Waterville Fisheries Development Ltd v Aquaculture Licenses Appeals Board and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 08 April 2014
• Neutral Citation: [2014] IEHC 248
• Docket Number: [2013 No. 40JR]
• Court: High Court
• Date: 08 April 2014

[2014] IEHC 248

THE HIGH COURT

[No. 40 J.R./2013

Waterville Fisheries Development Ltd v Aquaculture Licenses Appeals Board & Ors

BETWEEN

WATERVILLE FISHERIES DEVELOPMENT LIMITED

APPLICANT

AND

AQUACULTURE LICENSES APPEALS BOARD AND THE MINISTER FOR AGRICULTURE, FOOD AND THE MARINE

RESPONDENTS

AND

(BY ORDER) SILVER KING SEA FOODS LIMITED T/A MARINE HARVEST IRELAND

NOTICE PARTY

FISHERIES (AMDT) ACT 1997 S73(2)

RSC O.84

ENVIRONMENT (MISCELLANEOUS PROVISIONS) ACT 2011 PART II

LANCEFORT LTD v BORD PLEANALA & TREASURY HOLDINGS (NO 2) 1999 2 IR 270 1998 2 ILRM 401 1998/23/8916 1998 IESC 14

CAHILL v SUTTON 1980 IR 269

LYNCH, STATE v COONEY 1982 IR 337

FISHERIES (AMDT) ACT 1997 S73(2)(B)

FISHERIES (AMDT) ACT 1997 S73(2)(B)(i)

FISHERIES (AMDT) ACT 1997 S73(2)(B)(ii)

FISHERIES (AMDT) ACT 1997 S73

BOARD OF MANAGEMENT OF ST MALOGAS NATIONAL SCHOOL v SECRETARY GENERAL OF THE DEPT OF EDUCATION & ORS 2011 1 IR 362 2011 ILRM 389 2010/4/923 2010 IESC 57

CONSTITUTION ART 5

CONSTITUTION ART 34

MCCAULEY v MIN FOR POSTS & TELEGRAPHS 1966 IR 345

MCELDOWNEY, STATE v KELLEHER 1983 IR 289

MURPHY v GREENE 1990 2 IR 566 1991 ILRM 404 1991 ILT 146 1990/10/2793

BLEHEIN v MIN FOR HEALTH & ORS 2009 1 IR 275 2008 2 ILRM 401 2008/3/594 2008 IESC 40

MJBCH LTD (IN LIQUIDATION), IN RE 2013 1 IR 407 2013/35/10438 2013 IEHC 256

DUNMANUS BAY MUSSELS LTD v ACQUACULTURE LICENCES APPEALS BOARD & ORS UNREP HOGAN 10.5.2013 2013/15/4262 2013 IEHC 214

COMPANIES ACT 1963 S222

PLANNING & DEVELOPMENT ACT 2000 S50

KSK ENTERPRISES LTD v BORD PLEANALA & ORS 1994 2 IR 128 1994 2 ILRM 1 1994/4/1176

MCCARTHY (OLD BAWN COMMUNITY SCHOOL) v BORD PLEANALA & MCGRATH (SHAMROCK ROVERS FOOTBALL CLUB) 2000 1 IR 42 1998/24/9598 1998 IEHC 75

MURRAY v BORD PLEANALA 2000 1 IR 58 1999/14/4048

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S82(3)(A)

Fisheries – Licencing – Revocation – Applicant seeking judicial review of Aquaculture Licenses Appeals Board decision – Whether applicant has appropriate locus standi

Facts: The applicant is Waterville Fisheries Development Ltd. In 2010, it complained to the second respondent, the Minister for Agriculture, Food and the Marine, contending that the licence held by the notice party, Silver King Seafoods Ltd, to operate a salmon farm should be revoked. The Minister decided not to revoke the licence. In 2011, Silver King applied to the Minister for permission to amend the licence to permit new stocking arrangements at the farm. The Minister granted the licence-amendment which was then appealed. Waterville Fisheries applied to the High Court for leave to apply for judicial review in respect of the 2012 decision of the first respondent, the Aquaculture Licenses Appeals Board, which confirmed the 2011 decision of the Minister to grant the temporary licence for the amendment to Silver King. The respondents contended that the failure to serve all the parties to the appeal within the statutory time period was fatal to the validity of the proceedings, arguing for a literal interpretation of s.73 of the Fisheries (Amendment) Act 1997 and referring to Board of Management of St. Malaga"s National School v Minister for Education [2010] IESC 57.

