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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Lasham Gliding Society Ltd, R (On the Application Of) v Civil Aviation Authority [2019] EWHC 2118 (Admin) (31 July 2019) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2019/2118.html Cite as: [2019] EWHC 2118 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
The Queen on the application of Lasham Gliding Society Limited |
Claimant |
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- and - |
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Civil Aviation Authority |
Defendant |
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- and - |
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TAG ![]() ![]() |
Interested Party |
____________________
Gordon Nardell QC and James Burton (instructed by Civil Aviation Authority) for the Defendant
Hearing dates: 05 - 06 June 2019
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Crown Copyright ©
The Hon. Mrs Justice Thornton :
Introduction
"Demand for air travel has grown strongly in recent decades, and the Government expects that demand will continue to rise significantly between now and 2050. Growth in demand for air travel means increasing pressure on our airspace. The strategic case for airspace modernisation and the resultant benefits were set out by the Department for Transport in 2017. Those benefits include more choice and value for consumers, through the capacity for airlines to add new flights, reduced flight delays and enhanced global connections that can help to boost the UK economy, while continuing to improve high safety standards. Unlocking the benefits of modernisation will make journeys faster and more environmentally friendly. Better airspace design can manage noise impacts and improve access for other airspace users, including the Ministry of Defence, which requires more access to airspace to support a greater number of military aircraft."
Factual background
The Parties
i) Mr Peter Reading; (sadly now deceased); a former member of LGS and a former member of the UK's Airprox Board, whose primary objective is to enhance air safety in the UK.
ii) Dr Colin Jackson; a member of LGS and qualified flight instructor.
iii) Mr Chris Hyett; a member of LGS and a former air traffic controller.
iv) Mr Colin Watt; chief flying instructor at LGS.
v) Mr Mark Green; deputy manager of the West London Aero Club whose members principally fly powered light aircraft.
Controls on airspace
Airspace change at Farnborough
The decision making process
The concerns of the MOD
"4 Despite the efforts made byFarnborough
to accommodate military requirements, there are 2 outstanding concerns which have proven difficult to fully address. These are as follows:
a) traffic funnelling. Comprehensive data analysis provided byFarnborough
has suggested that any increase in traffic transiting close to or through the RAF Odiham MATZ would be negligible compared to current figures…..
The MoD are of the opinion that the analysis conducted and data collected does not provide a comprehensive picture of the prevailing traffic situation in this geographical area, particularly with respect to non-transponding traffic and gliders not FLARM equipped. It is the opinion of the MoD that even the slight increase in movements predicted byFarnborough
within this already congested and contested airspace will have a noticeable impact. The MoD are still of the opinion that should traffic choose to route around the proposed CAS be that for ease or due to a lack of suitable radio/navigational equipment, this may increase the likelihood of Mid-Air Collision (MAC) to other airspace users. In addition, avoidance of the proposed CAS by transiting traffic could increase movement through the portion of the RAF Odiham MATZ that sits outside the proposed CAS, making the controlling of IFR approaches and departures particularly challenging.
…..
5 Ultimately, the issues of traffic funnelling and noise pollution are difficult to predict ahead of any ACP implementation, despite the analysis and mitigations proffered byFarnborough.
Should the
Farnborough
ACP be implemented in in its current form, the MOD would actively monitor the ACP's impact on all aspects of our operations, with particular emphasis on funnelling and noise pollution. DAATM would raise significant concerns to the CAA as a matter of urgency and would not wish to be constrained by standard post implementation review timelines.
….
Conclusion
8 The MoD has no objection to this ACP….
It is clear that concerns regarding traffic funnelling and noise pollution are unlikely to be resolved ahead of the proposed airspace change and that these would be closely monitored by the MoD post implementation. The draft LOA provided byFarnborough
includes several robust procedures which will allow RAF Odiham operations to continue as per the current day for the majority of the time, however, it is clear that more work is required to include 618 VGS requirements. Finally, the MOD would wish to be included in the ongoing development of the LOA to ensure that fair and equitable access to the proposed CAS is agreed to ensure minimal impact on MoD operations"
The Regulatory and policy framework
"66.— Air navigation: directions.
(1) The Secretary of State may give directions to the CAA imposing duties or conferring powers (or both) on it with regard to air navigation in a managed area.
