Court dismisses appeal over kelp harvesting in Bantry Bay

Kelp harvesting in Bantry Bay could be a step closer after a High Court judgement dismissing an appeal against the operation.

Court dismisses appeal over kelp harvesting in Bantry Bay

Kelp harvesting in Bantry Bay could be a step closer after a High Court judgement dismissing an appeal against the operation.

BioAtlantis Ltd, an Irish company based in Tralee, Co Kerry said it had invested over €12m developing a new factory in Tralee where it extracts bioactives from seaweed and secured a licence to harvest wild kelp from Bantry Bay.

It said that less than 0.3% of the total marine area of the Bay will be subject to sustainable harvesting. Approval in principle was first granted in 2011 to harvest kelp in Bantry Bay, with a licence subject to conditions granted in 2014.

The company said prior to the licence being granted the Department of the Environment had consulted with eight State bodies including the National Parks and Wildlife Service, the Marine Institute, and the Sea Fisheries Protection Authority.

However, there has been strong local opposition to the plan, with a judicial review secured in May of last year.

That has yet to be heard but separate High Court proceedings were also launched, seeking an order that the harvesting operation should come under the Planning and Development Act 2000 and not just the provisions of the Foreshore Act 1933 (as amended) under the which the licence was granted.

That issue was heard recently and a judgement handed down on June 6, with Ms Justice Deirdre Murphy dismissing the appeal and finding in favour of BioAtlantis and the Minister of State at the Department of Housing, Planning and Local Government.

In the judgement Ms Justice Murphy said: "Were the Applicant’s submissions correct, it appears to the Court that all trawling, prawn fishing and activities of that nature would all, equally, require planning. It is basically the harvesting of the bounty of the sea, and it does not require planning.

"As the Applicant has not proved that the harvesting of kelp is development within the meaning of the Planning Act, he has not established that kelp harvesting is an unauthorised development, and his application must fail.”

She also said: "The harvesting of kelp, like the catching of fish, is controlled by licence issued under either the Foreshore Act or the Fisheries Act. The harvesting of kelp does not, therefore, constitute a material change of use within the meaning of the Planning and Development Act.”

Ms Justice Murphy said there was "strong empirical evidence, as a result of Storm Darwin in 2014, that kelp regenerates", referring to a Baseline Study conducted in 2017 showing that kelp was "abundant as ever”.

BioAtlantis CEO John T O'Sullivan said the court proceedings had cost BioAtlantis a considerable amount resources and money to respond to.

"They spent eight days outlining their objections; it took us just a day-and-half to refute every single one," Mr O’Sullivan said.

A spokesman for John Casey, who brought the injunction, said they would have to consider the full judgement and added that it would most likely be the subject of an appeal.

The separate judicial review is due to be heard from June 25.

This story was amended at 7.30pm on June 11, 2019.

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