The High Court on Monday created the first serious fracture in the rigid passenger cap imposed on Dublin Airport.
Aer Lingus, Ryanair and a group of American airlines had argued that an imminent allocation of slots for next summer based upon the fewer flights permitted under recent Irish Aviation Authority (IAA) rules as a result of the passenger cap would create an “imminent, permanent and irreparable harm” to their operations.
Justice Barry O’Donnell agreed that the airlines, their passengers and the broader economy would suffer “immediate serious consequences” if slots were allocated under the IAA restrictions. The balance of justice “overwhelmingly” supported pausing the passenger cap, he said.
It is far from a given that the court’s ruling will be reflected in the outcome of the full hearing of the airlines’ cases against the airport and the regulator.
Mr Justice O’Donnell was asked to rule only on the allocation of slots that might otherwise be lost. And he also made clear the right of Fingal County Council to pursue compliance with its planning permissions and conditions. But the “pause” does allow time for discussion and potentially even resolution.
And his comments do firmly put the rights of the airlines and the broader economic context sitting alongside the passenger cap as worthy of consideration, not subordinate to it.
There is plenty of blame to go around on this fiasco.
The original conditions have been in place since 2007 when initial approval for the second airport runway was granted. Everyone knew they were there – the airport operator (DAA), the airlines, successive governments and planners – but no one moved to do anything about them until it was well past critical.
The court ruling likely sets precedent for a series of related legal actions that will work their way through the courts over the coming months. More than one, it seems certain, will be decided not in Dublin but before the Court of Justice of the EU in Luxembourg.
As Monday’s ruling makes clear, whichever way it eventually falls, the outcome will not be decided solely on the basis of a long-existing planning condition. That at least opens the door for a more sensible discussion.
