News from Guardians of the Bays

Wellington International Airport’s decision to withdraw its Environment Court application should mark the end of a protracted and costly process for ratepayers, according to community organisations and concerned Wellingtonians opposed to the project.

The Airport first lodged its application for resource consent with the Environment Court in April 2016. That application was put on hold in April 2018 to allow time for serious safety concerns raised by the New Zealand Pilots Association (NZALPA) to be resolved. Those concerns have still not been resolved satisfactorily which is why the airport had to withdraw its consent application.

Co-Chair of Guardians of the Bays Richard Randerson, representing more than 600 concerned individuals as well as other community and ratepayer organisations, said that Wellington Airport had run a protracted and flawed process since they first made the extension proposal.

“There has neither been the demand nor the support for the Airport’s proposal. Wellington Airport has drawn down significant amounts of ratepayer funding for an Environment Court application that has tripped over itself at every turn.

“The Airport is saying it is simply going to redo its proposal and resubmit. Given the many millions of dollars that ratepayers have already paid to the Airport, the Wellington City Council should not commit to any further ratepayer funding for this project.

“The Airport Company’s blind determination to proceed made a mockery of the hundreds of people who submitted against the proposal and of the very real safety concerns about the safety margins that any international airport should meet. The submissions from business, community groups and individuals show up many unanswered questions,” Mr Randerson said.

Co-Chair Dr Sea Rotmann called on the Wellington City Council, representing ratepayers’ shareholding in the Airport company, to call time on any political and financial support for the proposal and put the “White Elephant” proposal to bed, once and for all.

“In this local body election year, it would be an opportune time for all candidates, including the Mayor, to stop this farce once and for all and move on with better projects for our city, like social housing, traffic congestion, infrastructure and earthquake and climate change resilience,” she said.

“The Council’s Low Carbon Capital Plan is also utterly incompatible with support for an extended runway, as aviation emissions are already almost 25 percent of our City’s emissions profile.

“The airport has never had a convincing business case and there is no evidence that airlines will actually use the runway to bring long-haul flights into Wellington. The much-touted ‘Capital Express’ route to Canberra has been canned, after publicly available loading data clearly showed the route was achieving less than a 50 percent passenger loading. And that is despite a $9 million ratepayer subsidy to promote the route.

“We call on Mayor Justin Lester to make good on his promise, made shortly after he was elected last year, that his support was dependent on demand for the route. It has been proven that the demand is not there and yet the Mayor continues to support it.

“The airport extension was going to cost up to $500m according to one expert – much more than the $300 million originally suggested when this process started, four years ago.

“Combined with all the other projects that Wellington City Councillors are also signing up to, ratepayers will be straining under increasing rates and a massive increase in the City Council’s total borrowings, projected to grow from $404.1 million to $806.5 million.

“Wellington ratepayers should not be faced with the financial risk of the extension. The Airport company’s 66 per cent shareholder Infratil have publicly said they are only willing to cover about 17 per cent of the cost.

“What has happened to the many millions of ratepayer dollars of financial support towards the technical reports which are now moot and towards fancy marketing to sell this ill-fated project? It’s time to admit that this has been a costly mistake and to focus on more important infrastructure resilience projects for our city.”

[Ed: note that some typos and mistakes have been corrected and explanatory commentary has been inserted, where relevant]

There will be no satisfactory outcome when a final decision on the Wellington Airport extension resource consent is released, an Environment Court judge has said.

Wellington Airport

Wellington Airport Photo: Supplied

At a judicial conference in the Environment Court, Judge Brian Dwyer heard from opponents who want the resource consent thrown out and Wellington Airport, who want a further six-months to file an application for resource consent.

In March this year, the airport asked for proceedings to be put on hold until October as it dealt with a supreme court ruling about the proposed length of the runway, but now it wasn’t expecting a decision from the Civil Aviation Authority until May [Ed: not March] next year.

Lawyer for Guardians of the Bay and Hue Tē Taka, James Gardiner-Hopkins said it was “deja vu” being back in the courtroom.

He argued that the resource consent had been sought under a direct referral – where the consent is decided by the Environment Court rather than the local council – in order to speed up the process, but that had not happened.

Many of the technical reports were out of date and it would be better to start afresh with a new resource consent that would go through the council, Mr Gardiner-Hopkins said.

“With a restart, there is a greater possibility of community participation.”

“[It will be] a rejuvenated process rather than one that has been left to languish”

Judge Dwyer said it would be almost four years from when the consent was first lodged by the time a decision on the resource consent was made.

