AVIEX Pty Limited and Civil Aviation Safety Authority
[2002] AATA 327
•10 May 2002
DECISION AND REASONS FOR DECISION [2002] AATA 327
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/1572
GENERAL ADMINISTRATIVE DIVISION )
Re AVIEX Pty Limited
Applicant
And Civil Aviation Safety Authority
Respondent
DECISION
Tribunal Mr R P Handley
Date10 May 2002
PlaceSydney
Decision The Tribunal affirms the decision under review.
..............................................
R P Handley
Deputy President
CATCHWORDS
CIVIL AVIATION SAFETY AUTHORITY – Air display – acrobatic flight – safety assessment – air safety regulations controlling flying under specific heights – safety concerns to spectators held to be paramount – decision not to permit the air display is affirmed.
Civil Aviation Act 1988 ss 8, 9, 9(1), 9A, 31, 31(3)(4)
Civil Aviation Orders 1988
Civil Aviation Regulations 1988
AVIEX Pty Limited and CASA [1998] AATA 916
Robertson and CASA [1999] AATA 608
REASONS FOR DECISION
10 May 2002 Mr R P Handley
This is an application by AVIEX Pty Ltd ("AVIEX") for a review of the decision of a delegate of the Civil Aviation Safety Authority ("CASA") made on 10 September 2001 to refuse an application for approval to conduct an air display at Illawarra Regional Airport at Albion Park ("the Airport") on 16 and 17 November 2002. At the hearing, AVIEX was represented by its Air Display Director, John Robertson, and CASA was represented by Brett Shields, of Counsel. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the T Documents"), together with the documents tendered by the parties. Oral evidence was given by Mr Robertson and by Peter Cannell.
BACKGROUNDOn 25 January 2001, AVIEX lodged an application for approval to conduct an air display at the Airport at Albion Park on 16 and 17 November 2002. By letter dated 14 February 2001, Peter Cannell, Flying Operations Inspector, Sydney Basin Area, responded to AVIEX with "initial observations" about the application, but stating that the application could not be processed until further details were supplied. By letter dated 23 February 2001, the CASA delegate, Bruce Graham, Team Leader Flying Operations, wrote to AVIEX notifying it of his refusal of the application. Following further correspondence between AVIEX and CASA, a meeting was held between the parties on 9 April 2001. AVIEX then requested a review of Mr Graham's decision which was conducted by Ian Ogilvie, General Manager, General Aviation Operations Branch, who on 13 July 2001 notified AVIEX that he was not prepared to overturn Mr Graham's decision. Following some further correspondence, on 7 August 2001, AVIEX lodged a further application with CASA for approval to conduct an air display at the Airport on 16 and 17 November 2002.
Following an assessment of the revised application, on 10 September 2001 Mr Ogilvie wrote to Mr Robertson at AVIEX informing him that the three key points raised in his letter dated 13 July 2001 remained of concern and that his resolve on all of the issues presented by AVIEX remained unchanged. There then followed further correspondence between the parties and a meeting at the Airport on 19 October 2001.
On 15 October 2001, AVIEX lodged an application for a review of the decision of 10 September 2001 by the Tribunal. As required by s 37(1)(a) of the Administrative Appeals TribunalAct 1975, CASA provided a Statement of Reasons for its decision on 14 December 2001. The relevant paragraphs of that statement are as follows:
3. The application specified the air display had the following features:
It was to be located at Illawarra Regional airport and conducted on 16 and 17 November 2002 between 12 noon and 4 pm;
The maximum radius of the display was 3 kilometres;
An estimated 40,000 spectators would attend over the two days of the air display;
The application attached a map which detailed the location of the manoeuvring zone, display axis and the display area for the air display;
A manoeuvring zone is an area detailed immediately north of the display zone;
The display axis is located parallel west to runway 16/34 (the application did not specify by how much, but an email from John Robertson dated 16 September 2001 specifies it is located 100 meters west of the runway centreline);
The display zone is an area west of the display axis.4.The display zone is a defined section of airspace within which the air display activities must be confined, and which includes the display axis. Participating aircraft perform relative to a line known as the display axis.
5.Residential and commercial premises in Poplar Avenue, Croome Street and residential areas adjacent to Tongarra Road (south of the airport), in Albion Park are all located within the display zone.
6.Paragraph 4.2 of s 29.4 of the Civil Aviation Orders (the Order) provides that:
(1)Except during take-off and landing, or where specifically approved as part of the programme of events, the minimum height at which any aircraft may operate shall be 500 feet above ground level.
(2) An aircraft in flight below 1500 feet above ground level shall not -
(a)track or manoeuvre towards spectators within a horizontal distance of 500 metres; or
(b) pass within 200 metres horizontal distance from spectators.
7.I regard persons in residential premises in the areas detailed in paragraph 5 as spectators for the purposes of paragraph 4.2(2)(b) of the Order. On this basis, to approve the air display would permit aircraft to pass within 200 metres horizontal distance from spectators, which is prohibited by the Order.