Held by Hogan J that he should determine three questions as a preliminary issue: firstly whether the applicant has the requisite locus standi, secondly whether the applicant complied with the requirements of s. 73(2) regarding time and service and, if it did not, whether the degree of non-compliance was such as to preclude the applicant from maintaining these proceedings, and thirdly whether the applicant is in time to challenge or otherwise question the non-revocation by the Minister of the licence in 2010. Hogan J answered the first question in the affirmative, holding that there was no evidence that the applicant company was formed simply for the purpose of circumventing potential liability for costs on the part of individuals who might otherwise have commenced proceedings, citing Lancefort Ltd v An Bord Pleanála (No.2) [1998] IESC 14. Hogan J held that the applicant must have the requisite locus standi since it is the same entity as the Group who lodged the appeal. Hogan J held that the locus standi rules are flexible rules of practice concerned with the conservation and proper use of judicial power, citing Cahill v Sutton [1980] IR 269; the principles are therefore concerned with the underlying reality of the litigant"s interest. With regards to the second question, it was conceded that the applicant never served Salmon Watch Ireland (SWI) or Inland Fisheries Ireland (IFI) within the statutory time limit and that when they were served, they had no interest in participating in the proceedings. Hogan J held that the statute must be read in a sensible fashion in a manner which respects the fundamental constitutional values of the right to access to courts, citing Mccauley v Minister for Posts and Telegraphs [1966] IR 345. As such, Hogan J held that s.73 cannot be read in the unyielding fashion urged by the Board and Silver King. Considering Dunmanus Bay Mussels Ltd v Acquaculture Licences Appeals Board [2013] IEHC 214, Hogan J held that s.73 should be read as if it referred to relevant parties who had a real interest in the outcome of the proceedings; since SWI and IFI were never a relevant or necessary party, Hogan J rejected the argument that the proceedings should be dismissed on that ground. Finally, the third question was answered in the negative as it was accepted by the applicant that it is now out of time to challenge the validity of the Minister"s decision not to revoke the licence granted to Silver King in 2010.

Hogan J held that the proceedings were validly constituted and brought by a party with the appropriate locus standi; the applicant cannot, however, challenge the validity of the decision of the Minister not to revoke the licence granted 2010 to Silver King.

Judgment approved.

1 JUDGMENT of Mr. Justice Hogan delivered on 8th April, 2014

2 1. Where the Oireachtas has provided by statute for an exclusive mechanism of challenging the validity of a particular administrative decision by means of judicial review, is it necessary to serve every party to that decision within the time specified, even though they may have no interest in participating in these judicial review proceedings? This, in essence, is the most critical of the preliminary questions which i am now required to determine. The issues arise in the following way.

3 2. This is an application for leave to apply for judicial review in respect of a decision of the Acquacultural Licenses Appeals Board ("the Board") dated 31 ^st October, 2012. By that decision the Board confirmed an earlier decision of the Minister for Agriculture. Fisheries and Food on 22 ^nd March 2011 to grant a temporary licence for the amendment of operating procedures to the notice party. Silver King Seafoods Ltd. ("Silver King") in respect of the latter's salmon fanning site at Deenish Island. Ballinskelligs Bay, Co. Kerry.

4 3. That salmon farm itself first become operational in 1989. Silver King acquired the farm in 2005 and operated the farm pursuant to a Licence No. T 6/202 AQ 199. In January 2010 the Waterville Fisheries Development Group ("the Group") complained to the Minister contending that this licence should be revoked. Following the making of submissions by the relevant parties, the Minister made a decision on 9 ^th April 2010 not to revoke the licence. On the 28 ^th April 2010 the Minister informed the parties that the licence was not to be revoked.

5 4. In February 2011 Silver King applied to the Minister for permission to amend the licence to permit new stocking arrangements at the farm. Silver King maintained that this new stocking arrangements would allow for what is termed an "all out, all in" arrangement which would permit the stocking of 800,000 smolt every two years rather than the existing arrangement of 400,000 smolt per year. While Silver King contend that this would lead to an amelioration of the environmental impact of the farm and that this would be in line with best international practice, this is hotly disputed by the applicant and others.

6 5. At all events, the Minister granted the licence amendment on 22 ^nd March 2011, but this was appealed by a number of objectors to the Board. The identity and number of objectors is, as we shall see, a matter of some importance in second preliminary issue I am required to determine. While I will return to this matter shortly, it is contended that the failure to serve all the parties to the appeal within the statutory time period is fatal to the validity of these proceedings.

7 6. While s. 73(2) of the Fisheries (Amendment) Act 1997 ("the 1997 Act"), requires that any application to quash a decision of the Board must be made by way of an application for judicial review under O. 84 of the Rules of the Superior Courts and that such application must be heard on notice, it has been agreed that I should determine three questions as a preliminary issue. It has been further agreed that these three preliminary issues will be adjudicated finally by me, subject only to an appeal from my decision.

8 7. Before proceeding further it is necessary to record one critical feature of the procedure adopted by the applicant. It had filed an appeal to the Board, but so also had Inland Fisheries Ireland and Salmon Watch Ireland. While it is that these proceedings were commenced within the three month period specified in s. 73(2) of the 1997 Act, the proceedings were not, in fact, served on either Salmon Watch Ireland or Inland Fisheries Ireland within that relevant period. As it happens these bodies have indicated they do not wish to take part in the judicial review proceedings. One of the critical questions which I have to consider as...