High Court of Ireland Decisions
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Cite as: [2014] IEHC 381
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Judgment
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Neutral Citation [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 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:
The nature of the discretion conferred on the Board by s. 49(1) 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. Applying, therefore, the double construction test (McDonald v. Bord na gCon [1965] I.R. 217), s. 49(1) must accordingly be read as if it merely vested the Board with a wide and flexible power to decide whether to hold an oral hearing. It cannot be read as granting the Board any wider power, nor can the Board be dispensed from the obligation to give reasons for its decision not to hold an oral hearing. 14. These principles were, in any event, confirmed by the Supreme Court in its seminal decision in Mallak v. Minister for Justice and Equality [2012] IESC 59. In that case the Minister for Justice contended that the absolute discretion vested in the Minister by s. 15 of the Irish Nationality and Citizenship Act 1956 meant that he was not required to give reasons for his decisions as to whether to grant citizenship to an application seeking naturalisation in this fashion. Fennelly J. rejected the argument the “absolute” nature of the discretion enabled the Minister to dispense with the obligations to give reasons:
In similar vein but with slightly different emphasis, Walsh J., in his judgment in East Donegal Co-Operative Marts Ltd. v Attorney General [1970] I.R. 317, 343-4 said of the powers conferred on a Minister, under consideration in that case, which were exercisable "at his discretion" or "as he shall think proper" or "if he so thinks fit" are powers which may be exercised only within the boundaries of the stated objects of the Act; they are powers which cast upon the Minister the duty of acting fairly and judicially in accordance with the principles of constitutional justice, and they do not give him an absolute or an unqualified or an arbitrary power to grant or refuse at his will.” The fact that a power is to be exercised in the “absolute discretion” of the decision-maker may well be relevant to the extent of the power of the court to review it. In that sense, it would appear potentially relevant principally to questions of the reasonableness of decisions. It could scarcely ever justify a decision-maker in exceeding the limits of his powers under the legislation, in particular, by taking account of a legally irrelevant consideration. It does not follow from the fact that a decision is made at the absolute discretion of the decision-maker, here the Minister, that he has no reason for making it, since that would be to permit him to exercise it arbitrarily or capriciously. Once it is accepted that there must be a reason for a decision, the characterisation of the Minister’s discretion as absolute provides no justification for the suggestion that he is dispensed from observance of such requirements of the rules of natural and constitutional justice as would otherwise apply. In this connection I agree with the following remarks of Hogan J., regarding the provision under consideration in this case, in his judgment in Hussain v. Minister for Justice [2011] IEHC 171: “This description nevertheless cannot mean, for example, that the Minister is freed from the obligations of adherence to the rule of law, which is the very “cornerstone of the Irish legal system”: Maguire v. Ardagh [2002] 1 IR 385 at 567, per Hardiman J. Nor can these words mean that the Minister is free to act in an autocratic and arbitrary fashion, since this would not only be inconsistent with the rule of law, but it would be at odds with the guarantee of democratic government contained in Article 5 of the Constitution.”
Other aspects of the decision not to hold an oral hearing
Does the failure to give reasons in respect of the decision not to hold an oral hearing give rise to substantial grounds for contending that the decision is invalid or ought to be quashed for the purposes of s. 73 of the 1997 Act? 19. While I have found that in the wake of the Supreme Court’s decision in Mallak that the Board was obliged to give reasons for its failure to grant an oral hearing and that it did not do so, this does not necessarily mean that the applicant has established the existence of substantial grounds for contending that the licensing decision is invalid or ought to be quashed. The failure to give reasons for the decision not to hold an oral hearing is, of course, one stage removed from the actual decision itself. If, of course, the Board had wrongly declined to grant an oral hearing in respect of the licensing application when it should have done so, then that would be another matter entirely. 20. Can it be said, however, that the Board improperly declined to hold an oral hearing when it ought to have done so? 21. In this context it must be recalled that what was at issue here was an operational change to an existing licence. The application required the Board to survey the likely impact of the grant of the licence, while weighing a range of environmental, economic and other pertinent considerations. This may be contrasted with many of the cases dealing with the right to an oral hearing where the administrator in question was effectively called upon to adjudicate on the legal rights of parties - sometimes in circumstances not very different from that which might obtained in a court of law - where crucial facts were in dispute. 22. It is in the latter type of case that the necessity for some form of oral hearing is perhaps more obvious, for the simple reason that the administrator cannot fairly resolve those disputed facts without the assistance of an oral hearing. This is clear from a series of decisions to this effect involving the Financial Services Ombudsman where on the facts an oral hearing has been held to be necessary: see, e.g., Hyde v. Financial Services Ombudsman [2011] IEHC 422, Lyons v. Financial Services Ombudsman [2011] IEHC 454, Smith v. Financial Services Ombudsman [2014] IEHC 40 and O’Neill v. Financial Services Ombudsman [2014] IEHC 454. 23. In all of those cases there was a stark conflict of facts, the fair resolution of which was essential to the outcome. In Lyons, the appellants complained that they had been given certain oral assurances by a financial institution regarding interest only loans. The financial institution in question had emphatically denied that any such assurances had been given. The FSO concluded that there was no reason to doubt the assurances given by the bank and concluded that no oral hearing was necessary in the circumstances. I found that, viewed objectively, this amounted to a breach of the appellant’s constitutional right to fair procedures:
25. The decision of Barrett J. in Smith is also in similar terms. Here a couple in their late 50s contended that they had been advised by a financial institution to invest in what they contended was a highly unsuitable (and high risk) investment vehicle known as Jubilee Consortium, the precise terms of which investment they had not been properly advised. Just as in Lyons, the financial institution had denied the assertions made by the complainants. The FSO rejected the complaints without an oral hearing. 26. Barrett J. set aside this decision, saying:
28. The present case is totally different, as no conflict of fact which is central to the outcome of the licensing process has been identified. In these circumstances, the Board was entitled to conclude that no oral hearing was necessary. 29. Against that background, therefore, it cannot be said that - at least so far as the present case is concerned - the failure to give reasons in respect of the decision not to hold an oral hearing is likely to render the substantive decision invalid or liable to be quashed in circumstances where there was no underlying obligation to hold such a hearing. The Board certainly erred in law in failing to provide such reasons (or, alternatively, not providing objective justification for the failure to do so). Yet there is no nexus between this procedural failure - important and significant as it admittedly is - and the ultimate decision regarding the grant of the temporary licence. This is especially so given that there was no obligation to hold an oral hearing in the circumstances of this case. Other grounds relied upon by the applicant 31. The applicant further pleaded that the Board’s decision was flawed by manifest error. Here again, having regard to the comments in AP, the pleading is simply too vague and generic to admit of a ground on which leave to apply for judicial review could properly be granted. Conclusions |
