Who is right ATC or the Law

Jan_Olieslagers wrote:

I think it is a general rule that ATC can allow or even instruct you to do things contrary to written rules. Just like, when driving or walking, police can order you to go on even if there’s a red light.

But that’s because the appropriate law allows them to manage/ direct traffic. You can’t break a law just because someone gave you permission. Even if came from a judge.

Aviathor wrote:

Don’t try this in France. In a twin the minimum altitude above any built-up area is 3300 feet!

Not after SERA. They can’t make default minimums higher (but they can lower them, IIRC UK does this), the regulation itself doesn’t allow for it. We have done this discussion before. What they can do is e.g. put a restricted area over a city and state conditions for entering it in AIP.

Martin wrote:

Not after SERA.

I’ll let you challenge it, and I look forward to the suit. The GM clearly gives them the access to doing it. A restricted area is only given as an example of how to define higher minima. There is no exhaustive list of AMC.

Aviathor wrote:

The GM clearly gives them the access to doing it. A restricted area is only given as an example of how to define higher minima. There is no exhaustive list of AMC.

Yes, the GM says that they can establish appropriate structures if they really want to do that and define conditions in the AIP (well, that is how I understand national arrangements). That doesn’t read to me like “you can increase the minimums after all, we just forgot to put it in the regulation and somehow mentioned only the possibility of lowering the minimums.” How exactly does blanket increase of minimum altitude constitute establishing an appropriate structure? And you might have noticed that the structures mentioned don’t contradict SERA. It’s a guidance material, it just reminds you that you have some options if you want to achieve this. And it’s not an actual law, unlike the regulation. You can’t break the law based on a GM.

Perhaps @bookworm can chime in.

Aviathor wrote:

I’ll let you challenge it, and I look forward to the suit. The GM clearly gives them the access to doing it. A restricted area is only given as an example of how to define higher minima. There is no exhaustive list of AMC.

As Martin said, SERA is clear in that the national authority can not impose higher minimum heights in the Rules of the Air.

What the GM says is that if the NAA believes a higher minimum height is warranted in a specific area this could be done “indirectly” e.g. by establishing a prohibited or restricted area with the restriction that flight below the higher minimum is not permitted. Sweden has imposed higher minimum altitudes in some national parks in exactly this way.

The nice thing with this approach is that the higher minimum height is not hidden in some obscure national regulation but is in plain view as a P/R-area.

Airborne_Again wrote:

As Martin said, SERA is clear in that the national authority can not impose higher minimum heights in the Rules of the Air.

I encourage you to explain that to the French authorities, or to challenge it in court if you are so sure. There was one guy (who formerly posted here) who claimed that he was building a fund to pay for his legal expenses to challenge the minimum altitudes in France after introduction of SERA, but he apparently backed out.

Words are cheap.

AeroPlus wrote:

I am instructed to stay below 500 feet. Is that something ATC can do?

The more I think about it, the more confused I get. The more so when reading the above replies from people much more qualified than myself. While respecting their knowledge, I have two questions:

• Surely ATC would not issue such a command if they were not allowed to do so? I have always considered these people professionals, knowing the law and other rules of the air much better than myself. A controller issueing a clearance or instruction outside her/his authority must surely get in serious trouble?

• What could one do except obliging? Imagine one was to reply “unable due legal restrictions”, what would be ATC’s feelings and what would be ATC’s reply? If I were in their shoes, I’d make such a – _ – _ – _ of a pilot perform a 180.

The only reason, and the only responsibility the ATC has, is collision avoidance in control airspace and a to assure the traffic is smooth and effective and to give information. They are not the police, they are not the law.

you can always refuse instructions from ATC

Yes of course one can – but wouldn’t that have very negative results, while adding little or nothing? On the short term, your planned flight would have to be abandoned, more than likely costing money towards the journalists carried, or their employers. On the medium term: the newspaper/TV chain will find a more able aircraft operator to spend their money with. On the long term: your next exception request is likely to be met with less sympathy, to say the least.

It seems clear to me that no sensible pilot will question ATC clearances or instructions – with the obvious exception of strictly pilotage issues (lack of fuel, lack of visibility, …) that said ATC could not be aware of.

Jan_Olieslagers wrote:

It seems clear to me that no sensible pilot will question ATC clearances or instructions

ATC can and do get it wrong – never blindly follow orders and if you think they are wrong then say so. ATC cannot absolve you from infringements of the rules. As others have said they have 1 function – to ensure the orderly flow of air traffic.