The Department of Infrastructure, Regional Development and Cities adopted a prescriptive approach to the Hume City Council building application within the obstacle limitation area of Essendon Airport, which was in accordance with the process prescribed under the Airports (Protection of Airspace) Regulations 1996, but did not require the application of risk management principles to the department’s consideration.
The Department continues to administer applications under the Airports (Protection of Airspace) Regulations (APAR) using a prescriptive method set out under those regulations.
The Department states that the Commonwealth Risk Management Policy, and the risk management processes required therein, is applied to the management of the APAR as evidenced by the management of administrative and regulatory risk; however, the equivalent structures are not in evidence for the management of safety risk under these regulations.
The prescriptive approach governed by the regulations continues to determine how safety risk is managed under the APAR. A risk management approach to safety for applications made under these regulations has not been adopted.
In response to this safety issue, the Department of Infrastructure, Regional Development and Cities (Department) advised that:
The Department notes the ATSB comments that the approach to the application was in accordance with the relevant applicable regulations i.e. the Airports (Protection of Airspace) Regulations 1996 (APA Regulations). The Department also notes that under APA Regulations r. 14(2) the Secretary must approve applications unless they interfere with the safety, efficiency or regularity of air transport operations.
As outlined in the report, the Department stresses that the primary responsibility for providing safety advice rests with CASA, given that under APA Regulations r. 14(6) the Secretary must not approve a proposal for a controlled activity if CASA has advised the Secretary that carrying out the controlled activity would have an unacceptable effect on the safety of existing or future air transport.
While the Department does consider relevant risks (including to safety, efficiency and regularity) in considering applications under the APA Regulations, the Department agrees that in the future a more systematic approach to risk management should be implemented in relation to applications being assessed under these regulations. To this end, the Department will be guided by its internal 2015 Risk Management Framework, which aligns with the 2014 Commonwealth Risk Management Policy. The Department will document its risk management approach to airspace protection applications during 2018.
The Department will also work with key stakeholders to understand and document relevant risk management practices within those organisations (particularly CASA) that impact on the application processes and advice provided to the Department for the purposes of the regulations.
A significant change since the 2010 incident has been that in October 2015 the Victorian Government amended the Victoria Planning Provisions to include mandatory consideration of National Airports Safeguarding Framework Principles and Guidelines in planning processes around the state’s airports and airfields. This is outlined at: www.dtpli.vic.gov.au/planning/plans-and-policies/planning-for-airports/the-national-airports-safeguarding-framework.
This amendment will assist in early identification of potential airspace intrusions and facilitate communication between the relevant regulators, airports and developers. Further information about the National Airports Safeguarding Framework Principles and Guidelines is available at: www.infrastructure.gov.au/aviation/environmental/airport_safeguarding/nasf/index.aspx.
The Department continues to work with industry and State, Territory and local governments to improve awareness of airspace protection issues and planning processes.
The Department is currently reviewing the airspace regulations as they will sunset in April 2019 under the Legislation Act 2003 and will also take into account the ATSB’s findings on this matter.
The ATSB welcomes the above proposed safety action concerning introducing a risk based approach to decision making. The ATSB will monitor the progress of implementing this safety action in future amendments to airspace regulations.
Update 1 December 2023
The ATSB deferred seeking an update on the safety issue while investigation AI-2018-010 (Aerodrome design standards and the Bulla Road Precinct development at Essendon Fields Airport, Melbourne, Victoria) was in progress, principally because that investigation also examined the Department’s role in managing airspace regulated under the Airports Act. The final report for AI-2018-010 was published in June 2023, but did not make any findings related to the Department’s administration of that regulated airspace. In July 2023, the ATSB sought further advice from the Department on safety action to address this safety issue.
In response to the ATSB's request, the Department updated the ATSB on their processes and risk management under the Airports (Protection of Airspace) Regulations 1996 (APAR).
The Department stated that, since the identification of the safety issue, there had been changes to the processes and structures used in the administration of the APAR supporting the broader commitment to a safe and efficient airspace and air traffic management set out in the Airspace and Air Traffic Management Risk Management Policy Statement.
With respect to the risk management principles used in the administration of the APAR, the Department stated that:
The Regulations provide the framework for the Department's assessment of controlled activity applications. The Department follows a formal documented process in its assessment of applications under the Regulations and continues to monitor, review and update internal processes against the Department-wide risk matrix to ensure consistent application of key principles. It is important to note that the Regulations are made under the Airports Act 1996, the focus of which is economic regulation, not safety regulation, as per the Civil Aviation Act 1988, which sits within the remit of the Civil Aviation Safety Authority (CASA)...
