An enforcement notice restricting night-time flights at Dublin Airport contains “manifest failures” and should be quashed, the High Court has heard.
Lawyers for the airport operator, DAA, said failure to comply within six weeks of the notice, issued by Fingal County Council, is a criminal offence but DAA is still not “entirely clear” about the notice’s demands and there are differing interpretations of the 65 flights per night restriction.
The high stakes for noncompliance brings a consequent requirement for precision in an enforcement notice, said Brian Kennedy SC as he opened his client’s case on Tuesday.
Semi-state body DAA has pleaded issues of varying complexity, but at the heart of its action is a claim that the council’s handling of its enforcement decision denied it fair procedures, he added.
The effects of the notice, limiting flights between 11pm and 7am, have been paused by a court order DAA first obtained last August. The local authority issued the notice last July on grounds that the volume of flights scheduled by the airport exceeds the terms of a planning condition for flights between these hours.
The court heard the council stands over the validity of its notice, which was issued after a four-month investigation.
Mr Kennedy said the notice purports to require his client to take certain “ambiguous” steps that have “very significant consequences” for the airport’s operation. It requires 11pm-7am flights to reduce to 65 per night, but there are different ways of interpreting this direction, the court heard.
Ordered “on foot of penal sanction” to do something, his client is entitled to hear from the issuing authority what the notice means, Mr Kennedy said.
Appearing alongside him for DAA, Fintan Valentine SC said there are five ways of interpreting the notice’s flight restriction requirements. For instance, this could be an annual average of 65 per night, while another interpretation suggests it is an average of 65 per night in a period of about 90 days, he said.
[ DAA challenge to notice restricting night-time flights to be heard in MarchOpens in new window ]
Mr Kennedy asked the court if DAA should be expected to “discommode” 705,000 passengers on the basis that this “may” be the correct interpretation of the notice. Another reading would disrupt 45,000 passengers, he said.
The Irish Aviation Authority (IAA) had already allocated flight slots for 2023 when the notice was issued, he added.
He said a planner’s report that contains findings, recommendations and reasons for the enforcement decision was not provided to DAA for some time, which is a “manifest breach” of fair procedures, he said. This point alone entitles his client to an order quashing the notice, he submitted.
The DAA is expected to conclude its opening submissions on Wednesday before the court hears from Ryanair, Aer Lingus, the IAA and a local resident, who were added as notice parties entitled to make submissions in the case. Fingal County Council is defending its decision to issue the notice.
The hearing before Mr Justice Richard Humphreys is due to last a further four to five days.
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