Casey v The Minister for Housing, Planning and Local Government

• Jurisdiction: Ireland
• Judge: Ms. Justice Murphy
• Judgment Date: 20 May 2020
• Neutral Citation: [2020] IEHC 227
• Docket Number: Record No: 2018/186 JR
• Court: High Court
• Date: 20 May 2020

BETWEEN

JOHN CASEY

APPLICANT

AND

THE MINISTER FOR HOUSING, PLANNING AND LOCAL GOVERNMENT, THE MINISTER FOR STATE AT THE DEPARTMENT OF HOUSING, PLANNING AND LOCAL GOVERNMENT, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENT

BIOATLANTIS AQUAMARINE LIMITED

NOTICE PARTIES

[2020] IEHC 227

Murphy

Record No: 2018/186 JR

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Jurisdiction – Foreshore Act 1933 – Notice party seeking to set aside ex tempore judgment – Whether the notice party had a right to be heard on that application

Facts: The applicant, Mr Casey, was, on the 12th March 2018, granted leave to apply by way of judicial review, pursuant to O. 84 of the Rules of the Superior Courts for ten reliefs in respect of a decision of the respondents, the Minister for Housing, Planning and Local Government, the Minister for State at the Department of Housing, Planning and Local Government, Ireland and the Attorney General, made the 30th November 2017. The impugned decision was to approve a baseline study and monitoring programme, stipulated as a condition of a foreshore licence for the mechanical harvesting of kelp in Bantry Bay, granted to the notice party, Bioatlantis Aquamarine Ltd, on the 21st March 2014. There was an earlier ‘decision in principle’ to grant a license to the notice party, made by the relevant minister on the 6th January 2011. The applicant was granted leave to seek eight declarations and an order of certiorari of the impugned decision of 30th November 2017. The High Court gave an ex tempore judgment on the 29th July 2019. The Court determined that the foreshore licensing process had not yet concluded by reason of the failure of the Minister to comply with his statutory obligations under ss. 21A and 21B of the Foreshore Act 1933, to publish notice of his determination in Iris Oifigiúil and in one or more local papers circulating in the area and by reason of his failure to notify the public of the right to challenge the validity of his decision by means of judicial review. The Court concluded that the licence granted on the 21st March 2014 while prima facie valid, was not legally effective and would remain ineffective until the Minister complied with his statutory obligations. The Court held that, in those circumstances, the limited review of the decision to approve the baseline study and monitoring programme of the 30th November 2017, sought by the applicant, was misconceived and any determination made by a court in respect of it would be nugatory. Furthermore, the Court held that the application had not been brought pursuant to the provisions of section 21B. The notice party applied to the Court requesting it to revisit, and to set aside, its judgment delivered ex tempore on 29 July 2019. The Court was persuaded that on the facts of this case, the notice party had a right to be heard on the issue of jurisdiction.

Held by Murphy J that the Court would set aside its judgment delivered ex tempore on the 29th July 2019 on the grounds that the notice party had a right to be heard on that application. This written judgment was the Court’s determination on the issue of jurisdiction. The Court refused the applicant’s request to proceed to judgment on his application.

Murphy J substituted there for this written judgment. The basic conclusion was that the licensing application of the notice party was incomplete by reason of the failure of the Minister to comply with ss. 21A and 21B of the Foreshore Act.

Ex tempore judgment set aside.

JUDGMENT of Ms. Justice Murphy delivered on the 20th day of May, 2020

Introduction

1 This is an application by the notice party Bioatlantis requesting the Court to revisit, and to set aside, its judgment in this judicial review, delivered ex tempore on 29 July 2019. The Notice Party's application arises in the following circumstances. John Casey, the applicant, was, on the 12th March 2018 granted leave to apply by way of judicial review, pursuant to 0.84 of the Rules of the Superior Courts for ten reliefs in respect of a decision of the respondents made the 30th November 2017. The impugned decision was to approve a baseline study and monitoring programme, stipulated as a condition of a foreshore licence for the mechanical harvesting of kelp in Bantry Bay, granted to the notice party on the 21st March 2014. There was an earlier ‘decision in principle’ to grant a license to the notice party, made by the relevant minister on the 6th January 2011. The applicant was granted leave to seek eight declarations and an order of certiorari of the impugned decision of 30th November 2017.

