New Zealand Aviation Federation (Inc) v Civil Aviation Authority of New Zealand
[2021] NZHC 2674
•7 October 2021
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2020-485-000332
[2021] NZHC 2674
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER OF
an application for review
BETWEEN
NEW ZEALAND AVIATION FEDERATION (INC)
Applicant
AND
CIVIL AVIATION AUTHORITY OF NEW ZEALAND
First Respondent
THE DIRECTOR OF CIVIL AVIATION
Second Respondent
Hearing: 12 & 13 April 2021 Counsel:
G D Pearson and M Byczkow for the Applicant K I Murray and J F Parnell for the Respondents
Judgment:
7 October 2021
Reissued:
11 October 2021
JUDGMENT OF GWYN J
Solicitors:
Civil Aviation Authority, Wellington Isherwood Le Gros, Nelson
Copy to:
Kim Murray, Wellington Grant Pearson, Nelson
NEW ZEALAND AVIATION FEDERATION (INC) v CIVIL AVIATION AUTHORITY OF NEW ZEALAND [2021] NZHC 2674 [7 October 2021]
TABLE OF CONTENTS
Introduction [1]
The parties [5]
Regulation of civil aviation in New Zealand [9]
Move to Global Navigation Satellite Systems [20]
“New Southern Sky” (NSS) [24]
Legal context [32]
International [32]
New Zealand [40]
Civil Aviation Rules (CAR) and the Exemptions [41]
Powers to make rules and exemptions from rules [41]
CAR Subpart D [45]
Other CARs relevant to GPS IFR operations [52]
The 2010 Exemption and the 2020 Exemption [54] The principal issue – what does CAR 19.207(3) mean? [61] The NZAF’s submission [62]
CAA’s submission [75]
Discussion [86]
Meaning of CAR 19.207(3) [90]
Grounds for relief [105]
Did the Director have authority under 37(2)(d) of the Act to issue the Exemption?
[108]
The Director imposed conditions on the 2020 Exemption that rendered it wholly
ineffective [114]
Was the 2020 Exemption issued for the purpose of de facto regulation of PBN?
[117]
Was the 2020 Exemption an abuse of a discretionary power? Was the respondents’ conduct of this litigation in bad faith? [123]
Was the Director required to consult with the aviation industry before issuing the 2020 Exemption? [129]
Was the 2020 Exemption unreasonable? [132]
Result [134]
Costs [135]
Appendix A: 2010 Exemption Appendix B: 2020 Exemption
Introduction
[1] This judicial review application arises in the context of the operation of civil aircraft in New Zealand. The New Zealand Aviation Federation (NZAF) seeks a declaration that an exemption from a requirement in the Civil Aviation Rules, which was issued by the Director of the Civil Aviation Authority of New Zealand (CAA) on 10 August 2020, is void and of no effect.1
[2] The exemption in question (the 2020 Exemption) relates to a provision in the Civil Aviation Rules (CAR) concerning the operation of an aircraft under Instrument Flight Rules (IFR) using Global Positioning System (GPS) as a primary navigation system.
[3] The NZAF pleads a number of review grounds, including lack of statutory authority, exercise of a power for an improper purpose (de facto regulation of performance based navigation), and Wednesbury unreasonableness – all of which ultimately turn on the interpretation of the Civil Aviation Rule governing flights which use GPS equipment as their primary means of navigation: CAR 19.207(3).
[4] The NZAF also alleges improper purpose by the Director of the CAA (“the Director”), alleging that the issue of the 2020 Exemption was an attempt to thwart this proceeding, which was filed by the NZAF on 29 June 2020 challenging an earlier exemption relating to the same CAR which had been issued on 1 December 2010 (the 2010 Exemption).
The parties
[5] The New Zealand Aviation Federation was established in 1981. Its member organisations represent all General Aviation (GA) sectors, ranging from agricultural and aerial work service providers to private, sport and recreational aviation, powered and non-powered. The NZAF’s membership also includes model aircraft, remote piloted aircraft, balloons and parachute operations. “General Aviation” encompasses
1 Except to the extent that it revokes an earlier Exemption Notice, issued in 2010.
“all civil aviation operations other than scheduled air services and non-scheduled air transport operations for renumeration or hire”.2
[6] The NZAF’s member organisations have a combined membership of more than 10,000, of which more than 6,000 are licensed aviators, who represent over 4,000 registered aircraft.
[7] New Zealand is a signatory to the Convention on International Civil Aviation (the Chicago Convention)3 which sets out the international law framework for civil aviation and establishes the International Civil Aviation Organisation (ICAO). As well as being a contracting state to the ICAO, New Zealand is also a party to the Tokyo, Hague and Montreal Conventions. The CAA is the government agency that oversees aviation safety and security in New Zealand and sets the rules that underpin that safety and security. The CAA is the authority in New Zealand that regulates the standards and recommended practices contained in the ICAO annexes.
[8] The Director of Civil Aviation is the chief executive of the CAA and is appointed under s 72I of the Civil Aviation Act 1990 (the Act). Submissions were advanced jointly on behalf of the Director and the CAA and for ease of reference I refer to them collectively as the CAA.
Regulation of civil aviation in New Zealand
[9] Before I consider the specific issues that arise in this case, it is necessary to provide some context about the regulation of civil aviation in New Zealand.
[10] Both in New Zealand and globally, aviation is highly regulated for safety purposes. Military and civilian aircraft share New Zealand airspace. The New Zealand Defence Force has its own rules and procedures, but these must take account of all civil aviation laws and procedures to ensure that both types of operations can occur safely in the same airspace.
2 Statistics Division of the International Civil Aviation Organisation Review of the Classification and Definitions Used for Civil Aviation Activities X, STA/10-WP-7 (16 October 2009) at 6.
3 Convention on International Civil Aviation 15 UNTS 295 (signed 7 December 1944, entered into force 4 April 1947).
[11] In the context of civil aviation operations, there is a fundamental distinction between aircraft operating according to Visual Flight Rules (VFR) and those operating according to Instrument Flight Rules (IFR). The details of these rules are set out in the New Zealand Civil Aviation Rules.
[12] Where an aircraft is operating according to VFR, the pilot in command of the aircraft is responsible at all times for operating in visual meteorological conditions (VMC), in which pilots have sufficient visibility to fly the aircraft and maintain separation from terrain and other aircraft. The pilot must at all times maintain visual reference with the ground or water and maintaining separation from other aircraft – the “see and avoid” rule. Accordingly, the pilot of an aircraft operating according to VFR is not required to be trained to fly solely by reference to instruments. The typical VFR pilot would therefore quickly lose control of his or her aircraft upon entering cloud or otherwise losing visual reference with the surrounding terrain.
[13] Operations flying according to IFR, on the other hand, must be able to be conducted safely on the basis that the pilot may not have any visual reference with the ground or water, from almost immediately after take-off until just prior to landing. IFR flying consequently involves a high degree of initial and ongoing pilot training to ensure that pilots are able to maintain control of the aircraft throughout a flight, and navigate the aircraft safely and correctly in accordance with promulgated routes, entirely by reference to instruments. To this end, a pilot flying according to IFR must hold an Instrument Rating in addition to any flight crew licence, such as a Private Pilot’s Licence, Commercial Pilot’s Licence or Airline Transport Pilot’s Licence.
[14] Where IFR aircraft operations occur in controlled airspace, ensuring adequate separation between aircraft is the responsibility of Air Traffic Control (ATC). In New Zealand, the Director designates various types of controlled airspace, and the Airways Corporation of New Zealand (Airways) provides an air traffic control service for all aircraft in controlled airspace. Airways, which is a state-owned enterprise, is the designated Air Navigation Service Provider (ANSP) in New Zealand.
[15] All IFR flights must be preceded by the filing of an instrument flight plan to an appropriate Air Traffic Service unit.4 The flight then proceeds according to specific “clearances” to operate on specific tracks at specific altitudes. These clearances are typically given by way of VHF radio communications between controller and pilot on various frequencies, depending on the location and phase of flight. Clearances may be provided by a ground controller, an on-route controller or an approach controller.
