Mulcahy v Min Marine

• Jurisdiction: Ireland
• Judge: Keane J.
• Judgment Date: 04 November 1994
• Neutral Citation: 1995 WJSC-HC 1198
• Docket Number: 1994/120 J.R.
• Court: High Court
• Date: 04 November 1994

MULCAHY v. MIN MARINE

JUDICIAL REVIEW

BETWEEN

JOHN MICHAEL MULCAHY

APPLICANT

AND

THE MINISTER FOR THE MARINE

RESPONDENT

AND

COMHLUCHT IASCAIREACHT FANAD TEORANTA

NOTICE PARTY

1995 WJSC-HC 1198

1994/120 J.R.

THE HIGH COURT

Synopsis:

FISHERIES

Licence

Grant - Procedure - Fairness - Minister of State - Statute - Powers - Exercise - Fish culture - Salmon farming - Public rights - Public notice of application unnecessary under early enactment - Public notice required under later enactment - Teleological approach to interpretation of earlier enactment - Foreshore Act, 1933, s. 3 - Fisheries (Consolidation) Act, 1959, s. 15 - Fisheries Act, 1980, s. 54 - (1994/120 JR - Keane J. - 4/11/94)

|Mulcahy v. Minister for the Marine|

LICENCE

Grant

Authority - Enactments - Choice - Minister of State - Application - Determination - Fish culture - Salmon farm - Public interests - Fair procedures - Public notice of application unnecessary under early enactment - Public notice required under later enactment - (1994/120 JR - Keane J. - 4/11/94)

|Mulcahy v. Minister for the Marine|

STATUTORY INTERPRETATION

Plain meaning

Departure - Reasons - Legislature - Intention - Ascertainment - Teleological approach - Public notice of application unnecessary under early enactment - Public notice required under later enactment - (1994/120 JR - Keane J. - 4/11/94)

|Mulcahy v. Minister for the Marine|

MINISTER OF STATE

Powers

Exercise - Licence - Grant - Fair procedures - Fish culture - Salmon farm - Public interests - Public notice of application unnecessary under early enactment - Public notice required under later enactment - (1994/120 JR - Keane J. - 4/11/94)

|Mulcahy v. Minister for the Marine|

NATURAL JUSTICE

Fair procedures

Licence - Application - Determination - Minister of State - Objections - Consideration - Fish culture - Salmon farm - Public interests - Public notice of application unnecessary under early enactment - Public notice required under later enactment - (1994/120 JR - Keane J. - 4/11/94)

|Mulcahy v. Minister for the Marine|

Citations:

FISHERIES ACTS 1959 – 1991

FORESHORE ACT 1933 S3(1)

FORESHORE ACT 1933 S3

FISHERIES (CONSOLIDATION) ACT 1959 S15

FISHERIES ACT 1980 S54

FISHERIES (CONSOLIDATION) ACT 1959 S245

FISHERIES (CONSOLIDATION) ACT 1959 S247

FISHERIES (CONSOLIDATION) ACT 1959 PART XIV

FISHERIES ACT 1980 S1(3)

MADDEN & ORS V MIN MARINE 1993 1 IR 567

EAST DONEGAL CO-OPERATIVE LIVESTOCK MART LTD V AG 1970 IR 317

COURTNEY & ORS V MIN FOR MARINE 1989 ILRM 605

FISHERIES (CONSOLIDATION) ACT 1959

FISHERIES ACT 1980 S54(1)(a)

FISHERIES ACT 1980 S54(2)

FISHERIES ACT 1980 S54(3)

FISHERIES ACT 1980 S54(4)

FISHERIES ACT 1980 S54(5)

FISHERIES ACT 1980 S54(7)

FISHERIES ACT 1980 S54(9)(a)

FISHERIES ACT 1980 S54(10)

FISHERIES ACT 1980 S54(10)(a)

FISHERIES ACT 1980 S54(10)(b)

FISHERIES ACT 1980 S54(15)(a)

FISHERIES ACT 1980 S54(16)

FISHERIES ACT 1980 S54(19)

FORESHORE ACT 1933 S3(9)

Keane J.

1 The Applicant in these proceedings is the owner of a fine house called "Carrablagh" on the shores of Lough Swilly near Portsalon in County Donegal. It is set in its own grounds which extend down to the seashore and commands extensive views over a splendid panorama of sea and land.

2 The Applicant's essential complaint is that the Respondent (whom I shall call "the Minister") has unlawfully granted the Notice Party (whom I shall call "the company") certain statutory licences on foot of which the company has established a salmon farm in the open sea some 400 yards from the seashore adjoining his property. He claims that these installations, consisting of a number of salmon cages moored in the water, seriously affect the amenities of the area, including in particular his property, and interfere with the rights of the public, including himself, to use these waters for boating, swimming, diving, fishing and other lawful activities. He also says that the establishment of the salmon farm is significantly injurious to the eco-system of this part of Lough Swilly and will, in particular, by the spread of disease interfere with the existing fish life in the area.

