The price of safety - Supreme Court finds aviation regulator too focused on cost

The highest court in NZ says a decision to keep safety areas at each end as short as possible was wrong.

Yesterday, the Supreme Court said the Director of Civil Aviation Authority made an error when accepting plans to extend Wellington Airport's runway without increasing its safety areas.

Reporter Michael Cropp takes a look back at the issue

New Zealand’s top aviation safety boss has been criticised by the country’s highest court for accepting plans to extend Wellington Airport’s runway without increasing its safety.

The Director of the Civil Aviation Authority told the airport it could stick with the minimum level of safety legally required if it extends its runway.

The airport wants to extend the runway an extra 355 metres into Cook Strait.

Legally, it must have safety buffer zones at each end of the runway – a minimum of 90m either side.

In 2015, the CAA’s Director accepted the proposal with those 90m safety zones, agreeing an increase could not be economically justified.

Now, the Supreme Court says he was wrong to do so because his job is to increase aviation safety – not to minimise the costs of complying with it.

"[It’s] a great day for pilots, air crew, and the wider travelling public," said Captain Tim Robinson, president of the New Zealand Airline Pilots Association after hearing the verdict.

The Director must now review his decision in the light of the court's reasoning.

The CAA Director and the Airport are to pay costs of $30,000 to the pilots, plus reasonable disbursements.

The airport’s chief executive Steve Sanderson said he welcomed the clarity given in the judgment.

"While we need to take time to review the decision and consider our re-application to the Civil Aviation Authority, the Supreme Court’s judgement and interpretation is encouraging and provides more guidance on what the CAA should take into account," he said.

"There is overwhelming support from Wellingtonians for direct long haul flights… We remain committed to the project and will be informing the Environment Court of our next steps in due course."

WHAT’S IT ALL ABOUT

The pilots union spent two years wrangling in the courts with Wellington Airport and the Civil Aviation Authority (CAA) over the meaning of the word "practicable".

Wellington Airport also had the backing of the country’s other airports, with the Airports Association supporting its case.

In a unanimous decision, a full bench of the Supreme Court found the CAA’s Director had "erred in law" when he accepted Wellington Airport’s proposal to keep its 90m safety areas if it extends its runway by an extra 355 metres into Cook Strait.

The law states safety areas at the end of a runway "must extend" to at least 90m, and "if practicable" to at least 240m; or to the greatest distance that is "practicable" between the two.

More on that word later.

A runway end safety area (RESA) is a cleared and graded area where an aircraft can safely come to a stop.

The Supreme Court’s decision puts it starkly: "Overshooting or undershooting the runway is a major cause of aircraft accidents world-wide".

A 240 metre safety area can prevent 90 per cent of such incidents whereas a 90m one can only prevent 68 per cent, the court said.

The vourt heard that in Wellington such an accident would likely result in the death of all onboard – as well as those caught in traffic if the plane went off the northern end onto State Highway 1.

"The risk of such an incident can be likened to the chance of a severe earthquake," Captain Robinson said.

"Although the likelihood of an 'undershoot' or overrun is low when compared to the total volume of air traffic, the consequences can be catastrophic."

NO LONGER 'SAFETY AT A REASONABLE COST' – (aka: the nitty gritty legal stuff)

The case relates to Wellington Airport’s plans to extend the runway 355m into Cook Strait. Beginning in 2012, the Airport asked the CAA Director if it could extend its runway and retain its 90m safety areas.

The Director said 90m was acceptable for several variations: 200m and 300m to the north; and 300m then 355m to the south.

In 2015, he agreed the costs of building the extra safety area outweighed the extra benefits and gave 90m the go-ahead.

The pilots' union disagreed with his assessment, and went to the courts for a judicial review. The union lost in the High Court, but won twice on appeal.

The Supreme Court said the Director’s decision was based on a repealed law, and that "cost [was now] one of 12 mandatory considerations".

It said he was too reliant on the airport's proposal, using that as his starting point, rather than what the rules required.

"To repeat, the Director's responsibility is to enforce the requirements of [the Rules]. They require a RESA of at least 240m if practicable. That should be a starting point," the court said.

Because of the Director’s reliance on the Airport’s work, the Court said he failed to consider whether incremental increases beyond 90m might be justified given the economic benefits of the project or whether an engineered section of crushable concrete (which can rapidly slow a plane) could be used in conjunction with a shorter RESA.

It also said he had mis-interpreted the word "practicable".

The pilots argued practicable meant what could physically be constructed, whereas the CAA and Airport largely argued that it accounted for cost.

The court decided practicable required the Director to take account of the local and international law, the airport’s circumstances, and the context for the request (in this case "as part of a larger project to enhance the capacity of the airport by lengthening the runway").

In doing so, it dismissed an argument put forward by the airport and the CAA that several other airports, including Queenstown, could be forced to repaint the lines on their runway to achieve longer RESAs. That would have made the usable runway shorter, stopping trans-Tasman flights taking off at Wellington or Queenstown.

The CAA said it respected the decision and was still working through the implications.

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