Ireland: The Beginning Of The End For Delays In Irish Environmental Decision-Making?

In 2013, the Irish High Court awarded €400,000 in compensation to two fishery companies because the Minister delayed unjustifiably in assessing and permitting mussel seed fishing in Castlemaine Harbour, a site protected by Irish and European environmental law.  The State did not operate the environmental regime in an orderly way to allow harmony between environmental protection and the fisheries' businesses.

The Court held that there was a mistake of law in how the Minister thought it was appropriate to manage the aquaculture business in a balanced way with protecting the environment. There was "operational negligence" by the Minister in failing to carry out the regular scientific tests or monitoring that would have provided the baseline data to equip the Minister either to have a proper screening test or to have a fully informed appropriate assessment.

Background

In 2007, the Court of Justice of the European Union ruled that Ireland had failed to correctly implement the assessment process for protected sites ("Natura 2000" sites usually alled SPAs and SACs), as required under the European Habitats Directive.  This raised concerns in the Department of Agriculture about the possible impact that the gathering of mussel seed would have on the birds in Castlemaine Harbour.  The Minister for Agriculture prevented the gathering of mussel seed in Castlemaine Harbour in 2008 and in 2010 until an assessment of impacts was completed.  Because of the delay in re-opening the Harbour, the mussel stock was eaten by predators.  The fishery companies continually informed the Department about the damage that the delay was inflicting on their businesses. 

Decision – operational negligence by the Minister

The Court held that Minister was guilty of "operational negligence" for failing to carry out regular scientific tests, which would have equipped the Minister to carry out a prompt appropriate assessment. 

The fisheries produced evidence, which the Judge accepted, that a scientific assessment could have taken a couple of months, not years.  The Judge noted that there was a contrast between all the 'high-level activity with EU officials' and the fact that little scientific investigation was happening on the ground.  That the Department ought to have known about the damage to the fisheries' businesses, and still did nothing, was a key factor in the compensation award.

What next for attempts to overcome delays in decision-making?

The Irish Courts continually find that development and environmental protection are not mutually exclusive, yet licensing authorities can delay in permitting development.  Outright bans can be imposed in effect, if not in law.

It remains to be seen whether environmental decision-makers will take note of this judgement to undertake assessments and make decisions more promptly. 

Could this line of judicial authority lead a Court to direct a licensing authority to undertake an assessment and make a decision in a reasonable timescale?  That could be seen as an intrusion by the Courts into the realm of the licensing authority – and into the authority's powers of expenditure in undertaking assessments.

However, in a different decision-making sphere, in Salman v Minister for Justice and Equality* the High Court held that it would have compelled the Minister for Justice to make a decision on an application for naturalisation had the Minister not granted the naturalisation certificate on the eve of the hearing. This was because the Minister was in possession of all documentation necessary to make a decision from June 2008 for three years and nine months, and never indicated to the applicant that there was anything outstanding.  The Minister did not at any time indicate what was causing the delay in processing the application and refused to explain why the period of delay extended far past the average time period put forward by the Department.

Developers will be well advised to bear this decision in mind and to ensure that they regularly inform the licensing authorities of effects of delay on their business. 

*Cromane Seafoods Ltd & Ors v The Minister for Agriculture & Ors [2013] IEHC 338

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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