Fisheries (Amendment) Act 1997

65B.—(1) Where any proceedings tried summarily in the District Court for an offence under this Act are dismissed, whether on the merits or without prejudice, the prosecutor may appeal against the order of dismissal to the judge of the Circuit Court within whose Circuit the courthouse in which the order was made is situated.

(2) The judge of the Circuit Court on an appeal under subsection (1) may vary, confirm or reverse the order and his or her decision is final and conclusive and not appealable.]

66. Costs of prosecutions.

66.—Where a person is convicted of an offence under section 65 (2)(a) or (b) committed after the commencement of this section, the court shall, unless it is satisfied that there are special and substantial reasons for not so doing, order the person to pay to the Minister the costs and expenses, measured by the court, incurred by the Minister in relation to the investigation, detection and prosecution of the offence, including costs and expenses incurred in the taking of samples and the carrying out of tests, examinations and analyses.

67. Removal of unlawful aquaculture structures and equipment under Foreshore Act.

67.—(1)Section 12 (other than subsection (2)(b)) of the Foreshore Act, 1933, shall, with the necessary modifications, extend and apply to and in relation to—

(a)structures, articles or equipment used or capable of being used for aquaculture which, before or after the commencement of this section, have been erected or placed in position without lawful authority on foreshore belonging to the State, and

(b)any such structure, article or equipment erected or placed in position on such foreshore for a purpose authorised by or in accordance with a condition of a licence or other permission under this Act, where its operation for that purpose has ceased to be so authorised.

(2)A person who fails to comply with an order under section 12(1)(a) of the Foreshore Act, 1933 as modified by subsection (1) of this section shall be guilty of an offence under this Act.

67A. F40[ Reduction in licensed area, etc.

67A.—The Minister may, on the application of a licensee and subject to such conditions (if any) as the Minister may consider appropriate in the circumstances and specifies in writing, reduce the area or permitted aquaculture or both to which the licensee’s licence relates, absolutely or for such period as the Minister specifies in writing and the licence shall have effect and be noted accordingly in the register of licences maintained under section 78.]

67B. F41[ Permission of use of novel or experimental equipment by licensee.

67B.—The Minister may, on the application of a licensee and subject to such conditions (if any) as the Minister may consider appropriate in the circumstances and specifies in writing, permit the licensee to use novel or experimental equipment within the licensed area for such period as the Minister specifies in writing. Such permission shall be granted only if the Minister is satisfied that the use of the novel or experimental equipment will have no greater environmental or visual impact than that which existed prior to the introduction and use of such equipment and shall be noted in the register of licences maintained under section 78.]

68. Revocation or amendment of aquaculture licences.

68.—(1)Subject to subsection (3) F42[…], the Minister may, in his or her discretion and, subject to subsection (5), without compensation to the licensee, revoke an aquaculture licence if the Minister—

(a)is satisfied that there has been a breach of any condition specified in the licence,

(b)is satisfied that the aquaculture operation to which the licence relates is not being properly maintained, or

(c)considers that it is in the public interest to do so.

(2)Subject to subsection (3) F43[…], the Minister may amend an aquaculture licence if he or she considers it is in the public interest to do so.

(3)The following shall apply in relation to the revocation or amendment of an aquaculture licence:

(a)the Minister shall not revoke or amend the licence unless and until he or she has given by post to the licensee not less than 28 days notice in writing stating that the Minister has under consideration the revocation or amendment, as the case may be, of the licence;

(b)the notice shall also state—

(i)where it states that the Minister has under consideration the amendment of the licence, the specified amendment under consideration and the grounds on which it is so under consideration, or

(ii)where it states that the Minister has under consideration the revocation of the licence, the grounds on which the revocation is under consideration;

(c)the Minister shall consider any representations in relation to a proposed revocation or amendment made to the Minister by the licensee before the expiration of the notice.

(4)The application regulations may provide for such procedural matters in relation to the revocation or amendment of licences as the Minister considers necessary or expedient.

(5)Where under subsection (1)(c) or (2) the Minister revokes or amends an aquaculture licence, the licensee shall be entitled to be paid by the Minister compensation for any loss suffered by him or her by reason of the revocation or amendment and, in default of agreement, the amount of compensation shall be determined under and in accordance with the Acquisition of Land (Assessment of Compensation) Act, 1919.

