SEVEN years after its first protest, a group of Clare shellfish farmers, guesthouse owners and environmentalists has won its case against the State over the licensing of a fish farm in Ballyvaughan Bay.
Welcoming this week's Supreme Court judgment in its favour, the group has accused the department of the Marine of cynical" and "manipulative" behaviour over the legal action. The Department deliberately "stalled" the court action while it continued to license fish farms, Mr Mark Helmore, a Co Clare oyster farmer and spokesman for the group, said.
The Department of the Marine, which denies the claims, had appealed an earlier High Court ruling against the project to the Supreme Court. Yesterday a Department spokeswoman said it had "noted" the outcome. The judgment would be studied in detail, and the drafting of legislation for a new system of licensing was well advanced".
The Supreme Court judgment refers to the licensing of a finfish farm project by a former Minister for the Marine, Mr Brendan Daly, in Ballyvaughan Bay shortly before the 1989 general election. The British backers of the project, Westobrook Ltd, were granted licences under "old" legislation the 1933 Foreshore Act and 1959 Fisheries Consolidation Act rather than under the 1980 Fisheries Act, which would have allowed for an appeal mechanism.
The first fish culture licence issued was replaced by a second one, which ruled out the rearing of salmon and confined it to trout. The Department denied at the time that the second permit was issued after protests from other fish farmers in the area and put it down to an "administrative error".
In spite of the objections from residents and the Western Regional Fisheries Board, the Department said it had no intention of rescinding the licences. A group of shellfish farmers guesthouse owners, boat owners and environmentalists took its case to the High Court and secured a judicial review.
The judgment in May 1992 found in its favour, said the Minister for the Marine ought to have made use of the 1980 legislation, and directed that the licences be quashed. However, the Minister appealed the judgment and order.
This week's judgment by Mr Justice Blayney in the Supreme Court found that the Minister did not have power under the 1959 Fisheries Consolidation Act to give a permit for a sea based project, as the Act's wording refers to an inland fishery. "At a place" was an appropriate way of referring to several inland fisheries, while "in waters" was an appropriate way of referring to open sea, Mr Justice Blayney said. Section 15 of the 1959 Act referred only to "at the place specified".
Mr Justice Blayney found that the 1933 Foreshore Act would not have allowed for the holding of a comprehensive inquiry, in contradiction of the appellants' claims. Any such inquiry under this Act would have been confined to activity in a fishery district, rather than the open sea. It was "extremely doubtful" that any hearing could have dealt with anything other than the consequences of the physical presence of eight cages moored in the sea. Thus, the exercise would have been of little value to the applicants, he said.
The Department of the Marine said the judgment applied only to this specific case, and it did not affect any other fish farms licensed under the 1933 and 1959 Acts. The majority of 100 sea, freshwater and land based farms are approved under the 1980 legislation, a spokeswoman said.
Mr Helmore said the judiciary and the plaintiffs had been "manipulated in a very cynical way."
