Cromane Seafoods Ltd & O'Sullivan McCarthy Mussel Development Ltd v Min for Agriculture and Others

• Jurisdiction: Ireland
• Judge: Hanna J.
• Judgment Date: 31 May 2013
• Neutral Citation: [2013] IEHC 338
• Court: High Court
• Date: 31 May 2013

[2013] IEHC 338

THE HIGH COURT

[No.1374 P/2009]

Cromane Seafoods Ltd & O'Sullivan McCarthy Mussel Development Ltd v Min for Agriculture & Ors

BETWEEN:

CROMANE SEAFOODS LIMITED

AND

O'SULLIVAN MCCARTHY MUSSEL DEVELOPMENT LIMITED

PLAINTIFFS

AND

THE MINISTER FOR AGRICULTURE, FISHERIES AND FOOD

AND

IRELAND

AND

THE ATTORNEY GENERAL

DEFENDANTS

CMSN v IRELAND 2007 ECR I-10947

EEC DIR 92/43 ART 6(3)

EEC DIR 92/43 ART 6(4)

EUROPEAN COMMUNITIES (CONTROL ON MUSSEL SEED FISHING) (AMDT) REGS 2008 SI 395/2008 REG 4

WEBB v IRELAND & AG 1988 IR 353 1988 ILRM 565

DUGGAN & ORS v AN TAOISEACH & ORS 1989 ILRM 710 1989/1/110

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

LETT & CO LTD v WEXFORD BOROUGH COUNCIL & ORS 2012 2 IR 198

WILEY v REVENUE CMRS 1989 IR 350

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

DUFF & ORS v MIN FOR AGRICULTURE & ORS (NO 2) 1997 2 IR 22

HOGAN & ORS ADMINISTRATIVE LAW IN IRELAND 4ED 2010 PARA 18.149

HOGAN & ORS ADMINISTRATIVE LAW IN IRELAND 4ED 2010 PARA 18.150

HOGAN & ORS ADMINISTRATIVE LAW IN IRELAND 4ED 2010 PARA 18.151

Environmental Protection - Special Protection Area - Right to earn a livelihood - Fishing - Mussel seed fishery - Negligence - Breach of duty - Legitimate expectation - Damages

Facts: The plaintiffs were two companies who had worked in tandem in the mussel fishing business since 1979. The first plaintiff purchased seafoods wholesale from the second plaintiffs who engaged in mussel cultivation from Castlemaine Harbour - a Special Protection Area since 1979, as amended in 2000. The result of this was that the harbour would be closed for a period each year to allow for stock conservation and for obtaining authorisation to cultivate mussel seed. In 2007, a European Court of Justice judgment concerning environmental risk led to the decision to not open the mussel fishing activities at the normal time in 2008, and again in 2010. This decision meant that the plaintiffs were unable to obtain mussel stock for these periods.

The plaintiffs claimed that they suffered loss and had their business jeopardised by the changes in 2008 and 2010. They argued that they had a legitimate expectation to engage their mussel fishing affairs. They had conducted their business in Castlemaine Harbour since 1979 and obtained a 10 year license to continue their operations in 2003. They pointed to a 1993 newspaper notice and a Government notice representing that designation as a Special Protection Area would not affect fishing operations at the harbour. They further contended that the defendants were negligent and in breach of their duty in how they controlled the fishery and in failing to conduct scientific tests to ascertain any environmental risk involved. The decision to close the fishery was submitted as being disproportionate and irrational.

The defendants argued that the proceedings were limited only to the second plaintiff who actually engaged in the fishing operations, and did not extend to the first plaintiff who despite common shareholding was a separate legal entity. They also stated that they were not negligent or in breach of duty, as their decisions regarding the fishery were dictated by statutory instruments, and that they were obliged following the 2007 European Court of Justice decision to restrict mussel fishing prior to completion of appropriate assessment. Moreover, they stated that the plaintiffs did not make out the case for legitimate expectation just because they had fished in that harbour.

The court held that a representation by way of the newspaper and Government notice was made to the plaintiffs; the plaintiffs had good reason to comfortably rely upon the expectations; and that the plaintiffs had legitimate expectations that fishing would continue based not only on the 1993 notices, but also in the dealings between it and the defendants. Moreover, it was held that the defendants had acted negligibly in failing to conduct proper investigations (which would have found the fishing had no adverse effect on the environment); in inconsistencies in activities permitted; and in allowing the plaintiffs to spend significant amounts on upgrading their vessel. Finally, the first plaintiff was found to be sufficiently close to the situation and therefore eligible for damages.

