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Airports (Protection of Airspace) Regulations 1996

Authoritative Version
  • - F2015C00680
  • In force - Superseded Version
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SR 1996 No. 293 Regulations as amended, taking into account amendments up to Airports Legislation Amendment (2015 Measures No. 1) Regulation 2015
Principal Regulations
Administered by: Infrastructure and Regional Development
Registered 14 Aug 2015
Start Date 25 Jul 2015
End Date 28 Jul 2017
Table of contents.

Airports (Protection of Airspace) Regulations 1996

Statutory Rules No. 293, 1996

made under the

Airports Act 1996

Compilation No. 4

Compilation date:                              25 July 2015

Includes amendments up to:            SLI No. 122, 2015

Registered:                                         14 August 2015

 

About this compilation

This compilation

This is a compilation of the Airports (Protection of Airspace) Regulations 1996 that shows the text of the law as amended and in force on 25 July 2015 (the compilation date).

This compilation was prepared on 28 July 2015.

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on ComLaw (www.comlaw.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on ComLaw for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on ComLaw for the compiled law.

Self‑repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

  

  

  


Contents

1............ Name of regulations............................................................................ 1

2............ Object of Regulations.......................................................................... 1

3............ Meaning of terms................................................................................ 1

4............ Ascertainment of OLS and PANS‑OPS surfaces............................... 2

5............ Declaration as to preservation of airspace........................................... 3

6............ Prescribed airspace.............................................................................. 3

6A......... Level of air turbulence......................................................................... 4

7............ Application for approval to carry out controlled activity..................... 4

8............ Local government body etc to give notice........................................... 5

9............ Intrusion into PANS‑OPS airspace.................................................... 6

10.......... Submissions about intrusion into prescribed airspace......................... 6

11.......... Giving application to Secretary........................................................... 8

12.......... Request for more information............................................................. 8

13.......... Consideration of application................................................................ 8

14.......... Secretary to approve, or refuse to approve, proposal.......................... 9

15.......... Notification of Secretary’s decision.................................................. 10

15A....... Notification of decisions of Secretary’s delegate............................... 12

16.......... Variation of conditions, etc, of approval........................................... 12

17.......... Review of Secretary’s decisions....................................................... 12

18.......... Delegation......................................................................................... 13

Endnotes                                                                                                                                    14

Endnote 1—About the endnotes                                                                            14

Endnote 2—Abbreviation key                                                                                16

Endnote 3—Legislation history                                                                             17

Endnote 4—Amendment history                                                                           18

 


 

 

 

1  Name of regulations

                   These regulations are the Airports (Protection of Airspace) Regulations 1996.

2  Object of Regulations

                   The object of these Regulations is to establish a system for the protection of airspace at, and around, airports in the interests of the safety, efficiency or regularity of existing or future air transport operations into or out of airports.

3  Meaning of terms

             (1)  In these Regulations:

building authority:

                     (a)  for a building activity that is proposed to be carried out on an airport site for which there is an airport lease—means the airport building controller (within the meaning of the Airports (Building Control) Regulations 1996) for the airport site; or

                    (aa)  for a building activity that is proposed to be carried out on an airport site for which there is no airport lease—means the person appointed by the Secretary as the building authority for the airport site for the purposes of this paragraph; or

                     (b)  for a building activity that is proposed to be carried out on a place that is not on an airport site—means the person or body authorised by law to regulate the carrying on of building activity in that place.

CASA means the Civil Aviation Safety Authority.

OLS see regulation 4.

PANS‑OPS airspace means prescribed airspace that is above a PANS‑OPS surface.

PANS‑OPS surface see regulation 4.

proponent of a controlled activity means the person that proposes to carry out the controlled activity.

short‑term controlled activity means a controlled activity:

                     (a)  that is not expected to continue longer than 3 months; or

(b) that consists of the erection of a building, structure or thing that is not intended to remain in place for longer than 3 months.

State includes the Australian Capital Territory and the Northern Territory.

             (2)  An expression used in both these Regulations and Part 12 of the Act has the same meaning in these Regulations as in that Part.

Note:          controlled activity is defined in section 182 of the Act.

             (3)  An expression that is used in both these Regulations and the Airports Regulations has the same meaning in these Regulations as in those Regulations.

Note:          In addition to these Regulations, the Airports (Buildings Control) Regulations, the Civil Aviation Regulations and the Civil Aviation (Buildings Control) Regulations may affect a proposal to build at an airport.

4  Ascertainment of OLS and PANS‑OPS surfaces

             (1)  An OLS for an airport is a surface ascertained in accordance with the procedures in Annex 14 to the Chicago Convention.

