McIver Aviation Pty Limited and Civil Aviation Safety Authority
[2005] AATA 391
•3 May 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 391
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/1409
GENERAL ADMINISTRATIVE DIVISION ) Re
McIver Aviation Pty Limited
Applicant
And
Civil Aviation Safety Authority
Respondent
DECISION
Tribunal Professor GD Walker, Deputy President Date3 May 2005
PlaceSydney
Decision The reviewable decision should be remitted to the Civil Aviation Safety Authority for the reconsideration of conditions 1 and 11 in accordance with the recommendations in these reasons.
..............................................
Professor GD Walker
Deputy President
Administrative
Appeals
TribunalADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/1409
GENERAL ADMINISTRATIVE DIVISION )Re:McIver Aviation Pty Limited
Applicant
And:Civil Aviation Safety Authority
Respondent
ORDER TO AMEND WRITTEN DECISION [2005] AATA 391
TribunalProfessor GD Walker, Deputy President
Date23 August 2005
PlaceSydney
WHEREAS:
1. The Tribunal released a written decision in this matter, which was dated 3 May 2005.
2. It has come to the Tribunal’s attention that there were two typographical errors in the decision.
3. The Tribunal wishes to amend the written decision so as to rectify the error and wishing to do so with the least cost and inconvenience to the parties, applies the provision of section 43AA of the Administrative Appeals Tribunal Act1975.
NOW THE TRIBUNAL THEREFORE ORDERS:
1/That the phrase in the decision of the tribunal at paragraph 22 should read “900 square metres” in place of “10,000 square metres”.
2/That the phrase in the direction of the tribunal at paragraph 74 should read “by 1530 on Sundays or public holidays only” in place of “by 1630 on Sundays or public holidays only”.
…………..………………………..
Professor GD Walker
Deputy President
CATCHWORDS
CIVIL AVIATION SAFETY AUTHORITY – permission for certain banner towing by helicopters – revocation of instrument SBAO/338/2002 – banner towing operations only to be conducted as directed by CASA including a restriction on flight space and flight times – necessity to consider public safety as a paramount consideration – examination of the banner towing operations used by the applicant examination of the HOBS system and its safety features – examination of the flight routes and times – examination of the operations necessary for banner towing and for sling load operations – examination of the proposed conditions of the applicant’s Air Operator’s Certificate – found that CAO 29.6 relating to sling load operations does not apply to the applicant’s banner towing operations – found that the reviewable decision should be remitted to CASA for reconsideration of conditions 1 and 11 of the proposed conditions in accordance with the tribunal’s recommendations.
Civil Aviation Act 1988 ss 9A(1), 31(1)
Civil Aviation Regulations 1988 ss 149, 149(5), 303A
Civil Aviation Order 29.6 Air Service Operations – Helicopter External Sling Load Operations
Trade Practices Act 1974 s 2
Green v Daniels and Others (1977) 13 ALR 1
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Ruggeri and Secretary, Department of Social Security (1985) 8 ALD 338
Re Yu and Civil Aviation Safety Authority [2005] AATA 274
REASONS FOR DECISION
3 May 2005 Professor GD Walker, Deputy President Summary
1. The applicant, McIver Aviation Pty Limited (“McIver”), is the holder of an Air Operator’s Certificate (“AOC”) permitting charter and aerial work operations using single turbine and piston engine powered helicopters. This AOC allows the applicant to conduct aerial advertising by banner towing.
2. On 21 October 2004, the respondent, the Civil Aviation Safety Authority (“CASA”) revoked the applicant’s AOC and determined that it could operate its helicopter in flight banner towing operations only in accordance with the directions specified in Schedule 1 of CASA’s decision. That is the decision to be reviewed by the tribunal.
Background
3. The applicant, McIver Aviation, is the operator of a helicopter in flight banner towing business which operates out of Bankstown Airport, New South Wales. The applicant has been conducting its business for approximately four years as the holder of an air operator’s certificate (“AOC”) permitting charter and aerial work operations using a single turbine or piston engine powered helicopter, the last certificate being issued on 3 October 2002 (Instrument SBAO/338/2002) (T p91). That certificate, issued under regulation 149(1) of the Civil Aviation Regulations 1988, permitted McIver to conduct banner towing operations in accordance with 10 conditions, including conducting operations in accordance with Civil Aviation Order 29.6 Helicopter External Sling Load Operations (condition 1), departing from Kingsford Smith Airport via the eastern shores of Botany Bay over water not below 1000 feet above mean sea level (condition 5) and that operations over a town or populous area other than the Sydney Basin Area must be discussed with CASA seven days prior to the commencement of the operation (condition 10) (T39 pp91-92).
4. Banner towing is conducted by the applicant using the Helicopter Overland Banner System (“HOBS”), a system designed with four special safety features, namely:
(a)the banner has a dual attachment system. It is attached to the aircraft’s cargo hook and also by a special cable which passes through the cabin of the aircraft;
(b) all the components are made of lightweight materials;
(c)the weight to hold down the base of the banner is provided by a sack which is normally filled with sand which will be dispersed if it becomes necessary to jettison the banner;
(d)the system employs a parachute which slows the descent of the banner and causes the banner to fold around on itself so that it lands in an area no greater than two square metres.
5. The HOBS was assessed by CASA including test flights, simulated engine failures and emergency landings and jettisoning of the banner prior to the applicant being granted permission to use HOBS over populous areas.
6. Between 29 January 2004 (T42) and 9 September 2004 (T56), discussions took place between the applicant and CASA concerning McIver’s banner towing operations.
7. By letter dated 16 September 2004, the respondent informed the applicant’s chief pilot, Paul Caristo, that upon reassessment of its operations, the applicant’s operations did not comply with paragraph 5.2 of Civil Aviation Order (“CAO”) 29.6 which provided that operations could be conducted only if there was absolutely no risk of harm to persons or property on the ground and that it considered it would be difficult for McIver to comply with this condition while it continued operating directly over a city, as “The test in paragraph 5.2 is an onerous one” (T57 p189).
8. On 23 September 2004, the solicitors for McIver, Norton White, made lengthy submissions to CASA that CAO 29.6 did not relate to banner towing but related to sling load operations and that reliance on CASA on paragraph 5.2 of CAO 29.6 involved a misdirection and an error of law (T58 p190). On 24 September 2004, a meeting was held between representatives of the applicant and CASA. It was agreed at that meeting, that the applicant be given time to make submissions to CASA head office on the exclusive safety features of the banner towing equipment it uses (T64 p215).
9. On 21 October 2004, the general manager of CASA General Aviation Operations revoked the applicant’s permission for banner towing operations given to it under instrument SBAO/338/2002, and conferring permission on McIver for the pilot in command of a helicopter operated by the applicant to tow a banner from the helicopter in flight in accordance with the directions specified in Schedule 1 (Instrument CASA 501/04). These directions stated:
1.Banner towing operations must be conducted in accordance with section 29.6 of the Civil Aviation Orders, as if that section applies in all respects to the operator’s banner towing operatons.
