High Court dismisses application to stay planning decisions pending trial of fisheries licensing dispute.

TL Mussels v ALAB et al [2025] IEHC 670

THE HIGH COURT JUDICIAL REVIEW PLANNING AND ENVIRONMENT [2025] IEHC 670 Record No. 2025/957 JR IN THE MATTER OF THE FISHERIES (AMENDMENT) ACT 1997 Between TL MUSSELS LIMITED Applicant and THE AQUACULTURE LICENCES APPEALS BOARD Respondent and THE MINISTER FOR AGRICULTURE, FOOD AND THE MARINE, INLAND FISHERIES IRELAND, THE MINISTER FOR HOUSING, LOCAL GOVERNMENT AND HERITAGE, BORD IASCAIGH MHARA, BIRDWATCH IRELAND, AN TAISCE AND THE MARINE INSTITUTE Notice Parties

JUDGMENT OF MR JUSTICE DAVID HOLLAND DELIVERED ON 4 DECEMBER 2025 Contents

INTRODUCTION ............................................................................................................................................... 2

AA SCREENING & AA........................................................................................................................................ 3

ALAB’S REASONS ............................................................................................................................................. 5

GROUNDS ON WHICH LEAVE WAS GRANTED ................................................................................................. 7

Breach of s.8(3) of the 1997 Act .................................................................................................................. 7

Failure to do AA ........................................................................................................................................... 7

Failure to Bespeak NIS ................................................................................................................................. 8

JURISDICTION TO STAY & EFFECT OF STAY...................................................................................................... 8

STAYS – OKUNADE Et seq .............................................................................................................................. 11

AA IN THE PRESENT CASE – EXCESSIVE BURDEN ON THE STATE?................................................................. 28

TITLE ISSUE & s.8(3) OF THE 1997 ACT .......................................................................................................... 16

CRIMINALISATION & ATTACK ON PROPERTY RIGHTS ................................................................................... 19

SEQUENCE OF EVENTS FROM 2016 ............................................................................................................... 20

RISK OF ENVIRONMENTAL DAMAGE PENDING TRIAL & PRESERVATION OF STATUS QUO FOR AA ............. 31

SEEDING ISSUE............................................................................................................................................... 35

ADEQUACY OF DAMAGES.............................................................................................................................. 36

TIME LIMIT DEFENCE, PROCEDURAL ISSUES & DURATION OF A STAY ......................................................... 42

HARTE PEAT, CASES CITED THEREIN & COMPARISON TO THE PRESENT CASE ............................................. 43

CONCLUSION ................................................................................................................................................. 47

POSTSCRIPT ................................................................................................................................................... 50

INTRODUCTION1

1. This is my decision on the application of the Applicant (“TLM”), pursuant to s.73 of the 1997 Act2 and Order 84 Rule 20(8) RSC,3 for a stay, pending trial of these judicial review proceedings, of ALAB’s4 Impugned Decisions of 21 March 2025 to refuse to renew certain expired aquaculture licences formerly held by TLM for bottom cultivation5 of mussels on various sites, totalling about 100 hectares, on the foreshore in Wexford Harbour.6 TLM already has leave to seek judicial review.

2. These proceedings also include an application to quash a refusal of a new licence (as opposed to a renewal) in respect of a 56 hectare site in Wexford Harbour, but no stay is sought in that respect. TLM also has another 18 hectare site in Wexford Harbour7 licensed for bottom cultivation of mussels which is not the subject of these proceedings.

3. Ordinarily, a stay pending trial of a refusal of a permission or licence will not in practical terms avail an applicant for judicial review of that refusal. However, TLM argues that a stay here would, or could if I so directed, have the effect that, the Impugned Decisions being temporarily considered not to have been made, s.19A(4) of the 1997 Act would resume effect and so authorise TLM’s continuation of mussel cultivation pending trial. S.19A(4) provides that an aquaculture licensee who has sought renewal of an aquaculture licence shall, notwithstanding the expiration of that licence, be entitled to continue pending the decision on the renewal application and on the terms of the expired licence, the aquaculture formerly authorised by the licence. In substance, where s.19A(4) applies the expired licence continues to have effect pending the renewal decision.

4. ALAB and the Minister for the Marine8 oppose the grant of a stay. No other party argued this issue. Simplifying their objections, they considered that I lack jurisdiction to grant a stay and that, if I have jurisdiction, I should in any event refuse a stay on Okunade9 principles and by reference to EU law

Headings are for general information only and are not prescriptive of content.

2 The Fisheries (Amendment) Act 1997. S.73 requires, inter alia, that a person questioning an ALAB determination of an aquaculture licence appeal

must do so by application for judicial review under Order 84 of the Rules of the Superior Courts.

3 Order 84 Rule 20(8) of the Rules of the Superior Courts provides that: “Where leave to apply for judicial review is granted then the Court, should it

consider it just and convenient to do so, may, on such terms as it thinks fit:

(a) grant such interim relief as could be granted in an action begun by plenary summons,

(b) where the relief sought is an order of prohibition or certiorari, make an order staying the proceedings, order or decision to which the application

relates until the determination of the application for judicial review or until the Court otherwise orders.”

4 The Aquaculture Licences Appeals Board.

5 “i.e. the mussels are grown while lying directly on the ground/seabed and are harvested by dredging – as opposed to, for example, mussel cultivation

on ropes suspended above the bottom. TLM pithily describes its activity as follows: “we sow mussel seed on the beds; we move them between the

different grounds to promote the growth of the mussels and to keep the different sizes together so that they do not mix (seed, 1-year-old and 2-year-

old mussels); we protect them from predators (including starfish and crabs); when the mussels are large enough, we fish them out to sell them; when

the mussels have been removed, we clear them [i.e. the beds/grounds] so that they are ready for use, and we also do this after each transfer. In short,

we are busy all year round on the grounds with these typical mussel cultivation activities.”

6 See Affidavit of Brian Batt for the Minister for Agriculture, Food and the Marine, sworn 13 October 2025.

7 Site T03/030F.

8 Properly, the Minister for Agriculture, Food and the Marine.

Okunade v Minister for Justice, Equality and Law Reform [2012] 3 IR 152.

requirements derived, in particular, from the Habitats Directive10 and by reference to the risk allegedly posed by TLM’s mussel farming to European Sites.11

5. While I will return to the issue in more detail, it is useful to observe at this point that TLM asserts proprietary rights in the form of several fisheries in the Sites in question and that s.8(3) of the 1997 Act therefore entitles it to renewal of its licenses. ALAB and the State dispute both the existence of the asserted several fisheries and, assuming such fisheries, the asserted effect of s.8(3) of the 1997 Act.

6. It is convenient to say at this point that Minister for the Marine’s deponent’s characterisation on oath of TLM as seeking, by a stay, to gain “free rein” to farm mussels immune from any potential enforcement is fanciful, alarmist and extravagant. Any s.19A(4) right is subject to the terms of the licence the renewal of which is sought. Whatever the Minister for the Marine’s lack of clarity as to the terms of the stay sought, it seems to me to have been obvious that any resultant mussel farming would be subject to the terms of the expired licences. I would add that, in my view, the Minister’s decision was wise not to strongly press an argument made on affidavit that what TLM sought was in effect a mandatory order - such that TLM had to show a strong case (see Maha Lingam12) as opposed to merely having shown substantial grounds.13

7. As a more general observation, while some argument in affidavits is unavoidable to contextualise factual averments, affidavits are not submissions. Some affidavits in this case are argumentative beyond the tolerable. For example, one affidavit for TLM deposes on oath that an ALAB argument “is so absurd that it collapses on itself.” But my decision does not turn on that observation.

AA SCREENING & AA

8. The question whether to grant a stay arises in the particular context that ALAB’s decisions were grounded in a finding, on AA Screening14 and by reference to Article 6(3) of the Habitats Directive, that it had not been shown as a matter of certainty beyond reasonable scientific doubt that the mussel cultivation sought to be licensed would not adversely affect the integrity of a number of European Sites. Ordinarily, a final finding to that effect is made on foot of an AA and requires refusal of an aquaculture licence. All agree that ALAB’s AA Screening correctly showed that the licences could not be renewed save on foot of an AA excluding risk of adverse effects on the integrity of European Sites. But ALAB did not do an AA. I doubt anyone disagrees that such a course was, to say the least, highly unusual in practice – though whether it was lawful remains to be seen.

10 Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora.

Within the meaning of Habitats law – in this instance, Slaney River Valley SAC, Wexford Harbour and Slobs SPA, Seas off Wexford SPA, Raven SPA,

Lady’s Island Lake SPA, Saltee Islands SPA, Keeragh Islands SPA and Mid-Waterford Coast SPA.

12 Maha Lingam v Health Service Executive [2005] IESC 89, [2006] 17 ELR 137.

13 Transcript Day 2 pp11 & 12.

14 While some refer to “stage 1” and “stage 2” Appropriate Assessment, I think it simpler and more informative to refer to, respectively, “Appropriate

Assessment Screening” and “Appropriate Assessment” – “AA Screening” and “AA”.

9. Regulation 42(6) & (7) of the Habitats Regulations 2011,15 considered with the relevant caselaw,16 provides that where a public authority, on foot of an AA Screening of a proposed project17 and on the basis of objective, complete, precise and definitive scientific information and by way of assessment without gaps or lacunae, to a standard of certainty beyond reasonable scientific doubt and considering the project individually or in combination with other projects:

• Can exclude that the project will have a significant effect on the integrity of a European Site, it “shall determine” that AA of the project is not required.

• Cannot exclude that the project will have a significant effect on the integrity of a European Site, it “shall determine” that AA of the project is required.

10. The foregoing confirms that, as is clearly implied by the word “screening”, the purpose of AA Screening is to enable a decision whether AA is required before the development consent sought can lawfully be granted. At least overtly and as far as the express text of the Habitats Regulations goes, the purpose of AA Screening is not to serve as a basis on which to conclude that development consent must be refused on the basis that it had not been excluded that the project will have a significant effect on the integrity of a European Site .18 In the event of such non-exclusion of risk, the stipulated consequence is that the competent authority “shall determine” that AA is required.

11. The relevant EU Commission guidance is also clear that AA Screening leads to the conclusion either that Habitats law does not impede the proposed activity or that AA is required to ascertain whether it does.19 In describing the outcome of AA Screening,20 it states that the possibility of significant effect on the European Site “will trigger the need for” AA and where, in screening, “it cannot be excluded, on the basis of available information, that a plan or project can have a significant effect on a Natura 2000 site, either individually or in combination with other plans or projects, the plan or project must be subject to” AA. Sharpston AG put the purpose of AA Screening memorably in Case C-258/11 Sweetman21 as being to answer the question “should we bother to check?” By checking, she meant AA. And she said that AA Screening operates “merely as a trigger, in order to determine whether an appropriate assessment must be undertaken of the implications of the plan or project for the conservation objectives of the site.”

12. Neither the Regulations nor the Commission guidance, at least explicitly, envisages that on an AA Screening which does not exclude the possibility of significant effect, the result will be refusal of development consent, as occurred here, on Habitats law grounds rather than proceeding to AA. However, it must be said that such an outcome at least achieves the necessary assurance, required by Article 6(3) of the Habitats Directive, of avoidance of significant adverse effect on the integrity of the European Sites.

15 European Communities (Birds and Natural Habitats) Regulations 2011 as amended.

16 Notably, Waddenzee (Case C-127/02) and Sweetman (Case C-258/11).

17 Here, continued bottom mussel cultivation.

Individually or in combination with other projects.

19 Commission Notice, Assessment of plans and projects in relation to Natura 2000 sites – Methodological guidance on the provisions of Article 6(3) and

(4) of the Habitats Directive 92/43/EEC (2021/C 437/01). See for example, Figure 1 Assessing plans and projects in relation to the Natura 2000 ites;

three stages of the Article 6(3) and (4) procedure.

20 3.1.5. Conclusions: decision based on the outcome of the screening.

Sweetman & Others v An Bord Pleanála (Case C-258/11) ECLI:EU:C:2012:743.

13. As I have said, ALAB had not, as would be normal in a refusal on a Habitats law basis, done an AA. They refused renewals of the licenses on the basis merely of the AA Screening and – as it seems to me on interpreting their decisions – on the basis that AA Screening had not excluded the need for AA on the basis described above.

14. Marie Louise Heffernan, a deponent for TLM, is an ecologist, a chartered environmentalist and a full member of CIEEM.22 She authored the NPWS23 manual, 'A Review of the Ecological Implications of Mariculture and Intertidal Harvesting in Ireland'.24 Her TCD MSc thesis was entitled 'Aquaculture and Bird Protection interactions in Special Protection Areas' (1995). She has 30 years' experience as an ecologist specialising in ornithology and is, since 2014, the CIEEM national trainer in AA. She has provided professional training to public authorities and to consultants in how to do AAs. She has worked for ALAB on contract as a technical advisor on shellfish appeals and has prepared aquaculture zoning plans for the NPWS. I have set out her credentials as she has deposed that “[i]n my 30 years of practice (particularly in the 16 years since the AA guidelines were published for Ireland) I cannot recall refusal of any project based on a negative AA screening alone.” I have no reason to doubt her account of her experience. As I have said, the invariable, or at very least the orthodox, reaction of a competent authority to a negative AA Screening is to move to AA – and, specifically, to bespeak an NIS.25 AA might not be done, I agree with counsel for ALAB, if there were other – non-Habitats law reasons – to refuse a licence or permission. But that is not the case here, in which ALAB’s refusal is squarely based on Habitats law considerations.

15. While there are complexities to the matter, there is at least some validity in TLM’s complaint that its present plight is Kafkaesque – its continued mussel farming being dependant on an AA which only ALAB can, in law, do and ALAB refuses to do.

ALAB’S REASONS

16. Of course, the assertion that ALAB’s action is unprecedented does not per se imply that it was unlawful. Novelty is not necessarily illegal. But it at least gives pause for thought. ALAB’s reasons for taking this highly unusual course were that:

• By reason of the dearth of relevant data,26 and on the basis of the data at present available, AA could not be adequately done without gaps or lacunae. Put another way, AA could not, on present data, suffice to exclude that the project, individually or in combination with other projects, will have a significant effect on the integrity of a European Site.

Chartered Institute of Ecology and Environmental Management.

23 National Parks and Wildlife Service – it is an internal executive agency of the Department of Housing, Local Government & Heritage. Very broadly, it

acts for the State in fulfilling the State’s responsibilities as to nature conservation, including pursuant to the Habitats Directive.

24 Irish Wildlife Manual (No. 7) (1999).

25 Natura Impact Statement within the meaning of the Habitats Regulations 2011 as amended.

In using the word “data” I include the concept of “information”.

• By reason of the dearth of relevant data and the need to get it to do an adequate AA, AA and a licence renewal decision based thereon would take up to four years to do. ALAB states: "[p]rimarily, this site is not suitable for the proposed aquaculture given the nature and extent of the information required to enable an AA."

• While awaiting an AA, TLM would unacceptably be entitled by s.19A(4) to continue mussel cultivation despite the fact that it had not been excluded that such aquaculture would have significant adverse effect on the integrity of European Sites. Put another way, ALAB considered that merely awaiting AA itself represented an unacceptable risk to the integrity of European Sites.

• Other factors militating against awaiting AA and relied upon by ALAB as a reason to refuse to renew the licenses, were the “state agency input required” and the “significant resources and the involvement of government bodies, such as the NPWS and experts”.27 ALAB considered that while it must do any AA, its functions do not include doing surveys and studies to obtain the data and information necessary to enable AA to be lawfully done.

• Awaiting AA would be inconsistent with ALAB’s duty under s.56 of the 1997 Act to “as far as practicable, ensure appeals are dealt with and determined expeditiously & all steps taken to avoid unnecessary delays.”

17. As to the last of these reasons, one may observe that a general, order of magnitude, sense of what the Oireachtas regards as expedition for the purpose of s.56 may be gleaned from s.56(2). It states that ALAB should endeavour to ensure that every appeal is determined within four months of its receipt. In this case, the appeals were made to ALAB in October 2019 and ALAB decided them in March 2025 – about 5½ years later. That is about sixteen times the target duration. The practical difficulties faced by a part-time and historically scantily-resourced ALAB have previously been noted.28 It may be added that, resources aside, a four month target seems unrealistic given requirements of such as fair procedures, AA, EIA and internal expert assessment which typically arise in aquaculture licence matters and which are often controversial.