8.As noted above, the maximum radius of the display was specified to be 3 kilometres around the display axis. In that area there is a substantial number of residential premises, recreational areas and major roads. This is inconsistent with regulation 262AM(10) of the Civil Aviation Regulations 1988, which provides that limited category aircraft "must not be operated over the built-up area of a city or town." There are also obstacles to the south of the airport
RELEVANT LAW
CASA is a body established by s 8 of the Civil Aviation Act 1988 ("the Act"). CASA's functions are set out in s 9 of the Act. Subsection 9(1) provides that CASA has the function of conducting the safety regulation of civil air operations in Australian territory by means including the issuing of permits. Section 9A states:
(1) In exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration.
(2)Subject to subsection (1), CASA must exercise its powers and perform its functions in a manner that ensures that, as far as practicable, the environment is protected from:
(a) the effects of the operation and use of aircraft; and
(b) the effects associated with the operation and use of aircraft.Section 31 of the Act empowers the Tribunal to review decisions made under the Act or the regulations, including the refusal of a permit. Subsection 31(3) provides that where a written notice of a reviewable decision is given to a person, the notice shall include a statement that an application may be made to the Tribunal, by or on behalf of any person whose interests are affected by the decision, for review of the decision. Subsection 31(4) states that failure to comply with this requirement does not affect the validity of the decision.
The Civil Aviation Regulations 1988 state:
155 Acrobatic flight
(1)…
(2)…(3) Except with the permission in writing of CASA, a person shall not engage in acrobatic flight in an aircraft:
(a)at a height lower than 3,000 feet above the highest point of the terrain, or any obstacle thereon, within a radius of 600 metres of a line extending vertically below the aircraft; or
(b)over a city, town, populous area, regatta, race meeting or meeting for public games or sports.
…
156 Flying over public gatherings
(1)Except with the permission, in writing, of CASA and in accordance with the conditions specified in the permit, an aircraft shall not be flown over any regatta, race meeting or public gathering.
157 Low Flying
(1) An aircraft must not fly over:
(a) any city, town or populous area, at a height lower than 1000 feet; or
(b) any other area at a height lower than 500 feet.…
The Civil Aviation Orders regulate the conduct of air displays. Section 29.2 provides that "an air display shall not be conducted without the written approval of CASA". Section 29.4.1 sets out the general conditions to which an air display shall be subject. The conditions include CASA's approval of appropriate emergency rescue and first aid facilities (29.4.1(c)), and requirements that:
(d) the air display shall be held at a location approved by CASA;
(e) the programme of events shall be approved by CASA;…
Section 29.4.2 states as follows:
4.2 Manoeuvring limitations
(1)Except during take-off and landing, or where specifically approved as part of the programme of events, the minimum height at which any aircraft may operate shall be 500 feet above ground level.
(2) An aircraft in flight below 1500 feet above ground level shall not –
(a)track or manoeuvre towards spectators within a horizontal distance of 500 metres; or
(b)pass within 200 metres horizontal distance from spectators.
There is no dispute that the Tribunal has jurisdiction to review a decision under the Civil Aviation Regulations refusing a permit for an air display to be held and, clearly, the organisers will require appropriate permission under Regulations 155 and 156.
EVIDENCE
John RobertsonMr Robertson said he has been the Air Display Director of AVIEX since 1998. In his statement signed on 27 February 2002 (A1), Mr Robertson stated:
My principal activity should be organizing and mounting good air displays as an integral part of the biennial AVIEX General Aviation Exhibitions. In practice most of my time is taken up with a struggle to secure fair dinkum treatment of our air display applications by the officials of CASA's GA division, in particular, those in the Bankstown office. I find that their behaviour towards AVIEX has been dilatory, incompetent, unconscionable, not in good faith and very damaging to persons within AVIEX Pty Ltd…
I am confident that the proposed AVIEX 2002 Air Display at YWOL will be "safe" as that word is commonly understood in aviation. I am confident that it will be much safer than the level of safety actually attained by CASA's GA division in the course of its regulatory activities…I am convinced that the evidence in this case shows that there is something deeply wrong with the entire GA division of CASA. I hold that its sustained abuse of AVIEX and its repeated breaches of its own Act in this context is a disgrace. I also hold that from the public policy standpoint its performance in its principal duty of reducing death from air accidents is abysmal. This is true whether one makes a comparison with GA in the USA or with other transport modes in Australia. I could make many other comparisons to illustrate the same point.
