Staying Negative Licensing Decisions to Preserve Statutory Continuation Rights:
Commentary on TL Mussels Ltd v The Aquaculture Licences Appeals Board [2025] IEHC 670

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1. Introduction

This judgment of Holland J in the High Court of Ireland concerns an interlocutory application for a stay in judicial review proceedings arising from the refusal to renew aquaculture licences for bottom mussel cultivation in Wexford Harbour. The applicant, TL Mussels Ltd (“TLM”), sought to suspend the effect of decisions of the Aquaculture Licences Appeals Board (“ALAB”) refusing licence renewals, so that it could continue farming under the statutory “continuation” mechanism in s.19A(4) of the Fisheries (Amendment) Act 1997 (“the 1997 Act”) pending trial.

The case sits at the intersection of:

• Irish administrative law on interlocutory relief in judicial review (the Okunade test and its progeny);
• EU environmental law, particularly:
  • Article 6(2) and (3) of the Habitats Directive (Directive 92/43/EEC),
  • the Birds Directive (Directive 2009/147/EC), and
  • the domestic Habitats Regulations 2011; and
• The statutory aquaculture licensing scheme under the 1997 Act, including:
• Section 8(3), which protects several fisheries and other historic rights on the foreshore; and
• Section 19A(4), which allows continued operation after licence expiry where a renewal application is pending.

The key feature – and the reason the decision is important – is that the Court:

• Affirms that the High Court has jurisdiction to stay a negative administrative decision (here, refusal of renewals) where the decision’s “effect” is to terminate a statutory continuation right; and
• Applies Okunade in a nuanced way in an environmental context, weighing:
  • Risk to European Sites identified at AA screening stage,
  • The State’s own long delay and failure to assemble data for Appropriate Assessment (“AA”),
  • The applicant’s economic position and the (likely) irrecoverability of public law damages.

Along the way, the judgment raises (but does not finally resolve) major questions about:

• The scope of s.8(3) and the legal status of several fisheries in the face of EU environmental obligations; and
• The extent to which the State can rely on “data gaps” that it has failed to fill, to justify refusing licences on Habitats grounds.

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2. Summary of the Judgment

2.1 Procedural posture and relief sought

TLM already had leave (on “substantial grounds” under s.73 of the 1997 Act) to seek judicial review of ALAB’s decisions of 21 March 2025 refusing renewals of several bottom mussel cultivation licences covering approximately 100 hectares in Wexford Harbour. TLM applied for:

• A stay of ALAB’s decisions pending the determination of the judicial review, under:
  • s.73 of the 1997 Act (which requires JR under Order 84 RSC), and
  • Order 84, r.20(8) RSC (which empowers the court to grant a stay or other interim relief once leave is granted).

The practical objective of the stay was crucial: if ALAB’s refusals were treated as having no effect pending trial, s.19A(4) would again apply, allowing TLM to continue operating on the terms of the expired licences “pending the decision on the renewal application”. In other words, a stay had the potential to preserve TLM’s business in the short to medium term.

ALAB and the Minister for Agriculture, Food and the Marine opposed the stay on two fronts:

• Jurisdictional objection: that the Court lacked power to grant a stay with the claimed effect, because there was “nothing to stay” (the decisions being refusals); and
• Substantive objection: that, applying Okunade and EU Habitats law (risk to European Sites, precautionary principle), the balance of justice required refusing the stay.

No other notice party meaningfully contested the stay.

2.2 Habitats context and ALAB’s unusual approach

The licences concerned bottom mussel cultivation in and around several European Sites (SACs and SPAs) in Wexford Harbour. It was common case that:

• ALAB’s AA screening correctly concluded that the proposed renewal could not be authorised without a full AA, because likely significant effects on European Sites could not be excluded; but
• ALAB did not carry out an AA, nor require a Natura Impact Statement (“NIS”) from TLM.

Instead, ALAB refused the renewals outright on the basis of the screening outcome, coupled with:

• Serious “data gaps” preventing AA from being lawfully completed “without gaps or lacunae” to the requisite standard; and
• The view that:
  • Collecting the necessary data and completing AA would take up to four years;
  • During that period TLM could continue to farm under s.19A(4), exposing European Sites to risk; and
  • It would impose “significant resources” and “state agency input” (notably NPWS, Marine Institute) which ALAB considered beyond its remit or feasible pathway.

This refusal based solely on AA screening – without moving to AA – was described by the applicant’s expert ecologist, Ms Marie-Louise Heffernan, as unprecedented in 30 years of practice. Holland J accepts that such a course is highly unorthodox, though not necessarily ipso iure unlawful (that awaits trial).