3 The Minister and the company deny that the granting of the statutory licences was in any way unlawful. They also reject the assertion as to the possible injurious consequences of the establishment of the salmon farm and say that what is proposed is, initially at all events, a small scale and temporary experimental operation.

4 The facts, so far as they are not in dispute, are as follows. The Applicant and his wife bought "Carrablagh" in 1993. The Applicant is a banker in Hong Kong, who was born in South Africa, but is of Irish descent and is an Irish citizen. Having learnt of the proposal to establish the salmon farm, he wrote on the 21st December 1993 to the Minister expressing his concern. He pointed out in that letter that the walled garden at Carrablagh had been established by Henry Chichester Harte, a well known botanist, and that it had been established in that location because of what he described as the "unique micro-climate" on that section of the coastline. It was also Harte, according to the Applicant, who created some spectacular walks on the property with dramatic views of Lough Swilly and the Inishowen Peninsula. He said in that letter that:-

"The establishment of salmon cages would not be detrimental solely to the interests of a single landowner, but to the interests of the Fanad peninsula, Co. Donegal, and ultimately of Ireland itself. The thousands of visitors to the area every year are there to enjoy the amenities of the location in their pristine form. The salmon farms already in place have little aesthetic attraction and are evidently polluting the water as well as seriously disrupting the visual aspect of the areas in which they are located."

5 The Applicant also drew attention in that letter to what he said were a number of maladies known to affect salmon farms.

6 There appears to have been no reply to that letter and on the 16th February, 1994, solicitors acting on his behalf wrote to the Minister stating that their client believed that a formal application had now been made for a licence and that, if such a licence were granted, proceedings would be instituted. On the 18th March, 1994, Mr. David Glynn, a Principal Officer in the Department of the Minister, informed the Applicant's solicitors that no decision had been taken by the Minister but that, in the event of a decision being made to grant licences, the solicitors would be notified of the statutory basis for such a decision. By letter dated 18th March, 1994, Mr. Glynn informed Mr. Anthony Fox, a director of the company, that the relevant licences had been executed by the Minister and were attached to the letter.

7 The first licence was granted by the Minister in purported exercise of the powers conferred on him by the Fisheries Acts, 1959–1991. It is headed "Fish Culture Licence" and will be so referred to in this judgment. It was in the following terms:

"The Minister for the Marine (hereinafter referred to as “the Minister”) in exercise of the powers conferred on him by the Fisheries Acts,1959–1991, hereby authorises (the company) … at the place and in the waters delineated in red on the map annexed hereto (hereinafter referred to as “the fishery”) the exclusive right to:"

(a) perform all operations necessary for the culture of salmon in cages, details of which have been submitted to and approved by the Minister, placed in the area of Lough Swilly, County Donegal, defined in the attached schedule and designated in the agreement dated the 28th day of November 1986 and the map annexed thereto between the licensee and the Minister;

(b) at any time of year to purchase, have in possession or sell salmon and salmon smolts the acquisition of which have been approved by the Minister;

(c) at any time of year to take and have in possession salmon and salmon smolts within the confines of the area referred to at (a) above;

(d) for the management of the fish farm, to have in possession and use nets, traps or other such devices as may be approved by the Minister for the taking of salmon and salmon smolts."

8 Clause 2 of the licence provides that it is to be subject to certain conditions. Condition (c) provides that the stock of salmon in the cages in not to exceed such quantity as might be specified by the Minister from time to time and in any event should not exceed 250,000 salmon. There are also conditions as to the use of chemicals and antibiotics, the keeping of records and the monitoring of the operation by the Minister and the company.

9 Condition (i) provides that the licence is to remain in operation until the 31st December, 1994. Finally, under Clause 3, the Minister is given liberty at any time to revoke or amend the licence if he considers that it is in the public interest so to do and also in certain other contingencies.

10 The second licence was granted by the Minister in purported exercise of the powers conferred on him by the Foreshore Act,1933. It is headed "Foreshore Act1933Licence" and will be referred to in this judgment as the "Foreshore Licence". It was in the following terms:-

"The Minister for the Marine (hereinafter referred to as “the Minister”) in exercise of the powers vested in him by Section 3(1) of the Foreshore Act1933hereby grants (the Company) license to use and occupy that part of the foreshore at Lough Swilly in the County of Donegal defined in the attached schedule and more particularly delineated on the map annexed hereto and thereon coloured red for the purpose of mooring fourteen (14) aqualine cages each having a circumference of 80 metres x 10 metres deep and having a combined capacity of 71,400 cubic metres for the cultivation of 250,000 salmon ....."

11 This licence was also granted subject to certain conditions. Condition 1 provides that it is also to remain in...