Salmon Watch Ireland CLG v The Aquaculture Licences Appeals Board

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr Justice David Holland
• Judgment Date: 11 December 2024
• Neutral Citation: [2024] IEHC 700
• Docket Number: 2021/823JR 2021/831 JR

In the Matter of Section 73 of the Fisheries (Amendment) Act 1997 (As Amended)

Between

Salmon Watch Ireland CLG

Applicant

and

The Aquaculture Licences Appeals Board

and

The Minister for Agriculture, Food and The Marine, The Minister for Environment, Climate and Communications, Ireland and The Attorney General

Respondents

and

Bradán Fanad Teo Trading as Marine Harvest Ireland

Comhlucht Iascaireachta Fanad Teoranta Trading as Mowi Ireland

Save Bantry Bay, Care of Alec O'Donovan, Breda O'Sullivan, John Brendan O'Keeffe

Denis O'Shea, Kieran O'Shea and Jason O'Shea

Bantry Salmon and Trout Anglers' Association

Chris Harrington, Vincent O'Sullivan, Peter Murphy and Chris Forker

Galway Bay Against Salmon Cages

John Hunt

Friends of the Irish Environment

Inland Fisheries Ireland

Federation of Irish Salmon and Sea Trout Anglers

Notice Parties

Between:

Inland Fisheries Ireland

Applicant

and

Aquaculture Licences Appeals Board the Minister for Agriculture, Food and The Marine

Respondents

and

Bradán Fanad Teoranta Trading as Marine Harvest Ireland, Save Bantry Bay, The Residents of Roosk, Adrigole, John Brendan O'Keeffe, Denis O'Shea, Kieran O'Shea and Jason O'Shea, Bantry Salmon and Trout Anglers' Association, C. Harrington, V. O'Sullivan, P. Murphy, C. Forker, Coomhola Salmon & Trout Anglers' Association, Galway Bay against Salmon Cages, Salmon Watch Ireland, John Hunt, Friends of the Irish Environment, Federation of Irish Salmon and Sea Trout Anglers

Notice Parties

Between:

Peter Sweetman

Federation of Irish Salmon and Sea Trout Anglers

John Brendan O'Keeffe

Applicants

and

Aquaculture Licence Appeals Board Minister for Agriculture Food and The Marine Ireland and The Attorney General

Respondents

and

Bradan Fanad Teoranta T/A Marine Harvest Ireland

Comhlucht Iascaireachta Fanad Teoranta T/A Mowi Ireland

Inland Fisheries Ireland

Notice Parties

[2024] IEHC 700

2021/823JR

2021/828JR

2021/831 JR

THE HIGH COURT

PLANNING & ENVIRONMENT

JUDICIAL REVIEW

COSTS RULING OF Mr Justice David Holland DELIVERED 11 December 2024

Contents

COSTS RULING OF MR JUSTICE DAVID HOLLAND DELIVERED 11 December 2024	5
INTRODUCTION & THE COSTS APPLICATIONS	7
COSTS ORDERS IN SPECIFIC RESPECTS	7
IFI	7
MOWI	8
SWI against the State & Matters consequential thereon	8
Pre-Trial Costs	9
Costs of the Remittal Issue	9
Liberty to Apply	9
TRIAL COSTS — SWI & SWEETMAN	9
Costs Follow the Event & Identification of the Event	11
S.50B PDA 2000 & Practice Thereunder	13
Veolia Orders – Introduction, Public Policy and Merit	23
Avoidably Unclear Legislation	24
Public Policy – Prescience of all Involved	27
Connelly	29
Unitary Trial	30
Parties' Presence At Trial, Overnight Transcript, Multiple Applicants & IFI at the Trial	32
NPE rule — No Foal no Fee/Pro Bono Representation	34
Recent Trends in Judicial Review	34
Types of Trial to Which Veolia may Apply	35
Provisional Views as to Costs – Stare Decisis	35
Decision on Trial Costs of SWI & Sweetman	35
Costs of the Costs Hearing	37
Perfection Of The Costs Order	37

INTRODUCTION & THE COSTS APPLICATIONS

1 After a 15-day trial and by my substantive judgment in these three actions 1 and for the reasons set out at length therein, I decided to quash the Aquaculture Licence issued by ALAB and the Foreshore Licence issued by the Minister to MOWI for a salmon farm at Shot Head in Bantry Bay. More recently, I decided that they would be remitted to ALAB and the Minister for re-decision. 2 This ruling addresses the costs of the proceedings.

2 It is impossible and unnecessary to set out in this ruling a comprehensive summary of my regrettably lengthy substantive judgment. Briefly put, the Aquaculture Licence will be quashed for inadequate:

• • AA Screening of the risk of effects of seal scarers on seals of the Glengarriff Harbour and Woodland SAC.

• • EIA as to the risks of escape of salmon from the salmon farm. This finding relates to

  • ○ necessity of re-consideration by ALAB of bespeaking the DAFM reports on the 2014 farmed salmon escape in Bantry Bay, 3 and

  • ○ comprehensiveness of the EIA as it related to the specification and structural integrity of the salmon cage installation.

