From:	Allan Robin
Sent:	28 February 2005 15:38
To:	Beaven David
Cc:	Commander Bob
Subject:	RE: Article 115 and paid pilots
You raise an important point but I think it is one for the DfT to address.

As you say, Article 5 of the Chicago Convention requires that aircraft not engaged in scheduled international air services “shall have the right, subject to the observance of the terms of this Convention, to make flights into or in transit non-stop across” the territory of every Member State.  One of the terms of the Convention to which that right is subject is Article 36.  This entitles each Contracting State to prohibit or regulate the use of photographic apparatus in aircraft over its territory.

It seems likely that it was on the basis of Article 36 of the Convention that a provision was included in the Air Navigation Order,  prohibiting foreign aircraft from flying over the United Kingdom "for the purpose of aerial photography or aerial survey except with the permission of the Secretary of State".  Upto and including the ANO 1985 that was as far as the prohibition went.  But it was extended by the Air Navigation (Amendment) Order 1986 by inserting after the words “aerial survey”, “or for the purpose of any other form of aerial work”.  I do not have any information about why that change was made. 
 
The definition of aerial work in force at the time was in substance the same as it is today (meaning any purpose (other than public transport) for which an aircraft is flown if hire or reward is given or promised in respect of the flight or the purpose of the flight).  Apart from the fact that valuable consideration has since been substituted for hire and reward, the only change since then has been to provide that a flight will remain private for airworthiness purposes if the only valuable consideration is remuneration to the pilot.

On this basis, it appears that the summary in your final paragraph ought to read -
“Without such a change, it seems that all operators of foreign registered corporate aircraft visiting the UK (as well as those more or less permanently based here) should have been applying to the DfT for permission to operate since 27 January 1987.” [that being the date on which the above ANO amendment came into force]

I propose to write to DfT, setting out the above position and inviting them to take such steps as they consider appropriate bearing in mind the obligations of Article 5 of the Convention.

Before I do so, do you have any further thoughts?”

 -----Original Message-----
From: 	Beaven David  
Sent:	28 February 2005 11:50
To:	Allan Robin
Cc:	Commander Bob
Subject:	RE: Article 115 and paid pilots
Importance:	High

9/99/21/01/01
Robin

I have reflected on what the "enormous consequences" might be.

I think Art 130(1)(b) was intended to allow an aircraft with a private category CofA to be flown by a paid chauffeur. The CofA categories have become extinct for EASA aircraft at least, although some differences remain between the maintenance requirements for private use as against those for public transport aircraft.

I think Art 115 was never intended to inhibit foreign registered aircraft exercising freedom of international air navigation under the terms of the Chicago Convention, although many of these do have paid pilots. 

We will have to revisit Art 130 in due course to make the changes from 'public transport' to 'commercial air transport'.  It might be opportune to consider changing 130(1)(b) for example "If the only such valuable consideration consists of remuneration for the services of the pilot the flight shall be deemed to be a private flight for for all puposes other than Part IV [pilot licensing] of this Order."

Without such a change it seems that all operators of foreign-registered corporate aircraft visiting the UK (as well as those more or less permanently based here) will have to apply to the DfT for permission to operate. This appears to be in breach of Article 5 of the Convention.

Regards

David Beaven
Deputy Head of Policy
General Aviation Department

 -----Original Message-----
From: 	Allan Robin  
Sent:	24 February 2005 14:42
To:	Duncan Nicholls (E-mail 2); Hills John Capt.; Forbes Graham
Cc:	Commander Bob; Beaven David; Britton Rupert; Weston Ian
Subject:	Article 115 and paid pilots

I have been telephoned by Ian Clark (an aviation lawyer who advises AOPA).  He has learned heard from AOPA that the CAA considers a payment to a pilot to fly the aircraft makes the flight aerial work.  This probably follows my telephone discussion with a member of the AOPA staff (Neil Monks - ex CAA) on this point.  

Ian Clark said that he had never heard this suggested before and that he thought it must be incorrect. 

I noted that article 130(1)(a) of the Air Navigation Order 2000 provides that a flight will be aerial work if valuable consideration is given or promised in respect of the flight or the purpose of the flight.  In my view, it is clear that a payment to a pilot to fly an aircraft on a particular flight is a payment in respect of the flight.  Ian Clark raised no intelligible argument to the contrary but said that it would have “enormous consequences”.

I pointed out that article 130(1)(b) expressly disregarded payment to a pilot for the purposes of Part III of the Order.  The clear implication of this was that without such an express disregard, payment to a pilot would indeed render the flight aerial work.  

I also noted that the only consequence of the flight being aerial work in the case of UK registered aircraft was related to the airworthiness requirements.  Accordingly the effect of the disregard at article 130(1)(b) was that payment to a pilot in respect of a UK registered aircraft was of no consequence (beyond the need for the pilot to have an appropriate professional licence).  

It is only if using a foreign registered aircraft that there would be any regulatory consequence, namely the need for an article 115 permission.  

Ian Clark said there would be consequences for insurance.  

I said that the policy behind article 115 was owned by DfT.  I accepted that CAA had to interpret it and was responsible for enforcing it.

We discussed the possibility that if a pilot was paid on an annual or monthly basis, regardless of carrying out any particular flight, that payment might be sufficiently unconnected with any particular flight such that it would not make flights aerial work.

Ian Clark said he thought he would arrange for AOPA to write to me seeking a formal statement of the position.  I said I would be quite happy to listen to any argument that he wished to put forward to the effect that payment to a pilot would not make a flight aerial work.