John Casey v 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

JurisdictionIreland
JudgeMs. Justice Baker
Judgment Date16 July 2021
Neutral Citation[2021] IESC 42
CourtSupreme Court
Docket NumberS:AP:IE:2020:000081
Between/
John Casey
Applicant/Respondent
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
Respondents/Appellants

and

Bioatlantis Aquamarine Limited
Notice Party

[2021] IESC 42

Clarke C.J.

O'Donnell J.

MacMenamin J.

Dunne J.

Baker J.

S:AP:IE:2020:000081

High Court 2018 No. 186 JR

THE SUPREME COURT

Judicial review – Jurisdiction – Monitoring programme – Appellants appealing from the order of the High Court declining jurisdiction to determine the application for judicial review for the reasons set out in the trial judge’s written judgment – Whether the proceedings were properly constituted

Facts: The respondent, Mr Casey, sought judicial review to quash the decision of the Minister for Housing, Planning and Local Government on 30 November 2017 to approve a baseline study and monitoring programme, one of the conditions imposed by the foreshore licence granted to the notice party, BioAtlantis Aquamarine Ltd, on 21 March 2014 for the mechanical harvesting of kelp from Bantry Bay, County Cork pursuant to s. 3 of the Foreshore Act 1933, as amended. The appellants, 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 (the State parties), appealed to the Supreme Court from the order of the High Court (Murphy J) made on 7 July 2020, declining jurisdiction to determine the application for judicial review for the reasons set out in her written judgment delivered on 20 May 2020 ([2020] IEHC 227). The cross-appeal of Mr Casey concerned the decision of Murphy J that his application for judicial review was wrongly constituted as an application under O. 84 of the Rules of the Superior Courts (RSC) rather than one pursuant to s. 21B of the 1933 Act.

Held by Baker J that there was no “live controversy” between the parties that the licence itself was invalid on account of a failure to publish notice of its making. For that reason, in Baker J’s view the trial judge was not entitled to raise the issue regarding the requirement for publication and to then decide the application on that ground; that error led her to decline jurisdiction on the ground that the licence had not yet issued. Baker J held that the fact that she invited formal submissions on the point she had raised did not cure the error. Baker J held that the consequence was that the judicial review was to be returned to the High Court for further consideration, as the point actually raised concerning the approval of the monitoring plan and baseline study was not decided. In Baker J’s view, the statutory provisions did not create a new or stand-alone statutory scheme but rather limited the form of challenge to judicial review. Accordingly, Baker J held that the proceedings were not wrongly constituted. Baker J concluded that the trial judge was in error in concluding as she did that the absence of publication meant that the foreshore licence had not been validly granted, but in the light of the fact that the publication obligation arises to protect public participation and effective judicial remedies, the purpose of s. 21A is to notify interested persons of the making of a licence and to inform them of the right to make a challenge and by what means. Baker J held that the licensing process occurs under the statutory provisions, primarily that contained in s. 3 which had been amended from time to time, and the process was completed by the taking of those statutory steps by the relevant Minister, and the legislation does not support a conclusion that the absence of publication is a failure which vitiates the grant of the licence.

Baker J held that the proceedings were properly constituted, the failure to publish did not arise on the facts or pleadings and the judicial review was to be remitted to the High Court for further hearing, and case management.

Judicial review remitted to High Court.

Judgment of Ms. Justice Baker delivered on the 16 th day of July, 2021

1

. This appeal concerns provisions of the Foreshore Act 1933, as amended (“the Act of 1933”), the public notice and publication requirements of the Act, and the procedures to be employed in a challenge to the grant thereunder of a lease or licence. It also concerns the difficult question of the consequence of the making by a court of a decision in regard to a matter not pleaded and raised by a judge of his or her own motion.

2

. It is the appeal of 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 (where appropriate, collectively “the State parties”) of the order of Murphy J. made on 7 July 2020, declining jurisdiction to determine the application for judicial review for the reasons set out in her written judgment delivered on 20 May 2020 ( [2020] IEHC 227).

