Kelp harvesting legal shenanigans

The news comes after Ms. Justice Deirdre Murphy declined to grant an injunction blocking the proposed extraction in Ireland’s High Court.

BioAtlantis Aquamarine Ltd. – a Tralee-based biotechnology company – has received a foreshore licence from the Irish Minister for Housing to mechanically extract kelp from over 1,860 acres of Bantry Bay. A member of Bantry Bay – Protect our Native Kelp Forests – a West Cork community organisation – sought an injunction from the High Court to prevent this extraction. The case was heard in the Four Courts over a mammoth ten days, between May 14 and May 31.

Mr. James Devlin SC, representing Mr. John Casey, who sought the injunction, had argued that the proposed extraction constituted an ‘alteration’ and/or a ‘material change of use’ under the terms of the Planning and Development Act 2000, and should therefore legally be classified as ‘development’. As this ‘development’ adjoins the functional area of a planning authority, he contended, by law it cannot proceed without planning permission.

Ms. Justice Murphy rejected this argument, holding that the Oireachtas has seen fit to establish two separate regulatory regimes: the Planning Acts regulate human activity, whereas the wild flora and fauna of the sea are regulated by Ministerial Licence. There are many situations where both a licence and planning permission could be required, she pointed out, as in the example of extending a pier. Were BioAtlantis proposing to construct a ramp out to the kelp forests, she remarked, it would require both planning permission and a foreshore licence.

However, given that the proposed harvesting mechanism is entirely water-borne, the activity, in the court’s view, was more akin to fishing, and therefore requires a licence, but not planning permission. It is ‘the harvesting of the bounty of the sea’, said Ms. Justice Murphy, ‘and it does not require planning’.

At time of writing a judicial review of the granting of the license was due to take place.

By Jake Frith