• • reasons for the conclusion that the salmon farm will not lead to a breach of WFD 4 limits as to Dissolved Inorganic Nitrogen – specifically, reasons for reliance on RPS's “typical” data 5 in reaching that conclusion.

3 In addition, I will declare that ALAB delayed unreasonably as to AA Screening in a roughly 2-year period from the making of the Appeals 6 in October 2015 to embarking on AA Screening after the Oral Hearing Report of November 2017. For reasons set out at some length, I refused other relief as to delay notwithstanding the imposition by the Fisheries (Amendment) Act 1997 of a duty of expedition on ALAB and the fact that the entire process from MOWI's licensing applications to the issuing of the Foreshore Licence took almost 11

years and my observation that the lapse of time involved tends to bring the licensing scheme into disrepute and must be regretted. I took what I identified as the “ highly counterintuitive” view, was somewhat “surprised by my own conclusion” and yet concluded “not without hesitation, that the time taken by ALAB to decide this matter, while both very considerable and clearly regrettable, cannot be said, on close analysis of the evidence, sequence of events and particular circumstances of the case, to have been unreasonable.” For reasons I will not repeat here I also rejected objective bias arguments, some of which were closely entwined with the allegation of delay

4 Briefly put also, the Foreshore Licence will be quashed as

• • contingent on the quashed Aquaculture Licence, Ministerial regard to which was a statutory requirement of granting the Foreshore Licence.

• • the Minister erred, in breach of s.82 of the 1997 Act, in granting the Foreshore Licence in 2022, in having regard to his Aquaculture Licence decision of 2015 rather than to ALAB's impugned Aquaculture Licence determination of 29 ^th June 2021.

5 However, it is important to note that SWI obtained no relief against the State.

6 I also held that the effect of s.13A(6) of the Foreshore Act 1933 is that no EIA was required in the Foreshore Licence Application in this case and that the relevant EIA requirement arose and arose only in the Aquaculture Licence application and Appeal. However, the Ministerial decision on remittal in the Foreshore Licence application will have regard to ALAB's EIA done in the Aquaculture Licence Appeal.

7 I should note also that, in the interests of good public administration and also as to issues ventilated but not pleaded, I made certain remarks in the substantive judgment as to matters which did not ground relief but which the respective decision-makers might usefully bear in mind in making their remitted decisions.

8 My substantive judgment recorded that the proceedings agitated about 63 grounds of judicial review – though there was considerable overlap and duplication and the number in part turns on the categorisation of sub-grounds. Without comprehensively listing the grounds on which the challenges to the Impugned Decisions failed, they included delay (partial failure), objective bias (including structural bias), failure to decide the Aquaculture Appeal de novo, application of the 2011 EIA Directive without regard to the 2014 amendments thereof and various other alleged deficiencies having regard to EIA and AA law (including as to birds and sea lice and the alleged effect of the latter on wild salmon).

9 After much correspondence as to costs, I directed that each party prepare a written comprehensive submission as to costs to which I would have regard to the exclusion of the inter partes correspondence. I am grateful for their having done so 7 and for the helpful and admirably succinct oral arguments made by all at the costs hearing.

10 Broadly speaking, ALAB accepted that SWI and Sweetman 8 should have their costs. But they argued for an award to each of 50% of the costs of the proceedings against ALAB by way of so-called Veolia orders 9 — describing its proposal as generous. The State agreed with ALAB as to Sweetman but opposed any order against it as to SWI's costs.

11 Neither ALAB nor the State sought to set off their own costs of litigating the issues on which SWI and Sweetman lost against the costs to be awarded to SWI and Sweetman. In my view this was correct. While Veolia orders usually require such set off – for example, see MD 10 — in cases to which s.50B PDA 2000 11 apply it would be inappropriate

• • as s.50B(2A) allows departure from the default rule of no order as to costs only in favour of applicants.

• • unless the circumstances contemplated in s.50B(3) 12 apply – which they do not here.

12 SWI and Sweetman sought all their costs simpliciter and opposed any Veolia orders. If they were to be made, they suggested that any deduction should not exceed 20% — that they should recover at least 80% of their costs.

COSTS ORDERS IN SPECIFIC RESPECTS

13 It is convenient to, as it were, clear away certain aspects of the costs orders to be made which can be decided relatively easily before embarking on the more difficult questions whether, and if so in what terms, Veolia orders should be made.

IFI

14 IFI seeks no costs and there shall be no order for their costs in their proceedings.

15 That leaves costs issues to be decided in the SWI and Sweetman proceedings only.

MOWI

16 Sweetman sought no costs against MOWI. There was some argument by SWI that the relief granted against ALAB and the State was in part brought about by the terms in which MOWI participated in the licensing processes and for costs accordingly on a joint and several basis against all of ALAB, the State and...