18. Significantly, I was not advised what view ALAB took in that interim of 5½ years of risk to European Sites by reason of TLM’s continued mussel cultivation in reliance on s.19(4) – at least not until January 2024.29 Nor did ALAB suggest that any such risk was amplified in the prospective four years required for an AA as compared to the 5½ years it had taken ALAB to make its Impugned Decisions. Its vague suggestion that the 5½ years had been required to get to the AA Screening stage was, prudently, not pushed too far. As will be seen, the need for an AA should have been apparent to all, including ALAB, far sooner and, had that been done, the AA would have been completed by now.

27 In the design and implementation of the work programme to collect the data and do the AA.

28 SWI, IFI, Sweetman & Ors v ALAB et al [2024] IEHC 421.

See below as to a s.46 Notice at that time.

19. TLM agrees30 that:

• The data requisite to an AA does not yet exist and must be generated by relevant surveys, studies and the like – including targeted bird monitoring.

• Hence it is not yet possible to rule out likely significant adverse effects on the integrity of European Sites.

Hence also the four-year estimate for an AA – which TLM does not in appreciable degree dispute.

20. TLM also complains that as it was refused licence renewal on the basis only of an AA Screening, in which mitigation is not considered, it was shut out of the possibility of mobilising in AA mitigation measures which might have rendered their aquaculture licensable. It was also shut out of the more general possibility that the much more detailed assessment required in AA would have rendered their aquaculture licensable. At least as a general reason why projects should not be refused development consent merely on the basis of an AA Screening, TLM’s position is not unreasonable.

GROUNDS ON WHICH LEAVE WAS GRANTED

21. Editing them somewhat for brevity and clarity, the following account of the grounds on which leave to seek judicial review was granted31 is illuminated by the foregoing introduction. The grounds are as follows:

Breach of s.8(3) of the 1997 Act

3) ALAB had inadequate regard to the scheme of the 1997 Act. In particular s.8(3) requires ALAB to ensure that its aquaculture licensing decisions are consistent with TLM’s rights to its several mussel

fishery. ALAB has no jurisdiction to extinguish, take away or abridge TLM’s several fishery – which it did by its

Impugned Decisions.

Failure to do AA

4) ALAB acted contrary to the Habitats Directive (Article 6(3)) and the Birds Directive32 and/or Part 5 of the Habitats Regulations 2011 and/or erred in law in that it:

o Failed to do an AA before deciding the renewal applications.

o Refused the renewal applications for the reason that it could not be established beyond reasonable scientific doubt that the proposed aquaculture licences, either individually or in combination with

30 Heffernan Affidavit sworn 23 October 2025.

31 Leave on the posited Ground 2 was not granted. I have also reordered the list.

Directive 2009/147/EC.

other plans or projects, would not adversely affect the integrity of a relevant European Site - a reason which can ground a decision only if AA has been done.

o Refused the renewal applications for reasons that could only be formulated on foot of AA.

o Failed for irrational and improper reasons to require the submission of an NIS.

o Failed to comply with Regulation 42(8) of the Habitats Regulations – in:

▪ refusing the appeals for reasons that could only have been based on an AA; and ▪ deciding the renewal applications without first notifying TLM of its AA Screening determination.

o Decided that the relevant European Sites were not suitable for the proposed aquaculture where:

▪ what was at issue was the regulation of an established aquaculture activity which predated the obligations imposed by the Habitats Directive; and ▪ the legislative scheme expressly provides for the continuation of such established activities for the purposes of both the Habitats Directive and the 1997 Act.

Failure to Bespeak NIS

1) ALAB erred in law and acted contrary to fair procedures and contrary to TLM’s rights under Articles 40.3 and 43 of the Constitution, where, being required to do an AA and in so doing to consider an NIS, ALAB failed, in a manner prejudicial to TLM, to properly consider TLM’s submission that it was willing to provide an NIS and the data required to complete it. Instead, it determined the renewal appeals without doing an AA such that there could not but be doubt as to the impact on the receiving environment – (whereby refusal of the applications was inevitable).33

JURISDICTION TO STAY & EFFECT OF STAY

22. As indicated above, the State argues in effect that I have no jurisdiction to grant a stay having the effect for which TLM contends and the only effect of any use to TLM. As has been said, that effect is that, as a stay creates a situation in which, in law and temporarily, ALAB’s Impugned Decisions are regarded as not having been made, it follows that s.19A(4) of the 1997 Act resumes effect and so permits continued aquaculture pending any licence renewal decision to be made on remittal if certiorari issues.

23. Perhaps surprisingly, that prompted me to inquire what exactly is stay and what does it do? Clarke J in Okunade credits Hogan J34 with the answer: the term “stay” should be interpreted widely so as to allow an order “with suspensive effect” in respect of both administrative and judicial decisions. Clarke J considered that a stay deprives a legally binding measure “of legal effect” pending the determination of proceedings – a stay is sought to prevent, pending trial, the relevant measure from having force.

33 The words in brackets are my gloss but covey the sense of the plea.

PJ v Minister for Justice [2011] IEHC 443.

24. Clarke J also said that the term “stay” could have no real application to a negative decision. For example, he said, a stay35 on the High Court’s refusal of an interlocutory injunction is meaningless. There is, he said, nothing to stay. That is undoubtedly generally true. But I do not think Clarke J had in mind the somewhat particular public law process in which ALAB made its decision. Renewals of expiring licences are, if not sui generis, at least particular. Often, perhaps typically, they will be sought by licensees with an established enterprise and a legitimate interest – though not ordinarily a legitimate expectation – in continuing it. Clearly, the view may be taken by the Oireachtas that more good will be served than the harm which may be done if the licensee, having made a timely renewal application but being at the mercy of the timeliness or otherwise and unpredictability of duration of an administrative process (such as, in this case, the seven years from renewal applications to the Minister to ALAB decisions), must shut down the licensed business immediately when the licence expires despite having made a timely renewal application. Whether or not that is so in the present case, it is easy to envisage circumstances in which cesser of licensed operations pending decision of a licence renewal application would mean ruin for the licensee. Or if not ruin, severe harm. And so the Oireachtas provides, as in s.19A(4), that despite expiry of the licence, trading may continue on the terms and conditions of the licence pending the renewal decision. There is a great deal of obvious practicality, common-sense and justice in such provisions.

25. In such circumstances, and though the impugned licence refusal decision is generally negative, a stay

of such a decision pending trial of a judicial review is far from meaningless – as this case illustrates. What can

be stayed is the practical loss of a pre-existing statutory entitlement to trade pending a licensing decision by reason of a presumptively valid but at least arguably invalid refusal of renewal of a licence. And in the present case, in which leave to seek judicial review has been granted, the case is more than merely arguable

– s.73 of the 1997 Act prohibited such grant of leave unless the High Court was satisfied of substantial grounds for contending that the decision is invalid or ought to be quashed.

26. One could, I suppose, posit a distinction between whether a decision has been “made” and whether

it has “effect” – arguing that a stay affects only effect and that s.19A(4) is exhausted by “the decision”. I see

no good reason – textual, contextual, purposive or in justice – to make that distinction. And in any event the

exhaustion of s.19A(4) is itself an “effect” of ALAB’s Impugned Decisions. In that light, the argument that had

the Oireachtas intended to permit a stay of the kind now sought pending judicial review, they would have so provided in s.19A(4) fails. The Oireachtas in legislating is presumed to know the law: MB36 and EMI.37 In the latter, Clarke J said that “the Oireachtas must be presumed to know the law and the Oireachtas is, of course, well aware of the existence and parameters of the High Court’s judicial review jurisdiction”. In the general law of judicial review, the jurisdiction to stay a decision and/or its effect (here at least it makes no difference which) is indelibly established. I see no reason to infer that, by not repeating that general law in terms in s.19A(4), the Oireachtas intended to create, sub silentio, an exception to that general law.

27. The matter goes a little further. As the State’s argument is jurisdictional, I can, as I have said, posit a circumstance other than that of TLM, in which cesser of business pending trial means ruin – that the

35 i.e. pending appeal.

36 MB v HSE [2023] IEHC 99.

EMI Records v Data Protection Commissioner [2013] 2 IR 669, 728.

business will not survive to see the trial, such that any victory would be hollow if even the proceedings can be got to trial. On the State’s argument, the purpose of judicial review, if successful, to return the parties to their position but for the error in law grounding certiorari, would be possible only in abstract law and not in any reality or, for that matter, in justice. Insofar as EU law rights of an applicant for judicial review may have been breached, that seems difficult to reconcile with the right, enshrined in Article 19 TEU38 and Article 47 CFREU,39 not merely to remedy but to effective remedy. And I confess that I cannot conceive that domestic law, at least generally, could differ in that regard. There is little justice in the State’s argument.

28. And what if TLM survives to trial despite not trading and ALAB’s Impugned Decisions are quashed and remitted to it for re-decision? It seems difficult to imagine that TLM would not be thereupon entitled to the benefit of s.19A(4) and so to cultivate mussels in the interim from certiorari to re-decision. What purpose then would have been served by denial of a stay in the interim? While Okunade acknowledges that

a risk of injustice to one side or other is likely inevitable in the exercise of the jurisdiction, it is difficult to see

that the court should be deprived as a matter of jurisdiction from even attempting to minimise the risk of injustice in view, inter alia and by no means exclusively, of the possibility that TLM’s substantial grounds for judicial review will yield it a dividend.

29. Further, I accept that inasmuch as s.73 of the 1997 Act requires that a challenge to an ALAB decision be by way judicial review under Order 84 RSC, it incorporates the power under Order 84 Rule 20 to stay the Impugned Decisions “until the determination of the application for judicial review or until the Court otherwise orders”. As counsel for TLM said, the possibility of a stay is “baked into” administrative law and judicial review generally and I accept his argument that s.73 of the 1997 Act, by invoking Order 84 RSC, adds that ingredient to the recipe of aquaculture licensing judicial review also.

30. I emphasise that I am dealing here with the jurisdictional argument – which I reject. I have jurisdiction to grant a stay on ALAB’s Impugned Decisions such that their effect in terminating TLM’s s.19A(4) right to cultivate mussels is stayed. Whether I should exercise that jurisdiction is a distinct question.

31. I should add that in coming to this conclusion I have considered cases cited by the State as having considered s.19A – Murphy’s Irish Seafood40 and Lough Swilly Shellfish.41 So they did, but not in any way that assists as to the issues before me. Nor do I consider that Deerland42 assists. In that case, Kelly J unsurprisingly rejected an argument that, on the quashing of ALAB’s decision, the Minister’s decision was reinstated. S.19A was not at issue and is not mentioned in Deerland. SWI43 in citing Deerland, does not add to the picture. Here we are not considering the revival of a prior decision by certiorari of a decision on appeal from that prior decision. We are considering the quite different:

Treaty on European Union.

39 Charter of Fundamental Rights of the European Union (2010/C 83/02).

40 Murphy's Irish Seafood v Minister for Agriculture [2017] IEHC 353.

41 Lough Swilly Shellfish Growers Co-Operative Society v Bradley [2010] IEHC 281; [2013] IESC 16, [2013] 1 IR 227.

42 Deerland Construction v Aquaculture Licences Appeals Board [2009] 1 IR 673.

SWI, IFI, Sweetman & Ors v ALAB et al [2024] IEHC 608 §30 et seq.

• Question what is the suspensive effect of a stay on an impugned decision in creating temporarily a position in which the decision is regarded as not having been made or having effect?

• Possibility that, at trial, certiorari and remittal will, in effect, wind back the statutory process to a point at which s.19A applies and the question whether, a stay pending trial can for practical purposes, preserve that possibility.

Nor, contrary to the Minister’s submission, do ss.40(4)-(6) of the 1997 Act affect the issue.

STAYS – OKUNADE ET SEQ

32. As to whether a stay should be granted in the circumstances of a particular case, the founding authority, all agree, is Okunade.44 In that case, the applicants sought an interlocutory injunction restraining their deportation pending the hearing of their application for leave to seek judicial review of the deportation order. Clarke J set down the following principles.45

Source Content Okunade The applicant for a stay bears the onus of demonstrating that it should be granted.

(a) The court should first determine whether the applicant had established an arguable case; if not the application must be refused, but if so, then;

(b) The court should consider where the greatest risk of injustice would lie.

• Clarke J noted an inevitable risk that, with the benefit of hindsight and when the dust has settled after trial, an injustice may be seen to have been done by either, as the case may have been, the grant or refusal of a stay.

• He said that the problem stems from the fact that the court is asked, on limited information and limited argument, to put in place a temporary regime pending trial where the court does not know what the result of the trial will be. So, recognising that a risk of injustice is inevitable, the underlying principle must be to put in place a regime which minimises the overall risk of injustice.

Later Caselaw • Minimising the risk of injustice is the overarching criterion.

/ Comment

• As was said in Harte Peat,46 “once arguable grounds have been established … the focus of the Court must be on making an order that minimises the risk of injustice as far as possible.”

• O’Donnell CJ in Chain Wen Wei:47

44 Okunade v Minister for Justice, Equality and Law Reform [2012] 3 IR 152.

45 I have amended the wording slightly without changing meaning.

46 Environmental Protection Agency v Harte Peat [2022] IECA 276.

Chain Wen Wei v Minister for Justice & Commissioner of An Garda Siochana [2024] IESC 58, [2024] 12 JIC 1903.

Source Content o Cited MD48 to the effect that Okunade dispelled any illusion that an applicant for judicial review is entitled as of right to a stay of the impugned public law decision pending trial and as counselling that “such orders must not be made reflexively or as a matter of routine.”

o Nonetheless said that it is in the nature of things that there will be many cases in which, after consideration, the appropriate course is to order a stay and perhaps an expedited hearing.49

• As to minimising the inevitable risk of injustice, in Krikke:50 o Costello J tellingly said there is often “no truly satisfactory solution”.51 o O’Malley J said that the court should minimise the risk of injustice “as best it can”.

o O’Donnell J said that “there is a clear risk of injustice, whatever course is adopted on the stay application” and “where there is an unavoidable risk of injustice on either side, and no simple rule of thumb which can reduce it, the court must necessarily reach a nuanced decision.”52

• In Harte Peat, the Court of Appeal found that “the circumstances of the present case are such that whatever course is adopted on the stay application, there is a clear risk of injustice.”

• O’Donnell CJ in Chain Wen Wei:53 o Said that it may be extremely difficult in some cases to ascertain where the balance of justice lies. The grant or withholding of a stay may be a very difficult balance to achieve, perhaps more difficult than the issues which routinely arise in private law applications for interlocutory injunctions since the interests involved are more substantial, are not commensurate, and the award of damages on the one hand, and an undertaking to damages on the other, are not matters which can mitigate the impact of the grant or refusal of a stay.

o Cited MD54 for the “fundamental point” that a stay suspending due implementation of a presumptively valid public law measure should be made only after carefully identifying and weighing all of the rights and interests engaged.

• Similar comments as the difficulty of the task are found in Jennings.55 In Toole,56 Humphreys J, in considering whether to grant a stay, considered the challenge facing him “delicate”.

48 MD v Board of Management of a Secondary School [2024] IESC 11.

49 Emphasis added.

50 Krikke v Barranafaddock Sustainability Electricity [2020] IESC 42, [2020] 7 JIC 1702. The posited stay was pending appeal but the problem is the same.

51 Ex tempore 19 December 2019. Cited by O’Malley J.

Emphases added.

53 Chain Wen Wei v Minister for Justice & Commissioner of An Garda Siochana [2024] IESC 58, [2024] 12 JIC 1903.

54 MD v Board of Management of a Secondary School [2024] IESC 11 in turn citing Merck Sharp & Dohme v Clonmel Healthcare [2019] IESC 65, [2020] 2

IR 1, per O' Donnell J.

55 Jennings v An Bord Pleanála [2022] IEHC 11.

Toole v Minister For Housing [2023] IEHC 317, [2023] 6 JIC 1603.

Source Content

Okunade In considering where the greatest risk of injustice would lie, the court should:

(i) Give all appropriate weight to the orderly implementation of measures which are prima facie valid.

• Clarke J notably framed this as an issue of the rule of law: the entitlement of those with lawful power to make legally binding public law decisions is an important part of a legal order based on the rule of law. Recognising the entitlement of such persons or bodies to carry out their remit without undue interference is an important feature of any balancing exercise. Significant weight must in all cases tell in the balance on the side of permitting measures prima facie valid to be carried out in a regular and orderly way. Regulators are entitled to regulate.

• He added later “[t]hat is not to say, however, that there may not also be weighty factors on the other side.”

Later In Krikke,57 as cited in Jennings,58 O’Donnell J framed this issue in terms of whether a Caselaw / stay will irreparably damage the rule of law as “the enforcement of the law is itself an Comment important factor and that even temporary disapplication of the law gives rise to a damage that cannot be remedied in the event that the claim does not succeed.” He described the relevance of that question as the real insight of Okunade.