3

. The cross-appeal of John Casey (“Mr Casey”) concerns the decision of Murphy J. that his application for judicial review was wrongly constituted as an application under O. 84 of the Rules of the Superior Courts (“RSC”) rather than one pursuant to s. 21B of the Act of 1933.

Background: the proceedings
4

. Mr Casey sought judicial review to quash the decision of the Minister for Housing, Planning and Local Government on 30 November 2017 to approve a baseline study and monitoring programme, one of the conditions imposed by the foreshore licence (the “licence”) granted to the notice party, BioAtlantis Aquamarine Limited (“BioAtlantis”), on 21 March 2014 for the mechanical harvesting of kelp from Bantry Bay, County Cork pursuant to s. 3 of the Act of 1933.

5

. The licensed area is some 753 hectares within Bantry Bay which shares a boundary with the Beara Peninsula and with the Sheep's Head SAC, although the site itself is not a site protected by EU law. The grant of the licence was made inter alia for the purposes of enabling an assessment of the environmental effects of kelp harvesting with a view to informing seaweed harvesting policy in the State into the future. The parties do not argue that the grant of the licence required an EIA. While Bantry Bay is not a protected site under the Habitats Directive, Mr Casey argues that a proper Appropriate Assessment or AA screening was required before approval was granted to the baseline study and monitoring programme. The State parties say that the intended activity was subthreshold, not likely to have a significant effect on the environment and not likely to affect any Natura 2000 site, and that an EIA, AA or screening was not necessary. This judgment does not concern the correctness of these assertions. No EIA was conducted before the grant of the licence or the approval of the monitoring plan and baseline study

6

. The licence was agreed to be granted to BioAtlantis on 6 January 2011, but was not executed until 21 March 2014, and is subject to the special conditions in the second schedule, including the one relevant to the judicial review, that the licensee should submit a detailed monitoring plan for approval by the Department prior to the commencement of the harvesting activity. The term of the licence was ten years from 1 January 2014 and an annual rent became payable from the date of execution. Certain further requirements were to be met before BioAtlantis could commence the permitted works, including the submission of an acceptable baseline study and monitoring programme. The decision approving that plan and survey is the subject of this application for judicial review.

7

. On 7 December 2010 the principal officer of the Department of the Environment, Heritage and Local Government recommended that the licence application be approved, this being done inter alia in reliance on a report on 1 December 2010 from the Marine Licence Vetting Committee. Thereafter, the Minister for Environment, Heritage and Local Government (the appropriate Minister at that time) approved the licence application, as is signified by his signature on the application.

8

. It was some three years later that the licence was finally executed, although for present purposes nothing turns on the delay. Thereafter, the monitoring programme and baseline study was submitted to the Department for approval and this approval was given on 30 November 2017 by the Minister for State with delegated power from the first named respondent under the Housing, Planning, Community and Local Government (Delegation of Ministerial Functions) (No. 2) Order 2017, SI No. 352 of 2017.

9

. The monitoring plan was significant for future government policy and it was central to the decision made in 2011 for the grant of the licence by the Minister, although the State parties say that it was not the sole basis on which the licence was made as other factors were also at play, including that there were no objections from members of the public, that the application was for a trial licence, and that valuable scientific information would be gathered and considered in the process.

10

. It is important to observe at the outset that the applicant did not, and does not in these proceedings, challenge the grant of the licence, perhaps on account of the fact that the application would have been out of time. His challenge is to the approval of the baseline study and monitoring plan by the Minister for State on 30 November 2017, and the State parties argue that the challenge is in effect a collateral challenge to the licence itself.

11

. Mr Casey argues that information about the grant of the licence or the conditions attached thereto was not properly disseminated in the locality and that he became aware of it only in the summer of 2017. He says he now knows that an advertisement was placed on 12 December 2009 in the local...

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