He raised concerns that there would have been new residents that had moved to the area in that time who would not have been consulted with.

Legal representatives for Wellington Airport said the company “was anxious to move on with the project but circumstances were out of its control.” [Ed: Choosing to wait until their judicial review over pilots’ safety concerns, which the airport lost in the Supreme Court, was concluded would have meant the circumstances would have been entirely in its control]

They said the company could provide an economic assessment and route development assessment by March.

They refuted Mr Gardiner-Hopkings argument that the legal process was causing stress for his clients, because they said all they were required to do was read reports. The comment drew heckles from Guardians of the Bay members in the room. [Ed: rightfully so]

Wellington Airport lawyers said they have every intention to reapply if the consent is struck-out. [Ed: intention to bully the Judge and residents, that is, but very little evidence was provided that they were actually serious about it]

Jump Jet, a developing regional airline, also submitted against the consent because, it told the court, it couldn’t attract investors until a decision was made.

Judge Dwyer reserved his decision but not before addressing members of the public in the room.

“It doesn’t matter how you look at it, it is totally unsatisfactory – it’s a bit like being in a legal spiders web.”

Outside the courtroom, chair of Guardians of the Bay Dr Sea Rotmann said she was happy with how the day’s proceedings went.

“He will hopefully agree with us that enough is enough and [after] four plus years of a direct referral, that could have been avoided [Ed: not “done”] in the first place if the airport had done its due diligence [Ed: in terms of getting CAA approval over safety right, first].”

She said the community were suffering from “litigation fatigue” after years of the drawn out process and starting again would mean less strain on community resources.

“There is a huge difference in starting it afresh with all the extra money that they are going to need to spend on publicising it – including the council – versus having all the onus on us having to drag the zombie corpses out of the graves [Ed: a colourful way of saying “stale data and proceedings] and do the work for the airport, basically.”

In a statement Wellington Airport said it “is committed to bringing the project to fruition and delivering the benefits for Wellington, the region and the country.” [Ed: translated to mean to bring benefits for its multi-national corporate shareholders by being able to fleece all users of the airport with increased charges]

“There is overwhelming support from Wellingtonians for direct long haul flights. The business community, tertiary and education institutes, tourism organisations and the creative and film sector have all submitted on the benefits they see for the region.

“We now await Environment Courts decision on the application.”

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…

By Sophie Boot

March 19 (BusinessDesk) – Wellington International Airport has asked to put its runway extension resource consent application on hold for nine months, as it plans to re-ask the Civil Aviation Authority for permission for its plan.

The airport, which is two-thirds owned by NZX-listed infrastructure investment company Infratil and 33 percent by Wellington City Council, is seeking the majority of the estimated $330 million runway extension cost from central government and Wellington ratepayers. The 355-metre runway extension would be an effort to attract long-haul flights from Asia and the US.

In 2016, the CAA said a 90-metre runway end safety area (RESA) for the extended runway would be sufficient, which was disputed by the New Zealand Airline Pilots’ Association all the way to the Supreme Court, which rejected the airport’s planned RESA in December last year. International standards call for the RESA to be at least 90 metres, and, if practicable, at least 240 metres.

According to the agenda for the upcoming meeting of the Greater Wellington Regional Council’s environment committee, the airport has asked the Environment Court to adjourn its resource consent application for the extension a further nine months, giving it time to “re-apply to the Director of Civil Aviation for approval to operate the extended runway as proposed.” The court asked for comments on the request from interested parties, it said. 

The council said it’s considering whether the public should be re-notified about the proposed runway extension, which drew much public attention and discussion since it was first mooted in 2012. 

“Parties with an interest in the proposal have been discussing the implications of this delay, and whether the community should be consulted with again given the time that has passed since the application was originally consulted on,” the agenda says. “Should WIAL’s proposal remain unchanged then our preliminary view is that we wouldn’t consider public renotification to be necessary.” 

When the Supreme Court’s ruling was issued last year, the airport’s chief executive Steve Sanderson said it was still committed to extending the runway and would review the judgment. The airport said the court’s judgment and interpretation were “encouraging and provides more guidance on what the CAA should take into account.”

In that judgment, the Supreme Court said the CAA director’s responsibility when assessing plans was to start “with what the rules require rather than with what the airport operator proposes”, and this was “not an inconsequential difference of approach”. The director had not considered an alternative safety mechanism proposed by NZALPA because it wasn’t part of the airport’s plan, which the court said was an “erroneous approach.”

