The High Court has allowed Salmon Watch Ireland CLG to seek cross-examination of two expert witnesses in its challenge to an aquaculture licence for a proposed salmon farm at Shot Head in Bantry Bay.
In an interlocutory judgment delivered on 16 March 2023, Mr Justice David Holland granted leave for the environmental group to issue a notice requiring Dr Ciar O’Toole, an adviser to the Aquaculture Licences Appeals Board (ALAB), and Dr Neil Bass, a marine and environmental biologist retained by MOWI, to attend for cross-examination.
The dispute concerns whether the farm’s nitrogen emissions could cause dissolved inorganic nitrogen (DIN) levels to exceed the 170 micrograms per litre standard. Salmon Watch says the assessment wrongly used “typical” modelled levels to represent a worst-case scenario. Its director John Murphy argued that adding a modelled maximum of 70 micrograms per litre to an ambient level of 125 would produce 195, above the limit.
Dr Bass and Dr O’Toole disputed that account. They supported the use of a 40-microgram figure from the modelling as the appropriate worst-case projection; added to the 125-microgram ambient level, that gives 165. ALAB had accepted the modelling and concluded that nutrient releases would not breach the standard.
Justice Holland said the competing expert opinions raised a dispute relevant to Salmon Watch’s pleaded arguments about irrationality, error of fact and inadequate reasons. Because Salmon Watch bears the burden of proof, the judge said cross-examination was the means by which it could seek to have that dispute resolved in its favour.
The permitted questioning is limited to whether “typical” DIN levels were properly used in a worst-case assessment of compliance, including whether the selected model outputs were appropriate and whether data informing the “Maximum Plume Envelope” should have been used instead. The judge said the parties would be heard on the precise form of the order and how the questioning would fit into the trial.
The ruling does not decide whether the licence was lawful, whether nitrogen levels will exceed the standard, or whether Salmon Watch’s arguments are correct. Justice Holland stressed that his discussion of the technical issues was provisional and should not be taken as accepting the group’s case. The broader judicial review was due to be tried jointly with two similar cases from 18 April 2023. Costs of the motion were left for further submissions; the judge said provisionally that Salmon Watch had succeeded and should receive its costs.