Murphy's Irish Seafood Ltd v Minister for Agriculture Food and the Marine
|Ms. Justice Baker
|01 June 2017
| IEHC 353
|[2016 No. 102 JR]
|01 June 2017
 IEHC 353
THE HIGH COURT
[2016 No. 102 JR]
Agriculture – Licensing – Fisheries & Wildlife – Termination of license – Reasoned decision – S. 19A(4) of the Fisheries (Amendment) Act 1997 – Sea-Fisheries and Maritime Jurisdiction Act 2006
Facts: The applicant sought an order of certiorari for quashing the decision of the respondent for revoking the applicant's aquaculture license. The applicant contended that the impugned decision was ultra vires as it was made without notice and in breach of the prescribed procedures.
Ms. Justice Baker granted an order of certiorari and hence, quashed the respondent's decision. The Court held that the relevant letter sent by the respondent to inform its decision to the applicant was in contravention of s. 68 of the Fisheries (Amendment) Act 1997 as it did not set out the reasons for making the decision. The Court held that the respondent was not required to identify precise statutory basis under which the decision was taken but the nature of matter under consideration and grounds for making such a decision must be supplied.
The applicant is a limited liability company incorporated within the State whose principal activity is the operation of fish farms and fish hatcheries. This application for judicial review relates to the purported termination of the aquaculture licence held by the applicant in relation to the cultivation of salmon at two sites, both located at Gearhies, Bantry Bay, Co. Cork, one site an adult salmon site and the other a smolt site.
The applicant took an assignment of a licence granted to Cuan Baoi Seafarms Limited and the assignment was approved by the respondent with effect from 9th July, 2009. That licence expired on 22nd April, 2011. The applicant applied under the statutory scheme to renew the licence, and by virtue of s. 19A(4) of the Fisheries (Amendment) Act 1997 ('the Act of 1997'), inserted by s. 101(c) of the Sea-Fisheries and Maritime Jurisdiction Act 2006, an operator is entitled to continue the aquaculture process or operations pending the determination of an application to renew. Section 13(1)(a) of the Act of 1997 provides that the Minister shall endeavour to determine an application for a licence within four months from the date on which all requirements have been complied with.
To date, the application for renewal has not been determined.
In order to lawfully operate the aquaculture enterprise, the applicant has the benefit of a foreshore licence under the provisions of the Foreshore Act 1933. That licence is subject to strict conditions concerning, inter alia the placement of cages and the maintenance and upkeep of relevant equipment in a condition of repair 'to the satisfaction of the Minister', and so that its condition would not cause a hazard to navigation, the adjacent lands or the public interest.
The matters giving rise to the present application arose following a catastrophic storm of hurricane force on 1st February, 2014, as a result of which most of the fish stock amounting in total to 235,000 fish, and almost all of the aquaculture equipment on the site was destroyed. Since that time, the damaged cages and equipment have been removed and one cage remaining has been upgraded. There are at present no fish on site.
The damage caused by the storm was such that the applicant was de facto in breach of the conditions of its licence.
After the storm, on 3rd July, 2014 the applicant reached an agreement to facilitate the ongoing operation of the aquaculture process. The agreement provided for submission, on or before 31st July, 2014, of a maintenance and recording programme in accordance with a Norwegian standard, furnishing of a report confirming the adequacy of the design of mooring ropes, collar and ground chain connections and/or confirming the adequacy of the design of net to collar conditions. The agreement also required upgrading works on polysteel ropes and mooring anchors to be completed and verified by 29th August, 2014, and 1st October, 2014 respectively.
The agreement also confirmed a broad provision by which the Minister 'emphasised' that he required confirmation:
'that the entire farm comprising sites T5/122 and T5/122A has been designed with skill, care, diligence and professional conduct reasonably to be expected from a designer with the qualifications and experience suitable for the design work involved.'
The confirmation was to be provided in writing by 1st October, 2014.
Following the making of this agreement, correspondence was entered into between the applicant and the respondent and has continued up to the events giving rise to the decision impugned in this application for judicial review. I will consider the relevant correspondence in the course of my judgment.