2.3 Jurisdiction to grant a stay

Rejecting the State’s jurisdictional objection, the Court holds that:

• The concept of a “stay” is broad, per Okunade and PJ v Minister for Justice: it is an order with “suspensive effect” that deprives a measure of legal effect pending determination of proceedings.
• While a stay on a purely negative decision may often be meaningless (e.g. a refusal of an injunction), licence renewals under a statutory continuation regime (s.19A(4)) are different:
  • There is a pre-existing statutory entitlement to continue trading pending decision.
  • A flawed refusal removes that entitlement.
  • A stay can meaningfully suspend the effect of that refusal, thereby preserving the continuation right.
• Section 73 of the 1997 Act, by mandating JR under Order 84 RSC, implicitly incorporates the High Court’s general power under O.84, r.20(8) to grant stays: the possibility of a stay is “baked into” the statutory review process.
• The Oireachtas is presumed to know the law; nothing in s.19A(4) indicates an intention to carve out an exception to the ordinary JR stay jurisdiction.
• To deny the Court jurisdiction to grant such a stay in a case where business survival is at stake could render judicial review an ineffective remedy, contrary to:
  • Article 19 TEU and Article 47 of the Charter (CFREU), and
  • Domestic principles that effective relief must be available against unlawful administrative action.

Accordingly, the Court confirms that it does have jurisdiction to grant a stay which, in practical terms, reinstates the operation of s.19A(4) pending trial. The remaining question is whether, applying Okunade, it should do so.

2.4 Application of the Okunade test

The Court reviews Okunade and subsequent authorities in detail and distils the following framework:

1. The applicant must first show an arguable case. Here, that threshold is more than met: leave was granted on “substantial grounds” under s.73.
2. The core enquiry then is: where does the greatest risk of injustice lie?
   • This involves weighing:
     • The presumption of validity of the impugned decision and the public interest in orderly implementation of public law measures;
     • Any public interest in the operation of the relevant statutory scheme and in enforcement of EU environmental law;
     • The consequences for the applicant of having to comply with the impugned measure now, if it is later found unlawful;
     • The (in)adequacy of damages; and
     • Where appropriate, the strength or weakness of the applicant’s case (with caution against prejudging the merits).
   • There is often no fully satisfactory solution; the Court must adopt a “nuanced” approach that “minimises the overall risk of injustice… as best it can”.

Applying this, Holland J undertakes a careful, fact-sensitive balancing exercise, covering:

• The State’s long delay and inaction since 2016 in addressing known data gaps;
• The novel and contestable use of AA screening as a final basis for refusal without AA;
• The environmental risk pending trial;
• The impact on TLM’s business and the practical irrecoverability of any financial losses in public law.

2.5 Key findings underpinning the grant of the stay

The Court ultimately grants the stay, enabling TLM to continue farming under s.19A(4) “pending further order of the Court” and subject to liberty to apply. The key elements in that conclusion include:

• Arguable (indeed substantial) case:
  • On the alleged unlawfulness of refusing renewals based on AA screening alone, without AA;
  • On the alleged failure to require or consider an NIS despite TLM’s willingness to provide one;
  • On the s.8(3) “several fishery” issue (though its strength cannot be assessed at this stage).
• State delay and responsibility for data gaps:
  • The Marine Institute’s 2016 report clearly indicated that:
    • Proper AA could not be completed due to severe data gaps; and
    • A substantial research programme was needed.
  • Yet neither NPWS nor the Marine Institute appears to have implemented that programme or explained the omission.
  • ALAB did not meaningfully grapple with this until late 2021 and did not have its ornithological advisor’s key report until mid‑2023, with decisions only in March 2025.
  • Against this background, ALAB’s reliance on the “burden” on State agencies of providing data as a reason not to proceed to AA is at least questionable and, for purposes of the stay, weighs against the State.
• Environmental risk is real but must be seen in context:
  • Given the AA screening outcome and the precautionary principle, risk to European Sites pending trial must be assumed – ALAB and the Minister do not need to prove actual damage.
  • However, the same risk has been tolerated for many years:
    • Licences were granted in 2012; renewals applied for in 2018;
    • ALAB took almost 5½ years to decide the appeals; and
    • The State has not produced evidence that the incremental risk of continuing operations for the (comparatively short) period until trial is significant, relative to the already-accumulated exposure.
  • The Court places some weight on this asymmetry: the State’s “newfound” anxiety about risk cannot be divorced from its earlier tolerance and delay.
• Baseline and status quo for future AA:
  • There is a credible ecological argument (from Ms Heffernan) that maintaining current mussel farming during data collection may:
    • Better reflect the real, longstanding ecological status quo; and
    • Assist in determining whether and how mussel cultivation interacts with bird populations and other features.
  • This is not definitive – others might disagree – but it is sufficiently plausible to carry some weight in favour of preserving the status quo during what is expected to be a short, tightly managed litigation period.
• Economic impact and inadequacy of damages:
  • The financial evidence is imperfect and does not prove a clear risk of insolvency, but:
    • It credibly indicates substantial financial loss if operations must cease pending trial; and
    • There is a reasonable likelihood that such loss would be irrecoverable, given the restrictive approach to damages in public law (Glencar, Cromane, Barlow).
  • The Court recognises that:
    • Ordinarily, pure financial loss can be compensated and does not justify suspending public measures, especially in environmental cases (Zuckerfabrik, Dowling, Okunade); but
    • Here, the irrecoverability of damages in public law is itself a factor that may weigh somewhat in favour of a stay, provided the anticipated loss is serious.
• Time-limit defence and likely duration of the stay:
  • ALAB intends to argue that the JR is out of time under s.73, because:
    • Though the leave docket was filed within three months, the notice of motion issued just after the three‑month limit; and
    • s.73(2) requires an application “by notice of motion” within three months.
  • This time-limit point appears serious and suitable for early, modular determination.
  • If upheld, the JR will terminate relatively quickly, sharply limiting the duration and impact of the stay.

