BRM Aero Ltd and Civil Aviation Safety Authority

[2021] AATA 2167

BRM Aero Ltd and Civil Aviation Safety Authority [2021] AATA 2167 (8 June 2021)

Division:GENERAL DIVISION

File Number:          2020/4943

Re:BRM Aero Ltd

APPLICANT

AndCivil Aviation Safety Authority

RESPONDENT

DECISION

Tribunal:R Cameron, Senior Member

Date:8 June 2021  

Place:Melbourne

The Tribunal does not have jurisdiction to hear the application.

......[sgd]..................................................................

R Cameron, Senior Member

Catchwords

JURISDICTION – civil aviation – light sports aircraft – decision to impose operating limitations – Civil Aviation Regulations 1988 reg 262APA – decision not reviewable – no jurisdiction

Legislation

Civil Aviation Act 1988 (Cth)

Cases

McWilliam and Civil Aviation Safety Authority, Re (2004) 79 ALD 361

Hempel and Civil Aviation Safety Authority, Re (2006) 90 ALD 118

Secondary Materials

Civil Aviation Regulations 1988 (Cth)

Civil Aviation Safety Regulations 1998 (Cth)

REASONS FOR DECISION

R Cameron, Senior Member

8 June 2021

INTRODUCTION

1. These reasons follow a hearing to determine whether the Tribunal has jurisdiction to hear this application.

2. On 28 July 2020, a delegate of the Respondent (“CASA”) imposed operating limitations on all Bristell Light Sports Aircraft (“BLSA”) operating in Australia under sub-regulation 262APA(4) of the Civil Aviation Regulations 1988 (“CAR”) (“the decision”).[1]

   [1] Notice of decision, dated 28 July 2020 (attached to application for review), p 1.

3. The operating limitations imposed by the decision were as follows:

   “1. A pilot in command of or student under instruction in, a BRM Aero Light Sport Aircraft (including the NG 4, NG 5 and TDO design variants) engaged in a flight training operation, is prohibited from conducting an intentional stall of the aircraft, or from performing any flight training activities that could reasonably lead to an unintended stall (for example, performance limit turns which occur at high angle of bank, high angles of attack and low airspeed).

   2. A copy of these operating limitations must be attached to the Special Certificate of Airworthiness, be carried at all times in the aircraft and be readily accessible.”[2]

   [2] Notice of decision, Annexure A, p 21.

4. The decision applied to all BLSA manufactured by the Applicant, issued by it with a CASA Form 681 Statement of Compliance and an Australian Special Certificate of Airworthiness (“SCOA”) as a Light Sports Aircraft (“LSA”) under regulation 21.186 of the Civil Aviation Safety Regulations 1998 (“CASR”) .[3]

   [3] Ibid; Submissions of the applicant, [3].

5. The power to impose operating limitations under sub-regulation 262APA(4) of the CAR is as follows:

   A person must not operate a light sport aircraft covered by regulation 21.186 of CASR contrary to any additional operating limitation determined, in writing, by CASA for the aircraft in the interests of aviation safety.

   Penalty: 50 penalty units.

6. Sub-regulation 262APA(5) of the CAR provides as follows:

   CASA must give a copy of a determination referred to in subregulation (4) to the registered operator of the aircraft concerned.

   LIGHT SPORTS AIRCRAFT

7. LSA are a specific category of aircraft which have been manufactured to the LSA standards within the meaning of regulation 21.172 of the CASR. They are not type-certified by CASA, rather the manufacturer furnishes a statement of compliance to CASA which addresses the matters contained in regulation 21.186(2) of the CASR. As submitted by the Respondent, it is a self-certification scheme.[4]

   [4] Respondent’s outline of submissions, [7].

8. Subject to meeting the requirements of regulation 21.186 of the CASR, the LSA is entitled to have a SCOA issued in respect of it.

9. Such an aircraft must not be operated other than in accordance with the provisions of regulation 262APA of the CAR.

10. The BLSA have been manufactured for both private use and flight training.[5] When undertaking flight training, pilots will be taught, and become competent in, amongst other things, placing the aircraft into a stall and recovery from such stalls which are an aerodynamic condition of flight.[6]

    [5] Submissions of the Applicant, [28].

    [6] Ibid.

