The Supreme Court has sent John Casey’s judicial review back to the High Court, ruling that the case was properly brought and that a failure to publish notice of a foreshore licence did not invalidate it.
The case concerns a 2017 ministerial approval of a baseline study and monitoring programme required before BioAtlantis Aquamarine Limited could begin mechanically harvesting kelp under a licence for an area of Bantry Bay, County Cork. Casey challenged that approval, arguing that an appropriate assessment or screening was required. The Supreme Court did not decide the merits of that environmental challenge.
The licence was granted in 2014 for a ten-year term beginning on 1 January 2014. A condition required BioAtlantis to submit a monitoring plan and baseline study for departmental approval before harvesting began. The Minister for State approved them on 30 November 2017.
In the High Court, the judge raised a separate issue: whether the Minister had to publish notice of the licence decision in Iris Oifigiúil and local newspapers. Neither party had pleaded that issue. The judge concluded that publication was required and that the licence was not validly granted, then declined to decide Casey’s challenge to the monitoring approval.
The Supreme Court held that the High Court judge should not have decided the unpleaded issue or declined jurisdiction on that basis. It said the judicial review must be determined on the case the parties brought, and the point about publication did not form part of their pleaded dispute.
The Supreme Court also rejected the view that Casey’s application was improperly constituted because it was brought under Order 84 of the Rules of the Superior Courts rather than as a separate statutory procedure under section 21B of the Foreshore Act. The Court said section 21B incorporates the ordinary judicial review procedure and does not create a distinct form of review.
On the publication question, the Supreme Court agreed that section 21A required publication of decisions on foreshore licence applications. But it ruled that the Act did not make publication a condition for a licence to take effect. A failure to publish may be relevant to an application to extend the time for a judicial review challenge, the Court said; it does not itself invalidate the licence.
The Supreme Court remitted the judicial review to the High Court for a further hearing and case management. The decision leaves Casey’s challenge to the 2017 approval unresolved.