(6)Any expenses incurred by the Minister under this section shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

69. F44[ Cesser of aquaculture licences in certain circumstances.

69.—(1) (a) Subject to paragraph (b), where aquaculture in respect of which a licence has been granted has not commenced within 2 years after the date on which the licence was granted, the licence ceases to have effect.

(b) A licensee, who considers that there are exceptional reasons why aquaculture, in respect of which a licence has been granted to the licensee, has not been commenced or cannot commence within the period specified in paragraph (a), may apply to the Minister, giving those reasons, for a determination that the licence concerned shall not cease to have effect.

(c) The Minister may, at his or her discretion, having considered the reasons given by the licensee under paragraph (b), determine whether or not the licence shall cease to have effect. The determination of the Minister is final.

(2) (a) Subject to paragraph (b), where aquaculture in respect of which a licence has been granted has ceased for a continuous period of 2 years, the Minister shall, without compensation to the licensee, revoke the licence.

(b) A licensee, who considers that there are exceptional reasons why aquaculture, in respect of which a licence has been granted to the licensee, has ceased or is likely to cease for the period referred to in paragraph (a), may apply to the Minister, giving those reasons, for a determination not to revoke the licence.

(c) The Minister may, in his or her discretion, having considered the reasons given by the licensee under paragraph (b), determine whether or not to revoke the licence. The determination of the Minister is final.

(d) This subsection is deemed to have come into operation on 30 June 1998.]

70. Review of aquaculture licences.

70.—(1)The Minister may, on the application of the licensee made at any time after the expiration of a period of three years commencing on the granting of the licence or its last renewal under section 19, review an aquaculture licence.

(2)On completion of a review under subsection (1), the Minister may decide to—

(a)alter any or all of the terms of the licence,

(b)amend or delete any condition to which the licence is subject,

(c)attach conditions or additional conditions to the licence, or

(d)do none or all or any of those things.

(3)Part III shall apply to the decision of the Minister on an application for a review of an aquaculture licence in the same manner as it applies to a decision of the Minister on an application for an aquaculture licence.

(4)The application regulations may provide for such procedural matters in relation to applications for reviews of aquaculture licences and decisions on such applications, including the application of environmental impact assessment requirements, as the Minister considers necessary or expedient.

71. Aquaculture regulations.

71.—(1)The Minister may make regulations establishing such requirements in relation to the management and operation of aquaculture as the Minister considers necessary or expedient.

(2)A person who contravenes or fails to comply with a regulation under subsection (1) shall be guilty of an offence triable summarily.

72. False or misleading statements in relation to licence applications or appeals.

72.—(1)A person who in or in relation to an application for a licence, or an appeal against a decision on an application for an aquaculture licence or the revocation or amendment of a licence, makes a statement in writing which to the person's knowledge is false or misleading in a material respect shall be guilty of an offence.

(2)Where a person is convicted of an offence under subsection (1), any licence granted to that person, or to some other person on whose behalf the convicted person was authorised to act, consequent on the application or appeal in relation to which the information was furnished, shall be revoked from the date of the conviction.

73. Applications for judicial review of decisions on licence applications or appeals.

73.—(1)A person shall not question—

(a)a decision on an application for a licence or the revocation or amendment of a licence, or

(b)a determination of the Board on an appeal,

otherwise than by way of an application for judicial review under Order 84 of the Rules of the Superior Courts (S.I. No. 15 of 1986) (in this section referred to as “the Order”).

F45[(1A) The High Court shall not grant leave for judicial review unless it is satisfied that—

(a) the applicant has a sufficient interest in the matter which is the subject of the application, or

(b) the applicant—

(i) is a body or organisation (other than a State authority, a public authority or governmental body or agency) the aims or objectives of which relate to the promotion of environmental protection, and

(ii) has, during the period of 12 months preceding the date of the application, pursued those aims or objectives.

(1B) A sufficient interest for the purposes of paragraph (a) of subsection (1A) is not limited to an interest in land or other financial interest.

(1C) The Court, in determining either an application for leave for judicial review under this Act, or an application for judicial review on foot of such leave, shall act as expeditiously as possible consistent with the administration of justice.]

(2)An application for leave to apply for judicial review under the Order in respect of a decision or determination referred to in subsection (1)—

(a)shall be made within the period of three months commencing on the date on which the decision or determination was made, and

(b)shall be made by notice of motion (grounded in the manner specified in the Order in respect of an ex parte motion for leave) which shall be served on—

(i)if the application relates to a decision on an application for a licence, the Minister or the officer of the Minister by whom the decision was made, as the case may be, and where the applicant for leave is not the applicant for the licence, it shall also be served on the applicant for the licence,

(ii)if the application relates to a determination referred to in subsection (1)(b), the Board and each party or each other party, as the case may be, to the appeal, or

(iii)any other person specified for that purpose by order of the High Court,

and leave shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that the decision or determination is invalid or ought to be quashed.

