Civil Aviation Order 29.10 - Air service operations - Aircraft engaged in aerial stock mustering operations - Low flying permission (02/12/2004)

The instrument revolves around four core concepts: aerial mustering, low flying permission, classification of operations, and the notice-and-objection mechanism.

First, "aerial mustering" is defined in section 2 as the use of aircraft to locate, direct and concentrate livestock while the aircraft is flying below 500 feet above ground level, and includes related training operations. This definition is critical because it sets the altitude floor for the exemption: the low-flying permission only applies when the aircraft is below 500 feet AGL for the purpose of livestock work. The definition does not extend to other agricultural flying such as spraying, seeding, or surveying, even if those operations also involve low flying. The exemption is thus activity-specific.

Second, the "low flying permission" is the core of the instrument. It is a permission, not an absolute right. It operates only by virtue of section 4.1 and is subject to all the conditions in the Order. The permission does not override other legal obligations: the note to section 4.4 expressly states that the permission does not confer any rights against landowners and does not prejudice common law rights or remedies for injury or damage. This means that even if an operator complies with the Order, they may still face civil liability for trespass, nuisance, or negligence at common law. The permission also does not displace the need for any other approvals, such as regulatory approvals under the Air Navigation Act or state-based stock mustering laws.

Third, section 3 classifies aerial mustering as either an aerial work operation or a private operation. If conducted as an aerial work operation (that is, for hire or reward), the operator must have an aerial work licence that authorises aerial mustering as a specific operation. If conducted as a private operation, it must be over land occupied by the owner of the aircraft. The classification determines which regulatory framework applies: aerial work operations are subject to the full suite of operating requirements under CAR, while private operations are subject to less onerous requirements but are limited to the owner's own land. The note to section 3.2 references subregulation 2(9) of CAR as potentially applicable for determining ownership in private operations.

Fourth, the notice-and-objection mechanism in section 4.3 is a key condition. It requires the operator to give written notice to the residing owner or tenant of any building that is within 600 metres horizontally of where the aircraft will be flown below 500 feet. The notice must be given at least 48 hours before the proposed flights. If the recipient objects, the pilot must not fly below 500 feet within 600 metres of that building. There is no provision for appeal or override. This gives individual landholders effective veto power over low-flying mustering near their occupied buildings. The provision applies to both aerial mustering operations and training flights. The term "building occupied by persons" is not defined further, raising questions about whether it covers sheds, yards, unoccupied holiday homes, or temporary camps.

The Order directly affects four categories of persons: pilots who conduct or wish to conduct aerial mustering; operators of aerial work businesses that offer mustering services; private landowners who own aircraft and want to muster their own livestock; and occupants of buildings near mustering areas. Indirectly, it affects livestock owners who contract mustering services, other airspace users, and insurers of aviation operations.

Pilots are directly affected because section 6 requires them to hold a Part 61 authorisation specific to aerial mustering operations in the kind of aircraft they are flying (aeroplane, helicopter, or registered gyroplane). This means a pilot who holds a commercial pilot licence but does not have the mustering endorsement cannot legally conduct the operation, even if they are otherwise qualified to fly low. This creates a barrier to entry for pilots who might otherwise offer mustering services, and it raises compliance costs for operators who need to ensure their pilots are properly authorised.

Operators who conduct aerial mustering for hire or reward must hold an aerial work licence and must have mustering specifically listed as an authorised operation (section 3.1). This imposes an administrative burden: the operator must apply for the licence, pay fees, demonstrate competence, and maintain records. For small operators, this may be a significant cost. Private operators (owners of the aircraft mustering their own land) do not need an aerial work licence but must still comply with the notice requirements and pilot qualifications.

Private landowners who own an aircraft and wish to muster their own livestock are treated differently. Section 3.2 allows aerial mustering to be conducted as a private operation over land occupied by the aircraft owner. This avoids the need for an aerial work licence, reducing compliance costs. However, the land must be occupied by the owner. This may exclude situations where the owner leases the land to a third party or where the owner lives elsewhere and the land is managed by an agent. The note to section 3.2 refers to subregulation 2(9) of CAR, which deals with ownership, but the Order does not further define "occupied". This creates uncertainty for landowners who share occupation with family trusts or corporate entities.

