Cobh Fisherman's Association Ltd. v. Minister for the Marine and Natural Resources [1997] IEHC 149 (29th August, 1997)

Judgment of O'Sullivan J. delivered Friday the 29th August, 1997. 1. The Applicants seek to quash a Sand and Gravel Extraction Licence granted by the Respondent to the Managing Director and Company Secretary of the Second Notice Party on the 29th May, 1997. This licence authorises the extraction of a large amount of material from designated parts of the foreshore in Cork Harbour for use as back-fill for the River Lee tunnel. Ancillary reliefs were also sought and an Interlocutory Injunction has already been granted prohibiting extraction of material from certain licensed areas pending the outcome of these proceedings. 2. The Applicants' grounds of challenge may be summarised as follows:- 1. The Environmental Impact Study (the E. I. S.) which accompanied the application for the licence indicated a certain sequence of extraction which implied that material would be extracted from an area known variously as "Section 1" or "the Spit Bank" only as a last resort, so to speak, and possibly not at all. This area is particularly rich in the fish which provides a vital portion of the livelihood of the Applicants. 3. In fact, however, the Respondent is extracting material from the "Spit Bank" area at a relatively early phase in the sequence of their extraction programme, thereby posing an unnecessary threat to the livelihood of the Applicants because the same or equivalent material could be extracted in whole or in part, and in any event at a later stage in the operation, from elsewhere in the licensed area. 4. The operation actually being conducted is so different from that described in the E. I. S., that the Minister's licence is fatally flawed as it was procured by a misrepresentation to the effect either that the excavation would initially be carried out only in Section 1 and Section 3 and in Section 2, only if necessary, or alternatively to the effect that extraction would never be carried out in Section 2. 2. A second ground of challenge relies on the fact that information (in the form of additional borehole findings indicating that the originally intended sequence of extraction was less likely or unlikely to apply in practice) has come to light after the expiry of the statutory period during which objections and representations could be made by the public in response to the E. I. S.. The Applicants say that this information which came into the possession of the Third Parties was relevant to the Minister's decision, that he was aware of it or ought to have been aware of it and that, further, he ought to have considered it. His failure to consider this material invalidated the licence. 3. A third challenge relates to a letter from the Applicants objecting to the licence and submitted to the Minister after the aforesaid statutory time period for objection had expired. The Minister replied that because the period had elapsed he could not consider the material but ".... I have asked my officials to examine your letter in detail and to respond to the points you have made. I will also let you know what decision I come to when the application and reports are presented to me". (See Minister's letter of the 17th December, 1996). The Applicants say that the Minister had a duty to consider the contents of their letter, notwithstanding the expiry of the statutory objection period, and had power so to do under Section 19 of the Foreshore Act, 1933 . This section, they say, operated independently of the environmental impact assessment procedure and in the circumstances the failure of the Minister to facilitate the making of the objection under Section 19 invalidated the licence. THE STATUTORY PROVISIONS Section of the Foreshore Act, 1933 is in the following terms:- "Whenever the Minister proposes to make an order under this Act or an application is made to the Minister for the making of a lease or an order or the granting of a licence under this Act , the Minister may, if he so thinks fit, cause notice of such proposal or application to be published at such times and in such manner as he thinks proper, and may by such notice give to all persons interested an opportunity of making to the Minister objections and representations in respect of such order, lease or licence (as the case may be) and may include in such notice directions as to the time, manner and place in and at which such objections and representations may be made." 5. Section 19A of the Foreshore Act (inserted by Part III of the European Communities (Environmental Impact Assessment) Regulations, 1989) provides in part as follows:- "19A-(1) Notwithstanding Section 19 of this Act , a person who has submitted an environmental impact statement.... shall... publish in one or more newspapers... a notice..." 6. Section 19A goes on to provide the contents of the notice and a specific procedure for the making of objections and representations. 7. The notice published by the Minister in the present case referred to both Sections and 19A of the Act of 1933. 8. The licence granted by the Minister contained the following conditions:- 1. This licence shall remain in force from the 1st April, 1997 to the 31st December, 1997, except as hereinafter provided. 2. The licensee shall at all times during the continuance of this licence carry out the extraction works and in a proper manner to the satisfaction of the Minister and ensure that they will not be injurious to navigation, the adjacent lands or the public interest. 9. The licence provided for the payment of a lump sum and what are described as royalty payments. 