11. As submitted by the Applicant, prior to the implementation of the operating limitations contained in the decision, it was possible to conduct intentional stalls and recovery from stalls in flight for training purposes in accordance with the Aircraft’s Operating Instructions (“AOI”).[7]

    [7] Ibid, [10], [29].

12. The Applicant contends that the effect of the decision is that the SCOA and the annexure issued by the Respondent pursuant to regulation 21.186 of the CASR have been varied and conditions imposed which prohibit conducting in-flight intentional stalls and recovery of stalls.[8] Therefore, due to the prohibition, the BLSA cannot be used for aspects of flight training involving stalls and stall recovery procedures.[9] As a consequence, the aircraft is apparently unattractive to potential purchasers who may have been disposed towards using the aircraft for commercial flight training.[10] The end result is said to be a loss of sales.[11]

    [8] Ibid, [30].

    [9] Ibid.

    [10] Ibid.

    [11] Ibid.

    LEGISLATIVE FRAMEWORK

13. Section 31(1) of the Civil Aviation Act 1988 (“CA Act”) permits an application to this Tribunal for the review of a reviewable decision made by the Respondent. The section provides:

    (1) In this section:

    decision has the same meaning as in the Administrative Appeals Tribunal Act 1975.

    reviewable decision means:

    (a) a refusal to grant or issue, or a cancellation, suspension or variation of, a certificate, permission, permit or licence granted or issued under this Act or the regulations; or

    (b) the imposition or variation of a condition, or the cancellation, suspension or variation of an authorisation, contained in such a certificate, permission, permit or licence; or…

14. To determine whether there is a reviewable decision before the Tribunal pursuant to section 31(1) of the CA Act, the approach taken by Deputy President Forgie in Re McWilliam and Civil Aviation Safety Authority (“McWilliam”)[12] should be adopted. The Deputy President observed:

    … What is clear… is that CASA’s decision or action must be properly characterised to determine whether or not it comes within the terms of the definition of a “reviewable decision in s 31(1) of the [CA] Act.

    In order to carry out that characterisation it is necessary to ask three questions. The first question is whether there has been a decision of some sort in relation to a “certificate, permission, permit or licence.” If so, the second is whether that “certificate, permission, permit or licence” was “granted or issued under [the CA] Act or the regulations.” The third question is whether the decision that has been made may be characterised as either:

    … a refusal to grant or issue, or a cancellation, suspension or variation of… (s 31(1)(a)) or

    … the imposition or variation of a condition, or the cancellation, suspension or variation of an authorisation, contained in… (s 31(1)(b)

    that “certificate permission, permit or licence granted or issued under [the CA] Act or the regulations”.[13]

    [12] (2004) 79 ALD 361 at 368.

    [13] Ibid.

15. Both parties in their submissions contended that the three-question approach of Deputy President Forgie should be applied in this matter.[14] The Tribunal agrees.

    [14] Respondent’s outline of submissions, [22]; Submissions of the Applicant, [37].

    APPLICANT’S CONTENTIONS

16. Applying the three-question approach developed by Deputy President Forgie, the Applicant contends as follows:

    (a)The decision is in relation to a SCOA issued by CASA for the BLSA which permitted the flight manoeuvres set out in the AOI which forms part of and is integral to the SCOA for the BLSA.

    (b)The SCOA for the BLSA was granted or issued pursuant to regulation 21.186 of the CASR. The CASR were made pursuant to section 98 of the CA Act.

    (c)The decision is a variation of the SCOA for the BLSA. The decision imposed a prohibition on certain flight manoeuvres and operations, including in-flight stalls, which were previously permitted.

    (d)The decision may also be characterised as the imposition or variation of a condition of an authorisation contained in the SCOA and AOI as the decision imposed a condition of flight in the BLSA that “a copy of these operating limitations must be attached to the Special Certificate of Airworthiness, be carried at all times in the aircraft to be readily accessible”.[15]

    [15] Submissions of the Applicant, [37].

    RESPONDENT’S CONTENTIONS

17. The Respondent contends that the three-question approach applies as follows:

    (a)The decision cannot be said to have been made in relation to a certificate, permission, permit or licence. Regulation 262APA of the CAR provides a discrete and entirely separate means of imposing operating limitations in the interests of aviation safety. It operates in the nature of a prohibition in much the same way as the maintenance directions made under regulation 38 of the CAR considered by DP Hack in Re Hempel and Civil Aviation Safety Authority (“Hempel”)[16] and the aerodrome directions made under regulation 92 of the CAR by DP Forgie in McWilliam. On that basis, the first question cannot be answered in the affirmative and it is unnecessary to consider the second and third questions.

