Axis Intl v Civil Aviation Auth

• Jurisdiction: Cayman Islands
• Judge: (Chadwick, P., Mottley and Campbell, JJ.A.),(Smellie, C.J.)
• Judgment Date: 26 March 2014
• Court: Court of Appeal (Cayman Islands)
• Date: 26 March 2014

Grand Court, Civil Division

Court of Appeal

(Smellie, C.J.)

(Chadwick, P., Mottley and Campbell, JJ.A.)

AXIS INTERNATIONAL LIMITED

and

CIVIL AVIATION AUTHORITY and CAYMAN ISLANDS HELICOPTERS LIMITED

P. Brook Smith, Q.C. and J. Golaszewski for the plaintiff;

M.J. Beloff, Q.C. and Ms. R. Sharma, Senior Crown Counsel, for the CAACI;

T. Lowe, Q.C. and G. Giglioli for CIHL.

Cases cited:

(1) Associated Provincl. Picture Houses Ltd. v. Wednesbury Corp., [1948] 1 K.B. 223; [1947] 2 All E.R. 680, applied.

(2) BY Dev. Ltd. v. Covent Garden Mkt. Auth.UNK(2012), 145 Con. L.R. 102; [2012] EWHC 2546 (TCC), applied.

(3) Bahamas Hotel Maintenance & Allied Works v. Bahamas Hotel Catering & Allied Workers, [2011] UKPC 4, applied.

(4) Breen v. AFU, [1971] 2 Q.B. 175; [1971] 2 W.L.R. 742; [1971] 1 All E.R. 1148, applied.

(5) Bugdaycay v. Home Secy., [1987] A.C. 514; [1987] 1 All E.R. 940, distinguished.

(6) CF v. Home Secy., [2004] 2 FLR 517; [2004] 1 F.C.R. 577; [2004] EWHC 111 (Fam), referred to.

(7) Council of Civil Serv. Unions v. Minister for Civil Serv., [1985] A.C. 374; [1984] 3 W.L.R. 1174; [1984] 3 All E.R. 935, applied.

(8) Crédit Suisse v. Allerdale B.C., [1997] Q.B. 306; [1996] 3 W.L.R. 894; [1996] 4 All E.R. 129; [1996] 2 Lloyd”s Rep. 241, followed.

(9) Davies v. PrathENR(1855), 17 C.B. 183; 139 E.R. 1039, referred to.

(10) Devon County Council v. George, [1989] A.C. 573; [1988] 3 W.L.R. 1386; [1988] 3 All E.R. 1002; [1989] 1 FLR 146, distinguished.

(11) Edinburgh City Council v. Revival Properties Ltd., [1997] 1 W.L.R. 1447; [1998] 1 All E.R. 174; 1998 S.C. (H.L.) 33; 1998 S.L.T. 120; [1997] 3 P.L.R. 71, followed.

(12) JML Direct Ltd. v. Freesat UK Ltd., [2010] EWCA Civ 34, followed.

(13) Neale v. Hereford, [1986] I.C.R. 471; [1986] I.R.L.R. 168, distinguished.

(14) Osman v. United KingdomHRC(1998), 29 EHRR 245; [1998] 8 ECHR 3124; [1999] 1 F.L.R. 193; 5 BHRC 293; 11 Admin. L.R. 200; [2000] Inquest L.R. 101; [1999] Crim. L.R. 82; [1999] Fam. Law 86; Application No. 23452/94, referred to.

(15) Padfield v. Minister of Agriculture, Fisheries & Food, [1968] A.C. 997; [1968] 1 All E.R. 694, followed.

(16) R. v. Bournewood Community & Mental Health NHS Trust, ex p. LELRWLRUNKFLRUNK, [1999] 1 A.C. 458; [1998] 3 W.L.R. 107; [1998] 3 All E.R. 289; [1998] 2 FLR 550; [1998] 2 F.C.R. 501; further proceedings, sub nom.HL v. United KingdomHRC(2004), 40 EHRR 32; [2004] 9 ECHR 191; 17 B.H.R.C. 418; Application No. 45508/99, referred to.

(17) R. v. Home Secy., ex p. Brind, [1991] 1 A.C. 696; [1991] 2 W.L.R. 588; [1991] 1 All E.R. 720, referred to.

(18) R. v. Ministry of Defence, ex p. Smith, [1996] Q.B. 517; [1996] 2 W.L.R. 305; [1996] 1 All E.R. 257, applied.

(19) R. v. Police Complaints Bd., ex p. Madden, [1983] 1 W.L.R. 447; [1983] 2 All E.R. 353; [1983] Crim. L.R. 263, followed.

(20) R. v. Westminster City Council, ex p. Ermakov, [1996] 2 All E.R. 302; [1996] 2 F.C.R. 208, considered.

(21) R. (Alvi) v. Home Secy., [2012] 1 W.L.R. 2208; [2012] 4 All E.R. 1041; [2012] UKSC 33, referred to.

(22) R. (Daly) v. Home Secy., [2001] 2 A.C. 532; [2001] 2 W.L.R. 1622; [2001] 3 All E.R. 433; [2001] H.R.L.R. 49; [2001] Prison L.R. 322; [2001] UKHL 26, followed.

(23) R. (London & Continental Stations & Property Ltd.) v. Rail Regulator, [2003] EWHC 2607 (Admin), noted at [2004] A.C.D. 13, referred to.

(24) R. (Lynch) v. General Dental Council, [2004] 1 All E.R. 1159, (2003), 79 BMLR 16; [2003] EWHC 2987 (Admin), referred to.

(25) R. (P) v. Essex County Council, [2004] EWHC 2027 (Admin), referred to.