I have no doubt whatsoever that AVIEX is entitled to and thoroughly merits an air display permission at YWOL similar to those granted to others in previous years; in particular to that granted by the instrument BK002SPA on 24 March 1994…"Mr Robertson invited the Tribunal to consider the permission granted for the 1994 Air Display at the Airport which took two days from the time of the provision of information on the application to the time that CASA gave approval. He contended that there is a gross lack of consistency in the various reasons given by CASA for refusing permission for the proposed 2002 air display. He suggested that the decision-maker lacked the appropriate qualifications with respect to aerobatics to enable him to make a decision. Mr Robertson drew attention to the fact that CASA had failed to comply with s 31(3) of the Act in that the notice of the decision provided to AVIEX had not included a statement that an application might be made to the Tribunal for a review of the decision.
In his written statement of facts and contentions dated 1 March 2002, Mr Robertson stated that AVIEX "is in the business of running International General Aviation Exhibitions and Air Displays within the Sydney basin". AVIEX runs one such event in mid-November of each even year. The two previous events have been held at Bankstown Airport. For 2002 and beyond, AVIEX decided to move from Bankstown because of the impending change of ownership of the airport, impending use of the airport by regional airlines and impending other uses incompatible with an AVIEX event. AVIEX chose the Illawarra Regional Airport at Albion Park as an alternative venue because it met all AVIEX's requirements. The Airport is owned by Shellharbour Council who strongly support AVIEX's events and are able to guarantee AVIEX long term use of the airport. A special advantage of the Airport is that BHP, Port Kembla, is ready to sponsor the provision of a purpose-built exhibition hall, together with the upgrading of runways, in return for naming rights. The facilities will be used by AVIEX in conjunction with the Historical Aircraft Restoration Society which intends to make the Airport its headquarters in Australia.
Mr Robertson said the air display proposed by AVIEX is similar in nature and scope to those held there previously. The circumstances of the Airport, including developments adjacent to it, have not changed since previous displays and neither have the rules governing air displays. He said that in CASA's statement of facts and contentions, it is stated there is an obstacle approximately 2.4 kilometres from the south end of Runway 16/34. The correct distance is in fact 3.3 kilometres and the obstacle is a hill on which Air Services Australia has placed a small warning light. Mr Robertson said that the Airport is remarkably well served in case of an emergency. There are two Fire/Rescue Stations at the Airport, and there is a comprehensive emergency plan for the Airport's operations with which the AVIEX air display emergency procedures are dove-tailed.
Mr Robertson said that most accidents involving aircraft take place on take off and landing. This accounts for about 65% of all accidents, while 34.87% occur during other phases. Air displays account for only 0.1% of accidents. Mr Robertson said the three members of the AVIEX Air Display Team are unanimously confident that a safe air display, as proposed in the application can be held at the Airport. Safety is AVIEX's principal concern in organising air shows.
Mr Robertson said AVIEX has produced a document entitled "AVIEX Experience of CASA" which is included in the T Documents (T pp30 - 36This document:
Shows a record of bad faith, bias, delay, discrimination and incompetence extending over year's by CASA's GA officials towards AVIEX. It also shows that AVIEX enjoys very happy relations with CASA when we have the opportunity to deal with competent officers who act in good faith.
In cross-examination, Mr Robertson was referred to a photographic map of the Airport (R2). He said that no spectators or members of the public would be allowed inside the zone marked by a white line on the map, shown 200 metres each side of the centre line of the main runway. He agreed that some residential and commercial premises are situated within that 200 metre zone and a small section of the Princes Highway and the Illawarra Highway are also included. He also agreed that a displacement of the proposed access by 100 metres to the west would have the effect of including some other residential and commercial premises within the zone, and although this would have the effect of excluding the Princes Highway from the zone, it would increase the exposure of the Illawarra Highway within the zone. Mr Robertson acknowledged that there is always some risk to the public and, in this case, would include some risk to those in cars on the highways. He said "there is never no risk" but most accidents occur on take off and landing and not in aerobatics. Nevertheless, Mr Robertson acknowledged that it is not possible to totally exclude the possibility of injury to the public if a crash occurs during the course of aerobatics, as is the case in any air display.
Mr Robertson said the proposed air display would include some ex-military aircraft, including jets which are classified as "Limited Category Aircraft" in respect of which there are restrictions on use under the Civil Aviation Regulations. A permit index categorises aircraft from "0 to 3": in respect of a permit index 0 aircraft, no area or route restrictions are applicable; in respect of a permit index 1 aircraft, there are some restrictions over built-up areas of a city or town; in respect of permit index 2 and 3 aircraft, increasingly significant restrictions apply on where the aircraft can fly. These restrictions are set out in a CASA "Advisory Circular" dated April 1999 (R1). Attachment 3 to the Circular sets out the permit index accorded to particular aircraft. Restrictions may be placed on an aircraft because it has been brought in from overseas and because the maintenance and history of the aircraft is uncertain.
