, structure or thing that is intended to remain in place for longer than 12 months and is not carried out after 31 December 2025; and
• activities covered by the airport plan for Sydney West Airport and carried out before 30 June 2026.

Conclusion

Consent authorities and certifiers have an obligation to notify Western Sydney Airport of proposed development that would intrude on protected airspace or is capable of affecting aircraft operating in protected airspace. Consent authorities and certifiers should also inform applicants of their obligation to consult with Western Sydney Airport and also obtain approval for those proposed developments from the Secretary of the Australian Government’s Department of Infrastructure, Regional Development and Cities.

If you would like to discuss this post please contact Stuart Simington on 02 8235 9704.