Aer Rianta v Aviation Commissioner

• Jurisdiction: Ireland
• Judge: O'Sullivan J.
• Judgment Date: 16 January 2003
• Neutral Citation: 2003 WJSC-HC 141
• Court: High Court
• Docket Number: [No. 707 J.R./2001]
• Date: 16 January 2003

2003 WJSC-HC 141

THE HIGH COURT

[No. 707 J.R./2001]

AER RIANTA CPT v. COMMISSIONER FOR AVIATION REGULATION

BETWEEN

AER RIANTA CPT

APPLICANT

AND

THE COMMISSIONER FOR AVIATION REGULATION

RESPONDENT

AND

BY ORDER OF THE HIGH COURT

AER LINGUS LIMITED AND RYANAIR LIMITED

NOTICE PARTIES

Citations:

AVIATION REGULATION ACT 2001 S5

AIR NAVIGATION & TRANSPORT (AMDT) ACT 1998 S14

AVIATION REGULATION ACT 2001 S7

AVIATION REGULATION ACT 2001 S32(2)

AVIATION REGULATION ACT 2001 S32(7)

AVIATION REGULATION ACT 2001 S33

AVIATION REGULATION ACT 2001 S35(2)

AVIATION REGULATION ACT 2001 S40

AVIATION REGULATION ACT 2001 S38

AVIATION REGULATION ACT 2001 S32(14)

AVIATION REGULATION ACT 2001 S5(4)

AIR NAVIGATION & TRANSPORT (AMDT) ACT 1998 S16

AIR NAVIGATION & TRANSPORT (AMDT) ACT 1998 S16(2)

AIR NAVIGATION & TRANSPORT (AMDT) ACT 1998 S23

AIR NAVIGATION & TRANSPORT (AMDT) ACT 1998 S24

AIR NAVIGATION & TRANSPORT (AMDT) ACT 1998 S39

AVIATION REGULATION ACT 2001 S32(13)

AVIATION REGULATION ACT 2001 S40(5)

AVIATION REGULATION ACT 2001 S40(8)

KEEGAN, STATE V STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642

O'KEEFFE V BORD PLEANAL 1993 1 IR 39

ABENGLEN PROPERTIES V CORPORATION OF DUBLIN 1984 IR 381

R (MARTIN) V MAHONY 1910 2 IR 695

BUCKLEY V KIRBY & DPP 2000 3 IR 431 2001 2 ILRM 395

KILLEEN V DPP 1997 3 IR 218

DPP V KELLIHER UNREP SUPREME 24/6/2000 2000/8/2984

ORANGE LTD V DIRECTOR OF TELECOMS (NO 2) 2000 4 IR 159

BAILEY & BOVALE DEVELOPMENTS LTD V FLOOD (PLANNING TRIBUNAL) UNREP MORRIS 6.3.2000 2000/2/457

HENRY DENNY & SONS (IRL) LTD V MIN FOR SOCIAL WELFARE 1998 1 IR 34

NI EILI V ENVIRONMENT PROTECTION AGENCY UNREP SUPREME 30.7.1999 2000/13/4925

FAULKNER V MIN INDUSTRY & COMMERCE 1997 ELR 107

CANADA (DIRECTOR INVESTIGATION& RESEARCH) V SOUTHAM INC 1997 1 SCR 748

RSC O.84

M & J GLEESON V COMPETITION AUTHORITY 1999 1 ILRM 401

COLLECTOR OF CUSTOMS V POZZOLANIC ENTERPRISES PTY LTD 1993 115 ALR 1

BAKER V CANADA (MIN CITIZENSHIP & IMMIGRATION) 1999 2 SCR 817

R V MIN DEFENCE EX PARTE SMITH 1996 QB 517

CENTRE FOR AUTOSAFETY V PECK 1955 751 F 2D 1336

ETHYL CORPORATION V EPA 541 F 2D 1 1976

TARA EXPLORATION & DEVELOPMENT COMPANY LTD V MIN INDUSTRY & COMMERCE 1975 IR 242

MCCABE V IRELAND 1999 4 IR 151

SHARPE LTD V DUBLIN CITY & COUNTY MANAGER 1989 IR 701

O'BRIEN V SOUTH TIPPERARY CO COUNCIL UNREP O'CAOIMH 22.10.2002

TENNYSON V DUN LAOGHAIRE CORPORATION 1991 2 IR 527

STEFAN V MIN JUSTICE 2001 4 IR 203

BANE V GARDA REPRESENTATIVE ASSOCIATION 1997 2 IR 449

CREEDON, STATE V CRIMINAL INJURIES COMPENSATION TRIBUNAL 1988 IR 51

SECRETARY OF STATE V ASLEF (NO 2) 1972 2 QB 455

SECRETARY OF STATE FOR EMPLOYMENT & SCIENCE V TAMESIDE BOROUGH COUNCIL 1977 AC 1014

WADE & FORSYTH ADMINISTRATIVE LAW 7ED 1994 316/7

R V CRIMINAL INJURIES COMPENSATION TRIBUNAL EX PARTE A 1999 2 AC 330

R V NORTH WEST SUFFOLK (MILDENHALL) MAGISTRATES COURT EX PARTE FOREST HEATH 1997 COD 352

DAGANAUASI V MIN EMIGRATION 1980 2 NZLR 130

HILL V CRIMINAL INJURIES COMPENSATION TRIBUNAL 1990 ILRM 36

BM (A) V MIN JUSTICE UNREP O'DONOVAN 23.7.2001 2001/1/267

RYANAIR V FLYNN 2000 3 IR 240

R (MEDWAY COUNCIL) V SECRETARY OF STATE FOR TRANSPORT 2002 AER (D) 385

R V DIRECTOR GENERA OF ELECTRICITY SUPPLY EXC PARTE SCOTTISH POWER PLC UNREP CA 3.2.1997

BILKA V WEBER VON HARTS 1986 ECR 1607

CARRIGALINE COMMUNITY TELEVISION BROADCASTING CO LTD V MIN FOR TRANSPORT 1997 1 ILRM 241

CORPORATION OF CITY OF ENFIELD V DEVELOPMENT ASSESSMENT COMMISSION 2000 169 ALR 400

PUSH PANATHAN V MIN CITIZENSHIP & EMIGRATION 1998 1 SCR 982

Abstract:

