High Court: Fishing company granted order quashing Minister’s decision to revoke aquaculture licence

About this case:

• Judgment:
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Ms Justice Marie Baker found that the impugned decision had not been made within the statutory time limit, and that the notice of this revocation did not contain a sufficient statement of the grounds on which the Minister was considering to enable representations

Background facts

The applicant, Murphy’s Irish Seafood Limited, is a limited liability company incorporated within the State whose principal activity is the operation of fish farms and fish hatcheries.

The application for judicial review related to the purported termination of the aquaculture licence held by Murphy’s in relation to the cultivation of salmon at sites in Bantry Bay, Co. Cork; one site an adult salmon site and the other a smolt site.

Murphy’s took an assignment of a licence granted to Cuan Baoi Seafarms Limited and the assignment was approved by the Minister for Agriculture, Food and the Marine with effect from 9th July 2009 to the 22nd April 2011.

Murphy’s applied under the statutory scheme to renew the licence, and by virtue of s. 19A(4) of the Fisheries (Amendment) Act 1997, inserted by s. 101(c) of the Sea-Fisheries and Maritime Jurisdiction Act 2006, an operator is entitled to continue the aquaculture process or operations pending the determination of an application to renew. Section 13(1)(a) of the Fisheries (Amendment) Act 1997 provides that the Minister shall endeavour to determine an application for a licence within four months from the date on which all requirements have been complied with.

One of the issues before the Court was that at the date of the hearing, the application for renewal had still not been determined.

In order to lawfully operate the aquaculture enterprise, Murphy’s had the benefit of a foreshore licence under the provisions of the Foreshore Act 1933. That licence is subject to strict conditions concerning, inter alia the placement of cages and the maintenance and upkeep of relevant equipment in a condition of repair “to the satisfaction of the Minister”, and so that its condition would not cause a hazard to navigation, the adjacent lands or the public interest.

Aftermath of storm in 2014

Following a catastrophic storm of hurricane force in February 2014, most of the fish stock amounting in total to 235,000 fish, and almost all of the aquaculture equipment on the site was destroyed.

Since that time, the damaged cages and equipment had been removed and one cage remaining has been upgraded; and the Court heard that there were no fish on site at the time of the hearing.

The damage caused by the storm was such that Murphy’s was de facto in breach of the conditions of its licence.

In July 2014 Murphy’s reached an agreement to facilitate the ongoing operation of the aquaculture process. The agreement provided for submission, on or before 31st July 2014, of a maintenance and recording programme in accordance with a Norwegian standard, furnishing of a report confirming the adequacy of the design of mooring ropes, collar and ground chain connections and/or confirming the adequacy of the design of net to collar conditions. The agreement also required upgrading works on polysteel ropes and mooring anchors to be completed and verified by 29th August 2014, and 1st October 2014 respectively.

The agreement also confirmed a broad provision by which the Minister “emphasised” that he required confirmation in writing by 1st October 2014:

“that the entire farm comprising sites T5/122 and T5/122A has been designed with skill, care, diligence and professional conduct reasonably to be expected from a designer with the qualifications and experience suitable for the design work involved.”

Following the making of this agreement, correspondence was entered into between Murphy’s and the Minister

The application for judicial review

Murphy’s Irish Seafood Limited sought an order by way of certiorari quashing the decision of the Minister to revoke the licence.

Murphy’s claimed that the decision communicated was void and ultra vires the Minister and/or was not effective to terminate the licence in that it was not made in accordance with the mandatory statutory provision for the termination of an aquaculture licence; was made without notice and proper procedure; failed to identify the reasons for which the licence was purported to be revoked; and was not done with the requisite 28-day notice provided under statute.

Conclusion

Ms Justice Marie Baker found that Murphy’s was not served with sufficient notice of the fact that the Minster had under consideration the revocation of its licence – as matter of statute the Minster was mandated to serve notice containing a sufficient statement of the grounds on which the Minister is considering revocation of the licence, and to do so within the context of the limited 28-day period within which representations are to be made and considered. This means that the notice has to be sufficiently robust and clear to enable representations within a 28-day period.

In all the circumstances, the Minister had not engaged with all of the matters in a sufficiently clear way to enable Murphy’s to know whether the Minister was or was not satisfied with the measures taken.

It was also not sufficiently clear from the correspondence why the Minister had come to the conclusion that Murphy’s was not compliant, given that a number of engagements of substance and inspections occurred on the site to which Murphy’s responded – at no point had these complaints crystallised or the responses been dealt with.

Accordingly, Ms Justice Marie Baker proposed making an order of certiorari quashing the decision of the Minister to revoke the licence.