10. The relevant regulations provide for an objection period of one month following publication of notice of the making of a licence application and in the present case this month expired on the 12th September, 1996. APPLICANTS' SUBMISSIONS 11. The Applicants submit that the Minister should have used his powers under Section to publish a notice and give the Applicants an opportunity to make objections and representations. Mr. John Hennessy, P. C., Secretary of the Cobh Fishermen's Association Limited, wrote to the Minister a detailed letter of objection dated the 3rd December, 1996 and in his reply of the 17th December, the Minister stated that he was advised that the letter could not properly be considered because the objection period had expired and undertook, nonetheless, to consult his officials and let Mr. Hennessy know what decision he came to when the application and reports were presented to him. The Minister had power, the Applicants submit, under Section 19 to publish a notice indicating a period for the making of objections and the Applicants' Counsel stresses that the introductory words of Section 19A, namely, "Notwithstanding Section 19 of this Act ....", indicate that the Minister's powers under Section 19 remain independent of and unrestricted by the provisions of Section 19A. In the circumstances he had a duty to exercise these powers and his failure to do so vitiated the grant of the licence. 12. Secondly, it is submitted that when the new information came into the hands of the Third Parties to the knowledge of the Minister in November 1996, the Minister should have known that this information was clearly relevant to his determination of the licence application and should have considered it and his failure to do so was a failure of his obligation in natural justice to the Applicants. 13. Reliance is placed on a number of case but in particular on the judgment of Carroll J. in Navan Tanker Services Limited, Applicant, and Meath County Council and Others, Respondents , (unreported: 13th December, 1996). The first respondent's decision refusing to appoint the applicant an authorised tester of light and heavy goods vehicles, was quashed on the grounds that the applicant "... was not told when he first mooted the application that there was no use in applying as there was already an adequate service being given. If he had been told, he could have confronted this approach". Reference was made to the doctrine of "legitimate expectation" in that the learned trial Judge held that the applicant "... had a legitimate expectation that (he) would be treated fairly and this included a right to be heard on the question of adequacy of supply before the County Manager took a decision on grounds of which it had no knowledge". 14. This decision is, in my view, clearly distinguishable from the present case: the applicant in the Navan Tanker Services Limited case had no knowledge of the relevant grounds. In the present case all the information before the Minister was available to the Applicants. There is nothing in the Navan Tanker Services Limited decision which would support the proposition that natural justice requires that the Minister in the present case should have called for and considered additional material which came to hand after the expiration of the relevant statutory period for objection. 15. Secondly, reliance is placed upon the unreported judgment of Keane J. (4th November, 1994) in John Michael Mulcahy, Applicant and the Minister for the Marine, Respondent and Another (Notice Party) . Reliance is placed especially on the following passage at page 25:- "However, in failing to furnish to the applicant or his solicitors the basic material on which he arrived at his own decision, including in particular the Environmental Impact Statement carried out on behalf of the company in February, 1992, he deprived the applicant of the opportunity of making any comments on that material. In the result, the case of the applicant against the granting of the licence was not fully heard by the minister in breach of the maxim audi alteram partem." 16. Again, it is clear that the E. I. S. was not made available to the applicant and this was the subject matter of the foregoing observations. This contrasts sharply with the present case where the Third Parties not only notified the Applicants of their application, but advised them through their independent consultant, Dr. John Bartlett, that an objection period was available to them and they were also furnished with a copy of the E. I. S.. Again, there is nothing in Mulcahy -v- Minister for the Marine which, in my view, would support the proposition that the Minister in the present case was obliged to have regard to information which came to hand after the expiration of the objection period. 17. Thirdly, the Applicants argue that the licence imposed a royalty payment which is the equivalent of a rent and that therefore the Minister was bound by Section 3 (4) of the Act of 1933 not to grant a licence "... without the sanction of the Minister for Finance" which was not obtained. 