Hogan and Ors and Civil Aviation Safety Authority - [2004] AATA 1090

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 1090

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A2004/169

GENERAL ADMINISTRATIVE DIVISION		)
Re		JOHN WILLIAM HOGAN, ACTAS PTY LIMITED AND NARROMINE AVIATION PTY LIMITED

Applicants

And

CIVIL AVIATION SAFETY AUTHORITY

Respondent

DECISION

Tribunal

Justice Garry Downes, President
Air Marshal I B Gration, AO AFC, RAAF (Retd), Member

Date19 October 2004
PlaceSydney

Decision

1. Direct that ACTAS Pty Limited and Narromine Aviation Pty Limited be added as applicants.

2. The Tribunal does not have jurisdiction to review the term of the Air Operator’s Certificate granted by the Civil Aviation Safety Authority (CASA) to ACTAS Pty Limited pursuant to s 27 of the Civil Aviation Act 1988.

3. In respect of instruments numbered NSWC 04/149 and 04/166, which contain the conditions which form the reviewable decisions relating to banner-towing, the Tribunal remits those instruments to CASA for reconsideration in accordance with the following directions:

(a) Instruments numbered NSWC 04/149 and 04/166 are to be revoked.

(b) The authorization dated 10 March 1988 and the instrument numbered WG FO 18/93 are to be revoked.

(c) A new single instrument in the name of John William Hogan (ARN 106261) is to be issued comprehending the following elements:

Pursuant to reg 149(1) and reg 151, permission is granted for aircraft piloted by John William Hogan to pick-up and tow banners and, pursuant to reg 150, to drop banners, subject to the following conditions:

(i) All operations are to be conducted in accordance with an Operations Manual or an attached schedule prescribing general conditions and requirements.

(ii) Only aircraft specially equipped for banner-towing may be used and all such operations must be in accordance with the aircraft’s Flight Manual and Flight Manual Supplement.

(iii) As a general rule, banner-towing aircraft should be tracked to avoid over-flying built-up areas and public gatherings (see reg 156).

(iv) When a built-up area includes one or more clear spaces of sufficient size to allow a banner-towing aircraft operating over those spaces to remain clear of the surrounding built-up area, then transit flight over or near built-up areas will be permitted in order to reach such clear spaces, provided such transit is of short duration and at an altitude sufficient – in the case of engine failure – to allow the aircraft to be manoeuvred to a clear area where the banner could be dropped before executing a forced landing. Any such intended track and altitude must be approved by CASA in advance.

(v) Apart from the banner pick-up and drop phases, low-level flying when towing a banner is not permitted.

(vi) Low-level flying for the purposes of banner pick-up and drop may be undertaken within 3 km of the appropriate zones provided the aircraft remains clear of built-up areas.

(vii) References to a requirement for a commercial pilot licence and to a period of validity are unnecessary.

4. In respect of instruments numbered NSWC 04/156 and 04/161 granting low-level flying approval, which contain the conditions forming the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hogan and Ors and Civil Aviation Safety Authority

Details

AGLC: Hogan and Ors and Civil Aviation Safety Authority [2004] AATA 1090
Case: [2004] AATA 1090
Decision Date: 19 October 2004

CaseChat Overview and Summary

The case of Hogan and Ors v Civil Aviation Safety Authority involved the applicants challenging the conditions imposed by the Civil Aviation Safety Authority (CASA) on their aviation permits and certificates. The applicants, including ACTAS Pty Limited and Narromine Aviation Pty Limited, sought review of various CASA decisions under the Civil Aviation Act 1988 and Civil Aviation Regulations 1988. The primary issues before the court were the jurisdiction of the Tribunal to review the term of the Air Operator's Certificate, the appropriateness of the conditions imposed on the banner-towing permit, and the conditions linked to the low-level flying permit.

The court found that the Tribunal lacked jurisdiction to review the term of the Air Operator’s Certificate as the imposition of a 12-month term did not constitute a refusal or condition under the Act. In relation to the banner-towing permit, the court considered the balance between safety concerns and commercial considerations, and determined that the original permit was insufficiently prescriptive. The court thus remitted the permit conditions to CASA for reconsideration, directing specific conditions to be included in the new permit. For the low-level flying permit, the court found that the minimum height requirement was appropriately set at 150 feet, as this was linked to the air operator’s certificate and necessary for safety.

The court's reasoning was based on the statutory provisions and regulatory frameworks governing civil aviation in Australia. By examining the relevant sections of the Civil Aviation Act and the Civil Aviation Regulations, the court assessed the validity of CASA's decisions and the Tribunal's jurisdiction. The final orders included adding ACTAS Pty Limited and Narromine Aviation Pty Limited as applicants, clarifying the Tribunal's lack of jurisdiction over the Air Operator’s Certificate term, and directing CASA to reconsider and reissue the banner-towing and low-level flying permits with specified conditions.

Orders

Orders of the court