O’Donnell CJ in Chain Wen Wei, cited MD:59

• For the proposition that the principle that an order is valid and effective until otherwise ordered by a court of competent jurisdiction is itself a component of the rule of law.

• But also as noting that:

“there may be (and in many cases will be)60 compelling considerations going the other way. Okunade certainly does not exclude the making of a stay or injunction that suspends or otherwise affects the implementation of a prima facie valid administrative measure. But Okunade counsels that such orders must not be made reflexively or as a matter of routine.”

Toole61 is notable for a partial corrective as to the effect of the presumption of validity of impugned decisions: “in practical terms it62 is subject to a zone of provisionality because the right to an effective remedy must in any case allow a reasonable period … for that decision to be challenged.”

In Jennings, a similar observation was made to the effect that:

Krikke v Barranafaddock Sustainability Electricity Ltd [2020] IESC 42 (Supreme Court, O'Donnell J, 17 July 2020).

58 Jennings v An Bord Pleanála [2022] IEHC 11 §48 et seq.

59 MD v Board of Management of a Secondary School [2024] IESC 11.

60 Emphasis added.

61 Toole v Minister for Housing [2023] IEHC 263.

i.e. the impugned decision.

Source Content “at least in EU Environmental law contexts in which a right of judicial review of environmental law permits is afforded (viz. Article 11 of the EIA Directive), judicial review is not an extraneous interference in a system which has already produced a permit: it is, rather, internal and integral to the environmental law permitting system itself. Ceteris paribus, such a view would tend towards the grant of stays on impugned decisions pending trial of judicial review. At a very general level, this would seem consistent with the high level of environmental protection enjoined in Article 191 TFEU and Article 37 CFEU.”

That observation in Jennings, especially the last sentence, more readily applies to a stay on a development consent to a project alleged to pose an environmental risk if it proceeds than to a refusal of development consent, which cannot pose such a risk. But the general observation that effective judicial remedy is integral to environmental

decision-making does apply even here.

Okunade In considering where the greatest risk of injustice would lie, the court should give appropriate weight (if any) to:

(ii) Any public interest in the orderly operation of the particular scheme in which the measure under challenge was made;

(iii) Any additional factors which arose on the facts of the individual case which would heighten the risk to the public interest of the specific measure under challenge not being implemented pending resolution of the proceedings. Later Caselaw Factors (i) (ii) and (iii) are similar in addressing aspects of the public interest. (i) relates / Comment essentially to the rule of law, (ii) addresses the importance of the orderly operation of the particular scheme, and (iii) addresses the particular order made within that scheme.

Okunade In considering where the greatest risk of injustice would lie, the court should:

(iv) Give all due weight to the consequences for the applicant of being required to comply with the measure under challenge in circumstances where that measure may be found to be unlawful.

• Clarke J considered it necessary to assess the extent to which, in a practical way, there is a real risk of injustice to an applicant for judicial review in being forced to comply with a challenged measure which may ultimately be found unlawful. The weight of such considerations will inevitably vary as between types of case and by reference to the facts of the case in question.

Source Content Okunade (c) The court should, in those limited cases where it was relevant, have regard to whether damages were available and would be an adequate remedy and also whether damages could be an adequate remedy arising from an undertaking as to damages.

Later Caselaw I will return to the issue of adequacy of damages below.

/ Comment

Okunade (d) Subject to the issues in the judicial review not involving detailed investigation of fact or complex questions of law, the court could place all due weight on the strength or weakness of the applicant's case.

Later Caselaw In Toole,63 Humphreys J cautioned restraint: “[t]he difficulty with a court going beyond / Comment an assessment of an applicant's case as merely arguable (or at most substantial) is that to proceed to an assessment of its strengths and weaknesses can far too easily turn into something which is functionally indistinguishable from giving a provisional view on the ultimate outcome of the case. That is often an unsatisfactory procedure not least from the point of view of justice being seen to be done”.

33. As to stays affecting environmental risks and compliance with EU law, Jennings64 assists. In that case, a stay pending trial of an impugned planning permission was vacated. In that sense, it raised the same issue as arises here: the prospect of environmental damage and breach of EU environmental law pending trial. The following appears:

“Inasmuch as in the present case a breach of Habitats Directive obligations is alleged, it is noteworthy that O’Malley J for the Supreme Court in Krikke, observed that: ‘There is no obligation to modify the principles governing the grant of a stay pending appeal, merely because the underlying proceedings include an allegation of breach of the EIA Directive. Counsel points out that Okunade itself was concerned with rights under EU law, and that in Dowling65 this Court rejected an argument that the Okunade test breached the principles of effectiveness or equivalence’.”

34. Further, Zuckerfabrik66 (cited in Dowling) makes it clear that the right to effective remedy – “the coherence of the system of interim legal protection”67 – would be compromised if those seeking such remedy “were not in a position, where certain conditions are satisfied, to obtain a decision granting suspension of enforcement” of the impugned EU law measure. The context in that case was different – it was a challenge to the validity of EU legislation. But the logic seems applicable here, at least in principle. And as Clarke J observed in Dowling, citing Okunade: “[t]he problem with which any court is faced in deciding, in advance of

Toole v Minister for Housing [2023] IEHC 263.

64 Jennings v An Bord Pleanála [2022] IEHC 11.

65 Dowling v Minister for Finance [2013] 4 IR 576.

66 Zuckerfabrik Süderdithmarschen AG v Hauptzollampt Itzehoe and Zuckerfabrik Soest GmbH Hauptzollampt Paderborn (Joined Cases C-143/88 & C-

92/89) [1991] ECR I-415.

The EU law concept of interim legal protection encompasses what we call interlocutory relief.

a time when the court has had an opportunity to fully examine the merits of the case, to make some form of interim intervention is the same in all cases, including cases before the ECJ itself.”68

35. I return to the difficulty observed by Clarke J in Okunade – that the court proceeds at this point “on the basis of limited information and limited argument”. That is so here. My findings below are subject to revision in light of better information and more thorough argument at trial. However, I consider them justified on the evidence at present to hand in a context in which TLM has shown substantial grounds and so has leave to seek judicial review such that for present purposes my overarching yardstick is risk of injustice.

TITLE ISSUE & S.8(3) OF THE 1997 ACT

36. Sections 8(1) & (2) of the 1997 Act make it clear that to lawfully exploit a several fishery, its owner needs an aquaculture licence. That is no more remarkable than the requirement that a landowner needs planning permission to develop his/her land and, perhaps, other licenses to use it – for example, an industrial emissions licence for his/her factory.

37. Section 8(3) of the 1997 Act prescribes that "an aquaculture licence shall not be construed as taking away or abridging any right on, to or over any portion of the seashore enjoyed by a person under a local or special Act, or any charter, letters patent, prescription, or immemorial usage or a right of several fishery without the consent of that person".

38. The parties – understandably – differ as to the interpretation of this section. They differ also as to whether TLM satisfies the condition of its application – that TLM have a several fishery in the formerly licensed areas.

39. Taking TLM as successor to Lett (TLM bought Lett’s rights and licenses to the relevant mussel farms), I note that Lett farmed mussels in Wexford Harbour from the 19th Century – though whether and to what extent in the formerly licensed areas I do not know. TLM issued plenary proceedings in 2021. I have not seen them but they assert a several fishery or fisheries in the formerly licensed plots by prescription on foot of the doctrine of lost modern grant. I presume they seek declarations accordingly. Only very recently did the State file a defence denying the claim – inter alia, it seems, on the basis that Magna Carta does not avail TLM as the King of England’s writ didn’t run to Wexford in 1189.69 I freely confess that I have not fully appreciated the legal and other nuances at play in those proceedings. I have very limited information about them. Indeed, the law of prescription is legally and evidentially complex.70 It suffices to say that I cannot

68 §96.

69 1189 is the date before which, the law presumes, man hath no memory – i.e. time immemorial. I presume the argument would be that as the king’s

writ didn’t run to Wexford in 1189 no right of several fishery in Wexford Harbour could have been granted to him in time immemorial. For the purpose

of the doctrine of lost modern grant, counsel for TLM tells me, “modern” means any time after 1189. Happily, I need not further pursue the issue here.

See for example Loose v Lynn Shellfish [2016] UKSC 14, [2017] AC 599, [2017] 1 All ER 677.

decide the title dispute - nor even provisionally assess the strength of the title claim. Nor, on the information to hand, can I assign any blame for the slow pace of those proceedings – if blame is appropriate. It seems that their issue and their slow pace thereafter may have been affected by legislative developments as they bore on the law of prescription.71 Obviously however, if a stay is granted in these proceedings, its continuation over time may yet prove vulnerable to any future delay in those proceedings.

40. While very far from deciding the issue (which was not argued) and without knowing the period of prescription on which TLM relies, it strikes me that a difficult question could arise in the plenary proceedings as to whether any period during which Lett/TLM held an aquaculture licence would tell if the view were taken that the mussel farming relied upon as prescribing for a several fishery, even if as if of right, was explicable in virtue of the licence only (and the permission it represents) rather than a several fishery.

41. TLM cite Clarke J in Lett72 for his observation that Lett would have got licences for certain plots in Wexford Harbour “as a matter of virtual certainty” but for the controversial imposition of an exclusion zone around a new wastewater treatment plant outfall pipe. But it is important to note that Clarke J did not ground this comment in any proprietary right in Lett or in s.8(3). His observation was by way of a factual inference from the Department’s practice at the relevant time of licensing fishermen to operate the beds which they had traditionally fished on foot of an agreement made between the mussel fishermen operating in Wexford Harbour in the 1960’s. Whatever the legal effect of agreement between the fishermen, it could not, of itself, have created a several fishery in Lett capable of assertion against the State and the world at large. And, in any event, the observation seems not have related directly to the sites in question in these proceedings (which are not in the outfall pipe exclusion zone) – though its logic may have been transferrable to them.

42. Lett won its case against Wexford Borough Council on the basis of a legitimate expectation that it would receive compensation for the imposition of the outfall pipe exclusion zone encompassing certain of its mussels beds.73 In the Supreme Court, O’Donnell J observed that it was clear that a mussel business will not normally own the area where the mussels are grown: accordingly the legal basis for the industry is somewhat precarious, or at least was until the 1997 Act. He agreed however that the State’s general intention in effecting the 1997 Act was to licence existing operators for the areas which they had

traditionally used and that, as a matter of fact and but for the exclusion zone, it “plainly was the case, that in

the normal course of events, the plaintiff would have received an aquaculture licence in respect of the beds in question”. However, and notably, he said: “[t]here was no exploration in this case as to whether the plaintiff company had any other rights as a matter of law.”

43. In that case Lett did not assert a several fishery. It may of course be that Lett had asserted different rights as to different plots. That is not to say Lett did not have and TLM does not have any several fishery (though it would be surprising that Lett would not have asserted a several fishery if they believed they had

71 Primarily the Land and Conveyancing Law Reform Act 2021.

72 Lett & Co Ltd v Wexford Borough Council [2012] 2 IR 198.

A condition in Wexford’s foreshore licence for the outfall pipe in effect required it to bona fide negotiate compensation with affected fishermen.

one). It is merely to say that, it seems to me, Clarke J’s observation, which counsel cited, doesn’t help them prove a several fishery or several fisheries in the plots at issue in this case. I should acknowledge that counsel for TLM recognised the difficulty.74

44. TLM deposed variously that “[t]he Applicant has a recognised, existing and established property

right” of several fishery and that “it has already been determined that there is a several fishery” at the Sites.

The State objected to these averments. In my view, correctly. As so often, the passive tense serves to obscure. TLM does not say by whom, when or how its right has been “recognised”, “established” or “determined”. As TLM must have known its assertion of a several fishery is disputed, those averments should not have been made on oath in the uninformative form in which they were made.

45. Assuming however, and for arguments’ sake, a several fishery in TLM, TLM says that s.8(3) “grandfathers” as it were – preserves the proprietary position of – several fisheries predating the aquaculture licensing regime and TLM’s several fishery obliges ALAB to grant it at least some licence for mussel cultivation on the relevant plots. That is so, it says, as if a licence cannot “be construed as taking away or abridging any right on, the seashore enjoyed by prescription, or immemorial usage or a right of several fishery” then, a fortiori, refusing a licence with the same effect is also forbidden.75 Indeed, TLM pitches its case high. It asserts that even if its mussel farming in its several fishery is damaging the integrity of European Sites, nonetheless, ALAB must grant a licence. TLM also asserts that any other interpretation of s.8(3) would be unconstitutional as purporting to permit uncompensated expropriation of property rights. The Respondents, predictably, dispute that ALAB could be compelled to grant a licence in breach of EU law. They say that several fisheries, no matter when acquired, are not a privileged class of proprietary right which can be exercised in breach of the Habitats Directive. They cite McGrath Limestone76 to the effect that TLM cannot in law “expect that, as regards the environment or the entitlement of the people of Ireland to participate in the planning of its built infrastructure and land use, the law will never change.” As will be appreciated, these propositions alone raise complex questions of European and constitutional law which I cannot here resolve.

46. I had thought to analogize planning permissions: refusal of permission for one development is not expropriation of property as land can typically be put to other uses. But on reflection it seems likely that any prescriptive right in a several fishery is limited by the scope of its historic user.77 So, as Bland observes,78 several several fisheries may co-exist in the same waters: the one to raise oysters, another to take eels and others for other kinds of fish. On that view TLM could not turn from mussels to, say oysters – or at least could not do so in virtue of their several fishery.79

Transcript Day 2 p33.

75 Transcript Day 2 p6.

76 McGrath Limestone Works Ltd v an Bord Pleanála [2014] IEHC 382, [2014] 7 JIC 3005.

77 Loose v Lynn Shellfish [2016] UKSC 14, [2017] AC 599, [2017] 1 All ER 677.

78 Easements, 3rd Ed’n 19-08.

See transcript day 2 p27.

47. The Minister and ALAB, on the other hand, noting TLM’s case that s.8 means ALAB cannot refuse it at least some mussel cultivation licenses, dispute that interpretation as ultimately destructive of ALAB’s licensing powers. It argues that s.8(3) is directed exclusively to the circumstance in which an aquaculture licence is granted to a person in respect of a part of the foreshore over which another person holds a several fishery or another right stipulated in s.8(3).80 It does not apply, they say, where the aquaculture licence issues to the owner of that several fishery and regulates its exploitation by that owner. TLM responds that such an argument ignores the fact that s.8(2) permits the issuing of an aquaculture licence to a person other than the owner of a several fishery only with the owner’s consent – which, on the Minister’s and ALAB’s interpretation of s.8(3), would make s.8(3) essentially meaningless, at least as to aquaculture in several fisheries.

48. I am unaware of relevant authority on the interpretation of s.8(3). I should not decide the difficult question of the interpretation of s.8 on the present interlocutory state of argument. Ultimately these issues,

if live, are for trial. Doubtless, happy hours will be spent comparing the word “abridged” in s.8(3) to the word

“regulate” and asking where regulation (which a licence must do to be meaningful) falls into abridgement (which s.8(3) prohibits), discerning the light that Simmonds81 may shed on that question and debating whether the outcome amounts to an unjust attack on constitutionally protected property rights. For now I do not think I can say more than that TLM has shown substantial grounds for its arguments on the issues of title and s.8. I cannot say its case is stronger than that.

CRIMINALISATION & ATTACK ON PROPERTY RIGHTS

49. TLM argues that refusal of a stay will expose it to criminal prosecution if it continues mussel farming pending trial. That is true but a distraction. The proper conclusion is that, not having a licence, TLM will not farm mussels pending trial and so will be at no risk of criminal prosecution. That unlicensed mussel farming is a crime does not add to the case for a stay. TLM in fact agrees that absent a stay it will have to abandon farming the relevant mussel beds pending trial.

50. TLM amplifies the argument to the effect that this forced abandonment pending trial would amount to an expropriation of, and an unjust attack on, constitutionally protected property rights without compensation. That argument rests not on the aquaculture licencing position but on the assertions of a proprietary several fishery, that interferences with them are trespass and/or that the law usually protects such rights by injunction. TLM takes the matter further by arguing that its argument need not rest on a proprietary right of several fishery but can rest on mere possession, which the law of trespass protects by injunction.

80 In full, the relevant text of s.8(3) reads any “right on, to or over any portion of the seashore enjoyed by a person under a local or special Act, or any

charter, letters patent, prescription or immemorial usage, or a right of several fishery,”

Simmonds v Ennis Town Council [2012] IEHC 281.

51. It is not possible at present to closely analyse the position in these regards but on balance I am unconvinced by these arguments for a stay – at least as to their weight for present purposes.

• First, as I have said, it is impossible at present to weigh the strength of any proprietary claim. Certainly, I cannot simply assume that TLM has a proprietary several fishery.

