TL Mussels Ltd v The Aquaculture Licences Appeals Board

• Jurisdiction: Ireland
• Judge: Mr Justice David Holland
• Judgment Date: 04 December 2025
• Neutral Citation: [2025] IEHC 670
• Court: High Court
• Docket Number: Record No. 2025/957 JR

In the Matter of the Fisheries (Amendment) Act 1997

Between

TL Mussels Limited

Applicant

and

The Aquaculture Licences Appeals Board

Respondent

and

The Minister for Agriculture, Food and The Marine, Inland Fisheries Ireland, The Minister for Housing, Local Government and Heritage, Bord Iascaigh Mhara, Birdwatch Ireland, An Taisce and The Marine Institute

Notice Parties

[2025] IEHC 670

Record No. 2025/957 JR

THE HIGH COURT

JUDICIAL REVIEW

PLANNING AND ENVIRONMENT

Judicial review – Aquaculture licences – Stay – Applicant seeking a stay pending trial of the respondent's impugned decisions – Whether the order proper to the minimisation of the risk of injustice was to stay the impugned decisions

Facts: The applicant, TL Mussels Ltd (TLM), applied to the High Court pursuant to s. 73 of the Fisheries (Amendment) Act 1997 and Order 84 Rule 20(8) of the Rules of the Superior Courts for a stay, pending trial of the judicial review proceedings, of the impugned decisions of the respondent, the Aquaculture Licences Appeals Board (ALAB), to refuse to renew expired aquaculture licences formerly held by TLM for bottom cultivation of mussels on various sites on the foreshore in Wexford Harbour. TLM argued that a stay would, or could if Holland J so directed, have the effect that, the impugned decisions being temporarily considered not to have been made, s. 19A(4) of the 1997 Act would resume effect and so authorise TLM’s continuation of mussel cultivation pending trial. ALAB and the Minister for the Marine opposed the grant of a stay. They considered that Holland J lacked jurisdiction to grant a stay and that, if he had jurisdiction, he should in any event refuse a stay on Okunade principles (Okunade v Minister for Justice, Equality and Law Reform [2012] 3 IR 152) and by reference to EU law requirements derived, in particular, from Directive 92/43/EEC (the Habitats Directive) and by reference to the risk allegedly posed by TLM’s mussel farming to European Sites.

Held by Holland J that: (a) TLM had established an arguable case; (b) the strength of TLM’s case was appreciable; (c) the history of the matter since 2016 could not be ignored in ascertaining the balance of justice; (d) there was no evidence of incrementally damaging risk to the integrity of European Sites by reason of mussel cultivation pending trial; (e) damages would be inadequate for any environmental damage caused pending trial; (f) a stay would allow opportunity to assess whether the proper baseline for future Appropriate Assessment (AA) of aquaculture in Wexford Harbour, including if appropriate, AA of the mussel farming at issue in this case, should include or exclude mussel farming; (g) there was an appreciable risk that if the judicial review succeeded, loss and damage to TLM pending trial would have been significant in quantum and that a remedy in damages in respect thereof would be inadequate because irrecoverable in law; (h) for the avoidance of doubt, he weighed the public interest and rule of law factors identified in Okunade and the importance of compliance with EU law obligations; (i) there may be a good defence to the proceedings for failure to commence them in time and on notice as required by statute; and (j) it may be possible that the list judge would be able to facilitate early trial of the proceedings.

Holland J held that the order proper to the minimisation of the risk of injustice was to stay the impugned decisions.

Application granted.

JUDGMENT OF Mr Justice David Holland DELIVERED ON 4 DECEMBER 2025

Contents

INTRODUCTION	2
AA SCREENING & AA	4
ALAB'S REASONS	6
GROUNDS ON WHICH LEAVE WAS GRANTED	8
Breach of s.8(3) of the 1997 Act	8
Failure to do AA	8
Failure to Bespeak NIS	9
JURISDICTION TO STAY & EFFECT OF STAY	9
STAYS – OKUNADE Et seq	12
AA IN THE PRESENT CASE – EXCESSIVE BURDEN ON THE STATE?	18
TITLE ISSUE & s.8(3) OF THE 1997 ACT	21
CRIMINALISATION & ATTACK ON PROPERTY RIGHTS	22
SEQUENCE OF EVENTS FROM 2016	31
RISK OF ENVIRONMENTAL DAMAGE PENDING TRIAL & PRESERVATION OF STATUS QUO FOR AA	34
SEEDING ISSUE	38
ADEQUACY OF DAMAGES	39
TIME LIMIT DEFENCE, PROCEDURAL ISSUES & DURATION OF A STAY	45
HARTE PEAT, CASES CITED THEREIN & COMPARISON TO THE PRESENT CASE	46
CONCLUSION	51
POSTSCRIPT	54