(26) R. (Richards) v. Pembrokeshire County Council, [2005] LGR 105; [2004] EWCA Civ 1000, considered.

(27) Simpson v. Edinburgh Corp., 1960 S.C. 313; 1961 S.L.T. 17, followed.

(28) Streeter v. Immigration Bd., 1998 CILR 366, applied.

(29) Tesco Stores Ltd. v. Environment Secy., [1995] 1 W.L.R. 759; [1995] 2 All E.R. 636; (1995), 70 P. & C.R. 184; [1995] 2 P.L.R. 72, followed.

Legislation construed:

Civil Aviation Authority Law (2005 Revision), s.5(1):

‘The functions of the Authority are-

(a) such functions as are, for the time being, conferred on the Governor by or under any Air Navigation (Overseas Territories) Order . . .’

Air Navigation (Overseas Territories) Order 2007, art. 103: The relevant terms of this article are set out at para. 31.

art. 105(2): The relevant terms of this paragraph are set out at para. 12.

art. 146: ‘The Governor may exempt from any of the provisions of this Order . . . or any regulations made thereunder, any aircraft or persons

or classes of aircraft or persons, either absolutely or subject to such conditions as he thinks fit.’

art. 152: The relevant terms of this article are set out at para. 172.

art. 153: The relevant terms of this article are set out at para. 172.

Civil Aviation Act 1949, s.41: The relevant terms of this section are set out at para. 24.

Administrative Law-judicial review-grounds for review-expert body may be reviewed if fails to direct itself properly in law; fails to call attention to relevant considerations; places inappropriate weight on relevant factors or considers irrelevant factors; or if makes decision so outrageously defiant of logic or accepted moral standards that no sensible person could reach it-court to consider decision closely, but to avoid acting as appeal court, determining weight for relevant factors or substituting its own decision for that of expert body

Administrative Law-judicial review-human rights-inappropriate for court to apply heightened scrutiny test to protect rights to life and property under 2009 Constitution, ss. 2 and 15 if decision made by expert body subject to statutory regime requiring consideration of safety-more intense level of judicial review not to be used as excuse to interfere with merits of decision especially if involves complex policy questions outside court”s expertise

Civil Aviation-certification of heliport-exemption from requirements-Governor entitled to delegate power to grant exemptions under Air Navigation (Overseas Territories) Order 2007, art. 146-Civil Aviation Authority entitled to grant exemptions to Overseas Territories Aviation Requirements (provided requirement taken into account and exemption not irrational)-may grant exemption from mandatory regulation containing word ‘shall’

The plaintiff sought judicial review of the first defendant”s decision to grant the second defendant”s application for an aerodrome certificate.

The second defendant (‘CIHL’), a company which provided helicopter tours, wished to open a new heliport on a piece of land adjacent to the plaintiff”s property. CIHL therefore asked the first defendant (‘the CAACI’) (the body to which the power to issue certificates had been delegated by the Governor) whether it would be likely to grant a certificate for its proposed site. The power to grant certificates was governed by the Air Navigation (Overseas Territories) Order 2007 (‘AN(OT)O’), which extended the Convention on International Civil Aviation (‘the Chicago Convention’) to Cayman. The AN(OT)O stated, in art. 105(2), that the CAACI must ensure that the aerodrome was safe and that CIHL created and maintained an ‘adequate’ operational manual. The CAACI was also required, under art. 152(1), to ‘take into account’ the Overseas Territories Aviation Requirements (‘OTARs’)-including OTAR, part 139, Certification of Aerodromes, issue 5 (2005) (‘OTAR 139’), which contained certain standards to be met by aerodromes-and the Overseas Territories Aviation Circulars (‘OTACs’)-which contained guidance for following the OTARs, including OTAC 139–5, Aeronautical Studies, issue 1 (2009) (‘OTAC 139–5’), which stated that, if an aerodrome were unable to meet the standards in OTAR 139, these could be waived if an aeronautical study showed that an equivalent level of safety would be reached. These were published by the Governor, who was obliged to do so under AN(OT)O, art. 152, and were derived from Annexes to the Chicago Convention published by the International Civil Aviation Organization (‘the ICAO Annexes’).

The CAACI performed a ‘preliminary inspection’ of the site and informed CIHL that it was likely to grant a certificate-although it later stated that further study would be required. CIHL entered into a lease agreement for the site and obtained planning permission from the Central Planning Authority (‘the CPA’) to build a helipad, which required that it be built a certain distance from the sea. The CAACI performed a second evaluation of the site and identified the following issues: (a) although OTAR 139, at 139.I.123(f), required that there be at least two separate take-off and approach paths, or ‘surfaces,’ separated by at least 150°, the proposed surfaces were only separated by 130°; (b) the southern approach surface was penetrated by a metal fence and the roof of a neighbouring building, and the northern approach surface was penetrated by a utility pole and a tree; (c) the proposed safety area extended over the sea; and (d) as the planning permission required the helipad to be built a certain distance from the sea, there was insufficient space for a safety area or a final approach and take-off area (‘FATO’) which complied with OTAR 139, at 139.I.27(c) (which required a safety area of twice the overall length of the helicopter (‘2D’)) and OTAR 139, at 139.I.21(d)(2) (which required a FATO of at least the overall length of the helicopter).

CIHL began construction of the helipad, but did so closer to the sea than permitted by the planning permission; applied for certification of the helipad; and submitted a flight manual to the CAACI. This manual, inter alia, (i) included three images which showed a circular safety area around

the helipad and the take-off and approach surfaces, marked by reference to magnetic north, one of which depicted the utility pole penetrating the north surface; (ii) stated that the ‘FATO diameter’ was...