Carbery Fishing Ltd v Min for Agriculture and Others

• Jurisdiction: Ireland
• Judge: Miss Justice Laffoy
• Judgment Date: 15 November 2011
• Neutral Citation: [2011] IEHC 427
• Court: High Court
• Date: 15 November 2011

[2011] IEHC 427

THE HIGH COURT

[No. 471P/2010]

Carbery Fishing Ltd v Min for Agriculture & Ors

BETWEEN

CARBERY FISHING LIMITED

PLAINTIFF

AND

THE MINISTER FOR AGRICULTURE, FISHERIES AND FOOD, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

FISHERIES (AMDT) ACT 2003 S4

SEA-FISHERIES & MARITIME JURISDICTION ACT 2006 S97

MEADE v MIN FOR AGRICULTURE UNREP LAFFOY 3.3.2010 2010/33/8336 2010 IEHC 105

SEA-FISHERIES & MARITIME JURISDICTION ACT 2006 S13

CONSTITUTION ART 40.3.1

CONSTITUTION ART 40.3.2

CONSTITUTION ART 43.2.1

SEA-FISHERIES & MARITIME JURISDICTION ACT 2006 S13(1)

SEA-FISHERIES & MARITIME JURISDICTION ACT 2006 CHAP 2

GLENCAR EXPLORATIONS PLC & ANDAMAN RESOURCES PLC v MAYO CO COUNCIL (NO 2) 2002 1 IR 84

LETT & CO LTD v WEXFORD BOROUGH CORP & ORS UNREP CLARKE 23.5.2007 2007/34/7055 2007 IEHC 195

ATLANTIC MARINE SUPPLIES LTD & ROGERS v MIN FOR TRANSPORT & ORS 2011 2 ILRM 12 2010/3/567 2010 IEHC 104

WILEY v REVENUE CMRS 1994 2 IR 160 1993 ILRM 482 1992/4/1204

HEMPENSTALL & ORS v MIN FOR ENVIRONMENT 1994 2 IR 20 1993/3/645

CONSTITUTION ART 40.3

CONSTITUTION ART 43

MAHER & ORS v MIN FOR AGRICULTURE & ORS 2001 2 IR 139

BUCKLEY & ORS (SINN FEIN) v AG & POWER 1950 IR 67

FISHERIES

Quota

Legitimate expectation - Property rights - Approval from Licensing Authority for modification of boat - Mackerel quota - Whether discriminating unlawfully in quota allocation - Whether breaching legitimate expectation - Whether infringing property rights - Whether infringing right of access to court to obtain quia timet injunction - Glencar Exploration v Mayo County Council [2002] 1 IR 84 applied - Sea-Fisheries and Maritime Jurisdiction Act 2006 (No 8), s 13 - Proceedings dismissed (2010/471P - Laffoy J - 15/11/2011) [2011] IEHC 427

Carbery Fishing Ltd v Minister for Agriculture, Fisheries and Food

Facts: The plaintiff was the owner of a licensed sea-fishing boat and was the holder of a licence for the purposes of the Fisheries (Amendment) Act 2003, as amended. The plaintiff contended that the mackerel authorisation issued to the plaintiff in 2010 discriminated unlawfully between the plaintiff's vessel and other longer vessels over 65 foot. It was alleged that it had not been indicated that the Minister proposed to discriminate between vessels of this length and that the plaintiff had a legitimate expectation at the time consent was given that they would be treated equally. It was alleged that the Minister had breached the constitutional rights of the plaintiff. The Minister contended that they were entitled to exercise their discretion to allocate fishing opportunities.

Held by Laffoy J. that the plaintiff's proceedings would be dismissed. The plaintiff's claim for breach of legitimate expectation failed. It had not been established that the Minister acted in breach of the plaintiff's constitutional rights or in breach of its constitutional right of access to the Court.

Reporter: E.F.

1 Judgment of Miss Justice Laffoy delivered on 15th day of November, 2011.

1. The factual background

2 2 1.1 The plaintiff, a company incorporated in the State, carries on the business of fishing. It is the owner of a licensed sea-fishing boat, the MFV "Atlantic Quest", which is in the polyvalent (multipurpose) general segment of the fishing fleet. In order to conduct the aspect of its business in issue in these proceedings, which is fishing for mackerel, the plaintiff has to engage with two regulatory regimes: it has to be the holder of a sea-fishing boat licence and it has to have an authorisation from the first named defendant (the Minister) to fish for mackerel. The two regulatory regimes are distinct. The issues which the Court has to determine in this case arise from the following factual circumstances:

3 (a) that the plaintiff decided in 2009 to modify the MFV "Atlantic Quest", in consequence of which the plaintiff required the approval of the licensing authority, namely, the Licensing Authority for Sea-Fishing- Boats (the Licensing Authority) and the issuance of an amended sea-fishing boat licence; and

4 (b) that in July 2009 the Minister embarked on a review of eligibility for mackerel and herring fishing and the internal allocation of mackerel to vessels in the polyvalent fleet.