Mr Robertson said a number of the aircraft proposed for the air display are permit index 2 and 3 aircraft. He referred the Tribunal to the Regulations on Limited Category Aircraft. In particular, Regulation 262AM(10) provides that such an aircraft must not be operated over built-up areas of a city or town unless the aircraft has been assigned a permit index of 0, or in the case of permit index 2 or 3 aircraft, CASA or an authorised person has approved the aircraft doing so. Regulation 262AM(11) requires that CASA or the authorised person giving an approval in respect of a permit index 2 or 3 aircraft "must take into account the aircraft's permit index and anything else CASA or the authorised person considers relevant for the safety of other airspace users and persons on the ground or water." Thus, Mr Robertson said the aircraft proposed to be used in the proposed air display cannot be operated over a built-up area of a city or town without approval. He claimed that a campaign is being conducted by CASA to frustrated AVIEX's business. While acknowledging that the public in the area of the proposed air display would be subject to some risk, he said there is always some risk involved in such activities because absolute safety is not attainable. However, the risks involved in air displays are very small by comparison even with the risks involved in an aircraft taking off and landing which is when most accidents occur.
Mr Robertson was referred to a large aerial photograph of the area (R3) and to a map of the Airport and the surrounding area (R4) on which an area three nautical miles from the airport, an area three nautical miles from the runway threshold, and an area five nautical miles from the intersections of the runways was marked. Mr Robertson was then asked about the use of Limited Category Aircraft in such an area. He said these aircraft are given a special certificate of airworthiness in accordance with Regulation 262AM(1) and (2). Many of these historic aircraft are presently located at Bankstown Airport. There will be no problem in flying Limited Category Aircraft in and out of the Illawarra Regional Airport. The Regulations are more concerned with flying over populous areas. Mr Robertson said the reason it is vital to protect the spectators at an air display is that they are a highly concentrated body of people close to aircraft in flight who have zero protection and little ability to move aside if there is a mishap. Crowd densities at an air display typically exceed 2,000 per 1,000 square metres and the crowd line can extend continuously for 1,000 metres or more. For these reasons, if there is a mishap at an air display the degree of risk and potential ill consequences of that risk are of a much greater magnitude for spectators at the air display than casual on-lookers or other third parties who may be in the vicinity. In the case of the Illawarra Regional Airport, there would be no special risk to members of the public who might be in the vicinity of the Airport at the time of the proposed air display.
Peter Cannell
Mr Cannell, who is the Flying Operations Inspector with the Sydney Basin Area Office at Bankstown, confirmed that his Statement dated 7 February 2002 (R6) is true and correct. He was the Assessing Officer for the proposed air display at the Airport and may have drafted one letter for the decision-maker in this matter. Other letters may have been drafted on Mr Cannell's advice. He said that he could not recall having advised on Mr Graham's letter to Mr Corben at AVIEX dated 23 February 2001 (T6). Mr Cannell said he did not look at CASA's files relating to the previous air displays held at the Airport. He acknowledged that he has never been an aerobatic display pilot but said he performed aerobatics as part of his career as a pilot in the Royal Australian Navy.
Mr Cannell was asked about the proposed display access and the information and charts normally provided with an application for approval of an air display. He said the chart provided by AVIEX with their application (T p 49) is much less detailed than that normally provided. In his statement, Mr Cannell said the Applicant has provided no information as to whether it proposes to mark the display access. If not marked, pilots will have difficulty in ensuring that they do not stray from the display access towards spectators. He said the main problem with the proposed display access is that it is situated directly above residential and commercial premises in Croome Lane and Tongarra Road, Albion Park. By permitting aerobatic manoeuvres of aircraft at low height directly above such premises, persons and property will be exposed to a high risk activity. Moreover, aircraft in flight below 1500 feet above ground level will track or manoeuvre within a horizontal distance of 500 metres or pass within 200 metres horizontal distance from persons in residential and commercial premises in Croome Lane and Tongarra Road, from persons and residential areas in Albion Park Rail and persons in motor vehicles on the Illawarra Highway and Tongarra Road.
Mr Cannell agreed that the accidents that do occur often occur on take off and landing, and that there is some risk associated with circuits that may be required for this. However, he said that the intensity of flying at an air display would be much greater than the ordinary use of the Airport and thus the risk is greater.
In his statement, Mr Cannell said that he did not consider the proposed "manoeuvring area" to the north of the proposed display zone to be sufficient to encompass all the proposed aircraft types and aerobatic manoeuvres. He stated in paragraph 23:
If display aircraft cannot maintain their operations within the manoeuvring zone, non-compliance with any air display conditions and the Civil Aviation Regulations is likely. Accordingly, I believe there is a high risk of aircraft flying outside the display and manoeuvring zone below 1000 feet (refer Regulation 157).
