Court has been asked to ‘pause’ the effects of planning restriction to stop ‘imminent, permanent and irreparable harm’
Seeking urgent intervention from the court on Friday, Paul Sreenan SC said the airline expects to lose €84 million in Revenue next year and up to €130 million in 2026 due to the Irish Aviation Authority’s (IAA’s) imposition of caps on traveller numbers.
He said the company is heavily reliant on “use them or lose them” take-off and landing slots at the airport, 80 per cent of which must be availed of in a season to secure them again the next year. Airlines have a right under EU law to their “historic” slots, but many of these would be lost if the cap takes effect, said Mr Sreenan.
Aer Lingus, Ryanair and a consortium of American airlines are urging the court to rule in their favour ahead of the allocation of Dublin Airport slots to carriers in six days’ time. ACL’s (Airports Coordination Ltd’s) distribution of slots is confined by the IAA’s assessment of the airport’s capacity and passenger cap.
After the hearing, Mr Justice Barry O’Donnell said he hopes to rule on the application on Monday.
The airlines want a court order that would pause the effects of the IAA’s 25.2 million seat capacity limit for the summer season that runs from late March and October.
An earlier IAA decision limiting seats to 14.4 million over the 2024 winter period– from now to March 2025– is already subject to High Court challenges by Ryanair, Aer Lingus and, raising contrasting concerns that the cap is too high, the airport’s manager, DAA. That challenge is due to be heard in December.
In making the recent winter and summer season decisions, the IAA said it considered technical, operational, environmental and local planning constraints, including An Bord Pleanála’s imposition of a separate annual 32 million passenger limit when it approved Terminal Two in 2007.
The IAA was neutral on the airlines’ application but told the court it will stand over its decision at a full hearing of the airlines’ cases. The DAA opposed the application, arguing it would facilitate a breach of a binding planning condition and expose the airport authority to enforcement action and potential criminal sanction.
The DAA has separately applied to the local planning authority, Fingal County Council, seeking an increase of the 32 million limit to 40 million.
Mr Sreenan, instructed by McCann Fitzgerald solicitors, said the 2007 planning condition was not a relevant consideration for the IAA in assessing capacity. Its application for the first time to the winter 2024/25 decision was a “significant change to the status quo”, he said.
If Fingal County Council moves to enforce the planning condition “so be it”, but it is not the IAA’s role, he said, adding: “Our concern is slots”.
Lawyers for Ryanair said the loss of historic Dublin Airport slots will hamper its right to retain such corresponding slots at 67 other European destinations. The IAA is incorrectly acting as “judge, jury and executioner” on the question of whether there is a breach of the 2007 condition, said Martin Hayden SC.
Dominic McGrath SC, for Airlines for America, which represents US airlines, said the IAA cap will create “very significant financial losses” and is “undercutting the very foundation of an airline’s business”.
Opposing, the DAA’s senior barrister, Fintan Valentine, said the airlines are seeking to “shortcut” the planning application seeking a passenger cap raise. He said the annual passenger cap will be breached this year and would be breached again next year if the court pauses the IAA summer cap decision.
His client operates in a “heavily regulated environment” and is prevented by the EU’s slot regulation from “unilaterally” reducing passenger numbers to comply with the 2007 planning condition. The DAA asked airlines, including Aer Lingus and Ryanair, to voluntarily reduce passenger numbers, but they refused and so are pushing the DAA into a breach of planning permission, he said.
“Once those slots are allocated, there is nothing the DAA can do to stop those passengers flying,” said Mr Valentine, instructed by Matheson solicitors.
The DAA has been served with three warning letters and is the subject of an investigation related to the 2007 planning condition, he said.
