SAFETY FIRST: WHAT THE SUPREME COURT’S DECISION AND THE PILOTS’ ASSOCATION’S WIN MEANS TO THE RUNWAY EXTENSION – AND HOW WIAL IS TRYING TO GET AROUND IT

Legal matters can be confounding to the lay person, to say the least, and the ongoing saga of the New Zealand’s Air Line Pilots’ Association (“NZALPA”) vs the Civil Aviation Authority (CAA) Director (“the Director”) and Wellington Airport International Limited (“WIAL”) has been more confounding than most. This saga started back in at least 2013, when WIAL asked the Director of Civil Aviation to consider allowing a 90m minimum runway safety area (“RESA”) when extending the runway into Evans Bay, to the North. The Director agreed, based on WIAL’s provided cost-benefit analysis, that such an extension would only need the minimum 90m RESA. However, he also said that clear costings had to be provided first, and that the ruling was provisional only. NZALPA’s peer review of the cost-benefit analysis (CBA) provided by WIAL found significant short-comings (as have all other CBAs provided by WIAL since!).

When the airport decided to instead put the extension South, into Cook Strait in 2014, it went back to the Director with assessments for a 100m, 200m and 300m extension, at similar costs as the $1 million per linear metre quoted to the North. The Director again accepted the airport’s reasoning that a 90m minimum RESA was sufficient. However, since this decision, WIAL has further changed the design to now be 355m to the South, at a cost of $330m. Shouldn’t this change have required another decision by the Director?

Instead, NZALPA had to go to court to get the Director to reconsider their decision, as the pilots asserted he had erred in law when considering cost to WIAL instead of safety when deciding what was a “practicable” safety margin when extending the runway. The initial High Court ruling went with the airport and Director, but a Court of Appeal then overruled the High Court Judge, meaning the final step was for WIAL and the Director to take NZALPA all the way to the Supreme Court. Which they did, in mid-2017, thus halting the Environment Court process we had been embroiled in since mid-2016.

Now, in the meantime, WIAL continued to push ahead with its runway extension as if this quite major safety issue was of no consequence to their plans. Indeed, they originally never even provided the Director with any other safety considerations, such as a longer RESA or an engineered material arresting system (EMAS), such as crushable concrete. The latter could have meant a shorter RESA than the “240m minimum… if practicable” that was prescribed as a standard in the 2004 Civil Aviation Act. However, the airport never bothered to even investigate such an option and the Director, wrongly as it turned out, simply took the airport’s considerations without asking for more safety options to be provided. On page 28-29 of their decision, the Supreme Court states:

Starting with what the Rules require rather than with what the airport operator proposes is not an inconsequential difference of approach. Rather, it is a matter of mindset, and the Director’s mindset in this case is illustrated by his first reason for refusing to consider an EMAS solution, namely because it was not part of WIAL’s “decision”, so that he did not have any information about it. It may be that an EMAS is not a viable technique at Wellington and could be quickly dismissed, but the Director did not turn his mind to its merits even though it was a matter raised by NZALPA in the course of consultations. He did not see that as part of his function, which was, as he perceived it, focused on assessing what WIAL had proposed. This is an erroneous approach.

In the end, the Supreme Court was very clear in its decision when it sided with NZALPA against WIAL and the Director:

By basing his decision on a cost/benefit analysis, the Director acted as if the Act had not been amended in 2004. To that extent, we consider he erred in law. The Director should consider that application in the light of the Court’s reasoning.

The Supreme Court also rejected WIAL’s frankly ridiculous claim that the Court of Appeal’s ruling would mean that current operations were threatened due to the minimum 90 m RESA at Wellington’s, and several other AustralAsian airports:

Counsel for the Director and for WIAL argued that if a 90 m RESA was not acceptable for an extended runway, it was therefore not acceptable for the runway as presently configured. We do not accept the hypothesis that the Director’s determination in relation to a proposal to extend the runway has necessary consequences for current, previously accepted arrangements at the airport. This is because we consider that what is “practicable” must be assessed in the particular context in which the issue is raised.

So, to sum up, WIAL wasted everyone’s time and money, since 2013, by simply ignoring its obligations to the safety of its passengers. The Civil Aviation Director erred in devolving his decision to WIAL as the operator, despite the 2002 warning by experts that “the incentives and interests of airport operators and regulators do not always coincide. Clearly, in promulgating the Rules, the Minister considered that an airport operator’s decision as to RESA length should be subject to independent regulatory scrutiny.” What is worse, is that the Association for pilots and air traffic controllers – whose primary mandate is passenger safety! – was dragged through several years of unnecessary court proceedings and smeared by WIAL in the media in the process (as patsies of Air New Zealand, among other things).

And last, but certainly not least, the millions of ratepayer dollars that were wasted on a half-baked proposal which may have to go back to the drawing board, pending on another CAA Director decision. The Guardians of the Bays and dozens of other groups have also spent 1000s of volunteer hours and $10,000s of dollars fighting the runway extension in an Environment Court case which was utterly premature – as the Judge pointed out to WIAL. WIAL forced the public through the convoluted process of making 100s of submissions, finding experts and lawyers and reading 5000 pages of technical reports, when it clearly knew this decision was still outstanding and could jeopardise the whole project. We are glad that someone has finally stepped in and stopped this madness before more costs are paid by the community.

However, there is now an update to the proceedings: WIAL has asked the Environment Court yet again to postpone its hearings and is trying to get the CAA Director (again!) to agree to the same 90m RESA this entire rigmarole started. Even though the Environment Court Judge was clearly unhappy with WIAL’s abuse of everyone’s time and resources, it did give them until October 31, 2018 to get another decision on the RESA. It does seem pretty unlikely, after the Supreme Court rebuke, that the CAA Director will simply take WIAL’s word into account that it is too costly to provide a longer RESA or EMAS – despite the obvious safety benefits that would entail (the difference between a 90m and 240m RESA in undershoots that aren’t captured is 17% and in overshoots it is 27%!).

Even though WIAL does acknowledge it could install a 130-140m RESA by taking out the grass bank at Cobham Drive and replace it with a structural retaining wall (which they think is “easy” to get a resource consent for), it is basically pushing the CAA Director to make the same flawed decision based on the same flawed arguments – that the financial benefits to the airport should override the international safety requirements New Zealand is signed up to. We hope that the Director will take the Supreme Court decision and reminder to his responsibilities, particularly in light of the changes to the Civil Act in 2004 (which now include not just safety and security, but also access and mobility, public health and environmental sustainability) more seriously and will deny WIAL the less-safe option. Although – when the Guardians asked, under the Official Information Act, to see the whole application by WIAL, the CAA Director simply refused, quoting sections of the law but no reason how these sections would apply in this instance. We have no choice but to ask the OIA Ombudsman to get involved. And so, the saga continues…

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