             (2)  A PANS‑OPS surface for an airport is a surface ascertained in accordance with the procedures in document number 8168 OPS—611, Procedures for Air Navigation Services, Aircraft Operations, published by the International Civil Aviation Organization on 11 November 1993.

Note:          OLS has customary use as an acronym for Obstacle Limitation Surface. PANS‑OPS is an acronym for Procedures for Air Navigation Systems Operations.

             (3)  In this regulation:

Chicago Convention has the same meaning as in the Air Navigation Act 1920.

5  Declaration as to preservation of airspace

             (1)  The Secretary may declare, in writing, that specified airspace around an airport should, in the interests of the safety, efficiency or regularity of future air transport operations into or out of the airport, be prescribed airspace.

             (2)  In making a declaration under this regulation, the Secretary must have regard to:

                     (a)  if there is a final master plan for the airport—any changes to the OLS and PANS‑OPS surfaces for the airport proposed in the final master plan; and

                     (b)  any advice from CASA on the matter; and

                     (c)  any other matters the Secretary considers relevant.

             (3)  A declaration must specify the lower boundary of the airspace that should be prescribed.

             (4)  A declaration under this regulation must be notified in the Gazette.

6  Prescribed airspace

             (1)  For section 181 of the Act, prescribed airspace for an airport is:

                     (a)  the airspace above any part of either an OLS or a PANS‑OPS surface for the airport; and

                     (b)  airspace declared in a declaration, under regulation 5, relating to the airport.

             (2)  The airport‑operator company for an airport, or, if there is no airport‑operator company for the airport, the Secretary, must make available a chart of prescribed airspace around the airport, for inspection or purchase, and, if the prescribed airspace changes, must bring the chart up to date before the end of 14 days after the change.

             (3)  A notice of the fact that a chart or new chart is available must be published, before the end of 14 days after the chart becomes available, in at least 1 newspaper in general circulation in the State or Territory in which the airport is located.

             (4)  An airport‑operator company or the Secretary complies with subregulation (2) if the company or Secretary makes details of OLS and PANS‑OPS surfaces available in any written form, or in any form from which a written document can be produced (for example, in the form of a computer file).

6A  Level of air turbulence

                   For subparagraph 182(1)(f)(i) of the Act, the level of air turbulence for turbulence caused by an emission from a stack or vent is upward vertical velocity of 4.3 metres per second at the point of emission.

7  Application for approval to carry out controlled activity

             (1)  For section 183 of the Act, the proponent of a proposed controlled activity must obtain the approval of the Secretary.

Note:          Under s 187 of the Act, if a controlled activity is carried out without approval, or is carried out otherwise than in accordance with an approval, the Federal Court may order a person to carry out remedial work on a building, structure or thing; to mark it or light it or both; to reduce its height; or to demolish, dismantle or remove it.

             (2)  An application for the Secretary’s approval must set out:

                     (a)  the proposed controlled activity; and

                     (b)  its proposed location; and

                     (c)  if the proposed controlled activity consists of the erection of a building, structure or thing:

                              (i)  the proposed maximum height (above the Australian Height Datum) of the proposed building, structure or thing; and

                             (ii)  the proposed maximum height (above the Australian Height Datum) of any temporary structure or equipment intended to be used in the erection of the proposed building, structure or thing; and

                     (d)  the purposes of the controlled activity.

Note:          A person who carries out a controlled activity without the approval of the Secretary commits an offence against section 183 of the Act.  That section provides for a penalty of 250 penalty units for each such offence.

             (3)  The proponent must give the application to whichever of the following is applicable for each airport concerned:

                     (a)  if there is an airport‑operator company for the airport—the company;

                     (b)  if there is no airport‑operator company for the airportthe Secretary.

             (4)  The proponent must give the application to the applicable person under subregulation (3) for each airport concerned at least 28 days before the proponent’s intended commencement of the controlled activity.

8  Local government body etc to give notice

                   A building authority that receives a proposal for a building activity that, if undertaken, would constitute a controlled activity in relation to an airport must give notice of the proposal to the airport‑operator company for the airport, or, if there is no airport‑operator company for the airport, to the Secretary.

Note:          A building authority who fails to comply with this regulation commits an offence against section 186 of the Act.  That section provides for a penalty of 50 penalty units for each such offence.

9  Intrusion into PANS‑OPS airspace

             (1)  Subregulation (1A) applies to a proposed controlled activity (other than a short‑term controlled activity) that consists of the erection of a building, structure or thing if:

                     (a)  the building, structure or thing would, if erected, intrude into PANS‑OPS airspace for the airport concerned; or

                     (b)  a thing to be used in erecting the building, structure or thing would, during the erection of the building, structure or thing, intrude into PANS‑OPS airspace for the airport.