The court also said when considering whether the proposal was practicable, the CAA needed to use a more nuanced approach than it had done. The director had looked at the longer RESA case as a cost/benefit analysis, comparing the costs to the airport against the increased level of safety, but should also have considered the intended benefits to the airport, it said.

“If, for example, an extension to a runway would make available to an airport operator a new and substantial income stream, that additional benefit accruing to the operator may mean that a longer RESA is “practicable”, given that it is accepted that a longer RESA will enhance safety by reducing risk,” the court said. “We should make it clear that we are not suggesting that the director must somehow take into account the benefits to a particular region that may flow from a longer runway (although we note that WIAL did invoke the substantial benefit to the Wellington region when seeking the director’s acceptance of a 90m RESA for the northern extension).”

(BusinessDesk)

A little over week ago, a white Subaru got washed off the Moa Point breakwater by a ‘rogue’ wave. Some reports said the car’s occupants were fishing “at the popular fishing spot”, whilst eye (and social media) witnesses said that 3 people were actually inside the car when the wave struck them. They had to smash their way out through the windows and were lucky to get out of the wild ocean alive.

Photo: Mark Boucher, Stuff

This is not the first time a car was swept off that breakwater, and people have died there in the past, according to locals. An airport spokeswoman wrongly claimed that the metal safety barrier had “recently been damaged by the storm or vandalised”. Now, that ‘barrier’ has long been broken, and the breakwater safety sorely neglected by the airport. As with the entire southern end of the runway, the breakwater is an eyesore full of dangerous rocks, akmons and crevices and open to the pounding southerly waves. We can often watch giant waves break over the entire runway end and the breakwater, with holes spurting water several metres high.

Photo: Fritz Schöne
Photo: Fritz Schöne
Photo: Radio NZ
Photo: Radio NZ – this was from 2015 and you can see that the barrier arm going to the actual breakwater was already damaged

We also often watch people fishing off the breakwater, including taking their vehicles up there. Most fishermen aren’t foolhardy enough to do so in southerly swells but rubberneckers have frequently be seen running away or getting drenched in waves breaking over the runway and breakwater. It is an extremely dangerous area.

Photo taken during massive swell in June 2015 – clearly, no barrier was there to stop public access
Photo: Stuff

However, when it comes to finding the authority responsible for ensuring public safety, the plot thickens considerably. In a series of tweets between Dr Sea Rotmann, our Co-Chair and a Moa Point local, the @lyallbaynz account, Eastern Ward Councillor Chris Calvi-Freeman and Greater Wellington Regional Council (GWRC), we tried to uncover who ultimately was in charge – both, of removing the drowned vehicle which was visibly polluting Lyall Bay with debris (and most likely also toxic fluids like oil, petrol and air conditioning fluids etc.), and for taking responsibility for granting unsafe access to the area.

Greater Wellington was the only Council who responded to our inquiries (except for City Councillor Calvi-Freeman) and finally sent commercial divers to the scene to recover the vehicle (4 days later).

Both the Harbourmaster and the Police, which seemed to give mistaken (?) statements that nobody was in the vehicle at the time it was washed off, did not seem to be interested in recovering the vehicle, as it was “the owner’s responsibility”. We have to question this blasé attitude to quite serious pollution of one of our most used city beaches – the car was clearly a write-off so why would the owners go to considerable trouble and expense to get it recovered if no one forced them to? Debris was floating on the surface and washed up on Moa Point beach, around the corner. Surely, the waves could also easily carry it onto the surf break or Lyall Bay beach where it could be a hazard to the public. Would the Regional Council have finally sent someone if the community and Councillor Calvi-Freeman hadn’t been making inquiries?

Secondly, and more concerning seeing that people have died by being swept off that breakwater in the past, is the very disingenuous attitude by the airport erroneously claiming that the barrier was only recently destroyed (see photos from 2015, above) and that it was none of their problem “as the land was owned by someone else”. Reading their “urban design assessment” which forms part of their (halted) Environment Court resource application – halted, by the way because the airport thought it could get away with extending the runway without proper safety areas, which the Supreme Court just agreed with the Pilots’ Association was not sufficient – it becomes clear that the land is indeed owned by the Wellington City Council (WCC). What also becomes clear, however, is that the airport has built the breakwater and sea wall and been “maintaining” it by dumping rocks and akmons off it – without seemingly having a clear permit or resource consent to do so.

