Aer Rianta v Commissioner for Aviation Regulation
| Jurisdiction | Ireland |
| Judge | O'Sullivan J. |
| Judgment Date | 03 April 2003 |
| Neutral Citation | [2003] IEHC 168 |
| Court | High Court |
| Date | 03 April 2003 |
[2003] IEHC 168
THE HIGH COURT
BETWEEN
AND
AND
Aviation - Airport charges - Judicial review - Statutory interpretation -Air Navigation and Transport Act, 1936 - Air Navigation and Transport (Amendment) Act, 1998 - Aviation Regulation Act, 2001
O'Sullivan J. delivered the 3rd of April, 2003.
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, 2001, with the function, inter alia, of specifying maximum levels of airport charges that may be levied at the above airports by the applicant.
Such charges were ultimately determined by the respondent in a "varied determination" dated the 9 thFebruary, 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.
This varied determination is subject to a wide ranging judicial review challenge in these proceedings. I will refer to the specific challenges being dealt with in this judgment at a later point.
Following an initial application I delivered judgment on 16 thJanuary, 2003, in which I excluded a number of the challenges sought to be made by the applicant based on error allegedly made by the respondent in his calculation of the maximum charge.
Subsequently, having held a formal case conference, I made a further ruling directing certain issues to be tried at this stage of the proceedings and postponing other issues, designated "process" issues, relating to alleged want of fair procedures, to a later stage.
In this judgment, accordingly, I now deal with a number of substantial issues which are largely, but not exclusively, directed to questions of statutory interpretation and application.
Because of the nature of the issues now being dealt with it is necessary to set out in some detail the relevant statutory provisions.
The applicant was established in 1937 as a holding company for the first notice party and to promote aviation generally. For the first three years flights were from Baldonnell Co. Dublin until Collinstown Airport, as it was then called, commenced operations in 1940. In 1950 the applicant was given statutory responsibility to manage this airport as agent for the relevant government minister and 19 years later took over the same responsibility in relation to Shannon and Cork airports. Ownership of these airports was vested in the relevant minister until 1998. Accordingly in the years prior to that date the airports were owned by the relevant minister and managed for him as his agent by the applicant.
The purpose of the Act of 1998 was to bring about a fundamental change by vesting ownership of the airports in the applicant and reorganising its powers and duties. Under the Act of 1998 the Minster for Finance is the holder of the share capital of the applicant.
Section 2 of the Act of 1998 provides the following definitions:
"The word "aerodrome" means any definite and limited area (including water) intended to be used, either wholly or in part, for or in connection with the landing or departure of aircraft;
(imported from s.2 of the Air Navigation and Transport Act, 1936).
…
"airport" means the aggregate of the lands comprised within an aerodrome and all land owned or occupied by an airport authority, including aircraft hangars, roads and car parks, used or intended to be used in whole or in part for the purposes of or in connection with the operation of aerodrome; "airport authority" means the person owning, whether in whole or in part, or managing, either alone or jointly with another person, an airport; "airport charges" means-
a (a) charges levied in respect of the landing, parking or taking off of aircraft at an aerodrome including charges for air-bridge usage but excluding charges in respect of air navigation and aeronautical communications services levied under section 43 of the Act of 1993.
b (b) charges levied in respect of the arrival at or departure from an airport by air of passengers, or
c (c) charges levied in respect of the transportation by air of cargo, to or from an airport,
as may be appropriate;
…
"the Authority" means the Irish Aviation Authority;…
"the company" means Aer Rianta, cuideachta phoiblí theoranta;…
"the Minister" means the Minister for Public Enterprise."
The following sections of the Act of 1998 provide:
"10. - (1) The Minister shall by order appoint a day to be the vesting day for the purposes of this Act as soon as practicable following the commencement of this Act."
…
14. - (1) On the vesting day, all lands, which immediately before that day were-
a (a) vested in the Minister or used or intended to be used in connection with-
(i) a function of the Minister corresponding to a function conferred on the company by section 16, or
(ii) the provision of terminal services at an airport, or
i (b) held by the company in trust for the Minster,
(which lands comprised the airports known as Dublin Airport, Cork and Shannon Airport) and all rights, powers and privileges relating to or connected with such lands shall, without any conveyance or assignment and, subject to subsection (2), stand vested in the company for all the estate or interest therein which immediately before the vesting day was vested in the Minister but subject to all trusts and equities affecting the lands subsisting and capable of being preformed.
…
(5) On the vesting day the company shall, in respect of the lands and other property vested in the company under this section, pay to the Minister for Finance such amount as the Minister for Finance, with the consent of the Minister, may determine.
…
16. - (1) The company shall manage and develop the airports vested in it by section 14 and any other airport that may from time to time be established or owned by the company pursuant to subsection (3).
(2) The company shall ensure the provision of such services and facilities as are, in the opinion of the company, necessary for the operation, maintenance and development of a State airport, including roads, bridges, tunnels, approaches, water supply works and water mains, gas works and gas pipelines, sewers and sewage disposal works, electric lines, telecommunications facilities, lights and signs, apparatus, equipment, building and accommodation of whatever kind.
(3) The company may, with the consent of the Minister given an after consultation with the Minister for Finance and subject to such conditions as the Minister may determine, establish a new airport or become the owner in whole or in part or manager of an existing airport.
…
17. - (1) The company may acquire by agreement or, in accordance with the Second Schedule, compulsorily, any land, easement, interest in or other right over land, or any water right, for any one or more of the purposes described in section 18.
…
18. - (1) The purposes for which land may be acquired under section 17 are as follows:
a (a) to extend or develop an airport belonging to the company or establish and airport;
…
b (d) to develop civil aviation at a State airport;
c (e) to carry out the principal objects of the company.
…
22. - (1) The company and its subsidiaries shall take such steps as may be necessary under the Companies Acts to alter their memoranda and articles of association for the purpose of making them consistent with this Act.
…
23. - (1) The principal objects of the company shall be, and shall be stated in its memorandum of association to be-
a (a) to own, either in whole or in part, or manage, alone or jointly with another person, airports whether within the State or not.
b (b) to take all proper measures for the safety, security, management, control, regulation, operation, marketing and development of its airports,
c (c) to provide such facilities, services, accommodation and lands at airports owned or managed by the company for aircraft, passengers, cargo and mail as it considers necessary,
d (d) to promote investment at its airports,
e (e) to engage in any business activity, either alone or in conjunction with other persons and either within or outside the State, that it considers to be advantageous to the development of the company, and
f (f) to utilise, manage and develop the human and material resources available to it in a manner consistent with the objects aforesaid.
…
24. - (1) It shall be the general duty of the company-
a (a) to conduct its affairs so as to ensure that the revenues of the company are not less than sufficient taking one year with another to-
(i) meet all charges which are properly chargeable to its revenue account,
(ii) generate a reasonable proportion of the capital it requires, and
(iii) remunerate its capital and pay interest on and repay its borrowings,
b (b) to take such steps either alone or in conjunction with other persons as are necessary for the efficient operation, safety, management and development of its airports,
c (c) to conduct its business at all times in a cost-effective manner, and
d (d) to regulate operations within its airports.
(2) Nothing in section 23, this section...
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