[16] Each aircraft operating in controlled airspace is equipped with a secondary surveillance radar (SSR) transponder which transmits position and identification data for use by the relevant ATC centre when the aircraft is within SSR coverage. This enables the controller to provide a radar-based air traffic separation service. Radar coverage within New Zealand is sporadic because of the country’s mountainous terrain. Some controlled airspace is outside radar coverage; traffic separation in these areas is therefore provided through procedural techniques using speed, time and reported position.
[17] When operating outside controlled airspace, the pilot of an aircraft is responsible for traffic separation, as aided by traffic information provided by an Air Traffic Service Unit.
[18] Therefore, each aircraft – whether in instrument meteorological conditions (IMC) or VMC – operates according to specific procedures for safe navigation. At all times an IFR pilot must have a high degree of situational awareness and understand exactly where the aircraft is in space, both laterally and vertically, in order to maintain a minimum distance from terrain and separation from conflicting traffic.
[19] In summary, while the air traffic controller has the primary responsibility for separation between aircraft in controlled airspace, the pilot has primary responsibility for traffic separation in uncontrolled airspace, and for the safe navigation of the aircraft at all times. For decades, this was achieved using a system of ground-based navigation aids (GBNA). GBNA are ground-based in the sense that transmitters send signals from a station on the ground. Generally speaking, the signals travel in a line of sight, and therefore require an unobstructed path from the station to the aircraft. However,
4 Civil Aviation Rules, 91.407(a).
the increasing availability and accuracy of global navigation satellite systems (GNSS) means that GNSS has become the preferred means of aircraft navigation.
Move to Global Navigation Satellite Systems
[20] A global effort to fully transition from GBNA-based point-to-point navigation to GNSS has been led by the ICAO, which in 1994 mandated a worldwide transition to satellite navigation systems. The international strategy for this transition is set out in the ICAO’s Global Air Navigation Plan (GANP) (2013-2028).5
[21] In 1997 Part 19 Subpart D of the CAR introduced regulation of GPS equipment6 for IFR operations in New Zealand and defined primary, sole and supplemental means of navigation. CAR Subpart 19D requires that primary means navigation systems must meet accuracy and integrity requirements, but not continuity of service or availability requirements. Sole means navigation systems must meet all four requirements.
[22] CAR Subpart 19D permits pilots to use GPS as a primary means navigation system, provided that the aircraft has an underlying ground-based navigation system which can be reverted to in the event of a loss of GPS navigation capability. GPS is therefore referred to as only a “primary means” of navigation, and not a “sole means” of navigation. CAR 19.209 prohibits the use of GPS as a sole means system for IFR navigation within the New Zealand domestic flight information region (FIR).
[23] CAR Subpart 19D was issued at a time where GNSS operations were relatively new. It therefore reflects a conservative approach to the use of GNSS operations.
“New Southern Sky” (NSS)
[24] New Zealand’s longer-term response to the ICAO’s GANP was to initiate a National Airspace and Air Navigation Plan (NAANP) in June 2014, which was developed under the name “New Southern Sky” (NSS). One of the streams of work
5 Global Air Navigation Plan for CNS/ATM Systems (ICAO Doc 9750-AN/963 (2013).
6 GPS is the system of GNSS approved for New Zealand; there is no material difference between the terms ‘GPS’ and ‘GNSS’ for the purpose of this case.
developed by the NSS is Air Navigation, which is focused on moving from ground- based navigation, which uses radio signal transmitter beacons, to performance-based navigation (PBN).7 The aim of the plan is to take advantage of the benefits delivered by GNSS, while minimising the risks posed by the vulnerabilities of the system (which include space weather events with the capacity to render the system inoperative over a wide area, jamming, spoofing, terrain masking, and aircraft system failures). As part of this transition, Airways has removed some GBNAs from certain flight routes.
[25] The NSS programme undertook a technical and policy analysis on the implications of sole means GNSS for New Zealand. The major recommendation of the resulting GNSS Sole Means Report (2015) (Sole Means Report) was that:8
… GPS sole means navigation does not provide an adequate level of safety within the New Zealand FIR. It lacks the ICAO PBN Manual’s requirement for continuity. This creates vulnerabilities, and the New Zealand aviation system does not provide sufficient mitigation to these risks without having access to an alternative navigation system.
For operations within New Zealand FIR to continue and to remain harmonised internationally, this report recommends that New Zealand explores various options for continued navigation in the event of a loss of GPS signals. The report explores the dependency of RNAV and RNP operations on GPS and identifies risks or issues associated with loss of GPS signals. Although this risk of signal loss has not been quantified, events show that the risk of an interference event should not be ignored. Interference can be caused, amongst other things, by jamming, terrain masking, or space weather. It could be intentional or unintentional, and have local, national or international impacts. The options for continued navigation in an interference event could be in the form of a reversion plan to enable continued but limited (and potentially modified) PBN, and/or an alternative positioning, navigation and timing system to enable continued and seamless PBN.
[26] The relevant NSS Working Group, which included Ian Andrews, who is the current president of the NZAF and the principal witness for the NZAF in this case, endorsed the findings of the Sole Means Report. The Report was subsequently peer reviewed by Jeff Cochrane, a global expert on GNSS, who proposed some refinements but otherwise endorsed the Report’s findings. The Sole Means Report was approved by the Director of Civil Aviation on 14 December 2015.
7 Performance-based rules prescribe a particular outcome, compared to prescriptive rules that prescribes how something must be done.
8 Beth Coughlan and Ray Harvey GNSS Sole Means Recommendation Report (Civil Aviation Authority of New Zealand, 16 November 2015) at 2.
[27] The evidence on behalf of the CAA is that, more recently, traditional GPS navigation has evolved into PBN, which is described in the Executive Summary of the ICAO PBN Manual in the following terms:9
Performance-based Navigation (PBN)
The PBN concept specifies that aircraft RNAV [area navigation] and RNP [required navigation performance] system performance requirements be defined in terms of the accuracy, integrity, availability, continuity and functionality, which are needed for the proposed operations in the context of a particular airspace concept. The PBN concept represents a shift from sensor- based to performance-based navigation. Performance requirements are identified in navigation specifications, which also identify the choice of navigation sensors and equipment that may be used to meet the performance requirements. These navigation specifications are defined at a sufficient level of detail to facilitate global harmonization by providing specific implementation guidance for States and operators.
Under PBN, generic navigation requirements are defined based on operational requirements. Operators then evaluate options in respect of available technology and navigation services, which could allow the requirements to be met. An operator thereby has the opportunity to select a more cost-effective option, rather than a solution being imposed as part of the operational requirements. Technology can evolve over time without requiring the operation itself to be reviewed, as long as the expected performance is provided by the RNAV system. As part of the future work of ICAO, it is anticipated that other means for meeting the requirements of the navigation specifications will be evaluated and may be included in the applicable navigation specifications, as appropriate.
PBN offers a number of advantages over the sensor-specific method of developing airspace and obstacle clearance criteria, i.e.:
(a)reduces the need to maintain sensor-specific routes and procedures, and their associated costs;
(b)avoids the need for developing sensor-specific operations with each new evolution of navigation systems, which would be cost- prohibitive;
(c)allows for more efficient use of airspace (route placement, fuel efficiency and noise abatement);
(d)clarifies how RNAV systems are used; and
(e)facilitates the operational approval process for operators by providing a limited set of navigation specifications intended for global use.
9 Performance-based Navigation (PBN) Manual ICAO Doc 9613 AN/937 (2008), at I-(iii)-(iv).
[28] In New Zealand GPS is the navigation system that underpins the majority of PBN operations. The regulation of PBN operations is therefore predicated on the GPS rules.
