Deerland Construction Ltd -v- The Aquaculture Licences Appeals Board & Anor, [2008] IEHC 289 (2008)

Docket Number:2007 1303 JR
Party Name:Deerland Construction Ltd, The Aquaculture Licences Appeals Board & Anor
Judge:Kelly J.
 
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THE HIGH COURT

JUDICIAL REVIEW

COMMERCIAL2007 No. 1303 J.R.

2007 No. 144 COM

IN THE MATTER OF THE FISHERIES (AMENDMENT) ACT 1997, AND IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 73 OF THE FISHERIES (AMENDMENT) ACT 1997

BETWEEN

DEERLAND CONSTRUCTION LIMITEDAPPLICANTAND

THE AQUACULTURE LICENCES APPEALS BOARDAND

THE MINISTER FOR COMMUNCIATIONS, THE MARINE AND NATURAL RESOURCESRESPONDENTSAND

LETT & COMPANY LIMITEDNOTICE PARTYJUDGMENT of Mr. Justice Kelly delivered on the 9th day of September, 2008

Introduction

The applicant ("Deerland") seeks to quash on certiorari a decision of the first respondent ("ALAB") of the 17th of July, 2007, to grant an aquaculture licence to the notice party ("Lett"). Deerland also seeks certiorari against the second respondent ("The Minister") in respect of a decision of his to refuse to consider an application for a foreshore lease. This decision was communicated to Deerland by a letter of the 11th September, 2007.

Certiorari is the principal relief sought against both decisions but certain ancillary declaratory orders are also sought. Originally no fewer than thirty two grounds were relied upon in support of the order sought by Deerland. In the course of pre-trial written submissions and at the hearing these were reduced to eleven in all.

Background

Since late in the nineteenth century members of the Lett family have been mussel fishing in Wexford harbour. In 1963 Lett was incorporated and took over the Lett family's mussel beds in that harbour.

In October, 1996 Lett applied for an aquaculture licence in respect of those mussel beds. A licence was granted in October, 2001 for those beds with the exception of numbers 30A and 30D in respect of which no decision was made.

Deerland lodged an application for planning permission for a hotel and associated car-parking with Wexford Borough Council on the 31st December, 2004 (the hotel permission). A final grant of permission issued from that Borough Council on the 16th November, 2006. The development for which planning permission was obtained extended into part of Wexford harbour and Deerland intended that some land reclamation would require to be undertaken to implement the permission.

Deerland lodged a further application in respect of a mixed use scheme on the 13th March, 2006, and a final grant of permission in respect thereof issued on the 3rd September, 2007, (the mixed use permission).

Prior to lodging the planning applications, meetings took place between representatives of Deerland, the County Manager and the Junior Minister at the Department of Communications, Marine and Natural Resources who was also a local T.D. for the Wexford area.

The two planning applications were submitted in the context of a formally agreed area action plan for the future development of the lands and foreshore which derived from the County Wexford Development Plan and the Wexford Town and Environment Development Plan of 2002.

As part of the various planning applications for development, Deerland sought the written consent for the making of such applications from the foreshore section of the Department of the Marine. On the 23rd December, 2004, such a letter of consent was issued in the context of Deerland's application for the hotel permission. On the 28th November, 2005, the Minister's office issued a letter of consent in the context of the application for the mixed use scheme. On the 21st March, 2007, the Minister's office issued a letter of consent to Deerland in the context of a further application for works to be done at the marina.

An area of the harbour where land will have to be reclaimed so as to implement Deerland's planning permissions is contained within the area for which the aquaculture licence was ultimately granted by ALAB to Lett on the 17th July, 2007. This creates a major problem for Deerland given that Lett's licence confers exclusive rights on it.

Aquaculture Licence

On the 22nd November, 2006, Lett was granted an aquaculture licence by the Minister in respect of beds 30A and 30D. Bed 30D has no relevance to these proceedings.

Deerland says that the first information which it received concerning the decision to grant an aquaculture licence was in December, 2006 when a notice was published to that effect in the Wexford People newspaper. Deerland's Managing Director subsequently discovered that an earlier notice for the purposes of public consultation had been placed in the same paper by the Minister on the 15th August, 2006. This notice had not been seen by any of Deerland's personnel and Mr. McPhillips, its Managing Director, says that he was shocked to discover that an application for a licence had been acceded to.