• Second, to the extent that possession of the mussel beds depended on the aquaculture licenses and s.19(4), it ended, as a matter of any right, on any expiry/termination of those rights.

• Third, while physical interference with possession of a several fishery may be trespass, or a tort akin to trespass, it is not clear to me that what one may call regulatory interference with the operation of a several fishery, even if erroneous in law, is such a tort.82

SEQUENCE OF EVENTS FROM 2016

52. In 2016, the respondent Marine Institute, a State agency,83 scientific advisors to the Department of the Marine and a prescribed consultee in aquaculture licence applications,84 produced a suite of documents (the “2016 MI Report”) which together purported to comprise an AA of aquaculture in Wexford Harbour. It was done specifically with reference to questions of effect of such aquaculture on the integrity of Slaney River Valley SAC, Raven Point Nature Reserve SAC, Wexford Harbour and Slobs SPA and Raven SPA. That report was not prepared in contemplation of a particular proposed project or development consent application. It may have been an early version of a type of “Screening Matrix” document later prepared by the Marine Institute in respect of other aquaculture locations.85 But whatever any doubts as to its legal status, it had practical value.

53. In particular, it:

a. Identified bottom culture of mussels as the main, though not the only, aquaculture activity within the SACs (and vicinity). I presume that this included, but was not limited to, the areas covered by TLM’s licences of which it later sought renewal and European Sites potentially affected by mussel cultivation thereon.

b. Identified, as to birds protected by the Birds Directive and for which the SPAs were designated:

▪ A high likelihood of significant impacts of bottom mussel culture on the Red-breasted Merganser, and the Little Tern.

▪ That the available evidence was insufficient to rule out beyond reasonable scientific doubt significant impacts of aquaculture on the Greenland White-fronted Goose, Scaup, Goldeneye and Great Crested Grebe on high tide roosts.

82 See, for example, Inland Fisheries Ireland v O'Baoill [2022] IECA 266; Lough Swilly Shellfish Growers Co-Operative Society Ltd v Bradley [2013] IESC 16,

[2013] 1 IR 227; Gannon v Walsh [1998] 3 IR 245; Tennant v Clancy [1987] IR 15; Loose v Lynn Shellfish [2016] UKSC 14, [2017] AC 599, [2017] 1 All ER

677.

83 Constituted pursuant to the Marine Institute Act 1991.

84 Aquaculture (Licence Application) Regulations 1998 (S.I. No. 236 of 1998) Article 10.

See SWI, IFI, Sweetman & Ors v ALAB et al [2024] IEHC 421.

c. States of the respects in which the available evidence is not sufficient to rule out significant impacts beyond reasonable scientific doubt: “[h]owever, this does not mean that all these impacts are considered to be very likely to occur.” It is difficult to understand the relevance of this observation as an element of AA: if positing a standard by reference to which development consent decisions might be made it is clearly wrong. In any event, the word “all” clearly implies at least some of the significant impacts in question may be “very likely to occur”. The caselaw is clear that an AA must be precise. This observation muddies the waters.

d. Did not “include assessment of the potential cumulative impacts of the aquaculture activities in combination with other activities. The cumulative impact assessment can only be prepared when there is a reasonable level of certainty about the likely impacts arising directly from the activities being assessed, which is not the case for the present assessment. This report does not include assessment of the potential cumulative impacts of the aquaculture activities in combination with other activities. The cumulative impact assessment can only be prepared when there is a reasonable level of certainty about the likely impacts arising directly from the activities being assessed, which is not the case for the present assessment.”86

e. Listed “as required to complete this assessment” what it considered to be the studies and research work required to enable a complete AA. It does not require expertise to discern that very considerable work – including data assembly – was required.

54. It was inevitably and immediately clear from the 2016 MI Report that the Marine Institute considered that it had been unable, for want of adequate data, to complete an AA. On its face, it was not an AA as required by the Habitats Directive and made clear that considerable studies and research work were required to enable a complete AA. That an AA could not be done on the then-available data, the route to AA and the broad scale of the task have been apparent since 2016. At very least, the 2016 MI Report made it all but inevitable that AA Screening of any renewal application for an aquaculture licence for bottom culture of mussels in the area covered by the 2016 MI Report was highly likely to require AA.

55. Nonetheless, as far as the papers reveal,87 TLM did not include AA Screening reports or NISs in their renewal applications of May 2018. In response to the pre-printed application form question as to location in or adjacent an SAC or SPA (Natura 2000 Site), TLM replied “[a]lready assessed under natural directive”. Presumably “natural” should have read “Natura” and was intended to refer to the Habitats Directive and to the Marine Institute 2016 MI Report and likely also to the exhibited “Appropriate Assessment Conclusion Statement” to which I refer below. While this might be criticised as an incorrect interpretation by TLM of the legal position and of those documents as constituting complete AAs, it seems likely that TLM was conforming what it reasonably understood to be the Department’s attitude to them and this may well explain why it did not, when making the renewal applications, enclose an AA Screening report or an NIS.

86 MI Summary Report p11.

The exhibited application form of 2018 does not require a listing of nor does the completed form list, enclosed documents save attached maps.

56. The Minister for the Marine granted the renewals in September 2019, reciting that AAs had been done by reference to an “Appropriate Assessment Conclusion Statement” available online and on that basis renewing the licenses for reduced areas and on certain terms intended to mitigate effects. TLM has exhibited the Department’s “Appropriate Assessment Conclusion Statement”. It relates to relevant SACs and SPAs88 but is not, as AA requires, an AA specific to TLM’s activity – in AA terms the “project” for which licence renewal was sought. Of this “Conclusion Statement”, the following can be said:

a. It recites that an “Appropriate Assessment report for aquaculture activities, under Article 6 (3) of the EU Habitats Directive, has been carried out in the above ‘Natura 2000’ sites89 by the Marine Institute on behalf of the Department.” It refers to that report as “this Appropriate Assessment”. Overall, it is apparent, if one compares the documents, that this is a reference to the 2016 MI Report – though it is not apparent from the “Appropriate Assessment Conclusion Statement” that the Marine Institute report had been done in 2016. As a matter of basic public administration, the “Appropriate Assessment

Conclusion Statement” should have identified the Marine Institute report precisely by title and by date.

It should also have indicated where the Marine Institute report was available – though I assume someone seeking it could have found it.

b. For that matter, the “Appropriate Assessment Conclusion Statement” is itself undated: a fact all the more disquieting given it is, on its face, an “updated” version. The document discloses the date of neither the original nor the updated version. Nor, with one exception, and that vaguely stated90 – does it disclose in what respects or by reference to what new information it was updated. The exception does disclose, in unspecific terms, at least some interaction with the Marine Institute which presumably postdated its 2016 MI Report.

c. It is apparent that the Conclusion Statement in various respects discounts environmental risks identified in the 2016 MI Report but precisely on what basis in data / information / expertise / professional judgement is not apparent.

d. The Conclusion Statement does purport to assess cumulative impacts but does not disclose that the Marine Institute in 2016 had disavowed any cumulative assessment. Nor does it record how that deficiency had been thereafter addressed and overcome.

e. The Conclusion Statement does not disclose that the Marine Institute in 2016 had identified a long list of studies and research “as required to complete this assessment” - nor does it suggest that the work had since been done.

I am conscious that this document is a “Conclusion Statement” and that other documents may underlie it which are not exhibited. Even so, and on the evidence before me, my concerns expressed above remain.

88 Slaney River Valley SAC (Site Code: 000781); Raven Point Nature Reserve SAC (Site Code: 000710); Wexford Harbour and Slobs SPA (Site Code:

004076) and Raven SPA (Site Code: 004019).

89 i.e. the SACs and SPAs.

Conclusion 5 on page 12.

57. BWI91 and TLM appealed the Minister for the Marine’s determinations: the former appealing the grants, the latter the area reductions. When the appeals got to ALAB in October 2019 it should have been very quickly apparent to ALAB from the 2016 MI Report and despite the undated Conclusion Statement and the Minister for the Marine’s determinations of the renewal applications, that an AA Screening was required and, indeed that AA was, at very least, a likely prospect. Further, and as far as the exhibited documents reveal, it was at least unclear at that point that the demanding work prescribed by the Marine Institute in 2016 had been done and/or a database adequate to a complete AA assembled. I consider that it is not the misapplication of hindsight to say that the subsequent expert KRC92 reports commissioned by ALAB reveal what, in substance, ALAB should have quickly appreciated on getting the appeals. Not least, inquiry as to the state of the data collection prescribed in 2016 would have impressed on ALAB the need to urgently set about the issues of AA Screening and AA in fulfilment of their statutory duty of expedition. Had that been done, the four-year period to complete an AA would have passed by, say, early 2024.

58. That observation raises a difficult question as to who would have set about the data collection and when and at what cost. But given the State’s positive obligations to which I will refer below and while acknowledging that the data yielded in those regards may not have overlapped neatly with those required for AA, as decisions as to stays are invariably made on limited knowledge, I am not prepared, overall, to allow that consideration to weigh against TLM in the balance of risk of injustice at this point of the proceedings.

59. I do not know what, as relevant to AA Screening and AA, ALAB did until in November 2021, over two years after getting the appeals, its technical advisor advised that expert ornithological advice be obtained.93 That came to hand from KRC in June 202394 – 3½ years after the appeals had come in. It is important to say that save for one site visit, this KRC report of June 2023 was essentially a desktop exercise based on available

information, as its title – “An assessment of available waterbird data” – suggests. That is not at all to suggest

that the report was in any degree inadequate. While no doubt elaborating, in its essence it states what seems to me to have been apparent to any reader of the 2016 MI Report. While I do not have the technical advisor’s report of November 2021, from reading the KRC report of June 2023 as in effect a response, it is clear that the technical advisor’s report of November 2021 must have been grounded in an unsurprising appreciation of concerns as to the position regarding AA.

60. The following extracts of the KRC report of June 2023 bear repetition at length:

• From its summary:

“Appropriate Assessment under the EU Directives requires an objective scientific assessment of data.

While the 2016 assessment was thorough,95 that assessment highlights some likely significant

91 Birdwatch Ireland – the fifth Respondent.

92 KRC Ecological Ltd.

93 Affidavit of Mary Hegarty for ALAB sworn 10 October 2025. The technical advisor’s report of November 2021 is not exhibited.

94 I do not know when KRC were retained, though the first draft of their report was dated 04/01/2023. I do not suggest delay on KRC’s part.

Which, in context, clearly means that the Marine Institute had done the best they could on the information available to them.

impacts of aquaculture on the site on certain species and potential impacts on others; much of the uncertainty of the potential effects is due to very significant data gaps on species numbers and trends, species distribution within the site and behaviour in relation to existing activities.

These data gaps do not allow a thorough assessment such as is required and under a previous ECJ ruling … an AA under Article 6(3) ‘cannot be considered appropriate if it contains gaps, and lacks complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt as to the effects of the works on the SPA concerned’. Moreover, the AA96 does not consider cumulative effects which is again a requirement under Article 6(3).

We consider it impossible to assess the potential impacts thoroughly even now, as much of the inadequacies apparent in the 2016 Appropriate Assessment remain. It is our view that, until a detailed programme of original field research is planned and empirical data gathered and appropriately analysed from this site, it is not possible to assess the potential impacts of the proposed aquaculture activities to meet the requirements of an AA.”

• From its recommendations:

a. As to waterbird populations: “[s]ignificant long-term declines are evident in Wexford Harbour”.

b. While it is not suggested as the only cause, there is “a generally poor understanding of the potential effects of aquaculture on waterbirds.” And “the potential effects of bottom culture mussel aquaculture are poorly-understood.”

c. “Site-specific studies are required to provide the scientific evidence base to prove an absence of negative effects beyond reasonable doubt.”

d. “Site-specific studies are required to investigate the potential effects of mussel aquaculture in Wexford Harbour & Slobs SPA to ensure that the Conservation Objectives, including of maintenance of populations in favourable condition are met. The most recent Conservation Objectives (2012) are now

10 years old (and evaluate on even older data) and a robust baseline analysis of population trends should be undertaken. Based on the evaluation presented here, it is likely that the number of species in unfavourable condition has increased considerably in the interim.”

e. As to the highly likely effects identified in 2016: “[i]t is clear that this needs to be properly evaluated to assess the potential impacts of bottom mussel aquaculture activities on these QI species.”97 f. Of specific possible impacts identified in 2016: “[t]he uncertainty associated with the above means that a complete Appropriate Assessment is not possible.”

96 i.e. the 2016 MI Report.

Qualifying Interests for which an SPA is designated as such. In this case the reference is to the Red-breasted Merganser and Little Tern.

g. “It is unclear as to why the shortcomings identified by the 2016 AA have not been addressed in the subsequent years – most if not all of the issues identified in that report remain and the recommendations appear to have, on the whole, not been implemented.

A revised Appropriate Assessment (based on much more recent data) is required to assess in situ and ex situ impacts and this can only be underpinned by addressing the very significant data gaps and uncertainties highlighted in the 2016 Appropriate Assessment. 98 Some of these data gaps are identified and described by the AA and in the submissions by, for example, An Taisce and BirdWatch Ireland.99 We would recommend that careful consideration be given to review the nature and scale of any deskbased and/or new field assessments so that a robust scientific assessment can be made at this site to form the basis of future decision-making.

Any future work has to initially review the recommendations arising from the 2016 AA, in particular those areas where incomplete or inadequate data was highlighted and determined necessary for providing the scientific evidence base for decision-making.”

h. “All available data has to be collated and we suggest an independent programme of work commissioned with very clear objectives and resources to undertake desk, field and analytical work.”

i. “… any new field study should take place over a period of a minimum of two, ideally three years”.

The report goes on to further describe the work required – though it makes it clear that further expert scoping and planning is necessary.

61. While two further KRC Reports100 ensued, of this KRC report in June 2023 it can be said that:

• It proceeded essentially from the 2016 MI Report. Its conclusions and recommendations, while more specific and detailed, were at least in general terms an expression of that 2016 MI Report.

• It clearly expressed the inadequacy of any AA already purportedly done.

• While not a formal AA Screening report, much less an AA, it very obviously made AA Screening inevitable and AA a high probability. Both could have begun in short order – the latter at least to the initial extent of requiring the preparation of a Natura Impact Statement. However, it was clear that such preparation was likely to take at least a number of years.

62. Assuming, for the sake of argument, that ALAB’s Impugned Decisions were legally sound when made in March 2025, it is difficult to see that, even assuming a need for further fair procedures consultation, the same decisions could not have been made for the same reasons fairly soon after June 2023. That is especially

98 Emphasis added.

99 Each had objected to the renewal of TLM’s licences.

100 Dated 26 September 2024 - “A gaps analysis of ornithological information underpinning future environmental planning with respect to aquaculture

in Wexford Harbour”, and dated 30 January 2025 confirming that “It remains the case that it is not possible to assess the potential impacts of

aquaculture activity on the Wexford Harbour and Slobs SPA and certain other SPAs without addressing significant data gaps.”

so if, as it now is, ALAB was motivated then by its statutory duty of expedition and its fear of risk to the integrity of European Sites by reason of TLM’s continued mussel farming in reliance on s.19(3). Indeed, in light of the 2016 MI Report, and if with only somewhat less force, the same observation could in reality be made as to ALAB’s position shortly after getting the appeals in 2019. The KRC report of June 2023 in reality merely told ALAB what it should have known three years earlier.101

63. In January 2024 (about five years and eight months after TLM’s renewal applications were made and about four years and three months after it got the appeals), ALAB issued a s.46 Notice102 to TLM. Inter alia, it stated that, for reasons essentially prefiguring those of its Impugned Decisions, including its duty of expedition and concern at risk to European Sites by TLM’s continued mussel cultivation in reliance on s.19A, it was provisionally of the view that the appeals should be refused as it would not be possible or appropriate to seek to address the deficiencies in the scientific data in the context of the appeals. Inter alia, it was not “feasible” to expect TLM to do so.

64. TLM replied in May 2024, unsurprisingly expressing its concern and stating various arguments which I need not recite here. It did not dispute that AA was required and that available data was inadequate to that task. I provisionally consider that TLM’s argument that ALAB itself should set about data generation is incorrect – though ALAB likely has a duty to itself bespeak it from others, including State organs, having the data in question, in the event an NIS lacks it. TLM pointed to ALAB’s statutory powers to require of any party to an appeal or any person who has made submissions or observations, any document, particulars or other information necessary to its determination of an appeal or to require an NIS of TLM. It disputed ALAB’s view that it was not “feasible” to expect TLM to undertake the work programme and supply the necessary information and accused ALAB of failing to require TLM to provide the information. It called on ALAB to direct it and the other appellants to do so and stated its willingness to do so. In other words, and in substance, though it might have said so a little more explicitly, TLM offered to provide an NIS.

