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Cite as: [2001] IEHC 18, [2001] 1 IR 646

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O'Sullivan v. Aquaculture Licences Appeal Board [2001] IEHC 18; [2001] 1 IR 646 (1st February, 2001)

THE HIGH COURT

JUDICIAL REVIEW

1999 No. 384JR

IN THE MATTER OF THE FISHERIES (AMENDMENT) ACT 1997 SECTION 73

BETWEEN

JAMES O’SULLIVAN

APPLICANT

AND

AQUACULTURE LICENCES APPEAL BOARD

RESPONDENT

WOODSTOWN BAY SHELLFISH LIMITED

NOTICE PARTY

JUDGMENT delivered by the Honourable Mr. Justice Finnegan delivered on the 1st February 2001.

1. The Fisheries Amendment Act 1997 provides for the grant of aquaculture licences in Section 7 thereof. The Act in Section 8 (2) provides inter alia that a licence may only be granted within the limits of a several fishery with the consent in writing of the owner of the several fishery.

“Several Fishery ” is defined in the Fisheries (Consolidation) Act 1959 Section 3 as follows:-

““Several Fishery” means any fishery lawfully enjoyed as such under any title whatsoever, being a good and valid title at law, exclusively of the public by any person, whether in navigable waters or in waters not navigable, and whether the soil covered by such waters be vested in such person or in any other person”.

2. The Applicant claims to be the owner of a several fishery and as evidence of his title relies upon an indenture of conveyance dated the 16th day of May, 1984 and made between Grace Annette Flanagan of the one part and the Applicant of the other part. The parcels in the conveyance so far as they relate to the several fishery are in the following terms:-

“All that and those the.... exclusive right of fishery... on the part of the seagrounds and shores of the strands at Woodstown in the County of Waterford between the lands of Forenaught and Coughlan’s Strand... situate partly in the Parishes of Kilmacomb, Kilsaintnicholas and Killea in the barrenly of Gaultier and County of Waterford”.

3. The Minister for the Marine and Natural Resources decided on the 8th January, 1999 to grant an aquaculture licence to the Notice Party. The Applicant appealed the decision of the Minister to the Aquaculture Licences Appeal Board in accordance with the Fisheries (Amendment) Act 1997 Section 40. The basis of the appeal relevant to this application was that the grant of the licence by the Minister was in breach of the Fisheries (Amendment) Act 1997 Section 8 (2) having being made in respect of an area within the limits of a several fishery of which the Applicant is the owner without the consent in writing of the Applicant. The Agriculture Licence’s Appeals Board by decision dated 17th July, 1999 granted the Notice Party an aquaculture licence.

4. By Order dated 14th February, 2000 Mr. Justice Geoghan gave leave to the Applicant to apply by way of an application for Judicial Review for the following reliefs:-

An Order of Certiorari of the determination of the Respondent dated the 17th of July, 1999 whereby an aquaculture licence for the cultivation of oysters on a site at Woodstown bay in the County of Waterford was granted to the Notice Party,
A Declaration that the said determination of the Respondent is null and void.

5. By the said Order leave to apply by way of an application for Judicial Review for the said reliefs was granted on the following grounds:-

The Applicant is the owner of the exclusive right of fishery in the weirs known as Woodstown Strand weir and the site of the weir or the weir known as Knockaveelish weir and on the part of the seagrounds and shores of the strand at Woodstown in the County of Waterford between the lands of Forenaught and Coughlan’s Strand and is, therefore, the owner of a several fishery within the meaning of Section 3 of the Fisheries (Consolidation) Act 1959,
The location of operation licenced by the determination of the Respondent dated the 17th day of July, 1999 is included in the area in respect of which the Applicant is the owner of the said several fishery,
The Applicant has not given his consent in writing to the licensing of the Notice Party to engage in aquaculture within the limits of the said several fishery as required by Section 8(2) of the Fisheries (Amendment) Act 1997,

(viii) In the premises the determination of the Respondent whereby the said licence was granted is ultra vires the provisions of the Fisheries (Amendment) Act 1997 and therefore null and void.

6. On the hearing before me it was agreed that the matters in dispute between the parties resolve themselves to two issues namely:-

Whether the Respondent erred in law in holding that the site in respect of which the aquaculture licence was granted is not within the limits of the several fishery to which the Applicant claims to be entitled,
If the Respondent so erred in law such error of law being the sole basis upon which the decision of the Respondent is sought to be impugned is the Applicant entitled to the relief claimed.

