Waterviller Fisheries Development Ltd v Aquaculture Licenses Appeals Board

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 25 July 2014
• Neutral Citation: [2014] IEHC 381
• Docket Number: [2013 No. 40 J.R.]
• Court: High Court
• Date: 25 July 2014

[2014] IEHC 381

THE HIGH COURT

[2013 No. 40 J.R.]

BETWEEN

WATERVILLE FISHERIES DEVELOPMENT LIMITED

APPLICANT

AND

AQUACULTURE LICENSES APPEALS BOARD AND THE MINISTER FOR AGRICULTURE, FOOD AND THE MARINE (No.2)

RESPONDENTS

AND

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

NOTICE PARTY

Fisheries & Wildlife – S. 73 (2) (b) of the Fisheries (Amendment) Act 1997 – Appeal against the decision of Aquaculture Licenses Appeals Board – Judicial review – Whether procedural error vitiates an otherwise valid order – Reasoned decision – Fair procedures

Facts: The applicant sought an order for leave to apply for judicial review of the decision of the first named respondent affirming the decision of the second named respondent to grant a temporary license for the amendment of operating procedure of the notice party. The applicant contended that denial of an oral hearing by the first named respondent and that too without giving any explanations would be contrary to s. 49 (5) of the Fisheries (Amendment) Act 1997 and hence invalid.

Mr. Justice Gerard Hogan refused to grant an order for leave to apply for judicial review against the impugned order. The Court held that the discretion conferred on the first named respondent under s. 49 (1) of the Fisheries (Amendment) Act 1997 to hold an oral hearing was not absolute and it must be exercised reasonably and by adopting fair procedures. The Court observed that the first named respondent had made a procedural error by not giving sufficient reasons for not holding an oral hearing and thereby acted contrary to the rule of law. However, the Court held that the failure to give reasoned decisions, in the present case, did not render the decision of the first named respondent invalid as the decision to grant temporary license had no bearing on the conduction of an oral hearing because there were no facts in dispute that attracted the necessity of its resolution before any further step needed to be taken.

Mr. Justice Gerard Hogan

JUDGMENT of Mr. Justice Gerard Hogan delivered on 25th July, 2014

1 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 31st October, 2012. By that decision the Board confirmed an earlier decision of the Minister for Agriculture, Fisheries and Food on 22nd 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 farming site at Deenish Island, Ballinskelligs Bay, Co. Kerry.

2 This is now the second judgment on this application for leave. In the first judgment delivered on 8th April, 2014 ( [2014] IEHC 248) I held that the applicant had the requisite locus standi to pursue this application for judicial review. I also ruled that the proceedings were not in themselves irregularly constituted and were valid. It had been agreed that those issues should be finally determined by me on a preliminary basis (subject, of course, to the question of any appeal).

3 It is further agreed that I should now determine the remaining issues in a slightly different way, so that I would adjudicate on the question of whether the applicant could demonstrate the existence of substantial grounds within the meaning of the statutory test contained in s. 73(2)(b) of the Fisheries (Amendment) Act 1997 ('the 1997 Act') for contending that 'the decision or determination is invalid or ought to be quashed' in respect of the substantive grounds on which it seeks this relief. This application has been heard on notice to both the Board and Silver King.

4 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 9th April, 2010, not to revoke the licence. On the 28th April, 2010, the Minister informed the parties that the licence was not to be revoked.

5 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 As it happens, the Minister granted the licence amendment on 22nd March, 2011, but this was appealed by a number of objectors (including the Group) to the Board. In a letter dated 9th May, 2011, the Group sought an oral hearing and paid the requisite fee.

7 So far as the remaining issues are concerned, the principal objection relates to the manner in which the Group"s application for an oral hearing was rejected by the Board and the failure to give reasons for this refusal. The applicant expressly abandoned any suggestion of bias on the part of the Board.

8 Section 49(1) of the 1997 Act provides in relevant part that the Board:

'... of its own motion or at the request of a party, shall have an absolute discretion to hold an oral hearing of an appeal under this Chapter.'

9 Section 49(5) further provides that:

'Where the Board is requested to hold an oral hearing of an appeal and decides to determine the appeal without an oral hearing, it shall serve notice of its decision on the person who requested the hearing, on each other party to the appeal and on each person who, in accordance with section 45, made submissions or observations to the Board in relation to the appeal.'

10 At the hearing, counsel for the applicants, Mr. Mulloy S.C. made three separate points regarding the question of an oral hearing. First, he submitted that the Board had not been made properly aware of the fact that the applicants had made a request for an oral hearing. Second, he submitted that the Board had not given reasons for the failure to hold an oral hearing. Third, he submitted that the Board had not complied with the requirements of s. 49(5) of the 1997 Act in that the applicants were informed of the refusal to hold an oral hearing only after receiving notification that their objection to the grant of the temporary licence had been rejected by the Board. For their part, counsel for the Board, Mr. Galligan S.C., and counsel for the notice party, Mr. Mulcahy, stressed the wide amplitude of the discretionary powers vested in the Board by s. 49(1). Against that background, it seems appropriate first to consider the nature of the discretion conferred on the Board by s. 49(1).

The nature of the discretion conferred on the Board by s. 49(1)

11 In their submissions concerning the nature of the discretionary power contained in s. 49(1) of the 1997 Act, Mr. Galligan S.C, and Mr. Mulcahy not unnaturally emphasised the fact that the Board"s discretion regarding the holding of an oral hearing is described as 'absolute'. Yet s. 49(1) cannot be literally read in this fashion. As Article 5 of the Constitution makes clear, the State is a democracy. A central element of this guarantee of democratic government is that the State is governed by the rule of law. It has been in any event axiomatic since the Supreme Court"s decision in East Donegal Co-Operative Ltd. v. Attorney General [1970] I.R. 317 that the Constitution requires all discretionary powers must be exercised fairly, reasonably and in accordance with their statutory purposes. The whole scheme of the Constitution pre-supposes that citizens can have recourse to the judicial branch to ensure that these statutory powers are exercised in this manner.

12 If, accordingly, the Oireachtas purported to vest the Board with an essentially arbitrary or even autocratic power, this would amount in itself to a violation of the guarantee of democratic government in Article 5. On this basis, therefore, if s. 49(1) was to be read entirely literally, it would be unconstitutional insofar as purported to give the Board an absolute power which, on this definition, could be exercised in a fashion which did not require objective justification by reference to principles of vires, reasonableness and fair procedures. The Board would be thereby effectively rendered immune from judicial scrutiny and oversight in the manner in which it exercised this power and it would freed, for example, from the constitutional obligation to abide by the principles of fair procedures.

13 Section 49(1) must, of course, be given a constitutional interpretation where it is reasonably possible to do so without doing actual violence to the statutory language....