The Department set out the process for initiating and processing applications to conduct a controlled activity under the Regulations. It also identified methods through which applications are made, and the method used by the Department when assessing an application as follows:
In making the decision for a controlled activity, the Department's delegate has regard to formal technical advice from the AOC, Airservices Australia (Airservices), CASA and any other matters considered relevant. CASA's advice identifies Obstacle Limitation Surface (OLS) penetrations, including critical take-off and approach surfaces as well as other safety risks for the airport. CASA will recommend options/conditions to mitigate safety risks if applicable. Under Regulation 14(6) of the Regulations, the Secretary (or his or her delegate) must not approve the application if CASA has advised that carrying out the controlled activity would have an unacceptable effect on the safety of existing or future air transport operations into or out of the airport concerned. Airservices' advice identifies any impacts on flight procedures, Communications, Navigation and Surveillance (CNS) systems, Air Traffic Control line-of-sight for runways and movement areas. It may also identify risk mitigation conditions that must be imposed if the application is approved.
Officers within the Department follow an assessment process which includes a systemic approach to identifying high risk applications earlier, for example those applications that propose penetration of, or are very close to, critical surfaces.
The process includes:
A detailed file note documenting all advice received is attached to the final file. This includes any follow-up clarifications between the Departmental assessment team and the technical advisors within agencies, together with any additional information relevant to the decision.
An example of a final approval was provided to the ATSB as part of the Department’s safety action update. The Department stated that this process demonstrated the practical application of risk management principles at every step of the application process.
The Department then set out the risk assessment processes attached to the management of the APAR:
'Risk Assessments are inherent in both the assessment and decision-making stages. The risks generally fall under four categories which are directly linked to the Department's high level Risk Assessment tools.
The four main areas of risk related to the administration of the Regulations have been identified as:
1. regulated industry compliance failure
2. departmental decision-making failure
3. a failure of the Regulations inter-agency systems
4. departmental decisions are not timely or efficient.
For example, in relation to risk one, above, consequences of a compliance risk failure in regard to the Regulations applications include:
During the assessment of a controlled activity application, have regard to any previous compliance issues relating to the application. Risk treatments applied to applications identified as higher risk may include:
The Department meets regularly with FLAs and continues to encourage AOCs to actively engage and raise awareness of airspace protection matters with State, Territory and Local governments.'
Finally, the Department advised that the sunsetting of the APAR had been extended to April 2025.
ATSB comment 29 November 2024
The safety issue concerns safety risk in the context of applications, made under the Airports (Protection of Airspace) Regulations (APAR), to breach an airport’s prescribed airspace (known as a controlled activity). That prescribed airspace is defined by concepts used in the safety management of airspace around an airport.
The Department is responsible for the administration of the APAR. While the Department’s statement that the controlling legislation, the Airports Act, does not have a safety objective, Part 12 of the act specifically includes ‘safety, efficiency and regulatory of transport’ as objectives in the regulation of an airport’s prescribed airspace. In considering an application to breach prescribed airspace, the APAR requires the Secretary to reject that application where the breach will have an unacceptable effect on the safety of existing or future air transport operations at the airport concerned, as determined by the Civil Aviation Safety Authority (CASA). From a safety perspective, that requires the Department to provide CASA with guidance for determining what comprises an ‘unacceptable effect on safety’. In meeting this objective, the Commonwealth Risk Management Policy requires the Department to provide a ‘safety’ risk management framework that includes a ‘safety’ risk management policy and a ‘safety’ based risk appetite statement. With respect to the application examined by this investigation, the Department required CASA to identify ‘probative evidence that the risk was unequivocal’ before the Secretary would reject an application as having an ‘unacceptable effect on safety’. This, as a safety risk policy, led to the investigation’s safety issue concerning the prescriptive approach to safety risk management of these types of applications under the APAR.
The statement provided by the Department in December 2023 did not contain any evidence that the management of safety risk attached to an application for controlled activities under the APAR was in accordance with risk management principles. While the Department’s statement identified:
the advice did not include any indication of a risk-managed approach to safety when assessing an application for a controlled activity under the APAR.
Finally, the sunsetting of the APAR scheduled for April 2025 has now been deferred to April 2026. Therefore, while the ATSB considers that this safety issue remains unaddressed, the sunsetting of the APAR represents a future opportunity to address the method of safety management prescribed under the regulations.
