Wrong, but not as Wrong: Wellington RESA “Final” Decision

Earlier in 2017, the New Zealand Court of Appeal reversed any an even earlier court decision and found that the NZ Civil Aviation Authority’s (CAA) Director had made an error in assessing the Runway End Safety Area (RESA) length requirement contain in Civil Aviation Rule Part 139 - I blogged about that decision here

This week, the NZ Supreme Court handed down its judgement on the appeal made by the NZ CAA and Wellington Airport. Not a bad turnaround considered the length legal battles usually take.

So, Who Won?

Well, I guess technically the NZ CAA and Wellington International Airport Ltd (WIAL) lost. The appeal was dismissed and costs were awarded but the reasoning included in the judgement does provide the NZ CAA with at least a partial win.

In a nut shell, all that stuff I wrote that discussed practicability is not quite right. I have to admit that this decision is a lot more nuanced and there are, in my view, some barbs in the judgement.

Can Cost be Considered? 

The answer is yes, but... 

The Court conducts a thorough review of the functions of the Minister and of the Authority and highlights that the focus of the legislation was to “promote safety in civil aviation”. They agreed with the lower court that the legislation had changed prior to the Director’s decision with the removal of “at a reasonable cost” but they differ in their opinion that cost is to be excluded.

Instead, the Court notes that a cost/benefit anaylsis can be used as a tool but it can’t to be sole source of decision-making or even the starting point. Instead, that is reserved for improving aviation safety. 

Is it a Double-Edged Sword Though? 

This might seem like good news for the NZ CAA and WIAL in that they can try again. After all, the Court has only said the decision making process erred in law, not that the outcome is illegal.

But I think we might find in paragraph 68 of the finding something that will have a bearing on the outcome of any new decision. Where the Court has opened the door to the consideration of cost, it has also made comments on how benefits are to be considered, especially with respect to “improving aviation safety”.

I hope I’m reading this section correctly because what I see is that any financial benefit derived from the extended runway (via “a new and substantial income stream”) must spent on improving safety. Now that might be an overly restrictive view of what the Court is saying but at the very least, I can see the Director (and by extension future courts) being interested in the rate of return on any runway extension investment and what incremental safety improvements might be “bought” with some of that additional “benefit”.

The Starting Point, Again

In the earlier judgement, the Court found that the NZ CAA’s Director should have started at 240 metres and worked back from there. In this judgement, the Court also makes comment on the starting point of the decision but in a much more “meta” sense.

This time, the decision notes that the Director also erred in only considering the proposal before him. Instead, the Court believes that he should have “turned his mind” to an Engineered Materials Arresting System (EMAS).

I can actually empathise with the Director on this one.  In my time with the Australian regulator, I assessed a number of exemption proposals and would do so based on the information the applicant provided. I would be checking to ensure that the regulations were correctly interpreted and that the applicant’s safety management processes (risk assessments, consultations, etc.) were being applied logically, completely and vigorously. If I were also required to consider an unknown number of alternative measures that could be engineered to achieve a similar or better result, it would have impacted my response time significantly.

RESAs and EMAS are clearly linked with the later being a very well publicised “solution” in RESA-constrained environments but what if the issue at hand involved a less-marketable issue? There are engineers out there working on solutions every day for things like fuel spillage, fire ignition and propagation, wildlife control and more.

Is it now the Court’s expectation that the CAA be aware of all the state of the art engineering available to airports? This view would run counter to the general idea that regulators move away from being the industry’s experts to overseeing a system whereby expertise is held in the multitude of operators, each of whom operate in different environments and in different contexts. 

Is this the End?

I don’t think so. I believe the door has been opened for a new application. However, while the next decision will be made methodically with the full detail of this decision on hand, if it comes out anything less than 240 metres, I am sure that the NZ Air Line Pilots’ Association (NZALPA) will be bringing this issue back to the courts.