18. Fourthly, in response to the objection on the basis of lack of locus standi, the Applicants rely on the judgment of Morris J. in Lancefort Limited, Applicant, -v- An Bord Pleanala & Others, Respondents , (unreported: 6th June, 1997) where he held that a limited company had locus standi to make objections. In the course of that judgment Morris J. said:- "I am of the view that they have demonstrated their bona fide interest in these proceedings by the work and effort which they have given in the past to this project and I am satisfied of their commitment. I think that it would be improper to rely upon the rule of locus standi to deprive them of the opportunity of access to the Court and I believe that there are, in the words of Mr. Justice Henchy, weighty countervailing considerations justifying the departure from that rule." THE MINISTER'S SUBMISSIONS 19. Counsel for the Minister submitted as follows:- 1. In relation to locus standi, there is no evidence that the First named Applicant has demonstrated a bona fide interest by work and effort analogous to that referred to by Mr. Justice Morris in the Lancefort case. Futhermore, the Second named Applicant's boat licence relied upon, in fact refers to another party and contains a condition that requires it to be operated by the boat owner who is not the Second named Applicant. The Applicants fail to say how they will suffer irreparable loss apart from merely asserting this and alluding in a general sense to the value of the fishing affected by the licence. He also says that there are already fishing restrictions imposed by the Harbour Authority and the onus is on the Applicants to indicate a basis for assessing their alleged irreparable loss. The Applicants have failed to discharge this onus. 20. With regard to the point that the consent of the Minister for Finance was required, he refers to Section 2 (4) of the Act of 1933 which refers to the payment of both rent and royalty thereby clearly distinguishing between these two and also to Section 3 (5) which makes a similar distinction. Therefore, he submits, the reference in Section 3 (4) to rent means rent alone and does not include royalty. 21. Furthermore, rent should bear its ordinary meaning of payment in exchange for possession of property and there is no exclusive possession of the licensed area in the present case. Again, there could be no question of an annual payment (Section 3(4) makes reference to "rent or other annual payment") because the licence itself expires after eight months. 2. In relation to the information which came to hand after the expiration of the objection period, Counsel argues that the whole purpose of the E. I. A. procedure provisions would be defeated insofar as this provides certainty and specific time periods if, contrary to that purpose, the Minister had an obligation or indeed a power to reopen the objection/representation phase of the licence application procedure in the circumstances contended for by the Applicants. If this applied, the time for processing an application might never end and one could never be certain. There was no obligation on the Applicants to provide material to the Minster after the relevant period had expired. Under Section , the Minster had an absolute discretion to publish a notice allowing for objections because he was empowered so to do "... if he so thinks fit". A decision not to publish such a notice might only be challenged if it could be said to be irrational. No such case is being made in the present instance. There was no question of deliberate suppression or fraud on the part of the Applicants. Furthermore, under the terms of the licence, the Minister was entitled to be satisfied as to the method of extraction and in particular that this method did not damage the common-good. The interests of the Applicants were thus sufficiently protected. 3. In relation to the point that the E. I. S. indicated a specific sequence of extraction which was contrary to the sequence actually implemented, he submitted that the Minister was entitled to look at the E. I. S. as a whole. Reliance is placed by the Applicants on the following paragraph from page 11 of Volume II of IV in the E. I. S., namely:- "The lower harbour site is divided into two sections (1 and 2), as shown in figure 2.5. Extraction in the lower harbour will initially be from Section 1 . If sufficient suitable material is obtained from this area, there will be no extraction from Section 2 ." 22. The Minister was entitled to take into account, however, in addition, the statement on the same page that "the precise area dredged will depend on the actual material encountered". And also (from page 14) the statement that "the suitability of materials will be assessed at the source, i.e., during dredging and before transportation to site. In the event of unsuitable materials being encountered, these will be of limited volume and will be returned to the riverbed. The location of areas yielding unsuitable material will be recorded and avoided thereafter". There was nothing in the E. I. S. to specify that there would be no extraction from Section 2 . There was nothing to specify that Section 1 would be exhausted or practically exhausted before any extractions would occur in Section 2 . The E. I. S. indicated that the precise area dredged would depend on the actual material encountered and alluded, further, to the assessment of the suitability of materials during dredging. It is reading too much into the E. I. S. to assert that it implies necessarily a specific sequence or phasing or order of operation. There was, accordingly, no misrepresentation as alleged. SUBMISSIONS OF THE THIRD PARTIES 23. In addition to the foregoing, Counsel for the Third Parties emphasised that Dr. Bartlett had informed the Applicants of their right to become involved in the application procedure and had actually furnished them with a copy of the E. I. S.. Furthermore, his clients were entitled to rely on the statutory time frame for the making of objections which in this case expired on the 12th September, 1996. It was noteworthy that the publication notice in relation to the E. I. S. referred to both Sections 19 and 19A. 24. In relation to the discretion of the Court, account should be taken of the fact that the Applicants did not take advantage of the statutory period for making objections and their application amounted to an attempt to reopen that objection procedure. In relation to locus standi, the First Applicant had not established a track record or any activity or involvement which would establish a bona fide interest in the outcome of the proceedings. 