The Surfbreak Protection Society has pointed out in the past that this practice by the airport has severely degraded the quality of the “Corner” surf break in Lyall Bay. Their detailed research uncovered that, even though WCC is holding resource consents for work on the sea wall, it was not them but the airport who had been conducting the dumping of rocks in 2015 – without the Council’s clear knowledge. The surf community is in talks with the Council and Airport to have a vertical sea wall reinstated along the length of Moa Point Rd alongside the airport as it was back in the 50’s – 70’s, when the Corner was at its optimum performance. After GRWC directed SPS to have meeting with WIAL last September, Greg Thomas from WIAL noted that the continual dumping of rocks “may not be as cost-effective” as constructing a permanent vertical wall.

In addition, as part of the ‘mitigation’ for destroying one of our most beloved South Coast tāonga, a 3m cycle way and “promenade” is promised to be built by the airport, at the breakwater.

It is quite clear from looking at these imagined drawings, that none of the so-called “experts” the airport has paid with ratepayer dollars have bothered really visiting the area – especially in a Southerly. If they had, they’d have drawn the pedestrians and dogs being washed into the broiling sea and drenched by towering waves! With the benches and access to sea level from the rocks, there is absolutely no way this area can be cordoned off to the public in dangerous conditions. The Council has also recently announced that it was thinking of moving the Lyall Bay car park, near the surf break, as coastal inundation just made it too vulnerable to being repeatedly washed out.

Photo: Uli Beck from Spruce Goose
Photo: Radio NZ

Why does the Council let the airport play hazard with public safety and amenity to this extent, even paying them to do so (for example, by providing millions for the – now useless(?) – expert reports)? Why does it then not hold the airport responsible for any issues related to public health and safety and the clear reduction in amenity values, like the surf break? Who is actually in charge here and does someone else have to die before the authorities will finally do something about this mess?

March 21, 2017
Residents and ratepayers group the Guardians of the Bays has welcomed the news that
Wellington Airport will postpone the progression of its runway extension resource
consent in the Environment Court.

In advance of a pre-hearing conference on Thursday, the Airport has announced that it will
withdraw its resource consent application while it appeals to the Supreme Court on
the Court of Appeal ruling that the Civil Aviation Authority must reconsider its
decision on the length of the proposed runway safety area.

Guardians of the Bays’ Co-Chair Richard Randerson said the decision showed that
Wellington Airport’s application was deficient in not considering possible
contingencies such as the Court of Appeal decision.

Wellington Airport has said in its own memo to the court that it will potentially need
to rescope the application or withdraw it completely, if its appeal to the Supreme
Court is unsuccessful.
The Pilots Association case on the safety of the extension was before the courts
well before Wellington Airport lodged its application to the Environment Court. Yet it
still went ahead and used nearly $3 million of ratepayer funding to scope a proposal
which now looks like it will be redundant.
First and foremost, any runway extension must be safe, but to make that happen
Wellington Airport’s budget will need serious review.”

Co-Chair Dr. Sea Rotmann said that the Airport’s decision to withdraw its application
is an opportunity for Mayor Justin Lester and Wellington City Council to seriously
review the City’s commitment to funding this project.

As time marches on, the figures that Wellington Airport put up about the costs
become more out of date. There is already evidence that the proposal is likely to cost
more than the $350m originally suggested. An extension to the runway safety area
would push costs well over the half a billion dollars it is currently expected to reach
and would put the project well outside the parameters of the current Environment
Court application.”

In a meeting with the Guardians last month, Mayor Justin Lester said that the
extension was not likely to happen any time soon and that Wellington City Council
would not commit to providing more than $90m.

We continue to urge the Mayor to take a leadership role for all ratepayers, including
making a public commitment that the Council will not promise more ratepayer money
for an application that has not been well considered.

The Airport has previously specified the limit for its own investment in the extension
at $100m. Anything above this must come from Wellington ratepayers and New
Zealand taxpayers. We won’t know for a while if the Airport plans to proceed if a
longer safety margin is required, but Wellingtonians need to know now that the
Council will not burden ratepayers with additional costs- particularly as the
suggested benefits are nebulous and far from being guaranteed.”

For immediate release 6 March 2017

Residents’ and ratepayers’ group the Guardians of the Bays have today welcomed news that Wellington International Airport has requested an interim adjournment of proceedings from the Environment Court. The request from the Airport comes in response to the Court of Appeal ruling that the Civil Aviation Authority must reconsider its decision on the length of the proposed runway safety area.