Deerland decided to appeal the decision to ALAB and did so on the 21st December, 2006. Needless to say the merits of the appeal are not for consideration in this application for judicial review, but it is to be noted that the appeal raised a number of issues. They included the conflict with the pre-existing hotel permission. The appeal also pointed out an overlap of the area of the site in respect of which the aquaculture licence had been granted and that of the mixed use development about which a decision was then pending.

Apart from a letter of the 20th April, 2007, from ALAB indicating that it was extending the four month period allowed to it to make a decision under s. 56 of the Act, nothing more was heard by Deerland until the 17th July, 2007.

On that occasion a letter was sent by ALAB to all parties indicating that a decision had been taken to refuse the appeal and to grant the licence to Lett as if the application had been made to that Board in the first instance.

In the week prior to the decision of ALAB, Deerland made applications for a foreshore lease to the Minister. Those applications were dated 10th and 11th July, 2007. They were responded to on 11th September, 2007, with the Minister noting that ALAB had "upheld the aquaculture/foreshore licence as issued to Lett & Co for the Wexford harbour area". The letter went on "please note that as the area concerned in the aquaculture/foreshore licence overlaps a major part of the above applications, this division will not be in a position to process this application any further". Deerland contends that this determination of the Minister is wrong in law for reasons which I need not consider at present.

Procedure

Judicial review of the decision of ALAB is governed by s. 73 of the Fisheries (Amendment) Act 1997, ("the 1997 Act"). That section precludes a person from questioning a decision of ALAB otherwise than by way of an application for judicial review and requires that such application for leave be on notice to that Board and other interested parties. The court is enjoined from granting relief unless it is satisfied that the applicant has demonstrated substantial grounds for contending that the decision or determination is invalid or ought to be quashed.

The application for judicial review against the Minister falls to be dealt with in the conventional way by means of relief obtained ex parte applying the test prescribed by the Supreme Court in G. v. D.P.P. [1994] 1 I.R. 374.

For convenience sake the applicant put all of the parties on notice and applied for leave during the course of the hearing. I ruled that the applicant had made out a case for the grant of leave to apply for judicial review against ALAB and the Minister, applying the respective tests which are prescribed in order to obtain such relief.

This is my judgment therefore on the substantive application for judicial review on the grounds upon which leave to apply for such was granted.

Issues

Three issues are raised in these proceedings. The first deals with the alleged failure of ALAB to give reasons for its decision of the 17th July, 2007. The second deals with the procedures followed by ALAB. The third deals with the status of the letter from the Minister and its propriety and consequences.

ALAB's Decision

The following is the decision of ALAB:-

"Aquaculture Licences Appeals Board

Fisheries (Amendment) Act 1997, (as amended and substituted)

WHEREAS an appeal having been made to the Aquaculture Licences Appeals Board (hereinafter also referred to as "the Board") pursuant to s. 40 of the Fisheries (Amendment) Act 1997, (as amended and substituted) by a company with the name Deerland Construction Limited (hereinafter referred to as "the appellant") against the decision in the notice of decision dated the 23rd November, 2006, issued by the Minister of State and the Department of Communications, Marine and Natural Resources to grant, subject to conditions an aquaculture licence to Lett & Co Ltd (hereinafter referred to as "the applicant") for bottom cultivation of mussels at two sites in Wexford harbour, County Wexford (Department reference T03/030A3 and T03/30D) (Board reference AP5/1/06).

AND WHEREAS the Board, having regard to the appeal and, inter alia, the provisions of the Fisheries (Amendment) Act 1997, (as amended and substituted) decided to determine the appeal by determining the application for the licence as if the application had been made to the Board in the first instance pursuant to s. 40(4)(b) of the Fisheries (Amendment) Act 1997, (as amended and substituted).

AND WHEREAS the Board in considering the appeal took account of the matters referred to in s. 61 of the Fisheries (Amendment) Act 1997, (as amended and substituted) and having regard to the aforementioned, the appeal file and reports of the Board's technical adviser and being satisfied that it is in the public interest to do so, the Board determined at its meeting on the 17th July, 2007, to grant to Lett & Co Ltd an aquaculture licence for the bottom cultivation of mussels located at the two sites (T03/030A3 and T03/30D) in Wexford harbour, County Wexford in accordance with the terms and conditions in the schedule and map attached to the said licence dated the 17th July, 2007. Mario Minehane

Deputy Chairperson...

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