‘Congested Area’ Prosecution Threat to Pilots

Mon, 04 Jan 2010

According to Derek Pye, a commercial pilot and barrister at law at No5 Chambers, the problem for pilots is knowing for certain when they are deemed to be flying over a ‘congested area’, because there are no charts or other materials specifying such areas.
 
This was particularly highlighted in a case brought to court during 2009, in which Derek Pye acted as the pilot’s Counsel. 
 
On 13 September 2008 a Cessna 172, flown by an experienced commercial pilot, instructor and examiner, was on a banner towing flight in the vicinity of Manchester City Football Club’s Eastlands Stadium.
 
In March 2009 the pilot was charged with a breach of Rule 5(3)(d) of the Rules of the Air which reads:
“The land clear rule: An aircraft flying over a congested area of a city, town or settlement shall not fly below such height as would permit the aircraft to land clear of the congested area in the event of a power unit failure.”
 
Section 155 of the Air Navigation Order in respect of the definition of ‘congested area’ reads as follows:-
“155 Interpretation: ‘Congested area’ in relation to a city, town or settlement, means any area which is substantially used for residential, industrial, commercial or recreational purposes;
 
The case went to trial in Manchester on 21/22 July 2009 and attracted local media interest, if only because the pilot had the distinction in the past whilst working in California of giving Miss Angelina Jolie her ‘pilot’s wings’.
 
The case is of interest to the aviation community because of the way in which the CAA, as prosecutor, sought to interpret the definition of ‘congested area’.
 
The fact that the aircraft was towing a banner is irrelevant for the purposes of this article, as the CAA’s desired interpretation potentially affects any single engine flight in any congested area.
 
The CAA chose a local planning authority area of Manchester (the North Area) in which the Eastlands Stadium is situated, and adduced expert planning evidence that the area was ‘substantially used for residential, industrial, commercial or recreational purposes’.
 
The CAA’s argument was that even though there may be perfectly suitable areas on which to land an aircraft in case of an engine failure within a congested area, because the whole of the North Area was a ‘congested area’, any such landing would mean that the aircraft had not glided clear of the ‘congested area’ and, therefore, a breach of Rule 5(3)(d) would have occurred.
 
The Judge decided, however, that the pilot could avail himself of such suitable areas for landing even though within an otherwise ‘congested area’. 
 
In any event the Judge also decided that the pilot was flying at a height which was significantly in excess of that contended for by the CAA’s principal eye witness and the pilot was found to be not guilty.
 
Derek Pye ([email protected]) would be pleased to receive any questions or comments in respect of this topic or aviation related legal matters in general.

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