Salmon Watch Ireland CLG v Aquaculture Licences Appeals Board
| Jurisdiction | Ireland |
| Judge | Mr Justice David Holland |
| Judgment Date | 16 March 2023 |
| Neutral Citation | [2023] IEHC 129 |
| Court | High Court |
| Docket Number | 2021 823 JR |
In the Matter of Section 73 of the Fisheries (Amendment) Act 1997 (As Amended)
and
and
[2023] IEHC 129
2021 823 JR
HIGH COURT JUDICIAL REVIEW
Judicial review – Aquaculture licence – Cross-examination – Applicant seeking to have quashed a decision by the first respondent to grant an aquaculture licence to the first notice party – Whether the applicant should have leave to cross-examine the expert deponents of the first respondent and the first notice party
Facts: The applicant, Salmon Watch Ireland CLG (Salmon Watch), applied to the High Court seeking to have quashed a decision by the first respondent, the Aquaculture Licences Appeals Board (ALAB), to grant an aquaculture licence under s. 40 of the Fisheries (Amendment) Act 1997 to the first notice party, Comhlucht Iascaireachta Fanad Teoranta trading as Mowi Ireland (Mowi) to build and operate a salmon farm at Shot Head, on the north shore of Bantry Bay, near Adrigole, County Cork. Salmon Watch alleged that ALAB erred in law in its consideration and decision as it related to the issue of the likelihood of eutrophication, by way of excessive nitrogen enrichment, of the waters of Bantry Bay by reason of the operation of the proposed salmon farm and in the context of compliance with Directive 2000/60/EC establishing a framework for Community action in the field of water policy as amended up to and including Commission Directive 2014/101/EU. The issue for decision in Holland J’s judgment was whether Salmon Watch should have leave to cross-examine the expert deponents of ALAB and Mowi on that issue.
Held by Holland J that, accepting that, on any version of the test for irrationality, the bar to certiorari is “extremely high and is almost never met in practice” (Board of Management of St. Audeon’s National School v An Bord Pleanála [2021] IEHC 453, Simons J), and that the bars as to error of fact and reasoning are also high, it would be wrong to prejudge those issues against Salmon Watch as a basis for holding that no issue of fact required decision and that no dispute of fact subsisted. Holland J made the same observation as to the differences of opinion between Mr Murphy on the one hand and Dr Bass and Dr O’Toole on the other hand. Accordingly, Holland J held that Salmon Watch were entitled to seek to lay the evidential basis for a possible finding in their favour on those issues and they had sought to do so in the evidence of Mr Murphy. Holland J found that Salmon Watch sought to have the court accept Mr Murphy’s view of how RPS erred in their reasoning and in their inclusion of “typical” scenarios in a proffered worst case scenario and his view that such a course was irrational in either or both of the Keegan (The State (Keegan) v Stardust Compensation Tribunal [1986] I.R. 642) and O’Keefe (O'Keeffe v An Bord Pleanála [1993] 1 I.R. 39) senses; or, at very least, they asserted that Mr Murphy had sufficiently raised those issues. Given that the onus of proof was on Salmon Watch and given that Mr Murphy’s view was disputed by Dr O’Toole and Dr Bass, Holland J held that the only way in which Salmon Watch could hope to have that dispute resolved in their favour and so to succeed on those issues was to cross-examine Dr O’Toole and Dr Bass such that Mr Murphy’s view would, as a matter of fairness, have been put to them.
Holland J granted leave to Salmon Watch to issue a notice for cross-examination to Dr O’Toole and Dr Bass for cross-examination on the following issues: (1) whether it was correct to use “Typical” Dissolved Inorganic Nitrogen (DIN) levels - (i) in a worst-case scenario, (ii) modelled as generated by the salmon farm in computing whether a breach of the 170 μgN/l DIN Environmental Quality Standard (EQS) will occur, and (iii) specifically those modelled as generated by the salmon farm and chosen by RPS as Typical, in computing whether a breach of the 170 μgN/l DIN EQS will occur; and (2) whether data which informed the “Maximum Plume Envelope” should have been used instead of the “Typical” DIN levels. Holland J provisionally considered that Salmon Watch had succeeded on the motion and should have its costs.
Application granted.