Having weighed all factors, the Court concludes that the course that best minimises overall injustice is to grant the stay, enabling TLM to continue mussel cultivation under the former licence terms and s.19A(4), subject to liberty to apply and to a duty of expedition on all parties.

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3. Precedents and Authorities Cited

3.1 Stays and interim relief in public law (Okunade and progeny)

• Okunade v Minister for Justice [2012] 3 IR 152
  • Fundamental authority on interim relief in public law.
  • Established the now-familiar two-stage test:
    1. Argeable case / substantial grounds.
    2. Where does the greatest risk of injustice lie, considering:
       • Presumption of validity and orderly implementation of public decisions;
       • Public interest in the relevant scheme;
       • Particular impacts on the applicant;
       • Adequacy of damages; and
       • Strength of case, with caution.
  • Emphasised that the court works with incomplete information and that any interim regime inevitably risks injustice; the task is to minimise that risk.
• MD v Board of Management of a Secondary School [2024] IESC 11 and Chain Wen Wei v Minister for Justice [2024] IESC 58
  • Reinforce that:
    • There is no automatic right to a stay in JR; such orders must not be granted “reflexively”;
    • The validity and effectiveness of public law decisions until set aside is itself a component of the rule of law; but
    • There will often be “compelling considerations going the other way” and many cases where a stay is appropriate after careful balancing.
• Krikke v Barranafaddock Sustainability Electricity [2020] IESC 42
  • Supreme Court emphasised difficulty of the stay decision in environmental and planning contexts.
  • Accepted that financial loss to a developer and irrecoverability of such loss if a stay is refused are relevant, but cautioned against giving them “too much weight”, especially where doing so would permit profit from unauthorised development.
• Environmental Protection Agency v Harte Peat [2022] IECA 276
  • Court of Appeal refused a stay on a High Court injunction restraining unlawful peat extraction.
  • Key points:
    • Environmental damage (to Annex I raised bog) was “utterly irreversible” and almost certain absent enforcement;
    • The High Court orders followed a full trial, which carried significant weight;
    • The applicant’s financial loss was largely deferred (peat could later be extracted) rather than lost forever.
  • Harte Peat is relied on by the State here, but Holland J distinguishes it on multiple grounds (see below).
• Jennings v An Bord Pleanála [2022] IEHC 11 and Toole v Minister for Housing [2023] IEHC 263, 592
  • Apply Okunade in environmental contexts, confirming:
    • No special stay test for environmental cases, but EU principles (effectiveness, precautionary principle) are part of the balancing;
    • In challenges to permissions alleged to breach AA/EIA, a stay normally favours environmental protection, since development carries risk of irreversible harm.
  • In Toole, Humphreys J notes that in environmental cases, the precautionary principle tends to favour maintaining a stay on a permission where AA is plausibly flawed.

3.2 EU law: Effective remedy and interim protection

• Zuckerfabrik (Joined Cases C‑143/88 & C‑92/89)
  • CJEU held that financial harm is in principle reparable and usually not “irreparable”, but courts must examine whether, in the particular case, refusal of suspension would cause harm that could not be made good if the measure is later invalidated.
• Dowling v Minister for Finance [2013] 4 IR 576
  • Irish Supreme Court applied Zuckerfabrik, emphasising that if damages are truly an adequate remedy then there is no “serious injustice” warranting interim suspension.
  • But “can” be compensated means realistically compensable, not merely theoretically.
• Article 19 TEU, Article 47 CFREU
  • Guarantee the right to an effective remedy before a tribunal for breaches of EU-law rights.
  • Holland J uses these provisions to support a robust conception of interim relief where, absent a stay, judicial review would be practically meaningless (e.g. business collapses before trial).

