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1. The Applicants seek to quash a Sand and Gravel Extraction Licence granted by the Respondent to the Managing Director and Company Secretary of the Second Notice Party on the 29th May, 1997. This licence authorises the extraction of a large amount of material from designated parts of the foreshore in Cork Harbour for use as back-fill for the River Lee tunnel. Ancillary reliefs were also sought and an Interlocutory Injunction has already been granted prohibiting extraction of material from certain licensed areas pending the outcome of these proceedings.

2. The Applicants' grounds of challenge may be summarised as follows:-

3. In fact, however, the Respondent is extracting material from the "Spit Bank" area at a relatively early phase in the sequence of their extraction programme, thereby posing an unnecessary threat to the livelihood of the Applicants because the same or equivalent material could be extracted in whole or in part, and in any event at a later stage in the operation, from elsewhere in the licensed area.

4. The operation actually being conducted is so different from that described in the E.I.S., that the Minister's licence is fatally flawed as it was procured by a misrepresentation to the effect either that the excavation would initially be carried out only in Section 1 and Section 3 and in Section 2, only if necessary, or alternatively to the effect that extraction would never be carried out in Section 2.

5. Section 19A of the Foreshore Act (inserted by Part III of the European Communities (Environmental Impact Assessment) Regulations, 1989) provides in part as follows:-

6. Section 19A goes on to provide the contents of the notice and a specific procedure for the making of objections and representations.

7. The notice published by the Minister in the present case referred to both Sections 19 and 19A of the Act of 1933.

8. The licence granted by the Minister contained the following conditions:-

9. The licence provided for the payment of a lump sum and what are described as royalty payments.

10. The relevant regulations provide for an objection period of one month following publication of notice of the making of a licence application and in the present case this month expired on the 12th September, 1996.

11. The Applicants submit that the Minister should have used his powers under Section 19 to publish a notice and give the Applicants an opportunity to make objections and representations. Mr. John Hennessy, P.C., Secretary of the Cobh Fishermen's Association Limited, wrote to the Minister a detailed letter of objection dated the 3rd December, 1996 and in his reply of the 17th December, the Minister stated that he was advised that the letter could not properly be considered because the objection period had expired and undertook, nonetheless, to consult his officials and let Mr. Hennessy know what decision he came to when the application and reports were presented to him. The Minister had power, the Applicants submit, under Section 19 to publish a notice indicating a period for the making of objections and the Applicants' Counsel stresses that the introductory words of Section 19A, namely, "Notwithstanding Section 19 of this Act....", indicate that the Minister's powers under Section 19 remain independent of and unrestricted by the provisions of Section 19A. In the circumstances he had a duty to exercise these powers and his failure to do so vitiated the grant of the licence.

12. Secondly, it is submitted that when the new information came into the hands of the Third Parties to the knowledge of the Minister in November 1996, the Minister should have known that this information was clearly relevant to his determination of the licence application and should have considered it and his failure to do so was a failure of his obligation in natural justice to the Applicants.

13. Reliance is placed on a number of case but in particular on the judgment of Carroll J. in Navan Tanker Services Limited, Applicant, and Meath County Council and Others, Respondents , (unreported: 13th December, 1996). The first respondent's decision refusing to appoint the applicant an authorised tester of light and heavy goods vehicles, was quashed on the grounds that the applicant "... was not told when he first mooted the application that there was no use in applying as there was already an adequate service being given. If he had been told, he could have confronted this approach". Reference was made to the doctrine of "legitimate expectation" in that the learned trial Judge held that the applicant "... had a legitimate expectation that (he) would be treated fairly and this included a right to be heard on the question of adequacy of supply before the County Manager took a decision on grounds of which it had no knowledge".

14. This decision is, in my view, clearly distinguishable from the present case: the applicant in the Navan Tanker Services Limited case had no knowledge of the relevant grounds. In the present case all the information before the Minister was available to the Applicants. There is nothing in the Navan Tanker Services Limited decision which would support the proposition that natural justice requires that the Minister in the present case should have called for and considered additional material which came to hand after the expiration of the relevant statutory period for objection.

15. Secondly, reliance is placed upon the unreported judgment of Keane J. (4th November, 1994) in John Michael Mulcahy, Applicant and the Minister for the Marine, Respondent and Another (Notice Party) . Reliance is placed especially on the following passage at page 25:-

16. Again, it is clear that the E.I.S. was not made available to the applicant and this was the subject matter of the foregoing observations. This contrasts sharply with the present case where the Third Parties not only notified the Applicants of their application, but advised them through their independent consultant, Dr. John Bartlett, that an objection period was available to them and they were also furnished with a copy of the E.I.S.. Again, there is nothing in Mulcahy -v- Minister for the Marine which, in my view, would support the proposition that the Minister in the present case was obliged to have regard to information which came to hand after the expiration of the objection period.

17. Thirdly, the Applicants argue that the licence imposed a royalty payment which is the equivalent of a rent and that therefore the Minister was bound by Section 3(4) of the Act of 1933 not to grant a licence "... without the sanction of the Minister for Finance" which was not obtained.

18. Fourthly, in response to the objection on the basis of lack of locus standi, the Applicants rely on the judgment of Morris J. in Lancefort Limited, Applicant, -v- An Bord Pleanala & Others, Respondents , (unreported: 6th June, 1997) where he held that a limited company had locus standi to make objections. In the course of that judgment Morris J. said:-

19. Counsel for the Minister submitted as follows:-

20. With regard to the point that the consent of the Minister for Finance was required, he refers to Section 2(4) of the Act of 1933 which refers to the payment of both rent and royalty thereby clearly distinguishing between these two and also to Section 3(5) which makes a similar distinction. Therefore, he submits, the reference in Section 3(4) to rent means rent alone and does not include royalty.