[29] The NSS plan is intended to result in new Civil Aviation Rules based on PBN principles. The evidence from Stuart Worden, a principal policy advisor within the CAA, is that the CAA conducted an assessment of existing CARs to identify any areas which may impact on the successful transition to PBN in New Zealand. Over 50 rule or guidance issues were identified that might hinder or obstruct the successful implementation of PBN. Of these, four areas were identified where changes to CARs were necessary to address deficiencies of existing rules. Mr Worden’s evidence was that these changes were combined into a regulatory change package to be progressed by the CAA as a policy project. This package of regulatory change proposals includes requirements relating to the safe extraction and recovery of aircraft in the event of PBN system failure and proposes revoking CAR 19.207.
[30] In place of CAR 19.207 and the 2020 Exemption, the CAA has proposed introducing a high-level, performance-based rule requirement with a supporting advisory circular (AC) setting out acceptable means of compliance with that requirement. As Mr Worden notes, a performance-based rule provides the option for other means of compliance to be used where the methods set out in the AC are not appropriate for a given situation.
[31] The CAA’s expectation is that the new CAR will be signed off by the Minister of Transport and come into effect sometime in 2021. If and when that happens, the exemption regime under s 37 of the Act would become redundant and the 2020 Exemption would be revoked.
Legal context
International
[32] The Chicago Convention sets out the international aviation law framework and establishes the ICAO.
[33] The key provision in the Chicago Convention relevant to this proceeding is Article 28, which relates to Air Navigation Facilities and Standard Systems. Article 28 provides in part:
Each contracting State undertakes, so far as it may find practicable, to:
(a)Provide, in its territory, airports, radio services, meteorological services and other air navigation facilities to facilitate international air navigation, in accordance with the standards and practices recommended or established from time to time, pursuant to this Convention;
…
[34] International standards and recommended practices (SARPs) are made pursuant to a law-making function conferred on the ICAO by the Chicago Convention. The SARPs are set out in documents which are referred to as annexes to the Chicago Convention. There are currently 19 annexes.
[35] The annex containing the SARPs relevant to this proceeding is Annex 10 Aeronautical Telecommunications Volume 1 (Aeronautical Navigation Aids).
[36] The SARPs in the annexes to the Chicago Convention are not binding on member States, although Article 37 of the Chicago Convention does impose an obligation on every contracting State to “… collaborate in securing the highest practicable degree of uniformity in regulations, standards, procedures and organisation”.
[37] In relation to those provisions in the annexes designated as “standards” (as opposed to recommended practices), Article 38 of the Chicago Convention obliges States to notify the ICAO if the State finds it impracticable to comply in all respects with any such standard. The ICAO also publishes extensive guidance material to assist States with their application and implementation of the SARPs.
[38] The Chicago Convention itself does not form part of the law of New Zealand. In New Zealand Airline Pilots’ Association v Attorney General, Keith J considered in
detail the relationship between the Chicago Convention, the rules promulgated under the ICAO’s law-making functions, and New Zealand law, noting that:10
The broad point is that some of the provisions of the convention and annexes are appropriate in their subject-matter and drafting for direct application in the law of New Zealand, others require detailed national legislation, while still others do not call for national legislation at all.
…
[That] does not call into doubt the obligation and the ability of New Zealand to comply with the convention and annexes. Rather, the point is that the giving of full effect to the provisions of those texts in the law of New Zealand is required in some cases and not in others, and that, if national legal effect is needed, the effect might be given more or less directly.
[39] I observe at this point that although Mr Andrews says in his evidence that New Zealand “does not comply” with rules promulgated by the ICAO in some relevant respects, the NZAF does not plead any specific breach of ICAO rules. The NZAF does rely on ICAO guidance material in support of its interpretation of CAR 19.207(3), which I discuss at [62] below.
New Zealand
[40]The hierarchy of New Zealand’s aviation safety regulatory system is:
(a)the Civil Aviation Act 1990 (the Act);
(b)Civil Aviation Regulations (relating to offences and fees);
(c)Ordinary civil aviation rules made by the Minister under s 28 of the Act;
(d)Emergency CARs made by the Director under s 31 of the Act;
(e)Exemptions made by the Director under s 37 of the Act; and
(f)Advisory circulars issued by the Director.
10 New Zealand Airline Pilots’ Association v Attorney General [1997] 3 NZLR 269 (CA) at 285.
Civil Aviation Rules (CAR) and the Exemptions
Powers to make rules and exemptions from rules
[41] The Minister has power under s 28 of the Act to make rules for a number of specified purposes. These are called ‘ordinary rules’. The Minister may also make rules relating to safety and security under s 29, to airspace under s 29A, to noise abatement under s 29B, to general matters under s 30, and emergency rules under s 31.
[42] The Governor-General has power under s 34A, by Order in Council on the recommendation of the Minister, to make, amend or revoke any ordinary rule for any of the purposes for which the Minister may do so under Part 3 of the Act.
[43] The procedures relating to ordinary and emergency rules, matters to be taken into account in making rules, and the procedure for making ordinary rules are set out in ss 32, 33 and 34 respectively. Section 34 requires the Minister, before making any ordinary rule, to publish a notice of his or her intention to do so11 and consult, including with persons and representative groups within the aviation industry.12
[44]Under s 37 of the Act the Director has a power of exemption:
37 Exemption power of Director
(1)The Director may, if he or she considers it appropriate and upon such conditions as he or she considers appropriate, exempt any person, aircraft, aeronautical product, aerodrome, or aviation related service from any specified requirement in any rule made under section 28, 29A, 29B, or 30.
(2)Before granting an exemption under subsection (1), the Director shall be satisfied in the circumstances of each case that—
(a)the requirement has been substantially complied with and that further compliance is unnecessary; or
(b)the action taken or provision made in respect of the matter to which the requirement relates is as effective or more effective than actual compliance with the requirement; or
(c)the prescribed requirements are clearly unreasonable or inappropriate in the particular case; or
(d)events have occurred that make the prescribed requirements unnecessary or inappropriate in the particular case,—
11 Civil Aviation Act, s 34(1)(a).
12 Section 34(1)(b)(i).
and that the risk to safety will not be significantly increased by the granting of the exemption.
(3)The number and nature of exemptions granted under subsection (1) shall be notified as soon as practicable in the Gazette.
(4)Nothing in this section shall apply in any case where any rule specifically provides that no exemptions are to be granted.
CAR Subpart D
[45]CAR Subpart D is headed “IFR operations: GNSS”.
[46]“Sole-means navigation system” is defined in CAR 19.203 as:
a navigation system approved for a given operation or phase of flight that must allow the aircraft to meet, for that operation or phase of flight, all four navigation system performance requirements: accuracy, integrity, availability, and continuity of service
[47] In the New Zealand Flight Information Region, a person is not permitted to operate an aircraft under IFR using GPS as a sole means of navigation. This rule is captured in CAR 19.209(a):
A person shall not operate an aircraft under IFR using a sole means navigation system, which uses only GPS sensors, within the New Zealand Flight Information Region.
[48]“Primary-means navigation system” is defined in CAR 19.201 as:
a navigation system approved for a given operation or phase of flight that must meet accuracy and integrity requirements, but need not meet full availability and continuity of service requirements. Safety is achieved by limiting flights to specific time periods, and through appropriate procedural restrictions:
[49] CAR 19.207 permits, with a number of conditions, IFR operations which use GPS as their primary means of navigation. The key such requirement for the current proceeding is contained in CAR 19.207(3), which provides:
19.207 Primary means GPS operations
Each person operating an aircraft under IFR using GPS equipment as a primary means navigation system shall—
…
(3) ensure, if the aircraft is operating within the New Zealand flight information region, that the aircraft is equipped—
(i)for air transport operations, with at least 2 operable sole means navigation systems other than GPS receivers. The sole means navigation systems must be appropriate for the route being flown; and
(ii)for operations other than air transport operations, with at least 1 operable sole means navigation system other than GPS receiver. The sole means navigation system must be appropriate for the route being flown; …
[50] Thus, for air transport operations (operations carrying passengers or goods for hire or reward) using GPS equipment as a primary means navigation system, the aircraft must be equipped with at least two operable sole means navigation systems, other than GPS, that are appropriate for the route being flown; and for operations other than air transport operations, the aircraft must be equipped with at least one operable sole means navigation system, other than GPS, that is appropriate for the route being flown.
