A Group of Cobh fishermen have lost their High Court battle to stop the builders of the Lee Tunnel from extracting more than a million tons of sand and gravel from their most lucrative fishing ground, the Spit Bank, in Cork Harbour.
After Mr Justice O'Sullivan's decision, the four fishermen, representing more than 30 Cobh fishing families, said they were bitterly disappointed and would have to "consider our position". They would discuss it with their counsel, Mr Pat Butler, before issuing any statement. After an earlier setback in their High Court proceedings to stop the dredging of the seabed they had stated that their livelihoods depended on fishing the area and that they were prepared to blockade any renewal of dredging with their fishing boats.
Yesterday Mr Justice O'Sullivan said the Cobh Fishermen's Association Ltd had sought to quash a sand and gravel extraction licence, granted by the Minister for the Marine and Natural Resources to the three contractors building the tunnel under the River Lee - Tarmac Construction Ltd, P.J. Walls (Civil) Ltd and Dredging International (UK) Ltd.
He said the fishermen had claimed that an Environmental Impact Study (EIS), which accompanied the application for the licence, indicated a sequence of extraction which implied that material would be taken from a lucrative fishing ground known as the Spit Bank only as a last resort and possibly not at all.
They had claimed that additional borehole findings indicating that the originally intended sequence of extraction had come to light after the statutory period to put objections had expired, and this had not been taken into consideration by the Minister, thereby invalidating the licence.
A third challenge had related to a letter from the fishermen objecting to the licence after the period for objections had expired. The Minister had undertaken to report back to them and had failed to do, thereby invalidating the licence.
Mr Justice O'Sullivan held that the Minister was not obliged to consider information relating to the boreholes carried out after the statutory period for making objections had elapsed nor, indeed, had he any power to do so.
He could see no warrant for holding that the Minister had some additional extra-statutory obligation in fairness to the fishermen to reopen the closed phase of the licence application procedure or to duplicate it. On the contrary, to take that view would greatly diminish the object and value of the statutory procedures themselves.
Mr Justice O'Sullivan said he did not consider that the Environmental Impact Study had laid down a specific phasing for the carrying out of the dredging operation which was sacrosanct, and which could not be altered or modified in accordance with circumstances which came to light in the course of the dredging operation itself.
He said the EIS stated that "the suitability of materials would be assessed during dredging and before transportation to the site". A sentence in the study, that if sufficient suitable material was obtained from Area 1 there would be no extraction from Area 2, the Spit Bank section, did not mean there would be no extraction from the Spit Bank.
It indicated there was a degree of uncertainty about the amount of material in Area 1 and, even taken on its own, did not import the particular sequencing or phasing of the operation contended by the fishermen, let alone warrant that there would be no extraction from the Spit Bank.
Mr Michael Cush, counsel for the contractors, told the court his clients were making no application for their legal costs but reserved the right to apply to the court in the event of an appeal.
Mr James Connolly SC, for the Minister, applied for and was granted costs against the fishermen.