The Court of Appeal has dismissed John Casey’s appeal over BioAtlantis Aquamarine Limited’s proposed mechanical harvesting of wild kelp in Bantry Bay, ruling that the activity did not require planning permission under the legislation considered in the case.
The judgment, delivered by Mr Justice Noonan on 11 October 2022, upheld the High Court’s dismissal of Casey’s application under section 160 of the Planning and Development Act 2000. He had sought an injunction to stop what he alleged was unauthorised development, as well as a declaration that the harvesting was development and was not exempted.
BioAtlantis holds a foreshore licence for harvesting kelp in five areas. Its proposal described using a vessel-mounted cutting and suction system, cutting kelp at least 25 centimetres above its holdfast without touching the seabed. The licensed areas cover about 1,868 acres in total. The Court of Appeal noted that the areas are outside European sites, and that the licence followed consultation with eight State bodies.
Casey argued that cutting the kelp would alter the seabed and amount to “works” under planning law. Alternatively, he argued that harvesting would be a material change in the seabed’s use, and that the areas adjoined Cork County Council’s functional area. BioAtlantis and the Minister argued that the licensed, waterborne activity was not development under the Planning and Development Act and that the required connection to the council’s area had not been proved.
The Court of Appeal concluded that harvesting kelp did not alter the seabed itself: the cutting affected kelp growing above it, and the harvesting method made no contact with the seabed. It also held that kelp beds had no existing “use” in planning terms and that the harvesting was transient, so it did not amount to a material change of use. The court therefore found the activity was neither “works” nor a material change in the use of land under the Act.
The court gave a separate reason the application could not succeed. Casey had not established where the relevant high water mark lay, or that the licensed harvesting areas were within or adjoining Cork County Council’s functional area. The court said the burden of proving those matters rested on him.
The court dismissed the appeal. It gave a provisional view that BioAtlantis was entitled to its costs, with Casey allowed 14 days to seek a short further hearing on costs. The judgment noted that the Maritime Area Planning Act 2021 had since been enacted, but its substantive provisions had not yet commenced; the court did not decide the case under that later regime.