Chapter II

Appeals to Board

40. —(1) A person aggrieved by a decision of the Minister on an application for an aquaculture licence or by the revocation or amendment of an aquaculture licence may, before the expiration of a period of one month beginning on the date of publication in accordance with this Act of that decision, or the notification to the person of the revocation or amendment, appeal to the Board against the decision, revocation or amendment, by serving on the Board a notice of appeal.

(2) A notice of appeal shall be served—

(a) by sending it by registered post to the Board,

(b) by leaving it at the office of the Board, during normal office hours, with a person who is apparently an employee of the Board, or

(c) by such other means as may be prescribed.

(3) The Board shall not consider an appeal notice of which is received by it later than the expiration of the period referred to in subsection (1).

(4) Where an appeal is brought under this section and is not withdrawn, the Board shall, subject to subsection (5), determine the appeal by—

(a) confirming the decision or action of the Minister,

(b) determining the application for the licence as if the application had been made to the Board in the first instance, or

(c) in relation to the revocation or amendment of a licence, substituting its decision on the matter for that of the Minister.

(5) The Board shall not determine an appeal as provided in subsection (4)(a) except in circumstances referred to in section 48 , 51 or 52 .

(6) The determination under subsection (4)(b) or (c) of an appeal shall annul the decision or action of the Minister immediately the determination is made.

(7) Section 7 , with the necessary modifications, shall apply to and in relation to the determination under subsection (4)(b) of an application or so far as it relates to an amendment of a licence as referred to in subsection (4)(c), as it applies to and in relation to the determination by the Minister of such an application or the amendment of such a licence, as the case may be.

41. —(1) For an appeal under section 40 to be valid, the notice of appeal shall—

(a) be in writing,

(b) state the name and address of the appellant,

(c) state the subject matter of the appeal,

(d) state the appellant's particular interest in the outcome of the appeal,

(e) state in full the grounds of the appeal and the reasons, considerations and arguments on which they are based, and

(f) be accompanied by such fee, if any, as may be payable in respect of such an appeal in accordance with regulations under section 63 ,

and shall be accompanied by such documents, particulars or other information relating to the appeal as the appellant considers necessary or appropriate.

(2) The requirement of subsection (1)(e) shall apply whether or not the appellant requests, or proposes to request, in accordance with section 49 , an oral hearing of the appeal.

(3) Without prejudice to section 46 , an appellant shall not be entitled to elaborate in writing on, or make further submissions in writing in relation to, the grounds of appeal stated in the notice of appeal or to submit further grounds of appeal, and any such elaboration, submissions or further grounds of appeal received by the Board shall not be considered by it.

(4) Without prejudice to section 47 , the Board shall not consider any documents, particulars or other information submitted by an appellant other than the documents, particulars or other information which accompanied the notice of appeal.

42. —The Board may, in its discretion, treat two or more appeals as, and the appellants as parties to, a single appeal and may at any time separate such appeals.

43. —(1) The Board shall, as soon as practicable after receiving a notice of appeal, send by post to the Minister a copy of the notice.

(2) The Minister shall, within 14 days after receiving a copy of the notice of appeal sent to him or her in accordance with subsection (1), submit to the Board—

(a) a copy of the aquaculture licence application concerned and of any drawings, maps, particulars, evidence, environmental impact statement, other written study or further information received or obtained from the applicant for the licence in accordance with a requirement of or under regulations under this Act,

(b) a copy of any report prepared for the Minister in relation to the application, revocation or amendment, and

(c) a copy of any document recording the decision of the Minister in respect of the application, revocation or amendment and of the notification of the decision given to the applicant.

44. —(1) The Board shall, as soon as practicable after receiving a notice of appeal, give a copy to each other party to the appeal.

(2) The Minister and each other party except the appellant may make submissions or observations in writing to the Board in relation to the appeal within a period of one month beginning on the day on which a copy of the notice of appeal is sent to that party by the Board and any submissions or observations received by the Board after the expiration of that period shall not be considered by it.

(3) Where no submissions or observations have been received from a party within the period referred to in subsection (2), the Board may, without further notice to that party, determine the appeal.

(4) Without prejudice to section 46 , a party shall not be entitled to elaborate in writing on any submissions or observations made in accordance with subsection (2) or make any further submissions or observations in writing in relation to the appeal, and any such elaboration or further submissions or observations shall not be considered by the Board.

45. —(1) A person who is not a party may make submissions or observations in writing to the Board in relation to an appeal.

(2) Without prejudice to subsection (3), submissions or observations referred to in subsection (1) may be made within the period of one month beginning on the day the Board received the notice of appeal or, where there is more than one appeal against the decision of the Minister, on the day on which the Board last received a notice of appeal, and any submissions or observations received by the Board after the expiration of that period shall not be considered by it.

