Angela Beazer

1
TCs AND STCs ASSESSING WHAT MAY BE CONTRARY TO
THE INTERESTS OF AVIATION SAFETY

• Angela Beazer
• Solicitor

2
Legal Requirements for Aviation Documents

• Aviation documents must be issued in accordance
  with the criteria in section 9 of the Civil
  Aviation Act.
• Section 9(1)(c) Civil Aviation Act
• The Director shall grant the application for
  issue of an aviation document if he is satisfied
  that
• It is not contrary to the interests of
  aviation safety for the document to be granted
  or renewed
• Type Certificates and Supplemental Type
  Certificates are aviation documents. The
  Director must be satisfied that approval of a TC
  or STC is not contrary to the interests of
  aviation safety

3
Part 21 Approval of TC or STC

• Part 21 replicates and requires a two stage
  application of the criteria in section 9(1)(c) in
  assessing whether to issue a TC or STC
• Approval of TC/STC technical data must not be
  contrary to the interests of aviation safety. CAR
  21. , CAR 21.505(d)(2)
• Issue of the TC/STC must not be contrary to the
  interests of aviation safety CAR 21.19(2), CAR
  21.119(2)
• If the Director cannot be satisfied of either
  requirement TC or STC will not be issued.

4
Exercise of Directors Powers

• The Director has the sole discretion to determine
  whether he is satisfied that it is not contrary
  to the interests of aviation safety to issue a
  TC/STC.
• Director must exercise his discretionary powers
  in accordance with the principles of natural
  justice
• Natural justice requires a decision maker, in
  making a decision, to
• Take into account relevant considerations
• Disregard irrelevant considerations
• Be able to demonstrate that the process followed
  was reasonable in the circumstances

5
Scope of Discretion

• interests of aviation safety
• Broad term some similarity to public interest
  considerations
• But focus on ensuring no factors that are
  contrary to the interests of aviation safety
• Cannot be exhaustively or prescriptively defined
  reflected in Act and Rules
• May include technical, operational and policy
  considerations
• Principles of natural justice applied to the
  exercise of the discretionary power depending on
  the circumstances and facts of each application

6
Approval of Technical Data

• Director may determine that it is contrary to the
  interests of aviation safety to approve technical
  data for an individual aircraft, product or
  design change
• Part 21 provides Director with discretion to
  adopt a policy that technical data for particular
  types of design changes must meet the latest
  design standards. This would be based on an
  assessment that it is contrary to the interests
  of aviation safety to approve to earlier
  standards.
• Policy should not unnecessarily fetter
  discretionary powers. Reserve ability to depart
  from policy in certain cases.

7
Approval of Technical Data

• Factors that may be considered contrary to the
  interests of aviation safety in approving
  technical data are limited to technical
  design/airworthiness concerns
• Relevant considerations may include
• Technical data submitted for approval to original
  design standard. Later design standard has clear
  safety benefits not catered for by original
  standard
• Technical airworthiness requirements met but
  pre-existing safety feature of aircraft or
  product design compromised by modification
• Human factors concerns not adequately addressed
  by applicable airworthiness requirements , or
  compromised by design features

8
Approval of TC or STC

• Whether approval of TC or STC is contrary to the
  interests of aviation safety is broader in focus.
  
• Encompasses operational and other concerns.
  Broader considerations that may be relevant may
  include
• Airworthiness concerns not sufficient to decline
  to approve technical data but still of concern to
  aviation safety
• Human factors known or reasonably anticipated
  behaviour of crew and passengers including
• Reasonableness of any expectation as to crew
  compliance with existing legal restrictions and
  limitations eg MCTOW
• Reasonableness of additional operational
  limitations necessarily imposed if design change
  is approved eg luggage compartments
• Typical operational environment and use of
  aircraft or product
• Related policy concerns which may affect or
  impact on the assessment of the degree of risk
  to aviation safety

9
Irrelevant or improper matters?

• Examples of considerations that are likely to be
  irrelevant or improper matters for the Director
  to take into account
• The commercial interests of competitors or
  competing products
• The commercial interests/impact on the applicant
  if the TC or STC is approved or declined
• An overly broad policy consideration, without any
  direct safety concern or evidence of real
  increased risk relating to the TC or STC
• Can the Director be satisfied that any concerns
  about safety risks are real (must be more than
  merely hypothetical)

10
Is the decision reasonable

• The primary determinant of any decision of the
  Director to approve or decline to accept
  technical data, and/or to issue a TC or STC is
  whether the decision is reasonable in all the
  circumstances.
• Whether a decision to decline an application for
  issue of a TC or STC is reasonable will depend
  on
• Whether any safety factor is so compelling that
  it alone provides grounds to decline the
  application or
• Whether any combination of factors is such that a
  decision to decline the TC or STC is likely to be
  upheld as reasonable and/or
• Whether the process followed in making the
  decision was reasonable, having regard to the
  principles of natural justice

11
Judicial Challenge

• A decision of the Director to decline to issue a
  TC or STC may be challenged by
• Appeal of the decision to the District Court s66
  CA Act
• Judicial Review in the High Court
• No case law, but would expect that decision would
  have to be plainly wrong or absurd for Court to
  reverse decision
• Most likely remedy if challenge successful, would
  be to require that the Director reconsider the
  decision.

12
Summary how decision is made

• No magic list or set of criteria to determine
  whether issue of a TC or STC is not contrary to
  the interests of aviation safety
• TC or STC must be assessed on a case by case
  basis. Decision must be reasonable having regard
  to all relevant factors and circumstances
• Director may establish policy that certain types
  of design changes must meet latest technical
  airworthiness design requirements on the basis
  that it is contrary to the interests of aviation
  safety to apply a lower standard
• Policy must be reasonable, and not unduly fetter
  the Directors decision to depart from it in
  individual cases.

13
Summary challenge to decision

• Adversely affected parties may challenge a
  decision not to issue a TC or STC.
• Director may be required to reconsider decision
  if challenge upheld, but decision would likely
  have to be seriously erroneous to be reversed by
  a Court.
• If successfully challenge an allegedly
  unreasonable policy, or a decision of the
  Director refusing to depart from a policy,
  Director may be required to reconsider policy or
  refusal to depart from policy in individual case
• Conclusion Emphasises the importance for
  industry of a no surprises approach with the
  Regulator