Casey v The Minister for Housing, Planning and Local Government (Approved)

Factual and Procedural Background

This judicial review concerns an application by the notice party, Company A, seeking to revisit and set aside the High Court’s ex tempore judgment delivered on 29 July 2019. The proceedings arose from an application by Plaintiff challenging a decision made by Respondents on 30 November 2017 approving a baseline study and monitoring programme, which was a condition of a foreshore licence granted to Company A on 21 March 2014 for mechanical kelp harvesting in Bantry Bay.

The initial 'decision in principle' to grant the licence was made on 6 January 2011 by the relevant Minister. Plaintiff was granted leave to apply for judicial review in March 2018, seeking declarations and certiorari of the 2017 decision. Earlier challenges relating to environmental directives and the vires of the Minister and licence status had fallen away, leaving the main challenge focused on alleged failures to comply with the Habitats Directive and procedural deficiencies in reasons and transposition of EU directives.

Company A withdrew from the substantive hearing on the basis it had nothing further to add beyond Respondents’ opposition. The hearing before the High Court took place in June 2019. During the hearing, issues arose regarding the Minister’s statutory obligation to publish notice of the licence in Iris Oifigiúil and local newspapers, as required by sections 21A and 21B of the Foreshore Act 1933 (as amended). The Minister had failed to publish such notices in respect of the licence granted in 2014. The Court expressed concerns about its jurisdiction to entertain the application in the absence of compliance with these statutory publication obligations. The Court invited submissions on jurisdiction and subsequently delivered an ex tempore judgment on 29 July 2019 concluding that the licensing process was incomplete and the licence not legally effective until the Minister complied with the publication requirements.

Following this, Company A sought to be heard on the jurisdictional issue, which was allowed, leading to a rehearing in October 2019. The Court’s written judgment addresses the jurisdictional issue and the legal effect of the Minister’s failure to publish the required notices.

Background facts include the longstanding interest of State authorities in mechanical kelp harvesting, with various reports and committees since 1999 assessing feasibility and environmental impacts. Company A applied for the foreshore licence in 2009, with extensive consultations and recommendations for monitoring. The licence was ultimately granted in 2014, subject to conditions including baseline and monitoring programmes. Plaintiff became aware of the licence by February 2017, following media coverage and local opposition campaigns, but did not challenge the licence itself within the statutory time limits.

Legal Issues Presented

1. Whether the licence application constitutes a “relevant application” under sections 13A and 21A of the Foreshore Act 1933 (as amended).
2. If it is a relevant application, which Ministerial determination must be published to satisfy the Act – the 2011 decision in principle or the 2014 licence grant.
3. The legal effect of the Minister’s failure to publish the required notices under sections 21A and 21B.
4. Whether the Court has jurisdiction to continue to determine Plaintiff’s judicial review application and if challenges must be brought under section 21B of the Foreshore Act.

Arguments of the Parties

Applicant's Arguments

• The licence application is a “relevant application” under the Foreshore Act and thus publication obligations arose.
• The failure to publish the statutory notices supports the contention that the screening and assessments were inconclusive and that public participation provisions were unsatisfactory.
• The failure to publish the notice did not deprive the Court of jurisdiction but affected the running of the statutory time limits for challenge.
• If the Court finds it lacks jurisdiction due to non-publication, the Applicant intends to appeal and seek Mandamus to compel publication, then apply for judicial review.
• Section 21B regulates the judicial review procedure but does not create a new or separate form of judicial review.
• The Applicant contends that the 2017 decision approving the monitoring plan is challengeable and not subject to publication requirements.

Respondents' Arguments

• The 2009 licence application was not a “relevant application” for the purposes of section 21A, so publication obligations did not apply.
• Even if publication was required, failure to publish does not invalidate the licence or preclude judicial review challenges brought in time.
• Section 21B limits challenges to judicial review under Order 84 and does not create a separate jurisdiction.
• The Applicant was aware of the licence by February 2017 and did not challenge the 2011 decision promptly, so is out of time to challenge the licence.
• The 2017 decision to approve the monitoring plan is properly challengeable and the proceedings are correctly constituted.
• Non-publication does not affect the legal effect of the licence, but may affect the running of time for judicial review.

