Thank goodness for the Air Line Pilots Association (ALPA). The Court of Appeal has just ringingly found in favour of the pilots’ union over the safety issues raised by the Wellington runway extension.
Not only has the previous High Court ruling been overturned. The Director of Civil Aviation (CAA) has also been ordered told back to the drawing board to properly do the job of evaluating the size of the safety areas required for the extension, in full accord with New Zealand’s international obligations. The pilots union were also compensated by the Court of Appeal judges for their costs in bringing the court action.
Interestingly, the reasoning in the Court of Appeal decision almost exactly mirrored the detailed critique of the original High Court decision made in this Werewolf article last October.
All along, the pilots’ safety-related legal challenge had revolved around the size of the 90 metre long Runway End Safety Area (RESA) being proposed for the runway extension. Basically, the RESA is the safety zone required if and when planes ‘run off’ the runway proper and need to decelerate safely, in the event of an emergency, or because of a runway undershoot or overshoot. A 90 metre RESA at each end is the minimum requirement under the international aviation standards, but is less than the 240 metre zone distance recommended – whenever this is ‘practicable’ – under the rules set by the International Civil Aviation Organisation (ICAO).
As Werewolf pointed out in October, the High Court ruling by Justice Karen Clark had supported a chain of dubious reasoning, based on the CAA Director’s acceptance that a 90 metre sized RESA met the ICAO minimum requirements – and that anything further than this could be validly assessed as to whether the additional costs would be “practicable”. In effect, it meant that beyond the 90 metre length RESA minimum, safety issues would be rendered liable to a cost benefit analysis by airport management, and with this dubious process receiving a CAA stamp of approval, and validation by the High Court. Not any more.
The issue hinges – as Werewolf argued and the Court of Appeal has also followed – on the wording of the relevant Part 139 of the Civil Aviation Act and on Annex 14 of the ICAO regulations: “A RESA must extend to a distance of at least 90 metres and, if practicable to a distance of at least 240 metres from the end of the runway strip.” In the High Court, a lot of freight got heaped onto that key word “practicable.”
By way of a possible compromise, the pilots’ union had all along proposed to accept a RESA distance shorter than 240 metres if an artificial buffer zone called an EMAS (for Engineered Materials Arrestor System) was installed in Wellington, of sufficient quality as to create, in effect, a 240 metre RESA safety zone. Basically, an EMAS is made of crushable materials into which the plane wheels can sink, thereby bringing an overshooting (or undershooting) aircraft safely to a halt. One telling sign of the difference between a 90 metre RESA and a 240 metre RESA in safety terms? Reportedly, a 90 metre RESA will capture only around 60% of overruns. By comparison, a 240 metre one will capture over 90%.
The legal battle – in both the High Court and the Court of Appeal – was waged over the tension between what the relevant aviation rules require, and what they recommend, given that the ICAO rules and New Zealand regulations allow for an unspecified degree of discretion, which was duly exercised by the CAA Director in greenlighting the 90 metre RESA minimum length – even though the ICAO advocated far longer where “practicable.” Many of the legal arguments turned on how far the notion of what is “practicable” should have been pursued by the CAA, and to what degree safety recommendations should be weighed against the cost of compliance, given what’s known of the risks involved.
Is it desirable for best safety practices to be traded off against what is “practicably” affordable – in a context where many bigger, heavier and faster landing aircraft on long haul flights (ie laden with jet fuel) will be flying into the notoriously weather-challenged Wellington International Airport in future? After Pike River, many New Zealanders would probably have expected the authorities to err on the side of caution, on matters of health and safety.
Not this time – or not initially, anyway. Arguably, the airport management/CAA/High Court line had defended the minimum safety regulations as good enough – and with anything costing more as being either not “practicable” or at the very least, facing an uphill battle to justify its existence. This, as the Court of Appeal has now found, is not what “practicable” means in the context of New Zealand’s airline safety obligations.
The indefensibility of the CAA/High Court position (as Werewolf showed last October) was most readily demonstrated with respect to the pilots’ suggested EMAS arrestor system compromise. Werewolf’s inquiries with the main international supplier of EMAS systems revealed an installation cost of circa $NZ14 million, which would add only an extra 4.66% to the mooted $300 million cost of the entire runway extension. This would seem entirely “practicable” on cost grounds, one would have thought.
Yet bizarrely, the High Court defended the CAA Director’s refusal to even consider an EMAS, because – Justice Clark reasoned last July – the legislation doesn’t expressly require him to carry out such an evaluation! Here’s how Justice Clark justified the sidelining of an available, relatively affordable safety option:
 For this argument to succeed NZALPA must identify the source of the obligation on the Director to consider the engineering techniques and construction options realistically available to the airport operator, including the potential for using EMAS, when assessing the practicability of a runway end safety area longer than 90 metres. Mr Rennie’s argument [for NZALPA] relied on “practicable” bearing the ordinary meaning of “actually able to be constructed”. Accordingly, the Director was bound to consider what is actually able to be constructed.
 In undertaking his comprehensive analysis of the proposal put to him the Director was not required to turn his mind to alternatives. Part 139 is silent as to EMAS technology. There is no requirement for EMAS to be installed and no assumption that it will be. Part 139 is dissimilar from Annex 14 which permits shortened runway end safety areas where an arresting system is installed. The focus of Part 139 is on length rather than arresting systems.
Thankfully, the Court of Appeal has now quietly shot this rationale down in flames:
 The other error identified by Mr Rennie was the Director’s failure to consider whether an arresting system might provide the necessary degree of additional safety otherwise available from a 240 metre RESA. He simply discounted this consideration on the ground that the viability of an arresting system had not formed part of [Wellington International Airport Limited] WIAL’s plan or decision.
Clark J justified this omission because Appendix A.1(a)
is silent on arresting system technology the focus on length limits the Director’s function to ensuring the physical characteristics of the RESA are acceptable. However, her observation reinforces the importance of correctly applying Appendix A.1(a)’s emphasis on the safety available from a 240 metre RESA.
 We are satisfied that the Director in exercising his statutory power was bound to consider carefully whether an alternative means of ensuring safety was available without a 240 metre RESA irrespective of whether or not that alternative was referred to in the rule or in WIAL’s plan. In assessing practicability in light of the statutory purposes of aviation safety and New Zealand international obligations, the availability of an arresting system (as an alternative measure referred to in Annex 14 to the Convention) must be a relevant consideration in assessing the acceptability of the RESA length.
In sum, this has been a victory for common sense – and for safety – over cost-cutting expedience. It is now back to the drawing board for the CAA Director, who may well struggle to explain how a RESA beyond 90 metres in length is not ‘practicable.’ There are several options for him to consider. These are (a) whether some length somewhere between the 90 metre minimum and the 240 metres advocated by the ICAO can be found (b) whether some trade-off can be found between the proposed length of the runway and the length of the RESA and (c) whether an EMAS can be installed that either in itself or in combination with a RESA, will be equivalent to a 240 metre RESA.
In itself, this Court of Appeal decision may not be enough to derail the runway extension. Yet given that (a) the project funding (b) its economic viability and (c) the environmental impact of the extension are all looking like uphill battles…it could well be time to finally pull the plug. In the meantime, the Court of Appeal decision will have some obvious downstream implications for the mooted Queenstown airport runway extension as well. Thanks to the pilots union and to the Court of Appeal, the regulation of airline safety has now become something more than a rubber stamp process in this country. In future, it will be harder for passenger safety to be prematurely traded off against cost savings and profit maximisation.