3.3 Habitats and Birds law: AA screening, AA, and positive obligations

• Waddenzee (C‑127/02) and Sweetman (C‑258/11)
  • Set the fundamental standard for AA:
    • No project may be authorised unless the competent authority, “beyond reasonable scientific doubt”, can exclude adverse effects on the integrity of the site (individually or in combination).
    • AA must contain “complete, precise and definitive” findings and conclusions.
  • Sharpston AG in Sweetman famously describes screening as answering “should we bother to check?” – i.e. a trigger for AA, not a final basis for refusal.
• Habitats Regulations 2011, reg. 42(6)–(8)
  • Faithfully transpose the screening logic of Article 6(3):
    • If likely significant effects can be excluded, AA is not required;
    • If they cannot be excluded, AA is required.
  • They do not envisage refusal of consent on the basis of screening alone, although such a refusal does in fact avoid environmental harm.
• Commission guidance (2021/C 437/01)
  • Reinforces that screening is a gateway to AA or a confirmation that Article 6(3) constraints do not apply; it does not itself substitute for AA.
• Commission v Ireland (Irish Wild Birds case) C‑418/04
  • Found Ireland in breach of Article 6(3) as regards aquaculture and birds, including inadequate data and assessment.
  • Relevant background: by 2016 the State was on clear notice that robust data and assessment were needed for aquaculture in or near SPAs.
• Eco Advocacy C‑721/21 and Toole
  • Confirm that, under the precautionary principle, a “risk is present if it cannot be ruled out” on the basis of objective information.
• European Commission v Ireland C‑444/21
  • Reiterates the State’s positive obligations:
    • To set precise and effective conservation objectives and measures for each European Site;
    • To implement proactive measures to maintain or restore habitats and species to favourable conservation status.
  • Implies a substantial data-gathering duty on the State, especially where an ongoing activity is a known potential pressure.

3.4 Property and licensing: several fisheries and s.8(3)

• Section 8(3) of the 1997 Act
  • Provides that an aquaculture licence “shall not be construed as taking away or abridging” any pre‑existing right on the foreshore enjoyed under charter, letters patent, prescription, immemorial usage, or right of several fishery, without the holder’s consent.
  • The parties dispute how this interacts with:
    • ALAB’s power to refuse licences to the owner of a several fishery; and
    • EU law, particularly the Habitats Directive.
• Lett & Co Ltd v Wexford Borough Council [2012] 2 IR 198
  • Earlier litigation involving TLM’s predecessor, Lett.
  • Clarke J observed that Lett would “as a matter of virtual certainty” have obtained licences but for an exclusion zone around a wastewater outfall.
  • However, that case was decided on legitimate expectation and compensation, not on recognition of a several fishery.
• Loose v Lynn Shellfish [2017] AC 599 (UKSC)
  • Discusses the nature and scope of prescriptive several fisheries, and the principle that the right is generally defined by the historic use.
  • Raises questions (left open here) about whether a historic mussel several fishery could be switched to other species.

3.5 Damages in public law

• Glencar Exploration [2002] 1 IR 84, Cromane Seafoods [2017] 1 IR 119, Barlow v Minister [2025] IESC 14
  • Illustrate the restrictive conditions for recovering damages in judicial review for unlawful administrative action.
  • Holland J uses these as background for his view that damages are often effectively unavailable even where decisions are quashed.
• Meade v Minister for Agriculture [2010] IEHC 105
  • Laffoy J held that a court may treat damages as inadequate where there is credible evidence of a real risk of insolvency, supported by proper financial data.
• Fitzpatrick v Minister for Agriculture [2018] IEHC 77
  • Refused an injunction suspending a Nephrops fishery closure despite serious financial impact on the applicant.
  • Ní Raifeartaigh J queried how adequacy of damages should be integrated into the Okunade test in public law cases, where damages are legally difficult to obtain.
  • She mooted – but did not adopt – the possibility that irrecoverability of damages might in some cases weigh in favour of interim relief.

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4. Legal Reasoning in Depth

4.1 Jurisdiction to stay a “negative” decision that terminates a continuation right

A central legal point is whether the High Court can stay a refusal of a licence renewal where that refusal has the collateral effect of ending a statutory continuation regime (s.19A(4)). The State argued that:

• A stay operates on a “measure” that is being implemented;
• A refusal is negative, so there is “nothing to stay”; and
• In any event, s.19A(4) automatically ceases upon decision, and the Court cannot revive it by stay.