Occupants of buildings near mustering areas are affected because they have the right to receive notice and to object. This is an unusual provision in aviation law: it gives a private right of veto over aviation operations. For a person living in a rural area who does not want low-flying aircraft near their home, the Order provides a practical remedy not available under general aviation noise or safety regulations. However, the burden is on the operator to identify all buildings and their occupants, give notice, and check for objections. This may be difficult or impossible if the mustering operation covers a large area or if buildings are numerous.

The Order imposes several duties on operators and pilots, and confers limited rights on building occupants.

Duty to give notice. The primary duty is in section 4.3: before flying below 500 feet AGL and within 600 metres horizontally of a building occupied by persons, the operator must give written notice to the residing owner or tenant at least 48 hours before the proposed flights. The notice must inform the occupant of the upcoming aerial mustering operations or training flights. This is a strict duty; failure to give notice means the low-flying permission does not apply, and the pilot would be in breach of CAR 157. The duty applies to both aerial work and private operations.

Duty to respect objections. If the occupant objects after receiving notice, the pilot must not operate below 500 feet and within 600 metres of that building. The Order contains no mechanism for the operator to challenge or override an objection. This effectively gives the occupant an absolute veto. The duty is passive: the pilot must not fly if an objection is made. The Order does not specify how the occupant must communicate the objection (e.g., in writing, orally) or what constitutes a valid objection. This creates practical difficulties for operators who may receive ambiguous or late responses.

Duty to operate safely near buildings. Even where notice has been given and no objection made, section 4.4 requires the pilot to operate the aircraft over or in proximity to the building only in a pattern and at an altitude such that in an emergency it can avoid endangering persons or property on the ground. This is a continuing duty that applies during the flight. It is a safety net duty that overrides the permission: if conditions make it impossible to meet this standard, the pilot must not fly low near the building despite having consent. This duty is difficult to enforce but could be relevant in negligence claims if an accident occurs.

Duty not to carry unnecessary persons. Section 5.2 limits passengers to no more than one other person, and that person must be essential to the successful conduct of the operation. This means no joyriders, no trainee pilots (except those conducting training operations which are separately allowed under section 4.1(b)), and no non-essential observers. The burden is on the operator to justify that the person is essential. This restriction likely aims to minimise risk to persons not directly involved in the mustering task.

Right to fly low (conditional). The primary right is the permission granted in section 4.1 to fly at heights below those prescribed in CAR 157(1)(b), but only for aerial mustering and training. This right is conditional on compliance with all other sections. The right is not an exemption from common law liability, as the note to section 4.4 expressly preserves landowner rights.

Right of building occupants to object. Occupants of buildings have a right to receive notice and to object. This right is not expressed as a positive entitlement but arises from the prohibition in section 4.3: if the occupant objects, the operator cannot fly low near the building. The occupant's objection effectively creates a no-fly zone around the building for low-flying mustering aircraft. The right is limited: it only applies to buildings occupied by persons, not to vacant buildings, and only within 600 metres horizontally.

Civil Aviation Order 29.10 itself does not prescribe penalties. Enforcement occurs through the parent regulations: the Civil Aviation Regulations 1988 and the Civil Aviation Safety Regulations 1998. A breach of a condition of the low-flying permission results in the loss of the exemption under section 4.2, meaning the aircraft is then operating in contravention of CAR 157(1)(b). That provision carries its own penalties under the Civil Aviation Act 1988.

Specifically, if a pilot operates below the minimum height without the permission (because, for example, they failed to give notice or flew despite an objection), they would be flying contrary to CAR 157(1)(b). Under section 20A of the Civil Aviation Act 1988, a breach of a Civil Aviation Order or regulation is an offence of strict liability, punishable by a maximum penalty of 50 penalty units for an individual and 250 penalty units for a body corporate (currently one penalty unit is $275, so maximum fines are $13,750 for an individual and $68,750 for a body corporate). Additionally, the Civil Aviation Safety Authority can issue infringement notices (on-the-spot fines) or take administrative action such as suspension or cancellation of licences or certificates.

