Aer Rianta v Commission for Aviation Regulation

JurisdictionIreland
JudgeO'Sullivan J.
Judgment Date04 June 2003
Neutral Citation[2003] IEHC 12
Docket Number[No. 707 J.R./2001]
CourtHigh Court
Date04 June 2003

[2003] IEHC 12

THE HIGH COURT

[No. 707 J.R./2001]
AER RIANTA CPT v. COMMISSION FOR AVIATION REGULATION

BETWEEN

AER RIANTA CPT
APPLICANT

AND

COMMISSION FOR AVIATION REGULATION
RESPONDENT

AND

AER LINGUS LIMITED AND RYANAIR
NOTICE PARTIES

Citations:

AVIATION REGULATION ACT 2001 S38(5)(A)

AVIATION REGULATION ACT 2001 S32

AVIATION REGULATION ACT 2001 S5(4)

AIR NAVIGATION & TRANSPORT (AMDT) ACT 1998

RAIU V REFUGEE APPEALS TRIBUNAL & ORS UNREP FINLAY-GEOGHEGAN 26.2.2003

Synopsis:

AVIATION

Regulation

Judicial review - Appeal - Whether questions raised issues of exceptional public importance - Aviation Regulation Act 2001, section 38(5)(a) (2001/707JR - O'Sullivan J - 4/6/2003)

Aer Rianta v Commission for Aviation Regulation

The applicant requested a certificate of appeal under s. 38(5)(a) of the Aviation Regulation Act 2001. The issue was whether the High Court decision refusing an application for judicial review involved a point of law of exceptional public importance. Four questions were advanced by the applicant.

Held by O’Sullivan J. in certifying the second question, namely,

“Having regard to the provisions of the Air Navigation and Transport (Amendment) Act 1998 and the Aviation Regulation Act 2001 to what extent, in what circumstances and on what basis, is the respondent entitled to exclude any of the applicant’s CAPEX projects or costs relating thereto from the recoverable CAPEX programme for the purposes of making a determination under s. 32 of the Aviation Regulation Act of 2001”

that none of the other questions raised an issue of exceptional public importance.

JUDGMENT of
O'Sullivan J.
1

delivered the 4th of June, 2003.

2

In this judgment I am dealing with the applicant's request for a certificate of appeal under section 38(5)(a) of the Aviation Regulation Act2001("the 2001 Act"). The application arises out of my judgments herein dated 16th January and 3rd April of this year respectively. These are taken as read. The relevant portion of the subsection provides

"The determination of the High Court of an application for leave to apply for Judicial Review as aforesaid or of an application for such Judicial Review shall be final and no appeal shall lie from the decision of the High Court to the Supreme Court in either case save with the leave of the High Court which leave shall only be granted where the High Court or the Supreme Court certifies that the decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court."

3

The questions now advanced by the applicant are as follows:

4

1. What is the proper nature and extent of the jurisdiction of the High Court (and, in the event of an appeal, the Supreme Court) to review the validity of a determination of the respondent made pursuant to section 32 of the 2001 Act on grounds of unreasonableness and/or on grounds of error (other than error of law) and/or on grounds of non-compliance with section 5(4) of the Act?

5

2. Having regard to the provisions of the Air Navigation and Transport (Amendment) Act1998("the 1998 Act") and the provisions of the 2001 Act to what extent, in what circumstances and on what basis, is the respondent entitled to exclude any of the applicant's CAPEX projects or costs relating thereto from the recoverable CAPEX programme for the purposes of marking a determination made under section 32 of the 2001 Act?

6

3. For the purpose of determining the level of historical CAPEX to be included in the RAB, does the 2001 Act entitle the respondent to disallow projects (or portion thereof) or costs (or portion thereof) notwithstanding the fact that they were:

(a) approved and/or
(b) contractually committed to and/or
(c) commenced and/or
(d) completed
7

prior to the commencement of the 2001 Act and/or prior to the making of the original determination and if so, what regard ought the respondent to have in making that determination to the aforementioned matters?

8

4. Does the 2001 Act preclude the respondent from considering post determination information on a review by it on a reference back by the appeal panel?

9

It will be noted from the foregoing that there is an appeal from the decision which I am now making. This distinguishes the 2001 Act from many other Acts and I am informed the same provision arises only in the Transport Act2001. Accordingly I propose to set out my determination in relation to each of the four questions proposed by the applicant. Mr. Gallagher S.C. on behalf of the applicant submits in relation to the first question that whilst the Irish jurisprudence on irrationality review is settled and recent there is no authoritative decision on the application of that jurisprudence to the determination of a specialist regulator and in particular to a determination allegedly involving egregious error and failure to implement his own clearly stated intentions.

10

Mr. Gleeson S.C. submits that the law is clearly settled and accordingly a question which might once have been characterised as of exceptional public importance has ceased to be such and certainly there is no public interest in having the issue determined on appeal. The 2001 Act clearly contemplates a question of exceptional public importance which nonetheless would be refused a certificate because it is not desirable in the public interest that it should be appealed and he suggests that such a category would be questions recently determined by the Supreme Court.

11

In my opinion the law is clear and its application to specialist tribunals has been recently made clear by the Supreme Court. The applicant relies, inter alia, on the fact that there is some authority in the United Kingdom and...

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    • 21 Diciembre 2009
    ...of review for unreasonableness may be seen from the decision of O'Sullivan J. in Aer Rianta cpt v. Commissioner for Aviation Regulation [2003] IEHC 12. As stated by Gilligan J. in Byrne v. Judge O'Leary & Ors. [2006] IEHC 412 "the unreasonableness standard has been heightened even further i......
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    ...FLYNN & MCCAULEY 2000 3 IR 240 2001 1 ILRM 283 2000 ELR 161 AER RIANTA CPT v COMMISSION FOR AVIATION REGULATION UNREP 4.6.2003 2003/1/133 2003 IEHC 12 TRAORE v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE 2004 2 IR 607 2004/49/11175 N (A) v REFUGEE APPEALS TRIBUNAL & ORS UNREP BIRMINGHAM 10.......
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    ...This is illustrated by the decision of the Irish High Court (O'Sullivan J) in Aer Rianta cpt v Commission for Aviation Regulation [2003] IEHC 12. The courts have stressed many times that they are not in place to enable decision makers at first instance to be 'second guessed'. See also in re......

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