High Court of Ireland Decisions

1. This is an application for leave to apply by way of Judicial Review for an Order quashing the First Named Respondent’s decision to grant the said licences and for ancillary relief. By virtue of the Fisheries (Amendment) Act 1997 Section 73 an application for leave to question the decision on an application for a trial licence is to be made by Notice of Motion and leave shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that the decision is invalid or ought to be quashed. There is no similar provision affecting a challenge to a decision to grant a foreshore licence. However on the application before me the Applicant challenged only the trial licence and no arguments were adduced to me in relation to the foreshore licence.

2. The Applicant relies on two grounds which may be summarised as follows:-

3. As to the first ground it is clear that the application for the trial licence was made in the name of the Second Named Respondent. Notice of the application was duly advertised in accordance with the Aquaculture (Licence Application) Regulations 1998 Regulation 8(1) again giving the name of the Second Named Respondent as the applicant. In issuing the licence the name of the Third Named Respondent was inserted in error and likewise the name of the Third Named Respondent appeared in the notice published by the First Named Respondent pursuant to the Aquaculture (Licence Application) Regulations 1998 Regulation 19 thereof. The error was brought to the First Named Respondent’s attention by means of a letter dated 27th June, 2000 from the Applicant and consequent upon that the First Named Respondent amended the licence by substituting the name of the Second Named Respondent and notice of the amendment was thereafter published. It was accepted before me that the Applicant was not in anyway mislead or prejudiced by reason of the administrative error which occurred.

4. The Act of 1997 provides for the grant of two distinct licences an aquaculture licence and a trial licence. The Act and the 1998 Regulations regulate the grant of each in quite different ways. Thus the Act in Section 68 thereof empowers the First Named Respondent to revoke or amend an aquaculture licence whereas in relation to a trial licence the First Named Respondent is enpowered by Section 9(4) of the Act to revoke but not to amend the same.

5. In relation to this ground the correct approach for the Court to adopt is that adopted in Mulhall-v-An Bord Pleanala the High Court McCracken J. unreported 21st May, 1996. A mere administrative error such as occurred here where the Applicant was aware of the application and the name of the applicant for a trial licence, made submissions in response to the publication of notice of the application, drew the error to the attention of the First Named Respondent and was not mislead or prejudiced by the error is a mere technical error and does not amount to a substantial ground for the purposes of Section 73 of the Act. Accordingly I refuse leave to apply for Judicial Review on this ground.

6. As to the second ground two matters in particular are relied upon by the Applicant:-

7. The Aquaculture (Licence Application) Regulations 1998 Regulation 10 requires the First Named Respondent to notify certain bodies including Duchas of the receipt of an application for a trial licence. Regulation 10(3) provides that within six weeks after such notification a body so notified may make written submissions or observations to the First Named Respondent concerning the application. The relevant notice to Duchas was issued on the 15th February, 2000 and the response from Duchas was sent to the First Named Respondent on the 13th April, 2000 outside the period of six weeks. In these circumstances the First Named Respondent considered itself unable to take account of the same. I am satisfied that this approach adopted by the First Named Respondent was the correct one for had it done otherwise and considered the response from Duchas its decision would have been open to challenge by the applicant for the licence upon the ground that the First Named Respondent had taken into account matters which ought not to have been taken into account: O’Keeffe-v-An Bord Pleanala 1993 1IR39. Accordingly I refuse the Applicant leave on this ground also.

8. The other matter particularly relied upon is the Communities (Natural Habitats) Regulations 1997. Regulation 3 thereof requires the Notice Party to prepare a list of sites referred to as a candidate list of European sites. Regulation 4 requires the Notice Party to send to inter alia the First Named Respondent copy of the candidate list and to indicate the operation or activity which the Notice Party considers would be likely to alter damage destroy or interfere with the integrity of each site. The Applicant relies upon documents on file with Cork County Council, who must also be sent a copy of the candidate list pursuant to the 1997 Regulations Regulation 4, which include a map prepared by Duchas showing the candidate site and which map is dated 20th April, 2000 as showing that at the date of the grant of the trial licence the site of the same was part of a candidate site. However I have before me an Affidavit of Alan Craig a Senior Inspector/Principal Officer in Duchas in which he avers that the effective date upon which the Notice Party decided to propose Kenmare river for inclusion in a candidate list was the 16th May, 2000 and that the documents on Cork County Council’s file were issued to Cork County Council on the 23rd May, 2000 that is in each case after the grant of the trial licence. It is clear therefore that the area in respect of which the First Named Respondent granted a trial licence was not of the date of the grant of the licence part of a site included in a candidate list. In these circumstances I refuse leave on this ground also.

9. Insofar as the Applicant in general terms claims that the decision of the First Named Respondent is irrational, wholly unreasonable and unsupported by the evidence I have carefully considered all the documents exhibited on this application and it is clear that there was ample information before the First Named Respondent to enable it to make the decision sought to be impugned. The onus on an Applicant seeking to impugn a decision on this basis carries a very heavy burden. In the State (Keegan)-v-Stardust Compensation Tribunal 1986 I.R. 642 Henchy J. quoted with approval a passage from the Judgment of Lord Green MR in Associated Provinical Picturehouses Limited-v-Wednesbury Corporation 1948 1KB 223 where at 230 he stated:-

10. The Applicant here has not shown substantial grounds in support of the claim that the First Named Respondent acted irrationally, unreasonably or without evidence in the sense that those words are used in the context of the State (Keegan)-v-Stardust Compensation Tribunal and O’Keeffe-v-An Bord Pleanala . On this ground also I refuse relief.

11. For the purpose of this application the test which I have applied in determining whether substantial grounds have been shown or not is that laid down in MacNamara-v-An Bord Pleanala 1995 2 ILRM 125 - the grounds must be reasonable, arguable and weighty and not trivial or tenuous.

12. I refuse the Applicant leave to apply for the relief sought by way of Judicial Review.