65. I cannot at this point speculate whether ALAB was right as to the feasibility of TLM preparing an NIS and whether in offering to do so there may have been an element of TLM playing the long game by offering it, relying on s.19(4) to trade on meanwhile. I draw no conclusions in either regard. But presuming ALAB right as to the feasibility issue, the fact remains that it took from May 2024 to March 2025 for ALAB to carry its logic into effect, despite its stated anxiety for expedition and concern for the effect of continued mussel cultivation on European Sites.

66. In the event, only in February 2025 did ALAB’s present technical advisor (having, it should be said, taken up the role in late 2024) produce an AA Screening report and a separate “final” report. They:

101 Allowing six months from receipt of the appeals for ALAB to consider the position – generous in light of the four-month target set by the 1997 Act.

S.46 of the 1997 Act empowers ALAB to seek, in the interests of justice, further submissions or observations as to an appeal.

a. Recorded that the 2016 AA was not “sufficient or fit for purpose”. Given her then-recent arrival in the process, it is no criticism of ALAB’s present technical advisor to say that this had been apparent since 2016 as the 2016 AA itself said so.

b. Identified potential effects as including:

▪ Physical disturbance and habitat loss in inter-tidal estuaries, mudflats and sandflats.

▪ Increased suspended sediment concentrations as to migratory fish species and visual impacts.

▪ Above-water noise disturbance of birds, due to mussel seed relaying, surveying and dredging.

▪ In-combination effects.

c. Advised that:

▪ An NIS was required to do an AA.

▪ AA would take up to four years to complete (not least given the time required for data assembly).

▪ TLM’s licence renewal applications be refused.

67. As has been seen, the Impugned Decisions ensued accordingly.

68. Even allowing for the fact that we are at an early stage of these proceedings, ALAB’s response to these issues was strikingly diffident. I set out in full the extent to which its written submissions addressed the point – or, more accurately, didn’t:

“The Applicant submits that its application for a stay has to be seen in the context of the time it took to determine the Appeals and the steps taken by ALAB in this regard.103 In this context, ALAB reserves the right to rely, at the hearing of this stay application, on the evidence contained in its opposition papers (when filed) in relation to the chronology of the processing and determination of the Appeals.”

69. ALAB’s Statement of Opposition is not before me.104 Its deponent as to the stay,105 while reciting some of the sequence of events, does not address the question of delay in the process. One can only assume that ALAB said nothing of substance in its submissions because nothing of substance as yet came immediately to mind. And, as I have said elsewhere,106 the various challenges which ALAB has faced may require recognition whether or not they affect the outcome of these proceedings. And, of course, ALAB may yet provide a substantive reply on these issues. But for now I can proceed only on what is before me. And perhaps TLM are partially to blame - I refer below to one possibility in that regard.

70. In considering the foregoing, it seems to me notable that the Marine Institute, though a Notice Party to these proceedings and separately represented, did not participate in the stay application. I consider that I can take judicial notice that the Marine Institute, as scientific advisor to the Department of the Marine and a

103 §1.9(g) of the Applicant’s Submissions on Stay Application.

104 It was filed during the hearing but it is agreed that I should not have regard to it for present purposes.

105 In fairness, a recent arrival in ALAB.

SWI, IFI, Sweetman & Ors v ALAB et al [2024] IEHC 608 §30 et seq.

prescribed consultee in aquaculture licence applications, is typically significantly involved in the process of assessment of, including AA Screening of, aquaculture licensing applications to the Minister.107 Unsurprisingly, the Marine Institute did not in 2016 stand over the 2016 MI Report as a valid AA. Of fairness, I should say that the 2016 Report speaks for itself in that regard. Nor did the Marine Institute:

• On the evidence before me, shed any light on the issue of compliance with its 2016 recommendation of a programme of research.

• Shed any light on its own contribution to the AA Conclusion Statement produced by the Minister for the Marine or comment on the omission from it of mention of the programme of research which it had recommended.

• Shed any light on how the impediments to AA identified in the 2016 MI Report and its deficiencies as an AA, including as to data availability, had been overcome such as to result in the AA Conclusion Statement.

• Support any validity, as an AA, of that Statement.

71. As notably, the NPWS, the agency in practice responsible for compliance with the State’s positive obligations, pursuant to Article 6(2) of the Habitats Directive, to protect European Sites, shed no light on any of these matters. Though removed as a distinct party to the proceedings, it is an executive agency of the third Notice Party – the Minister for Heritage.108 Nor did the NPWS, by the Minister for Heritage, as at least an obvious potential legitimus contradictor of a stay application given its remit in environmental protection, participate in the stay application or oppose the stay TLM seek.

72. In my view albeit provisional, the foregoing sequence is not impressive as to the role of the State, taken collectively in its various relevant organs.

AA IN THE PRESENT CASE – EXCESSIVE BURDEN ON THE STATE?

73. As has been seen, amongst ALAB’s reasons for refusing to renew the licenses, were the “state agency input required” and the required “significant resources and the involvement of government bodies, such as the NPWS and experts”.109 Counsel for ALAB described these reasons as reflecting a view that TLM could not complete an NIS on their own but would crucially require input from the State authorities and there wasn’t a realistic pathway to getting the relevant information from them as a huge amount of work needed to be done before a conclusion in AA could be reached.110

74. I certainly make no final finding on the issue, but on asking counsel for ALAB why it was relevant to, and legitimately weighed in, ALAB’s decision that AA would impose requirements on other State agencies such as NPWS, I consider that I did not get a convincing answer – convincing even in the limited sense

107 See for example SWI, IFI, Sweetman & Ors v ALAB et al [2024] IEHC 421.

108 The Third Respondent – Properly the Minister for Housing, Local Government and Heritage.

109 In the design and implementation of the work programme to collect the data and do the AA.

Transcript day 1 p141 – 143.

relevant for present purposes. That said, I should preface my further consideration of this issue by recognising that a question may arise in due course whether TLM has adequately pleaded this issue. It has pleaded reference to the “data gap” and that ALAB had regard to “inappropriate and improper” considerations, in considering it relevant that the preparation of an NIS would “involve inappropriate and unnecessary expense and delay … so as to ensure that all the relevant data were required to be before it” where ALAB had “created this situation, and the Applicant had expressed a desire to provide the said information” at its own cost. Still, it may be doubted whether, on the present Statement of Grounds, the issue is adequately clearly pleaded.

75. It must be remembered that AA is far from the only obligation imposed by the Habitats and Birds Directives. Designation of European Sites is far from merely a negative impediment to development and other activities. The State has positive obligations, inter alia, of:111

• Participating in the designation of European Sites on the basis of “relevant scientific information”112 and by reference to site assessment criteria.113 Notably in the present context in which ornithological considerations are at play, SPAs are designated specifically for the protection of what may be generally described as threatened bird species.114

• Maintaining protected species and habitats at a favourable conservation status in their natural range or, where appropriate, restoring them to that status.115

• Both establishing and effectively implementing complete, site-specific, precise, realistic, manageable, systematic and clearly formulated conservation objectives and conservation measures and, where necessary, management plans for protected species and habitats and positive proactive measures to maintain the Site or restore it to a state of conservation in the light of the ecological requirements of each species and habitat type present.116 By Article 4(4) of the Habitats Directive, these must be developed “in the light of the threats of degradation or destruction to which those sites are exposed”. Also, “[e]ffective conservation measures need to address all of the key threats and pressures for the habitats and species on each site” – Case C-444/21.117

• Taking appropriate steps to avoid, in SACs, the deterioration of natural habitats and the habitats of species and significant disturbance of the species for which SACs have been designated – the obligation of “general protection”.118 Similar obligations subsist as to SPAs.119

What follows does not purport a complete list.

112 Article 4 Habitats Directive. I will not here list similar requirements of the Birds Directive save to note them by reference.

113 Annex III Habitats Directive.

114 Article 4 and Annex 1 of the Birds Directive, taking account of (a) species in danger of extinction: (b) species vulnerable to specific changes in their

habitat; (c) species considered rare because of small populations or restricted local distribution; (d) other species requiring particular attention for

reasons of the specific nature of their habitat. 115Articles 2.2 and 3.1 Habitats Directive.

Article 6.1 Habitats Directive; Commission Notice "Managing Natura 2000 sites. The provisions of Article 6 of the Habitats Directive 92/43/EEC"

Brussels, 21 November 2018, C/2018/7621; European Commission v Ireland, Case C-444/21, Opinion Of Advocate General Ćapeta, 9 February 2023;

Judgment of 29 June 2023.

117 European Commission v Ireland, Case C-444/21; Opinion of Advocate General Ćapeta, 9 February 2023.

118 Article 6.2 Habitats Directive – e.g. Case C-127/02 Waddenzee cited in Ballyboden Tidy Towns Group v An Bord Pleanála [2022] IESC 47.

Article 3 Birds Directive.

• Establishing systems for strict protection of the animal species listed in Annex IV and the plant species listed in Annex IV of the Habitats Directive.120

• Avoiding pollution or deterioration of habitats, or any disturbances affecting birds in SPAs and establishing, for each SPA, individual conservation objectives, priorities and measures for all the protected species and their habitats.121

It is well-established that these obligations must conform to the high level of protection of the environment at which Article 191 TFEU aims EU environmental policy.

76. It is difficult to see how, at least generally and quite apart from AA issues, Member States can meet these Habitats law obligations without assembling considerable bodies of data relevant to the condition and vulnerabilities of, pressures on and threats to protected habitats and species. It is particularly difficult to see how the State could, without assembling considerable bodies of such data, meet these positive obligations as to specific European Sites in which, and adjacent to which, mussel-farming activities already long-since established and ongoing have, since 2016, been identified by the State itself (per the Marine Institute’s 2016 MI Report) as activities posing risks of significant adverse effects on such European Sites.

77. And the State had been found by the CJEU in 2007 in the Irish Wild Birds case122 to have failed to take all the measures necessary to comply with Article 6(3) of the Habitats Directive in respect of authorisation of aquaculture as it related to effects on birds and SPAs. That case was also concerned with inadequacy of data – while perhaps not in precisely the same context, the general requirement of data collection was clear.

78. Accordingly and again at least generally, it is also difficult to see how, about 18 years after the Wild Birds case and about 9 years after the 2016 MI Report, the prospect of burdening the State with the provision of such data to inform an AA should weigh appreciably in ALAB’s decision against doing an AA.

79. Also, and even as a matter of good public administration and public confidence therein (leaving aside the right to good public administration - e.g. Saleem, Murtagh, ETI, O’Lone, and SWI123 as laid down in Article 41 CFREU, which incorporates the right to reasonable expedition, and recognised as a general principle of EU Law – Stevi and Eco Advocacy124) it can hardly be considered satisfactory that otherwise legitimate commercial and other activities could be frustrated and denied development consents for want of

120 Articles 12 & 13 Habitats Directive.

121 Elliniki Ornithologiki Etaireia v Ypourgos Esoterikon, C-66/23, PTSR 408 (2024).

Commission v Ireland, C-418/04, ECLI:EU:C:2007:780. Judgment of 13 December 2007.

123 Saleem v Minister for Justice, Equality and Law Reform [2011] IEHC 55; Murtagh v Kilrane [2017] IEHC 384 §14 citing Graham v Police Service

Commission [2011] UKPC 46, in turn citing R v Lancashire CC ex p. Huddleston [1986] 2 AER 941; Environmental Trust Ireland v An Bord Pleanála [2022]

IEHC 540 §232. O’Lone v An Bord Pleanála [2023] IEHC 136, Humphreys J, §§41 & 42. SWI, IFI, Sweetman & Ors v ALAB et al [2024] IEHC 421.

124 Stevi & The New York Times v Commission, Case T-36/23, ECLI:EU:T:2025:483, Judgment of the General Court, 14 May 2025. The facts and precise

rights at issue in that case were very different to the present. Eco Advocacy CLG v An Bord Pleanála, C-721/21 (2023) EU:C:2023:477, [2024] Env LR 8.

the data to do an AA to any extent that such data falls within that class of data which the State should have collected by virtue of its Habitats Directive and Birds Directive obligations.

80. Further, while in this case it was applied against a particular background of accrued delay in deciding the appeals, nonetheless the logic of, essentially, declining to procure AA for these licence renewal applications by reference to the burden data collection might impose on the State or the time AA would take, would seem, if generally applied to aquaculture licence renewals in Wexford Harbour and any other similarly data-poor locations, to imply at least an appreciable prospect of the winding down of aquaculture licensing generally over time in such locations as time-limited licences come up for renewal and AA screenings disclose the need for AA. Whether such a prospect accords with government policy on aquaculture is not for me to speculate.125

81. As I say, I do not for present purposes finally decide any issue whether it was relevant to and legitimately weighed in ALAB’s decision that AA would impose excessive burdens on other State agencies, or, indeed whether such an issue is adequately pleaded. However, remembering that decisions as to stays are often made on limited information and argument, and on provisional views as to the strengths and weaknesses of a case and by reference to the overall consideration of minimising the risk of injustice, I consider that the analysis above – to the effect that the State’s lack of data to inform an AA is surprising as to the effect of long-established aquaculture activity in Wexford Harbour on European Sites long-since protected in law and which the State is obliged to protect in practice, in a context in which its own Marine Institute warned of the data deficit almost a decade ago – may be given some weight in the decision as to a stay which I must now make. That seems to me particularly so in light of the State’s reliance, in resisting a stay, on the 2016 MI Report, the risk to European Sites posed by TLM’s aquaculture and the prospect of delay in completing an AA. In this case, that analysis weighs somewhat in favour of a stay.

RISK OF ENVIRONMENTAL DAMAGE PENDING TRIAL & PRESERVATION OF STATUS QUO FOR AA

82. In the context in which ALAB had decided on AA Screening only that it could not be excluded as a reasonable scientific certainty that TLM’s mussel farming, if licenced, would not damage the integrity European Sites, the parties were at opposite poles as to what had to be shown as to such risk in seeking or opposing a stay. ALAB and the Minister said that, to get a stay, TLM must show that the risk of damage to the integrity European Sites could be so excluded – in essence an AA, or all but an AA, in a circumstance in which all agree that AA is as yet impossible. At the opposite end of the spectrum, TLM said that the Minister and ALAB must positively show that a stay will cause irreparable harm. In my view, both such extreme positions are inappropriate to the nuanced and context-sensitive task of discerning the often not fully satisfactory resolution of the risk of least injustice.

For some appreciation in this regard, see Barlow v The Minister for Communications, Marine & Natural Resources [2025] IESC 14, [2025] 4 JIC 1109.

83. I agree with the State and ALAB that no threshold test requires them to demonstrate, in resisting a stay, that irreversible damage to the integrity of European Sites will ensue from any stay. As to a threshold, demonstration of a risk of such damage suffices and they have demonstrated that risk. And the mere existence of such a risk is weighty. But it is not necessarily and inevitably predominantly weighty or decisive by itself.

84. In light of Case C-144/17R126 and Toole,127 the data deficit and the AA Screening, the risk of environmental damage pending trial must be assumed. In the context of risk to European Sites, Humphreys J

in Toole128 put it pithily: “a risk is present if it cannot be ruled out”. ALAB and the State argue that, even if

they are to be justly criticised by reference to a comparison between, on the one hand, their present anxiety at the risk to European Sites by continued mussel cultivation on foot of s.19A(4) pending trial and, on the other, their apparent lack of that anxiety as to the very same risk as it subsisted from the making of the renewal application in the period of almost seven years from May 2018 to ALAB’s Impugned Decisions of March 2025, or even, their apparent delay discerning the need for AA such that it would have been completed by now, such criticism of their past delay and inaction is logically irrelevant to the court’s consideration of that risk pending trial in light of the now-imperative duty to protect European Sites from TLM’s mussel farming between now and trial. I do not intend to diminish that duty but as to the Respondents’ attitude to it and as it impugns risk posed by TLM’s mussel cultivation, Matthew 7:3-5 comes to mind.129 In my view, this “we are where we are” approach is crude and inadequate to an analysis directed at minimising risk of injustice and also illuminates the State’s appreciation, not least from 2016, of the severity or otherwise of the risk in question.

85. Of course, strictly and factually correctly, what was or should have been obvious to the State and ALAB since the 2016 MI Report should have been obvious also to TLM. They could have tendered an NIS at any time and arguably must shoulder some of the blame for the present pass. But the State (writ large and including ALAB) and TLM are in very different positions.

