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Legal decisions and the saga of the runway extension

by Dr Sea Rotmann
Legal matters can be confounding to the layperson, to say the least, and the ongoing saga of the New Zealand’s Air Line Pilots’ Association (NZALPA) vs the Civil Aviation Authority Director and Wellington Airport (WIAL) has been more confounding than most.

This saga started back in at least 2013, when Wellington Airport 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 the airport company’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 the airport found significant short-comings (as have all other CBAs provided by the airport since!).

When the airport decided in 2014 to instead put the extension south into Cook Strait, it went back to the CAA 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, the airport 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 the decision – the pilots asserted he had erred in law when considering cost to the airport 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 the Court of Appeal then overruled the High Court Judge, meaning the final step was for the airport 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.

In the meantime, the airport company continued to push ahead with its runway extension planning, as if the 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 investigated such an option and the Director, wrongly as it turned out, took the airport’s considerations without asking for more safety options to be provided. On page 28-29 of the 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 the pilots against the airport 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 the airport’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 and several other AustralAsian airports:

Counsel for the Director and for WIAL argued that if a 90m 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, the airport company has wasted everyone’s time and money since 2013, by ignoring its obligations to the safety of its passengers. The Civil Aviation Director erred in devolving his decision to the airport company 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 pilots and air traffic controllers – whose primary mandate is passenger safety! – were dragged through several years of unnecessary court proceedings and smeared by the airport company 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 thousands 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 hundreds of submissions, finding experts and lawyers and reading 5000 pages of technical reports, when it knew this decision was 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 which started this entire rigmarole. 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 to get another decision on the RESA.

It seems 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 acknowledges it could install a 130-140m RESA by taking out the grass bank at Cobham Drive and replacing 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 of 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 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…

Dr Sea Rotmann is co-chair of Guardians of the Bays, which is having its annual meeting tonight at 7pm in the Hataitai Bowling Club, 157 Hataitai Road.

13 comments:

  1. Ross Clark, 1. August 2018, 10:04

    Sorry, I’ve missed something here. Given that the construction of, say, a 90-metre runway end safety area will still cause a lot of disruption, what do you want the Airport to do?

     
  2. banana, 1. August 2018, 12:39

    Exactly Ross – or even a 240m RESA for the existing runway – are you now saying that you want the runway extended?

     
  3. Citizen Joe, 1. August 2018, 13:53

    How about using some of the extra rock and earth the Quantity Surveyor failed to include when calculating Transmission Gully (apparently they underestimated by a factor of 2.0).

     
  4. KB, 1. August 2018, 17:29

    Move the airport to hunters hill in Newlands like what was suggested 3 years ago, and we can be done with all this nonsense once and for all.

     
  5. luke, 1. August 2018, 19:37

    seems to me like the runway needs extending for safety reasons.

     
  6. Farmer John, 2. August 2018, 9:13

    KB – its foggy up there in Newlands and the pilots would have to watch out for double decker buses.

     
  7. Mark Shanks, 2. August 2018, 15:45

    I attended the Environment Court on April 18th and Judge Dwyer was noticeably impatient with WIAL, especially about them not wanting to reveal the evidence they are putting to the Director General of Aviation. He was categorical in saying that their evidence is crucial to the court and other submitters. Air NZ and JumpJet counsels also spoke well and expressed great dissatisfaction at the continued requests for extensions. Air NZ’s counsel re WIAL’s complicity in the delays: “Nobody can take advantage of things he himself produced” and “If WIAL is seeking to assist the court (which they said many times) then why does it not wish to share the information it is presenting to the Director General?” Later Amanda Dewar, counsel for WIAL, said “This is the final time we will ask for an extension of this application”. We have been waiting a long time for some resolution on this saga but it may soon come to an end and the people who are most affected can get on with their lives.

     
  8. Jonny Utzone, 2. August 2018, 16:39

    Legal extensions about runway extensions….

     
  9. Ross Clark, 3. August 2018, 2:52

    My judgement is that Dr Rotmann wants a proper end-safety area for the runway. However, with no extension of the physical runway itself, this would mean a significant reduction in the length of “useable runway” and – almost certainly – the end of direct international services to or from Wellington. It would help if Dr Rotman were clear about this. It is this prospect which may be shaping how WIAL are responding at present.

    (The measure would not mean overmuch reduction in airport demand, as the current international demand would be diverted through Auckland or Christchurch instead – perhaps through dedicated flights through to those airports’ international terminals).

     
  10. Tony Jansen, 3. August 2018, 11:22

    Goodness gracious. Airlines will not call at Wellington even if the runway was extended. We have two major hub airports – one in each island – which major airlines call on a north to south basis. They are not going to call a small regional airport with a small regional population on the basis that the Airport Company built an extension!
    We are paying a lot of ratepayer money to convince Singapore Airlines to make an otherwise unprofitable and unsustainable call to Wellington as it is.
    Besides, technology in aircraft design will render the need for a longer runway obsolete in very short time.
    This whole saga is an absolute red herring and people need to do their research before supporting, what is quite frankly a ridiculous idea.

     
  11. Ross Clark, 3. August 2018, 19:59

    Tony Jansen – agreed. And I am someone who likes planes!

    Besides, technology in aircraft design will render the need for a longer runway obsolete in a very short time.

    Agree completely; and this is what the airport company should be working for – that or working on building up the other international services, so we are not beholden to flying through Auckland for long-haul journeys.

     
  12. Andrew, 4. August 2018, 9:57

    Which technologies in particular will reduce the take off length, within a short time frame? Given how long airliners take to develop (especially when using different CAD systems – A380) and test I doubt any abrupt changes will be happening soon. It is more a gradual change with airfoil developments, cutting weight, more efficient and powerful engines etc. None of which WIAL have any control over.

    I’m not in support of the extension for international services, just think we should not kid ourselves that airliners will suddenly have short takeoff/landing capabilities.

     
  13. P Grant, 4. August 2018, 18:43

    Thank you Tony Jansen, well said, also Andrew. Although landings require more space — international airlines are working in tandem to route through hubs as is AirNZ. No doubt a few trans Tasman flights will stay the course for Wgtn but don’t wait to see any 380s any time soon. In any case in 50 years time or so you will need amphibious aircraft!