(3) Subsection (2) shall not apply to submissions or observations made by a Member State of the European Communities (within the meaning of the European Communities Act, 1972) arising from consultation in accordance with Directive 85/337/EEC⁽²⁾ (or any provision amending or replacing that Directive) in relation to the effects on the environment of the aquaculture or proposed aquaculture to which the appeal relates.

(4) Without prejudice to section 46 , a person who makes submissions or observations to the Board in accordance with this section shall not be entitled to elaborate in writing on the submissions or observations or to make further submissions or observations in writing in relation to the appeal, and any such elaboration or further submissions or observations shall not be considered by the Board.

46. —(1) Where the Board is of the opinion that, in the particular circumstances of an appeal, it is appropriate in the interests of justice to request a party or other person who has made submissions or observations to the Board in relation to the appeal to make submissions or observations in relation to any matter which has arisen in relation to the appeal, it may, in its discretion, notwithstanding section 41 (3), 44(4), 45(4) or 50(4), serve on the party or person a notice—

(a) requesting the party or person, within a period specified in the notice (being not less than 14 or more than 28 days beginning on the date of service of the notice) to submit to the Board submissions or observations in relation to the matter, and

(b) stating that, if submissions or observations are not received before the expiration of the specified period, the Board will, after the expiration of that period and without further notice to the person, pursuant to section 48 , determine the appeal.

(2) A party or other person shall not be entitled to elaborate in writing on submissions or observations made in response to a request under subsection (1) or make further submissions or observations in writing in relation to the matter concerned, and any such elaboration, or further submissions or observations shall not be considered by the Board.

47. —(1) Where the Board is of the opinion that any document, particulars or other information is or are necessary for the purpose of enabling it to determine an appeal, it shall serve on a party or on any person who has made submissions or observations to the Board in relation to the appeal a notice—

(a) requiring the party or person, within a period specified in the notice (being not less than 14 days beginning on the date of service of the notice) to submit to the Board such documents, particulars or other information as are specified in the notice, and

(b) stating that, if the documents, particulars or other information is or are not received by the Board before the expiration of the specified period, the Board will, after the expiration of that period and without further notice to the party or person, pursuant to section 48 , determine the appeal.

(2) A person who refuses or fails to comply with a requirement under subsection (1)(a) shall be guilty of an offence.

48. —Where a notice has been served under section 46 or 47 , the Board, at any time after the expiration of the period specified in the notice, may, having considered all submissions or observations or documents, particulars or other information, as the case may be, submitted by the person on whom the notice has been served, without further notice to that person, determine the appeal.

49. —(1) Subject to subsections (2) and (3), the Board of its own motion or at the request of a party, shall have an absolute discretion to hold an oral hearing of an appeal under this Chapter.

(2) An oral hearing may be conducted on behalf of the Board by one or more members of the Board, or other persons, authorised by the Board for that purpose.

(3) A request by a party for an oral hearing of an appeal—

(a) shall be made in writing to the Board and shall be accompanied by such fee, if any, as may be payable in respect of such request in accordance with regulations under section 63 ;

(b) if not accompanied by that fee, if any, shall not be considered by the Board;

(c) subject to paragraph (d), shall be made within the period of

one month referred to in section 40 (1); or

(d) in the case where the party is not the appellant, shall be made within the period referred to in section 44 (2).

(4) The Board shall not consider a request for an oral hearing of an appeal received later than the time referred to in subsection (3)(c) or (d) for making a request.

(5) Where the Board is requested to hold an oral hearing of an appeal and decides to determine the appeal without an oral hearing, it shall serve notice of its decision on the person who requested the hearing, on each other party to the appeal and on each person who, in accordance with section 45 , made submissions or observations to the Board in relation to the appeal.

50. —(1) The Board, in determining an appeal, may take into account matters other than those raised by the parties or by any person who has made submissions or observations to the Board in accordance with section 45 , if the matters are matters to which, under section 61 , it may have regard.

(2) The Board shall give notice in writing to each of the parties and to each of the persons who have made submissions or observations in relation to the appeal, of the matters it proposes to take into account under subsection (1) and shall indicate in the notice—

(a) in a case where it proposes to hold an oral hearing of the appeal or where an oral hearing of the appeal has been concluded and it considers it expedient to re-open the hearing, that submissions in relation to the matters may be made in writing to the person or persons conducting the hearing, or

(b) in a case where it does not propose to hold an oral hearing of the appeal or where an oral hearing of the appeal has been concluded and it does not consider it expedient to re-open the hearing, that submissions or observations in relation to the matters may be made in writing to the Board,

within a period specified in the notice, being not less than 14 or more than 28 days beginning on the date of service of the notice.

(3) Submissions or observations received by the Board after the expiration of the period specified in the notice referred to in subsection (2) shall not be considered by the Board.