[51] Essentially, this means that an operator wanting to use GPS as a primary means of navigation must have conventional (i.e. non-GPS) navigation equipment onboard that is “appropriate” for the route being flown. What that phrase requires is the central issue in this case and is discussed later in this judgment.
Other CARs relevant to GPS IFR operations
[52] Other rules also apply to New Zealand operators conducting air transport operations using GNSS as a primary means of navigation. These rules relate to redundancy in the event of a system failure. They are separate from but complementary to the GPS rules and the 2020 Exemption.
[53] CARs 125.353(1)(ii), 121.353(1)(iii), and 135.353(1)(ii) set out the requirement that an aircraft be equipped:
with the number of instruments and equipment to ensure that the failure of any independent system required for either communication or navigation purposes, or both, will not result in the inability to communicate and navigate safely as required for the route being flown;
The 2010 Exemption and the 2020 Exemption
[54] In 2010, the Director issued an exemption notice under s 37 of the Act (the 2010 Exemption) which exempted, with conditions, certain primary means GPS flights from the requirement under CAR 19.207(3) to be equipped with two other sole means navigation systems. The exemption took the form of Exemption Notice 11/EXE/7 dated 1 December 2010, which is set out at Appendix A to this judgment. Since it was issued, the 2010 Exemption has been utilised to facilitate the use of GPS as a primary means of navigation for aircraft in New Zealand.
[55] The evidence advanced for the CAA was that the 2010 Exemption was intended to be an interim measure until new CARs could be made which more comprehensively dealt with the whole subject of GNSS and replaced the current transitional rules in CAR Subpart 19D.
[56] On 10 August 2020, the Acting Director of Civil Aviation issued a replacement exemption from CAR 19.207(3), Exemption Notice 11/EXE/7 Revision No. 1, dated 10 August 2020 (the 2020 Exemption). The 2020 Exemption is set out at Appendix B to this judgment.
[57] The NZAF initially challenged the validity of the 2010 Exemption. By its amended statement of claim it now seeks relief in relation to the 2020 Exemption.
[58] The CAA acknowledges that there were two deficiencies in the 2010 Exemption. First, it did not use the exact words of CAR 19.207(3). Second, it was drafted in such a way as to inadvertently exempt operators from both limbs – that is, not only from the “appropriate for the route” requirement, but also (inadvertently) the requirement that operators carry non-GNSS navigation systems.
[59] The NZAF’s first Statement of Claim reflected these two deficiencies. As it pleaded, in order to be exempt from having onboard the aircraft another sole means navigation system in addition to GNSS, operators needed to also be exempted from CAR 19.209, which provides that a person shall not operate an aircraft under IFR using a sole-means navigation system which uses only GPS sensors. The 2010 Exemption did not, nor did it purport to, exempt operators from CAR 19.209. The NZAF also
complained that, in its view, the 2010 Exemption imposed additional operational restrictions on operators over and above those contained in CAR Subpart 19D.
[60] The 2020 Exemption revoked and replaced the 2010 Exemption.13 The evidence for the CAA is that the replacement was intended to merely correct the deficiencies identified at [58] above, rather than fundamentally change the purpose or conditions of the 2010 Exemption.
The principal issue – what does CAR 19.207(3) mean?
[61] Although this case on its face focuses on the 2010 and 2020 Exemptions, it is in fact a case about the interpretation of CAR 19.207(3). Answering the question what exactly this provision means will therefore resolve a number of the NZAF’s specific claims relating to the Exemptions from that provision.
The NZAF’s submission
[62] The NZAF says that CAR 19.207(3) “requires no more and no less than the carriage of the standard ground-based navigation systems”; it concerns only the minimum equipment required onboard an aircraft and is not concerned with how that equipment is deployed. In support of that argument the NZAF provided a side by side comparison between CAR 19.203 and the ICAO provision dealing with the same matters.14 Art 6.26 of that document says “The terminology in 6.24 [referring to primary means GNSS] applies to the required state of avionics e quipage …”15 Accordingly, the NZAF says, CAR 19.207(3) is satisfied if an aircraft has the full array of non-GNSS navigation equipment on board, regardless of whether that equipment corresponds to any GBNA on the route flown.
[63] The NZAF says that all aircraft operating within the New Zealand FIR do have the full array of such equipment on board. It therefore takes no issue with the requirement for aircraft operators to carry that equipment.
13 I discuss below the reasons for and process involved in the revocation of the 2010 Exemption and substitution of the 2020 Exemption.
14 Global Air Navigation Plan for CNS/ATM Systems, above n 5, art 6.26.
15 Emphasis added.
[64] The NZAF’s argument instead turns on its understanding of the meaning of the second requirement of 19.207(3) (i) and (ii) – that “the sole means navigation systems must be appropriate for the route being flown”. In its submissions, it said that the “appropriate for the route” requirement “can only mean that an operator cannot reply on NDB equipment if the route relies on a VOR, and vice versa … if the VOR system is unserviceable, the aircraft cannot rely on an NDB system if a VOR approach is part of the route.”
[65] This entails that CAR 19.207(3) requires the aircraft to be equipped with the non-GNSS navigation equipment that corresponds to the GBNA available for the particular route; for example, if NDB (non-directional radio beacon) was the only GBNA available on the particular route, it would not be sufficient if the aircraft was equipped only with VOR (very high frequency (VHF) omnidirectional radio range): the navigation system being carried would not be “appropriate for the route being flown”, and the operation would not comply with CAR 19.207(3). However, this scenario could only ever be hypothetical, as all operators in New Zealand carry equipment required to fly using both VOR and NDB signals because they carry the full suite of non-GNSS equipment.
[66] While the NZAF acknowledges that aircraft flying air transport operations must be equipped with at least two sole means navigation systems that match the GBNA available on a particular route, it says that it is not a requirement that the aircraft be able to access signals from that GBNA. Carriage of the required navigation systems is sufficient to meet the requirements of the rule. IFR operators will always have available a sole means of navigation “appropriate” for any routes being flown, as an alternative to GPS, whether or not the aircraft can in fact access ground-based signals. If the aircraft is outside the range of ground-based navigation aids in the case of a GPS failure, its operator can dead reckon to a point where it can receive position or tracking information from another IFR navigation source.16
16 Dead reckoning refers to the practice of navigation without access to an accurate ongoing position source, on the basis that if a starting point is known, data relating to heading, wind, air speed and time may be used to extrapolate an approximate position at any point.
[67] In the NZAF’s view, therefore, a primary means GPS flight operator is not required to have constant access to a ground-based signal, or fly only routes with underlying ground-based navigation aids, to comply with CAR 19.207(3). It need only have the requisite non-GNSS navigation equipment on board.
[68] Since, as the NZAF points out, all aircraft used in IRF operations are already equipped with the usual suite of non-GNSS navigation equipment by default, there is no route for which that suite of equipment would be inappropriate. NZAF’s interpretation would thus render the “appropriate for the route” requirement a nullity.
[69] The effect of CAR 19.207(3) as interpreted by the NZAF would be that, before the Exemptions were issued, aircraft were permitted to operate using GPS navigation in areas where there are no GBNA, with no additional measures.
[70] Based on that interpretation, the NZAF says that the 2020 Exemption imposes additional conditions on operators using primary means GNSS navigation equipment (namely, that the flight must be planned and fuelled in such a way that it can transition to an alternative, ground-based, navigation system in the event of GNSS equipment or signal failure), and prohibits the previously permitted practice of dead reckoning to a nearby GBNA route in the event of GNSS navigation failure. It says that the 2020 Exemption is thus a de facto, and therefore unlawful, regulation by the Director. It acknowledges that additional restrictions could be imposed by the Director by way of an emergency rule under s 31 of the Act (if the circumstances in that section are met) or by the Minister under s 28 of the Act. Each of those rulemaking powers is conditioned by a statutory obligation to consult with the relevant representative groups.17 No restrictions relevant to this proceeding have been imposed under those sections.