• TLM is a commercial licensee entitled to the benefit of the 1997 Act. It is difficult to blame it for

availing of s.19A or for conforming, at least initially, to the Minister for the Marine’s system of reliance on an

AA “Conclusion Statement”, even if implausibly adopted in light of the 2016 MI Report and the failure since then to collect the data it prescribed as required for the AA of aquaculture licensing in Wexford Harbour.

• In contrast, though no doubt the State (writ large) had and may have an entirely proper and even compelling concern to promote aquaculture for economic and other reasons,130 it is the State which bears the responsibility for ensuring the integrity of European Sites by both forbidding activities inimical to that integrity and fulfilling the positive obligations imposed on it by the Habitats Directive. The responsibility for

Case C-441/17R European Commission v Republic of Poland, ECLI:EU:C: 2017:877, 20 November 2017, §61 Toole v Minister for Housing [2023] IEHC 263 §32.

128 Toole v Minister for Housing [2023] IEHC 317, [2023] 6 JIC 1603 §25; citing Case C-721/21 Eco Advocacy v An Bord Pleanála, 15 June 2023,

ECLI:EU:C:2023:477.

129 “And why beholdest thou the mote that is in thy brother's eye, but considerest not the beam that is in thine own eye?” (King James Version).

See Barlow v The Minister for Communications, Marine & Natural Resources [2025] IESC 14, [2025] 4 JIC 1109.

achieving and maintaining good conservation status of protected habitats and species rests on the State and that implies its collection of such data as are necessary to that task.

86. Whatever the responsibility for any risk to European Sites by reason of TLM’s conduct of mussel cultivation, in accordance with its licence terms, both before and after its 2018 renewal applications (there is no suggestion that it breached those terms) until March 2025, on the evidence before me and provisionally pending trial, the State bears the preponderance of it. In my view, this does weigh in the balance of risk of injustice.

87. In argument, counsel for ALAB asserted that some of its delay was due to a request by TLM to delay processing the appeals.131 While I do not doubt counsel, that is not in evidence and if in evidence would require exploration as to such matters as timing and duration. In any event, while such a consideration might throw some blame TLM’s way, it could not address ALAB’s statutory duty of expedition or, as to the period of delay to date, the environmental concern ALAB now expresses at the prospect of TLM’s further mussel farming in reliance on s.19A. The logic of those concerns, from ALAB’s point of view would have been to avoid delay and decline any request for delay by TLM. In the event the issue of a stay comes to be revisited, ALAB may be able to elaborate on affidavit in this regard.

88. While the situation is complex – not least in light of a s.19A right to farm mussels during a four-year AA exercise - in the foregoing light there is some weight also in TLM’s complaint that it is unjust that it be denied the opportunity to provide a NIS while ALAB and the State rely on environmental risk identified on a preliminary basis only in AA Screening.

89. An objector to a development consent seeking to have it quashed for inadequacy of AA must show an evidential basis for the posited, and often more or less permanent, risk to the European Site as being more than theoretical. Analogising that requirement to present circumstances, in the context of historic risk to European Sites since they were first protected as such, since the licences issued in 2012 and/or since the renewal applications were made in 2018 (by which risk the State – ALAB and the Minister for the Marine – were not propelled to expedition and AA), the State has tendered no evidence that the incremental risk in the considerably shorter period pending trial is significant or, indeed and specifically as incremental, other than theoretical.

90. Clearly, the shorter the period of the stay, the lower is that incremental risk.

91. I should record my acceptance of the State’s position that TLM’s various submissions as to the positive effects of mussels on water quality (de-nitrification) are beside the point whether AA is required and do not address the risks of adverse effects posited by the State – which do not relate to water quality. That

Transcript day 2 p113.

an activity may have positive environmental effects does not of itself answer, and depending on circumstances may not even address, the question whether there is a risk of other adverse effects to the integrity of European Sites.

92. Ms Heffernan’s affidavit in considerable part canvassed arguments more relevant to trial and as to the desirability of AA. However, she asserted that the mussel cultivation activities now in question have formed part of the harbour’s functioning ecosystem for about 120 years and, if I understand her point correctly, were part of the status quo which produced habitats worthy of designation as European Sites. She also says that, given the status quo in Wexford Harbour to date, maintaining current mussel cultivation during data collection and assessment is essential in AA132 to accurately represent what she considers “real” ecological conditions to allow a balanced evaluation of relevant environmental interactions, providing an evidence-based foundation for sustainable management of the harbour. At very least, it seems to me, it can be posited that maintaining current mussel cultivation during data collection and assessment will allow identification of the long-established environmental status quo and baseline. [Cesser of mussel cultivation without prior assessment of the effects of such cesser might even pose a risk of unintended adverse environmental consequences – though, as that is speculation on my part, I lend it no weight.] For that reason, and also as the contribution of mussel farming to the overall ecology and functioning of Wexford Harbour has never been systematically assessed, and the industry may provide stabilising and beneficial ecosystem services, Ms Heffernan considers that it would be unwise to alter the current status quo pending an AA if these proceedings succeed and AA is to be done in remitted renewal appeals.

93. In considering what weight to give to these observations, the following factors seem relevant:

a. Renewal of permits for pre-designation activities is subject to Habitats law and, if appropriate, AA – Waddenzee.133

b. There is little clarity as whether, to what extent and for how long the formerly licensed areas were farmed before licenses first issued and with what intensity.

c. While no doubt it is possible, I do not see that I can assume that mussel farming practices and methods and their environmental effects have not materially changed over the last 120 years.

d. Ms Heffernan says that:

▪ Available monitoring data and technical reviews do not identify any change in pressure that could reasonably account for recent changes in bird populations within the Site.

▪ No evidence has emerged to suggest significant adverse effects on bird populations.

▪ No causal link has been demonstrated between existing mussel aquaculture and bird species declines in Wexford Harbour.

But all agree, including Ms Heffernan, that the underlying problem is a lack of data and no-one at present knows what the data would show if to hand.

132 The words “in AA” are mine but that is clearly the intended meaning.

Case C-127/02.

e. Ms Heffernan is not contradicted on her position134 as to the wisdom of maintaining the ecological status quo, including mussel cultivation, pending AA. However, it is difficult for me to weigh this factor - on which I imagine professionals setting about AA might disagree. For example, it may be arguable that data obtained in the absence of mussel cultivation may provide a better baseline for AA of intended mussel cultivation - by analogy with AA for an intended new activity, the baseline conditions for which do not include the activity. On the other hand, it might be suggested that ceasing mussel cultivation shortly before data collection for AA might create undesirable environmental instability while attempting to discern baseline conditions. I draw no such conclusions. I merely refer to possible difference of view. However, it does strike me that preservation of the status quo pro tem, if only relatively briefly, may keep all such options open and allow relevant professionals to further consider these issues in the event the judicial review succeeds and it is necessary to consider how best to do an AA.

f. At least generally, requiring, to establish a baseline for AA, all licensed mussel farming in Wexford Harbour to cease and thereafter awaiting environmental stabilisation in the absence of mussel farming (if such a concept of stabilisation has any meaning) seems unrealistic. In that context also it is unclear to me that, for purposes of establishing baseline environmental conditions, cesser of mussel farming on the relevant Sites will assist if other sites remain in operation.

g. I have had no evidence that, over the many years since the European Sites came under its protection, there has been any attempt by the State other than by this refusal (and other than that particular to the WWTP outfall – which seems a particular case) to bring mussel farming in Wexford Harbour generally or on these plots in particular to a halt by reason of effect on European Sites, or any enforcement activity as it would relate to damage by TLM’s mussel farming to the European Sites. It seems unlikely that the aquaculture licences would have been regarded as a defence to any real concern as to damage to European Sites.

94. Lest it be doubted, I should make clear that I have carefully considered the affidavits of ALAB’s present Technical Advisor, Ms Hegarty, and accept her credentials as an ecologist as impressive. However her reply to Ms Heffernan’s affidavit is somewhat laconic and conclusionary.

SEEDING ISSUE

95. TLM’s mussels have a roughly two-year growing cycle. Mussels are not indigenous to Wexford Harbour. Roughly biennially, each bed, once harvested, must be re-seeded from an external source. As Murray J observed in Barlow,135 “the key to successful mussel farming is a regular supply of seed.” Of

134 An Assistant Principal Officer of the Minister deposed that: “[t]he Department is not in a position to respond to the affidavit of Marie Louise Heffernan

(an ecologist) on behalf of the Applicant. The Department believes that the matters addressed in her affidavit are within the remit of the Marine Institute

– which is also a Notice Party in these proceedings and represented by Philip Lee solicitors. BIM has also confirmed that it has no competency in this area

and has no observations or comments to make.”

Barlow v The Minister for Communications, Marine & Natural Resources [2025] IESC 14, [2025] 4 JIC 1109.

preference, TLM annually harvests seed from seed fisheries in the Irish Sea and re-seeds those of its beds most recently harvested. This produces an annual harvest from the beds overall. However, for reasons I need not explore in detail here, the Irish Sea mussel seed fishery has in recent years been closed at times. It has not yet opened this year.136 Some history of the controversy as to that seed fishery is found in Barlow. More recently, the Department has expressed concerns that invasive species have been found in the seed fisheries. TLM disputes the relevance of what it says are isolated findings of such species but I need not decide that issue. In any event, the State says TLM has no security of seed supply and so cannot show that it will suffer irreparable damage pending trial if a stay is refused. TLM replies that if the Irish Sea seed fishery stays shut it can source seed elsewhere – including rope-grown seed from mussel farms in Ireland. To ALAB’s/the State’s reply that TLM would require a Marine Institute movement permit to do so, TLM replies in effect that such permits are readily had on as little as a few days’ notice.

96. However, perhaps most notably, ALAB/the State do not point to any instance in which, in the decades of operation of these mussel beds, TLM or Lett failed to source seed to re-seed their beds. Not least, they do not suggest that TLM failed to find seed when the Irish Sea seed fishery was shut for lack of seed in 2023 and 2024. On present information, I assume it probable that, one way or another, TLM will, if the stay is granted, be able to source seed to re-seed their beds as required pending trial. Indeed, if a stay is granted but TLM fail to find seed, it is difficult to see that any resultant enforced reduction in activity by TLM would be unwelcome to the State or prejudicial, on its analysis, to environmental considerations.

97. I do not see the seeding issue as weighing against a stay. On the contrary, it weighs somewhat in favour as, if prevented from re-seeding its beds, TLM will be significantly disrupted in their exploitation, if legitimate, by reference to re-seeding as “the key to successful mussel farming”.137

ADEQUACY OF DAMAGES

98. While in principle I could require an undertaking in damages from TLM, I accept that if environmental damage ensues from any stay such damages will not provide an adequate remedy.

99. TLM, at least in some degree, asserts that weighing in favour of a stay in the balance of the risk of injustice is the consideration that, if unable to cultivate mussels pending trial they will suffer harm for which damages would be an inadequate remedy. Specifically, TLM deposes138 that if required to cease operations pending trial TLM “may not financially survive. It will lose an estimated mussels to a value of EUR 2 million –

EUR 3 million” (sic) over “the duration of these proceedings”, which would be “catastrophic” for TLM. A later

averment139 expands somewhat on this assertion and increases the estimate to a gross profit lost of

136 At least at the time of the hearing of this matter.

137 Murray J referred to “a regular supply of seed” as the “the key” but the observation is meaningless save in the context of using that supply to re-

seed which is, I consider, as Murray J intended that he be understood.

138 Affidavit of Jozias de Koeijer, sworn 3 October 2025.

Affidavit of Jozias de Koeijer, sworn 5 November 2025.

€4,112,500 to August 2028 assuming use of rope-grown mussel seed. Oddly, the equivalent gross profit loss figure for using mussel seed harvested from the Irish Sea – said to be the preferred option – is not given but the estimated turnover loss is lower at €4,100,000. On that basis,140 the preferred option seems to be the less profitable. In neither case are the figures verified by accounts or vouchers or by an auditor or accountant. Nor are the figures put in the context of the other trading operations of TLM which include at least another operating mussel bed in Wexford and a 120-employee factory the reliance of which on the mussel beds at issue is not made clear. Nor is there any independent or professional verification of the risk of insolvency. The averment that TLM “may not financially survive” is notably diffident – though I make some allowance for a deponent’s diffidence in that regard given the danger that firmer predictions of that kind may become a self-fulfilling prophecy once made public. TLM also say that cesser would be catastrophic for “the habitats it manages” – which I take to encompass its averments that its mussel beds would degrade, perhaps irreparably. All that said, when the figures proffered by TLM are considered, even with an appropriately sceptical eye, and when one recollects that about 100 hectares of pre-existing and longestablished mussel beds are at issue, it is in my view not difficult to infer that, failing a stay pending trial, TLM will suffer considerable and serious financial loss and damage.

100. ALAB cite Toole141 for the proposition, which I accept, that in considering a stay of a grant of development consent pending challenge to the AA “financial damage to an individual private law actor142 would normally … have to yield to the objective community and public interest in avoiding the risk of environmental damage which transcends the interests of individual litigant”. In a later judgment in Toole,143 Humphreys J said, and I accept, that in considering an interlocutory stay “normally environmental considerations and the precautionary principle as well as the strict context of removing all scientific doubt would favour the grant of such a stay”, and given the precautionary principle, “the stay should normally remain in place unless it can be demonstrated to be unnecessary to the same level of certainty as would be required following a hypothetical future finding that the AA was flawed.” As to all three utterances, I merely draw attention to the word “normally” and to the fact that what was at issue in Toole was the commencement of a new wind farm activity – not the continuation of decades of licensed activity (even if in the absence of proper AA).

101. Counsel for the Minister for the Marine agitated the issue of adequacy of damages to TLM in her closing remarks and opened Fitzpatrick144 in which Ní Raifeartaigh J refused to grant injunctions suspending pending trial the effect of impugned orders closing fishing for Nephrops. Consolingly, at least to me, Ní Raifeartaigh J said in light of the caselaw that the question of financial loss and adequacy of damages as compensation is not as straightforward where an injunction is sought in public law case as it would be in a private law dispute. She was “not entirely sure how the Court is to address the question of damages in the present case” and “it is not entirely clear to me what the correct approach is to damages in a public law case such as the present one, in which the precise damage alleged to have caused by the alleged acts of State authorities is damage of a financial nature.” Ní Raifeartaigh J considered Okunade and Dowling,145 which had

Taking gross profit to be turnover less direct cost of sales.

141 Toole v Minister for Housing [2023] IEHC 263.

142 i.e. the recipient of development consent.

143 [2023] IEHC 592.

144 Fitzpatrick v Minister for Agriculture [2018] IEHC 77, [2018] 1 JIC 1107.

Dowling v Minister for Finance [2013] 4 IR 576.

in turn cited Zuckerfabrik.146 In Zuckerfabrik a question arose whether damage which would accrue to the applicants if the effect of an impugned EU regulation (requiring payment of a financial levy) was not suspended pending trial, was “serious and irreparable” in the sense required to justify such a suspension. The CJEU held that, as it had held “on numerous occasions”, purely financial damage cannot in principle be regarded as irreparable. But, it added, the court hearing the application for interim relief must examine the particular circumstances of the case to consider whether refusal to suspend the impugned measure of EU law would likely cause irreversible damage to the applicant which could not be made good if the impugned measure were to be declared invalid. The reference to “numerous occasions” suggests that, while subject to exceptions, the principle is at least generally applied.

102. In Dowling, Clarke J cited Okunade and Zuckerfabrik for the view that if damages are truly an adequate remedy it is hard to see how the damage in respect of which they will have been awarded will

have been irreparable: “if the matters are purely financial then, at least in most cases, there will be no risk of

serious injustice, for a party who wins can be properly compensated in damages.”147 And this applies where EU law rights have been infringed pending trial. Clarke J cited Okunade “for the view that that the true question is as to whether any relevant harm can be compensated in damages.” 148 In my view, in both passages, the word “can”, while far from guaranteeing an award of damages, is not a merely theoretical concept. As the underlined words illustrate, it does not suffice merely that the losses be purely financial – there must be a real prospect of a proper remedy in damages for those losses for damages to be viewed as an adequate remedy.

103. Ní Raifeartaigh J also cited Laffoy J in Meade149 in which the plaintiff, a fisherman, said he faced ruin unless, pending trial, he was allocated the 263-tonne mackerel quota which he claimed, rather than the 32- tonne quota which the Minister had assigned to him. Laffoy J held that a court could find damages an inadequate remedy on appropriate evidence of a risk that a plaintiff will be tipped into insolvency. Evidence of such a risk of insolvency “would normally require up to date and precise financial data averred to by an accountant”. As it predated Okunade, Ní Raifeartaigh J understandably found Meade of limited assistance in deciding how the damages, once found inadequate, should be factored into the Okunade analysis. But as to the prior question whether damages are inadequate, it seems to me that Meade continues to assist as to the relevance of a risk of insolvency to the adequacy of damages and as to the required evidence of such risk. I think it is fair to say that the courts are sceptical of generalised prophecies of financial doom. The evidence fell short in both Meade and Fitzpatrick, even though in the latter Ní Raifeartaigh J accepted that Fitzpatrick’s continuing loss would represent a “serious blow”. The Court of Appeal was similarly unimpressed with the evidence of likely damage a stay would cause to Harte Peat, for example as to its capacity to absorb losses.