2.Banner towing operations over an area must be conducted so that no part of the helicopter or the banner is below a height of 1000 feet above ground level calculated in accordance with subregulation 157 (3) of CAR 1988.
3. Banner towing operations must be conducted only in V.M.C.
4.Banner towing operations must be conducted in accordance with the applicable instructions for banner towing contained in the following sections of the operator’s operations manual as in force on the date of issue of this instrument:
(a) D5 (Helicopter Sling Load Operations);
(b) D8 (Banner Towing);
(c) D9 (Helicopter Banner Towing with Jettisoning Weights).
5.Banner towing operations must not be conducted if section D5, D8 or D9 of the operator’s operations manual is amended after the commencement of this instrument without the approval in writing of CASA.
6.A copy of:
(a)this permission; and
(b)any current consent under clause 13; and
(c)any current letter of agreement under clause 14;
must be:
(d)included in sections D5, D8 and D9 of the operator’s operations manual; and
(e)included in the flight manual to be carried on the helicopter during any banner towing operation.
7.In banner towing operations, the helicopter must be flown in such a manner that it does not endanger persons or property on the ground or in the water, or create undue adverse environmental impact.
8.Without altering the effect of any other clause, in any particular banner towing operation the helicopter must be flown at a height sufficient to ensure that, if it malfunctions, its pilot can conduct a forced landing without endangering persons or property on the ground or in the water.
9.A pilot in command engaged in a banner towing operation must comply with any air traffic control (ATC) requirements. If any such requirements would involve the pilot in a banner towing operation over a city, town or populous area without consent in accordance with clause 13, the operation must be:
(a)cancelled; or
(b)delayed until the variation is revoked by ATC; or
(c)delayed until the variation is replaced by an ATC variation that does not involve a banner towing operation over a city, town or populous area without consent under clause 13.
10.Banner towing operations over a city, town or populous area within a CASA Area must not commence without the written consent of the CASA delegate with responsibility for that CASA Area in accordance with clause 13.
11.Banner towing operations over a city, town or populous area must only be conducted between the following local times:
(a)subject to paragraph (b):
(i)0800 and 1800 hours on Monday to Saturday, inclusive;
(ii)1000 and 1600 hours on Sunday or any public holiday;
(b)for operations during the period of summer daylight saving in a State or Territory which observes summer daylight saving:
(i)on Monday to Saturday inclusive, 0800 hours and the time that is two hours before the end of evening civil twilight (last light);
(ii)on Sunday or any public holiday, 1000 hours and the time that is two hours before the end of last light.
12.Banner towing operations:
(a)over a city, town or populous area; and
(b)within 5 kilometres of a fixed location;
must be limited to one continuous towing operation not exceeding 30 minutes on any day.
13.Subject to clause 17, banner towing operations over a place that is a city, town or populous area must not commence unless the operator has obtained the written consent of the relevant CASA Area Manager (the Area Manager).
14.Before giving consent under clause 13, the Area Manager must have had regard to:
(a)a letter of agreement (LOA) between the operator and Airservices Australia in relation to air traffic control aspects of the operation; and
(b)an LOA between the operator and the local civic authority where the operation will take place in relation to the environmental aspects of the operation.
15.An LOA must specify the period during which the agreement remains in force.
16.Before giving consent under clause 13, the Area Manager must have had regard to:
(a) the type of helicopter and other equipment to be used; and
(b)the heights above 1000 feet at which some or all of the operation is to be conducted; and
(c) the specific route or variations to the specific route.
17.If so expressed, a consent under clause 13 may apply to more than one operation of the same kind over a city, town or populous area provided such consent is not inconsistent with any LOA.
18.Subject to clause 9, if banner towing operations are conducted from Sydney (Kingsford Smith) Airport (KSA), the pilot in command must:
(a) depart via the eastern shores of Botany Bay over water; and
(b) be at a height of not less than 1000 feet when overflying the KSA aerodrome boundary; and
(c) proceed from there north or south along the coast; and
(d) fly at a height of not less than 1000 feet above mean sea level; and
(e) remain not less than half a nautical mile offshore and clear of all vessels; and
(f)return to KSA along the reciprocal route as if paragraphs (a), (b), (c), (d) and (e) applied to the return flight and arrival.
19.Subject to clause 20, banner towing operations must not be conducted over any part of Sydney Harbour.
20.The pilot in command may fly over Sydney Harbour with a banner whose lowest edge is at a height of not less than 2000 feet above ground level if:
(a) the sole purpose of the flight is to:
(i) more directly access the start of a specified route for a banner towing operation; or
(ii) more directly return to the aerodrome of original departure at the end of that operation; and
(b) the flight path is specified in a consent under clause 13.
21. In this instrument:
CASA Area means one of the geographical Areas into which CASA has divided Australia for the administrative purposes of the General Aviation Operations Branch of CASA.
Sydney Harbour means:
(a)the waters of Sydney Harbour, including the waters of all tidal bays, rivers and their tributaries connected or leading to the Harbour bounded by mean high water mark and lying between the Ryde Road Bridge and a line commencing at the southernmost point of North Head and running to the northernmost point of South Head, including the waters of Middle Harbour (to the Warringah Road Bridge) and North Harbour; and
(b)the land area that is within 3 kilometres of any such waters.
This permission stops having effect at the end of October 2005.
Instrument No CASA 501/04 was issued to McIver Aviation on 21 October 2004 (T63 p211).
10. By letter dated 29 October 2004, the solicitors for the applicant, Norton White informed CASA that it had been instructed to take action against CASA (T65 p216). On 2 November 2004, McIver lodged with the tribunal an application for a review of that decision and an application for a stay order in respect of the decision on the grounds that the conditions granted by CASA in the permission were unworkable.
11. By letter of 10 November 2004, the General Manager General Aviation Operations Branch of CASA advised McIver that it had reviewed its interpretation of paragraph 5.2 of CAO 29.6 and that its comments in its letter to McIver of 16 September 2004 no longer reflected its interpretation of that paragraph (Exhibit A2 annexure R). CASA stated, inter alia, that:
In CASA’s opinion, the relevant test for compliance with paragraph 5.2, of CAO 29.6, is whether the banner towing operation is conducted in such a way that there is no unreasonable risk of harm to persons or property on the ground in the event of load jettisoning or if a forced landing is necessary.
Accordingly, CASA will no longer insist that your banner towing operations should only be conducted over routes which do not take them over city, town or populous areas.
12. On 12 November 2004, following discussions and agreement between the parties, the tribunal granted a stay order allowing the applicant to conduct its banner towing business according to a schedule approved by CASA. On 14 December 2004, after discussions with the parties, the tribunal revoked its stay order of 12 November 2004 and a stay order of 14 December 2004 was made, pending the substantive hearing of this matter.