[71] In support of its submission that the 2020 Exemption imposes additional conditions on operators, the NZAF called evidence about the Exemption’s impact on air rescue helicopter services. The NZAF says that helicopters are particularly affected by the 2020 Exemption because they do not have the same fuel capacity, and hence the same flight range, as fixed wing aircraft. The conditions in the 2020 Exemption,
17 Sections 35(1) and 34(1)(b)(i).
particularly condition 5 which requires flights to be “planned and fuelled in such a way that if at any time during the flight the GNSS system fails, the aircraft can transition to an alternative navigation system and if necessary, alternate aerodrome”, are therefore particularly detrimental to emergency services which use helicopters. Affidavit evidence, in identical form, was given by Kenneth Franklin, the Chief Executive Officer of Helicopter Emergency Services New Zealand Limited, and Craig Gibbons, the Chief Executive Officer of Northern Rescue Helicopter Limited.
[72] Mr Franklin and Mr Gibbons expressed their concern that the 2020 Exemption imposes an additional obligation on operators and pilots which could have the effect of stopping air ambulance IFR missions in certain circumstances. Their evidence appears to be premised on the same understanding of CAR 19.207(3) as that advanced by the NZAF.
[73] Both witnesses refer specifically to what they call “the requirement to carry a GBNA alternative so that an aircraft can navigate to a non-weather-required alternate and use that GBNA to land”. They say that this requirement can create two situations where they could not undertake their air ambulance missions:
(a)first, where the alternate aerodrome is too distant and the aircraft cannot carry sufficient fuel for the required distance; and
(b)second, where the commencing altitude of the approach to an alternate airfield is above the freezing level for that flight (for example, a low- level IFR flight of 1200 feet, between Dunedin hospital and Invercargill hospital, where the approach to Invercargill airport, as the alternate, is at 4,000 feet, often at least 1500 feet above the freezing level).18
[74] In conclusion, based on its interpretation of CAR 19.207(3), the NZAF says that the Director was acting outside of her statutory powers under s 37 when she purported to issue the 2020 Exemption. Further, she purported to exercise that power for an improper purpose, being the maintenance of what the applicant describes as the
18 The freezing level is the lowest altitude in the atmosphere over a given location at which the air temperature reaches 0ºC.
“de facto regulatory basis for many aspects of Performance Based Navigation (PBN) regulation”.
CAA’s submission
[75] The CAA rejects the NZAF submission that CAR 19.207(3) is concerned only with equipage of the aircraft. It contends that CAR 19.207(3) requires two things. First, that the operator must have on the aircraft at least two non-GNSS navigation systems (for air transport operations) or at least one operable non-GNSS navigation system (for other operations) and, second, that ground-based navigation aids must actually be available on the route being flown. If the second criterion is not met such that there is no GBNA coverage available (for instance, no GBNA at the destination aerodrome) the navigation system being carried by the aircraft will not be “appropriate for the route being flown”.
[76] The CAA notes that the ICAO guidance referred to by the NZAF is guidance material only and is not binding on New Zealand authorities. Necessarily it must be for each state to draft its own legislation.
[77] The CAA’s interpretation is fundamentally different to the interpretation advanced by the NZAF, which contends that the words “appropriate for the route” do not require the non-GNSS equipment on board an aircraft to correspond to GNBA on that route.
[78] The evidence covered the historical reasons for the “appropriate for the route” requirement and the development of technology that led to the issue of the 2010 Exemption. Over time the GPS system became more reliable with increased availability due to an increase in the number of GPS satellites (GPS receivers require signals from a number of satellites in order to fix a position – typically five or six, depending on the type of internal integrity monitoring used). In addition, operators in New Zealand became more experienced with using GPS navigation. These two factors meant that there was a demand for GPS navigation outside the terms of the relevant CAR. The CAA obtained further evidence on the reliability of satellite systems through a safety case conducted by Professor Brian O’Keefe based on the statistical analysis of failures of satellite systems and ground-based systems.
[79] The development of the 2010 Exemption is explained in the Sole Means Report in the following terms:19
To remain compliant with CAR Part 19D, routes and procedures were initially developed with underlying ground based navigation aid infrastructure to provide continuity of service to GPS as primary means. This approach, however, limited the PBN benefits. As PBN was introduced, RNAV/RNP20 routes and procedures offered the potential of shorter distances and greater efficiency. As a result, routes and procedures were developed that deviated from the intent of the rules. They include sectors that do not have underlying ground based NAVAID21 coverage and are therefore flown with GPS as the sole source of lateral navigation data for IFR flight.
(footnotes added)
[80] The underlying rationale for the Exemption is that the increased number of satellites in the GPS system now provide the necessary technical and legal basis for an exemption, with the remaining risks posed by relying solely on GPS navigation mitigated by the requirement to comply with the conditions set out in the 2010 Exemption.
[81] As the CAA puts it, the 2010 Exemption was an attempt to recognise the increased reliability of GPS navigation systems, and provide some relief from the requirements of the rules, but also to put an onus on operators to plan for contingencies in the event of GPS failure (whether through on-board signal failure or the loss/degradation of the signal). The CAA says that the 2020 Exemption allows for relief from the requirement in CAR 19.207(3) that an aircraft must remain within GBNA coverage by imposing conditions that mitigate the associated increase in risk
– that is, that the aircraft must be planned and fuelled to be able to recover using a sole means navigation system (or reversion to VFR) in the event GPS navigation capability is lost.
[82] The CAA gives, as an example, the routes to Masterton and Wanaka. Prior to the 2010 Exemption, aircraft could not lawfully operate according to IFR on these routes relying only on GPS navigation, because those aerodromes do not have GBNAs. IFR aircraft operating into Masterton or Wanaka would be equipped with the
19 GNSS Sole Means Recommendation Report (above, n 8) at 2.2.1.
20 RNAV is area navigation. RNP means required navigation performance.
21 NAVAID is navigational aid.
usual GBNA receivers, but if the GPS signal is lost there is no GBNA information being transmitted to the aircraft’s GBNA receivers. There would therefore be no sole means navigation system available as a backup to the failed GPS systems. The evidence for the CAA is that the 2010 and 2020 Exemptions have allowed operations into aerodromes such as Masterton and Wanaka. I note that, consistent with its interpretation of CAR 19.207(3), the NZAF’s position is that the Exemption was not required for operations into Wanaka and Masterton because aircraft would be carrying the full suite of sole means navigations systems, other than GPS receivers.
[83] The CAA rejects the NZAF’s submission that dead-reckoning would not be allowed under the 2020 Exemption.22 Mr Nicholl, a flight operations inspector for the CAA, says that while dead reckoning is not used as a primary IFR navigation technique in New Zealand,23 it can be useful as an emergency measure to transition from one form of navigation to another during a loss of navigation scenario, provided its accuracy limitations are allowed for. By implication, he says, the 2020 Exemption “relies on a well-considered and controlled dead-reckoning segment to be utilised as a contingency measure in a loss of GPS scenario, i.e. when transitioning to a position from which GBNA-based navigation can be resumed.”
[84] In response to the NZAF’s submission on the impact of the Exemption on air rescue helicopter services, the CAA acknowledges that the requirement of the 2020 Exemption to stick to routes with GBNA available will mean that air rescue helicopter services will not be able to carry out some missions, but says that that is for a very good reason. If GPS navigation capability is lost, and there are no GBNA available, the aircraft will have lost all navigation aids and would have to revert to a dead-reckoning extraction procedure. The requirement to stick to routes with GBNA available entails that operators must be able to transport a patient safely, even in the event of GPS navigation failure.
[85] William Smyth, who is employed by the CAA and is Director of the NSS plan, also notes that, contrary to the NZAF’s submission, there is no such “requirement” to
22 Mr Andrews’ evidence says that the CAA and the Director state that “dead reckoning to get to a nearby GBNA route is prohibited”.