If a pilot carries more than one other person in breach of section 5.2, that may breach the operating limitations and also invalidate the permission for that flight. Similarly, if a pilot does not hold the required Part 61 authorisation under section 6, conducting the operation would be a breach of CASR Part 61, which carries its own penalty regime.

Enforcement is reactive: CASA relies on complaints, reports from other airspace users, or routine surveillance. The notice-and-objection mechanism in section 4.3 is self-policing in that an aggrieved occupant can report non-compliance to CASA, potentially triggering an investigation. However, proving that notice was not given or that an objection was made and ignored may be difficult in practice. The Order does not require the operator to keep records of notices, though prudent operators will do so.

There are no specific enforcement provisions in the Order itself, but the consequences of non-compliance are serious: the low-flying permission is lost, exposing the operator to prosecution for breach of CAR 157. The only way to avoid liability is to demonstrate compliance with all conditions. This places a heavy evidentiary burden on operators.

The Order exists within a hierarchy of aviation legislation. It is a legislative instrument made under regulation 157 of the Civil Aviation Regulations 1988, which itself is made under the Civil Aviation Act 1988. Section 4.1 explicitly grants permission pursuant to paragraph 157(4)(b) of CAR. This means the Order is subordinate to CAR and cannot override CAR provisions other than the low-flying prohibition in 157(1)(b). Other CAR provisions continue to apply, including those dealing with airworthiness, operating rules, pilot licensing, and airspace restrictions.

The note to section 4.4 explicitly preserves common law rights. This means that even if an operator fully complies with the Order, they may still be sued in trespass, nuisance, or negligence by a landowner or any person who suffers injury or property damage. The Order does not provide immunity from civil liability. This is a crucial interaction: the low-flying permission is purely regulatory and does not affect private law rights. Landowners can still object on grounds of noise, risk to livestock, or invasion of privacy, regardless of whether the operator has complied with the notice requirement.

The Order also interacts with Part 61 of the Civil Aviation Safety Regulations 1998, because section 6 requires pilots to hold a Part 61 authorisation specific to aerial mustering. This means the pilot must meet the training, experience, and medical requirements of Part 61 for that kind of aircraft (aeroplane, helicopter, or gyroplane). The Order does not prescribe those requirements; it merely incorporates them by reference.

State and territory laws relating to stock movement, animal welfare, and workplace health and safety may also apply to aerial mustering operations. For example, a mustering operation that causes stress to livestock may breach state animal welfare laws. The Order does not address these issues; compliance with the Order does not imply compliance with state laws.

The interaction with landowner rights is significant. The note to section 4.4 states that the permission "does not confer on an operator any rights as against the owner of any land over which the operations may be conducted". This means the operator cannot fly over private land without the landowner's permission, even with the low-flying permission, if the flight constitutes a trespass at common law. In practice, most mustering is done over the operator's own land or with the landowner's consent, but the Order does not require such consent. The note serves as a reminder that the regulatory permission is not a title to enter airspace over private property.

Finally, the Order interacts with other Civil Aviation Orders that address low flying, such as CAO 29.8 (agricultural operations) and CAO 29.11 (other low-flying permissions). Each Order deals with a specific category of operation. The boundaries between these Orders must be respected. For example, a helicopter spraying a paddock cannot rely on CAO 29.10; it must use the agricultural operations Order. Operators must ensure they are using the correct instrument for their activity.

The original Civil Aviation Order 29.10 was made on 2 December 2004 as CAO 2004 No. R28, notified in the Gazette on 8 December 2004, and commenced on 8 December 2004. It replaced an earlier version. The first amendment was CAO 29.10 2006 No. 1, notified on 7 December 2006 on the Federal Register of Legislative Instruments (FRLI) and commencing 8 December 2006. This amendment appears to have made minor changes, perhaps to update definitions or cross-references.

