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1. This is an application for Judicial Review made pursuant to leave granted by Mr. Justice Kelly on the 21st March, 1997. The relief sought at that time was an Order of Prohibition prohibiting the Respondent from granting any licence or licences authorising fish farming at those places in Lough Swilly in the County of Donegal referred to in the public notices published in the Derry People, Donegal Newspaper on the 10th January, 1997 and the 17th January, 1997. It became clear at the hearing, and for reasons which I will be explaining, that the Order of prohibition sought was not a sufficient remedy for dealing with the real complaint of the Applicant. On application by Mr. Sutton, S.C., Counsel for the Applicant, I permitted the Statement of Grounds to be amended so as to include as a further relief an Order of Mandamus directing the Respondent to refuse the application made by Hydro Seafood Fanad Limited for licences under Section 15 of the Fisheries (Consolidation) Act, 1959 authorising fish farming or fish culture at those places in Lough Swilly in the County of Donegal.

2. In essence, the point being taken by the Applicant is a jurisdiction one. It is not a question of the Minister exercising or intending to exercise any discretion wrongly. The Applicant's complaint is that the application cannot be entertained at all by the Minister as beyond all argument not disputed by the Minister, the application does not properly lie under the section invoked.

3. The application to the Minister complained of purported to be an application under Section 15 of the Fisheries (Consolidation) Act, 1959 for a fish culture licence in respect of the cultivation of salmon at Lough Swilly, County Donegal. This application was made in January 1997. The Supreme Court, however, in the case of Madden -v- Minister for the Marine , 1997 1 I.L.R.M. 136, had already decided on the 31st July, 1996 that an application for a fish culture licence under Section 15 of the 1959 Act did not lie if the area in question comprised part of the sea. It is not in dispute that that is the case here and therefore quite clearly an application under Section 15 of the 1959 Act of the kind brought in this case simply does not lie. The Court took the view that the only statutory provision which would entitle the Minister to grant such a licence was Section 54 of the Fisheries Act, 1980 but that section can only be invoked where the Minister has gone through a procedure of designating an area for aquaculture and such procedure under the act may involve a public enquiry and an appeal to the High Court before the licence could be granted. There are no such safeguards under Section 15 of the 1959 Act. In the case of the Lough Swilly area, there has been no designation of an area for aquaculture and therefore there could be no question of Hydro Seafood Fanad Limited being entitled to apply under Section 54 of the 1980 Act.

4. On the 14th May, 1997 the Oireachtas passed the Fisheries (Amendment) Act, 1997. Section 74 of that Act (which has not yet come into force) provides as follows:-

5. In anticipation of Section 74 coming into force, the Minister has not made any decision one way or another in respect of the application under Section 15 of the 1959 Act complained of. As Mr. Sutton points out, when the section does come into force the likelihood is that the Minister may purport to avail of sub-section (4) of Section 74 and may grant the licence without there being any requirement to arrange for first instance procedures provided for by or in intended regulations to be made under the 1997 Act in respect of an application for an aquaculture licence under the 1997 Act.

6. By a letter of the 14th March, 1997 Mr. Michael O'Dwyer, Assistant Principal Officer in the Aquaculture Division of the Department of the Marine, wrote to Messrs. Horan & Monahan, Solicitors for the Applicant in the Judicial Review proceedings in the following terms:-

7. The reference to the Mulcahy case was a reference to a different Judicial Review application in which Keane J. granted a perpetual injunction in respect of an area of Lough Swilly expressly following and refusing to distinguish the Supreme Court decision in the Madden case. The State is relying on this particular letter to prevent an Order of Prohibition being made. I am inclined to interpret the letter as a firm statement of intention on behalf of the Minister that a Section 15 licence as sought would not be granted but Counsel for Mr. Smith maintained that the letter is ambiguous and that it may only be confined to particular areas which have been involved in the Mulcahy application. Counsel for the Minister, Mr. Hedigan, S.C., was not prepared to give any clear undertaking in Court that such a licence would not be granted. Presumably this was because the Minister was anxious not to prejudice his position under Section 74 of the 1997 Act. But in the absence of clarification of the letter on behalf of the Minister, it would seem to me that the Applicant is clearly entitled to the Order of Prohibition sought.

8. I now turn to consider two further questions. The first is whether the Order of Mandamus now sought in the amended Statement grounding the application should be granted. I have come to the conclusion that it should. Apparently there are some four hundred applications pending under Section 15 in respect of which the Minister has deliberately made no decision so that in due course he can make use of Section 74 of the 1997 Act. But Mr. Smith on behalf of his association decided to make a Court challenge. The other three hundred and ninety nine or so or most of them at least as far as I know are not presently under court challenge. Following on any attempt at such challenge the application could well be faced with time problems. As Mr. Smith was an objector at all material times and has brought the matter to Court by way of Judicial Review, I see no reason why I should confine his relief to what is effectively a useless relief and I think that he is entitled to an Order of Mandamus directing the Minister to refuse the application for the fish culture licence on the grounds that such an application under Section 15 of the 1959 Act cannot be entertained. I think that the Order of Mandamus should take that form or a similar form to be discussed with Counsel. In other words the refusal should make clear that it is being made on grounds of jurisdiction and not on grounds of discretion.

9. The second question which I now have to consider is one which really only arose at the end of the hearing in the form of a concern expressed by me. It occurred to me that possibly Hydro Seafood Fanad Limited ought to have been joined as a notice party in the Judicial Review proceedings. No reference to that company however is made in the Order of Mr. Justice Kelly granting leave and I think it very likely that he considered this question. I had thought of inventing some kind of procedure whereby the Judgment would not finally take effect without that company having an opportunity to make arguments if it so wished to do so. But after considering the matter further, I have come to the conclusion that it is not necessary and that it would only involve additional and unnecessary expense. It seems to me that the Minister would have been acting properly if he had written a letter back to Hydro Seafood Fanad Limited immediately on receipt of the original application stating that he could not entertain the application as it related to an area of the sea and therefore did not come within Section 15. There would have been no obligation on the Minister to hear representations from Hydro Seafood Fanad Limited before he wrote such a letter. That being so, I think that it is in order for the Orders of Prohibition and Mandamus to issue without involving that company. The Orders will therefore issue accordingly.