2 The respondents and the notice party filed statements of opposition and grounding affidavits in respect of the application. The notice party elected to withdraw from the substantive hearing, essentially on the grounds that it had nothing to add to the points of opposition filed by the respondents. The application came on for hearing before this court on the 25th June 2019. By that date, various reliefs sought by the applicant relating to Council Directive 2011/92/EU (the ‘consolidated environmental impact directive’) and Council Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment (the Sea Directive) had fallen away. So too, had challenges to the vires of the appropriate minister and the status of the licence (aquaculture or foreshore) fallen away. What remained was a challenge to the decision of the 30th November 2017, based on an alleged failure to comply with the Habitats Directive together with some ancillary/alternative reliefs, based on an alleged failure to give reasons for the decision or alternatively, a failure to transpose correctly, the Habitats Directive and the Birds Directive into Irish law. In his statement of grounds, the applicant specifically acknowledged that he had made no challenge to either the ‘decision in principle’ to grant a licence made in January 2011, nor to the actual grant of a foreshore license to mechanically harvest kelp, sealed on the 21st March 2014.

3 In the course of the hearing, the respondents accepted that both the decision of January 2011 and the foreshore license granted on the 21st March 2014, were amenable to judicial review within three months of the respective decisions being made. Their counsel further submitted that, if a party first became aware of a decision, outside of the three month period allowed for in 0.84, an extension of time within which to bring an application, could be sought. This court, as a declared neophyte in the area of environmental and planning law, enquired about the licensing process under the Foreshore Act and in particular whether there was a requirement for the Minister to publish the fact of the licence in Iris Oifigiúil. Counsel for the respondents did not answer the direct question but indicated that the evidence shows, that the fact of the license first appeared on the Department's website in March 2016, and that the evidence indicated that the applicant had had actual knowledge of the licence since February 2017, at the latest.

4 In his reply, Counsel for the applicant, in answer to the court's query as to the licensing process, brought the court for the first time, in a hearing which had lasted 5 days, to the Foreshore Act 1933 (as amended) and in particular to section 13A and sections 21A, and 21B of the act, as it was at the time of the ‘decision in principle’ made on 6th January 2011. Section 13A(5)(b) provides that a ‘relevant application’ includes ‘an application to the appropriate Minister under section 3 of this Act.’ Section 3 is the section which empowers the Minister to grant a foreshore license. Section 21A, at the relevant time provided:

“When the Minister determines a relevant application, that Minister shall

(a) publish a notice in Iris Oifigiúil and in one or more newspapers circulating in the area where the foreshore subject to the determination is situate, of the determination and specifying the means by which any material received by the Minister upon which the Minister determined the application may be inspected free of charge or purchased at a price to be determined by the Minister (which shall not be more than the reasonable cost of making the copy or copies concerned)

(b) ensure that the following information is available for inspection or for purchase by members of the public on the terms specified in the notice published in accordance with paragraph(a):

(i) the determination;

(ii) any conditions attached to such determination;

(iii) the main reasons and considerations upon which the determination is based;

(iv) details of the public participation process;

(v) the main measures, if the Minister considers it necessary, to avoid, reduce or offset adverse effects on the environment arising from the relevant application;

(vi) arrangements to comply with paragraph (c) of this section;

(c) inform a Member State to which section 19C of this Act applies in respect of the relevant application of the determination and matters specified in paragraph (a) of this section, and

(d) arrange to make the environmental impact statement relating to the relevant application and other material upon which the determination was based available for inspection for such period as the Minister considers appropriate.

21B.(a) A notice published under section 21A shall state that a person may question the validity of any such determination by the Minister by way of an application for judicial review, under Order 84 of the Rules of the Superior Courts (S.I. No. 15 of 1986)

(b) The notice shall identify where practical information on the review mechanism may be found.” (emphasis added)

5 It was common case that no notice in accordance with sections 21A or 21B had been published in Iris Oifigiúil or in papers circulating in the local area. Interestingly, counsel for the applicant stated that he...