23 This form of navigation is subject to increasing errors over time and is therefore of limited use in normal IFR navigation.
“navigate to a non-weather-required alternate”. He says that the GBNA infrastructure that supports the recovery of aircraft – the Minimum Operational Network (MON) – provides GBNA for exactly the opposite condition: when a GPS outage is experienced and the weather conditions necessarily require an instrument approach to a GBNA- equipped aerodrome.
Discussion
[86] It is apparent that this dispute reflects frustration within the aviation industry at the limitations imposed by the CAA on GNSS navigation notwithstanding the international and national mandate to transition to satellite navigation systems, at the same time that some GBNA are being removed by Airways as part of that transition. As Massey Lynch, in his evidence for the CAA, succinctly put it, “what [the] industry expected to get from GPS navigation and PBN was very significantly more than the actual restricted operations that they are now aware of”.24
[87] Mr Lynch’s view is that most in the aviation industry believe that GNSS is a superior navigation system compared to conventional navigation systems, and that it should be authorised for use as a sole means navigation system in New Zealand in the same way that it is authorised in Australia25 and the United States.26
[88] He notes the industry frustration at a situation where a changing navigation structure – PBN – is being imposed, but with a delay in the associated rulemaking processes. Mr Lynch says:
Essentially NZ has changed its IFR navigation system to PBN which is enabled by GNSS and therefore by default forced operators to undertake equipage upgrades and complete considerable operational and approval processes with CAA. While inconvenient, arduous and expensive, these changes so far have been achievable by most operators.
24 Mr Lynch is the Operations Manager/Captain of Philips Search and Rescue Trust. Mr Lynch’s experience includes training and examining IFR pilots on both GNSS and conventional FIR navigation. As a flight examiner, he has trained many pilots in GNSS operations and has conducted many GPS endorsement assessments.
25 Australian Civil Aviation Safety Authority Advisory Circular 91.U-04: Airworthiness requirements for performance based navigation (11 February 2015).
26 United States Federal Aviation Administration Advisory Circular 90-105A: Approval Guidance for RNP Operations and Barometric Vertical Navigation in the U.S. National Airspace System and in Oceanic and Remote Continental Airspace (7 March 2016).
[89] The perception underlying the NZAF’s case it is that it is the 2020 Exemption, not CAR 19.207(3), that restricts IFR flights from using GNSS as a sole means navigation system. Mr Lynch says, in response, that it is not the Exemption that causes this issue but the rule itself; the very fact that GPS is not a sole means navigation system means that its use comes with the burden of contingency provisioning. The introduction of PBN and accompanying restrictions, combined with Airways’ removal of some GBNAs, has made IFR operations more restrictive and in some specific cases prevented IFR where it was previously possible.
Meaning of CAR 19.207(3)
[90] CAR 19.207(3)(i), the provision at issue in this case, has a number of elements. It relates to:
(a)air transport operations (operations carrying passengers or goods for hire or rental);
(b)operating under IFR;
(c)using GPS as the primary means navigation system;
(d)within the New Zealand FIR;
[91]It requires of such operations that:
(a)the aircraft is equipped with at least two operable sole means navigation systems other than GPS receivers;27 and
(b)those sole means navigation systems are appropriate for the route being flown.
[92] The essence of the NZAF’s argument is that CAR 19.207(3) relates only to the carriage of navigation equipment. Under the NZAF’s characterisation of the rule, all
27 The requirement for air transport operators to carry a minimum of two GNSS receivers is to mitigate the risk of onboard equipment failure, so that the risk is limited to GNSS signal failure or interference.
aircraft used in IFR operations equipped with the usual suite of GBNA receivers will therefore have on board the sole means navigation equipment “appropriate” for any routes being flown, whether or not GBNAs are available to provide signals to those receivers on a particular route.
[93] That being so, in the NZAF’s view, the 2020 Exemption adds nothing in that respect, but does impose additional, unnecessary and unauthorised conditions.
[94] The NZAF’s interpretation conflates the two requirements of CAR 19.207(3)(i) at [91] above. In my view those two limbs underline that a navigation system entails both:
(a)the equipment on board the aircraft; and
(b)the associated ground or space-based navigation components appropriate to the route.
[95] That is consistent with a purposive approach to the provision. I arrive at that conclusion for the following reasons.
[96] First, the NZAF’s interpretation of CAR 19.207(3) would make the requirement to carry that equipment largely redundant: there is no point in requiring aircraft operators to carry non-GNSS navigation equipment if they are no longer required to fly only on routes where there are GBNA that correspond to that equipment and it is possible for that equipment to receive signals from those GBNA.
[97] The 2020 Exemption is not an exemption from the requirement to carry at least two operable sole means (i.e. non-GNSS) navigation systems. That would be prohibited by CAR 19.209(a), which expressly prohibits the use of GPS as a sole means navigation system. One of the purposes of the 2020 Exemption was to remove the erroneous wording of the 2010 Exemption which inadvertently suggested that operators were exempt from the requirement to carry such equipment. The 2020 Exemption is, however, an exemption from the second limb of the rule: the
requirement that the non-GNSS sole means navigation equipment be “appropriate” for the specific route segment.
[98] It might be argued, as the NZAF does, that exempting operators from the requirement that the equipment be “appropriate” renders the (retained) requirement to carry the equipment itself redundant. However, the 2020 Exemption relates to the specific navigation systems used for the route being flown, not to general equipage. Aircraft are still expected to be able to revert to an alternative navigation system in the event of GNSS failure – then to fly an approach to land at an alternate aerodrome or using an alternate approach. This is reflected in condition 5 of the 2020 Exemption, which provides:
5. Flights employing GNSS primary means navigation are planned and fuelled in such a way that if at any time during the flight the GNSS system fails, the aircraft can transition to an alternative navigation system and if necessary, alternate aerodrome;
Air transport aircraft require two sole means navigation systems to do this. The requirement to carry non-GNSS navigation equipment is therefore not redundant even though the 2020 Exemption allows operators to fly on routes for which that equipment is not “appropriate”.
[99] Second, the NZAF’s interpretation of CAR 19.207(3) is not consistent with the safety objective of the legislative regime, which is:28
to establish rules of operation and divisions of responsibility within the New Zealand aviation system in order to promote aviation safety
[100] As detailed at [9]-[19] above, the CAR provide a highly regulated framework for the safe operation of civil aviation in New Zealand.
[101] I accept the CAA’s submission that if its interpretation of CAR19.207(3) is wrong, then an aircraft could lawfully operate using GPS as a sole means navigation system outside areas with GBNA, with no requirement for additional measures. Such
28 Civil Aviation Act 1990, long title (a).
an interpretation would be at odds with public safety.29 As this Court has previously said, “Where public safety is an issue the Court simply cannot take any risk.”30
[102] Third, the rule must be read in context, including how IFR routes are designed and promulgated in the New Zealand FIR. Mr Lynch’s evidence for the CAA clarifies this context. He refers to the New Zealand Enroute IFR Charts (ENRC) which describe the New Zealand domestic IFR route network. As Mr Lynch notes, these routes are clearly defined and labelled as Conventional (supported by sole means NAV Aids) or RNAV 2 (supported by GNSS).31 The routes depicted on these charts designate the type of route and the associated route operating limitations (ROL). The charts also depict the navigation aid that is applicable to the route, i.e. VOR, NDB or GNSS. Mr Lynch’s view is that the phrase “appropriate for the route being flown” can only mean the navigation aid(s) defined on the chart as pertaining to the associated specific route segment. I agree with that interpretation.
[103] I agree with Mr Lynch when he says compliance with CAR 19.207(3) is not possible if an operator intends to operate on any route segments between waypoints unrelated to a sole means navigation aid (GBNA). Hence the need for the Exemption.