(3)The determination of the High Court of an application for leave to apply for judicial review referred to in subsection (2), or of an application for such judicial review, shall be final and no appeal shall lie from the decision of the High Court to the Supreme Court in either case except with the leave of the High Court, which leave shall only be granted where the High Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.

(4)Subsection (3) shall not apply to a determination of the High Court in so far as it involves a question as to the validity of any law having regard to the provisions of the Constitution.

(5)References in this subsection to the Order shall be construed as including references to the Order as amended or re-enacted (with or without modification) by rules of court.

F46[(6) In this section“State authority, a public authority or governmental body or agency”means—

(a) a Minister of the Government;

(b) the Commissioners of Public Works in Ireland;

(c) a harbour authority within the meaning of theHarbours Act 1946;

(d) a local authority within the meaning of theLocal Government Act 2001;

(e) the Health Service Executive;

(f) a person established—

(i) by or under any enactment (other than the Companies Acts),

(ii) by any scheme administered by the Government, or

(iii) under the Companies Acts, in pursuance of powers conferred by or under another enactment, and financed wholly or partly, whether directly or indirectly, by means of moneys provided, or loans made or guaranteed, by a Minister of the Government or by subscription for shares held by or on behalf of a Minister of the Government;

(h) a company (within the meaning of the Companies Acts), a majority of the shares in which are held by or on behalf of a Minister of the Government.]

74. Provisions in respect of certain licence applications.

74.—(1)Where an application under section 15 of the Principal Act for a fish culture licence or under section 54 of the Act of 1980 for an aquaculture licence has been received by the Minister before the commencement of this section and has not been determined by the Minister before that commencement, the application shall, on that commencement, be deemed to be an application for an aquaculture licence under this Act.

(2)Subject to subsection (3), the provisions of this Act and any regulations made under this Act relating to aquaculture licences shall apply and have effect in relation to applications to which subsection (1) applies as if the applications were made on the commencement of this section.

(3)Where, before the commencement of this section, public notice has been given in relation to an application to which subsection (1) applies and interested persons or bodies have been afforded an opportunity to make submissions or observations in relation to the application, the requirements of the application regulations in relation to the giving of notice of an application for an aquaculture licence or the making of submissions or observations in relation to such an application shall not apply to that application.

(4)Where the Minister is satisfied that sufficient information has been provided for the Minister to decide an application to which subsection (1) applies in accordance with the provisions of this Act, the requirements of the application regulations in relation to the information which is required in respect of an application for an aquaculture licence shall not apply to that application.

75. Provisions in respect of certain existing licences.

75.—(1)Subject to subsection (2)—

(a)a fish culture licence granted under section 15 of the Principal Act,

(b)an aquaculture licence granted under section 54 of the Act of 1980, or

(c)a foreshore licence granted for aquaculture purposes under the Foreshore Act, 1933,

before the commencement of this section shall, on that commencement, be deemed to be an aquaculture licence granted under this Act.

(2)Notwithstanding subsection (1) and without prejudice to the power of the Minister under section 68, the duration of—

(a)a licence granted under section 54 of the Act of 1980, shall not be affected by the repeal of that section by section 4(1), or

(b)a licence granted under section 15 of the Principal Act shall not be affected by the repeal of that section by section 5.

76. Ownership of stock.

76.—(1)For the removal of doubt, it is hereby provided that the ownership of any fish or aquatic plants of a species specified in a licence and which are cultivated or farmed in accordance with that licence vests in the licensee.

(2)Nothing in subsection (1) prevents a licensee from transferring or otherwise disposing of the ownership of any fish or aquatic plants referred to in that subsection.

77. Recapture of escaped stock.

77.—(1)F47[Inland Fisheries Ireland] may take such action as it considers necessary to recapture stock which has escaped from a facility operated under a licence.

(2)The Minister, or an officer of the Minister designated by the Minister for the purposes of this section, may, notwithstanding any other provision of this Act or of the Fisheries Acts, 1959 to 1995, authorise a licensee or other person or body to take such action as is specified in the authorisation to recapture stock which has escaped from a facility operated under a licence.

