The High Court has continued a stay on a foreshore licence challenged by Ivan Toole and Golden Venture Fishing Limited, while allowing the licence’s metocean surveys using FLiDAR units and buoys to proceed. The order was made as part of an ongoing judicial review and does not determine whether the licence or its environmental assessment is lawful.
In a judgment delivered on 31 October 2023, Mr Justice Humphreys refused the opposing parties’ application to discharge the stay at this stage. He said it should normally remain in place unless it could be shown to be unnecessary to the level of certainty that would be required following a future finding that the appropriate assessment was flawed.
The judge gave the opposing parties liberty to apply for a further hearing on the stay, on assumptions favourable to the applicants. These include considering new scientific evidence and requiring the Minister to meet the appropriate assessment standard of excluding all reasonable scientific doubt about adverse effects on the integrity of a European site. The judgment said the Minister could first conduct a fresh assessment on those assumptions, but did not make that a legal requirement.
The exception for metocean surveys followed the evidence before the court. The developer’s affidavit described the proposed FLiDAR units and buoys as small-scale activities with limited physical disturbance. The applicants’ affidavit said surveys could cause disturbance through the presence of boats. The judge considered that evidence insufficiently detailed to establish material environmental harm from placing or maintaining the passive equipment, which he regarded as involving limited boat activity. He said this reflected the state of the evidence, not a principled difference between parts of the licence.
The court also ruled that the developer’s proposed wording for an amended licence condition complied with an earlier order of mandamus. The condition concerns coordination between licence holders to prevent temporal overlap in activities capable of having in-combination environmental effects. The court clarified that the mandamus order does not prevent a possible future order of certiorari, which remains a live remedy at least until after the Court of Justice of the European Union gives judgment.
The judgment did not decide whether the appropriate assessment was defective. It set out additional questions on EU law that the court proposed to refer, including how pending projects should be considered in environmental assessments and what evidence a court may consider when deciding whether to quash a consent. The parties were directed to file submissions on proposed answers within two weeks. Costs of this stage were adjourned.