Judicial review - Certiorari - Aviation industry - Scope of judicial review - Calculation of airport charges - Availability of alternative remedy - Whether dispute fell within scope of judicial review - Aviation Regulation Act, 2001.

Facts: The parties were involved in a process whereby the Commissioner for Aviation Regulation ("the respondent"), which was established by the Aviation Regulation Act, 2001, sought to set minimum levels of airport charges. The applicant brought judicial review proceedings seeking to challenge the findings of the respondent on a number of grounds. As a preliminary issue it fell to be decided as to whether the matter could be resolved by way of judicial review proceedings or whether as the respondent submitted the matter could be resolved by an appeal panel established under the Aviation Regulation Act, 2001.

Held by O'Sullivan J in making the following order. The obligation on the respondent to ensure that his functions were transparent could not be breached by him on the basis that he has made miscalculations or errors as; alleged by the applicant. The error complained of did not come within the scope of judicial review proceedings.

1 O'Sullivan J. delivered the 16th of January, 2003.

2 The applicant ("Aer Rianta") is the operator of three international airports at Dublin, Cork and Shannon, and the respondent ("the Commissioner") is the sole member of the Commission for Aviation Regulation established by s.5 of the Aviation Regulation Act 2001with the function, inter alia, of specifying maximum levels of airport charges that may be levied at the above airports by the applicant.

3 Such charges were ultimately determined by the respondent in a "varied determination" dated the 9 ^th February, 2002 and took the form, where relevant to these proceedings, of setting a maximum charge or cap per passenger chargeable by the applicant to the users of the airports which include the notice parties.

4 The varied determination is subject to a wide ranging judicial review challenge in these proceedings. This challenge includes a claim for certiorari on the grounds that no reasons or adequate reasons were given therefor, that the determination was unreasonable and that it was so erroneous in fact that it was ultra vires the powers of the respondent. I refer to these as the irrationality ground of challenge: in support of this ground the applicant relies on a number of substantive errors of calculation, application and theory to which I will return in some detail at a later point.

5 In this judgment I am dealing with a preliminary application brought by the respondent for directions as to the issues to be tried in these proceedings. The purpose of the application is to have the court consider at the outset whether as a matter of principle the identification and review of such error can come within the scope of a judicial review of the validity of the determination.

6 Substantial submissions were made by both sides in relation to this issue and I will deal with these presently.

7 At the outset it is appropriate that first I set out the scheme of the Act of 2001 and of the Air Navigation and Transport (Amendment) Act, 1998and secondly the process by which the determination of the 9 ^th February, 2002 was reached. It will then be appropriate to consider the submissions of the parties on this preliminary application.

LEGISLATION

Aviation Regulation Act, 2001

8 This Act became law on the 21 ^st February, 2001 and by s.5 established a Commission for Aviation Regulation. The respondent was appointed the sole member of the Commission and by s.7 his principal function was "to regulate airport charges and aviation terminal service charges." By s.32(2) he was obliged within 6 months after the appointment of an establishment day (27 ^th February, 2001) to make a determination "specifying the maximum level of airport charges that may be levied by an airport authority." This he did by his initial determination of the 26 ^th August, 2001.

9 By s.32(7) the Commission is obliged to give notice to any person concerned stating that it proposes to make a determination and to give at least a month within which representations with respect to the proposed determination may be made. These must be considered and may be either accepted or rejected: on making the determination the Commission is obliged to give an account of its reasons for making it together with its reasons for accepting or rejecting such representations.

10 In making the determination the Commission must inter alia"aim to facilitate the development and operation of cost-effective airports which meet the requirements of users" and must have regard to ten separate specified matters set out in s.33. These include the level of investment facilities at the relevant airport, safety requirements and commercial operations, the current and prospective needs of those upon whom the charges may be levied, a reasonable rate of return on capital invested, the efficient use of all resources by the airport authority, its income from charges at the airport and other revenue earned elsewhere, its operating costs, the level and quality of services offered at the airport and the reasonable interests of the users thereof, the cost competitiveness and operational efficiency of these services and the imposition of minimum restrictions on the airport authority. A determination shall be in force for a period of five years and comes into operation not later than 30 days after the making of the determination. It may provide for an overall limit on the level of airport charges or for limits to apply to particular categories of such charges or a combination of these limits, or it may operate to restrict increases in any charges or require reductions whether by reference to a formula or otherwise or it may provide for different limits to apply in relation to different periods of time.

11 Having made a determination the Commission may after two years at its own initiative or at the request of an airport authority or user concerned review the determination and amend it if it considers there are substantial grounds for so doing. By s.35 (2) it must make a fresh determination at the end of the five year period and of each succeeding five year period thereafter.

12 By s.40 on receipt...