Teahan and Others v Minister for Communications

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Hedigan,,Ms. Justice Laffoy
Judgment Date18 August 2009
Neutral Citation[2008] IEHC 194,[2009] IEHC 399
Date18 August 2009

[2008] IEHC 194

THE HIGH COURT

[No. 434SP/2008]
Teahan & Ors v Min for Communications
IN THE MATTER OF THE SOUTH WESTERN FISHERIES REGION NO. 7
OR KERRY DISTRICT CONSERVATION OF SALMON AND SEA TROUT
BYE-LAW NO. 839, 2008.
AND IN THE MATTER OF SECTION 9 (AS AMENDED BY SECTION 3 OF
THE FISHERIES (AMENDMENT) ACT, 1962 ) OF THE FISHERIES
(CONSOLIDATION) ACT, 1959 AND THE EUROPEAN COMMUNITIES
(NATURAL HABITATS) REGULATIONS, 1997

BETWEEN

DENIS TEAHAN, PATRICK TEAHAN, JOHN PATRICK TEAHAN, MICHAEL SCANNELL, JOHN STEPHEN O'CONNOR, WILLIAM CASEY, JOHN O'CONNOR, TEDDY TEAHAN, MONTY O'NEILL, PATRICK O'SULLIVAN AND GERARD O'REILLY
APPELLANTS

AND

THE MINISTER FOR COMMUNICATIONS, ENERGY AND NATURAL RESOURCES
RESPONDENT
THE SOUTH WESTERN REGIONAL FISHERIES BOARD
NOTICE PARTY

FISHERIES (CONSOLIDATION) ACT 1959 S11

FISHERIES (CONSOLIDATION) ACT 1959 S67

WILD SALMON & SEA TROUT TAGGING SCHEME REGS 2007 SI 849/2007 SCHED II

WILD SALMON & SEA TROUT TAGGING SCHEME REGS 2007 SI 849/2007 ART 9

CONTROL OF FISHING FOR SALMON ORDER 2008 SI 98/2008 ART 5

CONTROL OF FISHING FOR SALMON ORDER 2008 SI 98/2008 SCHED I

FISHERIES (CONSOLIDATION) ACT 1959 S9

FISHERIES (AMDT) ACT 1962 S3

FISHERIES (AMDT) ACT 1962 S33

FISHERIES (CONSOLIDATION) ACT 1959 S11(1)(d)

FISHERIES (CONSOLIDATION) ACT 1959 S11(2)

FISHERIES (CONSOLIDATION) ACT 1959 S67(14)

INTERNATIONAL FISHING VESSELS LTD v MIN FOR MARINE (NO 2) 1991 2 IR 93

MURPHY v MIN FOR MARINE 1997 2 ILRM 523

GALWAY-MAYO INSTITUTE OF TECHNOLOGY v EMPLOYMENT APPEALS TRIBUNAL UNREP CHARLETON 20.6.2007 2007 IEHC 210

TIERNAN v NORTH WESTERN REGIONAL FISHERIES BOARD 1997 2 IR 104 1998/32/12719

GUIRY v MIN FOR MARINE UNREP LAFFOY 24.7.1997 1998/20/7736

DUNNE v MIN FOR FISHERIES 1984 IR 230

MAXWELL & COLEMAN & HUGHES v MIN FOR MARINE UNREP MCCRACKEN 13.12.2000 2000/12/4633

WADE ADMINISTRATIVE LAW 5ED 1982 34

FISHERIES (CONSOLIDATION) ACT 1959 S9(1)

STATUTE

Interpretation

Construction of section - Whether words used clear and unambiguous - Whether intention of Oireachtas clear - Scope of appeal - Fisheries - Making of bye-law - Whether open to appellants to contend that bye-law made in breach of fair procedures - Whether challenge to making of bye-law limited to merits of contents of bye-law - Fair procedures - Whether bye-law made in breach of fair procedures of those affected by it - Whether bye-law validly made - Dunne v Minister for Fisheries [1984] IR 230 distinguished - South Western Fisheries (No. 7) Kerry District Conservation of Salmon and Sea Trout Bye-law 2008 (No 839) - Fisheries (Consolidation) Act 1959 (No 14), s 11 - Bye-law annulled (2008/434SP - Laffoy J - 18/6/2008) [2008] IEHC 194

Teahan v Minster for Communications

Facts: section 11(1) of the Fisheries (Consolidation) Act 1959 provides, inter alia, that “any person aggrieved by [any instrument to which this section applies] may…appeal against such instrument to the High Court and…the High Court may…confirm or annul such instrument…”. The appellants had been granted licences by the South Western Regional Fisheries Board. Shortly afterwards, the respondent passed the South Western Fisheries No. 7 Kerry District Conservation of Salmon and Sea Trout Bye-Law 2008. The appellants sought to annul that bye-law under section 11 of the Fisheries (Consolidation) Act 1959 on the grounds that it had been made without due regard to fair procedures in that the right to fish under a licence constituted part of the means of earning a livelihood and that, in making the Bye-law of 2008, the respondent had effectively nullified the licences which had been granted to the appellants without giving them advance notice of the intention to make the Bye-law and allowing them an opportunity to make representations in respect of it. The respondent contended that the statutory appeal procedure under section 11 only allowed a challenge to the Bye-law of 2008 on its merits and precluded the appellants from challenging the making of the bye-law on the grounds that it had been made in breach of the appellants’ fair procedures and that their challenge should have been brought by way of judicial review.

