Irish Coastal Environmental Group Coastwatch v The Sea Fisheries Protection Authority & o.xml
| Jurisdiction | Ireland |
| Judge | Mr. Justice Richard Humphreys |
| Judgment Date | 18 September 2019 |
| Neutral Citation | [2019] IEHC 677 |
| Docket Number | [2019 No. 639 J.R.] |
| Court | High Court |
| Date | 18 September 2019 |
[2019] IEHC 677
THE HIGH COURT
JUDICIAL REVIEW
Richard Humphreys
[2019 No. 639 J.R.]
AND
Leave application – Injunction – Extension of time – Applicant seeking leave and an injunction – Whether the applicant had liberty to prepare a draft amended statement of grounds
Facts: Before the High Court was a leave application alongside an injunction application on notice, with a complex legal and factual background. This application concerned the legality of dredging for razor clams (Ensis siliqua) in Waterford estuary.
Held by Humphreys J that: (i) the proposed notice party, South East Regional Inshore Fisheries Forum, be struck out of the proceedings with no order; (ii) the applicant, Irish Coastal Environment Group Coastwatch CLG, had liberty to prepare a draft amended statement of grounds in the terms set out in the judgment and to file an affidavit regarding the issue of extension of time (subject to hearing counsel he proposed allowing one week for those steps to be taken); (iii) in principle he was minded to grant leave subject to firstly, approving the final form of the amended statement of grounds and secondly, being satisfied as to the extension of time in relation to the one particular relief to which that issue related; (iv) given that, one way or the other, most if not all of the reliefs sought were going to be the subject of a grant of leave, an injunction restraining implementation of the decision of the first respondent, the Sea Fisheries Protection Authority, to open the fishery should be granted pending the final determination of the action, with immediate effect; (v) because of the unusual complexity of the matter, the proceedings would benefit from some case management and he would hear counsel on that; and (vi) in principle he would propose to adjourn the matter for one week to allow time for the draft amended statement of grounds and an affidavit regarding extension of time, although the amended statement of grounds should not be filed unless and until approved by the court, and the hearing in that regard should be on notice to the respondents in case they could assist the court further, particularly in relation to management of subsequent steps.
Humphreys J held that, given that a fairly total re-drafting of the pleadings was required, it could be confusing if the applicant was required to use the usual strike-through and underlining, so subject to any views of the respondents, the applicant could simply present the draft amended statement in the form of a clean copy.
Leave granted; injunction granted.
This application concerns the legality of dredging for razor clams ( Ensis siliqua) in Waterford estuary. What is before the court is a leave application alongside an injunction application on notice, with a complex legal and factual background.
Regulation 3 of the Razor Clam (Conservation of Stocks) Regulations 2015 ( S.I. No. 206 of 2015) provides that: “The master or person in charge of a sea-fishing boat fishing for razor clams within the internal waters or territorial seas shall: (1) not fish for or attempt to fish for razor clams outside of a classified production area; (2) not fish for or attempt to fish for razor clams in more than one class of classified production area on any one day.”
Regulation 2 of the regulations provides inter alia that: ‘“classified production area’ means an area classified by the Authority in accordance with Chapter II, Annex II of Regulation (EC) No 854/2004 of the European Parliament and of the Council of 29 April 2004” and that “‘Authority’ means the Sea-Fisheries Protection Authority.”
The European legislation referred to, regulation EC No 854/2004 of the European Parliament and of the Council of 29 April 2004 laying down specific rules for the organisation of official controls on products of animal origin intended for human consumption, provides in art. 6 that: “Member States shall ensure that the production and placing on the market of live bivalve molluscs, live echinoderms, live tunicates and live marine gastropods undergo official controls as described in Annex II.” Production in this context obviously means harvesting, or fishing.
Annex II paras. A 1 – 3 onwards provide that the competent authorities shall specify the production areas and then classify them on the basis of the “level of faecal contamination” (para. A 2) and the amount of E. coli detected in samples (see para. A 3 onwards).