Notice Party's Arguments

• Section 21A does not apply to the 2011 decision as no environmental impact statement was required.
• The 2017 decision approving the monitoring plan is the justiciable controversy before the Court, not the 2011 or 2014 licence grant.
• Failure to publish notice does not deprive the 2011 decision or licence of legal effect.
• The statutory scheme under sections 21A and 21B creates a procedural regime for judicial review challenges, which the Applicant has not complied with.
• The Applicant cannot use these judicial review proceedings to indirectly challenge the licence grant.
• Failure to publish notice does not invalidate the decision and the Applicant’s delay in challenging the licence is fatal to his claim.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court analysed the statutory framework governing foreshore licence applications under the Foreshore Act 1933 and its numerous amendments implementing EU environmental directives and the Aarhus Convention.

The Court found that the licence application by Company A to mechanically harvest kelp is a “relevant application” within the meaning of sections 13A, 19A, and 21A of the Act. The argument advanced by Respondents and Company A that there are two types of licence applications (simple applications under section 19 and relevant applications under section 19A) was rejected as artificial and unsupported by the statutory scheme or practice.

The Court held that the Minister’s power to “determine” a relevant application occurs when the licence is granted by deed under seal pursuant to section 3 of the Act. The 2011 decision in principle was not a legally binding determination under the Act and had no legal standing. The actual determination was made on 21 March 2014 when the licence was executed.

Sections 21A and 21B impose mandatory obligations on the Minister to publish notice of the determination in Iris Oifigiúil and local newspapers, to provide access to relevant materials, and to inform the public of their right to challenge the decision by judicial review. These provisions are integral and substantive parts of the licensing regime, reflecting Ireland’s obligations under EU law and the Aarhus Convention.

The Court concluded that the Minister’s failure to publish the required notices means the licensing process is incomplete and the licence is not legally effective or operative. The time for judicial review challenges only begins to run upon publication of the notices, which has not occurred.

The Court rejected Respondents’ and Company A’s submission that failure to publish is a mere administrative failure with no effect on the validity of the decision. The Court reasoned that allowing the time to run from the date of determination without publication would enable the Minister to circumvent the public’s right to access justice by withholding publication.

The Court noted that the Applicant was aware of the licence by February 2017 but did not challenge it promptly. The Applicant instead challenged the 2017 decision approving the baseline study and monitoring programme, which the Court found to be an “act done” under section 21B and amenable to judicial review. However, the Applicant’s judicial review was not brought under the statutory scheme of section 21B and thus was not properly constituted.

The Court found that it has no jurisdiction to determine the substantive dispute in the absence of compliance with the statutory publication requirements. It also held that no mandamus lies compelling the Minister to publish the notices because the grant of a foreshore licence is discretionary and subject to the Act’s provisions.

In sum, the Court emphasized that the statutory scheme requires completion of the publication process before the licence becomes effective and before judicial review time limits commence, safeguarding public participation and access to justice in environmental decision-making.

Holding and Implications

The Court SET ASIDE its ex tempore judgment of 29 July 2019 and refused the Applicant’s request to proceed to judgment on his judicial review application.

The Court held that the foreshore licensing process is incomplete and the licence granted in 2014 is not yet legally effective due to the Minister’s failure to comply with mandatory publication obligations under sections 21A and 21B of the Foreshore Act 1933 (as amended). Consequently, the Court lacks jurisdiction to determine the Applicant’s challenge to the 2017 decision approving the baseline study and monitoring programme.

The Court clarified that the time for bringing judicial review challenges to such determinations only begins to run upon publication of the required notices, which has not occurred. The Applicant’s failure to bring an earlier challenge to the licence grant and his failure to bring the current judicial review under the statutory scheme of section 21B rendered his application improperly constituted.

No mandamus lies to compel the Minister to publish the notices. The licensing process will only conclude once the Minister complies with the statutory publication requirements, thereby vindicating the public’s right to access justice in environmental matters.

The decision does not establish new precedent beyond confirming the strict requirements of the Foreshore Act’s licensing and publication regime and the necessity of compliance with EU environmental law and the Aarhus Convention.