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View Full Version : Airspace vs NPWS vs Airservices vs regulations


185skywagon
18th Nov 2005, 22:50
QNPWS is proposing a Fly Neighbourly "Agreement" for Carnarvon Gorge, which will restrict the height and distance you can be away from it.

They maintain that they have had legal advice that "They own from the core of the earth to the ozone layer" and can restrict airspace as they see fit. (very arrogant attitude)

I think I am right in stating that we are legally allowed down to 500' AGL, and below that with permission or due stress of weather.

Q1. Does State legislation overide CAO's and CAR's in this case??

Q2. Surely the Crown(all of us) owns any land including NP's, not QNPWS?

Is there any one here who can offer a semi legal opinion??

The Voice
18th Nov 2005, 23:33
you'd be surprised at what can be claimed as property .. and therefore what a claim of right/ownership can be made for ..

Creampuff
19th Nov 2005, 05:48
The NPWS legal advisers probably need to review the law after the 13th century. The old Latin maxim cujus est solum ejus est usque ad coelum et ad inferos was expressly rejected in Anglo-Australian law in Bernstein (Baron) v Skyviews & General Ltd [1978] QB; [1977] 2 All ER 902. That was a case about an upper class twit who objected to an entrepreneurial pilot who was flying around taking photos of properties and then offering to sell them (the photos) to the owners, The upper class twit claimed that he owned his estate from the core of the earth to the infinity of the heavens (the Latin maxim loosely translated), and therefore anyone who flew above his property was trespassing.

In any case, there is legislation in most of the Australian jurisdictions which effectively accords aircraft a right of innocent passage for the ordinary incidents of flight (which was the answer to the discussion re Avalon BTW). In the case of NSW, it’s subsection 2(1) of the Damage By Aircraft Act 1952, which subsection says:No action shall lie in respect of trespass or in respect of nuisance, by reason only of the flight of an aircraft over any property at a height above the ground, which, having regard to wind, weather, and all the circumstances of the case is reasonable, or the ordinary incidents of such flight, so long as the provisions of the Air Navigation Regulations are duly complied with.The NSW legislature could make a special case for Carnarvon Gorge, but I’m not aware of it having done so, and the Commonwealth rules would apply in any event above a certain height.

Vacant Towers
19th Nov 2005, 09:41
Creamy, I submit that NSW law has no relevance or power with regard to Carvarvon Gorge.





Cos the Gorge is in Queensland

VT

Creampuff
19th Nov 2005, 18:55
VT - If Carnarvon Gorge is in QLD, you are of course correct. I saw “NPWS” and thought NSW. Australian geography is not my forte!

There appears not to be an equivalent to subsection 2(1) of the NSW Damage by Aircraft Act in QLD. (There is in WA, VIC and TAS.) However, Lord Bernstein’s case above still applies, at least for actions in trespass. An interesting question arises as to whether an action for nuisance still lies, and if so, by whom. Bernstein was just about trespass, whereas in the (civilised?) Australian states the legislation excludes trespass and nuisance if the aircraft is at a reasonable height and complies with the aviation rules.

surfnsun
20th Nov 2005, 09:22
Would I be correct in assuming that CAO's, CAR's, and the Air Navigation Act are embodied under Federal legislation and could only be challenged by the states through the Federal Court?

OZBUSDRIVER
20th Nov 2005, 10:15
Interesting. Always thought you only owned the turf and six feet down and that was it. As an aside, Creampuff, would what you state undo the stupid ruling that the Vic state gov put on their books last year to allow any aerodrome owner to charge for approaches, missed or otherwise, as well as landings?

Sunfish
20th Nov 2005, 19:11
Federal Law overrides state law. Furthermore, most states (except NSW and WA? ceded any rights to control of aviation yonks ago.

The Voice
20th Nov 2005, 21:01
A thing called 'cross vesting' was introduced some several years ago. Specifically, and in a nutshell, it allows courts to hear and or transfer without prejudice, matters that may otherwise be outside of their jurisdiction.

The general cross-vesting scheme established by the Jurisdiction of Courts (Cross-vesting) Acts 1987 of the Commonwealth and each of the States commenced on 1 July 1988.

The purpose of the cross-vesting schemes is to avoid jurisdictional disputes arising in the Australian judicial system. Proceedings commenced in a court covered by the schemes cannot fail for want of jurisdiction, but proceedings commenced in an inappropriate court may be transferred to a more appropriate court.

In Bankinvest AG v Seabrook (1988) 90 ALR 407, 408 is described the operation of the general cross-vesting legislation:

‘The cross-vesting legislation in effect brings together the eight State and Territory Supreme Courts, the Federal Court and the Family Court into an organisational relationship. Very broadly speaking, the legislation now operative throughout Australia achieves two objectives: first, it enables any one of these courts to exercise the jurisdiction of, and to apply the law that would be applied by, any one of the other nine; secondly, it enables any one of those courts in which proceedings are commenced to transfer them to any one of the other nine.

