Toole and Another v Minister for Housing, Local Government and Heritage and Another and Others (No.6)

JudgeHumphreys J.
Judgment Date31 October 2023
Neutral Citation[2023] IEHC 592
CourtHigh 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

Ivan Toole


Golden Venture Fishing Limited
The Minister for Housing, Local Government and Heritage


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

[2023] IEHC 592

[2023 No. 407 JR]



(No. 6)

JUDGMENT of Humphreys J. delivered on Tuesday the 31 st day of October, 2023

Judgment history


. In Toole v. Minister for Housing (No. 1) [2023] IEHC 263, ( [2023] 5 JIC 2205 Unreported, High Court, 22nd May, 2023), I granted an interim stay on the foreshore licence impugned in the proceedings.


. In Toole v. Minister for Housing (No. 2) [2023] IEHC 317, ( [2023] 6 JIC 1603 Unreported, High Court, 16th June, 2023), I continued the stay on an interlocutory basis.


. In Toole v. Minister for Housing (No. 3) [2023] IEHC 378, ( [2023] 7 JIC 0302 Unreported, High Court, 3rd July, 2023), I dismissed the case save as to two points, refused the application to dismiss those or to reduce them to declaratory issues only, set out a decision algorithm to progress the case going forward, and invited further submissions.


. In Toole v. Minister for Housing (No. 4) [2023] IEHC 403, ( [2023] 7 JIC 1301 Unreported, High Court, 13th July, 2023) I dealt with step (iv) in the decision algorithm set out at para. 51 of the No. 3 judgment by making an order of mandamus and deciding in principle to make a reference to the CJEU.


. In ( [2023] IEHC 590 Toole v. Minister for Housing (No. 5) Unreported, High Court, 27th October, 2023) I set out the reasons for the request for the expedited procedure before the CJEU.


. I am now revisiting the stay in the light of the above developments, which is the module set out at step (v) in the decision algorithm.

Procedural history

. This case was initiated on 26th April, 2023. For those who have an interest in such things, it can be noted that it has gone from a standing start to full pleadings, a full hearing, multiple ancillary hearings and six judgments within barely more than six months, two of which fell during the long vacation. Whatever else the parties may complain about, they can't complain about not getting reasonably prompt attention relative to other cases.


. Following the No. 4 judgment on 13th July, 2023, the parties filed affidavits and written submissions on the stay, albeit that there was some slippage from the timetable set out in that judgment. The applicants delivered a final replying affidavit, a Fifth Affidavit of Marie Louise Heffernan, at 23.50 on 21st July, 2023 in unsworn form (sworn on 24th July, 2023). That is objected to.


. Separately from that, the applicants and respondent delivered submissions on the proposed reference, dated 21st and 23rd July, 2023, respectively.


. The present module was listed for hearing on 24th July, 2023, and adjourned to 25th July, 2023, when it was heard and judgment was reserved. The following procedural directions were given at that time:

  • (i) the applicants objected to any further amendment of the licence condition beyond that that had been directed and the opposing parties were given time until 26th July, 2023 to provide any further written comments on the possible amendment to the licence with a right to the applicants to reply by 28th July, 2023;

  • (ii) the State had 7 days from the hearing to endeavour to agree wording regarding a possible application for the expedited procedure in the CJEU;

  • (iii) it was noted that the developer indicated that it was not getting involved in Luxembourg; and

  • (iv) I reserved the right to also seek further written answers from the parties – as we shall see that was taken up with a figurative vengeance.


. The State then prepared a draft request for the expedited procedure, which was circulated on or about 27th July, 2023. The applicants prepared a replying submission dated 28th July, 2023. Those documents were useful to the court in preparing the judgment on that issue.