Therefore, the court made an award of damages to the first plaintiff in the amount of €125,000 and an award of damages to the second plaintiff in the amount of €275,000.

1 JUDGMENT of Hanna J. delivered on the 31st day of May, 2013

2 These proceedings concern a claim by the plaintiffs arising from a decision by the defendants ("the Minister") to prohibit the fishing for mussel seed in certain areas, in particular Castlemaine Harbour (Cromane) in County Kerry, which involved the closing of the harbour in 2008, followed by a maintaining of this closure such that the season for mussel seed fishing had passed by the time they were let back into the harbour. A similar situation arose in 2010 where the plaintiffs again claim to have suffered losses in their traditional fishing business.

3 The plenary summons seeks the following reliefs:

4 (a) a declaration that the defendants, their servants or agents are estopped from reneging on representations and/or assurances made by them to the effect that the Directives would not impinge on the plaintiffs' business and/or restrict the current usage pattern for the said area for shellfish culture;

5 (b) a declaration that the purported restrictions imposed by the regulations were arbitrary, unreasonable and irrational by virtue of being in breach of the plaintiffs' legitimate expectations of not being impeded in the operation of their business provided they lawfully operated within existing licensing conditions;

6 (c) a declaration that the first named defendant acted ultra vires in purporting to make regulations which prevented the plaintiffs from operating their business from 9th June, 2008 to the 5th October, 2008;

7 (d) a declaration that the purported restrictions imposed by the Regulations which closed the mussel industry in Castlemaine Harbour from 9 ^th June, 2008 to the 5th October, 2008 were in breach of the plaintiffs' constitutional rights to earn a livelihood;

8 (e) a declaration that the purported restrictions imposed by the regulations which closed the mussel seed industry in Castlemaine Harbour from 9 ^th June to 5 ^th October were based on a mistake of law on the part of the first named defendant in seeking to comply with the State's obligations under the Directives, when there was no scientific evidence that there was any risk posed by aquaculture to the designation of Castlemaine Harbour in accordance with the Directives and/or any available scientific evidence demonstrated there was no such a risk;

9 (f) A declaration that the purported restrictions imposed by the regulations which closed the mussel industry in Castlemaine Harbour from 9th June to 5th October were based on a misinterpretation of the precautionary principal under European Community law;

10 (g) Damages for loss to the plaintiffs' business in consequence of the breach by the defendants of the legitimate expectations created by them;

11 (h) Damages for loss of the plaintiffs' business in consequence of the first named defendant's mistake at law or arising from the Minister's ultra vires decision which was made in the knowledge that it was being made without scientific or ecological evidence and support for doing so;

12 (i) Damages for negligence and negligent misstatement;

13 (j) Further and other relief; and

14 (k) Costs.

Background

15 Castlemaine Harbour has been a Special Protection Area (SPA) since 1979 in accordance with Council Directive 79/409/EEC ("the Birds Directive") as amended and in 2000 a wider area of protection, a Candidate Special Area of Conservation (cSAC), was opened under Council Directive 92/43/EEC ("the Habitats Directive") as amended; together they are known as a "Natura 2000 site". As a consequence the harbour is closed annually for a period of time to allow for stock conservation and authorisation of the Minister is required to obtain mussel seed. Traditionally, the second named plaintiff obtains mussel seed from an area within the bay and from there it places the seed in the nursery ground for further development for a period of six weeks. The mussel seed collection activities usually last for a period of twenty days during the summer months. I understand them almost invariably to be non-consecutive days determined by tidal and weather conditions. After that the seed is taken from the nursery ground and then put into other areas (one shared area under the Fishery Order Licence and two other areas within the SPA where the second named plaintiff has exclusive rights under Aquaculture Fishing Licenses) where it is left for a period of two years for later harvesting.

16 The plaintiffs have been involved in the mussel fishing business since 1979. The first named plaintiff, Cromane Seafoods Limited, purchases shellfish and fish wholesale from the second named plaintiff, O'Sullivan McCarthy Mussel Development Limited. The second named plaintiff engages in the wholesale sale of molluscs and is licensed to engage in bottom cultivation of mussels at two sites in Castlemaine Harbour (301A and 301B) in accordance with a ten-year aquaculture licence granted under the Fisheries (Amendment) Act, 1997 and a Molluscan Shellfish (Conservation of Stock) permit which allows them to move seed to farm the mussels. It has a sea-fishing boat licence (number 141805994) issued under the Fisheries Acts 1959 to 2006 for its boat Western Adventure II. The second named plaintiff is involved in fishing and transplanting mussel seed to the aquaculture site...