(3)An authorisation referred to in subsection (2) may be granted subject to such conditions, if any, as the Minister or the designated officer, as the case may be, considers necessary or expedient.

(4)The reasonable costs of a person taking action in pursuance of an authorisation under subsection (2) may be recovered from the licensee as a debt due and payable to the person who incurred the costs.

78. Register of licences.

78.—(1)The Minister shall, within a period of three months commencing on the commencement of this section, establish and maintain a register of licences which shall contain a copy of each licence granted under this Act and such other information as may from time to time be prescribed by regulations.

(2)The register of licences shall be kept at the offices of the Minister and shall be made available for inspection by any person free of charge during normal office hours.

(3)When a request is made for a copy of an entry in the register of licences, the copy shall be provided to the person requesting it on the payment by the person to the Minister of such fee, if any, as may be fixed, not exceeding the reasonable cost of making the copy.

(4)Every document purporting to be a copy of an entry in the register of licences and purporting to be certified by an officer of the Minister as a true copy of the entry shall, without proof of the signature of the person purporting so to certify or that he or she is an officer of the Minister, be received in evidence in any legal proceedings and shall, unless the contrary is shown, be deemed to be a true copy of the entry and be evidence of the terms of the entry.

(5)Evidence of an entry in the register of licences may be given by production of a copy of the entry certified pursuant to this section and it shall not be necessary to produce the register of licences itself.

(6)The Minister may keep the register of licences otherwise than in legible form but so that the register is capable of being used to make a legible copy or reproduction (in this section referred to as a “copy record”) of any entry in the register.

(7)In any proceedings a certificate signed by an officer of the Minister stating that a copy or copy record of an entry in the register has been made in accordance with subsection (6) shall be evidence of the fact of the making of the entry and that the copy or copy record of the entry attached to the certificate is a true copy or reproduction of the entry, until the contrary is shown.

(8)A document purporting to be a certificate under subsection (7) shall be deemed to be that certificate without proof of the signature of the person purporting to sign it or that the person was a proper person to so sign, until the contrary is shown.

(9)In any proceedings a copy record may be given in evidence and shall be prima facie evidence of the facts stated in it, if the court is satisfied as to the reliability of the system used to make the copy record and the original entry on which it was based.

79. Restriction of application of Part X of Principal Act.

79.—Part X of the Principal Act shall not apply to fish produced pursuant to a licence.

80. Amendment of Environmental Protection Agency Act, 1992.

80.—Section 73 (1) of the Environmental Protection Agency Act, 1992, is hereby amended by the insertion of “or the Aquaculture Licences Appeals Board” after “which the Minister for the Marine”.

81. Appointment of staff of Marine Institute as authorised officers and powers in relation to aquaculture.

81.—(1)A person employed by the Marine Institute may be appointed as an authorised officer under the Fisheries Acts, 1959 to 1995, as amended by this Act, for any of the purposes for which an officer of the Minister may be appointed as an authorised officer under those Acts.

(2)In addition to any other powers he or she may have under the Fisheries Acts, 1959 to 1995, as amended by this Act, a member of the Garda Síochána, or an officer of the Minister or a person employed by the Marine Institute and appointed as an authorised officer under those Acts, may, for the purposes of determining whether a provision of this Act, or a regulation made under this Act, relating to aquaculture, or a condition to which an aquaculture licence or trial licence is subject, is being or has been complied with—

(a)enter any place or waters the subject of an aquaculture licence or trial licence or on or in which he or she believes, on reasonable grounds, aquaculture is being or has been carried on, or any building or structure used in connection with such place, waters or aquaculture,

(b)inspect anything found on or in such a place, waters or building or structure he or she believes may be evidence of such aquaculture,

(c)require the production of any—

(i)licence, or

(ii)book or other document he or she believes on reasonable grounds to be evidence of the carrying on of aquaculture on or in the place or waters,

and inspect and take copies of any such licence, books or other documents, and

(d)do all such other acts or things as he or she is authorised to do by or under the Fisheries Acts, 1959 to 1995, as amended by this Act.

82. Application of Foreshore Acts, 1933 and 1992 to aquaculture.

82.—The Minister, in considering an application for a lease or a licence under the Foreshore Acts, 1933 and 1992, which is sought in connection with the carrying on of aquaculture pursuant to an aquaculture licence, shall have regard to any decision of the licensing authority in relation to the aquaculture licence.