The “competent authority” for the purposes of the EU regulation is the first-named respondent. This is clear from the European Communities (Hygiene of Fishery Products and Fish Feed) Regulations 2006 ( S.I. No. 335 of 2006). Regulation 3 provides that the Minister is to be the competent authority for the purposes, inter alia, of regulation 854/2004, but reg. 18 transfers that function to the Sea-Fisheries Protection Authority on the establishment day under s. 40 of the Sea-Fisheries and Maritime Jurisdiction Act 2006.
The following is an outline of the facts as alleged by the applicant for the purposes of the leave application. While, very helpfully and at the court's request, some limited input has been made to these facts from the respondents, the following statement of facts should not be taken as necessarily being accepted by them or indeed by the court, as that must await consideration of the respondents' affidavits in due course.
On 21st August, 2009 the Marine Institute produced a document entitled “Interim Assessment (Regulation 31) of the Impact of Clam Fishing on the Conservation Status of Waterford Estuary SAC”. That was in the context of a proposal for fishing for surf clam, primarily by box dredging. Regulation 31 refers to the European Communities (Natural Habitats) Regulations 1997 ( S.I. No. 94 of 1997), implementing the Habitats Directive 92/43/EEC, which required an appropriate assessment for the carrying out of certain works. The 1997 regulations have now been replaced by the European Communities (Birds and Natural Habitats) Regulations 2011 ( S.I. No. 477 of 2011). The applicant contends that it is notable that this interim assessment did indicate that further assessments of impacts on the European site, which is part of the area concerned here, were required; and by analogy the applicant argues that similar points could be made in the present instance in relation to razor clams. The applicant also makes the point that the surf clam dredging considered in the 2009 assessment was apparently not within the special area of conservation (SAC) at Waterford estuary, whereas here part of the dredging operation is within the SAC and the remaining part is adjacent to it.
In April, 2011, what was described as version 1 of “Conservation Objectives - River Barrow and River Nore SAC” was published, and a further version was published on 19th July, 2011.
In July, 2015, the Marine Institute produced a draft art. 6.2 (Habitats Directive) risk assessment entitled “The Effects of Fisheries on Qualifying Interests in Special Areas of Conservation in Irish Coastal Waters, Version 2.0”. I am told that the purpose of that document was to comply with the ongoing obligations under art. 6(2) of the Habitats Directive and the document was not produced in the context of a specific development consent. That document states at para. 13.1.5.1 that “Razor clam beds may occur in River Barrow and Nore, … SA[C]. No surveys to identify the extent of these beds have been undertaken. No fisheries for razor clams occur in any of these sites and these areas are not classified for the production of razor clams.” It also states that razor clam fishing poses a high risk to Zostera (sea grasses) and the sedimentary communities “where the fishery footprint is substantial”. The point made by the applicant in relation to the activity we are dealing with here is that dredging is not just a matter of removing individual shellfish. It is, the applicant submits, a process of disturbing the whole seabed.
The risk assessment did envisage razor clam fishing to a limited extent by saying that “any development of razor clam fishing or cockle fishing in sedimentary communities in SACs in the Reen Pt to Carnsore Pt region should be balanced with the capacity of these communities to recover from impacts caused by the fishery”. However, that appears to be something of a general statement covering a large geographical area. It is not altogether clear from the face of the document whether it is a draft or an adopted document, and if an adopted one, exactly when it was adopted.
On 9th February, 2016 the River Barrow and River Nore SAC was apparently designated. That includes much of Waterford estuary, and the boundary line of the SAC seems to include some but not all of the razor clam distribution in Harrylock Bay.
In 2016 the Marine Institute conducted an “Assessment of the Impacts of Hydraulic Dredging on Sedimentary Habitats in the Irish Sea”, which stated that “Preliminary findings, from multivariate statistical analysis of the seafloor faunal data, indicated significant differences in faunal communities in areas which had received <5hrs of fishing compared to areas which had received >5hrs of fishing in the previous 6 months. The preliminary findings of the study indicate that seafloor faunal communities are affected by fishing for razor clams and that this is related to the intensity of fishing effort these areas have received in previous months. The ecological...
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