…"
"Airspace design
3. The CAA must—
(a) develop and publish a national policy for the classification of UK airspace;
(b) classify UK airspace in accordance with such national policy, publish such classification, keep such classification under review and, as the CAA considers necessary, modify it;
(c) develop and publish rules, guidelines, technical design criteria and common procedures for the use of UK airspace;
…
(e) prepare and maintain a co-ordinated strategy and plan for the use of UK airspace for air navigation up to 2040, including for the modernisation of the use of such airspace;
…
Airspace changes: procedure and guidance
4.—(1) Subject to directions 6 and 9, the CAA must develop and publish procedures, and guidance on such procedures, for the development, making and consideration of a proposal—
(a) for a permanent change to airspace design,
…
(2) A procedure developed under paragraph (1) must be proportionate and reflect published Government policy.
…
Proposed permanent change to airspace design
5.—(1) Subject to direction 6, in accordance with its published strategy, procedures and policy on the design and classification of UK airspace, the CAA must decide whether to approve a proposal for a permanent change to airspace design.
(2) The CAA may make its approval of a proposal subject to such modifications and conditions as the CAA considers necessary."
Airspace Strategy
Changes to airspace design
i) Stage 1 – Framework Briefing: The Sponsor and CAA meet to discuss the general nature of the proposal and the associated operational, environmental and consultation requirements.
ii) Stage 2 – Proposal development: The Sponsor develops design options, identifies consultees, and begins work on an environmental assessment of the proposal.
iii) Stage 3 – Preparing for consultation: The Sponsor designs the consultation process, with advice from the CAA.
iv) Stage 4 – Consultation and formal proposal submission: Sponsors are reminded that it may be necessary to re-consult if the proposal changes as a result of consultation. The material produced and received during the consultation must be provided by the Sponsor to the CAA.
v) Stage 5 – CAA assessment and decision: The CAA makes a detailed assessment of the proposal, in particular an operational assessment, environmental assessment, and an assessment of the adequacy of the Sponsor's consultation exercise. During this process the CAA will continue to engage with the Sponsor and, where appropriate, with other stakeholders (for example, where the Sponsor modifies the submitted proposal in response to observations from the CAA). The CAA then makes its decision, in accordance with the Transport Act 2000 s. 70 and applicable policies and guidance. The decision is published, accompanied by a written record of the three assessments. The CAA also publishes key material generated during the process.
vi) Stage 6 – Implementation: If the proposal is approved (with or without modifications), the relevant changes to airspace procedures and structures are formally notified. The decision sets out a proposed timescale for implementation.
vii) Stage 7 – Post-implementation review: An operational review is undertaken on the basis of the first 12 months' operation of the implemented airspace change. Where necessary the CAA can require modification.
CAA's general duty under section 70 TA
"70.— General duty.
(1) The CAA must exercise its air navigation functions so as to maintain a high standard of safety in the provision of air traffic services; and that duty is to have priority over the application of subsections (2) and (3).
(2) The CAA must exercise its air navigation functions in the manner it thinks best calculated—
a. to secure the most efficient use of airspace consistent with the safe operation of aircraft and the expeditious flow of air traffic;
b. to satisfy the requirements of operators and owners of all classes of aircraft;
c. to take account of the interests of any person (other than an operator or owner of an aircraft) in relation to the use of any particular airspace or the use of airspace generally;
d. to take account of any guidance on environmental objectives given to the CAA by the Secretary of State after the coming into force of this section;
e. to facilitate the integrated operation of air traffic services provided by or on behalf of the armed forces of the Crown and other air traffic services;
f. to take account of the interests of national security;
g. to take account of any international obligations of the United Kingdom notified to the CAA by the Secretary of State (whatever the time or purpose of the notification).
(3) If in a particular case there is a conflict in the application of the provisions of subsection (2), in relation to that case the CAA must apply them in the manner it thinks is reasonable having regard to them as a whole. …"
The decision under challenge
"6. The CAA has concluded that the Modified ACP maintains a high standard of safety in a congested area of airspace used by a wide variety of airspace users and aircraft that will benefit from changes to airspace design that create a known environment and that the classification of airspace approved combined with the access arrangements open to all radio equipped aircraft mean the changes will not create a detrimental effect on safety in surrounding remaining Class G airspace, in particular the changes will not create the detrimental effect on safety referred to as 'bottle-necks' in surrounding remaining Class G airspace.
7. The CAA has concluded that the Modified ACP will make the most efficient use of airspace because the airspace design we have decided to approve will increase the overall number of aircraft that can safely use the airspace. The CAA has concluded that the Modified ACP will enable all aircraft to benefit from the expeditious flow of traffic because IFR traffic will now be able to flight plan using SIDs and STARs and are less likely to be re-routed due to risk of conflict with an unknown aircraft.
8. The CAA has concluded that the Modified ACP combined with the access arrangements open to all to accept represents the most equitable means of satisfying the requirements of the operators and owners of all classes of aircraft whilst at the same time achieving the important benefits of the proposal.
