Our Planning & Environment team explores recent decisions in the High Court and the Court of Appeal which consider whether the harvesting of kelp or seaweed using machinery is an activity which requires planning permission.
Background
BioAtlantis made an application to the relevant Minister for a foreshore licence to cut seaweed and kelp to make products for the gut microbiome, which was executed in March 2014. The machines would harvest the seaweed/kelp on the foreshore, and would stay 25cm above the seabed, not touching it.
The licence was granted after consultation with 8 state bodies, with no objections, provided there were certain conditions attached to the licence.
In 2018, Mr Casey issued a notice of motion seeking a planning injunction under Section 160(1) of the Planning and Development Act 2000 (PDA) restraining BioAtlantis from carrying out “unauthorised development” including the mechanical harvesting of seaweed. He sought a declaration that the activity was development which was unauthorised and not exempted development. He also had previously brought judicial review proceedings against the decision of the Minister to approve a baseline study and monitoring programme which was one of the conditions of the foreshore licence.
High Court
In the High Court, Mr Casey claimed that harvesting kelp was “development” within the meaning of the PDA. In order for such a development to require planning permission, it must “adjoin” the functional area of a planning authority, here Cork City Council.
Mr Casey claimed that the development:
- Could be considered “works” because the activity was altering the seabed, and
- It was a “material change” of the use of the seabed, and that the foreshore adjoins the functional area of Cork City Council. He said that the sheer scale of the operations along with the fact they are proximate to European sites provide strong support to that the changes should be considered “material”.
BioAtlantis outlined that the mechanical harvesting does not involve the use of any structure or other land, does not resemble any relevant operations and the activity is expressly provided for under the Foreshore Act 1933.
BioAtlantis submitted that “adjoining” means land touching and sharing a common border with the area of the county council. BioAtlantis claimed that Mr Casey had not discharged the burden of proof to establish that the area adjoined the functional area of Cork City Council. The Minister as a notice party agreed with BioAtlantis on this point.
The Minister submitted that the wider regulatory context can inform the correct interpretation of the PDA and this shows that the Oireachtas expressed a clear legislative intent that activities on the foreshore were presumptively to be regulated outside the framework of the PDA.
High Court judgment
The Court decided that Mr Casey had not sufficiently discharged the burden of proof which rested on him to prove that the harvesting of seaweed was an unauthorised development under the PDA.
The High Court concluded that the PDA was regulating the human use of land, and that there are separate legislative regimes which regulate the sea. The licence was issued with the approval of 8 state bodies, and the issued licence was to remove “beach materials” which includes seaweed. The Court likened the activity to fishing, which requires a licence but not planning permission.
Court of Appeal
The Court of Appeal was asked to decide upon essentially the same questions:
A) Whether the mechanical harvesting of wild kelp proposed by BioAtlantis is “development” within the meaning of the PDA, either because the activity constitutes “works” or a “material change of use” or both.
Works: Mr Casey claimed that the harvesting was an “alteration” of the foreshore. According to the PDA, “works” applies to a specific class of structure, the definition applies to something manmade. The appeal Court agreed with the trial judge, that harvesting kelp was akin to commercial fishing. It also lacks the permanence required to be considered “works” as the kelp naturally regrows as part of the cycle.
Material change: Mr Casey was required to establish that a) there was an existing use b) a change in that use and c) the change is material in planning terms. The trial judge said that the PDA regulates human activity, when it refers to a change of use it is in the context of human use. The judge further said that there was no “existing use” of the kelp as it was not being used in any way prior to the licence to harvest being granted.
(B) If the answer to the foregoing is in the affirmative, whether Mr. Casey has established that such development would “adjoin” the functional are of Cork County Council as provided in Section 225 of the PDA.
According to expert planning evidence given, from the “middle inter tidal zone” to the “subtidal zone” is not connected to the ordinary high water mark and so is not part of the functional area of a planning authority.
Mr Casey sought to argue that up to the limit of the state’s territorial waters is the functional area of a planning authority. He also claimed adjoining could mean “neighbouring”. The Court found that the meaning of “adjoin” in the PDA has the ordinary meaning, to connect or touch.
The Court also noted the enactment of the Maritime Area Planning Act 2021 (MAPA) which establishes a regulatory regime for the use of the “maritime area” which extends to the outer limit of the state’s territorial waters. The Court stated that MAPA extends the definition of development in the PDA so that would imply that the Oireachtas took the view the PDA did not previously extend to the entire “maritime area”.
On the basis of the above, the appeal was dismissed.
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