INTRODUCTION 1

1 This is my decision on the application of the Applicant (“TLM”), pursuant to s.73 of the 1997 Act 2 and Order 84 Rule 20(8) RSC, 3 for a stay, pending trial of these judicial review proceedings, of ALAB's 4 Impugned Decisions of 21 March 2025 to refuse to renew certain expired aquaculture licences formerly held by TLM for bottom cultivation 5 of mussels on

various sites, totalling about 100 hectares, on the foreshore in Wexford Harbour. 6 TLM already has leave to seek judicial review

2 These proceedings also include an application to quash a refusal of a new licence (as opposed to a renewal) in respect of a 56 hectare site in Wexford Harbour, but no stay is sought in that respect. TLM also has another 18 hectare site in Wexford Harbour 7 licensed for bottom cultivation of mussels which is not the subject of these proceedings.

3 Ordinarily, a stay pending trial of a refusal of a permission or licence will not in practical terms avail an applicant for judicial review of that refusal. However, TLM argues that a stay here would, or could if I so directed, have the effect that, the Impugned Decisions being temporarily considered not to have been made, s.19A(4) of the 1997 Act would resume effect and so authorise TLM's continuation of mussel cultivation pending trial. S.19A(4) provides that an aquaculture licensee who has sought renewal of an aquaculture licence shall, notwithstanding the expiration of that licence, be entitled to continue pending the decision on the renewal application and on the terms of the expired licence, the aquaculture formerly authorised by the licence. In substance, where s.19A(4) applies the expired licence continues to have effect pending the renewal decision.

4 ALAB and the Minister for the Marine 8 oppose the grant of a stay. No other party argued this issue. Simplifying their objections, they considered that I lack jurisdiction to grant a stay and that, if I have jurisdiction, I should in any event refuse a stay on Okunade 9 principles and by reference to EU law requirements derived, in particular, from the Habitats Directive 10 and by reference to the risk allegedly posed by TLM's mussel farming to European Sites. 11

5 While I will return to the issue in more detail, it is useful to observe at this point that TLM asserts proprietary rights in the form of several fisheries in the Sites in question and that s.8(3) of the 1997 Act therefore entitles it to renewal of its licenses. ALAB and the State dispute both the existence of the asserted several fisheries and, assuming such fisheries, the asserted effect of s.8(3) of the 1997 Act.

6 It is convenient to say at this point that Minister for the Marine's deponent's characterisation on oath of TLM as seeking, by a stay, to gain “free rein” to farm mussels immune from any potential enforcement is fanciful, alarmist and extravagant. Any s.19A(4) right is subject to the terms of the licence the renewal of which is sought. Whatever the Minister for the Marine's lack of clarity as to the terms of the stay sought, it seems to me to

have been obvious that any resultant mussel farming would be subject to the terms of the expired licences. I would add that, in my view, the Minister's decision was wise not to strongly press an argument made on affidavit that what TLM sought was in effect a mandatory order — such that TLM had to show a strong case (see Maha Lingam 12) as opposed to merely having shown substantial grounds. 13

7 As a more general observation, while some argument in affidavits is unavoidable to contextualise factual averments, affidavits are not submissions. Some affidavits in this case are argumentative beyond the tolerable. For example, one affidavit for TLM deposes on oath that an ALAB argument “ is so absurd that it collapses on itself.” But my decision does not turn on that observation.

AA SCREENING & AA

8 The question whether to grant a stay arises in the particular context that ALAB's decisions were grounded in a finding, on AA Screening 14 and by reference to Article 6(3) of the Habitats Directive, that it had not been shown as a matter of certainty beyond reasonable scientific doubt that the mussel cultivation sought to be licensed would not adversely affect the integrity of a number of European Sites. Ordinarily, a final finding to that effect is made on foot of an AA and requires refusal of an aquaculture licence. All agree that ALAB's AA Screening correctly showed that the licences could not be renewed save on foot of an AA excluding risk of adverse effects on the integrity of European Sites. But ALAB did not do an AA. I doubt anyone disagrees that such a course was, to say the least, highly unusual in practice – though whether it was lawful remains to be seen.

9 Regulation 42(6) & (7) of the Habitats Regulations 2011, 15 considered with the relevant caselaw, 16 provides that where a public authority, on foot of an AA Screening of a proposed project 17 and on the basis of objective, complete, precise and definitive scientific information and by way of assessment without gaps or lacunae, to a standard of certainty beyond reasonable scientific doubt and considering the project individually or in combination with other projects:

• Can exclude that the project will have a significant effect on the integrity of a European Site, it “ shall determine” that AA of the project is not required.

• Cannot exclude that the project will have a significant effect on the integrity of a European Site, it “ shall determine” that AA of the project is required.

10 The foregoing...