Judgment of Mr Justice David Holland delivered 16 March 2023
| INTRODUCTION | 2 |
| CROSS-EXAMINATION OF DEPONENTS IN JUDICIAL REVIEW – THE LAW | 3 |
| THE PLEADINGS | 6 |
| THE WATER FRAMEWORK DIRECTIVE & ITS DOMESTIC IMPLEMENTATION | 8 |
| The WFD | 8 |
| The Surface Waters Regulations | 12 |
| Mixing Zone | 13 |
| RPS WATER QUALITY REPORT 2015, SUPPLEMENTAL EIS 2018, ALAB'S TECHNICAL ADVISOR'S REPORT 2020 & ALAB's determination 2021 | 14 |
| RPS Water Quality Report 2015 | 14 |
| Supplementary EIS 2018 | 18 |
| ALAB'S Technical Advisor's Final Report 2020 | 19 |
| ALAB's Determination 2021 | 20 |
| THE AFFIDAVITS & THE CROSS-EXAMINATION SOUGHT | 20 |
| Murphy – 10/10/22 – for Salmon Watch | 20 |
| Bass – 19/1/23 – for MOWI | 21 |
| O'Toole – 23/1/23 – for ALAB | 23 |
| IRRATIONALITY, ERROR OF FACT, REASONS AND ERROR OF REASONING | 24 |
| CONCLUSION | 26 |
The Applicant (“Salmon Watch”) seeks to have quashed a decision by the first respondent (ALAB) to grant an aquaculture licence under S.40 of the Fisheries (Amendment) Act 1997 (the “Impugned Decision” and “the 1997 Act”) to the first Notice Party (“MOWI”) to build and operate a salmon farm at Shot Head, on the north shore of Bantry Bay, near Adrigole, County Cork.
The licensing process was lengthy. MOWI applied for the licence in June 2011. The Minister for the Marine granted it in September 2015. 14 appeals ensued — one by Salmon Watch and the others by the second to seventeenth Notice Parties. ALAB did not determine the appeal in MOWI's favour until June 2021 and the Licence issued in January 2022. This case is for joint trial with two similar cases for 3 weeks from 18 April 2023.
While many grounds of judicial review are in issue, this judgment concerns only Salmon Watch's allegation that ALAB erred in law in its consideration and decision as it related to the issue of the likelihood of eutrophication, by way of excessive nitrogen enrichment, of the waters of Bantry Bay by reason of the operation of the proposed salmon farm and in the context of compliance with the Water Framework Directive 1 (“WFD”). Nitrogen is a “nutrient” for purposes of the WFD. In the case of salmon farms, it derives from the feed used to grow salmon. The issue for decision in this judgment is whether Salmon Watch should have leave to cross-examine the expert deponents of ALAB and MOWI on this issue.
It is important to state that this interlocutory judgment, as to technical issues and expert opinions, is emphatically an attempt to describe and elucidate issues and disputes and should not be read in any degree as attempting to resolve them in any degree in favour of either party. Insofar as it necessarily comments on the cases and evidence of both sides, my comments should be viewed in that light and not as a concluded view on any matter. Nor should they be taken as evincing a willingness to enter at trial into a review of the merits of the impugned decision other than as to irrationality and mistake of fact (to the limited extent such a mistake is justiciable). Nonetheless, it must be observed that this is a case in which irrationality and error of fact are pleaded. This judgment is also the product of necessarily brief interlocutory argument on a complex regulatory regime under the WFD. It should not be read as making definitive findings as to the proper interpretation of that regime and its proper application to facts. My views in those regards are necessarily both diffident and provisional pending fuller argument at trial. Nonetheless, at least some description of that regime is necessary to the decision at hand.
The law in this area is not much in dispute. The underlying general principle is that where a conflict of evidence on affidavit requires that the evidence of one witness be preferred to that of another, it is unfair to prefer the evidence of the one to the evidence of the other without giving the other an opportunity, under cross-examination, to respond to the evidence of the one and to explain any matters which might suggest that his/hers should be preferred. Where the evidence of both is on affidavit, preferring one to another is not merely unfair: it is especially unreliable as the court is deprived of an appraisal of the witnesses in person giving evidence viva voce and being tested in cross-examination. As a result, it is considered that conflicts of evidence as between affidavits can usually be resolved only by cross-examination. Clarke C.J. in RAS Medical 2 considered that:
“It is not permissible to invite a court to reject sworn testimony either on the basis that there is sworn testimony to the contrary or that the testimony might be said to be either lacking in credibility or unreliable (on the basis of, for example, a documentary record) without giving the witness concerned an opportunity, under cross-examination, to explain, if that be possible, any matters which might...
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