With regard to obstacles around the Airport, Mr Cannell acknowledged that the hill 426 feet above sea level to the south of the end of Runway 16/34 was at a distance of approximately 3.3 kilometres and not 2.4 kilometres as stated in paragraph 24 of his statement. He said this hill is integral in a line of hills, being obstacles 600 feet above sea level which require consideration by pilots of aircraft departing from Runway 16 to the south or landing on the reciprocal Runway 34 and manoeuvring for the proposed air display routines in general. The Visual Terminal Chart for the area also shows high terrain between 500 feet and 1000 feet within three nautical miles of the airport, that the boundaries of the display zone and manoeuvring zone are very close to residential areas in Albion Park, and that the northern and southern boundaries of the display zone are also adjacent to the Illawarra Highway and Tongarra Road.
In his statement, Mr Cannell also expressed concern about the inclusion of the Strikemaster aircraft in the proposed display which, in the event of an engine failure on an approach or on departure from the Airport, would not be able to clear populous areas, especially if involved in aerobatics. Finally, with regard to emergency rescue and first aid facilities, Mr Cannell noted that the application, while describing the location of ambulance and police at the Airport, did not provide any further information about what first aid facilities would be available. Moreover, because it could be expected that a large number of spectators would attend on each day of the air display and as there is already congested and heavy traffic on the Princes Highway during weekends, Mr Cannell doubted whether fast movement of injured spectators to hospital facilities would be possible.
SUBMISSIONSMr Shields, for CASA, said the fact that CASA had previously approved an air display at this location was not relevant to the decision under review. AVIEX has also argued that CASA's interpretation of the rules contradicts the intention of Parliament and that CASA's officers have a history of discriminating against AVIEX. Mr Shields said those issues are not relevant in so far as the Tribunal stands in the shoes of the original decision-maker and, should address itself to the principal issue which is one of safety. He said Mr Cannell's statement (R6) sets out the concerns held by CASA which led to the decision to refuse the application being made. He stated Mr Cannell is a very experienced officer who identified these areas of concern and non-compliance and referred them to his superiors. Mr Shields said that residential and commercial properties fall within the exclusion zone around the display access as do major arterial roads. He submitted that the risk to public safety is manifest. evident.
With regard to communications between CASA's officers and AVIEX, Mr Shields referred the Tribunal to Mr Cannell's letter to Mr Corben of AVIEX dated 14 February 2001 (T4), in which Mr Cannell identified the problems he foresaw and concluded by stating that he looked forward "to assisting AVIEX Pty Ltd achieve a safe and workable result". There was also a meeting between Mr Robertson and Bruce Graham, Team Leader Flying Operations, and Jim Marcolin, Sydney Basin Area Manager, at which some facets of the proposed event were discussed (T5). Mr Shields said CASA has always tried to deal with AVIEX and has pointed out problems with their application and given them the opportunity to address those problems. By contrast, AVIEX have not addressed the serious concerns raised by CASA, as is apparent from Mr Robertson's email reply to Mr Graham dated 23 February 2001 (T7). For example, in the AVIEX letter dated 15 March 2001 (T8), a lot of statistical information is introduced which Mr Shields submitted is neither relevant nor helpful. The fact that something has not happened in an air display before does not mean that something could not happen in such an air display. Similarly, comparisons with other air displays are not relevant, given that the application for each air display is assessed on the basis of the information provided at the time.
Mr Shields referred the Tribunal to CASA's letter to AVIEX dated 27 March 2001 (T9). In this letter, Mr Graham sought to respond to the issues raised by AVIEX point by point. Mr Shields said that displacing the proposed display axis for the air display would not significantly reduce the risk profile.
AVIEX's letter dated 8 June 2001 (T11) makes allegations of "hostile, unfair and discriminatory treatment" by CASA. Mr Shields said the attachment to that letter contains all sorts of assertions about the behaviour of CASA's officers. CASA's letter dated 13 July 2001 addressed to AVIEX (T13), identifies the key points including the need for a safety buffer. In an email response to this letter dated 23 July 2001 (T14), Mr Robertson takes issue with the meaning of the word "spectators" in a way which suggests that AVIEX is seeking to ignore the safety interests of other members of the public not actually attending the proposed air display.
With regard to Regulation 262AM and the operation of Limited Category Aircraft, Mr Shields said that it must be remembered that it is proposed that these aircraft will undertake aerobatics in the display and the operation of particular aircraft in that regard must therefore be considered.
With regard to the proposed displacement of the original display axis suggested by AVIEX in order to address some of the concerns raised by CASA, Mr Shields referred to CASA's notes on this (T17), and the concern expressed there that while increasing the distance of the display axis from eastern spectator areas, it would bring the axis closer to the built-up area on the western side of the runway and would do little to minimise the exposure to vehicular traffic on either the Illawarra Highway or the Princes Highway. Indeed, the closeness of the highways would have the potential to distract drivers as well as pilots. With regard to discussion of who should be considered "spectators", the CASA notes conclude that for the purposes of the legislation, "spectators" should include all who may reasonably be expected to be on-lookers whether physically within an organised designated spectator area or those observing the air display from elsewhere if reasonably expected to do so.