Holland J rejects this. He accepts Clarke J’s dicta in Okunade that a bare refusal is often not susceptible to a meaningful stay, but distinguishes the situation here:

• Where a statutory scheme:
  • Creates a right to continue operating pending a renewal decision; and
  • That right is extinguished by the adverse decision;
• A stay can operate on the legal effect of the decision, i.e. the termination of the continuation right.

He makes three key points:

1. “Effect” is as relevant as “existence”: The distinction between whether a decision has been “made” and whether it has “effect” is artificial in this context. The practical loss of s.19A(4) is an effect of ALAB’s decision and is susceptible to suspension.
2. Legislative context: s.73 of the 1997 Act requires challenges to ALAB decisions to proceed by JR under O.84 RSC. O.84, r.20(8) expressly empowers the Court to grant stays in certiorari-type cases. The legislature, presumed to know this, did not carve out an exception.
3. Right to effective remedy: To hold otherwise could lead to situations where the business is destroyed before trial, nullifying the practical value of JR. This risks violating EU and domestic guarantees of an effective remedy.

This is an important clarification for all licensing regimes with continuation clauses (e.g. planning, environmental or other regulatory schemes): a refusal of renewal is not immune from suspension merely because it is “negative” in form if it has significant operative effects on existing lawful activity.

4.2 AA screening versus AA: the orthodoxy and ALAB’s departure

The judgment contains a detailed exposition of the function of AA screening:

• Screening answers a single question: should we do AA?
• If likely significant effects cannot be excluded, AA must be done;
• Neither the Habitats Regulations nor Commission guidance envisage a competent authority:
  • Stopping at screening; and
  • Using a negative screening outcome as the conclusive basis for refusing consent on Habitats grounds (other than as a prelude to AA).

The Court recognises that, in practice, refusing at screening does avoid environmental harm and thus is not contrary in outcome to Article 6(3). But it is procedurally unorthodox and potentially unlawful, particularly where:

• The authority refuses to require an NIS or otherwise move to AA despite being offered one by the applicant; and
• The practical reason is difficulty or burden on State agencies in supplying data which they arguably had a duty to gather anyway under Article 6(2).

Holland J does not determine the legality of ALAB’s approach – that is for trial – but he treats the novelty and arguable unlawfulness of relying on screening alone as a factor strengthening TLM’s case at the interlocutory stage.

4.3 The State’s positive obligations and the “data gap” defence

One of the most significant aspects of the reasoning is Holland J’s engagement with the “data gaps” ALAB and the State invoked. In essence:

• The Marine Institute’s 2016 report identified serious potential impacts of bottom mussel culture on SPA bird species and found the then-available data insufficient to complete a proper AA, particularly as to:
  • Distribution, behaviour and trends of key bird species;
  • Cumulative effects with other activities.
• It recommended a substantial programme of research and monitoring to remedy these gaps.
• Subsequent expert reports (KRC, 2023 and 2024) essentially restated that:
  • Those gaps remained largely unaddressed; and
  • An AA could not meet the Waddenzee standard without a multi‑year data collection exercise.

ALAB cited the burden of this multi-year data collection – and its reliance on NPWS, Marine Institute etc. – as a reason not to proceed to AA. Holland J interrogates this:

• Under Article 6(2) and (3) (and related Birds Directive obligations), the State must:
  • Maintain or restore favourable conservation status;
  • Set and implement site-specific conservation objectives and measures;
  • Prevent deterioration and significant disturbance; and
  • Monitor threats, including long-established activities such as aquaculture.
• These duties necessarily require substantial data collection on species, habitats, pressures and trends, especially where an ongoing, licensed activity has been identified as a likely significant impact.
• Given:
  • The 2007 Irish Wild Birds infringement judgment; and
  • The 2016 Marine Institute report itself;
  it is “difficult to see” how, by 2025, the State could legitimately treat the burden of data collection as a factor weighing against undertaking AA in Wexford Harbour.

For the purposes of the stay, this leads to an important interim conclusion:

Where data gaps concern information that the State was already obliged to gather under its positive obligations, the State’s failure to collect that data cannot, without more, be treated as a legitimate factor against conducting AA or against allowing an applicant the opportunity to generate an NIS.

That conclusion underpins the Court’s sense that the State, not TLM, bears the “preponderance” of responsibility for any risk to European Sites arising from continued mussel farming since at least 2016.

4.4 Environmental risk during the stay: precaution, proportionality and history

The Court accepts, consistent with Eco Advocacy and Toole, that:

• Given the AA screening outcome and the acknowledged data deficits, “risk must be assumed” in the strict Habitats sense: it cannot be excluded beyond reasonable scientific doubt that adverse effects occur.
• No threshold requires the State to prove that irreversible damage will ensue; the mere existence of risk is generally a weighty factor.