21. Furthermore, rent should bear its ordinary meaning of payment in exchange for possession of property and there is no exclusive possession of the licensed area in the present case. Again, there could be no question of an annual payment (Section 3(4) makes reference to "rent or other annual payment") because the licence itself expires after eight months.

22. The Minister was entitled to take into account, however, in addition, the statement on the same page that "the precise area dredged will depend on the actual material encountered". And also (from page 14) the statement that "the suitability of materials will be assessed at the source, i.e., during dredging and before transportation to site. In the event of unsuitable materials being encountered, these will be of limited volume and will be returned to the riverbed. The location of areas yielding unsuitable material will be recorded and avoided thereafter". There was nothing in the E.I.S. to specify that there would be no extraction from Section 2. There was nothing to specify that Section 1 would be exhausted or practically exhausted before any extractions would occur in Section 2. The E.I.S. indicated that the precise area dredged would depend on the actual material encountered and alluded, further, to the assessment of the suitability of materials during dredging. It is reading too much into the E.I.S. to assert that it implies necessarily a specific sequence or phasing or order of operation. There was, accordingly, no misrepresentation as alleged.

23. In addition to the foregoing, Counsel for the Third Parties emphasised that Dr. Bartlett had informed the Applicants of their right to become involved in the application procedure and had actually furnished them with a copy of the E.I.S.. Furthermore, his clients were entitled to rely on the statutory time frame for the making of objections which in this case expired on the 12th September, 1996. It was noteworthy that the publication notice in relation to the E.I.S. referred to both Sections 19 and 19A.

24. In relation to the discretion of the Court, account should be taken of the fact that the Applicants did not take advantage of the statutory period for making objections and their application amounted to an attempt to reopen that objection procedure. In relation to locus standi, the First Applicant had not established a track record or any activity or involvement which would establish a bona fide interest in the outcome of the proceedings.

25. The concerns of objectors were taken account of in the E.I.S. in a general way and Counsel referred to Mr. Scanlon's letter which was actually reproduced as an appendix to that document.

26. He further submitted that once the Minister had published notice under Section 19, he had exhausted his discretion under that section. He distinguished Mulcahy -v- Minister for the Marine , pointing out that the Applicants had available to them the same material that was before the Minister which was not the situation in the Mulcahy case. The Minister must act in accordance with the law which was laid down in the E.I.A. regulations.

27. Even if it were conceded that the Minister had power to take into account the additional information (which he did not concede), it could not be said that his failure to do so was unreasonable. The E.I.S. did not support the contention that there was a specific phased programme of dredging and he made reference to the same portions of the E.I.S. as Counsel for the Minister.

28. I am prepared to deal with this application on the basis that the Applicants have locus standi. I have doubts about this but I would be uneasy if I simply shut out the Applicants on this point.

29. I accept the point made that the Act of 1933 makes a distinction between rent and royalty and because there is no rent provided for in the licence, I do not accept that the consent of the Minister for Finance was required.

30. I do not think the Minister was obliged to consider this information and indeed I have doubts about his power to do so.

31. He had already published a notice under Section 19 of the Foreshore Act. He had a discretion to do so or not to do so depending on whether "he so (thought) fit" and I can see no warrant for holding that he was obliged to call for and consider additional material which came into the hands of the Third Parties after the statutory period for making objections had elapsed.

32. The E.I.A. period was mandatory and the Minister published a notice under Section 19 and 19A. In those circumstances the Third Parties had as much, if not more, entitlement to expect that the Minister would proceed to process its application with reasonable dispatch as had the Applicants to expect that he would engage in a further round of publication and objections in relation to the new material. Indeed it may be that, having published one notice under Section 19, the Minister had exhausted his power under that Section.

33. I can see no warrant, either, for holding that apart from the four corners of the statutory regime, the Minister had some additional extra-statutory obligation in fairness to the Applicants to reopen the closed phase of the application procedure or to duplicate it. On the contrary, to take that view would greatly diminish the object and value of the statutory procedures themselves.

34. I do not consider that the E.I.S. has laid down a specific phasing for the carrying out of the dredging operation which is sacrosanct and which cannot be altered or modified in accordance with circumstances which come to light in the course of the dredging operation itself. Indeed this very concept is specifically alluded to at page 14 of Volume II of IV of the E.I.S. which states that:-

35. Furthermore, I do not think that the sentence at page 11 relied upon by the Applicants - even if it were the only relevant material to be considered - establishes or warrants the phasing sequence contended for by the Applicants. I think it is reading too much into this paragraph to assign certainty to it. It says:-

36. Not only does that not mean that there will be no extraction from Section 2 but it indicates, to my mind, that there is a degree of uncertainty about the amount of material in Section 1. Furthermore, there is no clear or absolute commitment to any particular sequence apart from the assertion that extraction in the lower harbour will initially be from Section 1. Even taken on its own, this paragraph on page 11 does not, in my view, import the particular sequencing or phasing of the operation contended for the Applicants, let alone warrant that there would be no extraction from Section 2. This impression (i.e. of less than certainty) is strengthened when one considers the other paragraphs already referred to in the E.I.S..

37. In the result the Applicants' case must be dismissed.

38. The Applicants did not avail themselves of the opportunity to object to the licence application even though they were furnished with a copy of the E.I.S. by the Third Parties consultant who advised them of their rights to object to incorporate the terms of Environmental Impact Statements in planning application cases.