Axis International Ltd Plaintiff v The Civil Aviation Authority of the Cayman Islands (Caaci) 1st Defendant Cayman Islands Helicopters Ltd 2nd Defendant
| Jurisdiction | Cayman Islands |
| Judge | Chief Justice,Hon. Anthony Smellie |
| Judgment Date | 24 May 2013 |
| Judgment citation (vLex) | [2013] CIGC J0524-1 |
| Docket Number | CAUSE NO. 56 OF 2012 |
| Court | Grand Court (Cayman Islands) |
| Date | 24 May 2013 |
and
THE HON. ANTHONY SMELLIE, CHIEF JUSTICE
IN OPEN COURT
Mr. Phillip Brook Smith QC instructed by Mr. Jan Golaszewski of Maples and Calder for the Plaintiff
Mr. Michael Beloff QC instructed by Ms. Reshma Sharma, Senior Crown Counsel of the Attorney General's Chambers for the CAACI
Mr. Thomas Lowe QC instructed by Mr. George Giglioli for Cayman Islands Helicopters Ltd.
This application for judicial review concerns the decision of the defendant, the Civil Aviation Authority of the Cayman Islands (the ‘CAACI’) taken on 10 th November 2011, to grant an aerodrome certificate (‘the Certificate’) permitting helicopter flights to take place from a heliport (the ‘Heliport’) which is located on the waterfront of central George Town. The Certificate was subject to certain conditions which are to be examined in this judgment, and the Heliport is to be operated by reference to the operational manual submitted by the operator Cayman Islands Helicopters Ltd. (‘CIHL”) (‘the Manual’). CIHL participates in the case as the Interested Party pursuant to GCR Order 53, rules 5(2) and 9(1).
The Plaintiff (‘Axis’) contends that the grant of the certificate by CAACI was
unreasonable in the Wednesbury1 sense, and therefore unlawful, and should therefore be quashed.
The parties are further described having regard to their positions as follows.
Axis is a Cayman Islands company and the owner of a property called Whitehall House. The property is situated on the landward side of North Church Street immediately diagonally opposite the Heliport. It houses business offices on the first three floors and a residential apartment on the fourth floor. Axis contends that the grant of the certificate was unreasonable on grounds of safety and nuisance.
CAACI is the statutory body having responsibility for the regulation of civil aviation in the Cayman Islands. It has the statutory functions conferred upon it by the Civil Aviation Authority Law (2005 Revision) as well as by designation by the Governor of the Cayman Islands under the Air Navigation (Overseas Territories) Order 2007, as amended (‘the ANOTO’). At all material times the CAACI acted by its Director General Mr. Richard Smith who was assisted in the certification process by Mr. John Dick the aerodrome inspector appointed to the CAACI; by Mr. Alastair Robertson, its Director of Air Navigation Services (Regulation) and Mr. Douglas Cushman, Manager, Flight Operations.
The Interested Party CIHL is a Cayman Islands company which operates a Eurocopter AS350-B2 helicopter (the ‘Helicopter’) from the Heliport and has been so operating continuously (except for a brief stay) since the grant of the Certificate on 10 November 2011. The flights are commercial tourist flights. Paying passengers are taken on sightseeing tours over and around Grand Cayman. The Managing Director of CIHL, and its sole shareholder, is (and has at all material times been) Mr. Jerome Begot. He is also the pilot of the Helicopter and the only pilot currently authorized by the Certificate to fly the Helicopter to and from the Heliport. CIHL employs, among other persons, Ms. Nathalie Legras, although herself a licensed helicopter pilot, in certain administrative capacities. The Manual anticipates that other pilots could operate from the Heliport but certain conditions as to experience and minimum flying hours into and out of the Heliport before taking passengers, are attached.
The Heliport is situated on what is by any measure for its purposes, a constrained site. On the site, CIHL has a building that houses its office and souvenir store with a deck and walkway leading to a 50” x 50” concrete pad, where the Helicopter takes off and lands. Immediately to the south is a two storey building, One Cayman House (‘OCH’) which, together with its boundary fence presents obstacles to the safe operation of the Heliport.
Axis points to the fact that the placement of the 50” x 50” concrete pad, due to the dimensional constraints of the site, was in breach of the set-back requirements of the Planning Regulations and indeed, of the planning permission granted to CIHL for the development of the site.