However, Holland J insists that risk must be assessed in its temporal and institutional context:

• The same risk has existed since at least the designation of the European Sites and certainly since the Marine Institute’s 2016 analysis.
• During that period:
  • Licences were granted and renewed;
  • TLM operated in accordance with those licences;
  • No enforcement or protective measures appear to have been taken specifically at TLM’s expense; and
  • NPWS and the Marine Institute did not proffer evidence or submissions on risk in the stay application despite being well placed to do so.
• ALAB and the Minister tolerated TLM’s continued operations for seven years post‑renewal application, yet now oppose a relatively short extension pending a tightly managed JR.

This history allows Holland J to attach some weight to the State’s prior acquiescence and delay when balancing risks:

• He characterises the “we are where we are” argument as overly simplistic where:
  • The State bears at least some responsibility for the current data deficit; and
  • The incremental risk over a short stay period may be small, compared with the long period of tolerated operation.
• He also notes the absence of evidence that the incremental risk pending trial would materially worsen any necessary remedial burden the State may later face under Article 6(2), which must in any event address impacts “since completion” of the project.

4.5 Economic impact and the role of damages in the balance of justice

Holland J’s treatment of damages is nuanced and arguably marks a modest but important development in the Irish approach to adequacy of damages in public law:

• He recognises the orthodox position (from Zuckerfabrik, Dowling, Okunade) that:
  • Purely financial loss is generally reparable and does not, in itself, justify suspending public measures; and
  • In public law, damages are “unlikely to be a significant feature” in interim relief because they are rarely recoverable.
• However, he reasons that:
  • If public law damages are in practice irrecoverable even when a decision is quashed, then:
  • Preventing serious losses ab initio by granting a stay may be the only way to avoid irreparable injustice;
  • This irrecoverability can therefore, in some cases, itself weigh in favour of a stay, provided that:
    • The anticipated loss is serious and non-trivial; and
    • The other factors (environmental risk, public interest, etc.) do not strongly outweigh it.

He draws support from:

• O’Malley J’s observations in Krikke, that the fact a developer would not be compensated for losses if an injunction stands is relevant (though outweighed there by other factors); and
• Ní Raifeartaigh J’s thought experiment in Fitzpatrick about a “Catch‑22” where State agencies resist interim relief on the premise of damages, only to then resist damages by relying on Glencar.

Here, the financial evidence does not satisfy the strict Meade standard for proving near‑certain insolvency. But Holland J:

• Accepts that:
  • There would be significant (though not precisely quantified) financial loss from closure of 100 hectares of mussel beds;
  • The longer beds remain unmanaged, the more their productive capacity is likely to degrade; and
  • Restoration will require time and cost, extending loss beyond mere missed harvest during the closure period.
• Considers it “difficult to avoid” the inference that these losses, if they materialise and the JR succeeds, will be effectively irrecoverable in law.

On that basis, and in the specific factual context of long‑standing licensed aquaculture rather than new or unlawful development, he treats the inadequacy of damages as a factor modestly favouring a stay.

4.6 Distinguishing Harte Peat and Krikke

Both sides understandably relied heavily on Harte Peat and Krikke. Holland J distinguishes them on multiple grounds:

• Nature of the activity and its lawfulness:
  • Harte Peat concerned peat extraction from an Annex I raised bog, long found unlawful and subject to enforcement since 2013;
  • Krikke concerned a wind farm operating without any valid permission or AA;
  • In contrast, TLM’s activity has for many years been lawfully licensed, and its continuation pending renewal is expressly contemplated by statute (s.19A(4)).
• Procedural posture:
  • Harte Peat and Krikke involved stays pending appeal from final High Court injunctions made after full trials, which is a weighty factor in favour of enforcement;
  • TLM’s case involves an interlocutory stay pending first instance JR, where the merits are wholly undetermined.
• Environmental impact:
  • In Harte Peat, ongoing extraction would continue “utterly irreversible” loss of a habitat that takes millennia to form, with knock-on effects below;
  • In Krikke, the harm from operating an unauthorised wind farm was treated as serious and directly in breach of EU law;
  • Here, while risk exists, its incremental dimension over the stay period is unclear and the State’s long tolerance of the same activity weakens the force of the “urgent enforcement” argument.
• State conduct and delay:
  • In Harte Peat, the EPA had been actively pursuing enforcement; delay was modest relative to the present saga;
  • In TLM’s case, the State’s delay and failure to address known data gaps since 2016 is central to the equities.

Overall, Harte Peat is treated as an important, but not determinative, analogy. It underlines the high weight that can attach to environmental protection, but it does not impose a rule that environmental considerations invariably trump all other factors in stay applications.