The introduction of this scheme is a significant move towards providing throughout our nation the services of an integrated court system transcending the boundaries, both geographic and jurisdictional, that have in the past obstructed the courts in meeting the requirements of the Australian public.’

As for the original comment, up in the NT, a couple of airspace systems ago, there was a similar sort of restriction placed over Kakadu. From memory, it was specifically aimed at the grey jets operated indiscriminately under the guise of an exercise that used to pass over/around the area at zot feet/fast speed and there was some sort of fear of damage to the heritage area.

SkyWgn, any chance of some more info or a link to the proposal?

Creampuff
21st Nov 2005, 01:08
Whoa there fellas! This is getting just a little bit complicated.

The Civil Aviation Act and the Air Navigation Act and the CARs, CAOs, CASRs, ANRs etc are all pieces of Commonwealth legislation. But don't confuse any of those pieces of legislation for positive authority to trespass on anyone's property or to cause them a nuisance. For example, reg 93 of the CARs says:Protection of certain rights

Nothing in these regulations shall be construed as conferring on any aircraft, as against the owner of any land or any person interested therein, the right to alight on that land, or as prejudicing the rights or remedies of any person in respect of any injury to persons or property caused by the aircraft.Owners of land can take actions in trespass for infringements of airspace above their land. Typical examples are branches of trees that infringe only the airspace above the adjacent land; roofs or awnings of buildings that infringe only the airspace on adjacent land. A jib of a crane that would swing over an adjacent property in high winds has been found to be trespassing that adjacent property. A bullet fired into a property has been found to be a trespass of that property, even though it only traversed airspace above the property (before lodging, tragically and fatally, in a noisy cat).

The important questions are: at what height above a property does a thing have to be before it will cease to be trespassing that property, and what factors, if any, (such as the state of mind of the property owner and the motivation of the alleged trespasser) will affect that height so far as aircraft are concerned? Lord Bernstein's case suggests at least that an aircraft in the normal course of navigation and in compliance with the air rules will not be trespassing, as a matter of common law.

In NSW and jurisdictions that have the equivalent of subsection 2(1) of the NSW Damage by Aircraft Act, the answer does not matter, provided the aircraft is at a height above the ground, which, having regard to wind, weather, and all the circumstances of the case is reasonable, or the ordinary incidents of such flight, and the provisions of the Air Navigation Regulations are duly complied with.

If you are at YSBK for example, taking off or landing, or practising missed approaches, you are probably protected from actions in trespass and nuisance (provided you are not doing circuits at 50').

If you start practising a forced landing (anywhere in Australia) into someone's property, things start to get a bit risky if you go below 500' or, if it's a populous area, below 1000'.

Building an airstrip does not constitute an open invitation to any aircraft to pop in or shoot a missed approach there. I can't see any reason in principle that prohibits the owner of land from saying, in effect, that she will consent to something which might otherwise be a trespass and nuisance (e.g. doing a touch and go on, or shooting a missed approach into, her airstrip), on payment of a fee.

185skywagon
21st Nov 2005, 04:53
I cannot give you any link to info on this, as i got it from a friend in the system and i do not wish to drop them in it.

Essentially,
the Gorge is fairly narrow and very deep. The aim is to stop traffic transitting the gorge below the upper levels of it. Apparently they are concerned about geological stability and potential damage from helicopter and fixed wing noise, and also annoying the hikers at the bottom of the gorge.

Potential restrictions maybe 1500' and 3 miles from the centreline of the bed of the gorge.

Track from anywhere N/W of the gorge to Ingelara(main strip in the area), will take you through the proposed restriction.
Highest point is around 4500'.
The airspace ownership issue came up when I asked whether QNPWS had the power to restrict this airspace. Straight out Restriction, does not equal the spirit of a Fly Neighbourly agreement.

I was told that they had had legal opinion that they owned from "Core to Ozone".

Creampuff
21st Nov 2005, 06:41
Down in Mexico (NSW), the Supreme Court agrees with the courts in the Old Dart:It is certainly the case that the old adage, that the person with title to the land owns the land usque ad coelum et ad infernos, is not to be taken literally. It is also true that, especially so far as the air space above land is concerned, there have been pronouncements of courts which make it clear that flying an aircraft over a person's land is not necessarily of itself a trespass: see for instance Bernstein v Skyviews & General Ltd [1978] QB 479.See: Di Napoli v New Beach Apartments Pty Ltd [2004] NSWSC 52 per Young CJ in Eq, at 17. http://www.austlii.edu.au/au/cases/nsw/supreme_ct/2004/52.html

But note the difference between a trespass and a nuisance. Even though the aircraft in the gorge might not be trespassing, they may be causing a nuisance. Perhaps you Queenslanders need to join the rest of the Commonwealth and get one o' them thar laws like subsection 2(1) of the NSW Damage by Aircraft Act.