It must be noted, however, that notwithstanding Axis” complaint in this regard, the Central Planning Authority (‘CPA’) has refused the enforcement of the Regulations and breach of planning permission by way of requiring the demolition of or relocation of the pad, suggesting that the CPA considers this infraction to be minimal and negligible.
Axis and Coastal Two Ltd (‘Coastal Two’), the owner of OCH, also objected generally to the grant of planning permission for the development of the Heliport and sought leave to appeal to the Planning Appeals Tribunal (the ‘PAT’) out of time but leave to appeal was refused.
Costal Two but not Axis sought Judicial Review of the CPA's decision to refuse leave to appeal out of time. A judgment is awaited from Justice Williams of this Court on this matter.
Against that background Axis prosecutes this application which focuses on safety issues. The complaint of nuisance is also raised but specifically as a CAACI certification issue in the context of the alleged unreasonableness of the decision to certify. Axis argues that safety issues are axiomatically and acutely important when the aerodrome in question is a heliport to be used by a single engine helicopter and located in a developed and populous area such as George Town. Axis points to the fact that Article 105(2) (b) and (c) of the ANOTO requires the CAACI to be satisfied before granting such a certificate in addition to the competency of the applicant operator that:
-
(a) The aerodrome is safe for use by aircraft having regard in particular to the physical characteristics of the aerodrome and of its surroundings; and
-
(b) The required aerodrome manual submitted to the CAACI is adequate.
In light of those overarching requirements of the ANOTO, Axis” challenge to the rationality of the CAACI certification raises several considerations relating to the location of the Heliport and the operation of the Helicopter.
They begin with the obvious consideration that helicopters are complex machines that fly in a manner very different from fixed wing aircraft, helicopters being capable of hovering flight and transferring from hovering to forward flight. Flying them safely requires considerable expertise, not least when taking off and landing, always the most potentially risky phases of any flight. There are also the possibilities of engine or hydraulic failure to consider. Such failures are not everyday occurrences but are far from unknown. A pilot has to be prepared to act swiftly and competently in such eventuality so as, if possible, to land the helicopter safely and with minimal risk to those on board and on the ground, and with minimal damage to the helicopter and other property. This is both an expectation of common sense and of the air safety requirements to be discussed below.
It follows therefore, that the design (and operation) of any heliport must anticipate the safety issues which may arise in takeoff and landing, and, as regards the characteristics of the helicopter(s) which will use it.
Accordingly, says Axis, by Article 152 of the ANOTO, in granting the Certificate, the CAACI was required to take into account the matters set out in the Overseas Territories Aviation Requirements (‘OTARs’) together with the contents of the Manual. In particular, OTAR Part 139 (together with the relevant provisions of the ANOTO) set out the requirements applicable to the grant of a certificate. Axis acknowledges that in some circumstances exemptions from OTARs can be granted by the CAACI, but argues that such exemptions require justification by reference to alternative means to achieve an equivalent level of safety; justification that Axis argues was not shown to exist in this case.
Indeed, it is most particularly in respect of the grant of exemptions to or failure to apply the OTARs that Axis complains of the irrationality of the CAACI's decision.
The CAACI and the CIHL contend that by Article 146 of the ANOTO, the CAACI could exempt from any of the provisions of the ANOTO (or any regulations made thereunder), any aircraft or persons or classes of aircraft or persons either absolutely, or subject to such conditions as the CAACI sees fit. Even if this is so, this is a discretionary power, says Axis and, of course, as Axis asserts, in public law, no discretion is absolute or unfettered. A discretion must be exercised reasonably.
The Overseas Territories Aviation Circulars (‘OTACs’) provide practical guidance on meeting the requirements contained in the OTARs. Where an aerodrome is unable to meet the OTAR standards and needs to identify alternative means to achieve an equivalent level of safety, OTAC 139-5 provides guidance on the production of an Aeronautical Study in accordance with OTAR 139. CIHL provided an Aeronautical Study (‘the Study’) which CAACI relied upon in granting a specific exemption from a particular OTAR requirement — to be considered in more detail below — that the paths or ‘surfaces’ of flight into and out of the Heliport have a separation angle of no less than 150 degrees. The CAACI appear to have allowed a reduction in the angle of separation to 90 degrees by reliance on the Study.
Axis raises concerns about the content of the Study, ultimately as set out below, and is also concerned that its contents may have been unduly influenced by the CAACI's Aerodrome Inspector, Mr. John...
To continue reading
Request your trial