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5. Complex Concepts Simplified

5.1 Appropriate Assessment (AA) and AA screening

Under Article 6(3) of the Habitats Directive:

• Any plan or project not directly connected with site management but likely to have a significant effect on a European Site must be subject to AA.
• The competent authority can only authorise the project if, from the AA, it is certain (beyond reasonable scientific doubt) that the project will not adversely affect the integrity of the site, alone or in combination with other plans or projects.

The process has two main stages:

1. Screening:
   • Preliminary check based on available information.
   • Question: can we exclude likely significant effects?
   • If yes → no AA required; if no → AA is mandatory.
2. AA proper:
   • In-depth, science-based assessment using complete and precise data.
   • Can consider mitigation measures.
   • Must address cumulative effects.
   • Outcome: either:
     • Adverse effects can be excluded → consent may be granted (subject to other law); or
     • Adverse effects cannot be excluded → consent must be refused unless Article 6(4) derogation tests are met (imperative reasons of overriding public interest, no alternatives, compensatory measures).

In TL Mussels, ALAB accepted that screening pointed unmistakably to the need for AA, yet refused licences without doing AA – an unorthodox use of screening as a final filter.

5.2 Section 19A(4): statutory continuation right

Section 19A(4) of the 1997 Act provides that where:

• A licensee applies to renew an aquaculture licence before it expires; then
• “Notwithstanding the expiration of that licence”, the licensee is entitled to continue the authorised aquaculture on the same terms pending the decision on the renewal application.

Functionally, this:

• Prevents a “gap” or forced shutdown while the administration takes time to process renewals;
• Protects established operations from bureaucratic delay; but
• Ceases once a renewal is refused – unless the refusal is later quashed, or (as here) its effect is stayed pending JR.

5.3 Several fisheries and s.8(3)

A “several fishery” is a private right to carry on exclusive fishing for a particular species in a defined area of the foreshore or seabed, traditionally arising under charter, grant or prescription (long usage). It is distinct from:

• The public right to fish in tidal waters; and
• A modern statutory licence, which is regulatory rather than proprietary.

Section 8(3) of the 1997 Act says that an aquaculture licence:

“shall not be construed as taking away or abridging” particular pre-existing rights (including rights of several fishery) without the holder’s consent.

TLM claims a prescriptive several fishery (using “lost modern grant” theory) over its beds and argues that s.8(3):

• Effectively “grandfathers” its property rights;
• Prevents ALAB from refusing all mussel cultivation licences on those plots; and
• Potentially obliges ALAB to grant at least some licence even if Habitats compliance is problematic (a very high claim, raising serious EU and constitutional issues).

ALAB disputes both:

• That TLM has any such several fishery; and
• The breadth of s.8(3), arguing it only protects third-party rights where a licence is granted to someone else over the same area, not the licensee’s own exploitation.

Holland J finds the issues too complex to resolve at interlocutory stage. He holds only that TLM’s case on title and s.8(3) is sufficiently arguable to contribute to meeting the “substantial grounds” threshold and to affect the stay balance.

5.4 The Okunade balancing test in plain terms

After showing an arguable case, the Court weighs:

1. Orderly implementation of the decision and the public scheme
   • Regulators must normally be allowed to regulate;
   • The decision is presumptively valid until quashed.
2. Public interest factors
   • Here: environmental protection, compliance with EU Habitats law, proper functioning of the aquaculture licensing system.
3. Consequences for the applicant if no stay is granted and the decision is later found unlawful
   • Business collapse? Irreversible loss? Serious but reparable damage?
4. Adequacy of damages
   • Can money realistically compensate the loss? Is there a viable legal basis to recover it later?
5. Relative strength of the case (cautiously)
   • Where the legal issues are clear and not fact-heavy, apparent weakness or strength may tilt the balance.

The overriding aim is not to pre‑judge the merits but to choose the interim course that risks the least injustice to all parties, recognising that some risk is unavoidable.

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6. Impact and Broader Significance

6.1 For aquaculture, foreshore licensing and ALAB

The judgment signals several important points for aquaculture regulation:

• Stays are available in renewal contexts:
  • Where a statutory continuation clause exists (like s.19A(4)), refusals of renewal are susceptible to stays that effectively preserve operations pending JR.
  • This may embolden operators to seek interim relief where they plausibly challenge decisions affecting continuation rights.
• Data deficits cannot be an easy excuse:
  • ALAB and the Department cannot rely indefinitely on “data gaps” – especially ones flagged years earlier by State agencies – to justify avoiding AA and refusing renewals.
  • Doing so risks both substantive unlawfulness and a negative assessment in interim relief applications, as courts may treat the State’s inaction as part of the equity calculus.
• Pressure to invest in monitoring and AA:
  • The judgment increases pressure on NPWS, the Marine Institute and the Department to:
    • Systematically collect ecological data in aquaculture-intensive Natura 2000 areas, and
    • Develop robust, up-to-date AAs capable of supporting licensing decisions.