The most significant amendment was the Civil Aviation Order (Flight Crew Licensing) Repeal and Amendment Instrument 2014 (No. 1), registered on FRLI on 29 August 2014 (F2014L01177) and commencing 1 September 2014. This instrument repealed large portions of CAO 29.10. Specifically, the Table of Amendments shows that subsections 7, 8, 9, 10, 11, and 12 were all repealed by F2014L01177. Appendixes I, II, III, and IV were also repealed. The heading of section 29.10 was amended, and subsections 1, 2, 3, 4, 5, and 6 were all amended. The 2014 instrument appears to have consolidated and simplified the Order, removing provisions that had become redundant following the introduction of Part 61 of CASR in 2014 (which commenced 1 September 2014, the same day). Before the 2014 amendment, the Order likely contained detailed requirements for pilot competency, aircraft equipment, and record-keeping that were superseded by the new Part 61 framework. The current version is much shorter, with only six sections.

The compilation date on the front cover is 15 January 2015, taking into account amendments up to the 2014 instrument. No further amendments are shown. The Order is now static, though it could be amended again if CASA chooses to update it or if Part 61 is further revised.

The amendment history matters because older versions of the Order may still apply to transitional operations or to enforcement actions for conduct that occurred before the amendment. Practitioners should check the version in force at the relevant time.

The source text for this deep dive does not refer to any litigation history. No cases are mentioned in the Order itself or in the notes. It is not uncommon for specialised Civil Aviation Orders to have little to no case law directly interpreting them. However, that absence should not be read as implying that the Order is irrelevant to disputes. Cases involving low-flying aircraft, stock mustering, and landowner rights are more likely to be litigated in state courts under common law torts (trespass, nuisance, negligence) than under the Order itself. In such cases, the Order may be admitted as evidence of the standard of care or as a regulatory defence, but the note to section 4.4 specifically preserves common law remedies.

One possible area of litigation is around the notice requirement. If an operator fails to give notice and flies low near a building, the occupant could report the breach to CASA, leading to enforcement action. The operator could challenge any infringement notice or prosecution by arguing that the building was not "occupied" for the purposes of section 4.3 or that the horizontal distance exceeded 600 metres. The definition of "building occupied by persons" has not been judicially considered in the context of this Order, so uncertainty remains. Similarly, the requirement that the person carried under section 5.2 be "essential to the successful conduct of the operation" could be contested if a passenger role is questioned.

Given the narrow scope of the Order and the fact that most operators are likely to comply through established practices, litigation is probably rare. However, any incident involving injury or property damage could bring the Order into focus, particularly if the operator seeks to rely on the permission as a defence. Practitioners advising clients should be aware that the Order does not provide immunity and that common law claims may proceed irrespective of regulatory compliance.

Several provisions in the Order contain traps for the unwary operator.

The 48-hour notice requirement is strict. There is no provision for shorter notice in emergencies or for operations over large areas. If a pilot decides to muster a paddock near a homestead on the same day and has not given notice 48 hours in advance, the low-flying permission is unavailable, and the pilot must stay above 500 feet AGL within 600 metres of that building. This can effectively prevent mustering near occupied buildings unless the operator plans ahead. The notice must be in writing; an oral or verbal notice is not sufficient.

Objection veto is absolute. If the occupant objects, the pilot cannot fly low near the building. There is no ability to negotiate, obtain consent later, or argue that the objection is unreasonable. The operator must simply not operate below 500 feet within 600 metres. This gives a single resident the power to stop mustering operations over their land or adjacent land, potentially affecting the viability of the mustering operation.

"Building occupied by persons" is ambiguous. Does it include a shearing shed with workers inside? A temporary camp for seasonal workers? A caretaker's cottage on a large station? The Order does not define "building", so normal dictionary meanings apply. A building typically is a structure with walls and a roof, but whether a caravan, a tent, or an open-sided machinery shed qualifies is unclear. Operators must err on the side of caution and treat any structure that might be occupied as a building, or risk losing the exemption.

The 500/600 rule applies only when aircraft is below 500 feet AGL and within 600 metres horizontally. If the aircraft is above 500 feet, no notice is required, and the permission is not needed because the flight would be legal under CAR 157 anyway. But if the aircraft descends below 500 feet within 600 metres of a building without prior notice, the exemption is lost. The pilot must ensure that either the aircraft stays outside the 600-metre lateral distance when below 500 feet, or notice has been given and no objection received.