The CASA notes conclude with the following comment on risk:
In view of the types of military and other civil and aerobatic aircraft types involved, including limited category aircraft types (which under CAR 262AM subpara (10) are not permitted to overfly populous areas), obstacles immediately south of Albion Park Airport and the confined nature of the area surrounding the airfield, the closeness of Albion Park Airfield to populous areas cannot be discounted because the risk of injury to people and the risk of damage to property is real. Likewise, noise will disturb residents, pets and stock and motorists on busy roads such as the Princes Highway and the Illawarra Highway which are very close to the airfield, will be distracted with associated risk of accident. Spread of wreckage over a built up or populous area following a catastrophic collision or in-flight breakup carries risk during acrobatic events as evidenced from many air displays overseas. Risk is assessed to be excessive.
Mr Shields said that the problems associated with AVIEX's proposal suggest that the Airport is not appropriate as a venue for such an air display because it has not been possible to address the concerns raised by CASA. A long process of consultation was undertaken involving exchange of correspondence and meetings, with serious consideration being given to AVIEX's proposal. Ultimately, however, the conclusion reached by CASA on each occasion was that the level of risk was unacceptable.
Mr Shields referred the Tribunal to CASA's decision letter dated 10 September 2001 (T20), and the email response from Mr Robertson dated 16 September 2001. Mr Shields expressed surprise that Mr Robertson should assert that the distance of the proposed display axis from residential and commercial areas was not crucial. Mr Shields noted that Mr Robertson does not appear to have taken CASA's concern seriously when he suggests that householders in the affected area are "quite ready to undertake that their property will be vacant during the two afternoons", and that the "bikies' clubhouse" is unlikely to be occupied at that time in the afternoon at the weekend. Mr Shields noted that a further meeting took place at Albion Park between representatives of the parties on 19 October 2001 (T24).
In conclusion, Mr Shields said the safety of people on the ground has remained CASA's paramount consideration. This was raised from the start and has never been fully addressed by AVIEX to CASA's satisfaction. The outcome suggests that these concerns will never be adequately addressed because the venue is not appropriate.
ApplicantMr Robertson, for AVIEX, noted there has been no challenge by the Respondent to AVIEX's witness statements. He noted that Captain William Hamilton's statement (A2) includes an impressive curriculum vitae, setting out his qualifications and extensive experience as a pilot. Captain Hamilton states, at paragraph 34:
A full and proper understanding of the regulations for the imposition of operational restrictions on Experimental or Limited Cat. aircraft would not preclude any Limited Cat. aircraft conducting a flying display at Wollongong/Albion Park Airport.
At paragraph 48, he states:
CAR 262 AM does not generally prohibit the flight of Index 2 and 3 aircraft over built-up areas of towns or cities, only that each aircraft must operate in accordance with any limitation noted in the Annex to the aircraft's Special Certificate of Airworthiness, or other relevant approval, in so doing.
Captain Hamilton notes, at paragraph 54 to 55, that he is very familiar with Wollongong/Albion Park and the surrounding areas, having flown in and out of this airfield for almost 40 years. He states, at paragraph 56, that "there is nothing in the vicinity of this airfield to preclude the safe and effective display of a Cat 2 or 3 aircraft". He also states at, paragraph 58, that "the escarpment generally to the west of the airfield is not an obstacle to a display, and has not been an issue in any previous display at this airfield".
Mr Robertson said that AVIEX submits that CASA's requirements are impossible to meet anywhere for any proposed air show. Such requirements were not applied in respect of previous air shows. Mr Robertson said that accident statistics are the life blood of air safety and are to be preferred to impressions or assertions unsupported by fact. He said the risk from air displays is minimal, representing about one accident in 750. Records worldwide show no injuries arising from air displays other than to pilots and to spectators on site. The greatest risk is to spectators on site because of the denseness of the crowd.
He said residents alongside the Airport are aware of the risks to which they are subject and can chose to go elsewhere while the air display is being held. Air displays are not profoundly dangerous. The nature of air displays is that they attract a lot of media attention and accidents are therefore likely to be photographed dramatically. Mr Robertson said it is impossible for AVIEX to meet unreasonable criteria. No flying can be absolutely safe but flying is much safer than many other activities. The question which must be asked is whether the risk associated with an air display is commensurate with a degree of risk generally acceptable within the community. AVIEX says the risk in respect of the proposed air display is a reasonable one and AVIEX's application should receive the necessary permit from CASA. Mr Robertson noted that previous air displays have been held at the same location. They have been held safely, without complaints being made, including in respect of any emergency services. He noted that the proposed air display has received local support including from Shellharbour Council.