Guardians of the Bays’ Co-Chair Richard Randerson said the request showed that WIAL has not considered all the issues in enough depth. “We are pleased that the Airport is reconsidering its position. The runway extension proposal continues to face hurdles because it has not been well considered or evaluated. This serious concern around safety is just one of many examples where the numbers don’t stack up. There is already evidence that the proposal is likely to cost more than the $350m originally suggested. An extension to the runway safety area would push costs well over the half a billion dollars it is currently expected to reach and would put the project well outside the parameters of the current Environment Court application.”

Co-Chair Dr. Sea Rotmann said the burden to ratepayers and taxpayers of the proposed extension continued to be unacceptable – particularly as the suggested benefits are anything but guaranteed. “No airline has committed to flying into an extended airport and the one airline currently flying (via Canberra) is getting very low loadings, according to an independent monitor of routes around the world. The Airport has specified the limit for its own investment in the extension at $100m now. Anything above this must come from Wellington ratepayers and New Zealand taxpayers. The business case for the runway still hasn’t gone through the Treasury’s Better Business Case process to prove if it is even eligible for public funding.”

In a meeting with the Guardians last month, Mayor Justin Lester said that the extension was not likely to happen anytime soon and that Wellington City Council would not commit to providing more than $90m. “It was heartening to hear our Mayor show he is sensitive to the issues at play and that he has put a limit on more public funding to support the Airport’s case – we expect him to stand by that,” said Dr Rotmann. “The Council already gave the Airport $3m of ratepayer’s precious money to fund the creation of its reports, which are consistently being shown to be little more than ‘spin’ to support the Airport’s slant on the proposal.”

“It would be best for the Airport to withdraw its application completely, rather than further burden the hard-working individuals who are raising their own funds to be able to participate in the Environment Court Process.”
ENDS

Media contacts: Dr Sea Rotmann 021 246 9438 and Richard Randerson 04 976 6050/ 021 159 6734

 

 

 

 

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:

[125] 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.

[126] 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:

[73] 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.

[74] 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.

The Civil Aviation Authority (CAA) has to revisit a decision over whether a longer runway safety area is needed if Wellington Airport extends its runway, a court has ruled.

In a decision released on Tuesday the Court of Appeal has agreed with the NZ Airlines Pilots’ Association (NZALPA) that the CAA must consider if longer runway safety areas (RESA) can feasibly be constructed, and also consider the use of arresting systems if appropriate.

The Court of Appeal found that in ruling that Wellington’s existing 90 metre safety area as compliant and appropriate for Wellington Airport’s proposed extension, the director of the CAA “made material errors in law”.

Wellington Airport chief executive Steve Sanderson said it was too early to say what impact the Court of Appeal ruling ...

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Wellington Airport chief executive Steve Sanderson said it was too early to say what impact the Court of Appeal ruling would have on the proposed runway extension.

Under international aviation rules, regulators must ensure that airports operate with RESAs of at least 90m, and if “practicable” of at least 240m.

READ MORE:
Wellington Airport puts resource consent plans for runway extension on hold
Wellington Airport asking councils to restart runway extension application
Wellington Airport runway extension cost could blow out to $458m, says expert
Wellington Airport runway extension clears major hurdle as pilots’ legal challenge fails
Court fast-tracks pilots’ appeal over safety of Wellington Airport’s runway extension

In 2012 Wellington Airport requested clarification from the director of the CAA about the length of required RESA if the runway was extended.

Two years later the director of the CAA informed both the airport and NZALPA that it would not be practicable to require the airport to provide a RESA exceeding 90m, given the low risk of a crash and high cost of a larger safety area.

When the matter came before the the High Court, Justice Karen Clark ruled that what was “practicable” was a balancing exercise between safety considerations and the cost and difficulty involved.

However the Court of Appeal decision differed from Justice Clark, saying that while cost had some “limited relevance” in considering what was practicable, the real test was what was able to be constructed.

“[C]ost is not a predominant factor to be balanced against the requirement of promoting safety; given its removal from the amended primary legislation, “reasonable cost” is now a factor of subordinate importance,” the Court of Appeal decision said.

Steve Sanderson, chief executive of Wellington Airport said the company was disappointed with the decision.

“We will discuss next steps with the Civil Aviation Authority which is the principal defendant. It is too early to say what impact this decision will have on the proposed runway extension.”