[104] I conclude that the words of CAR 19.207(3)(i) impose more than a minimum equipment requirement. Those words require both the carriage of the specified equipment and the ability to access the GBNA on the route being flown. If an operator wishes to fly using GNSS navigation on a route where GBNA is not accessible, it may do so, provided it (1) carries the specified equipment, and (2) complies with the conditions set out in the 2020 Exemption.
Grounds for relief
[105]I turn now to the grounds for relief pleaded by the NZAF. These are:
(a)illegality – acting outside of statutory powers;
29 Support for that view is found in July 2020 correspondence from Air New Zealand Ltd’s Chief Ops and Integrity Officer, Captain Morgan, to the CAA, where he highlighted the potential safety risks if the Exemption (at that point, the 2010 Exemption) were to be removed.
30 International Heliparts NZ Ltd v Director of Civil Aviation [1997] 1 NZLR 230 at 238.
31 Aeronautical Information Publication New Zealand Enroute Rules and Procedures 3.2-123.23.
(b)illegality – abuse of discretionary powers; and
(c)Wednesbury unreasonableness.
[106] There is considerable overlap in the detail of each of these broad grounds and I have attempted to identify each specific ground pleaded, as follows:
(a)the 2020 Exemption does not “exempt” any person from a specified requirement of a CAR;
(b)the 2020 Exemption amounts to de facto regulation of PBN and only the Minister is authorised to regulate in that way;
(c)the issue of the 2020 Exemption (and associated revocation of the 2010 Exemption) was an attempt to avoid the outcome of the NZAF’s initial claim seeking a declaration that the 2010 Exemption was void;
(d)the 2020 Exemption creates a meaningless exemption in order to defeat the NZAF’s pleading;
(e)the Director did not consult on the issue of the 2020 Exemption; and
(f)the Director had regard to an irrelevant factor in issuing the 2020 Exemption; namely, she had regard to this proceeding and revoked the 2010 Exemption and issued the 2020 Exemption in order to get rid of the proceeding.
[107]Each of these specifics is encompassed under the headings that follow.
Did the Director have authority under 37(2)(d) of the Act to issue the Exemption?
[108]Section 37 of the Act provides:
37 Exemption power of Director
(1)The Director may, if he or she considers it appropriate and upon such conditions as he or she considers appropriate, exempt any person, aircraft, aeronautical product, aerodrome, or aviation related service
from any specified requirement in any rule made under section 28, 29A, 29B, or 30.
(2)Before granting an exemption under subsection (1), the Director shall be satisfied in the circumstances of each case that—
(a)the requirement has been substantially complied with and that further compliance is unnecessary; or
(b)the action taken or provision made in respect of the matter to which the requirement relates is as effective or more effective than actual compliance with the requirement; or
(c)the prescribed requirements are clearly unreasonable or inappropriate in the particular case; or
(d)events have occurred that make the prescribed requirements unnecessary or inappropriate in the particular case,—
and that the risk to safety will not be significantly increased by the granting of the exemption.
…
[109] As I understand it, the NZAF’s argument is that the 2020 Exemption does not fall within s 37 because it does not exempt any person from any specified requirement of any CAR; it adds nothing to what the rule already requires. Rather, it is intended by the Director to be the de facto basis of regulation for many aspects of performance- based navigation. The NZAF says that the respondents regard the 2020 Exemption as applicable to all IFR flights using GPS equipment as a primary means navigation system, even those complying fully with CAR 19.207(3) to which the exemption applies.
[110] In response, the CAA says that the 2020 Exemption provides an exemption from the second part of CAR 19.207(3)(i) and (ii) only - that is, the requirement that the sole means navigation systems must be “appropriate for the route”. It does not exempt an operator from the requirement under the first limb to carry two operable sole means navigation systems other than GPS receivers.
[111] Having regard to my finding as to the meaning of CAR 19.207(3) at [104] above and the consequential finding that the 2020 Exemption does not apply to the onboard equipment, but only to the associated ground or space-based navigation components appropriate to the route, I conclude that the 2020 Exemption does exempt
operators from a specified requirement of the CAR (subject to stated conditions) and was therefore granted within the Director’s power under s 37(2)(d).
[112] As the CAA submitted, operators are not obliged to rely on the 2020 Exemption. They may choose to do so to mitigate the rigour of CAR 19.207(3), in which case the conditions contained in the 2020 Exemption will apply.
[113] Since the 2020 Exemption does exempt operators from an identified provision in the Civil Aviation Rules, it was issued within the Director’s power of exemption under s 37.
The Director imposed conditions on the 2020 Exemption that rendered it wholly ineffective
[114] The NZAF says that the Director’s Exemption power, under s 37 of the Act, is to exempt operators from a specified requirement of a CAR. The 2020 Exemption imposed a condition (Condition 5) in order to access the exemption from the requirement to carry equipment “appropriate for the route”.
[115] The NZAF alleges that it is not permissible under either the CARs or the principles of good airpersonship to plan, fuel and embark on a flight in reliance on a navigation system that is not appropriate for the route being flown.
[116] This appears to be a continuation of the claim made in relation to the 2010 Exemption, to the effect that the 2020 Exemption also purports to exempt operators from both limbs of the provision. Given my finding at [97] above, this specific claim must fail.
Was the 2020 Exemption issued for the purpose of de facto regulation of PBN?
[117] The NZAF pleads that the issue of the 2020 Exemption was an abuse of the Director’s discretionary power, in that she issued the 2020 Exemption for the purpose of maintaining the de facto regulatory basis for many aspects of PBN regulation. Only the Minister, or the Governor-General by order in council, may make CAR to regulate PBN.
[118] The NZAF puts much weight on a statement by Ryan Nicholl, who is currently a Flight Operations Inspector with the CAA. In an email from Mr Nicholl to Steve Smyth and others, dated 26 June 2020, Mr Nicholl said “Greg [Baum] has suggested one possible approach might be to revise 11/EXE/7, which has become the de-facto regulatory basis for many aspects of PBN regulation”.
[119] For the CAA, Mr Nicholl says he referred to the 2020 Exemption in this way because it is the current interim basis on which primary-means GPS navigation and PBN can be facilitated for aircraft operators.
[120] I accept that Mr Nicholl used the phrase “de facto regulatory basis” as a layperson, rather than in a technical legal sense.
[121] I also accept that the rationale behind the 2020 Exemption is to provide some relief for operators from the strict requirements of the rules, in a situation where GNSS is becoming increasingly reliable, but where that reliability is not reflected in the 1997 CAR, pending new CAR being approved and implemented.
[122]Therefore this aspect of the claim of illegality is not made out.
Was the 2020 Exemption an abuse of a discretionary power? Was the respondents’ conduct of this litigation in bad faith?
[123] The NZAF alleges that the issuing of the 2020 Exemption was a deliberate attempt to thwart its proceeding in relation to the 2010 Exemption and that, in effect, the respondents misled the Court when they sought further time to file a statement of defence in the proceedings on 10 August 2020. It says that the Director abused her power under s 37 of the Act by exercising the power to issue an exemption with the intention of defeating the NZAF’s proceedings which, as originally filed, challenged the lawfulness of the 2010 Exemption. The proceedings were not relevant to the exercise of the statutory power.
[124] The NZAF filed its statement of claim, seeking a declaration that the 2010 Exemption was void and of no effect, on 29 June 2020. The NZAF’s objection is that in the period following filing of the claim the respondents took steps to revoke
the 2010 Exemption and replace it with the 2020 Exemption. The Acting Director was in the process of doing so – and, the NZAF says, fully understood the underlying issues
– when, on 10 August 2020, the respondents’ counsel told the Court that he had only limited instructions at that stage and requested the Court to provide further time for the respondents to file a statement of defence. At that time, counsel for the CAA did not disclose to the Court that the revocation and replacement of the 2010 Exemption was imminent.