5 3 1.2 Dealing with the licensing of the MFV "Atlantic Quest" first, in 2009 the plaintiff was the holder of a licence for the purposes of s. 4 of the Fisheries (Amendment) Act 2003, as inserted by s. 97 of the Sea-Fisheries and Maritime Jurisdiction Act 2006 (the Act of 2006), which had been issued by the Licensing Authority on 1 ^st October, 2008 and which covered the period from 1 ^st October, 2008 until 30 ^th September, 2011. Although this does not appear on the face of the licence, the registered length of the vessel when that licence issued was under 65 feet (or 19.81 metres). By letter dated 24 ^th April, 2009, the plaintiff notified the Licensing Authority of its intention to modify the vessel by lengthening it to 19.83 metres registered length. In connection with that notification, the Licensing Authority was requested by the plaintiff to inform it of the requirements to get the vessel modified and subsequently licensed and registered and the Licensing Authority was also asked to confirm whether, if the plaintiff went ahead with the modification, the plaintiff would be in a position to maintain its existing pelagic entitlement in relation to the vessel. The significance of the pelagic entitlement was that, in the case of vessels with a registered length over 65 feet, the issue of an authorisation permitting the vessel to fish for herring or mackerel was dependent on it having an "active pelagic history", which in 2009, on the basis of a moratorium which had been introduced in 2002 and had been extended in the subsequent years up to and including 2008, involved being able to show that the vessel had fished during the years 2005, 2006, 2007 and 2008 for herring and mackerel for eight weeks in each year.

6 4 1.3 The response of the Licensing Authority, which was contained in a letter of 18 ^th May, 2009, is of particular significance to the issues before the Court. It stated as follows:

7 (a) the Licensing Authority thereby "in principle, subject to formal approval by the Marine Survey Office", approved the proposed lengthening of the vessel;

8 (b) that it should be noted that the approval in principle by the Licensing Authority referred exclusively to the issue of a sea-fishing boat licence and any queries regarding quota allocation should be referred to the Minister's Department;

9 (c) that on the basis of the then current pelagic history of the vessel, while it did not meet the requirement of eight weeks in 2005, it did meet the requirement of eight weeks in 2006, 2007, 2008 and 2009 and, consequently, could not be considered as having an active pelagic history until the year 2010;

10 (d) if the vessel was lengthened to 19.83 metres during the year 2009, the amended sea-fishing boat licence to be issued in respect of the post-modified vessel for the year 2009 would preclude it from fishing for herring and mackerel from the date of issue to 31 ^st December, 2009, because the active pelagic history would not be fulfilled until 2010, but the licence in respect of the period commencing on 1 ^st January, 2010 would contain no such preclusion; and

11 (e) that the letter concerned licensing of the vessel only and did not in any way concern the allocation of quota, reiterating what was stated earlier, as recorded at (b) above, which was in bold print in the original.

12 That letter drew a clear distinction between the function of the Licensing Authority in issuing a sea-fishing boat licence and the function of the Minister in allocating quota.

13 5 1.4 The intention to extend the registered length of the vessel was implemented in due course and a certificate of survey in respect of the vessel was issued by the Marine Survey Office on 18 ^th November, 2009. Thereafter, on 3 ^rd December, 2009, the Licensing Authority issued a sea-fishing boat licence in respect of the vessel for the period commencing on 3 ^rd December, 2009 and ending on 31 ^st December, 2009 and, as had been signposted in the letter of 18 ^th May, 2009, it was a condition of the licence that fishing for mackerel and herring was precluded. On 15 ^th December, 2009 a sea-fishing boat licence for the period 1 ^st January, 2010 to 30 ^th September, 2011 issued, and, as also signposted in the letter of 18 ^th May, 2009, there was no mackerel and herring preclusion conditioned into the licence. Accordingly, the position as of 1 ^st January, 2010, was that the MFV "Atlantic Quest" was licensed as a vessel with a registered length of over 65 feet with an active pelagic history. Counsel for the plaintiff laid particular emphasis on the fact that the vessel was licensed with a registered length of over 65 feet before the Minister made any decision on foot of the review of eligibility for mackerel and herring fishing, which he had embarked on in the year 2009.

14 6 1.5 Before outlining what was represented by the Minister to the owners of vessels in the polyvalent fleet in relation the review he was embarking on, it is convenient to outline how mackerel fishing was managed from 2001 onwards, which counsel for the plaintiff relied on as manifesting a course of conduct, although counsel for the defendants pointed out that the course of conduct on the part of the Minister contended for was not part of the plaintiff's case as pleaded. As I outlined in my judgment in Meade v. The Minister for Agriculture, Fisheries and Food [2010] IEHC 105, which case arose out of similar circumstances to the circumstances of this case, the State's mackerel quota is allocated between Refrigerated Sea Water (RSW) vessels and polyvalent vessels,...