DETERMINATION OF SEA-FISHING BOAT LICENSING APPEAL
UNDER SECTION 16 OF THE FISHERERIES (AMENDMENT) ACT 2003
In relation to vessel MFV Mary G
Mr Brendan MacCormick, Crossroads, Greencastle, Co. Donegal / Appellantand
The Licensing Authority in Relation to Sea Fishing Boats / Respondents
Hearing: BIM National Fisheries College, Greencastle, Co. Donegal
Representation:
Appellant: Ray Lannon, MD White Solicitors, Carndonagh, Co. Donegal
Respondent: Conor O’Mahony B.L.
Witnesses: Brendan MacCormack, the Appellent and Kevin Moriarty, Registrar General of the Licensing Authority for Sea Fishing
Appeals Officer: Emile Daly B.L.
Decision
Jurisdiction
This appeal is limited to jurisdiction granted to an Appeals Officer under section 6 (3) and (4) of the Fisheries (Amendment) Act 2003
For the purpose of clarity, I will set this out:
Section 6 (3)
An Appeals Officer shall be independent in the exercise of his or her functions under this Act subject to—
(a) the law for the time being in force in relation to sea-fishing boat licensing, including, in particular, the legal obligations of the State arising under any law of an institution of the European Communities or other international agreement which is binding on the State, and
(b) such policy directives in relation to sea-fishing boat licensing as the Minister may give in writing from time to time.
Section 6 (4)
A policy directive given under subsection 3(b) may require certain prohibitions or conditions to be imposed in relation to sea-fishing for the purposes of protecting, conserving or allowing the sustainable exploitation of living marine aquatic species.
Policy Directive 2 of 2003 Fisheries Amendment Act 2003 states that capacity taken off the Fishing Register must be reintroduced to the Register within two years of its removal from the fleet otherwise the entitlement will be lost to its owner.
Facts
It is common case that the capacity (5.53 GT and 37.30 KW) of the MFV St Columba was taken off register on 23 April 2007. The Appellant received a licence offer in respect of MFV Mary G on 19 February 2014. The offer of licence was subject to conditions. Two of these conditions are the subject matter of this appeal. The first condition being appealed is that replacement capacity is to be provided. The licence offer expressly precluded the use of the capacity of MFV St. Columba because this had expired on 23 April 2009. The second condition being appealed is the condition that restricts the Appellant from using the MFV Mary G, to fish for anything other than those that fall within the specific segment of bi-valve molluscs and aquaculture.
Appellant’s submission
1. The Appellant submits that he did not receive the letter dated 25 April 2007 which confirmed that the capacity of the MFV St. Columba would expire on 23 April 2009 and therefore should not be bound by this
2. The Appellant submits that the licence that issued to him in 1999 and 2001 referred to gear that he was given permission to use. This gear was described as “gill net and entangling nets and traps.” The Appellant accepts that there was an express condition on the licence, namely that the licence is solely for the fishing of aquaculture purposes and for bi valve molluscs. However he submits that the gear for which he was given permission to use, is not appropriate for the fishing for bivalve molluscs and aquaculture, but rather is used for rock bottom fishing, pot fishing and other fish. He submits that this raises an ambiguity in the licence and as a result, the interpretation that he submits should be made is that the licence should not be restrictive on him and that an unrestricted right to fish, should be conferred on him.
3. The Appellant submits that he fished Lough Foyle, for many years, on the understanding that his licence was unrestricted and that he was allowed to do fish generally, regardless of the restriction that appeared on the conditions of his licence. He submits that he was never prosecuted for fishing in breach of licence conditions
4. The Appellant submits that the ambiguous licences of 1999 and 2001 amount to a type of “comfort letter” which have been relied on to prevent prosecutions being successfully brought in other areas of criminal law.
5. The Appellant submits that he had a legitimate expectation that he could continue doing what he had always done to earn a livelihood as his father had before him on Lough Foyle. That all the criteria for legitimate expectation in Glencar case had been met. A representation was raised, he relied on the representation and suffered a detriment as a result.
6. The Appellant submits that a letter of licence offer (30 March 2007) for MFV St. Columba refers to the Appellants licence as being that of polyvalent fleet segment, which infers that the Appellant had a licence which was not restricted only to bi-valve molluscs and aquaculture. This further adds to the ambiguity in what the Appellant believed that he was entitled to.
7. The Appellant submits that, even if he had received the letter of 25 April 2007, which he denies, he should have been notified again about the operation of the “use it or lose it” policy directive 2/2003 before the capacity expired on 23 April 2009. He submits that one letter of notification is insufficient, when such a significant part of a person’s ability to make a livelihood, is being lost.
8. The Appellant submits that his father passed away over the period of time that the capacity was off register and that he had to deal with that sad event and the consequences of it.
9. The Appellant submits that he was cooperative at all times with the Licensing Authorities and was compliant with all the requests made by the authorities during the period after the Good Friday Agreement, when fishing on Lough Foyle, for the first time was regulated between North and South. He submits that he did this in the national interest and yet now feels that he is being betrayed by the State, because he is being denied his only livelihood. He submits that he might have been better off not cooperating, as the regulations would not have been permissible to implement, without the cooperation of the Lough Foyle fishermen and he now asks himself; what good did that cooperation do for him.