13. At the hearing of this matter, the applicant was represented by Noel Hutley, senior counsel, instructed by Ben Martin, solicitor, of Norton Smith, solicitors, and the respondent was represented by Brett Shield, counsel, instructed by Greg Parkin, legal officer, Office of Legal Counsel, CASA. The evidence before the tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”), taken into evidence as Exhibit R1, together with evidence tendered by the parties at the hearing. Affidavits for the applicant by Paul Caristo and Sean Herbert were tendered (Exhibits A1, A2, A3 respectively). An expert report by John R Page and Zoran Vulovic was received as Exhibit A4.
Applicable Legislation and Policy
14. Section 9A(1) of the Civil Aviation Act 1988 provides:
(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 is 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.
15. On 8 December 2004 (being the date of gazettal) Civil Aviation Amendment Order (No. R26) 2004 came into effect (T69 p228). This issued Civil Aviation Order 29.6 under subregulation 207(1) and regulation 303A of the Civil Aviation Regulations 1988. CAO 29.6 provides:
Schedule 1 Substitution of section 29.6 of the Civil
Aviation Orders
SECTION 29.6
AIR SERVICE OPERATIONS – HELICOPTER EXTERNAL SLING LOAD OPERATIONS
1 APPLICABILITY
This section applies to the conduct of operations by helicopters engaged in the pick up, carriage and release of objects suspended from external sling load attachments.
…
5 CONDUCT OF OPERATIONS
5.1The pilot in command of a helicopter engaged in sling load operations shall be responsible for ensuring that:
(a)all personnel involved in the operation are suitably briefed prior to commencement; and
(b)adequate precautions are taken to ensure that safety of persons on the ground during sling operations.
5.2The pilot in command of a helicopter engaged in sling load operations shall not fly over a city, town or populous area except where a specific route is available which will ensure that in the event of load jettisoning or a forced landing, hazard will not be caused to persons or property on the ground.
5.3Sling load operations at a specific location in a city, town or populous area may be conducted subject to the following conditions:
(a)Local civic authority and police approval shall be obtained by the operator.
(b)Persons not directly involved in the sling load operations shall be kept clear of the site over which the helicopter is authorised to manoeuvre during the course of the operation.
(c)During sling load operations on to the roof a building, floors shall be cleared of personnel down to a level where the local fire authorities can provide adequate rescue facilities. In all cases the four floors immediately below the roof shall be vacated.
5.4The company operations manual shall include instructions to pilots and other company personnel involved in the conduct of sling load operations and shall cover, in detail, all normal and emergency procedures.
16. The Explanatory Statement - Replacement and Revocation of Section 29.6 states inter alia:
Section 29.6 of the Civil Aviation Orders contained requirements for the conduct of helicopter sling load operations. Among other things, helicopter types may only be used in such operations if they have an approved flight manual supplement and the pilot has to be approved to conduct such operations.
This Order revokes and remakes section 296. This has been done as part of a scheme to review the Civil Aviation Orders, and, in particular, to ensure that they are in a position to meet the technical requirements of the Legislative Instruments Act 2003 when it comes into effect on 1 January 2005. The remake does not involve any changes in existing law or policy in the Order. The Order is being remade solely for the purpose of ensuring compliance and consistency with the Legislative Instruments Act 2003 when it commences on 1 January 2005. However, the opportunity has been taken to update outdates references to legislation in the Order and to introduce gender-neutral wording in the Order.
Evidence
17. During the early 1980s, a Royal Australian Navy Sea King helicopter carried an Australian white naval ensign suspended under the helicopter over Sydney Harbour during the navy’s 75th anniversary celebrations. The ensign was about 80 feet square and was attached to the helicopter by a pennant attached to the cargo hook. The other end of the pennant was attached to a 1.25 tonne counterweight which tensioned the flag and permitted the helicopter to launch by snatching the flag into forward flight from a clear area. The Sea King was restricted to flight over non-populous areas.
18. This event was the forerunner of banner towing by civil helicopters conducting aerial advertising in the Sydney area. That led to CASA developing a policy on banner towing near Sydney Harbour and issuing permissions under CAR 149.
19. The deponent of Exhibit A3, Sean Patrick Herbert, had at one time held an instructor rating as a parachuting instructor and had also been active in display parachute jumping, having experienced over 4,000 parachute jumps and a large number of display jumps over a seven-year period. At a number of the events, he displayed a banner underneath him as he parachuted to the ground. The banner was attached to a harness around his waist and was held down by lead weights.
20. In about 1996 he became interested in the larger banners that were towed underneath helicopters and made enquiries of CASA as to why banners were only towed offshore or along the Sydney coastline. The reason, he was told, was that the banner towing systems used at that time under helicopters employed a counter- weight at the bottom of the banner weighing over 100 kilograms. If the banner for any reason had to be jettisoned or was accidentally released, the counterweight could cause death, injury or damage on the ground.
21. Mr Herbert began to investigate the possibility of designing a banner towing system to eliminate that risk. The sole purpose was to devise a system that could safely be operated over cities and populous areas. In due course Mr Herbert developed a system with safety features to ensure that the weight at the bottom of the banner would dissipate in the event of an emergency and the banner could be jettisoned without any real or practical harm to persons or property on the ground. He patented the system in Australia and internationally and has since been actively promoting the system’s use in Australia and overseas.
22. HOBS essentially consists of a bag containing the counterweight (approximately 100 kilograms of sand or water) at the bottom of the banner. The banner (usually around 10,000 square metres in size) and a drogue parachute contained in a bag are affixed just below the helicopter attachment point. The line connecting the banner to the helicopter is attached to the cargo hook underneath the aircraft and there is also a “belly band” from the banner tow line that runs across the floor of the helicopter. The banner system is attached to the helicopter before flight and not removed until the operation is completed, unless it is jettisoned for emergency reasons.
23. The system has four main safety features:
(i) When the banner is released from the helicopter for any reason, the drogue parachute automatically deploys and slows the banner’s descent to the ground;
(ii) The drogue parachute is also connected by a line to a quick release hatch on the bag containing the counterweight. If the banner is jettisoned, the parachute causes the bag to open and the sand or water counterweight is spilled out. The system has been designed so that the counterweight is dissipated before the banner descends 300 feet after jettisoning. As the operating height for banner towing flights is 1,500 feet, all the counterweight sand or water would be released well before the banner contacts the ground;
(iii)The drogue parachute causes the banner to spiral, twisting upon itself so that it lands in an area no greater than two square metres; and
(iv)The banner is made from a polyester taffeta-like material that is light and soft and can be packed into a large personal suitcase. The rest of the system, except for two fittings, is made of lightweight synthetic material that does not cause injury when dropped from a height. The exceptions are the connection points for attaching the tow line to the top and bottom of the banner. These consist of lightweight aluminium carabellas (or karabiners) of a type used by rock climbers. They do not have sharp edges and when falling are padded by a sleeve.
24. As part of the CASA approval process, flight tests were conducted involving simulated engine failures and emergency landings while the banner was still attached to the helicopter, and dropping the banner from the helicopter to ensure that its descent was such that it did not cause any real or practical hazard to persons or property on the ground. CASA representatives were invited to be present during the tests but were content with a video record of the proceedings. A digital video disc showing the repeated tests, during which the system performed as described, was shown at the hearing (Exhibit A3 annexure SPH1).