6.2 For environmental and EU law

From an environmental perspective, the decision is ambivalent but ultimately system‑strengthening:

• It does not dilute the AA standard:
  • The Court fully accepts the Waddenzee/Sweetman standard (“beyond reasonable scientific doubt”), and the precautionary approach to risk.
  • There is no suggestion that AA is optional or that Habitats law can be side‑stepped.
• But it emphasises State accountability:
  • The State cannot indefinitely postpone data collection, then invoke the absence of data to:
    • Block legitimate economic activity; or
    • Shift the entire burden to private operators while retaining full control over licensing.
  • This reinforces the idea that Articles 6(2) and (3) create a positive, resource‑intensive duty on Member States, not just a veto mechanism on projects.
• Effective remedy and interim protection:
  • The Court’s reliance on Article 19 TEU and Article 47 CFREU has significance beyond aquaculture:
    • Where the refusal or withdrawal of an authorisation would destroy an operator’s business, effective judicial protection may require an interim stay, even in environmental contexts, if the overall balance of justice so dictates.

6.3 For administrative law and judicial review practice

The decision has broader implications for Irish JR practice:

• Stays on negative decisions:
  • It clarifies that the High Court may stay negative decisions where they have significant collateral legal effects (such as terminating a continuation right or triggering a statutory prohibition), not just positive ones.
• Damages and interim relief:
  • It develops, in a modest but important way, the treatment of public law damages in the Okunade balance:
    • Irrecoverability of serious financial loss can, in some cases, weigh in favour of interim relief, subject to competing public interest factors.
• Time limits and modularisation:
  • The prominent role given to the s.73 time-limit argument, and the suggestion that it could be determined as a preliminary or modular issue, reflects and may reinforce a trend towards:
    • Early, focused resolution of dispositive procedural points; and
    • Tailoring the duration of interim relief to the realistic timeline of litigation.
• Affidavit practice:
  • Holland J’s criticism of excessively argumentative affidavits (on both sides) is a reminder that:
    • Affidavits are for evidence, not submissions or rhetoric; and
    • Overblown language can damage the credibility of the evidence and does not assist the court.

6.4 Property rights versus environmental protection

Although the Court does not decide the s.8(3)/several fishery issues, the judgment highlights looming tensions between:

• Long‑established private fishing rights (possibly prescriptive several fisheries); and
• Modern EU environmental obligations (Habitats/Birds Directives) and the State’s duty to regulate and, if necessary, restrict harmful activities.

At trial, and perhaps on appeal, courts may be forced to grapple with whether:

• Several fisheries, even acquired before 1992, are subject to Habitats law constraints in the same way as other activities; and
• Section 8(3) must be read down or reconciled to avoid:
  • Creating an enclave of property rights immune from environmental control; or
  • Constituting an unconstitutional expropriation without compensation.

This case thus foreshadows significant constitutional and EU law debates on the interface between historic property rights in the marine environment and contemporary conservation imperatives.

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7. Conclusion

TL Mussels Ltd v ALAB is a detailed and carefully reasoned interlocutory judgment that makes several important contributions to Irish public and environmental law:

• It confirms the High Court’s jurisdiction to stay negative administrative decisions where they terminate statutory continuation rights, thereby preserving those rights pending JR.
• It applies Okunade in a highly contextual and nuanced way, illustrating that:
  • Environmental risk is a powerful but not invariably decisive factor;
  • The State’s own delay and failure to fulfil its positive obligations can weigh against it in the balance;
  • Irrecoverability of serious financial loss in public law may, in some circumstances, favour interim relief.
• It underscores that AA screening is not a substitute for AA, and that reliance on long‑standing data gaps that the State was already obliged to address is problematic both substantively and at the interim stage.
• It sets the stage for important future determinations on:
  • The legal force of s.8(3) and several fisheries in the face of EU environmental law; and
  • The permissible use of data deficits and State resource constraints as grounds for refusing development consents under the Habitats regime.

Ultimately, Holland J grants the stay but does so while:

• Stressing the provisional nature of all findings at this stage;
• Providing liberty to apply to vary or discharge the stay; and
• Emphasising the need for expedition, particularly in resolving the s.73 time limit defence.

In doing so, the judgment reflects a mature integration of:

• Domestic principles of administrative justice and effective judicial protection;
• EU environmental law’s demands for a high level of environmental protection and effective remedies; and
• The practical realities of long-established economic activity and institutional capacity constraints.

From both doctrinal and practical perspectives, TL Mussels is likely to be an important reference point in future litigation involving aquaculture licensing, Habitats AA, and interim relief in environmental judicial review.