10. The Appellant submits that the fact that he already lost his salmon fishing licence by virtue of the regulations that were introduced in the wake of the Good Friday Agreement regulations, is a matter that should also be taken into account.
Respondent’s submission
1. The Respondents submits that Policy Directive 2/2003 applies and that this is strictly enforced. The Licensing Authority has no discretion but to apply the terms of this Policy Directive.
2. The time limit under Policy Directive 2-2003 is fixed by law and there is no discretion to waive that provision.
3. The Respondent submits that their duty is to inform those, who take a vessel off register, of the existence of Policy Directive 2/2003 and the effect that it will have on that person. Once they have done so, their duty is at an end.
4. The Respondents deny that once having informed an Appellant of the expiry date of the replacement capacity that they have no ongoing obligation to either progress an application or to keep informed a claimant as to the time limit operating against them as time proceeds.
5. The letter of 25 April 2007 is clear, the date for expiry of the capacity of the MFV St Columba is 23 April 2009
6. The Respondent submits that the address used by them to correspond with all the Appellant, at all times was Crossroads, Greencastle, Co. Donegal. It is to this address that the letter of 25 April 2007 was sent (setting out the date upon which the replacement capacity would lapse). The Appellant received all other letters sent both before and after April 2007.
7. It is denied that there is an ambiguity in the earlier licences. The Respondent submits that a mere permission to use a type of fishing gear, is simply that and such a permission does not operate to undermine an express condition in the licence conditions, which was that the fishing permitted by the Appellant was restricted to bi-valve molluscs and aquaculture
8. It is denied that the permission to use gill net and entangling nets and traps raises a representation under the Glencar principles. The reason that no representation can be raised by the gear provision is because in the same licence document, there is an express condition restricting his fishing to bi-valve molluscs and aquaculture only.
9. The Respondent submits that in the licence offer letter of 30 March 2007, which refers to polyvalent, does so in that is refers to his “application for a polyvalent licence”. Thereafter in the document, there is no mention of polyvalent. Any ordinary reading of this would not allow one to believe that one was receiving an offer to fish within the polyvalent category. Furthermore this letter goes on to set out two express conditions (that both replacement capacity be provided and that the fishing would be limited to bi-valve molluscs and aquaculture only.) The Respondent stated that this offer was not in fact, taken up by the Appellant.
10. The Respondent submits that under Glencar principles, the representation raised must be clear and that the permission to carry certain gear on a vessel is not a clear representation especially when in the same document, the fishing is expressly limited. The Respondent submits that even if you take the Appellant’s case at its height, there is an ambiguity in the licence document, which does not meet the requirement in Glencar for a clear representation.
11. The Respondent submits that even if the Appeals Officer deems the reference to fishing gear to be a representation within the meaning of Glencar, then such a representation did not appear on any other document issued by the Licensing Authority post June 2005, which was two years before the MFV St. Columba came off register, so cannot be said to be relied upon in this case, because the capacity of the MFV St. Columba was lost in 2009.
12. The Respondent submits that the licence that the Appellant had was always limited. The fact that he may have been acting contrary to what was an express provision in the licence and may have fished illegally, cannot give rise to a representation as per Glencar.
Decision
There is no doubt that one must have great sympathy for the Appellant.
I do not doubt his sincerity when he outlines how, for reasons of national interest, he and the other Lough Swilly fishermen, agreed to cooperate with the authorities to change Lough Foyle from being an unregulated fishing area into one, which as a result of the Good Friday Agreement became strictly regulated. Up until that time Lough had been jointly owned by the two sovereign jurisdictions and the fishing had been unrestricted and was, in the Appellant’s solicitors words, “a free for all.”
Also I feel great sympathy for the Appellant, whose father died in or around the time that the replacement capacity was lost.
Furthermore he lost a licence to fish for salmon, which no doubt had a serious impact on his livelihood.
All these aspects of the case would be matters that would be called into account, if an Appeals Officer had the discretion to so do.
The operation of Policy 2/2003 has a significant impact on the livelihoods of those who lose the capacity of their vessels through inaction and through the passing of time.
It is not for me to comment on the fairness of whether one letter which indicates a two year lapsing period, is sufficient to put a person – whose job is by its nature remote from home/office – on notice of the fact that their main business asset will be lost in two years hence.
I have said this before. I do not regard it to be cost –prohibitive for the Respondent to set out clearly in the Policy 2/2003 letter; that compliance with the two year rule is the responsibility of the vessel owner and that no further reminder will issue in advance of the capacity end date being reached. This would underline the importance of the warning being given.
Having said that I find that on the balance of probabilities the Appellant probably did receive the letter of 25 April 2007. A copy of it is on the file and the Appellant received all other correspondence at this address.
The discretion of an Appeals Officer is very limited in relation to Policy Directive 2- 3 and I have no discretion in these circumstances but to apply it.
I do not accept the Appellant’s contention that because previous licences, issued in 1999 and 2001, make reference to certain types of fishing gear, that this raises a representation under the principles of Glencar case. In both the 1999 licence and the 2001 licence, the conditions expressly restricted fishing to only bi-valve molluscs and aquaculture. This was clearly set out and cannot be denied. The alleged ambiguity in the document does not reach what must be a clear representation in the first criterion in Glencar.
For reasons cited above I find this appeal fails.
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Emile Daly B.L.
3 April 2015
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