25. After receiving the patent and CASA permission, Mr Herbert decided that he would select a single helicopter operator in Australia who he believed to be safe and reputable. He accordingly appointed McIver and has remained involved with that company in its use of the system to ensure that it uses pilots who are properly trained and experienced in the operating system. He oversees the training of McIver pilots and with every towing operation in Australia he plans to be present to ensure that the banners are properly rigged and used. He is either aboard the helicopter as the crewman during the operation or ensures that another person trained by him acts as the crewman.
26. Mr Herbert has also arranged for drop tests in the United States and has successfully obtained certification from the Federal Aviation Administration (FAA) for its use. He oversaw the establishment of operations in the Unites States, where it has been used in New York, Los Angeles, Chicago, Atlanta, New Jersey, San Francisco, San Diego and elsewhere. No safety-related incidents or concerns have arisen in the United States and the certificate permits operations in the cities, towns and populous areas.
27. Approval has been obtained for the system’s use over land in Japan and Hong Kong, and applications are being pursued in the United Kingdom and India. On 5 March 2004 Mr Herbert signed heads of agreement with a global sports and marketing group called Frontiers Group for Frontiers to acquire an interest in the HOBS system. The future of that arrangement has been placed in doubt by the reviewable decision and the pending proceedings in this case.
28. McIver Aviation’s chief pilot is Paul Joseph Caristo, who has held a commercial pilot’s licence since 1989, accumulating 2,500 hours, all on helicopters, of which 1,800 hours have been on turbine types. He has winch, sling load and low level endorsements. In about 1991 he joined the New South Wales Police, and in 1996 transferred to the police air wing as an observer, becoming a training officer in about 1999. As an observer his duties included daily checks of rescue and survival equipment, including harnesses and winches. Since 2001 he has worked fulltime as a commercial pilot at McIver. Today McIver operates a Robinson R22, two Bell 206 Jetrangers, a Bell 47 (piston engine three seat model), two Bell 47T (single turbine engine three seat), and a Bell 206L Longranger (single turbine engine seven seat).
29. Since starting HOBS operations in 2001, McIver has flown over 700 hours in banner towing operations, during which time there have been no accidents or incidents. All 10 McIver pilots hold the appropriate endorsements to conduct banner towing. McIver uses only turbine powered helicopters for banner towing, and the total load for each machine is well within its limits. In each case it is less than the maximum load as specified by the manufacturer. Turbine engines are more reliable and statistically less likely to fail than piston engines.
30. Should the engine fail while the banner is being towed, it might be necessary to jettison the banner system. A two-step process then ensues. The pilot instructs the crew member in the rear of the helicopter to cut the belly band, with the order, “Cut, cut, cut”. The observer is then to respond by saying, “The belly band has been cut”. The pilot would then use the electrical release mechanism to jettison the banner system, when it is safest to do so. The pilot has a choice whether to jettison the load or not and, if so, when to jettison it. It is possible to conduct a forced landing with the banner attached, but the pilot may judge it safer to release the load before landing. In either case the effect on helicopter performance is minimal. The descent rate is not affected by having the banner system attached, the only detriment being a reduction of glide radius.
31. Mr Caristo has been engaged as a pilot from time to time in sling load operations and also carried out such operations while in the police air wing. A sling load operation is the picking up of an external load by the helicopter, the carriage of the load attached to a cargo hook and the release of the load at a particular location.
32. Examples of sling loads given by Mr Caristo are fire-fighting using a water bucket to collect and disperse water over fires, the placement of equipment such as air-conditioning units on buildings, placing construction materials in remote and inaccessible locations, and moving materials in national parks and forests. The placing and later removal of the Olympic statues on Centrepoint Tower in Sydney was a visible example of sling load operations.
33. Sling loads are attached by a cargo hook which has both electrical and mechanical release mechanisms to allow the pilot to jettison the load in an emergency. The load will often be picked up by the helicopter while it is hovering at about 50 to 100 feet. It is normally released at the target site or destination while the aircraft is in flight, as in fire-fighting, or while hovering. In banner towing, the helicopter is not continually operating at maximum limits in the way it would typically be in a sling load operation.
34. Mr Caristo deposed that a typical site-specific sling load operation requires the helicopter to operate at its maximum limits for a long period. While it is picking up, carrying and depositing the load, it must hover and move at a height out of ground effect, requiring high continuous power settings that place the aircraft under more strain than usually and requiring it to operate in dangerous sectors of its performance curve. The effect is that the helicopter has minimal glide potential if the engine fails. Sling load operations, in short, place the helicopter in its worst aerodynamic environment.
35. Banner towing, particularly using HOBS, is not, in Mr Caristo’s opinion, a sling load operation at all. The banner is connected while the aircraft is on the ground and is not disconnected until the aircraft returns to its departure point. In addition, it is secured to the aircraft by the belly band.
36. Mr Caristo’s evidence also narrates aspects of the CASA approval process and negotiations over the cancellation of its earlier permission that are no longer of central relevance (Exhibit A2). He makes a number of observations, based on his experience, about the conditions CASA seeks to impose on McIver’s banner towing activities. Some of them will be referred to below. He also points out that the company has bought three new aircraft since June 2004 with the aim of using them primarily for banner towing. Other helicopters have been modified to allow them to tow banners. He says that clients will commit funding for banner advertising months in advance, but require a commitment that operations will proceed before they can enter into such an arrangement. Also, when they have purchased their banners, clients will often request flights at reasonably short notice. This makes it necessary for the applicant to be able to give clients the assurances they need.
37. The expert report of Messrs Page and Vulovic describes a test carried out on 25 November 2004 with a view to investigating the effects on the ground of dropping an advertising banner (Exhibit A4). The method selected was to drop the flag over a soft sand beach and look for sand disturbance. That would provide a good qualitative approach, while the volume of sand displaced could also be compared with the volume displaced by a known energy, in order to provide a simple qualitative solution. In both tests the helicopter was at 700 feet altitude and the banner at 500 feet, as that was more than enough to allow terminal velocity to be reached and made aiming for the soft sand practical.
38. While dry sand would normally be carried in the counterweight, in one test wet sand was used to provide a kind of worst-case scenario. In the wet sand test, not all the sand cleared the bag. That would not be likely to happen during operations, the report observed, as the bag would be released from twice the height used in the experiment, thereby allowing more time for the sand to flow out.
39. The results were striking. The deeper of the two impressions created during the wet sand test reflected an impact equivalent to dropping a basketball from 76 centimetres, the height of an average office desk. Using dry sand, as is the normal practice, the depression in the beach sand was equivalent to that caused by dropping a basketball from a height of only 12 centimetres.
As can clearly be seen the amount of energy in these falling components is insufficient to cause much harm even in the worst cases where the sandbag was still half full of [wet] sand.
The experts’ report was not contradicted or challenged by the respondent.
