The High Court has directed the Commission for Aviation Regulation (CAR) to clarify whether parts of its 2007 review decision on Dublin Airport capital spending formed part of a legally binding determination or were only statements of its current thinking.
Ryanair Limited brought judicial review proceedings challenging the CAR’s treatment of proposed investment in Dublin Airport’s second terminal. The proceedings were listed to consider both leave to seek judicial review and, if leave was granted, the substantive case. The court delivered one judgment after counsel for all parties said they would raise no additional matters at a later hearing.
The CAR’s review left the existing maximum airport charges unchanged. It concluded that increased passenger numbers would offset the short-term effect of higher capital spending. The decision also described a phased approach for including second-terminal costs in the regulatory asset base, the pool of assets used to calculate allowable charges. Some costs would be included when the terminal became operational; further costs would be included only if passenger numbers passed a specified threshold, which the final decision set at 33 million passengers a year.
Ryanair argued that the decision’s wording created uncertainty about whether the treatment of those costs was part of a formal determination under the Aviation Regulation Act 2001. That distinction mattered because the Act provides an appeal route for determinations. The Minister had declined Ryanair’s request to establish an appeal panel, on the stated basis that an appeal did not arise because the CAR decision was not considered a determination. The judge did not decide whether that position was correct.
The court said the CAR’s document did not make sufficiently clear which statements exercised its statutory powers and which were non-binding guidance. It directed the CAR to clarify that distinction and issue a revised decision. The direction did not permit the CAR to reopen matters already decided.
On Ryanair’s separate irrationality challenge, the court found that the CAR had sufficient material to adopt the phased approach and that its judgment fell within the range of decisions open to it. It was not satisfied that the decision was inconsistent with the statutory framework or irrational. The court therefore made no order quashing the decision or changing airport charges. It directed that the case be listed again after the CAR issued its clarification.