The operator of Dulbin Airport, the Daa, has secured a temporary High Court stay on a decision it claims will force it to significantly reduce the number of nighttime flights going to and from the airport.
Late on Tuesday evening, Mr Justice Conor Dignam granted the Daa permission to bring a challenge against last month's decision by Fingal County Council to issue an enforcement notice against the Daa for allegedly breaching the terms of planning permission obtained in respect of the airport's new north runway.
The Daa claims the enforcement notice is flawed, unreasoned, vague, is of no legal effect and should be set aside by the court.
The judge, after a lengthy and detailed hearing, also granted the Daa a stay on the notice coming into effect, however, the judge said the council can come to court on 48 hours' notice to the Daa and seek to have the stay either removed or varied.
The Daa claimed that if the stay, pending the outcome of the full action, was not granted by the court, the airport operator faced the prospect of possibly having to cancel thousands of flights, causing disruption to over 700,000 passengers.
The enforcement notice, which gave the Daa six weeks to reduce the number of nighttime flights, was issued in late July arising out of complaints about excessive noise from residents living near the runway.
The council issued the notice on the grounds that the number of flights scheduled by the airport exceeds the terms of a planning condition that no more than an average of 65 flights per day over a given period can operate from the runway between 11pm and 7am.
The Daa is legally obliged to comply with the terms of the enforcement notice. Any failure to do so would result in the Daa facing criminal sanctions.
The Daa disputes the council's decision and denies the planning breach as alleged.
It has launched High Court proceedings where it claims that the notice has been issued "in breach of fair procedures".
Judicial review
In its judicial review proceedings, the Daa seeks various orders and declarations against the council, including an order quashing the enforcement notice.
The Daa's core arguments against the legality of the notice include that the council has failed to provide the airport operator with a copy of the planning report, of July 18th, 2023, which contains the reasons why the council opted to issue the enforcement notice.
The Daa's counsel, Fintan Valentine, told the court that the refusal to provide this report, so the Daa can fully understand the basis for the notice, is a clear breach of fair procedures and constitutional justice.
It also seeks an order requiring the council to provide the Daa with a copy of the council's Planning Report of July 18th, 2023, and a stay on the enforcement notice coming into effect.
Following the conclusion of submissions by the Daa's legal team, Mr Justice Dignam said he was satisfied that the legal threshold to allow the court grant permission to bring the challenge had been met.
The judge also said that he was satisfied, with some reservations to grant the Daa, on an ex-parte basis with only one side represented in court, an interim stay on the enforcement notice coming into effect.
The stay is to remain in place pending the outcome of the full hearing of the dispute, The matter was made returnable to a date in November.
The Irish Aviation Authority is a notice party to the proceedings.
Disruptions
Mr Valentine SC, appearing with Aoife Carroll Bl instructed by Mathesons Solicitors, said that the notice has been invalidated on several grounds, as well as the council's failure to provide his client with the planning report.
Counsel said the council has failed to enter the reasons for the notice on the official planning register, which he said it is obliged to do.
Counsel said that the notice is also vague and unclear in its terms.
The Daa does not fully know what steps it needs to take in order to comply with it.
Counsel said on one reading it may have to cancel approximately 300 flights nighttime flights, which would disrupt up to 45,000 passengers.
Another interpretation of the notice, counsel said, would require the Daa to cancel some 4,000 flights over the coming weeks and months that would disrupt over 700,000 passengers.
This would have an adverse economic impact, counsel added.
Other grounds raised by the Daa include that the notice was issued without the council having any proper regard to submissions the airport operator had made to it in May 2023.
The notice also fails to take into consideration the role of the Irish Aviation Authority, which is the body that co-ordinates landing and take-off slots for aircraft at the airport.
It is further argued that the notice places a restriction in relation to the operation of an airport within the EU that is contrary to EU regulations and has no regard for the obligations of the 2007 Air Traffic Agreement entered into between the EU and the US.