Application of the Law and Findings of Fact
40. The issue for the tribunal to determine is whether, on the evidence and material before it, the applicant’s Air Operator’s Certificate (Instrument SBAO/338/2002) should have been revoked and a new instrument conferred on the condition, among others, that McIver’s operations should comply with CAO 29.6 relating to “sling load operations”. That will necessitate a determination by the tribunal on the scope of CAO 29.6 and whether the applicant’s method of banner towing operations falls within its scope. The respondent’s contention is that “whether or not the applicant’s method … is strictly within the scope of CAO 29.6, CASA’s assessment is that the substantive safeguards set out in CAO 29.6 are appropriate safeguards to impose on the Applicant”. The tribunal must also decide on the appropriateness of the other conditions imposed in the new permission.
41. It is common ground that permission may be given to McIver to tow a banner from a helicopter pursuant to CAR 149(5)(a). While CAR 149(5) does not explicitly empower CASA to issue such a permission, CAR 2B makes it clear that CAR 149 is taken to authorise CASA to grant the permission.
42. Nor is it disputed that cancellation of the earlier permission and the imposition or variation of conditions are reviewable decisions within the meaning of s 31(1) of the Civil Aviation Act 1988. An application may be made to the tribunal for review pursuant to s 31(2).The tribunal is empowered by s 43(1) of the AdministrativeAppeals Tribunal Act 1975 inter alia, to vary a decision under review or set it aside and make a decision in substitution or remit it to the deciding authority for reconsideration.
43. In its statement of facts and contentions (Exhibit A6), the applicant submitted that the revocation of permission and the imposition of additional conditions were vitiated by errors of law, including that the respondent had denied the applicant natural justice and had made the decision for a collateral purpose. The respondent denied those errors in its own statement of facts and contentions (Exhibit R3) and added, correctly in my view, that if they existed they could be cured by the tribunal on this review and are not legal impediments to the tribunal now deciding that the decision was an appropriate protection for aviation safety.
44. If it appeared, however, that the respondent had behaved improperly or unfairly towards the applicant, that might make it appropriate to scrutinise more critically any conditions imposed by those means. But whatever may have happened at earlier stages of the decision making and negotiation making process, it is clear that CASA in recent months discussed all the conditions with the applicant in good faith, such that now only five of them are still in dispute. In argument the applicant implied, but did not directly assert, that by abandoning several onerous conditions in the course of negotiations, CASA could be seen as having admitted that its position was weak or unjustified. I do not take that view, for two reasons. First, CASA’s conduct in that respect could at least as easily be seen as evidence of a conscientious refinement of its position leading to the identification of what CASA sees as the essential and irreducible conditions needed for the protection of the public. Secondly, it would not be conducive to good public administration if any amelioration of conditions or other decisions were held against a respondent, thereby perhaps giving it an incentive to barricade itself behind indefensible positions.
45. The applicant has prepared a compilation of the proposed conditions which conveniently shows the parts proposed by CASA but rejected by the applicant, the parts proposed by the applicant but rejected by CASA, and the parts that are not in dispute. It is reproduced as an attachment to Exhibit A1 (annexure G pp27-28) and is also attached to the applicant’s outline of submissions (Exhibit A5). The most convenient approach now is to take each condition from that compilation separately and apply the law and evidence to each one in turn. In each case the parts underlined are those proposed by CASA but rejected by the applicant, the parts with a line through them are those proposed by the applicant and rejected by CASA, and those unmarked are agreed between the parties.
Condition 1
Banner towing operations shall be conducted utilising the Helicopter Overland Banner System and any banner towing operation conducted otherwise and as a sling load operation, must be conducted in compliance with CAO 29.6. Banner towing operations must be conducted in accordance with section 29.6 of the Civil Aviation Orders, as if that section applies in all respects to the operator’s banner towing operations (Note : CASA acknowledges that banner towing will not be “at a specific location” within the meaning of paragraph 5.3 of that section).
46. The main area of dispute between the parties is whether CAO 29.6 applies to the applicant’s banner towing operations of its own force and, if it does not, whether it is nevertheless factually appropriate and rationally justified.
47. The applicant submits that on a true construction CAO 29.6 is confined to external sling load operations and does not apply to towing operations. It points to the heading, “helicopter external sling load operations”, and to paragraph 1, which states, “This section applies to the conduct of operations by helicopters engaged in the pick up, carriage and release of objects suspended from external sling load attachments”. Paragraphs 2.1 and 2.2 open with the words “Sling load operations”, and paragraph 3.1 also specifically refers to “sling load operations”. Similar specific references appear in the other paragraphs, and there is no reference to towing. “Sling” is not defined in the regulations, but its ordinary dictionary meaning, McIver contends, denotes a container for a load, or a support for a weight. For example, in the case of the collection of water in suspended buckets and its dispersal in fire fighting, the “sling” would be the bucket and the “load” would be the water. A banner towing operation using HOBS was not a sling load operation because:
· The banner is not a load that is collected, carried and released. It is attached to the aircraft before take off from the point of departure and remains attached to it until after it lands at the end of the flight. It is not carried from one point and released at another point. The detachment of the banner at the end of the flight is no part of the towing operation itself.
· The banner is not an object suspended from an external sling load attachment. While it is attached to the helicopter at the external cargo hook, it is also secured by the belly band that passes across the floor of the cabin. Unlike a sling load, the banner cannot be jettisoned simply by the deliberate or inadvertent activation of the cargo hook release mechanism.
· An essential feature of a sling load operation, as paragraph 5.3 of CAO 29.6 shows, is that it will involve the release of the object that is externally suspended at a target site or location, something quite inconsistent with the HOBS procedure. Mr Caristo’s evidence describes in more detail the features of sling load operations and the distinction between them and HOBS banner towing. Thus the distinction is one between a carriage service on the one hand and, on the other, the towing of an object that remains attached to the helicopter throughout the operation. CAO 29.6 thus relates to a special case. The pilot qualifications set out in paragraph 3, the rules governing the carriage of persons during the operation set out in paragraph 4, and the requirements in paragraph 5 were not appropriate for towing operations, notably 5.3, which states that sling load operations at a specific location in a city, town or populous area require prior local government and police approval.
48. The applicant also argues that the proposed condition that operations be conducted in accordance with CAO 29.6 “as if that section applies in all respects to the operator’s banner towing operation” implicitly concedes that the section does not apply of its own force. Further, through its concession that the word “hazard” in paragraph 5.2 should be read as “unreasonable hazard” and its express acknowledgement in the draft conditions that paragraph 5.3 will not normally apply to banner towing, showed that CASA itself recognised that CAO 29.6 was factually inappropriate for banner towing operations.
49. The respondent replied that its decision did not rely on an assumption that HOBS operations were sling load operations within the meaning of CAO 29.6. The decision expressly applied 29.6 even if it did not apply of its own force, because CASA’s assessment was that the substantive safeguards in CAO 29.6 are appropriate conditions to impose on the applicant.