Held by Ms Justice Laffoy in making an order annulling the Bye-Law of 2008 that, whether it was open to challenge the validity of a bye-law on the ground that it had been made in breach of a person’s right to fair procedures on an appeal under section 11 of the Act of 1959, without entering upon the merits of decision, was a question of the construction of section 11. It was clear on a plain reading of section 11 that it was the intention of the Oireachtas to establish a special procedure whereby all complaints of whatever nature, including a complaint that it infringed an appellant’s right to fair procedures, in relation to instruments to which the section applied could be adjudicated on by the High Court with a view to either confirming or annulling the instrument. There was nothing in the language of section 11 which suggested that, if the aggrieved person’s complaint was that the respondent infringed his legal rights, but he did not want to incur the additional cost of adducing evidence to challenge the decision on the merits, he could not avail of the statutory appeal procedure but had to enter upon a judicial review.

Whether or not the appellants had obtained the benefit of valid licences or not, their right to fair procedures had been violated by reason of the respondent failing to give advance notice of the intention to make the Bye-law and an opportunity to make representations in respect of it.

Reporter: P.C.

1

Ms. Justice Laffoy delivered on the 18th day of June, 2008 .

The Proceedings
2

The appellants, who are draft net fishermen living in the Cromane and Killorglin areas of County Kerry, bring these proceedings by way of statutory appeal under s. 11 of the Fisheries (Consolidation) Act, 1959 (the Act of 1959) seeking to annul the South Western Fisheries No. 7 or Kerry District Conservation of Salmon and Sea Trout Bye-Law No. 839, 2008 (the Bye-law), which was made by the respondent on 13 th May, 2008. The notice party is the regional board, established under the Fisheries Act, 1980, for the fisheries region which, broadly speaking, includes County Kerry. The power to grant fishing licences in accordance with s. 67 of the Act of 1959 is now reposed in the notice party. Each of the appellants is the recipient of a salmon fishing licence for a draft net issued by the notice party on 8 th May, 2008.

3

The evidence adduced by the appellants in support of their application is contained in affidavits sworn by the ninth named appellant (Mr. O'Neill).

4

Before considering the factual background to the granting of the appellants' licences and the making of the Bye-law, I propose considering other relevant secondary legislation put in place by the respondent governing salmon fishing during the 2008 season and in the future.

Relevant secondary legislation
5

On 20 th December, 2007, the respondent made the Wild Salmon and Sea Trout Tagging Scheme Regulations, 2007 ( S.I. No. 849 of 2007) (the 2007 Regulations). As the explanatory note states concisely, those Regulations provide for, inter alia, the quotas of fish that can be harvested by commercial fishing engines, which include draft nets, from the rivers identified in Schedule 2. Regulation 9 provides for the establishment in relation to each fishery district of a fishery district committee, to consist of the elected members of the regional board representing commercial fishermen, salmon rod anglers and rated occupiers in the district and a nominee of An Bord Iascaigh Mhara. Regulation 10 provides that the CEO of a regional board, on the recommendation of the district committee concerned, shall decide the allocation of the total allowable catch applicable to a river of the fisheries region between the holders of commercial fishing licences and rod and line fishing licences, as he or she sees fit. A maximum bar is placed on the "total allowable catch" by reference to Schedule 2. Regulation 11 empowers the CEO, on the recommendation of the fishery district committee concerned, to decide the quota applicable to the holder of a commercial fishing licence in respect of a river of a fishery district referred to in Schedule 2. As appears in Schedule 2, the Kerry fishery district comprises a number of rivers. Those in issue in these proceedings, which flow into the Castlemaine Harbour, and the total allowable catch in relation to each are the following:-

6

(1) Caragh River, with a total allowable catch of 1, 121 wild salmon or sea trout;

7

(2) Laune River, with a total allowable catch of 7, 265 wild salmon or sea trout;

8

(3) Maine River, which has zero total allowable catch;

9

(4) Behy River, which has zero total allowable catch; and

10

(5) Emlagh River, which has zero total allowable catch.

11

A point which puzzles me is that the respondent, in a letter dated 9 th May, 2008, informed the notice party that the prosecution of a fishery in the common estuary of Castlemaine Harbour is not provided for in Schedule 2. This assertion is repeated in the replying affidavit sworn by Frank Sheridan, a Principal Officer in the respondent's department, on 29 th May, 2008, in these proceedings. Mr. Sheridan averred that, in accordance with the scientific advice available, no provision whatsoever was made for an allowable catch on the common estuary at Castlemaine for the 2008 season. I will return to this aspect of the matter later.

12

On 9 th April, 2008, the respondent made the Control of Fishing for Salmon Order, 2008 ( S.I. No. 98 of 2008) (the 2008 Regulations) and notice of its making was published in Iris Oifigiúil on 11 th April, 2008. As the explanatory note indicates, that order authorises the issue of commercial fishing...

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