    (b)However, if there is any doubt as to that conclusion, question three cannot be satisfied in that the making of the operating limitations cannot be characterised as involving the refusal to issue, the cancellation, suspension of, or the imposition upon or variation of a condition contained in, an authorisation within the scope of either of sub-sections 31(1)(a) or (b) of the CA Act.[17]

    [16] (2006) 90 ALD 118

    [17] Respondent’s outline of submissions, [22].

    CONSIDERATION

18. The Tribunal does not consider that a determination made by CASA under regulation 262APA of the CAR is in relation to a SCOA as contended by the Applicant. The starting point in reaching this conclusion is of course to look at the language of sub-regulation 262APA(4) itself. It does not touch on a certificate, permission, permit or licence granted or issued under the CA Act or the CAR. Rather, it functions to prohibit the operation of a LSA contrary to any additional operating limitations determined in writing by CASA. It is a prohibition, the violation of which attracts a penalty for an offence of strict liability.

19. The SCOA is not itself affected by the operating limitations imposed by the decision. That certificate continues with full force and effect subject to the conditions annexed to it, one of those conditions being that the aircraft is to be operated in accordance with the AOI. It is the AOI which are affected by the decision, not the SCOA itself. The decision prohibits the conduct of stalls and manoeuvres that may lead to an unintended stall when the aircraft is engaged in a flight training operation.

20. Insofar as the decision operates in the nature of a prohibition, the Tribunal accepts the contention of the Respondent that this operates in a similar way to the maintenance directions made under regulation 38 of the CAR considered by Deputy President Hack in Hempel. In that case, maintenance directions prohibited the operation of the aircraft pending the performance of such maintenance. It was contended by the Applicant in that matter that the maintenance direction came within the ambit of section 31(1) of the CA Act because one had to “consider the ‘certificates’ and ‘permissions’ which relate to the aircraft in question”.[18] This was because the issue of the maintenance direction prohibited the flight of the aircraft. Deputy President Hack rejected this contention.

    [18] Hempel at 122.

21. It is worth reciting in full the Deputy President’s findings concerning such a submission.

    [22] I am unable to accept that argument. The maintenance direction is expressed to have been given under reg 38(1) of CAR 1988. That regulation permits the authority to give directions relating to the maintenance of Australian aircraft for the purpose of ensuring the safety of air navigation. Even if it be accepted that the effect of the maintenance direction was to suspend the further operation of the aircraft, that suspension is not in relation to a certificate, permit, permission or licence. The certificate of airworthiness issued in relation to the aircraft pursuant to reg 21.181 of the [CASR] was not affected by the maintenance direction although, by reason of reg 21.181(6) of [CASR], CASA could suspend or cancel the certificate of airworthiness if maintenance was not carried out. Had that occurred there would have been a decision in relation to a certificate, permission, permit or licence but in my view the maintenance direction did not satisfy the first requirement of the three questions.

    [23] An aircraft does not fly pursuant to a permission, rather the statutory scheme prohibits flight without, inter alia, registration, a valid airworthiness certificate and compliance with safety requirements. But compliance with all of those requirements does not, of itself, create a certificate, permission, permit or licence.[19]

    [19] Ibid.

22. In McWilliam, the Tribunal was concerned with an instrument in relation to the Barwon Heads aerodrome applying to the pilot of an aircraft engaged in operations involving the descent of parachutists. The direction required the pilot in command of an aircraft engaged in a parachute operation not to permit a person to exit the aircraft to conduct a parachute descent within a 2-mile radius of that aerodrome. Deputy President Forgie concluded that the direction concerned was not reviewable in this Tribunal. She did so for the following reasons that are worth reproducing in full:

    (28) Taking instruments 63/04 and 34/04 first, may either be regarded as a “certificate, permission, permit or licence”? Each gives directions to the pilot in command of an aircraft engaged in a parachute operation. It does so under reg 92(2) [of the CAR] which permits CASA to give directions relating to the safety of air navigation. Those directions limit the pilot in so far as he must comply with the directions but it cannot be said that they attest to his or her status or that they permit, allow or give him or her liberty or permission to engage in the operations that are the subject of the instruments. Rather, they assume that the pilot is properly authorised to engage in those operations but set the parameters within which he or she may operate. An analogy may be drawn between the pilot’s authorisation and the directions made under reg 92(2) and a licence to drive a vehicle on a roadway and the road rules. The motorist must hold a licence appropriate to the type of vehicle he or she wishes to drive but that licence does not permit him or her to drive how and where he or she pleases. He or she is limited by the road rules. The road rules are not the person’s licence to drive and a change in the road rules does not change his or her being licensed even though how and where he or she drives may be affected by a change in those road rules.