. On 10th August, 2023, the applicants lodged notices of appeal arising from the No. 3 and No. 4 judgments, Court of Appeal record nos. 2023/203 and 2023/204. While it's not a matter for me, some of the matters relied on as grounds of appeal are hard to recognise as points made in that form in the High Court, but in fairness to these applicants, that wouldn't be unprecedented as far as appellants generally are concerned, if my experience is anything to go by. Also in fairness to the applicants, a party that loses on some points mid-way through the case would not normally appeal at that stage but would await the conclusion of the case. Here however the State had expressly asked for all orders to be perfected as we went along, thereby making such mid-stream appeals inevitable. At the time, I did pose the question as to whether such a procedure would cause procedural complication but the State informed me that it saw no such complication. Eye of the beholder perhaps.


. On 11th August, 2023, the List Registrar on my behalf communicated with the parties to request further submissions on one issue that arose in the hearing.


. On foot of that, the applicants delivered a submission on 4th September, 2023, RWE did likewise on 11th September, 2023 and the State delivered a submission on 12th September, 2023. On 14th September, 2023, the applicants sought either a resumed oral hearing or a right to make a replying written submission. At that point I suggested that, if there was no objection, the applicants could do so within one week, but in the event of an objection the matter would be listed on 2nd October, 2023. The former option was acquiesced in and the applicants ultimately delivered a replying written legal submission on 25th September, 2023.


. On 28th September, 2023 having reviewed all submissions I communicated further with the parties about issues that arose from all of the foregoing, particularly matters that were relevant to the wording of the reference, and listed the matter on 2nd October, 2023.


. A further hearing then took place on 25th October, 2023 at which final submissions on the stay and other issues being dealt with in the present module took place.


. I will now address a number of essentially procedural or technical issues and then turn to what now falls for decision, drawing on the list of issues set out at the end of the No. 4 judgment at para. 66 (xi). This has been somewhat more procedurally and substantively involved than most applications (and to illustrate that for the benefit of the parties, and without giving too much away, it will be no surprise to those involved in the case that the present judgment went through a record-breaking 42 draft versions, even bearing in mind that version numbers tend to be indicative rather than exact calculations of the amount of change involved).

Whether the applicants' final affidavit should be admitted

. The notice party did not object to the admissibility of the applicants' final affidavit (the Fifth Affidavit of Ms Heffernan) as a matter of principle, while objecting to its relevance and weight. The State did object to the admission of this affidavit, but the objection was pitched at a very abstract level, on the basis that the opposing parties had already lashed their colours to the mast in submissions by that stage. But the State hasn't shown how that grand-sounding principle has caused any unfairness in practice. Given the timelines, it seems extremely unlikely that the applicants' affidavit was drafted with the specific purpose of neutralising points in the opposing parties' submissions specifically (as opposed to affidavit evidence). Even if that was the case, the opposing parties could make oral submissions by way of counter-punch. On an overall balance of justice and fairness basis it seems to me that I should allow this affidavit to be filed, but very much without prejudice to its legal relevance and weight. However as matters developed that issue has taken on a different character, as we shall see.

Wording of the licence condition

. The order of mandamus was provided for in the No. 4 judgment to provide for new wording for condition 31.13 “along the lines” of wording set out.


. The developer initially proposed an amended wording as follows (para. 10 of affidavit of Mr Kelly):

“In the interests of mitigating possible in-combination environmental effects, the Licensee shall coordinate with other licence holders that overlap with the survey area to ensure that no temporal overlap between two or more projects surveys occurs.

Where necessary, the Minister will determine the timing of specific survey activities with potential for in-combination effects to ensure that there is no temporal overlap.”


. The developer's concern was for example that relatively inert surveys, specifically buoys and FLiDAR (Floating Light Detecting and Ranging), might (probably would, since they are in place for an extended period) overlap temporally with surveys by other developers hence giving rise to a technical breach of the condition as amended.


. On the other hand, their wording is over-broad if it implicitly creates a category of activity that is a project but not a survey. The developer's basic concern however seems reasonable and can be addressed by an order that a particular forma, to which I will come, complies with the existing order of mandamus to put in place a wording “along the lines” set out in the No. 4 judgment.


. At the hearing there was a discussion of a wording along the following lines:

“In the interests of mitigating possible in-combination environmental effects, the Licensee shall coordinate with other licence holders that overlap with the...

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