Oxford Aviation Services & Anor, R (On the Application Of) v Secretary of State for Defence Civil Aviation Authority & Anor

The Civil Aviation Authority and the Secretary of State for Transport retain statutory responsibility for the safety of civil aircraft using a government aerodrome. They cannot delegate the decision whether relevant safety standards are met to the Ministry of Defence or the Military Aviation Authority, although they may rely on information and assessments supplied by them.

Article 210 of the Air Navigation Order 2009 permits safety-related conditions to be attached to notification of a government aerodrome. The CAA is not required to apply CAP 168 identically to government and licensed civil aerodromes. Safety involves a fact-sensitive assessment of risk, tailored to the aerodrome’s physical and operational circumstances. The EASA Regulation does not require military authorities to apply CAP 168.

The claimants, operators of Oxford and Biggin Hill airports, sought judicial review of arrangements governing civil use of RAF Northolt. The Ministry of Defence had increased the permitted civil movements from 7,000 to 12,000 annually.

The first ground challenged the respective responsibilities of the CAA, the Secretary of State for Transport, the Secretary of State for Defence and the Military Aviation Authority, including whether conditions could be attached to notification under the Air Navigation Order 2009 and whether CAP 168 had to be applied. The second ground alleged breach of regulation 1.3 of Regulation (EC) No 216/2008. The claimants sought declaratory relief concerning the CAA’s power to impose safety conditions.

1. CAA responsibility. The claim was unsuccessful on both grounds. Sections 1, 3 and 4 of the Civil Aviation Act 1982, sections 1 and 2 of the Transport Act 2000, and the Air Navigation Order 2009 impose responsibility for the safety of civil aviation on the Secretary of State for Transport and the CAA. Those functions extend to civil use of government and military aerodromes.
2. Notification under Article 210. Article 210 gives the CAA, with the Secretary of State’s concurrence, power to notify a government aerodrome for civil use and to attach conditions. Such conditions may concern safety, aircraft classes, pilot training, weather limitations and other operational restraints. Notification is more than publication of information, although full safety information may justify notification without conditions.
3. No delegation of the statutory judgment. The CAA and the Secretary of State for Transport cannot treat the assessment of safety for civil use as a matter for the Ministry of Defence or the Military Aviation Authority. They may, however, rely on information, assessments, manuals, compliance exercises and gap analyses supplied by those bodies. The CAA’s practical role may therefore be subsidiary, but the statutory decision remains its own.
4. CAP 168. The CAA was not bound to apply CAP 168 to RAF Northolt. CAP 168 contains requirements directed principally to the physical configuration and operation of licensed civil airports. Government aerodromes may be safe for civil use without satisfying every requirement applicable to private licensed airports. Safety is a qualitative assessment of risk, including both incidence and consequences, and must be tailored to the individual aerodrome.
5. EASA Regulation. The second ground failed. Regulation 1.3 of Regulation (EC) No 216/2008 did not oblige the Secretary of State for Defence to take CAP 168 into account when assessing the high-level requirements in Annex Va. Those requirements were self-standing. The military authorities had considered ICAO Annex 14 through MADS, the relevant regulatory articles and the gap analysis. The claimants identified no target decision properly amenable to challenge and no Wednesbury unreasonableness; R (Khatun) v Newham London Borough Council [2005] QB 37 was applied.
6. The declaration sought was unnecessary because the CAA’s power to impose safety-related conditions under Article 210 was not contentious once the issue was reformulated. The court declined to give advisory directions concerning future reviews. The standing and delay objections were left undecided.

First-instance judicial review proceedings. The claim was dismissed on the substantive grounds, with standing and delay left undecided.