The applicant seeks an order by way of certiorari quashing the decision contained in a letter dated 21st January, 2016, by which the Minister purported to revoke the licence.
The applicant claims that the decision communicated by that letter is void and ultra vires the Minister and/or is not effective to terminate the licence in that it was not made in accordance with the mandatory statutory provision for the termination of an aquaculture licence, was made without notice and proper procedure, failed to identify the reasons for which the licence was purported to be revoked, and was not done with the requisite 28-day notice provided under statute.
Leave was granted by Noonan J. on 18th February, 2016.
The Minister has power under s. 68 of the Act of 1997 to revoke an aquaculture licence. The broad statutory power is one to revoke without compensation, or amend, a licence if the Minister is satisfied 'that there has been a breach of any condition specified in the licence' or under s. 68(1)(b):
'is satisfied that the aquaculture operation to which the licence relates is not being properly maintained.'
The statutory provisions in s. 68(3) contain mandatory procedures by which a licence may be revoked and I set these out in full:
'The following shall apply in relation to the revocation or amendment of an aquaculture licence:
(a) the Minister shall not revoke or amend the licence unless and until he or she has given by post to the licensee not less than 28 days notice in writing stating that the Minister has under consideration the revocation or amendment, as the case may be, of the licence;
(b) the notice shall also state—
(i) where it states that the Minister has under consideration the amendment of the licence, the specified amendment under consideration and the grounds on which it is so under consideration, or
(ii) where it states that the Minister has under consideration the revocation of the licence, the grounds on which the revocation is under consideration;
(c) the Minister shall consider any representations in relation to a proposed revocation or amendment made to the Minister by the licensee before the expiration of the notice.'
The process of revoking a licence for which provision is made in s. 68(3) requires 28 days notice by post to the licensee stating that the Minister has 'under consideration' the revocation of the licence. The procedure, therefore, envisages a process of two stages, at least: a notification that revocation is in contemplation or under consideration, followed by the actual revocation. The actual revocation is linked to the requirement that the notice state the grounds on which the revocation is under consideration. Thus, the letter must give a 28-day warning and state the reasons why the warning is considered appropriate, and invite submissions.
Section 68(3)(c) requires the Minister to consider any representations or arguments relating to the alleged grounds on which revocation is proposed, and this consideration is be done within the 28-day period.
The Minister therefore is required to give reasons, the person receiving the notice is entitled to engage with those reasons, and the Minister must, as a matter of statute, and not by way of implication, consider those representations before making a final decision that the licence be revoked. It is only when these preconditions are met can actual revocation be effective.
By letter of 21st January, 2016, sent on behalf of the Minister by the Assistant Principal in the department, the applicant was informed that the Minister had approved the withdrawal of the consent to operate under s. 19A(4) of the Act of 1997 for two reasons therein identified:
'(i) The failure of the licence holder to properly maintain the operation in accordance with 68(1)(b) of the Fisheries (amendment) Act 1997.
(ii) The failure of the licence holder to comply with conditions 2 & 4 of the foreshore licence'
The applicant was also directed:
'to remove all structures including anchor points and ancillary equipment from the site within four weeks of the date of the notice and to restore the licensed area to its original condition.'
The applicant argues that the letter is not effective to terminate its licence for a number of reasons as follows:
(a) The statutory power invoked, s. 19A(4) of the Act of 1997, does not enable the Minister to revoke a licence.
(b) The letter is not effective to revoke the licence as no prior notice in accordance with s. 68(3), of the Act of 1997, was sent.
The respondent says that the letter of 12th January, 2015 is a valid letter for the purposes of s. 68, and that the legislation does not expressly mandate that the...
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Killegland Estates Ltd v Meath County Council
...disparate sources. Thus, for example, in her judgment in Murphy's Irish Seafood Ltd. v. Minister for Agriculture, Food and the Marine  IEHC 353 Baker J. quashed the revocation of an aquaculture licence in circumstances where the reasons had not been directly in the manner required by ......