Ms Justice Deirdre Murphy of the High Court has declined to grant an injunction that would block extraction of mechanical harvesting of seaweed in Bantry Bay.
BioAtlantis Aquamarine Ltd, a Tralee-based biotechnology company, has received a foreshore licence from the Minister for Housing to harvest more than 1,860 acres.
John Casey, a member of the Bantry Bay – Protect our Native Kelp Forests, a West Cork community organisation, had sought the injunction. The case was heard over ten days in the High Court.
Change of use
Representing the applicant, James Devlin SC argued that the proposed extraction constituted an ‘alteration’ and/or a ‘material change of use’ under the terms of the Planning and Development Act 2000, and should therefore legally be classified as ‘development’.
As this ‘development’ adjoins the functional area of a planning authority, he contended that by law it could not proceed without planning permission.
Ms Justice Murphy however rejected this argument, holding that the Oireachtas has seen fit to establish two separate regulatory regimes. The Planning Acts regulate human activity whereas the wold flora and fauna of the sea are regulated by Ministerial Licence.
The Justice pointed out that many situations existed where both a licence and planning permission can be required, such as a pier extension. If BioAtlantis was proposing to construct a ramp out to the kelp forests, that would require both planning permission and a foreshore licence, she added.
Given that the proposed harvesting mechanism was entirely water-borne, the activity in the court’s view was more akin to fishing, and thus required a licence but not planning permission.
“It is astonishing that an experimental, industrial-scale activity like this should be regulated by such antiquated legislation,’ remarked Tomás O’Sullivan, a member of Bantry Bay – Protect our Native Kelp Forests.
“The Foreshore Act is over 85-years-old and its provisions are primarily concerned with traditional hand-harvesting and the removal of seaweed from beaches and piers.
“If – as Judge Murphy pointed out – the mechanical extraction of thousands of tonnes of seaweed from Bantry Bay is akin to commercial fishing, then why on earth has BioAtlantis received their foreshore licence from the Minister for Housing and not from the Minister for the Marine?”
John Casey has also initiated a Judicial Review of the licence, which will begin in the High Court before Ms. Justice Murphy on June 25. The case is expected to last for two to three days.