A recent High Court case highlighted the importance of comprehensive assessment of the environmental effects of aquaculture activities. Our Planning & Environment team analyses the details of the decision and key learnings applicable to all developments.
The Facts
The High Court recently issued judgment in the case of Salmon Watch Ireland CLG & Ors v The Aquaculture Licences Appeal Board & Ors.[1]
This case concerns a proposed salmon farm at a site south of Shot Head in Outer Bantry Bay, County Cork. The salmon farm is proposed by MOWI Ireland, which is Ireland’s largest producer of farmed salmon.
There are multiple linked proceedings, brought by Applicants:
- Salmon Watch Ireland
- Inland Fisheries Ireland (IFI)
- Mr Peter Sweetman
The Applicants sought an order quashing the Aquaculture Licence and associated Foreshore Licence granted to MOWI by the Aquaculture Licence Appeals Board (ALAB).
The Decision
The High Court judge noted the extreme complexity of the regulatory regime, describing it as “Byzantine”. He also acknowledged the high complexity of the judicial review application. This involved three linked sets of proceedings, 63 grounds for judicial review and extensive written materials. It resulted in a judgment of over 500 pages. The judge noted that many of the arguments were merits-based and therefore outside the scope of judicial review. A large number of the grounds were also not properly pleaded and were rejected on that basis.
The main grounds are summarised in the following sections.
Bias and unfair procedures
Allegations of objective bias and unfair procedures were made against ALAB, including by the other state agency IFI. The multiple, inter-related grounds fall under the general umbrella of an allegation of excessive facilitation of MOWI in reviewing and suggesting changes to its licence application with a view to granting it. The Applicants also argued that the underlying legislation, section 23 of the Fisheries (Amendment) Act 1997 (as amended), was unconstitutional in creating “structural bias”.
The judge explored the issues extensively, finding they were unfounded on the facts and noting that the Applicants had failed to prove a “very serious allegation” of bias or unconstitutionality.
Delay and breach of time limits
The Applicants also sought to quash the Aquaculture Licence based on unreasonable delay on the part of ALAB. The judge agreed that it is difficult to see how ALAB taking 68 months to decide the appeal conforms to any sensible principles of decision-making and that this delay had caused some prejudice. However, the judge found that:
“the time taken by ALAB to decide this matter, while both very considerable and clearly regrettable, cannot be said, on close analysis of the evidence, sequence of events and particular circumstances of the case, to have been unreasonable”.
The judge did conclude that one aspect, the delay as to Appropriate Assessment (AA) screening, was unreasonable. However, the judge found that a declaration is the appropriate remedy. An order quashing the Aquaculture Licence on this basis was not merited.
Environmental Impact Assessment and Appropriate Assessment
A recurrent theme in the Applicants’ criticisms of ALAB’s decision is the failure to resolve uncertainties related to environmental impacts. This included a failure to apply the precautionary and preventative principles. However, the judge noted that the purpose of the Environmental Impact Assessment (EIA) framework is to:
“ensure that environmental risk is objectively assessed and that development consent decisions are informed by that risk”.
In this context, “uncertainty is inevitable” in EIA and is not necessarily a flaw.
The core successful grounds of review centred on the risk of salmon escaping from the farm and the environmental effects of that occurrence. The issue of escapes was pleaded in multiple ways: ALAB bias, inadequacy of the EIA, and inadequacy of the AA.
The judge noted that a competent authority is ordinarily afforded a wide margin of appreciation as to the information and investigation requirements. But, bearing in mind the unusual circumstances of the case the judge concluded that ALAB did not perform an adequate EIA as to the risk of escape. Notably, ALAB had failed to properly assess the structural adequacy of the salmon cages, leaving these to review at detailed design phase. However, the judge concluded that the fact that an element of the project requires a separate and later regulatory consent does not absolve ALAB from carrying out a comprehensive EIA.
The judge held that these failings in the EIA were sufficient to quash the Aquaculture Licence and refer the matter back to ALAB for redetermination.
There was also extensive discussion regarding the common harbour seals and their ability to cause large-scale salmon escapes, and the appropriate prevention measures. These measures can themselves have adverse impacts on the environment and could require EIA and/or AA. The Applicants argued that the use of ‘seal scarers’, devices which emit noise to keep seals away from the salmon cages, can have an adverse impact on the seals and other wildlife. This risk of disturbance required EIA and, likely, AA as the seals in question are a conservation interest of the Glengarriff Harbour and Woodland SAC. The judge held that ALAB erred in law in screening out AA of the impact of the ‘seal scarers’. ALAB was not entitled to defer consideration on that issue to a later date. This was a further basis for quashing the Aquaculture Licence.
Water Framework Directive
There was extensive analysis of the requirements under the Water Framework Directive. The judge held that the reliance on “typical” data for the purpose of the Water Framework Directive was not properly founded, was highly counter-intuitive and therefore required explanation. This was a technical point and based on the levels of nitrogen that the salmon were likely to emit. The judge accepted that there may have been good, unarticulated reasons but ALAB failed to adequately explain these. This was an additional basis for quashing the Aquaculture Licence.
The Order
The High Court quashed the Aquaculture Licence because of the:
- Inadequacy of the Appropriate Assessment screening of the risk of effects of seal scarers on seals of the SAC
- Inadequacy of the EIA concerning the risk of escape of salmon from the fish farm
- Inadequate reasoning that the fish farm will not lead to a breach of the Water Framework Directive limits as to Dissolved Inorganic Nitrogen
The High Court also declared that ALAB delayed unreasonably as to the AA screening, but no further relief was appropriate or required on this basis.
As to the Foreshore Licence, the High Court quashed the licence on the basis that:
- It is contingent on the Aquaculture Licence
- The Minister erred in granting the Foreshore Licence in 2022, in having regard to the incorrect version of the Aquaculture Licence
Lastly, the judge held that both the Aquaculture Licence and Foreshore Licence be referred back to ALAB for re-consideration and re-decision.
Conclusion
This case demonstrates the importance of thorough and comprehensive assessment of environmental effects. While a lengthy and technical judgment, the crux of the decision focused on failures of ALAB to properly consider the environmental impacts of the salmon farm and the effects on the wider habitat. It also demonstrated the inability to defer EIA and AA considerations to a later regulatory process.
For more information and expert advice on successfully navigating the complex framework of environmental assessment and regulation, contact a member of our Planning & Environment team.
[1] Salmon Watch Ireland CLG -v- The Aquaculture Licences Appeals Board & Ors, Inland Fisheries Ireland -v- The Aquaculture Licences Appeals Board & Ors, Sweetman & Ors -v- The Aquaculture Licences Appeals Board & Ors [2024] IEHC 421
