Tiernan v North Western Regional Fisheries Board

• Jurisdiction: Ireland
• Judgment Date: 12 May 1997
• Neutral Citation: [1997] IEHC 82
• Date: 12 May 1997
• Docket Number: [1996 No. 245 J.R.],245-1996
• Court: High Court

[1997] IEHC 82

THE HIGH COURT

245-1996

TIERNAN v. NORTH WESTERN REGIONAL FISHERIES BOARD

(JUDICIAL REVIEW)

BETWEEN

PATRICK JAMES TIERNAN

APPLICANT

AND

THE NORTH WESTERN REGIONAL FISHERIES BOARD

RESPONDENT

Citations:

FISHERIES (CONSOLIDATION) ACT 1959 S158

FISHERIES (CONSOLIDATION) ACT 1959 S159(1)

O'CONNELL V SOUTH WESTERN REGIONAL FISHERIES BOARD & AG UNREP CARROLL 15.4.1986 1986/4/1302

INTERNATIONAL FISHING VESSELS LTD V MIN FOR MARINE 1989 IR 149

FLANAGAN V UCD 1989 ILRM 469

Synopsis

[1997] 2 IR 104

1 12th day of May, 1997

2 The facts relating to this application are not in dispute and are as follows:-

3 The applicant is a shop keeper who carries on the business of trading in fishing equipment and tackle at Main Street. Foxford, County Mayo where he also resides. In or about 1996 he decided to extend his business to include dealing in salmon. Such trading activity is subject to statutory supervision by fisheries board of conservators pursuant to power granted to them under the Fisheries (Consolidation) Act, 1959as amended (the Act). A requirement for carrying on business as a dealer in salmon is the obtaining of a licence in that regard from the relevant fisheries board, in this case the respondent. However, the requirements of the Act further than the acquisition of a licence. It is also provided that a certificate of fitness to bold such a licence must be obtained by the Applicant from the Distrist - Judge for the time being assigned to the area where the applicant carries on or proposes to carry on business. The scheme laid down by the Act, insofar as it is pertinent to this application, is as follows:-

"Section 158. Where a person who carries on or carry on the business of selling salmon and trout or exporting for sale salmon and trout particular Court District applies to a District Justice for the time being assigned to that Court District for a certificate under this section, such District Justice, if satisfied that such person is a fit and proper person to hold a..... licence, shall grant him a certificate in writing to that effect."

(a) a person to whom a certificate of fitness has been granted applies, within twenty-eight days such grant, to the board of conservators for a fishery district for the issue to him of a licence authorising him to carry on the business of selling salmon and trout at any specified place or places within fishery district, and

(b) there is sent with the application -

(i) such certificate of fitness, and

(ii) the sum of one pound [now £60] being the excise duty imposed..... on a salmon dealers licence, ..... such board of conservators may, through its clerk, issue to such person such licence.....

4 (c) Every application..... to a board of conservators shall -

5 (a) be made in writing to the clerk of such board,

6 (b) be in the prescribed from and contain the prescribed particulars....."

7 On 16th April. 1996 the applicant applied to the District Court sitting at Foxford on notice to the respondent and to the Garda Siochana for a certificate of fitness hold a salmon dealer's licence pursuant to Section 158 of the application and the requisite certificate was duly issued by the District Judge and was thereupon furnished to the board. The applicant then sought and obtained from the respondent a printed application in the prescribed form which he duly submitted with the required fee. The form is sparse in its terms and indicates only the nature of the licence sought; the name and address of the applicant; his signature; the date and the amount of fee being paid. There is nothing on the form to indicate that applicant should or may furnish details or make any submission as to the business of dealing in salmon which he seeking to commence. In short, the form is not designed to give the board any information about the application other than the type of licence sought and the address of the premises where the proposed business will be carried on. The applicant did not provide respondent with any further details regarding the application, nor did he make or furnish any submission relating to it. He appears to have contented himself with completing the form which had been sent to him and returning it to the respondent with the required fee, his solicitor having already furnished the certificate of fitness from the District Court. The respondent board considered the application at its meeting on 7th May, 1996 from Mr.Vincent Roche, chief of the board.It is in the following terms:-

" The Board considered your application for a salmon dealers' licence at its meeting on 7th May, 1996.

However, having regard to your principal business and the fact that there are already several licensed dealers in the Foxford area, the Board decided not to grant you a licence.

I am returning herewith your cheque for £60.00 submitted with your application."

8 The applicant took up the matter of the refusal with his solicitors and they wrote to Mr. Roche on 24th May seeking an amount of specific information relating to the refusal and, in particular, the grounds relied upon by the board for making its decision. There was no response to that letter and Messrs. O'Connor wrote again to Mr. Roche on 17th June threatening proceedings in the High Court if they did not receive "an adequate and full response to our letter stating, inter alia, the reasons why the board saw fit not to issue a licence to our client". Mr.Roche responded by letter dated 25th June, 1996 to Messrs. O'Connor and Son as follows:-

" I refer to your letters of 24th May, 1996 and 17th June, 1996 on behalf of your client, Mr. Patrick J. Tiernan, Main Street, Foxford, County Mayo, in relation to the refusal replying to your initial letter."

9 Mr. Tiernan's application was considered by the board at its meeting on 7th May, 1996 and, having fully considered the application, the Board decided not to grant a licence to Mr. Tiernan. The Board is entitled, under the provisions of Section 159(1) of the Fisheries (Consolidation) Act, 1959to either grant refuse a licence to an applicant. The fact that an applicant already holds a Certificate of Fitness from the Court does not, of course does not, of course, mean that he automatically obtains a salmon dealer's licence. In considering applications, you can be assured that the Board takes into account all relevant matters. These would include the location of the applicant's premises, the nature of the business in which he is already involved and the number of premises, other licensed outlets for salmon in the locality. These matters were reported on verbally to the Board at its meeting on 7th May which was held here in Ardnaree House. I enclose herewith a list of members of the Board, all of whom can be contacted through this address."

10 The foregoing explanation was not accepted by the applicant and on 29th, July, 1996 he applied to this court to this for liberty to proceed by way of judicial review challenging the decision of the respondent not to grant him a salmon dealer's licence The application was heard by Kelly J. who gave the applicant liberty to proceed for an order of certiorari in respect of the refusal of the respondent to grant the licence in question and an order of mandamus directing it to consider in accordance with law the applicant's application for such a licence under Section 159 of the Act together with a declaration that purported decision of the respondent dated 17th May, 1996 was ultra vires and of no force or...