The High Court has refused An Taisce leave to challenge the Aquaculture Licences Appeals Board’s rejection of its appeal over aquaculture licence decisions in Wexford Harbour. The challenge was filed more than two years after the Board’s decision, and the court declined to extend the three-month time limit.
Mr Justice Garrett Simons ruled that a decision rejecting an appeal as invalid is a “determination … on an appeal” under section 73 of the Fisheries (Amendment) Act 1997. The statutory judicial review procedure therefore applied. He also held that the section 73 time limit can be extended under Order 84, rule 21 of the Rules of the Superior Courts.
The dispute began after the Minister for Agriculture, Food and the Marine issued decisions on aquaculture licence applications for sites in Wexford Harbour in September 2019. An Taisce submitted an omnibus appeal, paying the fee for one appeal and arguing that the Appeals Board could treat multiple appeals as one. On 26 November 2019, the Board rejected the entire appeal as invalid because the fee was inadequate.
An Taisce first brought judicial review proceedings in December 2019, then discontinued them. In February 2020 it began separate proceedings against State parties, seeking a pre-emptive costs order or an indemnity for potential legal costs. That case resulted in a 2022 judgment confirming that an application for a pre-emptive costs order attracts costs protection. An Taisce filed the present proceedings on 5 May 2022.
The judge accepted that, in November 2019, there was considerable uncertainty about the scope of costs protection and said it was understandable that An Taisce wanted reassurance before risking substantial legal costs. But he found that An Taisce had failed to take a costs-neutral step: writing to the licence applicants to ask whether they would accept that costs protection applied. It also left those applicants out of the earlier indemnity proceedings. The judge said this delayed their notice of the legal challenge and denied them an opportunity to help resolve the costs issue promptly.
The judge noted that six licence applicants later indicated they would accept costs protection on a pragmatic basis. He said An Taisce could not rely on speculation about what their response might have been in 2019 when its failure to ask them had created that uncertainty.
The court refused leave because the proceedings were outside the statutory three-month limit and there was no basis to extend it. It did not determine the substantive challenge to the Board’s decision. The judge’s provisional view was that each party should bear its own costs; parties were given until 6 March 2024 to file submissions seeking a different costs order.