          (1A)  If this subregulation applies to a proposed controlled activity, the airport‑operator company for the airport concerned, or, if there is no airport‑operator company for the airport, the Secretary, must give written notice that the building, structure or thing will, if erected, intrude into PANS‑OPS airspace for the airport to:

                     (a)  the proponent of the controlled activity; and

                     (b)  the building authority concerned.

             (2)  The notice must be given before the end of 7 days after the application for approval of the controlled activity is given to the airport‑operator company or Secretary (as the case requires), and must inform the proponent and the building authority that the application cannot be approved.

Note:          see regulation 14.

10  Submissions about intrusion into prescribed airspace

             (1)  Subregulation (2) applies to a proposed controlled activity (other than a short‑term controlled activity) that would (if carried out) intrude into prescribed airspace, unless subregulation 14 (5) prevents an application to carry out the activity being approved.

Note:          Subregulation 14 (5) prevents an application being approved if the proposed controlled activity would, if carried out, result in an intrusion into PANS‑OPS airspace, unless the controlled activity is a short‑term controlled activity and the airport‑operator company (if any) for the airport concerned supports the approval.

             (2)  The airport‑operator company for the airport concerned, or, if there is no airport‑operator company for the airport, the Secretary, must give written notice of the application to carry out the activity to, and invite submissions about the activity from, the following authorities:

                     (a)  CASA;

                     (b)  Airservices Australia;

                     (c)  if the airport is a joint‑user airport—the Department of Defence;

                     (d)  the building authority concerned.

             (3)  Subregulation (4) applies to a proposed short‑term controlled activity that would (if carried out) intrude into prescribed airspace, unless subregulation 14 (5) prevents an application to carry out the activity being approved.

Note:          Subregulation 14 (5) prevents an application being approved if the proposed controlled activity would, if carried out, result in an intrusion into PANS‑OPS airspace, unless the controlled activity is a short‑term controlled activity and the airport‑operator company (if any) for the airport concerned supports the approval.

             (4)  The airport‑operator company for the airport concerned, or, if there is no airport‑operator company for the airport, the Secretary, must give written notice of the application to carry out the activity to, and invite submissions about the activity from, the following authorities:

                     (a)  CASA;

                     (b)  Airservices Australia.

             (5)  If any of the authorities mentioned in subregulation (2) or (4) so requests, the airport‑operator company or the Secretary (as the case requires) must give it a copy of the application.

             (6)  The airport‑operator company or the Secretary (as the case requires) must give the notice before the end of 7 days after receiving the application for approval of the controlled activity.

11  Giving application to Secretary

             (1)  Subregulation (2) applies to an application to carry out a controlled activity in relation to prescribed airspace for an airport for which there is an airport‑operator company if:

                     (a)  the activity is a short‑term controlled activity and an officer or employee of the airport‑operator company for the airport cannot approve the carrying out of the activity as a delegate of the Secretary; or

                     (b)  the activity is not a short‑term controlled activity.

             (2)  The company must refer the application to the Secretary for decision within 21 days after the airport‑operator company receives it.

             (3)  At the time the airport‑operator company refers the application to the Secretary for decision, the company must:

                     (a)  give the Secretary the application, and any submissions made about the proposal in answer to a notice under subregulation 10 (2) or (4); and

                     (b)  tell the proponent in writing that it has given the application to the Secretary for decision.

12  Request for more information

             (1)  The Secretary may ask the proponent of the controlled activity concerned, in writing, to give him or her any other information necessary to consider the application, and need not make a decision about the application until the proponent does so.

             (2)  If an authority mentioned in subregulation 10 (2) or (4) so requests, the Secretary must give it a copy of any information given to the Secretary by the proponent about the proposal.

13  Consideration of application

                   In considering whether to approve a proposal, the Secretary must, in respect of the effect that the controlled activity, if carried out, will have on the efficiency or regularity of existing or future air transport operations into or out of the airport concerned, have regard to:

                     (a)  the opinion of the proponent of the activity; and

                     (b)  the opinion of the airport‑operator company (if any) for the airport; and

                     (c)  any opinion of CASA; and

                     (d)  any opinion of Airservices Australia; and

                     (e)  if the airport concerned is a joint‑user airport—any opinion of the Department of Defence; and

                      (f)  any opinion of the building authority concerned; and

                     (g)  any other matters the Secretary considers relevant.