104. However, in Okunade, Clarke J noted the restrictive principles governing the awarding of damages in judicial review cases for public law errors – such that a successful applicant for judicial review who has order

146 Zuckerfabrik, Cases C-143/88 & C-92/89 [1991] ECR I-415, [1993] 3 CMLR 1.

147 Emphasis added.

148 Emphasis added.

Meade v Minister for Agriculture, Fisheries and Food [2010] IEHC 105.

or measure quashed likely will not get damages at all. He concluded that the “question of the adequacy or otherwise of damages is unlikely to be a significant feature in reaching an assessment as to how best to minimise the risk of injustice in the context of an interlocutory application pending trial of judicial review proceedings.” Perhaps the view is that an irrecoverable remedy for which a litigant could never have hoped should not weigh at all in the scales. On the facts in Harte Peat, it appears to have been considered that damages were equally inadequate to Harte Peat and the EPA for any loss or damage by reason of the

decision as to a stay and each weighed equally in the balance.150

105. But I confess to the view that in this case, remembering that loss due to a public law measure later quashed is a loss unjustly or unlawfully imposed – even if that is only apparent in hindsight and remembering also that there is no remedy at law for that injustice – inadequacy of damages (in the sense that they are irrecoverable) may weigh in favour of a stay precisely because they are irrecoverable. It is one thing to say, as the law often does, that damages may be irrecoverable for damage suffered by reason of a public law act later quashed. It is another to say that the prospect of preventing such damage occurring in the first place should not weigh at all in the balance of justice as to a stay on such administrative act. Of course, in a particular case that weight may not be decisive, or even greatly influential, on its own given the other factors identified in Okunade as weighing against a stay, including irrecoverability and inadequacy of damages for environmental harm. But to say that it may not, on particular facts, weigh to some degree in the balance seems unjust. On that view, the irrecoverably of damages in law, as demonstrating inadequacy of damages, seems to provide an alternative to proof of a risk of insolvency – subject, of course to a requirement that the loss foreseen, considered in context, must be a serious one.

106. I consider that this view – that inadequacy of damages by reason of their irrecoverability may in some cases weigh appreciably in the balance – is broadly similar to that taken by O’Malley J in Krikke151 - with which O’Donnell J agreed:

“In considering the balance of justice, it was of course correct to take account of the potential financial loss to the developer and further, to take account of the fact that the developer would not be compensated for any loss caused by the High Court order should it be successful in the appeal.”

I appreciate that O’Malley J went on to counterbalance the “principle that developers should not benefit from developments that do not have permission” and the “public interest in preventing the accrual of such profits pending an appeal, and this is a matter to be taken into account.”

107. While that counterbalance cannot be ignored, it seems less weighty in this case.

• First, Krikke was an enforcement case – a claim for an injunction under s.160 PDA 2000 against an unauthorised wind farm. The Court said "[t]he orderly operation of the planning code is … of high public importance. … the starting point is that, subject to certain exemptions, no development can lawfully be

150 Environmental Protection Agency v Harte Peat [2022] IECA 276 §78 Krikke v Barranafaddock Sustainability Electricity [2020] IESC 42, [2020] 7 JIC 1702.

commenced without planning permission." There is no suggestion of illegality by, or a need for enforcement against, TLM here.

• Second, Krikke in the Supreme Court was about a stay pending appeal of a final High Court order granting a permanent injunction. The wind farm had had its trial.

• Third, there was no suggestion of delay on the part of the parties seeking the injunction or their acquiescence over many years in the risk of environmental damage at issue.

• Fourth, there was no equivalent of, or analogue to, s.19A at play.

• Fifth, there was at play in Krikke no equivalent of or analogue to the, at very least, unorthodox approach of ALAB in refusing to do an AA the need for which its own AA Screening disclosed.

• Sixth, Krikke was not concerned with a previously licensed or permitted activity – the continuation of which licence is at issue here.

108. And, as the Court of Appeal later observed in Harte Peat, in Krikke the Supreme Court had considered that the Court of Appeal had given “too much weight … to the apprehended financial loss”.152 So, the Supreme Court was not saying that no weight was appropriate: just that in the circumstances of that case, too much had been ascribed by the Court of Appeal. I think also Ní Raifeartaigh J’s diffidence in Fitzpatrick as to how to incorporate adequacy of damages into assessing the risk of injustice is consistent with this view – it at least accepts the principle that such incorporation may be appropriate.

109. In Fitzpatrick, Ní Raifeartaigh J said that: “[t]he Court cannot simply assume at this stage that the applicants would not be entitled to recover damages if they were ultimately successful in their judicial review proceedings, particularly as the claim involves alleged rights under EU law.” I confess I would not be entirely comfortable with that approach. It does not follow that the contrary assumption should be made – that the court can simply assume at this stage that the applicants would be entitled to recover damages if they were ultimately successful in their judicial review. At the interlocutory stage, the court will often simply not know whether damages will be recoverable. But the court can, it seems to me, recognise that, at least generally, damages for public law errors are, as Clarke J noted in Okunade, hard come by. See generally, De Blacam.153 Cromane154 is perhaps an example and the recent decision in Barlow155 illustrates the hurdles TLM would face in recovering damages for loss caused by error by ALAB in deciding the appeals. In Harte Peat, the Court of Appeal was prepared to make the relevant assumption as to “undoubted consequences for Harte Peat if it is required to comply with the statutory injunction pending the determination of the appeal in circumstances where the Order may, ultimately, be found to be unlawful. This is particularly so where, as we have said, Harte Peat would not be compensated for any loss caused by the High Court Order should Harte Peat be

152 Emphasis added.

153 Judicial Review, 3rd Ed’n, §43.05 et seq – Damages for Ultra Vires Acts.

154 Cromane Seafoods v Minister for Agriculture, Fisheries and Food, Ireland & The Attorney General [2017] 1 IR 119.

Barlow v The Minister for Communications, Marine & Natural Resources [2025] IESC 14, [2025] 4 JIC 1109.

successful on appeal.” The Court appears to have considered the recoverability of damages for calculable losses as weighing in favour of a stay, though, in that case, its weight did not prevail.

110. Though, having found damages adequate, she did not decide which interpretation of the authorities was correct. I think it useful to record the view of Ní Raifeartaigh J in Fitzpatrick that:

“An alternative interpretation is that it depends on the case, and that perhaps in an appropriate case, the fact that an applicant may not ultimately be able to recover damages because of the legal obstacles to this should weigh in favour of an injunction as he would otherwise find himself in a ‘Catch-22’ situation whereby the State can prevent him getting an injunction on the basis that he can ultimately obtain damages, but can then argue at the damages stage of proceedings that he is not entitled to any damages by reason of the legal obstacles to this presented by such cases as Glencar.”156

111. A distinct aspect of TLM’s case as to adequacy of damages is its assertion that, if unable to farm and maintain its mussel beds pending trial, including management of the accrual of sediment thereon, their quality as mussel beds will irreparably degrade. TLM exhibits an unofficial and not entirely impressive translation from the original Dutch of a 2013 paper which it describes as supporting its case in this regard.157 The reparability for mussel cultivation purposes of abandoned mussel beds is not the focus of this paper – which seems focussed on the effect of the presence and closure of mussel beds on benthic species composition. It does say that mussels organically enrich and change sediment characteristics and benthic species composition in the short and medium term but less so in the long term. I do not rule out that, properly explained and understood, perhaps with expert assistance, the paper may support the view that abandoned mussel beds become irreparably unsuited to mussel cultivation or require considerable reparation. But I have been unable to myself discern such support. For its part, the State’s averment that “BIM has advised that based on the scientific research available to it, it cannot categorically be said that by leaving sites unmaintained for a period of time, they become unusable in the future” seems carefully worded to avoid the point. Whether the prospect that the mussel beds will become unusable by disuse can be “categorically” asserted is not the point. The courts operate on probabilities. It is difficult to avoid the impression that each side overegged its pudding on this issue.

112. Nonetheless, it does seem reasonable to assume that, at least in appreciable degree, closed and unmanaged mussel beds tend to degrade over time in their utility and fertility as mussel beds as TLM asserts

– due, for example, to siltation, changes in benthic soil composition and incursion of predators. It seems credible that restoration of closed and unmanaged mussel beds to utility as such would require active measures, would take some time and would have a cost, such that losses would not be confined to loss of harvest during the closure. The State’s vague assertion on that issue is that “based on the scientific research (which it does not identify) available to BIM, it believes that recommencing husbandry on such a site would return it, over time, to its previous state.” While previous views attributed to BIM were verified by a

156 Glencar Exploration PLC v Mayo County Council [2001] IESC 64 – cited for the restrictive principles governing the obtaining of damages in judicial

review.

The Appended Audit Committee report remains in Dutch and I disregard it.

deponent for BIM, this one was not. However, and whatever “over time” may mean, the net burden of the State’s averments seems to be an acceptance that disuse would likely degrade the beds to a greater or lesser degree and their remediation to utility would take time. Remembering that what is at issue now is not closure pending a four-year AA but closure in a shorter period pending trial, it may also be that the shorter the closure the more quickly and less costly reparable the mussel bed.

113. All in all, TLM’s evidence of quantification of expected losses and adverse consequences due to closure pending trial falls well short of demonstration of appreciable risk of insolvency. Nor does it suffice to show peril to the operations and employees of its factory. It does not put the loss of production from the beds in question in the context of its business as a whole or even its mussel farm operations as a whole. It has another operable mussel bed in Wexford Harbour. It does not say what other beds it may have elsewhere. Yet some evidence has been tendered to quantify the loss on refusal of a stay and the evidence does suffice to allow an inference that significant financial losses are likely to ensue on closure of the mussel beds in question.

114. Were I happy that these losses would be recoverable in damages if the judicial review succeeds, I would likely refuse a stay. But I am not so happy. The inadequacy of damages here is not that insolvency is in prospect or that damages are incalculable and would be inadequately remedied by damages if awarded: it lies in the appreciable prospect that they will be significant in quantum yet irrecoverable in law for want of a right of action for their recovery.

115. That was so in Harte Peat also and a stay was refused. But, in a multifactorial assessment, the other circumstances of that case differed considerably from the present. In this regard, I have in mind the history since 2016 as set out above and the real possibility that, whereas Harte Peat’s peat extraction was unequivocally and seriously damaging, the environmental considerations here are not nearly as clear-cut or one-sided.

TIME LIMIT DEFENCE, PROCEDURAL ISSUES & DURATION OF A STAY

116. As to the strengths and weaknesses of the judicial review, ALAB intimates its opposition on the basis, no doubt inter alia,158 that:

• Its Impugned Decisions were made on 21 March 2025.

• The proceedings were initiated by the filing of an ex parte docket seeking leave to seek judicial review on 20 June 2025 – within three months of the Impugned Decisions.

• A notice of motion for leave issued on 21 July 2025 – in excess of three months after the Impugned Decisions.

• S.73 of the 1997 Act stipulates that:

I have not seen its Opposition papers.

(1) A person shall not question ALAB’s determination of an appeal other than by application for judicial review under Order 84 RSC.159

(2) An application for such leave to apply for judicial review shall be made:

i. Within three months of the date of the determination was made;

ii. By notice of motion160 which shall be served on ALAB and each other party to the appeal.161

117. I do not, of course, decide the issue but, on the facts now apparent, this defence appears to pose a considerable substantive threat to TLM’s case. Also, while I do not decide the procedural issue, this seems to me a defence, at least in principle, capable of discrete and expeditious decision by way, for example, of modularisation of the case or of preliminary issue. Such a prospect weighed considerably in favour of a stay in Toole.162 The merits of such an approach may be amplified by s.73(1C) of the 1997 Act which obliges the court, in determining such a judicial review as this, to act as expeditiously as possible consistent with the administration of justice. If that defence prevails, any stay will have been relatively short.

118. In some cases at least, the likely duration of a stay pending determination of the proceedings may weigh in the balance of the risk of injustice. Of course, from an overall point of view, early trial serves to reduce the risk of injustice bilaterally. But it may, depending on circumstance, weigh on either side of the balance – in some cases an early trial may tend to make a stay tolerable and in other cases it may tend to make it unnecessary. Here, considered with all the other relevant factors, it seems to me to tend to make a stay tolerable.

HARTE PEAT, CASES CITED THEREIN & COMPARISON TO THE PRESENT CASE

119. Perhaps the closest analogue to the present situation is found in Harte Peat – on which ALAB and the State rely. I have already referred to it above. The background to that case was long and complex – legislatively, as to a multiplicity of proceedings (including by an environmental NGO) and as to the facts. Harte Peat had sought judicial review of the EPA’s refusal pursuant to s.87(1C) of the 1992 Act163 to consider its application for an Integrated Pollution Control ("IPC”) licence for certain of its wet peat164 extraction activity on bogs. The refusal was essentially on the basis that the activity involved development for which planning permission was required and had never been sought. However, it is notable that the EPA’s efforts in separate proceedings165 to restrain Harte Peat’s peat extraction by injunction166 had begun in 2013. Both proceedings were tried together in the High Court. The judicial review failed and a permanent injunction was granted.

159 Rules of the Superior Courts.

160 Grounded in the manner specified in the Order in respect of an ex parte motion for leave.

161 And any other person specified for that purpose by order of the High Court.

Toole v Minister for Housing [2023] IEHC 317, [2023] 6 JIC 1603 §37.

163 Environmental Protection Agency Act 1992. s.87(1C) provides that a licence application for an activity referred to in subsection (1B) not comply with

subsection (1B) the EPA shall refuse to consider the application.

164 Wet peat (sometimes called black peat) is used in the manufacture of mushroom casing - commercial mushroom growing medium.

165 The two sets of proceedings were heard together in the High Court.

Pursuant to s.99H of the 1992 Act.

120. In 2022, Harte Peat sought a stay of the injunction pending decision of the appeal in the judicial review.167 The central plank of the appeal in the judicial review was Harte Peat's assertion that as its user pre-dated 1 October 1964168 its peat extraction did not require planning permission or EIA in the planning process in addition to that in the IPC process.169

121. It is not apparent that there was any appreciable concern in Harte Part that the utility of the bog for peat extraction would be significantly damaged by its cesser pending appeal. The Court said: “[t]he absence of a stay simply defers [peat] extraction. Area G (which is a finite resource) will be available to Harte Peat in the event that its appeal succeeds: its peat can then be extracted and sold.” That is a point of at least some distinction from the present case. The Court of Appeal in Harte Peat contrasted Krikke – in which also, it must be said, a stay was refused. It said:

“Harte Peat's position is unlike that of the developer in Krikke. The effect of the High Court order in Krikke (unless stayed) was to prevent the operation of the wind turbines unless and until appropriate permission was granted for their retention and operation. The income lost while the turbines were silent was not deferred but would be lost forever. Even so, it is clear from Krikke that the Supreme Court considered that too much weight was given to the apprehended financial loss in Krikke.”

122. Also, the long history of enforcement activity in Harte Peat, culminating in a High Court injunction for breach of EU law contrasts, markedly with the present case. Nor was the Harte Peat saga characterised by circumstances similar to those characterising the State’s and ALAB’s approach to AA of aquaculture in Wexford Harbour from 2016.

123. Further, Harte Peat concerned a stay pending appeal of an injunction as to which a relevant factor, carrying “significant weight” in the Court of Appeal's assessment of where the least risk of injustice lay, was the fact that the order sought to be stayed had been made after a full hearing and a final determination in the High Court.170 Likewise, what was in issue in Krikke was a stay pending appeal of a High Court injunction pursuant to s.160 PDA 2000, restraining operation of a wind farm – again after a full hearing and a final determination in the High Court. That is not so here.

124. Harte Peat disputed that it required planning permission, in some contrast TLM actively seeks licences and AA. As to AA, it may be said to have done so belatedly, but that appears likely to have been a consequence:

• At least initially, of the particular approach taken by the Minister to AA of aquaculture in Wexford Harbour by way of response to the 2016 MI Report and via the AA Conclusion Statement.

Unusually, the stay application was made after the appeal had been part-heard. The Court of Appeal noted that further argument was awaited and

possibilities arose of a reference to the CJEU and/or appeal to the Supreme Court.

