Casey v BioAtlantis Aquamarine Ltd
| Jurisdiction | Ireland |
| Judge | Mr. Justice Noonan |
| Judgment Date | 11 October 2022 |
| Neutral Citation | [2022] IECA 222 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record Number: 2019/339 |
In the Matter of an Application Pursuant to Section 160 of the Planning and Development Act, 2000 (As Amended)
and
[2022] IECA 222
Noonan J.
Faherty J.
Collins J.
Record Number: 2019/339
High Court Record Number: 2018/257MCA
THE COURT OF APPPEAL
Planning injunction – Unauthorised development – Planning permission – Appellant seeking a planning injunction restraining the respondent from carrying out what was alleged to be unauthorised development – Whether the harvesting of wild kelp by mechanised means on the foreshore is an activity that requires planning permission to render it lawful
Facts: The appellant, Mr Casey, on the 23rd July, 2018, issued an originating notice of motion seeking a planning injunction under s. 160(1) of the Planning and Development Act 2000 (the PDA) restraining the respondent, BioAtlantis Aquamarine Ltd (BioAtlantis), from carrying out what was alleged to be unauthorised development including the mechanical harvesting of seaweed at Bantry Bay. He also sought a declaration that this activity constituted development which was unauthorised and which was not exempted development. In his affidavit grounding the application, the essential contention made by Mr Casey was that harvesting kelp in the manner proposed by BioAtlantis amounted to “development” within the meaning of the PDA and thus required planning permission. The High Court dismissed the application. The appellant appealed to the Court of Appeal. The issues raised in the Notice of Appeal were essentially the same as those arising in the High Court. The parties were in agreement that the issues to be decided were: (a) whether the mechanical harvesting of wild kelp proposed by BioAtlantis is “development” within the meaning of the PDA, either because the activity constitutes “works” or a “material change of use” or both; (b) if the answer to the foregoing is in the affirmative, whether Mr Casey has established that such development would “adjoin” the functional area of Cork County Council as provided in s. 225 of the PDA.
Held by Noonan J that kelp harvesting does not constitute “works” within the meaning of the PDA. He held that the licenced activity does not constitute a material change in the use of any structures or other land. He held that that Mr Casey failed to establish that any development to be carried out by BioAtlantis would be within, or adjoining, the functional area of Cork County Council.
Noonan J held that the trial judge correctly determined that the application be dismissed and he accordingly dismissed the appeal. With regard to costs, his provisional view was that as BioAtlantis had been entirely successful in the appeal, it was entitled to its costs against Mr Casey.
Appeal dismissed.
JUDGMENT of Mr. Justice Noonan delivered on the 11th day of October, 2022
The essential question arising in this appeal is whether the harvesting of wild kelp, a type of seaweed, by mechanised means on the foreshore, is an activity that requires planning permission to render it lawful.
The appellant (Mr. Casey) is an environmental activist who was formerly a solicitor practising in the sphere of environmental law. The respondent (BioAtlantis) was incorporated in 2004. The evidence of a director of BioAtlantis, John T. O'Sullivan, is that it was incorporated with a focus on identifying natural marine ingredients which could alleviate certain problems in modern agriculture, including the overuse of antibiotics in the pig and poultry industry. Since 2005, BioAtlantis, in partnership with University College Dublin, has conducted research into identifying compounds in seaweed and kelp that could enhance the gut microbiome, prime the immune system and reduce pathogenic infection in pigs. This research has resulted in two patented products and the publication of over 50 peer reviewed scientific papers. One of the patented products is known as LactoShield®, which contains constituents derived from kelp. This in turn requires a supply of kelp as a raw material.
BioAtlantis proposed to mechanically harvest kelp in an area of approximately 1,868 acres over five locations located in Bantry Bay which constitutes approximately 0.3% of the area of the bay. In its application for a foreshore licence to the notice party (the Minister), BioAtlantis indicated that the kelp is to be harvested from low water to a depth of 20 metres and up to 5,000 tons of kelp per boat per year is envisaged. The licenced areas are not within the area of any European site, the nearest of which are land based.
