The High Court has given Aer Rianta leave to challenge the cap on airport charges imposed last August by the the Commission for Aviation Regulation. The case will be back in court next February and will affect the maximum level of airport charges to be levied by Aer Rianta at Dublin, Cork and Shannon airports.
The Commission - whose sole member is Mr William Prasifka - prejudged issues regarding the level of capital investment in airports and had disallowed proposals for capital projects, Mr Paul Sreenan SC, for Aer Rianta, told Mr Justice Kelly.
Counsel said he would be contending the commission was wrong in law in determining the Aviation Regulation Act 2001 required Aer Rianta to justify the cost effectiveness of its proposed capital expenditure programme before the latter could be taken into account for the purpose of calculating maximum airport charges and/or before Aer Rianta would be entitled to a reasonable rate of return on such capital projects.
It appeared the commission's decision was based on a report which the commission had sought from a firm of US consultants, IMG Consultants, counsel added.
He said the commission had also erred in having taken into account alleged non-consultation by Aer Rianta with airport users. In fact, Aer Rianta had consulted with airport users and the commission was not aware of the full extent of that consultation.
Mr Sreenan was seeking leave to bring judicial review proceedings in which Aer Rianta is seeking an order quashing the Commission's determination of August 26th last.
Ms Mary Finlay SC, for the commission, said she was not opposing the application for leave. She said some of the grounds on which Aer Rianta was seeking judicial review did raise issues of statutory interpretation in relation to the Aviation Regulation Act 2001 which grounds, she was satisfied, the court might consider substantial.
Other grounds related to findings of fact and the commission could enter into argument relating to those, but there was no point in delaying the case by having a contested hearing at the leave stage, counsel added.
The application for leave was brought under Section 38 of the Aviation Regulation Act 2001. This provides for parties to challenge decisions of the Aviation Commission in High Court judicial review proceedings but such applications have to be on notice to the other side.
The court must also take the view that there are substantial grounds under which the trial court might declare the disputed decision invalid.
Granting leave, Mr Justice Kelly said the essential order being sought was one quashing the determination of the commission. The other reliefs were declarations which largely took issue with the manner in which the commission went about its task.
He said the case raised issues of statutory construction and it was alleged the commission had misdirected itself regarding its statutory obligations.
The case also highlighted tensions between the obligations of Aer Rianta under the Air Navigation and Transport (Amendment) Act 1998 and those of the commission and it was alleged these tensions had been resolved inappropriately.
The judge said he was satisfied Aer Rianta had set out substantial grounds for contending the commission's decision was invalid and should be quashed. However, he stressed that, in granting leave, he was not taking any view as to the eventual outcome of the full hearing. The fact there were substantial grounds was not a warranty of success in the full action.
The judge also directed Aer Rianta to inform some 33 other airport users - including Aer Lingus and Ryanair - of the granting of leave and the grounds on which the application was brought.
The other users might, if they so wished, later apply to be joined to the proceedings as notice parties. He made other directions relating to the exchange of legal documents and returned the matter for mention to February 1st next.