14  Secretary to approve, or refuse to approve, proposal

             (1)  The Secretary must:

                     (a)  approve a proposal; or

                     (b)  approve the proposal, subject to any conditions the Secretary considers appropriate; or

                     (c)  refuse the proposal.

             (2)  The Secretary must approve a proposal unless carrying out the controlled activity would interfere with the safety, efficiency or regularity of existing or future air transport operations into or out of the airport concerned.

             (3)  The Secretary may approve a proposal subject to a condition only if carrying out the controlled activity otherwise than in accordance with the condition would not be in the interests of the safety, efficiency or regularity of existing or future air transport operations into or out of the airport concerned.

             (4)  A condition of an approval:

                     (a)  may be about how the controlled activity is carried out; or

                     (b)  may require a building, structure or thing to be marked or lit (including marked or lit in a specified way).

Note:          A person who carries out a controlled activity otherwise than in accordance with a condition of an approval commits an offence against section 185 of the Act.  That section provides for a penalty of 250 penalty units for each such offence.

             (5)  If a controlled activity would, if carried out, result in a building, structure or thing intruding into PANS‑OPS airspace, the Secretary may approve a proposal for the activity only if:

                     (a)  the activity is a short‑term controlled activity; and

                     (b)  the airport‑operator company (if any) for the airport concerned supports the approval.

             (6)  Also, the Secretary must not approve a proposal for a controlled activity if CASA has advised the Secretary that carrying out the controlled activity would have an unacceptable effect on the safety of existing or future air transport operations into or out of the airport concerned.

15  Notification of Secretary’s decision

          (1A)  In this regulation:

Secretary does not include an officer or employee of an airport‑operator company who is exercising the Secretary’s powers under a delegation under subregulation 18 (2).

             (1)  The Secretary must give written notice of his or her decision to approve or refuse to approve a proposed controlled activity to:

                     (a)  the proponent of the controlled activity; and

                     (b)  the airport‑operator company (if any) for the airport concerned; and

                     (c)  CASA; and

                     (d)  Airservices Australia; and

                     (e)  if the airport concerned is a joint‑user airport—the Department of Defence; and

                      (f)  the building authority concerned.

       (1AA)  If the application for approval of the activity is given to the Secretary by the proponent of the activity under paragraph 7(3)(b) (regardless of whether the application is also given to the Secretary by an airport‑operator company under regulation 11), the Secretary must give the notice before the end of:

                     (a)  49 days after the Secretary receives the application from the proponent; or

                     (b)  if the Secretary requests further information in relation to the application under regulation 12—28 days after the Secretary receives the further information.

       (1AB)  If the application for approval of the activity is given to the Secretary by one or more airport‑operator companies under regulation 11 (and is not also given to the Secretary by the proponent of the activity under paragraph 7(3)(b)), the Secretary must give the notice before the end of:

                     (a)  either:

                              (i)  if the application concerns only one airport—28 days after the Secretary receives the application from the airport‑operator company for the airport; or

                             (ii)  if the application concerns more than one airport—28 days after the Secretary receives the application from the first of the airport‑operator companies for the airports concerned to give the Secretary the application; or

                     (b)  if the Secretary requests further information in relation to the application under regulation 12—28 days after the Secretary receives the further information.

             (2)  If the Secretary does not give written notice of his or her decision before the end of the period mentioned in subregulation (1AA) or (1AB) (as the case requires), the Secretary is taken to have refused the proposal.

15A  Notification of decisions of Secretary’s delegate

             (1)  This regulation applies to the making of a decision by an officer or employee of an airport‑operator company who is exercising the powers of the Secretary under a delegation under subregulation 18 (2).

             (2)  Before the end of 21 days after the airport‑operator company receives notice of a proposal, or, if further information is requested under regulation 12, after the company receives the further information, the officer or employee must give written notice of his or her decision to:

                     (a)  the proponent of the controlled activity; and

                     (b)  CASA; and

                     (c)  Airservices Australia.

             (3)  If the officer or employee does not give written notice of his or her decision before the end of the period mentioned in subregulation (2), he or she is taken to have refused the proposal.

16  Variation of conditions, etc, of approval

                   The Secretary may:

                     (a)  revoke an approval; or

                     (b)  impose a condition on, or vary a condition of, an approval;

                 if he or she is satisfied that doing so is necessary in the interests of the safety, efficiency or regularity of existing or future air transport operations into or out of the airport concerned.

17  Review of Secretary’s decisions

             (1)  Subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for review of a decision of the Secretary to make a declaration under regulation 5.

             (2)  Subject to the Administrative Appeals Tribunal Act 1975, application for review of a decision of the Secretary under regulation 14 or 16 may be made to the Administrative Appeals Tribunal by:

                     (a)  the proponent; or

                     (b)  the airport‑operator company (if any) for the airport concerned; or

                     (c)  the building authority concerned.

