Introduction
Noise control schemes
Emissions charges
Public airport companies
Aviation route licensing procedures
Aviation Health Unit
Air Travel Trust Fund
Policing at aerodromes


Introduction

The Department for Transport has published a memorandum to the Transport Select Committee entitled "Post-Legislative Assessment of the Civil Aviation Act 2006". The memorandum provides a preliminary assessment of the effects of the Civil Aviation Act 2006, as part of the government's commitment to scrutinise the effects of legislation.

The purpose of the act was to implement a number of commitments in a white paper entitled "The Future of Air Transport". The act seeks to promote sustainable aviation and the protection of passenger interests, and incorporates a number of standalone measures. It contains provisions relating to noise, vibration and emissions from aircraft and the regulatory powers of aerodromes, including powers to establish noise control schemes. It also addresses matters relating to public airport companies, policing, health and the Air Travel Trust Fund.

Noise control schemes

The Civil Aviation Act 2006 inserted a new Section 38A into the Civil Aviation Act 1982 dealing with airport noise control schemes. The new Sections 38A(1) to (5) give operators of non-designated aerodromes certain powers to regulate noise and vibration from aircraft - these are similar to the powers conferred on the secretary of state for transport in respect of designated airports (ie, Heathrow, Gatwick and Stansted). Although non-designated aerodromes were given power voluntarily to establish and enforce noise control schemes for the vicinity of their aerodromes, there is no statutory requirement for aerodrome operators to implement noise control schemes.

The memorandum notes that in 2007 Manchester airport used the powers under the act to introduce a system of financial penalties for flights on which airlines persistently failed to follow noise-preferential routes. The department is not aware of any other aerodrome having used this power.

Emissions charges

The Civil Aviation Act 2006 amended Section 38 of the Civil Aviation Act 1982 by giving aerodrome authorities the power to include charges that reflect the emissions generated by each aircraft type. It also gave the secretary of state the authority to direct an aerodrome authority to fix its charges based on aircraft emissions. The aim of these measures was to encourage the use of aircraft that produce lower emissions, in the interests of meeting mandatory EU air pollution limits.

The memorandum notes that Heathrow, Gatwick and Luton airports have included an emissions charge element in their landing charges based on nitrogen dioxide emissions, and that Manchester airport is considering doing the same for the 2012 summer season. The department is unaware of any other aerodrome authority that has used this power and the secretary of state has not directed any aerodrome to do so.

Public airport companies

Section 5 of the Civil Aviation Act 2006 amended the Airports Act 1986, allowing the secretary of state to relax limitations on the powers of public airport companies so that they could compete on a more equal basis. A public airport company is a company that carries on the business of operating an airport as a commercial undertaking, and is a subsidiary of either a single principal council or two or more councils.

Section 5 is deregulatory and is intended to make it easier for public airport companies to carry out activities that were previously outside their power, such as making their expertise available to other airports and participating in joint ventures. Section 5 introduced a new Section 17A into the Airports Act 1986, which enabled regulations to be made for specific airports or more generally for public airport companies. The memorandum reports that no regulations have been made. In 2010 the Manchester Airport Group requested that the secretary of state make regulations for Manchester; however, these regulations are on hold.

Aviation route licensing procedures

The act removed an airline's right of appeal to the secretary of state in aviation route licensing cases that are decided by the Civil Aviation Authority (CAA). These cases periodically arise where an airline wishes to compete against another aircraft for scarce traffic rights on routes where the rights to operate are limited under bilateral air service agreements. The removal of the right to appeal to the secretary of state against a CAA decision means that an airline must seek judicial review in order to appeal.

The memorandum notes that only two cases have been referred to the CAA for determination, both involving hearings by the CAA under the Civil Aviation (Allocation of Scarce Capacity) Regulations 2007 (SI 2007/3556). It is noted that no appeals for judicial review were made; nor were complaints received about the lack of a right to appeal against the CAA's decision to the secretary of state. The department considers that the provision has delivered its intended purpose of streamlining decision making in these cases and eliminating additional costs to airlines.

Aviation Health Unit

The CAA's Aviation Health Unit was established in 2003. It offers advice and assistance regarding the health of passengers onboard aircraft and advises the government on a range of health-related issues. The act introduced duties for both the CAA and the secretary of state regarding the health of persons onboard aircraft.

The memorandum reports on the department's organisation of recommended measures for safeguarding health according to the statutory duty, including the commissioning of taxpayer-funded research into allegations about cabin air quality. The memorandum reports that the act has been useful and has helped to develop aviation medical expertise.

Air Travel Trust Fund

The Air Travel Trust Fund provides support to customers of failed tour operators under the Air Travel Organisers' Licensing (ATOL) scheme. The act imposed a new levy to address the fund's deficit and to secure its future solvency. It empowered the secretary of state to make regulations to require businesses that hold an ATOL licence to contribute to the fund. It was noted that an initial contribution of £1 for each booking came into effect on April 1 2008, and that this was increased to £2.50 from October 1 2009 in order to maintain the fund's ability to pay for refunds to, or repatriation of, consumers in the event of a tour operator's failure.

The memorandum states that without the contributions, the fund would have been unable to address its deficit. It notes that travel company failures since 2008 have meant that the fund remains in deficit and reliant on the government's guarantee for its solvency. In February 2011 the government announced a decision in principle to reform the ATOL scheme through new secondary legislation.

Policing at aerodromes

The act clarified the respective roles of the police and the aerodrome manager in protecting an airport. The amendments were intended to ensure that the police and the aerodrome manager would seek to agree on how best to achieve security at the airport, including the level of payments made by the airport to the local police authority for services provided to the aerodrome.

The act requires designated airports to enter into an agreement with their local police authority about how security measures in the airport security plan should be coordinated with the local police force. As a result of this provision, designated airports have been able to agree on the levels of policing that they require to protect the public. The airport operator is also required to reimburse the costs of that policing provision. Where airports have been unable to reach such an agreement, the act provides powers for independent experts to help to resolve the matter.

The memorandum states that the positive effects of such provisions is that all UK airports which operate within the scope of the National Aviation Security Programme and need a permanent police presence must pay for that policing.

For further information on this topic please contact Austen Hall at Hogan Lovells by telephone (+44 20 7296 2000), fax (+44 20 7296 2001) or email (austen.hall@hoganlovells.com).

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