Toole and Another v The Minister for Housing and Others

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 22 May 2023
• Neutral Citation: [2023] IEHC 263
• Court: High Court
• Docket Number: [2023 No. 407 JR]

In the Matter of Sections 21B and 3 of the Foreshore Act 1933, as Amended and

In the Matter of Section 50B of the Planning and Development Act 2000, as Amended

Between

Ivan Toole and Golden Venture Fishing Limited

Applicants

and

The Minister for Housing, Local Government and Heritage and The Minister of State for the Department of Housing, Local Government and Heritage with Special Responsibility for Planning and Local Government

Respondents

and

RWE Renewables Ireland Limited and The Minister for Agriculture, Food and The Marine

Notice Parties

[2023] IEHC 263

[2023 No. 407 JR]

THE HIGH COURT

JUDICIAL REVIEW

Foreshore licence – Stay – Judicial review – Applicants seeking an interim order staying the effect of a foreshore licence – Whether damages would be an adequate remedy

Facts: A licence was sought under s. 3 of the Foreshore Act 1933 on 1st October, 2021, to undertake geotechnical and geophysical site investigations and ecological, wind, wave and current monitoring to provide further data to refine wind farm design, cable routing, landfall design and associated installation methodologies for the proposed Dublin Array offshore wind farm off the coast of counties Dublin and Wicklow. The five-year foreshore licence was executed by licence agreement on 13th January, 2023. Notice of the licence was published in Iris Oifigiúil on 27th January, 2023 pursuant to s. 21A of the 1933 Act. The applicants, Mr Toole and Golden Venture Fishing Ltd, applied to the High Court seeking an interim order staying the effect of the foreshore licence prior to the grant of leave to seek judicial review to challenge that licence. Humphreys J heard the application and announced the order on 8th May, 2023 and gave reasons ex tempore on 9th May, 2023. He then gave the written version of the reasons.

Held by Humphreys J that, applying Okunade v Minister for Justice & Ors [2012] IESC 49, on the basis of what he had as of the date of the decision on the interim stage, the arguable case element was satisfied. He held that damages were unlikely to be an adequate remedy where there was risk of injury to the environment. As regards the least risk of injustice, he found it relevant that the decision was challenged within three months from the date of its publication in Iris Oifigiúil and that the first notice party, RWE Renewables Ireland Ltd, decided to partially implement the decision while it was still within the zone of provisionality. He held that while there was going to be financial prejudice to the first notice party, that was somewhat diluted where there was an element of voluntary acceptance of risk by immediately acting on a public law decision, albeit presumed valid, without waiting to see if it would be challenged. He held that an assessment of all relevant factors favoured the grant of an interim stay, with the risk to the environment in particular (even leaving aside other factors favouring the applicants) outweighing such features of the case as tend to militate against a stay, as of the date of the order for interim relief and on the basis of the material before the court at that time.

Humphreys J’s order made on 8th May, 2023 was that: (i) there was a stay in terms of relief 3 in the statement of grounds but made under O. 84, r. 26(1) of the Rules of the Superior Courts (S.I. No. 15 of 1986) (RSC) and/or the inherent jurisdiction of the court; (ii) the first notice party would have until 16:00 on 9th May, 2023 to wind down existing works and carry out any health and safety measures but not to carry out any new steps under the licence; (iii) an undertaking as to damages was not required at that stage; (iv) the applicant was to issue a motion for an interlocutory stay by 16.00 on 9th May, 2023 and to furnish papers in draft form to the opposing parties by 14.00 on that date as well as an order for short service; (v) the matter was adjourned to Friday 12th May, 2023 at 11.00 to hear the motion to admit the proceedings to the list on notice and the leave application ex parte and at a minimum for mention of the interlocutory stay motion which was to be for hearing if the parties agree that or the court considered that appropriate; (vi) the applicants were to write to the CSSO immediately to inform them of the order; and (vii) costs were reserved.

Application granted.

JUDGMENT of Humphreys J. delivered on the 22nd day of May, 2023

1 . In this application, an interim order was sought staying the effect of a foreshore licence prior to the grant of leave to seek judicial review to challenge that licence.