[125] The NZAF refers to an email sent by Mr Worden on 8 July 2020 in support of its submission that the CAA was attempting to delay matters. In that email, Mr Worden said:
The timeframe for this work [putting in place a new PBN regulatory framework, involving removal of 11/EXE/7] is such that we expect 11/EXE/7 to be gone within a year, and from my (limited) knowledge of the process I would be surprised if a judicial review process could be completed by then, or even if a judge would agree to progressing it while there was a rule amendment process underway.
[126] The CAA’s response is, first, that it was only when the CAA’s legal advisors became involved that it became apparent that the 2010 Exemption was deficient in the two respects identified at [58] above. The NZAF’s solicitors had not pointed out those defects to the CAA before filing its statement of claim on 29 June 2020.
[127] The CAA notes that the 2010 Exemption had been in place for almost 10 years when the NZAF’s first statement of claim was filed. Even if successful, the best outcome of the proceeding would be revocation of the Exemption a few months before its expected revocation and replacement with new CAR. In those circumstances, the CAA and the Acting Director thought it possible and desirable to avoid the need for the NZAF’s claim to go to hearing. The Acting Director declined to meet with the NZAF representatives because the NZAF said if she declined it would be held against her in relation to costs in the proceeding.
[128] I accept that the respondents’ lawyers were not aware of the deficiencies in the 2010 Exemption until they received the NZAF’s statement of claim. I also accept that the respondents acted in good faith in moving to rectify the problem and issued the 2020 Exemption which corrected the two defects in the 2010 Exemption, in the
reasonable expectation that in doing so continuation of the proceeding might be averted.
Was the Director required to consult with the aviation industry before issuing the 2020 Exemption?
[129] The NZAF says that the Director exercised her powers without prior consultation, in breach of ss 34 (relating to the making of ordinary rules) and 35 (relating to the making of emergency rules) of the Act.
[130] Only the Minister32 and the Governor-General33 have the power to make an ordinary rule. However, the Director was not making an ordinary rule when she issued the 2020 Exemption. Section 35 of the Act gives the Director power to make an emergency rule. Again, I find that she was not purporting to do so.
[131] The exemption power of the Director in s 37 of the Act, under which the Exemption was issued, does not create a requirement to consult. Therefore the fact that the Director did not consult before issuing the Exception is not a breach of the Act.
Was the 2020 Exemption unreasonable?
[132] Finally, the NZAF submits that the 2020 Exemption is unreasonable in the Wednesbury sense because, it says, the 2020 Exemption is “manifestly incoherent” and inconsistent with the statutory power the Director purported to exercise.34
[133] Having regard to my finding as to the meaning of CAR 19.207(3) and consequentially the ambit of the 2020 Exemption, this claim too must fall away.
Result
[134] For the reasons set out above, all aspects of the NZAF’s claim must fail and I decline to grant the declaratory relief sought.
32 Civil Aviation Act 1990, s 34.
33 Section 34A.
34 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1.
Costs
[135]I have found for the respondents on all claims. Costs should follow the event.
Gwyn J
Appendix A: 2010 Exemption
11/EXE/7
Exemption from the Requirement in Civil Aviation Rule CAR 19.207 (3)
PURSUANT TO Section 37(2)(d) of the Civil Aviation Act 1990, I, Steve Douglas, Director of Civil Aviation, being satisfied that—
(a)events have occurred, namely
(i)the increase in the number of satellites in the GPS system, and
(ii)the increase in experience with use of GPS as a navigation system, and
(iii)the commissioning of a statistical safety case
that makes the requirement in CAR 19.207(3) that aircraft navigation using GPS as a primary navigation system are limited to routes that have an underlying ground based system unnecessary and
inappropriate; and
(b)the risk to safety will not be significantly increased by the granting of this exemption,
HEREBY EXEMPT—
each person operating an aircraft under IFR using GPS equipment as a primary means navigation system
FROM—
the requirement in Civil Aviation Rule CAR 19.207(3) that each person operating an aircraft under IFR using GPS equipment as a primary means navigation system shall ensure, if the aircraft is operating within the
New Zealand flight information region, the aircraft is equipped
i.for air transport operations, with at least 2 operable sole means navigation systems other than GPS receivers. The sole means systems must be appropriate for the route being flown; and
ii.for operations other than air transport operations, with at least 1 operable sole means navigation system other than GPS receivers. The sole means systems must be appropriate for the route being flown;
ONLY WITH RESPECT TO—
operations conducted in aircraft equipped with GNSS receivers approved on the form 2129 for primary means en-route, terminal, and non-precision approach operations,
PROVIDED THAT—
1.The aircraft is approved for GNSS operations in accordance with CAR 19.207(1); and
2.The crew confirms the validity of the navigation data in compliance with 19.207(5); and
3.The GNSS is operated in accordance with the manufacturer’s operating instructions; and
4.The flight crew meets the appropriate RNAV (GNSS) qualification and currency requirements; and
5.Flights employing GNSS primary means navigation are planned and fuelled in such a way that if at ay time during the flight the GNSS systems fails, the aircraft can transition to an alternative navigation system and if necessary, alternate aerodrome; and
6.In the case of air transport operations,
·En-route and terminal operations requiring GNSS may be conducted by aircraft equipped with at leas tone operable GNSS receive, and
·Approach operations requiring GNSS may only be conducted by aircraft equipped with at least two operable GNSS
receivers; and
·The diversion procedures must be promulgated in the operator’s route guide or similar, and accepted by the CAA before the GNSS instrument flight procedure is used.
This exemption shall remain in effect unless withdrawn in writing by the Director.
SIGNED at Petone )
)
This 1st day of December 2010 )
)
By Steve Douglas)
)
Director of Civil Aviation )
Appendix B: 2020 Exemption
11/EXE/7
REVISION NO. 1
Exemption from the Requirement in Civil Aviation Rule CAR 19.207 (3)
PURSUANT TO Section 37(2)(d) of the Civil Aviation Act 1990,
I, Shelly Turner, Acting Director of Civil Aviation, being satisfied that—
(a)events occurred, namely
(i)the increase in the number of satellites in the GPS system, and
(ii)the increase in experience with the use of GPS as a navigation system, and
(iii)the commissioning of a statistical safety case
that makes the requirement in CAR 19.207(3) that aircraft navigation using GPS as a primary navigation system are limited to routes that have sole means navigation systems other than the GPS receivers or receiver appropriate for the route being flown unnecessary and inappropriate; and
(b)the risk to safety will not be significantly increased by the granting of this exemption,
HEREBY EXEMPT—
each person operating an aircraft under IFR using GPS equipment as a primary means navigation system
FROM—
the requirement in Civil Aviation Rule CAR 19.207(3) that the sole means navigation systems referred to in subparagraphs (i) and (ii) must be appropriate for the route being flown;
ONLY WITH RESPECT TO—
operations conducted in aircraft equipped with GNSS receivers approved on the form 2129 for primary means en-route, terminal, and non-precision approach operations,
PROVIDED THAT—
1.The aircraft is approved for GNSS operations in accordance with CAR 19.207(1); and
2.The crew confirms the validity of the navigation data in compliance with 19.207(5); and
3.The GNSS is operated in accordance with the manufacturer’s operating instructions; and
4.The flight crew meets the appropriate RNAV (GNSS) qualification and currency requirements; and
5.Flights employing GNSS primary means navigation are planned and fuelled in such a way that if at any time during the flight the GNSS system fails, the aircraft can transition to an alternative navigation system and if necessary, alternate aerodrome; and
6.In the case of air transport operations,
·En-route and terminal operations requiring GNSS may be conducted by aircraft equipped with at least one operable GNSS receiver; and
·Approach operations requiring GNSS may only be conducted by aircraft equipped with at least two operable GNSS receivers; and
·The diversion procedures must be promulgated in the operator’s route guide or similar, and accepted by the CAA before the GNSS instrument flight procedure is used.
This exemption revokes and replaces 11/EXE/7 dated 1 December 2010 and shall remain in effect unless withdrawn in writing by the Director.
SIGNED at Wellington )
)
This 10th day of August 2020 )
)
By Shelley Turner)
)
Acting Director of Civil Aviation )
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