Mr Robertson pointed to concerns about how CASA operates, expressed by both Captain Hamilton and himself and reflected in an article in CASA's own journal, "Flight Safety Australia", in January – February 2002 (A4). This article reports on the findings of a survey of pilots and others involved in the industry and suggests concerns at the lack of consistency in the way in which CASA operates. Mr Robertson noted that there have been at least three previous air displays at the Airport and, it therefore follows that the three previous CASA assessors must have considered the venue suitable for conducting an air display. Mr Robertson expressed doubts at Mr Cannell's ability based on his inability to make the requisite calculations.
Mr Robertson also suggested that the Tribunal should not attribute any weight to the letter dated 14 February 2002 from R Ekinci of Red Barrons Air Combat Australia (R5) stating that in his professional opinion "Wollongong is not suitable for jet displays due to the high energy and low level requirements of the jet aircraft coupled with the 1800 to 2000 foot hills both to the west and south of the airfield". Mr Robertson noted that the Red Barrons had been fined $3,000 last year for breach of the regulations. By contrast, Mr Robertson submitted that the AVIEX team has an excellent record in terms of credibility. Two of his colleagues have been invited to Thailand to run their air show. AVIEX takes seriously their responsibility for ensuring the safety of their air displays.
With regard to aerobatic pilots, Mr Robertson noted that these pilots go through a series of tests which, if passed, permit them to fly at different altitudes. He also noted that some of the aircraft proposed to be used, including the Warbirds, have a special category of certification recognising that the older design engines with which these aircraft are fitted have a shorter life-span and thus the risk of engine failure is considerably greater.
In conclusion, Mr Robertson submitted that the decision under review should be set aside and the matter should be remitted to CASA with a direction to grant an approval of the same kind as that granted for previous air displays at the Airport. He also asked that the Tribunal draw attention to CASA's failure to notify those persons affected by a decision of their right to make an application to the Tribunal for a review of that decision, as required by s 31(3) of the Act.
CONSIDERATIONS OF THE LAW AND FINDINGSThe Parties have proceeded upon the basis that AVIEX sought written permission from CASA in respect of the application of Regulations 155, 156 and 157. The Tribunal notes that Regulation 157 addresses low flying, which is prohibited below specific heights subject to certain exceptions. There is no provision under the terms of Regulation 157 for the granting of any permission.
Regulation 155 addressed acrobatic flight and provides for CASA to grant permission for a person to engage in such flight subject to certain limitations. An air display of the kind proposed by AVIEX would obviously involve acrobatic flight and therefore require the written permission of CASA under this regulation.
Regulation 156 addresses flying over public gatherings, which can only be undertaken with CASA's written permission. Again, the air display proposed by AVIEX would clearly involve flying over a public gathering of spectators gathered to view acrobatics.
The Tribunal notes that s 9A(1) of the Act requires that "in exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration". As noted by Deputy President McMahon in AVIEX Pty Limited and CASA [1998] AATA 916 at paragraph 8:
The obvious purpose or intent of that regulation is to protect the people in the city, town, populous area or regatta, race meeting or meeting for public games or sports. It is not to protect the person who engages in acrobatic flight.
Similarly, the intent of Regulation 156 appears to be the protection of the safety of public gatherings over which an aircraft is flown.
The Tribunal notes that s 29.4 of the Civil Aviation Orders seeks to regulate the conduct of air displays, which may not be conducted without the written approval of CASA. A reading of s 31(1) of Act makes clear that the jurisdiction of the Tribunal is limited to reviewing decisions under the Act or the Regulations. As Deputy President Purvis noted in Robertson and CASA [1999] AATA 608, at paragraph 48, the Tribunal's jurisdiction is of a precise nature. The Tribunal is not able to review a decision that indirectly affects or is somehow related to a reviewable decision. The review jurisdiction of the Tribunal can only be exercised when a decision has been made on the application for permission itself, rather than a decision on a matter preliminary, incidental to, or part of the process of investigating whether a permission should or should not be granted. The Tribunal has therefore focused not on the written approval required under s 29.4.2 of the Civil Aviation Orders, but rather on the written permission required under Regulations 155 and 156. In doing so, the Tribunal will take as the principal consideration the issue of public safety, including the safety of spectators who might be present at the proposed air display and any other members of the public who might be in the vicinity, whether in residential or commercial premises, or using the adjacent highways.