7. The first issue arises in these circumstances. According to the Ordnance Survey of Ireland large scale data specifications the low water mark as shown on Ordnance Survey large scale plans refers to medium tides that is of tides half way between a spring and neap. On his appeal the Applicant relied upon the relevant Ordnance Survey of Ireland large scale plan based on a survey in 1925 and demonstrated clearly that the site licenced by the Respondent is partially within the area between high water mark and low water mark ascertained by reference to admiralty tide tables and the Ordnance Survey map. The Minister on the application for an aquaculture licence had an hydrographic survey carried out to ascertain the existing position of the low water mark. The survey disclosed that between 1925 and the date of the survey the low water mark had moved approximately 400 yards landward so that at the date of the survey the site in respect of which the aquaculture licence was proposed was in its entirety below low water mark so ascertained. The results of this survey were available to the Respondent. On this application the Applicant contends that his title relates to the area between high water mark and low water mark as shown on the 1925 ordnance survey large scale plan and is unaffected by any change that may naturally occur or in the alternative that the seaward boundary of his entitlement is the lowest point to which the sea may recede as opposed to the tides half way between a spring and a neap. In respect of this latter contention photographs taken on behalf of the Applicant on the 18th February, 1999 two days after a full moon i.e. two days after a spring tide showed trestles on the proposed site for the aquaculture licence above the height of low water on that day.

8. I propose first of all to look at the grant relied upon by the Applicant and to construe the same and in particular three words used therein namely ‘ seagrounds’, ‘ shores’ and ‘ strands’. As to the first it was held in Scratton -v- Brown 4 B & C 485 that the word ‘ seagrounds’ means either ground bordering on the sea or covered with the sea between high water and low water. As to the second it is clear from the Judgment in Fitzpatrick -v- Robinson and others 5 B & A 315 that the same is synonymous with seaground. The Oxford English Dictionary in relation to ‘ shore’ gives as part of its primary definition the following:-

“In law usually defined as the tract lying between ordinary high and low water mark”.

9. Again Hale De Jure Maris 1.IV.12 contains the statement that the shore prima facie belongs to the King and is therefore that area between high and low water mark at ordinary tides.

10. As to “strands” I have been unable to find a definition in any reported case. However the Oxford English Dictionary gives the primary meaning of the word as the following:-

“The land bordering a sea, lake or river; in a more restricted sense that part of a shore which lies between the tide marks; sometimes used vaguely for coast, shore”.

11. In these circumstances it seems to me that the three words seaground, shore and strand are synonymous.

12. It is well established that at common law high water mark and low water mark are determined by the neap or ordinary tides which happen between the full and change of the moon twice in the 24 hours: Attorney General -v- Chambers 4 De G.M. & G 206 where Maule J said:-

“The principle which gives the shore to the Crown is that it is land not capable of ordinary cultivation or occupation and so is in the nature of unappropriated soil. Lord Hale gives as his reason for thinking that lands only covered by the high spring tides do not belong to the Crown that such lands are for the most part dry and manoriable; and taking this passage as the only authority capable of guiding us the reasonable conclusion is that the Crown’s right is limited to land which is for the most part not dry or manoriable. The learned Judges whose assistance I had in this very obscure question point out that the limit indicating such land is the line of the medium high tide between the springs and neaps; all land below that line is more often that not covered at high water and so may justly be said in the language of Lord Hale to be covered by the ordinary flux of the sea. This cannot be said of any land above that line; and I therefore concur with the able opinion of the Judges who valuable assistance I had in thinking that the medium line must be treated as bounding the right of the Crown”.

13. The reference to Hale in the Judgment is a reference to De Jure Maris. In that work Hale defines the shore as that ground between the ordinary high water mark and low water mark. As to the meaning of ordinary in this context I take the law to be that set out in Hall’s “ An essay on the rights of the Crown in the sea shores of the realm etc .” (1830) as edited by Loveland in 1875. Hall states that the law takes notice of three kinds of tides:-

The high spring tides which are the fluxes of the sea at those tides which happen at the two equinoctials,
The spring tides which happen twice every month at the full and change of the moon,
The neap or ordinary tides which happen between the full and the change of the moon twice in the 24 hours.

14. The third category only is relevant in determining the extent of the sea shore, lands affected by high water of the first and second category being part of the terra firma . Of the first two categories Hale remarks:-

“They are natural and periodical but certainly not ordinary compared with neap tides”.

15. The convention adopted by the Ordnance Survey hereinbefore mentioned is in accordance with the decision in Attorney General -v- Chambers . Thus the limits of the several fishery claimed by the Applicant can be ascertained in accordance with the convention adopted by the Ordnance Survey. It is clear that on the evidence available to the Respondent and which was not disputed before me the site for the proposed aquaculture licence is below the low water mark as ascertained on the survey carried out by the Minister in accordance with the Ordnance Survey convention. The site proposed to be licensed accordingly is outside the limits of the several fishery claimed by the Applicant. It was held in Scratton -v- Brown [1825] 4 B & C 485 that where the sea had imperceptibly and gradually encroached upon the land and consequently that the high and low water mark had varied in the same degree the rights of the owner of a several fishery varied in the same degree as the high and low water mark.

16. In these circumstances the consent of the Applicant to the grant of the aquaculture licence pursuant to the Fisheries (Amendment) Act 1997 Section 8 (2) was not required there was no error of law on the part of the Respondent.

17. In these circumstances it is not necessary to consider the second issue mentioned above. The Applicant is not entitled to the relief claimed and accordingly I refuse the application.

DD384JR(FINNEGAN)