9. The CAA has taken into account the environmental impact of the change as set out in this decision and has concluded that when considering all of the CAA's statutory duties as a whole it is reasonably proportionate and the right decision to approve the proposal.
10. The CAA has considered alternatives proposed by GA stakeholders. These proposals were not treated as an airspace change proposal as they had not followed the process a Sponsor must follow to propose a change to airspace design to the CAA (CAP 725). Nonetheless careful consideration has been given to whether any of the alternatives proposed or the information in the alternatives proposed means the ACP should be modified in any of the ways proposed. The CAA has concluded it should not. The CAA has concluded that the design proposed is unfeasible due to the effect on Gatwick and Heathrow and that the design proposed is so different to that being considered by the CAA in this proposal that it could not be dealt with by way of a modification but would need to be proposed as an alternative proposal developed in accordance with the CAA's airspace change process."
The grounds of challenge
Ground 1: the decision fails to maintain a high standard of safety in the airspace as required by s.70(1) Transport Act 2000
Ground 2: the decision fails to secure the most efficient use of the airspace in accordance with s.70(2)(a) Transport Act 2000
Ground 3: the decision fails to have regard to the onerous effects of the airspace design change on LGS (Ground 3 was originally broader than this but was restricted as now appears by order of Ouseley J).
Discussion
Ground 1: Failure to maintain a high standard of safety as required by Section 70(1) TA
Submissions of the parties
Analysis
"General aviation airspace user stakeholders expressed a view at the CAA chaired Facilitation GA workshops that the introduction of controlled airspace in this environment would increase risk and reduce safety margins in this environment. Some of those present expressed the view that extending the CTR and introducing certain CTA areas will result in traffic squeeze. In their view, some GA pilot's reluctance to speak to ATC to access Class D airspace would lead to bottlenecks of traffic through remaining heavily congested Class G areas in which gliders and powered aircraft potentially occupy the same volume of airspace." (paragraph 54 Decision document)
('GA' in the quote above refers to general aviation, a collective term for a diverse range of users such as business, corporate, transport and air ambulances, who use a wide range of aircraft including powered aircraft, such as helicopters and unpowered aircraft, such as gliders)
"55. With respect to the airspace that would be classified as Class D (if the Sponsor implements what the CAA has approved), the CAA has concluded that any safety concerns can be mitigated byFarnborough
ATC providing adequate resource to safely integrate VFR and IFR air traffic. CAP1535P (The Skyway Code) states that if you plan a route through controlled airspace, a crossing clearance may not always be possible and you should also have a contingency plan. The CAA recognises that the introduction of additional controlled airspace could result in 'pinch points' and bottlenecks but we have concluded that the build-up of bottlenecks can be reduced by all airspace users exhibiting appropriate airmanship including recognising the need to equip with a radio and to speak to air traffic control and can be managed by
Farnborough
ATC providing sufficient resource and fair and reasonable access arrangements.
56. With respect to the airspace that would be classified as Class E with an associated Transponder Mandatory Zone (in CTAs 8 and 9) (if the Sponsor implements what the CAA has approved) such classification will provide autonomous access to GA VFR transit aircraft (thereby reducing the need for any re-routing of suitably equipped aircraft and removing the need for any GA pilot with a transponder to speak to ATC to pass through the airspace) but will nevertheless address the issues identified above with the current airspace design and still result in a known environment and associated safety benefits."
i) The CAA did not come to its own views on the TAG analysis but simply accepted it.
ii) The TAG analysis discounted the two highest peak flying times as anomalies and therefore discards them as irrelevant. Yet, the most acute safety issues are likely to arise at peak flight times.
iii) TAG appears to have arrived at an estimate of aircraft which cross the proposed control zone which bears no logical relationship to the data gathered during a review in June 2014. LGS cannot understand the basis for the estimate.
iv) The Claimant criticises TAG's reliance on anecdotal evidence from flight instructors that 30-50% of aircraft currently passing through the controlled zone would fly elsewhere rather than through the Lasham bottleneck. The evidence base is insufficiently rigorous. LGS relies on evidence from the Deputy Manager of the West London Aero Club who was present at the meeting relied on by TAG who does not recall any such statement being made at the meeting.
v) TAG's conclusion that an additional 5 – 7 aircraft per hour would fly through the Lasham bottleneck is flawed. LGS conducted its own assessment using the traffic volumes published by TAG and concluded that 27-28 aircraft would fly through the Lasham bottleneck thereby increasing the risk of a mid air collision in the vicinity of the gliding club by 9.6 – 9.8 times.
vi) TAG drew an irresponsible and dangerous conclusion from its analysis. Mr Reading castigated TAG's conclusion that "the risk is already very significant in itself due to the presence of very large numbers of aircrafts" as 'appearing to suggest that the higher the existing base line risk is, the less TAG need to be concerned about adding to it'.
vii) The MOD remained concerned about the risk of mid air collision despite TAG's analysis.