168 Colloquially known as pre-64 use and generally not requiring planning permission.

169 While it accepted the requirement for EIA as a matter of EU law, Harte Peat contended that this was a function of the EPA in the licencing process

under the 1992 Act.

§74 et seq, incl. §84 - citing Krikke v Barranafaddock Sustainability Electricity [2020] IESC 42.

• And latterly and at least in part, due to ALAB’s very particular approach, over time, to the timing of its AA Screening and its statutory duty of expedition. The Court of Appeal noted Harte Peat's submission that the EPA had delayed considerably in refusing to entertain the licence application – from Harte Peat's licence application in October 2019 to its refusal in November 2020. While unimpressive, that delay pales in comparison to the present case.

125. The Court of Appeal in Harte Peat considered it “worth recalling that Harte Peat continued to extract peat during the currency of the licence application, further to the agreement reached in May 2019. Harte Peat indeed relies on that fact in aid of its stay application.” That compromise, of the 2013 enforcement proceedings, had envisaged Harte Peat’s licence application to the EPA. While those circumstances are not entirely dissimilar to the present, here TLM had not been faced with any enforcement proceedings and its continued mussel farming pending ALAB’s decisions was pursuant to a statutory right to do so.171

126. In similar vein, the Court of Appeal in Harte Peat also considered that the prospect of accrual of profits pending appeal from an activity that might ultimately be found in breach of EU law weighed against an appeal. In another case it might be argued that a stay should be conditional on an undertaking to disgorge such profits – or even that they be applied in environmental remediation. But that was not argued here. Noone argued an accrual of profits point. That is perhaps unsurprising against the background of s.19A. But whatever the reason, I think I should not attribute weight to the point not made.

127. I have held above that no threshold test requires the State and ALAB to demonstrate, in resisting a stay, that irreversible damage to the integrity of European Sites will ensue from any stay. As to a threshold, it suffices that they have demonstrated a risk of such damage. And, as I have said, the mere existence of such a risk is weighty, but not necessarily and inevitably predominantly weighty or decisive by itself. The State and ALAB have adduced little evidence as to the weighing of that risk.

128. As to that weight, the position must be considered against the background of the history of this matter. The Court of Appeal in Harte Peat says: “[i]n determining where the least risk of injustice lies, the

Court must look to the actual facts and the realities of the case.” In the present case, the risk posed by TLM’s

aquaculture to European Sites clearly was not so weighty as to greatly concern or animate the State and ALAB since 2016 such as to prompt assemblage of the data required to fulfil Article 6(2) obligations or as to compliance with the statutory duty of expedition in completing AA Screening (as to which the 2016 MI Report, and the absence of the data assemblage it had recommended, had rendered the outcome all but a foregone conclusion) and embarking on AA. That risk has not prompted the NPWS (in effect a notice party to these proceedings),172 as de facto guardian of European Sites, to adduce any evidence of risk – nor has the Marine Institute. Both must be aware of the many decades of mussel farming in Wexford Harbour. In some contrast, the EPA in Harte Peat deposed, on expert evidence, and the Court of Appeal accepted, that the environmental loss due to peat extraction from raised bogs (which take millennia to form and are an Annex I

171 S.19A of the 1997 Act.

As an agency within the department of the third Notice Party.

Habitat of the Habitats Directive) is “utterly irreversible”. And there would likely have been knock-on resultant effect on downstream European Sites. The Court of Appeal held that resumed peat extraction absent EIA or AA, would pose a risk of actual adverse environmental consequences and a failure to enforce national and EU environmental law amounting, on the basis of the High Court's findings, to “a near certainty”. It is in that context that the Court of Appeal must be understood when it said that “to justify the granting of a stay, the Court would have to have no doubt in its mind that doing so would not have the effect of permitting Harte Peat to engage in further peat extraction in breach of EU law.”

129. The Court of Appeal in Harte Peat clearly considered that if a stay was granted and the High Court injunction was ultimately upheld, the prospect of a breach of EU law and national law pending trial weighed considerably in the balance of risk of injustice. It observed that “the importance of both the protection of the public interest in the enforcement of planning and environmental law and upholding the law protecting the

environment cannot be underestimated” – in the sense, clearly, of “is not to be underestimated”. That is not

the same as “cannot be overstated” – in the sense of “is incapable of being overstated”. This interpretation is

consistent with the Court of Appeal’s considering it axiomatic, citing Krikke, that the Court give “significant weight” to the requirements of EU law and to its duty of cooperation in good faith laid down in Article 4 TEU to nullify consequences of its breach – citing Commune di Corridonia.173 But the meaning of the phrase “significant weight” is clearly not the same as the phrase, for example, “inevitably decisive weight”. Nor does the caselaw suggest that the weight of this consideration is so predominant as to obviate, or that it is a trump card to inevitably obviate, the need to ascertain the balance of the risk of injustice. The Court of Appeal also cited Inter-Environment Wallonnie174 for the obligation on national courts before which an action against a national measure including such a consent has been brought to adopt, on the basis of their national law, measures to suspend or annul the project adopted in breach of the obligation to carry out an environmental assessment. However, that was not a case concerning interim measures pending trial. It concerned effective remedy once a breach of EU law had been established at trial.

130. There is no evidence here that, even if a risk of environmental damage eventuates in the relatively brief period pending trial or any earlier disposal of these proceedings, it will in any appreciable degree increase any burden on the State (on which the burden lies at EU law) of nullification of the consequences of whatever risk has been posed to and/or eventuated in the European Sites in question by reason of mussel farming by Lett, TLM and/or others in Wexford Harbour in the very many years since mussel farming first commenced and/or was licensed and/or since the protections of Articles 6(2) and/or 6(3) of the Habitats Directive applied or ought to have been applied to aquaculture in Wexford Harbour. In that regard, it seems notable that the Court of Appeal in Harte Peat cites Inter-Environment Wallonnie as making clear that “any regularisation must not be conducted solely in respect of the project's future environmental impact, but must also take into account its environmental impact since the time of completion of that project ...”. In other words, if indeed regularisation is required of adverse effects of aquaculture in Wexford Harbour on European Sites, it is entirely possible that adverse effects occurring during a stay may be a small portion of the State’s burden.

173 Commune di Corridonia Case C-196/16 §35.

Inter-Environment Wallonnie ASPL v Council of Ministers, Case C-411/17, §171-172.

131. Nor in my view, on an overview and in context, will a stay in the comparatively brief period pending trial appreciably enable TLM to evade EU law or represent a failure of the State’s EU law duty of sincere cooperation. Indeed, there is a credible view that TLM merely seeks now to vindicate what it sees as its right at EU law to have development consent for its legitimate and established commercial activity stand or fall on foot of a full AA as envisaged by Article 6(3) of the Habitats Directive and as informed, at least in part, by such data as the State may be obliged to collect in fulfilment of its Article 6(2) duties of sincere co-operation.

132. Of some significance also, the Court of Appeal in Harte Peat refused a stay “at this stage” but noted that “the complexion of the appeal might change and … Harte Peat should not be shut out from renewing its application at a later stage.” So, interlocutory decisions as to stays can be revisited as circumstances change and develop – which of course, in Harte Peat, implied the view of the concept of “significant weight” described above and the absence of an invariably decisive “trump card” obviating the need to assess the balance of the risk of injustice.

133. For the foregoing reasons, while Harte Peat is relevant for present purposes and highly illuminatory of the process of balancing the risk of injustice, it differs in many respects from the present case and does not determine, either as a matter of law or by analogy in practice, the outcome of the process of balancing the risk of injustice in the present case.

134. I note that in Krikke the Supreme Court considered that too much weight had been given below to apprehended financial loss. I note also the cases cited above as to the quality of the evidence of apprehended financial loss and its consequences. But in any balancing of injustice much turns on particular circumstances and, inevitably weight in the balance of particular factors is contextual and relative.

CONCLUSION

135. Without attempting a complete summary of the foregoing, in my view:

a. If I may say respectfully say so, in Krikke:

▪ Costello J was correct in observing that there is often “no satisfactory solution” in such matters.

▪ O’Malley J assists in observing that in seeking to minimise the risk of injustice the court should do the best “best it can”.

▪ O’Donnell J notably recognised that what is often required is “a nuanced decision.”

b. TLM has established an arguable case – it has leave, on substantial grounds, to seek judicial review.

Thereafter, minimising the risk of injustice is the overarching criterion.

c. The strength of TLM’s case, insofar as it can be provisionally assessed at this point, is appreciable. It can at least be said that ALAB departed from the orthodox response to an AA Screening – in that the 2011 Regulations envisage that its outcome will be that Habitats law considerations will either not impede the proposed activity or will require AA. It is also, at least on present evidence, difficult to see that the burden of AA on State agencies should have featured in its decision.

d. The history of the matter since 2016 cannot be ignored in ascertaining the balance of justice. The Respondents’ concern for expedition and environmental risk must, I regret to say, be described as newfound. As to the four years required for AA, it seems to me just to compare it to the Minister for the Marine’s and ALAB’s apparent tolerance for about seven years of any risk posed to the European Sites by TLM’s continued mussel farming on foot of s.19A. Putting it at its lowest, it is not apparent that during that time they applied the logic either of the statutory duty of expedition or of the 2016 MI Report which had long-since made clear the need for AA. In short, their concern for the risk seems at best belated and its onset at least temporally coincidental with an anxiety, informed by burden on the State, not to embark on the orthodox response to their AA Screening. Had the State faced up in a timely, legally correct and realistic manner to the 2016 MI Report, as a matter of probability the AA would have long since been done. I am, as I have said, unimpressed by the logic of their “we are where we are” reasoning. However, even that is not the comparison primarily at present in issue. The true comparison for present purposes is between the Minister for the Marine’s and ALAB’s apparent seven years of tolerance and the incremental risk posed during the likely duration of a stay. That duration is likely to be very considerably less than four years.

e. There is no evidence of incrementally damaging risk to the integrity of European Sites by reason of mussel cultivation pending trial. Ordinarily, given the precautionary principle and the onus of proof in AA, the absence of positive evidence of risk might not weigh greatly in the balance. But in the present case the context is that any such risk has subsisted since at least the Sites became protected many years ago – at least pre-2016 – in which time mussel farming has been ongoing. In my view, I am entitled to weigh in the balance of injustice that, prima facie at least, the State has failed, since at least 2016, to assemble the data and information required as to the effects of mussel farming on the relevant European Sites. I hasten to say that this is not a view in general terms that the State is obliged to assemble data and information required for an AA of a proposed activity. But where an activity requiring renewal of development consent has been ongoing in or in the vicinity of European Sites for many years and the State is authoritatively told that it poses a risk to those Sites and that data and information in that regard requires assembly – here as long ago as 2016 and by its own Marine Institute – it is difficult to see that the data and information which the State must assemble in virtue of its Article 6(2) positive obligations to protect the relevant habitats and species (to maintain, or as required restore, them to favourable conservation status) will not at least appreciably include that required for AA of the very ongoing activity which has long-since been identified as posing that risk. And yet, ALAB in making its Impugned Decisions weighed in the balance against TLM the supposed burden on the State of assembling such data.

f. Damages will be inadequate for any environmental damage caused pending trial. But on the particular facts of the present case – including decades of licensed mussel farming which a stay will only briefly extend and the appreciable prospect that such incremental environmental damage will constitute a relatively minor part of any overall remediation obligations of the State – I consider that this factor weighs less against a stay than ordinarily it might.

g. I also bear in mind that a stay will allow opportunity to assess whether the proper baseline for future AA of aquaculture in Wexford Harbour, including if appropriate, AA of the mussel farming at issue in this case, should include or exclude mussel farming.

h. While the evidence in this regard could have been better, I am satisfied on balance that there is an appreciable risk that if the judicial review succeeds, loss and damage to TLM pending trial will have been significant in quantum and that a remedy in damages in respect thereof will be inadequate – in EU law terms, ineffective – because irrecoverable in law.

i. For the avoidance of doubt, I have weighed the public interest and rule of law factors identified in Okunade and the importance of compliance with EU law obligations. But this seems to me to be a case in the category identified by O’Donnell J in Chain Wen Wei, citing MD:175 “there may be (and in many cases will be) compelling considerations going the other way”. As he said, “it is in the nature of things that there will be many cases in which, after consideration, the appropriate course is to order a stay and perhaps an expedited hearing.”

j. There may be a good defence to the proceedings for failure to commence them in time and on notice as required by statute. If so, and without making any procedural order – which will be for the list judge to consider – there is a considerable prospect that that issue can be quickly and discretely decided by modularisation or preliminary issue.

k. More generally, it may be possible that the list judge will be able to facilitate early trial of the proceedings.

136. In my view, for the reasons I have set out, and taking all into account on both sides of the balance, the order proper to the minimisation of the risk of injustice at this point is to stay the Impugned Decisions, with the effect that TLM can continue mussel cultivation in reliance in s.19A, pending further order of the Court. I will so order.

137. As to the possibility of such further order, there will be liberty to apply. An order ending the stay may be sought on any proper basis and, if appropriate, on new evidence. Particularly, it may be sought as it is clarified whether, and if so when, the time limit defence is to be decided as a preliminary or modularised issue and also as the prospect of a date for trial of all issues is clarified. Such further order may also be sought in light of the outcome of any decision of the time limit issue. The foregoing are illustrative but not exhaustive of the circumstances in which a further order as to the continuation or ending of the stay may be sought and the liberty to apply in that regard is general. Obviously, a considerable duty of expedition now lies on all parties.

MD v Board of Management of a Secondary School [2024] IESC 11.

138. Finally, I should repeat and emphasise that I am not concerned at this stage with predicting, much less determining the outcome of these proceedings. All conclusions drawn in this judgment are based, as consideration of stays generally is and as Okunade recognises, on information which as yet may be significantly incomplete and on interlocutory argument only. All such conclusions are provisional and subject to revisitation de novo at trial.

139. Indeed, and to be clear, none of this judgment is intended to affect, much less prejudge, the issues which might arise as to continuing mussel farming on certiorari and remittal to ALAB with the prospect of a four-year wait for AA and a new decision on the appeals – all where that wait will be a function of the lack of the requisite data and of whatever view may be taken at trial as to responsibility for that deficit.

140. I will hear the parties as to final orders. I provisionally consider that TLM should have its costs of the stay application.

David Holland

4 December 2025

POSTSCRIPT

141. After trial of this matter, I received via e-mail dated 28 November 2025 an attached letter from TLM’s solicitors to the registrar, both copied to all parties and setting out TLM’s understanding of the updated situation as it relates to:

• The re-opening of the Irish Sea mussel seed fishery on 12 November 2025.176

• The issuing of a mussel seed authorisation177 to TLM to take mussel seed from the Irish Sea and relay it in TLM’s licenced mussel beds.

• TLM’s understanding that such authorisation does not extend to the re-laying of seed in the mussel beds for which licence renewals were refused and as to which refusals it has sought stays pending trial.

• TLM’s expectation of two further such authorisations.

142. The advent and ease of electronic communication with the court, especially in lists such as the Planning & Environment List which operate electronically, has many advantages. It has resulted in a

176 By S.I. No. 538/2025 Sea-Fisheries and Maritime Jurisdiction (Mussel Seed) (Opening of Fisheries) Regulations 2025.

Pursuant to s.13 of the Sea-Fisheries and Maritime Jurisdiction Act 2006.

considerable and generally beneficial increase in such communication. However, its very ease renders it important that the parameters and limits of such communication be understood and adhered to.

143. Courts decide cases on, and only on, sworn admissible evidence properly adduced and to hand at the trial and any other evidence in the form of facts and materials admitted by all relevant parties. “Updating” factual circumstances post-trial by unsworn correspondence to the court is exceptional and there is no entitlement to do so. That said, I do not intend an exaggerated sense of the word “exceptional” and where appropriate, such updating can be very useful.

144. Where such correspondence is appropriate, it may occur only with the prior consent of all relevant parties. This is so even where it appears to the party seeking to adduce new evidence that it is or should be uncontroversial. It is not appropriate to inform the court of such matters on the basis that it is up to other parties to object if they wish. Where prior consent to adduce further evidence has not been given, a formal application in that regard is required. If the matter is considered urgent – for example on the basis that judgment may be imminent - a request to defer giving judgment may be appropriate while the views of other parties are canvassed. While the letter did invite me to indicate whether I required a formal application, that issue should not have been canvassed until the attitude of the other parties had been canvassed and made known to me.

145. However, in the present case, and given the view I have taken above as to the prospects of TLM getting seed elsewhere than from the Irish Sea mussel seed fishery, it does not appear to me that the content of the letter affects my decision or that its further consideration is required.

DH