50. In any event, the respondent took the position that HOBS operations were both towing and sling load operations. This was apparent from s 29.6.1. That paragraph read more clearly, the respondent argued, if it was taken in reverse. Thus, there was an “attachment”, which was the cargo hook. There was an “object suspended” from that attachment, the banner, there was a “pick up” and “carriage and release”. The helicopter lifts the banner and it was irrelevant that it was not released until after landing. The paragraph did not prescribe the use of a sling as such, but merely used that term to identify the hook. The ordinary meaning of the paragraph was not such as to leave HOBS outside its scope.
51. There may be cases in which reading a provision backwards is the way to discover its true meaning, but in this instance the only effect of that approach, in my view, is to lead to an interpretation that takes each word or phrase in isolation and deprives it of the clarification that can be derived from context. For the reasons submitted by the applicant in this case, the context indicates that the order is directed to guarding against the particular risk involved in helicopters picking up, transporting and discharging objects or substances that may cause serious harm to persons or property on the ground if inadvertently released over populous areas. To apply it to HOBS operations which, as the evidence shows, involves virtually no risk of injury or damage if the banner is released from the helicopter, is a strained interpretation which I do not believe was intended. There is, of course, nothing to prevent the issuance of a special CAO analogous to 29.6 and designed specifically for HOBS or banner towing operations generally. Such an order could validly contain whatever restrictions within statutory power were thought desirable, even if those conditions burdened McIver’s commercial activities.
52. It was not disputed between the parties that if, as I have found, CAO 29.6 does not apply of its own force to HOBS operations, the tribunal is then required to engage in merits review of condition 1 and the other disputed conditions. In that task, “The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal”: Drake v Minister forImmigration and Ethnic Affairs (1979) 24 ALR 577 at 589.
53. The respondent argued that even if CAO 29.6 did not apply of its own force, there was nothing to preclude a CAR 149(5) direction from picking up and incorporating by reference the requirements in CAO 29.6. CAR 149 was not fettered and the conditions imposed pursuant to it could be appropriate even though controversial. CASA had not adduced specific evidence in support of each condition, but the tribunal should conclude that the conditions imposed represented a correct and preferable decision because they were reasonable and in no way unusual. CASA could not be expected to adduce evidence to support each challenged decision, for otherwise the cases before the tribunal would never end.
54. In so far as the respondent’s arguments state matters of general principle, they appear to be right. But while CAR 149 is not fettered as to the range of conditions that may be imposed, those conditions need to be reasonably related to the particular circumstances and risks of towing operations. In my view condition 1 is not so related, being adapted for the special risks involved in sling load operations and not those of banner towing. While it would be reasonable to impose conditions on banner towing relating to approval of aircraft type, pilot qualifications, carriage of persons and conduct of operations, as CAO 29.6 does, they should be framed in the context of towing operations and, specifically, of the safety improvements made possible through the HOBS system. I therefore propose to remit condition 1 to the respondent under s 43(1)(c)(ii) of the Administrative Appeals Act for reconsideration in accordance with the recommendations I have made.
Condition 2
Banner towing shall be conducted in VMC only.
55. The appropriateness of this condition is not disputed.
Condition 3
The banner and all appendages must not be below 1000ft AGL (calculated in accordance with subregulation 157(3) of CAR 1988) except when on approach or departure from the operational pickup or putdown area.
56. While the underlined part of condition 3 is not accepted by the applicant, no evidence or argument at the hearing were directed to its appropriateness or otherwise. I therefore have no basis for concluding that condition 3 without the underlined language would be preferable to the condition in its present form. It should therefore stand.
Condition 4
The pilot in command may
conduct banner towing operationsfly with a banner over Sydney Harbour, provided that the helicopter is not below 1500 ft AGL or as directed by ATC, if(a) the sole purpose of flying over the Harbour is to
(i) more directly access the start of a specified route for a banner towing operation; or
(ii) more directly return to the aerodrome of original departure at the end of the operation; and
(b) the flight path is an approved route (as defined in clause 5)
(Sydney Harbour is defined as all tidal waters between Ryde Bridge, South Head, North Head and Spit Bridge).
57. The dispute here arises from the condition that operations over Sydney Harbour be limited to the sole purpose of more direct access to the start of the specified route or more direct return to the airfield of departure at the end of the operation.
58. The applicant points out that restricted area R405 is a lane dedicated to helicopter and seaplane traffic over Sydney Harbour. At the lower altitudes encompassed within R405, helicopters operate without restriction, whereas McIver Operations would be above R405 and therefore subject to ATC direction. Helicopters engaged in aerial photography and scenic flights, and airships operating as aerial billboards could operate, without the restriction that CASA seeks to impose. McIver contends that it is being singled out from other Sydney Harbour helicopter operations. If it chose to operate over the harbour for advertising purposes rather than merely transit purposes, that would be none of the respondent’s business if the helicopter was operating appropriately under ATC control.
59. As against that, the respondent makes the point that the applicant did not have permission to conduct banner towing over Sydney Harbour at all until the reviewable decision now before the tribunal gave McIver a limited entitlement to transit the harbour. It also argues that Sydney Harbour is environmentally sensitive and that banner towing, other than for transit purposes, could interfere with helicopter traffic in R405 that would be flying much faster than a helicopter towing a banner. The respondent did not adduce any evidence on the latter point, however.
60. The T documents contain numerous references to the environmental issues raised by advertising banner towing and, more specifically, in relation to Sydney Harbour (T2 pp3-4, T10 pp26-27, T19 p42, T20 p43, T32 p62, T40 p100, T51 pp137-141). A letter from the Environmental Protection Authority of New South Wales to McIver dated 11 August 2000, draws attention to “noise nuisance”, but the visual impact of banner towing is also referred to in the material before the tribunal. In each case, the material shows that the environmental impact is not the same as for other helicopter operations. A helicopter towing a banner travels more slowly than other similar craft, thereby increasing the duration of rotor noise over any particular point. The visual impact may also be greater than, for example that of an airship with advertising on it sides, which is of more compact appearance, besides being quieter. It does not appear that the condition discriminates unfairly against McIver’s HOB activities.
61. In addition, there is a specific regulatory policy on the topic, number CEO-PN032-2004, issued in December 2004. This policy is issued under s 9A of the Civil Aviation Act, which requires CASA to exercise its powers in a manner that ensures, as far as practicable, that the environment is protected from the effects associated with the operation of aircraft. It contains a section dealing specifically with operations in the Sydney area:
Because of the greater environmental significance of operations within the Sydney Harbour area, delegates should have particular regard to the requirements of section 9A and generally should not issue a permission under CAR 149 to tow a banner/flag over Sydney Harbour. This approach is being adopted in recognition of the environmental effects associated with the operation of aircraft towing a banner/flag over this area. (Exhibit R2 p3)
There is no reason to think that the policy direction to CASA officers contained in Exhibit R2 does not accord with the Civil Aviation Act (for otherwise it would be invalid): Green v Daniels and Others (1977)13 ALR 1. In Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, Brennan J observed that policy is a key factor in attaining consistency in decision making. Consistency is a desirable goal in administration, as the application of differing standards in the exercise of a power by administrators can only result in unfairness and a consequent lack of confidence in the executive. The AAT should therefore apply lawful policy unless to do so would work an injustice in the particular case or there are other cogent reasons for not doing so (2 ALD at 644-645). A similar view was expressed in Re Ruggeri and Secretary, Department of Social Security (1985) 8 ALD 338 at350.