The Tribunal notes that the "Safety Zone" for the originally proposed air display axis, involving a zone 200 metres wide on each side of the centre line of the runway, inside which spectators or other members of the public are not permitted, includes both residential and commercial premises in Albion Park Rail. It also includes a small section of the Princes Highway just south of the Yallah Roundabout and a small section of the Illawarra Highway to the west of the Yallah Roundabout. The Tribunal finds the affected section of the Princes Highway is a very busy section of road which experiences vehicle congestion and heavy traffic at weekends, as referred to in Mr Cannell's statement (R6). The Illawarra Highway, while a less busy road than the Princes Highway, nevertheless, still experiences a significant flow of traffic. Not only are members of the public situated in the affected residential and commercial premises or travelling on the two affected highways at risk in the case of a cataclysmic event, persons travelling on the highway are also at risk if the drivers become distracted as a result of the air display. Even if the proposed display axis is displaced 100 metres to the west as suggested by AVIEX in response to CASA's concerns, while the residential premises adjacent to the Princes Highway and the affected section of the Princes Highway are largely excluded from the 200 metre zone, nevertheless, residential and commercial premises adjacent to the Illawarra Highway are still affected and a larger section of that highway is included in the zone. Thus, the displacement of the proposed air display axis does not adequately address CASA's safety concerns. The Tribunal notes Mr Cannell's expression of that concern at paragraph 16 of his Statement (R6):
By permitting aerobatic manoeuvres of aircraft at low height directly above such premises, persons and property will be exposed to a high risk activity, with the likelihood of aircraft impacting the area in the event of engine failure or loss of control in aerobatic manoeuvres.
Mr Cannell expressed concern about the performance of aircraft involved in the proposed display operating within a confined area. His view is that "there is a high risk of aircraft flying outside the display and manoeuvring zone below 1000 feet" which would be a breach of Regulation 157. He also expressed concern at the relative closeness of a hill to the south east of the runway which forms part of a line of hills adjacent to the escarpment.
The Tribunal notes there was also discussion between the parties about the application of Regulation 262AM and the participation of Limited Category Aircraft in the proposed air display. Regulation 262AM (10) provides that Limited Category Aircraft which have been assigned a permit index of 2 or 3 must not be operated over the built-up area of a city or town unless CASA or an authorised person has approved this. In considering whether to grant such an approval, Regulation 262AM (11) requires that the decision-maker must take into account anything considered "relevant for the safety of other air space users or persons on the ground or water". Mr Cannell expressed concern that one of the aircraft which AVIEX proposed should be a participant in aerobatic flight would be a Strike Master, a permit index 2 aircraft, which would not be able to glide clear of populous areas in the event of an engine failure.
Mr Cannell expressed concern at emergency rescue and first aid facilities and, in particular, whether the fast movement of injured spectators to hospital facilities in Wollongong would be possible given congested and heavy traffic on the Princes Highway during the weekend.
The Tribunal does not doubt that AVIEX has a genuine concern for public safety and has taken this into consideration in its proposal for an air display at the Airport. As Mr Robertson said in giving evidence, safety is a principal concern for organisers of any air display. However, rather than addressing the concerns expressed by CASA, Mr Robertson focused on providing statistical and technical information concerning air displays and challenging the reasonableness of CASA's decision. He suggested that the risks associated with an air display have proved to be low when compared to general aviation accidents and dismissed CASA's concerns as unreasonable. In the light of the low level of risk, the risks associated with AVIEX's proposal should be regarded as acceptable when compared with other activities.
Mr Robertson was also dismissive of CASA and the conduct of some CASA officers, suggesting that the Tribunal should prefer the view of AVIEX and its associates. While the Tribunal notes that there may have been communication problems between the parties in the past, and that some of the fault for this may lie with CASA, nevertheless, the evidence of the T Documents suggests that CASA has attempted to maintain communications with AVIEX through the current matter and has attended to correspondence and arranged meetings in an attempt to address the issues raised by AVIEX. This has been against a background of sometimes unnecessarily unpleasant, antagonistic and derogatory retorts from Mr Robertson to comments made by CASA officers and their stated concerns.
The overall impression gained by the Tribunal is that AVIEX has failed to specifically address the concerns raised by CASA in commenting on and ultimately refusing to give the written permission required for the air display under Regulations 155 and 156. The Tribunal accepts that it may not be possible to address satisfactorily the concerns raised by CASA in respect of the use of Illawarra Regional Airport for an air display. It may be that this Airport is not an appropriate venue for an air display. The fact that air displays have been permitted there in the past does not dictate that permission should be granted on this occasion. The Tribunal accepts the Respondent's submission that every air display is different and each must be assessed on what is specifically proposed. In the Tribunal's view, some of Mr Robertson's comments about local residents are unrealistic, in particular his suggestion that residents in the affected safety zone might choose to leave their houses on the two afternoons in question should they be concerned about their safety.
While the Tribunal recognises that every air display will involve an element of risk, it is a matter of assessing what is acceptable in the context of a specific proposal. In making that assessment, the safety of the public is the paramount consideration, including not only the spectators at the air display but also local residents, persons in residential and commercial premises and those using adjoining highways. In the present matter, AVIEX has not persuaded the Tribunal that CASA has been unreasonable in making its decision to refuse written permission under Regulations 155 and 156. Thus, the decision under review dated 10 September 2001 should be affirmed.
I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President RP Handley.
Signed: .....................................................................................
AssociateDate/s of Hearing 14 and 15 March 2002
Date of Decision 10 May 2002
Representative for the Applicant Mr J Robertson
Representative for the Respondent Mr B Shields, Barrister
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