The ruling appears to only apply to an extended runway, rather than prompt a review of Wellington Airport’s existing safety zone arrangements.

NZALPA “expressed their delight” at the decision.

“[A]s commercial pilots and air traffic controllers, our members have much to gain from an increase in flights landing and leaving from Wellington Airport, but not at any cost – especially if that cost is to the safety of passengers, local people, and airport staff,” NZALPA president Tim Robinson said in a statement.

Tuesday’s Court of Appeal decision criticised the decision-making process of the CAA, claiming its director failed to meet the required tests in coming to his decision on the Wellington Airport RESA.

“He was obliged to require a RESA from the threshold minimum of 90 metres to a distance of at least 240 metres providing that was practicable. There was nothing to suggest that the director undertook that critical inquiry or referred to evidence which might be relevant to it,” the Court of Appeal said.

“There was nothing in the material before the director to suggest that an extension to the RESA of an extra 150 metres (taking it to 240 metres) was not practicable.

“There was nothing to suggest a RESA of 240 metres was not feasible or able to be accomplished according to known means and resources; and there was nothing to suggest that a RESA of that distance was unachievable given the engineering technology available and the potential construction options for dealing with this site.”

The CAA said it was not able to immediately comment on the decision.

Link to original post here.

Tuesday 22 Nov 2016 9:18 p.m.

By Chris Holden

A new reservoir designed to prevent Wellington being cut off from water for up to 100 days following an earthquake is being labelled an absolute priority by a Wellington City councillor.

In an unlikely move, Green Party Councillor Iona Pannett, who chairs the Wellington City Council’s City Strategy Committee, has revealed she is open to considering a public-private partnership to construct the $25 million, 35 million litre reservoir above the Prince of Wales park in central Wellington.

Without the reservoir, Wellingtonians could face up to a 100-day wait to get their water back up and running after a major quake, and Ms Pannett says after last Monday’s 7.8 tremor it must be a priority now.

Ms Pannett’s preference is that the funding comes from central Government but she is open to a public-private partnership.

“Discussions with central Government must begin immediately,” Ms Pannett says.

“The Wellington Council simply doesn’t have the funding, and will now need to look to other options.”

Documents provided by Wellington Water to Wellington City councillors in 2012 estimate getting water reconnected following a break in the bulk supply lines could take 90 days for the CBD, 100 days for east Wellington, 40 days for Porirua, 15 days for Upper Hutt and between five and 30 days for Lower Hutt.

The Wellington region’s entire water supply is currently distributed via three bulk supply lines, all of which are located on major fault lines.

Wellington Water spokesman Alexander van Passen confirmed the time estimates given in the 2012 document are still accurate.

“Wellington Water will aim to begin reconnecting priority customers after the seven day mark, which could take up to 30 days.”

Priority customers include rest homes and hospitals.

“Some non-priority customers may also face wait times of up to 100 days.”

He said the network was undergoing upgrades to the network which aimed to increase its durability and resistance in the event of a major earthquake.

In the event of the bulk water supply lines being severed in an earthquake, the reservoir could be used to provide water to the region’s only fully-functioning hospital in Newtown, which at the moment only has a five day emergency supply of water.

Wellington City Council sought a joint funding agreement with the Capital and Coast DHB and the Greater Wellington Regional Council in 2003 when the reservoir was first mooted. But negotiations broke down in 2011 when the DHB walked away from the deal.

Attempts to resuscitate the deal have since failed, and the Wellington City Council’s chief asset manager Anthony Wilson warned in January this year that if the DHB did not contribute to funding the reservoir, “it would not be able to use it when built”.

“It is not local government’s responsibility to supply emergency water to the hospital,” he told Fairfax.

Former Wellington Mayoral candidate and current Capital and Coast DHB member Nick Leggett, who campaigned for building the reservoir, laughed off the suggestion of a public-private partnership.

He says funding is a question of prioritising vanity projects over core infrastructure and its not the DHB’s responsibility to fund council infrastructure.

“The safety of Wellingtonians should come before a $120 million film museum and $90 million set aside for the airport runway extension.”

Councillor Pannett agreed that funding for the reservoir should come before funding for the runway extension, putting her at odds with recently-elected mayor Justin Lester.

When contacted by Newshub, Mr Lester refused to comment other than to say the reservoir was a “priority”.

It is understood the Wellington City Council will urgently meet on Thursday this week to discuss Wellington’s capability to withstand a major earthquake following last Monday’s earthquake which caused substantial damage to the Wellington CBD.