62. In the present case, McIver is not being unfairly discriminated against and there is no other reason for thinking that the condition is in any procedural or substantive sense unjust. Opinions might well differ on whether a complete ban on banner towing over Sydney Harbour is necessary, but the evidence before the tribunal provides no basis for selecting an intermediate position between unrestricted access and total prohibition. As the policy direction favours total prohibition, and the previous policy did not allow McIver helicopters even to transit the harbour when towing a banner, the present condition 4 seems a defensible compromise and should be allowed to stand.
Condition 5
In all cases, operations will be conducted along routes that are within autorotation gliding range of open space suitable for an auto rotational landing without causing undue hazard to persons or property on the ground. Operations over a city, town or populous area may be conducted only along approved routes. Each route set out in the Schedule is an approved route until the date specified for that Schedule for that route (this date is twelve months after CASA last assessed the route). McIver Aviation Pty Ltd may apply to CASA for approval of additional routes or renewal of approval of an existing route. Such an application shall be made to the relevant CASA regional office and accompanied by a map of the route. CASA is to consider and respond to any application (for approval of additional routes or renewal of approval of an existing route) within seven working days, and any such approval shall be for one year.
63. As the applicant was permitted to conduct HOBS operations for several years without a requirement for specific route approval, the applicant sees this condition as an onerous new requirement that is not justified by the evidence. McIver submits that the uncontested evidence is that its HOBS operations have always been conducted within autorotation range of open space and that they do not increase in any appreciable way the risk to persons or property over and above the risks of ordinary helicopter flights. It points out that other helicopter operations are permitted without such restrictions or specific permission or approval requirements. Even sling load operations, which by their nature involve greater risks, do not require prior route approval by CASA (local government and police approval are, however, required for sling load operations under CAO 22.6.5.3). There would be no appeal to the AAT from refusal to approve a route, the applicant’s only recourse being possible judicial review proceedings. That would place the applicant’s business operations “at the whim of CASA” and would hamper it in responding quickly to new business opportunities and new advertiser requirements.
64. The respondent counters this by saying that the need to operate flights within the necessary range of open space suitable for an autorotational descent requires planning, before the operation commences, of a specific route. CASA wishes to require area manager prior approval of flights in order to ensure that the planning is being done correctly and wants to be confident that appropriate routes are being planned, bearing in mind CASA’s obligation to take environmental factors into account. Besides environmental considerations, planners had to consider the specific hazards of banner towing, such as the possibility that a banner released in an emergency might fall on a freeway and distract the drivers of fast-moving vehicles (T11 p28, T51 pp141-144). Experience under the earlier permission had shown that local assessment of proposed operations was not effective if local officers did not have the power to decide whether or not to permit the operations (T2 p4).
65. The fact that there had been no safety incidents in HOBS operations to date was not conclusive, as the accident statistics for rotary wing aircraft justified requiring the applicant to comply with specific routes: “[T]he fact remains that there is a potential risk for an accident to occur; it is only a matter of time” (T51 p142). Nor could CASA disregard the legal or political implications of an activity that was likely to be subjected to broad parliamentary and public scrutiny. “A helicopter accident in a major metropolitan area will also probably be seriously scrutinized with possible negative consequences for CASA if it is determined that CASA has not considered the implications of such operations. This may be supported by a lack of consistency in issuing such approvals between area offices. For example one office requires specific routes to be flown and another office issues disallowable instruments allowing an operator greater latitude over built up areas” (T51 pp143-144).
66. It is not unreasonable for CASA to consider the possible political implications of its decisions in that way. Such pressures are, to a considerable extent, a direct or indirect expression of the democratic operation of public opinion. A government agency that disregards such dynamics is likely by its actions to stimulate wider public dissatisfaction with existing legal arrangements.
67. So far the only complaints about McIver’s banner towing operations appear to have come from business competitors whose interests would be served if those operations were shut down (T23 pp48-49, T25 p51, T26 pp53-54, T29 p58). Possibly from similar sources, or possibly not, McIver principals have “received personal threats of violence and promises that the complaints will continue to cause trouble to our operation” (T27 pp56-57). But if, for example, the emergency jettisoning of a banner onto a freeway were to cause a serious accident involving a semi-trailer, a bus or other dangerous combination of vehicles, a wider range of public opinion would be mobilised. The possible legal and political consequences could be far-reaching and not necessarily of a predictable kind.
68. CASA’s other arguments in relation to this condition are also persuasive. Towing a banner suspended 200 feet below a Bell 206 is obviously not the same thing as a normal flight by a helicopter on its own. A stipulation for special planning and approval is justifiable. It is notable that the FAA approval for HOBS operations in the United States includes requirements for advance approval and may contemplate the possibility of prescribing particular routes (Exhibit A3 annexure E). Further, it is not uncommon for routes to be specified for particular purposes in populous areas, R405 being an example. Mr Shields pointed out that regular public transport flights are confined to IFR routes. In Re Yu and Civil Aviation Safety Authority [2005] AATA 274, the tribunal had to consider a special certificate of airworthiness issued for an ex-military jet aircraft on certain conditions which included a requirement that flights over populous areas were to follow certain prescribed routes.
69. The applicant contends that condition 5 “places McIver’s business at the whim of CASA”. While it may well be that there would be no right to an AAT appeal from refusal to approve a particular route, in the recent negotiations associated with the current review CASA has shown a willingness to consider and adopt arguments backed by evidence. It has been prepared to review and refine its own position, whether or not one agrees with every aspect of its final position. The condition itself makes it clear that McIver would not need advance approval for each flight but the approval would be current for a year and could be renewed. CASA would be obliged to consider and respond to any application for approval of additional routes or renewal of existing approvals within seven working days.
70. The proposed scheme would enable the applicant to engage in its own forward business planning. For example, if it became known that in the months ahead a new sports stadium was to open, or a Formula 1 race meeting was to be held at a particular location or a football grand final was to take place at a particular sportsground, it could develop a proposal for a new route well in time to have it considered in time for advertising contracts to be sought. Further, as Mr Herbert himself mentioned in his affidavit, “The banner towing operations, particularly in Sydney and Melbourne are conducted mostly along the same standard routes” (Exhibit A3 paragraph 37).
Condition 6
The pilot in command may arrive or depart from any airfield via a published helicopter route at an amended altitude of 1500ft AGL as long as such departure or arrival maintains 1000ft AGL until within the airport boundary perimeter and in accordance with directions by ATC.
71. This condition is not in dispute.
Condition 7
Banner towing shall be conducted in accordance with the instructions contained in Section D5, D8 and D9 of the operator’s manual.