18  Delegation

             (1)  The Secretary may delegate his or her powers under these regulations to:

                     (a)  an officer of the Senior Executive Service (within the meaning of the Public Service Act 1922) performing duty in the Department; or

                     (b)  an officer performing duties in the Department classified as Executive Level 2 (within the meaning of the instrument made under section 28 of the Public Service Act 1922 on 9 October 1997) or an equivalent classification.

             (2)  Also, the Secretary may delegate his or her powers in relation to short‑term controlled activities at a particular airport to an officer or employee of the airport‑operator company for the airport.


Endnotes

Endnote 1—About the endnotes

The endnotes provide information about this compilation and the compiled law.

The following endnotes are included in every compilation:

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Endnotes about misdescribed amendments and other matters are included in a compilation only as necessary.

Abbreviation key—Endnote 2

The abbreviation key sets out abbreviations that may be used in the endnotes.

Legislation history and amendment history—Endnotes 3 and 4

Amending laws are annotated in the legislation history and amendment history.

The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.

The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.

Misdescribed amendments

A misdescribed amendment is an amendment that does not accurately describe the amendment to be made. If, despite the misdescription, the amendment can be given effect as intended, the amendment is incorporated into the compiled law and the abbreviation “(md)” added to the details of the amendment included in the amendment history.

If a misdescribed amendment cannot be given effect as intended, the abbreviation “(md not incorp)” is added to the details of the amendment included in the amendment history.

 

Endnote 2—Abbreviation key

 

A = Act

o = order(s)

ad = added or inserted

Ord = Ordinance

am = amended

orig = original

amdt = amendment

par = paragraph(s)/subparagraph(s)

c = clause(s)

    /sub‑subparagraph(s)

C[x] = Compilation No. x

pres = present

Ch = Chapter(s)

prev = previous

def = definition(s)

(prev…) = previously

Dict = Dictionary

Pt = Part(s)

disallowed = disallowed by Parliament

r = regulation(s)/rule(s)

Div = Division(s)

Reg = Regulation/Regulations

exp = expires/expired or ceases/ceased to have

reloc = relocated

    effect

renum = renumbered

F = Federal Register of Legislative Instruments

rep = repealed

gaz = gazette

rs = repealed and substituted

LI = Legislative Instrument

s = section(s)/subsection(s)

LIA = Legislative Instruments Act 2003

Sch = Schedule(s)

(md) = misdescribed amendment can be given

Sdiv = Subdivision(s)

    effect

SLI = Select Legislative Instrument

(md not incorp) = misdescribed amendment

SR = Statutory Rules

    cannot be given effect

Sub‑Ch = Sub‑Chapter(s)

mod = modified/modification

SubPt = Subpart(s)

No. = Number(s)

underlining = whole or part not

 

    commenced or to be commenced

 

Endnote 3—Legislation history

 

Number and year

FRLI registration or gazettal

Commencement

Application, saving and transitional provisions

1996 No. 293

12 Dec 1996

12 Dec 1996

 

1999 No. 113

17 June 1999

17 June 1999 (r 2)

2001 No. 55

29 Mar 2001

29 Mar 2001 (r 2)

2002 No. 13

21 Feb 2002

Sch 9: 21 Feb 2002 (r 2)

122, 2015

24 July 2015 (F2015L01175)

Sch 1 (items 1–28): 25 July 2015 (s 2(1) item 1)

Endnote 4—Amendment history

 

Provision affected

How affected

r 1........................................

rs 1999 No 113

r 3........................................

am 1999 No 113; No 122, 2015

r 5........................................

am No 122, 2015

r 6........................................

am 1999 No 113; No 122, 2015

r 6A......................................

ad 2001 No 55

 

am No 122, 2015

r 7........................................

am 1999 No 113; 2002 No 13; No 122, 2015

r 8........................................

am 1999 No 113; 2002 No 13; No 122, 2015

r 9........................................

am 1999 No 113; No 122, 2015

r 10......................................

rs 1999 No 113

 

am No 122, 2015

r 11......................................

rs 1999 No 113

 

am No 122, 2015

r 12......................................

rs 1999 No 113

r 13......................................

am 1999 No 113; No 122, 2015

r 14......................................

am 1999 No 113; 2002 No 13; No 122, 2015

r 15......................................

am 1999 No 113; No 122, 2015

r 15A....................................

ad 1999 No 113

 

am No 122, 2015

r 17......................................

am 1999 No 113; No 122, 2015

r 18......................................

ad 1999 No 113