The foreshore licence application was submitted to the Minister on the 22nd June, 2009, approved in January 2011 and the licence itself was executed in March 2014. The grant of the licence was preceded, inter alia, by a public consultation in which Mr. Casey did not participate. The proposed activity is described in the application for a licence in the following terms:
“BioAtlantis proposes to harvest Laminaria hyperborean in the area applied for using a purposely designed vessel equipped with a winch, suction pump and cutter. In an initial study BioAtlantis found Laminaria hyperborean to be the main species in the areas applied for. Laminaria digitata was not present in any of these areas. This is the preferred species and was present in Kenmare Bay. The object is to harvest the material without disrupting the foreshore i.e. without making physical contact with the foreshore surface. This will be achieved by applying moderate suction which will draw the weed into the cutter where it will be cut and pumped into the boat. There, it will be stored in bags for transportation to the factory by road. The weed will be cut at a minimum 25 centimetres from its holdfast. This will be controlled by using sonar and sounder automation to operate the winch so the cutter is maintained at this set point distance ( sic) the foreshore.”
The application for a licence includes at section 3 a heading entitled “Record of documents enclosed with this application” and at subparagraph (iii) thereof, the following appears:
“Decision of Planning Authority or An Bord Pleanála Under Planning Acts (required) Developments on the foreshore require planning permission in addition to a foreshore lease/licence/permission. All foreshore leases, licences and permission are without prejudice to the powers of the local planning authority. Applicants should, therefore, consult initially with the local planning authority regarding their proposal.”
Each item in section 3 of the application, including the foregoing subparagraph (iii) has a tick box located beside it and this was left blank at subparagraph (iii). In the course of the hearing before the High Court, the parties prepared a Statement of Agreed Facts of the 23rd May, 2019 which includes the following relevant passages:
“6. The Department's consultees recommended the grant of the licence subject to conditions, one of which was ‘that the project will be subject to an agreed monitoring programme/environmental study drawn up by the Marine Institute and Inland Fisheries Ireland. This monitoring programme can be used as a foundation for developing a policy framework for the exploitation of seaweed on a sustainable basis’.
7. In considering the foreshore licence application, Dominic Gallagher, Senior Port Officer, Castletownbere stated in an email dated 5 September 2009:
‘I don't see the venture having an impact on either commercial or leisure activity’
8. As part of the foreshore licence application, the Minister consulted with eight State bodies, namely the National Parks and Wildlife Service, the Marine Institute, the Marine Survey Office, the Sea Fisheries Protection Authority, the Eastern Regional Fisheries Board, the Central Fisheries Board, the Underwater Archaeology Unit of the Department of the Environment, and the Marine Licence Vetting Committee. Those State bodies informed the decision ultimately made by the Minister. The Marine Licencing Vetting Committee concluded:
‘The MLVC concludes that, subject to compliance with the specific conditions set out below, the proposed harvesting of the seaweed is not likely to have a significant negative impact on the marine environment, would not adversely impact on the marine Natura 2000 sites and therefore recommends that a permit be issued.’
9. In considering the application for the foreshore licence, the Assistant Principal noted in a short report dated 7 December 2010 that there were no objections to the development from the Department's consultees subject to the inclusion of a number of conditions. The Foreshore Unit within the Department also stated in the ‘foreshore licence application case summary’:
‘Planning permission is not applicable in this case as it is an application to harvest seaweed and has no land based aspect.’
10. In completing the legislation compliance checklist, the Department concluded that the activity to be licenced was not of a class requiring the submission of an Environmental Impact Statement (EIS) and also stated:
‘The development is not likely to have significant effects on the environment.’
11. Under the heading Appropriate Assessment, the Department's legislative checklist stated:
‘The proposed development is not likely to have a significant effect on European sites.’
12. The MLVC recommended the attachment of seven conditions to the licence. Condition 7 of these recommended conditions provided as follows:
‘In the event that unacceptable impact on the environment is observed, the Minister reserves the right to modify/restrict harvest practices and schedule as necessary.’
13. The application was approved by the Minister for Environment, Heritage and Local Government in January 2011.
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