The High Court has set aside its July 2019 judgment in a judicial review concerning a proposed kelp-harvesting licence in Bantry Bay, but refused the applicant’s request for a judgment on his challenge to a later monitoring approval.
In a written judgment delivered on 20 May 2020, Ms Justice Murphy found that BioAtlantis Aquamarine Limited’s foreshore licence application was a “relevant application” under the Foreshore Act. The Minister had a statutory duty to publish notice of the licence determination and tell the public how its validity could be challenged. Those notices were not published, so the licensing process remained incomplete and the 2014 licence was not operative or effective, the court held.
The applicant, John Casey, had sought judicial review of a 30 November 2017 ministerial approval of a baseline study and monitoring programme required by the licence. He argued that the approval raised issues under the Habitats Directive. The court did not decide that substantive challenge.
The judge concluded that the 2017 approval appeared to be an act covered by section 21B of the Foreshore Act, which required the challenge to be brought under that statutory procedure. Casey had brought a conventional judicial review under Order 84 instead, so the court found his application was not properly constituted. The court also held that, because the licensing process remained incomplete, it had no jurisdiction to determine the dispute; any decision on the monitoring approval would be nugatory in that context.
The judgment set aside the court’s ex tempore ruling of 29 July 2019 after BioAtlantis was given an opportunity to be heard on the jurisdiction issue. It refused Casey’s request to proceed to judgment on his application. The court also said no mandamus action lay at Casey’s suit to compel publication of the required notice; if the Minister publishes it, the applicant will have three months to seek leave for judicial review under the Act.
The court did not determine whether the separate 2011 ministerial approval in principle was itself a determination requiring publication, saying that question was unnecessary to its decision. Its ruling concerned the procedural status of the licensing process and the 2017 challenge, rather than the merits of whether kelp harvesting should be permitted.