25. The concerns of objectors were taken account of in the E. I. S. in a general way and Counsel referred to Mr. Scanlon's letter which was actually reproduced as an appendix to that document. 26. He further submitted that once the Minister had published notice under Section 19 , he had exhausted his discretion under that section. He distinguished Mulcahy -v- Minister for the Marine , pointing out that the Applicants had available to them the same material that was before the Minister which was not the situation in the Mulcahy case. The Minister must act in accordance with the law which was laid down in the E. I. A. regulations. 27. Even if it were conceded that the Minister had power to take into account the additional information (which he did not concede), it could not be said that his failure to do so was unreasonable. The E. I. S. did not support the contention that there was a specific phased programme of dredging and he made reference to the same portions of the E. I. S. as Counsel for the Minister. CONCLUSIONS Locus Standi 28. I am prepared to deal with this application on the basis that the Applicants have locus standi. I have doubts about this but I would be uneasy if I simply shut out the Applicants on this point. CONSENT OF THE MINISTER FOR FINANCE 29. I accept the point made that the Act of 1933 makes a distinction between rent and royalty and because there is no rent provided for in the licence, I do not accept that the consent of the Minister for Finance was required. FAILURE OF THE MINISTER TO CONSIDER THE POST APPLICATION INFORMATION 30. I do not think the Minister was obliged to consider this information and indeed I have doubts about his power to do so. 31. He had already published a notice under Section 19 of the Foreshore Act . He had a discretion to do so or not to do so depending on whether "he so (thought) fit" and I can see no warrant for holding that he was obliged to call for and consider additional material which came into the hands of the Third Parties after the statutory period for making objections had elapsed. 32. The E. I. A. period was mandatory and the Minister published a notice under Section and 19A. In those circumstances the Third Parties had as much, if not more, entitlement to expect that the Minister would proceed to process its application with reasonable dispatch as had the Applicants to expect that he would engage in a further round of publication and objections in relation to the new material. Indeed it may be that, having published one notice under Section 19 , the Minister had exhausted his power under that Section. 33. I can see no warrant, either, for holding that apart from the four corners of the statutory regime, the Minister had some additional extra-statutory obligation in fairness to the Applicants to reopen the closed phase of the application procedure or to duplicate it. On the contrary, to take that view would greatly diminish the object and value of the statutory procedures themselves. THE E. I. S. POINT 34. I do not consider that the E. I. S. has laid down a specific phasing for the carrying out of the dredging operation which is sacrosanct and which cannot be altered or modified in accordance with circumstances which come to light in the course of the dredging operation itself. Indeed this very concept is specifically alluded to at page 14 of Volume II of IV of the E. I. S. which states that:- "The suitability of materials will be assessed at the source, i.e. during dredging and before transportation to site". 35. Furthermore, I do not think that the sentence at page 11 relied upon by the Applicants - even if it were the only relevant material to be considered - establishes or warrants the phasing sequence contended for by the Applicants. I think it is reading too much into this paragraph to assign certainty to it. It says:- "If sufficient suitable material is obtained from this area, there would be no extraction from Section 2 ". 36. Not only does that not mean that there will be no extraction from Section 2 but it indicates, to my mind, that there is a degree of uncertainty about the amount of material in Section 1 . Furthermore, there is no clear or absolute commitment to any particular sequence apart from the assertion that extraction in the lower harbour will initially be from Section 1 . Even taken on its own, this paragraph on page 11 does not, in my view, import the particular sequencing or phasing of the operation contended for the Applicants, let alone warrant that there would be no extraction from Section 2 . This impression (i.e. of less than certainty) is strengthened when one considers the other paragraphs already referred to in the E. I. S.. 37. In the result the Applicants' case must be dismissed. 38. The Applicants did not avail themselves of the opportunity to object to the licence application even though they were furnished with a copy of the E. I. S. by the Third Parties consultant who advised them of their rights to object to incorporate the terms of Environmental Impact Statements in planning application cases. © 1997 Irish High Court BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII