Deerland Construction v Aquaculture Licences Appeals Board

• Jurisdiction: Ireland
• Judge: Mr. Justice Kelly
• Judgment Date: 09 September 2008
• Neutral Citation: [2008] IEHC 289
• Court: High Court
• Docket Number: [2007 No. 1303 JR & 144
• Date: 09 September 2008

Deerland Construction Ltd v Aquaculture Licences Appeals Board & Min for Communications

JUDICIAL REVIEW

COMMERCIAL

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 LIMITED

APPLICANT

AND

THE AQUACULTURE LICENCES APPEALS BOARD

FIRST RESPONDENT

AND

THE MINISTER FOR COMMUNCIATIONS, THE MARINE AND NATURAL RESOURCES

SECOND RESPONDENT

AND

LETT & COMPANY LIMITED

NOTICE PARTY

[2008] IEHC 289

[No. 1303 J.R/2007]

[No. 144 COM 2007]

THE HIGH COURT

FISHERIES

Aquaculture licence

Aquaculture Licence Appeals Board - Duty to give reasons - Whether Aquaculture Licences Appeals Board obliged to state reasons and considerations for decision - Whether report of technical advisor capable of giving adequate reasons - Whether lack of adequate reasons cured by affidavit evidence - Whether lack of adequate reasons invalidates decision - R v Westminster City Council [1996] 2 All ER 302 approved; Nash v Chelsea College Of Art and Design [2001] EWHC (Admin) 538, (Unrep, English HC, Stanley Burnton J, 11/7/2001) followed; Ní Eilí v EPA (Unrep, SC, 30/7/1999) and Mulholland v An Bord Pleanála (No 2) [2005] IEHC 306, [2006] 1 IR 453 not followed; The State (Abenglen Properties) v Corporation of Dublin [1984] IR 381 applied - Fisheries (Amendment) Act 1997 (No 14), s 40 - Fisheries (Amendment) Act 2001 (No 40), s 10 - Relief granted (2007/1303JR & 144COM - Kelly J - 9/9/2008) [2008] IEHC 289

Deerland Construction Ltd v Aquaculture Licence Appeals Board

Facts: The applicant sought to quash a decision of the first respondent of 17th July 2007 to grant an aquaculture licence to the notice party. The applicant also sought certiorari against the Minister in respect of a decision to refuse to consider an application for a foreshore lease. The applicant alleged that the first respondent had refused to give reasons for its decision and the applicant also complained that the procedures followed were unfair. The status of the letter from the Minister and its propriety also arose.

Held by Kelly J. that a just result was achieved by quashing the decision of the first respondent and refusing to remit it. The determination of the first respondent would be quashed in respect of Bed 30A and no order would be made against the Minister in the expectation that he would deal with any applications concerning Bed30A.

Reporter: E.F.

FISHERIES (AMDT) ACT 1997 S73

G v DPP & KIRBY 1994 1 IR 374

FISHERIES (AMDT) ACT 1997 S7

FISHERIES (AMDT) ACT 1997 S3

FISHERIES (AMDT) ACT 1997 S8(3)

FISHERIES (AMDT) ACT 1997 S12

FISHERIES (AMDT) ACT 1997 S15

FISHERIES (AMDT) ACT 1997 S16

FISHERIES (AMDT) ACT 1997 S20

FISHERIES (AMDT) ACT 1997 PART III

FISHERIES (AMDT) ACT 1997 S40(1)

FISHERIES (AMDT) ACT 1997 S40(4)

FISHERIES (AMDT) ACT 1997 S40(5)

FISHERIES (AMDT) ACT 1997 S40(6)

FISHERIES (AMDT) ACT 1997 S40(8)

FISHERIES (AMDT) ACT 2001 S10

FISHERIES (AMDT) ACT 1997 S41(3)

FISHERIES (AMDT) ACT 1997 S44(2)

FISHERIES (AMDT) ACT 1997 S46

FISHERIES (AMDT) ACT 1997 S49(1)

FISHERIES (AMDT) ACT 1997 S50

FISHERIES (AMDT) ACT 1997 S50(4)

FISHERIES (AMDT) ACT 1997 S59

FISHERIES (AMDT) ACT 2001 S13

FISHERIES (AMDT) ACT 1997 PART IV

FISHERIES (AMDT) ACT 1997 S61

FISHERIES & FORESHORE (AMDT) ACT 1998 S4

FORESHORE ACT 1933 S2

O'DONOGHUE v BORD PLEANÁLA 1991 ILRM 750

NÍÉILÍ v ENVIRONMENTAL PROTECTION AGENCY UNREP SUPREME MURPHY 30.7.1999 2000/13/4925

O'KEEFFE v BORD PLEANÁLA 1993 1 IR 39

MULHOLLAND & ANOR v BORD PLEANÁLA & ORS 2006 1 ILRM 287

GREALISH v BORD PLEANÁLA UNREP HIGH O'NEILL 24.10.2006 2006/27/5728

SOUTH BUCKINGHAMSHIRE DISTRICT COUNCIL v PORTER (NO 2) 2004 1 WLR 1953

R v WESTMINSTER CITY COUNCIL 1996 2 ALL ER 302

FAIRYHOUSE CLUB LTD & ORS v BORD PLEANÁLA & MEATH CO COUNCIL UNREP HIGH FINNEGAN 18.7.2001 2001/9/2432

MULHOLLAND & KINSELLA v BORD PLEANALA & ORS (NO 2) 2006 1 IR 453

R (ON THE APPLICATION OF NASH) v CHELSEA COLLEGE OF ART & DESIGN 2001 EWHC ADMIN 538

SIMONS PLANNING & DEVELOPMENT LAW 2ED 2007

ABENGLEN PROPERTIES LTD, STATE v DUBLIN CORPORATION 1984 IR 381

1 JUDGMENT of Mr. Justice Kelly delivered on the 9th day of September, 2008

Introduction

2 The applicant ("Deerland") seeks to quash on certiorari a decision of the first respondent ("ALAB") of the 17 ^th 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 11 ⁰¹September, 2007.

3 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

4 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.

5 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.

6 Deerland lodged an application for planning permission for a hotel and associated car-parking with Wexford Borough Council on the 31 ^stDecember, 2004 (the hotel permission). A final grant of permission issued from that Borough Council on the 16 ^th 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.

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

8 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.

9 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.

10 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 23 ^rdDecember, 2004, such a letter of consent was issued in the context of Deerland's application for the hotel permission. On the 28 ^th November, 2005, the Minister's office issued a letter of consent in the context of the application for the mixed use scheme. On the 21 ^st 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.

11 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 17 ^th July, 2007. This creates a major problem for Deerland given that Lett's licence confers exclusive rights on it.

Aquaculture Licence

12 On the 22 ^nd 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.

13 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 15 ^th 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.

14 Deerland decided to appeal the decision to ALAB and did so on the 21 ^st 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.

15 Apart from a letter of the 20 ^th 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 17 ^th July, 2007.

16 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.

17 In the week prior to the decision of ALAB, Deerland made applications for a foreshore lease to the Minister. Those applications were dated 10 ^th and 11 ^th July, 2007. They were responded to on 11 ^thSeptember, 2007, with the Minister noting that ALAB had "upheld the aquaculture/foreshore licence as issued to Lett & Co for the Wexford harbour area". The...