"182 Although Mr Reading criticised [the TAG analysis], in my view this was, and is, sound analysis which the CAA had in mind …and which accorded with our own understanding of this airspace
……
184………..I appreciate the LGS does not agree with TAG's analysis that the new CAS would result in 5 to 7 additional powered GA movements per hour through the 'Lasham bottleneck' (accepting that this does not include gliding activity). But this modelled prediction accorded with my team's observations in the control room atFarnborough.
The CAA does not agree with LGS's numbers…..
…
186 it is true that the CAA did not itself carry out any independent detailed analysis of the numbers on which TAG's predictions were based. But that is not how the airspace design change process works. It is for the Sponsor to persuade the CAA, with acceptable evidence, that its proposal will maintain a high standard of safety. Within the parameters of our standard process and policy requirements the choice as to the nature of that evidence is, in the first instance, for the Sponsor. As I mentioned above, no definitive or universal methodology exists to calculate the exact numbers of VFR users in any given volume of airspace and the process relies on a Sponsor's consultation to draw out the local issues, as well as the current positions of national representative bodies on the matter. The CAA received TAG's proposal, which included analysis, and all that analysis was carefully examined in the light of all the consultation responses. I also note, once more that the CAA did initiate its own enquiry where it felt that necessary…..
…
188 But in any event CAA was starting from a position in which it had a great depth of knowledge here, about patterns of GA behaviour generally and about GA traffic in this area. The CAA had previously commissioned QinetiQ to produce a Class G users 'behaviours" model and draft report. This was based largely on responses to questionnaires sent to Class G users and some working assumptions. The working assumptions included that new class D would see about one third of GA request clearance through the new class D. TAG used the QuinetiQ work and TAG's assumption that 30% of the 15 powered VFR per hour would request a clearance with the ACP in place was in line with the QinetiQ work. However, it is important to bear in mind that these were only assumptions (in the QinetiQ work and the TAG work) and the CAA was well aware of that. I consider the assumptions conservative.
189 in addition to the QinetiQ report the CAA had also Sponsored and participated in VFR working groups such a 21st century class G. All of this helped to inform CAA's thinking and decision-making with regard to GA."
Ground 2 Interpretation and application of s.70(2)(a) Transport Act 2000
Submissions of the parties
Analysis
"The CAA considers that the most efficient use of airspace means the use of airspace that secures the greatest number of movements of aircraft through a specific volume of airspace over a period of time so that the best use is made of the limited resource of UK airspace. It is therefore concerned with the operation of the airspace system as a whole. We have concluded that the changes proposed will enable more aircraft than is currently the case to use the airspace. In Class D airspace all users with a radio will be able to access the airspace provided that they obtain a clearance to do so. In class E + TMZ airspace all users can access the airspace without clearance from air traffic control provided that they are transponding which means that air traffic controllers and other aircraft can see their presence on their equipment. Both these classifications of airspace create what is referred to as a known environment. Aircraft that flight plan are able to plan more efficient and will be given more expeditious routing by air traffic control when flying through known airspace and will be unlikely to be delayed on the ground before take-off as well as less likely to be rerouted mid-flight. We have considered the access arrangements open to all suitably equipped airspace users to accept. We note there was extensive simulator testing of the proposed designs which would have included working with heavy demand of Gatwick and Heathrow aircraft in this airspace and GA aircraft calling up for clearance. We have concluded that overall more aircraft will be able to use the airspace and the changes proposed will lead to a more efficient use of that airspace. It may be possible to increase further the efficient use of this airspace if it were possible to agree access arrangements (LoAs) with some GA airspace users. However this decision has been taken in the absence of such agreements at this time and based instead on the unilateral offer of access arrangements set out in the Sponsor's letter to the CAA dated 4th of September 2017."
Interpretation of section 70(2)(a)
i) is capable of referring to an increase in the capacity of airspace to accommodate aircraft movements as well as, or in addition to, actual numbers; and
ii) entitled the CAA to assess the contribution made by the proposal to the efficient use of UK airspace, as a whole, not just the airspace to be controlled.
Irrationality
Ground 3 Whether the CAA has had regard to all relevant considerations for the purpose of its assessment under s.70(2)(b) and (c) Transport Act 2000
Submissions of the parties
Analysis
Conclusions