Oxford Aviation Services Limited & Ors v Civil Aviation Authority & Anor

A regulator assessing the safety of a Government aerodrome for civil aviation may rely on information, risk assessments and technical material supplied by the military regulator. It need not apply the standards in CAP 168 as binding requirements or undertake a formal gap analysis against those standards. The assessment must instead address whether the aerodrome provides safe civil aircraft operations, having regard to its individual geographical and operating circumstances, available mitigations and relevant published information.

Where technical international guidance is being developed through established international procedures, the domestic court should not determine an unresolved interpretation issue if the regulator’s view is tenable and the issue can be addressed through those procedures.

The claimants operated private airports serving business aviation. They challenged the Civil Aviation Authority’s response to concerns about the safety of civil operations at RAF Northolt, a Government aerodrome notified under article 211 of the Air Navigation Order 2016.

The grounds alleged irrational safety assessment, misinterpretation of PANS-OPS, inadequate reasons and unlawful delegation of the CAA’s article 211 responsibility to the Government Aerodrome Co-ordination Group and the Military Aviation Authority. The central issues were whether the CAA had adopted the correct safety-assessment approach and whether its interpretation of the visual-segment obstacle-clearance provisions was tenable.

1. Ground (1). The CAA was the statutory regulator responsible for assessing the safety of civil use of RAF Northolt. Applying R (Mott) v Environment Agency [2016] 1 WLR 4338, the court afforded substantial weight to the CAA’s specialist and technical expertise, while requiring a sufficient explanation of how the technical material related to the decision. The evidence of the CAA’s witnesses properly elucidated the technical analysis in the Decision and was not an impermissible ex post facto addition under R v Westminster City Council, ex parte Ermakov (1996) 28 HLR 819.
2. The CAA lawfully relied on information and risk assessments from the MAA, the Defence Aerodrome Manual, the Military AIP and the Aerodrome Operating Hazard Log. It was not legally required to apply CAP 168 or PANS-OPS as binding standards, to carry out a formal gap analysis, or to undertake its own separate risk assessment of every MAA exemption. The proper question was whether RAF Northolt provided safe civil aircraft operations in its individual geographical and operating circumstances. Ground (1) failed.
3. Ground (2). The CAA voluntarily gave reasons. Applying In Re Poyser and Mills’ Arbitration [1964] 1 QB 467 and South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953, the reasons were intelligible, addressed the substantial issues and explained the safety measures adopted. Permission was refused on this ground.
4. Ground (3). Article 211 required the CAA itself to decide whether to notify, de-notify or impose conditions on a Government aerodrome. The CAA could nevertheless receive and consider the GACG’s advice and MAA material. Read as a whole, the Agreement preserved the CAA’s sole decision-making responsibility and facilitated lawful collaboration. Ground (3) failed.
5. Ground (1A). The court accepted the tenability approach in R (Corner House Research) v Director of the Serious Fraud Office [2009] AC 756. The interpretation of PANS-OPS was unresolved, technical, capable of consideration through the IFPP, ANC and ICAO Council, and unnecessary to determine a live safety issue. The CAA’s interpretation was tenable, so the court declined to intervene. The claim was dismissed.

First-instance judicial review claim. Permission was granted on grounds (1), (1A) and (3), refused on ground (2), and the claim was dismissed.