    (29) This interpretation is consistent with the way in which CASA’s functions are expressed in s 9 of the [CA] Act. Among others, it has a function to develop and promulgate aviation safety standards and another to issue certificates, licences, registrations. The two functions, of course, are not necessarily exclusive of each other or of CASA’s other functions set out in s 9. In the case of the matters addressed in reg 92(2), they are clearly directed to CASA’s function of developing and promulgating aviation safety standards. Regulation 92(2) is concerned with the use of aerodromes as set out in para (c) of the definition of “aviation safety standards” in s 3 of the Act and the use of airspace as set out in para (d) of that definition. It is not concerned with the authorisation of any person, or group of persons, however that authorisation is expressed. The direction is in the nature of a prohibition and breach of it is an offence attracting a penalty under reg 92(3).[20]

    [20] McWilliam at 369-70.

23. Likewise, in this case a determination of additional operating limitations under

    
    

    sub-regulation 262APA(4) prohibits flight contrary to its terms; it does not of itself relate to a certificate, permission, permit or licence. It does, as contended by the Respondent, provide a discrete and entirely separate means of imposing operating limitations in the interests of aviation safety. The decision, as noted earlier, and as is apparent from both Hempel and McWilliam, operates as a prohibition. Therefore, the first question identified by Deputy President Forgie cannot be answered in the affirmative.

24. The Tribunal does not accept the Applicant’s contention that the AOI form part of, and are integral to, the SCOA for the BLSA. The AOI and the SCOA are two discrete, stand-alone documents. The AOI, as the Respondent contends, are part of an entirely separate means of imposing operating limitations in the interests of aviation safety. The AOI fall within what Deputy President Hack observed in Hempel, in being part of a statutory scheme that regulates flight which includes, amongst other things, compliance with safety requirements. The complete package of these requirements does not of itself create a certificate, permission, permit or licence.[21]

    [21] Hempel at [122].

25. There is no textual or contextual foundation for the contention that the decision is a variation of the SCOA for the BLSA. As noted earlier, the text of the SCOA remained unaltered. It was the AOI that were changed.

26. Similarly, with respect to the third question, the Tribunal considers that making additional operating limitations under sub-regulation 262APA(4) of the CASR cannot be said to be the imposition of a variation of a condition, or the cancellation, suspension or variation of an authorisation contained in the SCOA. The decision is not concerned with the authorisation of any person or group of persons, however that authorisation is expressed. The imposition of operating limitations by the decision, as was observed by Deputy President Forgie in McWilliam, sets the parameters within which the aircraft may operate. The fact that a copy of the relevant operating limitations must be attached to the SCOA does not alter their character. They must also be carried at all times in the aircraft and be readily accessible for obvious reasons; so that pilots operating the aircraft are aware of what operating limitations are applicable. Accordingly, the third question must be answered in the negative.

27. There is another matter that should be noted. Regulation 297A and table 297A of the CAR together with sub-regulation 201.004 and table 201.004 of the CASR identify those decisions made under the applicable regulations which are reviewable in this Tribunal. Decisions made under regulation 262APA of the CAR imposing operating limitations are not listed in table 297A as decisions reviewable in this Tribunal. Had the maker of the CAR intended for such decisions to be reviewable, one would have expected it to have been included in table 297A. It is acknowledged, however, that these regulations and the tables made under them are not exhaustive.

    CONCLUSION

28. Therefore, the Tribunal concludes that the decision is not a reviewable decision and the Tribunal has no jurisdiction to hear the application.

29.     I certify that the preceding 28 (twenty-eight) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member

...[sgd]...........................................................

Associate

Dated: 8 June 2021

Date of jurisdiction hearing:	3 May 2021
Counsel for the Applicant:	Peter Lithgow
Solicitors for the Applicant:	Maitland Lawyers
Advocate for the Respondent:	Anthony Carter