2 . I heard the application and announced the order on 8th May, 2023 and gave reasons ex tempore on 9th May, 2023, although I did emphasise that the written version would be the definitive one. I am now giving that written version of the reasons, which, while restructuring the arrangement and wording somewhat (as is virtually inevitable), is intended to reflect the essential substance of the points already made.

3 . The application involved submissions from the applicant and first named notice party. The State parties were notified that the matter would be listed on 8th May, 2023, albeit they might not have understood that that was in the context of a stay application specifically, but given that they had notice of the date and that they indicated they would not be attending (referencing inter alia a lack of papers), I didn't see their absence as a reason not to deal with the matter. Admittedly, the applicant served the Minister concerned directly rather than via the CSSO, which is what more properly should have happened, but the Department did pass on the letter which also expressly and prudently says that contact can be made with the List Registrar to seek access to ShareFile. In that regard it was not totally clear at that point anyway, in the absence of hearing from the State, as to why there was a difficulty accessing papers.

4 . What I propose to do is to address the facts insofar as they appear to the court at this stage, the jurisdiction to grant a stay at this point in the procedure, the law in relation to the grant of such a stay and the application of that law to the facts here. For the avoidance of doubt, dealing with a matter such as this in an interim way is very much without prejudice to any particular conclusion being revisited at the interlocutory stage with the benefit of other factual material and legal submission as appropriate.

Facts

5 . In 2017, the applicants' fishing business, Golden Venture, was established.

6 . In 2019, the Rockabill to Dalkey Island Special Area of Conservation was defined by the European Union Habitats (Rockabill to Dalkey Island Special Area Of Conservation 003000) Regulations 2019 ( S.I. No. 98 of 2019). This specified the qualifying interests of the special area of conservation (SAC) as follows:

Natural Habitat Type

Natura 2000 Code	Description
1351	Reefs

Animal and Plant Species

Natura 2000 Code	Common Name	Scientific Name
1351	Harbour Porpoise	Phocoena phocoena

7 . The Natura Impact Statement (NIS) here appears to be prepared on the basis of the Geogenic reefs to which it relates being a qualifying interest falling within the reefs defined by the SAC order. Reference is made to a lack of mapping.

8 . On 25th January, 2021, a previous licence was granted in favour of the first named notice party (reference FS 007029), and on foot of that the first named notice party carried out what is referred to in the papers as a “2020 site investigation campaign”, although that appears to have happened in 2021.

9 . The licence now under challenge was sought under s. 3 of the Foreshore Act 1933 on 1st October, 2021, to undertake geotechnical and geophysical site investigations and ecological, wind, wave and current monitoring to provide further data to refine wind farm design, cable routing, landfall design and associated installation methodologies for the proposed Dublin Array offshore wind farm off the coast of counties Dublin and Wicklow.

10 . That was advertised on 17th November, 2021 and thereafter and 17 submissions were made during the public consultation process as well as 8 submissions by prescribed bodies. An appropriate assessment (AA) screening was carried out dated May, 2022 which accepted that likely significant effects could not be discounted. A marine advisory environmental screening stage report of 20th June, 2022 concluded that environmental impact assessment (EIA) was not required although reference was made to obligations to conduct an examination by the Department itself. The preliminary examination prepared by the marine advisor also dated 20th June, 2022 concluded that there was no real likelihood of significant effects on the environment and a screening determination regarding appropriate assessment was signed by the Minister on the same date.

11 . That resulted in a public consultation procedure in relation to stage 2 AA which ultimately culminated in a conclusion that the proposed activity would not adversely affect the integrity of any European site having regard to mitigation measures. A conclusion statement was signed by the Minister on 23rd November, 2022.

12 . As of December, 2022, in advance of the licence, the first named notice party appears to have chartered at least one of the boats required for the site investigation.

13 . The impugned five-year foreshore licence itself was executed by licence agreement on 13th January, 2023. Condition 31.9 of the licence was particularly emphasised by the applicants and provides as follows:

“The licensee shall ensure that the intertidal and subtidal geotechnical sampling locations will be selected after review of the geophysical and environmental data obtained from surveys completed under licence FS 007029 has been reviewed for the presence of potential ecological features such as Geogenic reef.”

14 . Notice...