72. This condition is not in dispute.
Condition 8
A copy of this permission shall be carried in the helicopter during any banner towing operation.
73. This condition is not in dispute.
Condition 9
A pilot in command of any banner towing operation will contact ATC prior to the commencement of any operation within controlled airspace.
74. This condition is not in dispute.
Condition 10
Operations over a city, town or populous area shall be conducted from 0800 on Monday to Saturday, and from 1000 on Sunday or any public holiday, and must be concluded
half an hour before official last light as published by the Bureau of Meteorology for that day of operation. byduring summer daylight saving – two hours before the end of evening civil twilight,
if not during summer daylight saving – 1800 on Monday to Saturday and 1600 on Sunday or any public holiday
Under the previous permission, McIver was required to conclude operations by 1600 hours all year round. In its outline of submissions (Exhibit A5
…), the applicant makes the following contention in relation to condition 10:The amendments proposed by CASA require, outside daylight saving, the cessation of activities for the return trip to Bankstown Airport which takes half an hour, at 3.30pm. During daylight saving the condition apparently requires the return of the aircraft to the Airport 2 hours before the time when the centre of the sun is 6 degrees below the ideal horizon. The Applicant’s proposed condition is fairer and more easily applied (footnotes omitted).
This contention was not further developed at the hearing and it does not seem to be altogether correct. Outside daylight saving, operations must conclude by 1800 on Monday to Saturday, and 1600 on Sunday or public holidays. Consequently, if the return trip to Bankstown takes 30 minutes, operations outside daylight saving would have to conclude by 1730 on Monday to Saturday, and by 1630 on Sundays or public holidays only. During daylight saving, CASA’s proposed condition would require the helicopter to commence the return trip to the airport two hours before last light, as against 30 minutes before last light in the condition as proposed by the applicant.
75. As the respondent points out, no evidence has been offered as to why a two hour margin is unfair or unreasonable. Further, given that the return flight to Bankstown takes approximately 30 minutes, McIver’s proposal contains no safety margin to allow for adverse conditions such as visibility being reduced by heavy cloud in the west (very common in Sydney in summer), air traffic delays or other unforeseen contingencies. With operations of this kind, there is a self-evident safety argument (recognised also by the FAA authorization) for a provision that will ensure that the banner is on the ground before last light in all cases. There is accordingly no basis on which I could conclude that the applicant’s version of the condition is preferable to the respondent’s position or to some intermediate position.
Condition 11
Operations over
residential areasa city, town or populous area and within 5 km of a fixed location shall be limited to one continuous towing periods not exceeding 30 minutes on any day.
76. This stipulation relates to continuous operations in one place, such as over a sports stadium. It would not prevent the applicant from passing through a circle with a five kilometre radius centred on the particular location at some other time during the day, such as when proceeding to another location. The clause is marginally more liberal than the earlier one, which permitted only one 30 minute period over a particular location “in any 24 hour period”. The revised condition would thus, for example, allow one operation in the afternoon and another operation over the same location the next morning.
77. This condition, the applicant contended, is unfair for a number of reasons. It would not apply to an airship carrying advertising on its sides or to a helicopter engaged in any other operation, such as air photography. There are no restrictions on the time other helicopters can spend in R405. In answer to the respondent’s opposition that the conditions should not enable the applicant to monopolise the air space over a particular fixture, the applicant submits that there is no evidence that the applicant could physically, or legally, monopolise air space in that way, or that it had ever done so in the past. Flights over major fixtures are in any event highly controlled. Further, the applicant could have contracts to carry banners for two different advertisers on the same day at the same location. There could be contracts to tow a banner at different locations that were less than 10 kilometres apart. There was no evidentiary or reasonable basis for this burdensome condition and the applicant preferred a simple limitation to a maximum of 30 minutes continuous operation over a particular operation at one time. The endurance of turbine helicopters and the time taken to travel to and from Bankstown meant that the helicopter would in practice need to return to Bankstown after each 30 minute operation in any event.
78. The respondent’s case for this provision was essentially that other aircraft such as television camera crews and various public services needed access to such events. The T documents contained a number of references to banner towing helicopters “gate crashing” important fixtures, carrying “ambush advertising” and to the use of “rogue” banners over events where advertising sponsorship has been negotiated (T23 p48, T40 p100). These pejorative descriptions emanate for the most part from commercial rivals of the applicant who, presumably, wish to hamper the growth of McIver as a competitor. It should be noted, however, that Commonwealth legislation recognises market competition as a public benefit. The Trade PracticesAct1974 (Cth) s 2 declares that the object of the Act is, inter alia, “to enhance the welfare of Australians through the promotion of competition”. Banner towing by the applicant near a sponsored event means, for these purposes, simply that McIver is emerging as a competitor to those who promote sporting events or other fixtures. The effect of its involvement might be to bring about some redistribution of advertising income from sports promoters selling sponsorship rights to banner advertising contractors such as McIver. If that were to happen, and if sponsors thought the commercial impact of their sponsorship was reduced by the presence of banner advertising, that could be reflected in future prices negotiated for sponsorship rights. On ordinary principles the competition thereby generated should result in greater efficiency and enhanced consumer welfare. It is also possible that the sponsors could seek to maximise the impact of their sponsorship investment by themselves engaging contractors such as McIver to carry banner advertising for the sponsor itself.
79. CASA did not advance any safety reasons for the restrictions imposed by condition 11 and overall they do not seem to possess evidentiary or other rational justification. It may also be significant that the FAA waiver for operations in the United States contains no such restriction and only requires that: “Operations shall be conducted only between the hours of official sunrise and official sunset” (Exhibit A3 annexure E clause 1).
80. There is insufficient evidence to enable the tribunal to determine whether an appropriate condition would permit, for example, two periods of 30 minutes per day, or three, or whether the applicant’s proposed limitation to maximum continuous periods of 30 minutes each is preferable, or whether the radius of the restriction would be reduced to three kilometres or some other figure. I am satisfied, however, that the condition as proposed by CASA is factually inappropriate and I remit the point to CASA for reconsideration in light of these reasons.
Condition 12
This permission shall remain valid throughout the term of the McIver Aviation Pty Limited AOC authorising Aerial Advertising for Aerial Work purposes.
This condition is not in dispute.
Schedule
This would set out the Sydney, Melbourne, Brisbane and Adelaide routes already approved by CASA.
81. The applicant objects to this provision, as it reflects CASA’s proposed wording for condition 5. As I have concluded that condition 5 should stand, the Schedule should also remain as it is.
82. For the reasons given above, therefore, the reviewable decision should be remitted to CASA for the reconsideration of conditions 1 and 11 in accordance with the recommendations in these reasons.
I certify that the 82 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: .....................................................................................
AssociateDate/s of Hearing 7 and 8 April 2005
Date of Decision 3 May 2005
Counsel for the Applicant Mr N Hutley SC
Solicitor for the Applicant Mr B Martin, Norton Smith
Counsel for the Respondent Mr B Shields
Solicitor for the Respondent Mr G Parkin, Office of Legal Counsel, CASA
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