The "essential person" limit is not relaxed for training. Section 5.2 applies to "aerial mustering operation", which is defined to include training operations (see definition of aerial mustering). So during a training flight, the pilot may carry only one other person, and that person must be essential. That means a trainee pilot cannot be accompanied by an instructor and an observer simultaneously. The rule limits the ability to train multiple people at once.

Part 61 authorisation is kind-of-aircraft specific. Section 6 requires authorisation for that kind of aircraft: aeroplane, helicopter, or gyroplane. A pilot authorised for mustering in a helicopter cannot use that authorisation to fly a gyroplane for mustering. The pilot must hold a separate authorisation or endorsement for gyroplane mustering.

The permission does not extend to other low-flying activities. A pilot conducting a mustering operation must not perform other low-level manoeuvres outside the scope of mustering (e.g., buzzing livestock, low-level reconnaissance unrelated to mustering). The permission is limited to locating, directing, and concentrating livestock.

Common law liability remains. The note to section 4.4 makes clear that the permission does not affect landowner rights. An operator who complies with all conditions can still be sued for trespass if the aircraft enters airspace that constitutes an intrusion at common law. The Note is a reminder, but the rule is substantive.

Compliance with Civil Aviation Order 29.10 requires a systematic approach. Operators should follow these steps for each mustering operation.

First, determine whether the operation is aerial work (for hire or reward) or private. If private, the operator must own the aircraft and must be mustering over land that the operator occupies. The note to section 3.2 references subregulation 2(9) of CAR for determining ownership. If the operation is aerial work, the operator must hold an aerial work licence that specifically authorises aerial mustering. This licence must be obtained from CASA before commencing operations.

Second, ensure that every pilot who will fly during the operation holds the appropriate Part 61 authorisation to conduct aerial mustering in that kind of aircraft. Check the pilot's licence and logbook for the relevant endorsement. If the pilot does not hold the authorisation, they cannot fly for mustering, even under supervision.

Third, for each flight that will involve operating below 500 feet AGL, identify all buildings that are occupied by persons and that lie within 600 metres horizontally of the intended flight path. This may require a pre-operation survey of the property, using maps or ground inspection. Consider not just homesteads but also worker quarters, cottages, and any other habitable structures. If there is doubt, treat the structure as occupied.

Fourth, at least 48 hours before the proposed flights, give written notice to the residing owner or tenant of each such building. The notice must specify that aerial mustering operations or training flights are planned. It is prudent to include the date, time window, expected duration, and the area to be worked. Obtain a written acknowledgment of receipt if possible. Keep a record of all notices sent and any responses received.

Fifth, if any occupant objects to the flights, ensure that no aircraft operating under this Order flies below 500 feet AGL within 600 metres of that building. The operator must respect the objection. There is no appeal mechanism. If the objection is retracted orally, obtain it in writing to avoid later disputes.

Sixth, during the flight, limit passengers to no more than one other person, and only if that person is essential to the conduct of the operation. This means only the spotter, the stock contractor, or a similar essential role. No sightseers or non-essential trainees.

Seventh, even with notice given and no objection, the pilot must operate the aircraft over or near the building only in a pattern and at an altitude that in an emergency would allow avoiding endangering persons or property. This is a safety judgment the pilot must make in real time. If conditions (e.g., wind, aircraft performance) make it impossible to meet this standard, the pilot must not fly low near the building.

Eighth, ensure that the aircraft used is registered under the Civil Aviation Safety Regulations 1998 (as required by the definition of "registered" in section 2). The registration must be current.

Ninth, maintain records of all notices, objections (or lack thereof), pilot authorisations, and operator licences. CASA may request these records during an audit or investigation. The Order does not explicitly require record-keeping, but it is essential to prove compliance.

Tenth, for training flights, follow the same steps: give notice, carry only essential persons, and ensure the trainee pilot holds the Part 61 authorisation (or is under appropriate supervision if permitted by Part 61, though the Order requires the pilot to be authorised). Note that training flights are covered by the same notice and operational limitations.

Finally, be aware of common law risks. Obtain landowner consent to fly over their land if the flight may constitute a trespass. This is separate from the regulatory notice requirement. Consider obtaining insurance cover for low-level operations and discuss the Order's conditions with your insurer.