(4) Without prejudice to section 46 , where a party or a person referred to in subsection (1) makes submissions or observations to the Board in accordance with subsection (2), he or she shall not be entitled to elaborate in writing on those submissions or observations, or make further submissions or observations in writing in relation to the matters referred to in subsection (1), and any such elaboration or further submissions or observations shall not be considered by the Board.

51. —(1) The Board shall have an absolute discretion to dismiss an appeal where, having considered the grounds of appeal, it is of the opinion that the appeal is vexatious, frivolous or without substance or foundation.

(2) The Board, in exercising its power under subsection (1), may have regard to the matters to which, under section 61 , it is required to have regard in determining an appeal.

52. —(1) Where—

(a) an appeal is brought against a decision to grant or amend an aquaculture licence,

(b) the appeal relates only to a condition or conditions to which the decision provides the aquaculture licence shall be subject, and

(c) the Board is satisfied, having regard to the nature of the condition or conditions, that the determination by the Board of the relevant application as if the application had been made to the Board in the first instance would not be warranted,

then, subject to compliance by the Board with subsection (2), it may, in its absolute discretion, deal with the appeal by reference only to the condition or conditions to which the appeal relates, and such other conditions, if any, as the Board considers relevant.

(2) In exercising its power under subsection (1), apart from considering the condition or conditions to which the relevant appeal relates and other conditions, if any, which, in accordance with that subsection it considers relevant, the Board shall be restricted to considering the matters which under section 61 it would be restricted to considering were it determining the relevant application as if it had been made to it in the first instance.

53. —An appellant may, by notice in writing to the Board at any time before the appeal is determined by the Board, withdraw the appeal.

54. —(1) Where the Board is of the opinion that an appeal, or an application for an aquaculture licence to which the appeal relates, has been abandoned, it may serve on the person who made the appeal or application, as may be appropriate, a notice stating that it is of that opinion and requiring the person, within the period specified in the notice (being not less than 14 or more than 28 days beginning on the date of service of the notice) to make to the Board a submission in writing as to why the appeal or application should not be regarded as having been withdrawn.

(2) Where a notice has been served under subsection (1), the Board may, at any time after the expiration of the period specified in the notice, and after considering any submissions made to the Board pursuant to the notice, declare—

(a) in a case where the notice refers to an application for an aquaculture licence, that the application shall be regarded as having been withdrawn, and

(b) in a case where the notice refers to an appeal, that the appeal shall be regarded as having been withdrawn.

(3) Where under subsection (2)(a) the Board declares that an application for an aquaculture licence is to be regarded as having been withdrawn—

(a) any appeal in relation to the application shall be regarded as having been withdrawn and accordingly shall not be determined by the Board, and

(b) notwithstanding any previous decision relating to the application, no aquaculture licence shall be granted as a result of the application.

55. —Where a provision of or under this Act requires or allows appeals, submissions, observations or a request to be made, or documents, particulars or other information to be submitted, to the Board within a specified period and the last day of that period is a day on which the offices of the Board are closed, the appeal, submissions, observations or request, or documents, particulars or other information, shall be regarded as having been received before the expiration of that period if received by the Board on the next following day on which the offices of the Board are open.

56. —(1) The Board shall, as far as practicable, ensure that appeals are dealt with and determined expeditiously and that all steps are taken to avoid unnecessary delays.

(2) Without limiting the generality of subsection (1) but subject to subsections (3) and (4), the Board should endeavour to ensure that every appeal is determined within—

(a) a period of four months beginning on the date of the receipt by the Board of the notice of appeal, or

(b) such other period as the Minister may prescribe, either generally or in respect of a particular class or particular classes of appeals.

(3) Where it appears to the Board that it would not be possible or appropriate, because of the particular circumstances of an appeal, to determine an appeal within the period required by subsection (2), it shall, by notice in writing served on the parties to the appeal and all persons who made submissions or observations to the Board in accordance with section 45 before the expiration of that period, inform those parties and persons of the reasons why the appeal would not be determined within that period and shall specify the date before which, or the period within which, the Board intends that the appeal shall be determined.

(4) Where a notice has been served under subsection (3), the Board shall endeavour to ensure that the appeal is determined before the date, or within the period, specified in the notice.

(5) The Minister may make regulations—

(a) providing that subsection (2) shall not have effect for such period as is specified in the regulations, or

(b) varying a period mentioned in that subsection either generally or in respect of a particular class or particular classes of appeals,

where it appears to the Minister to be necessary, because of exceptional circumstances, to do so and, for so long as such regulations are in force, this section shall be construed and have effect accordingly.

(6) The Board shall, at such intervals as it thinks fit or the Minister may direct, conduct reviews of its organisation and of the systems and procedures used by it in relation to appeals.

(7) Where the Minister gives a direction under subsection (6), the Board shall report to the Minister the results of the review and shall comply with any direction which the Minister may, after consultation with the Board on those results, give in relation to all or any of the matters which were the subject of the review.

(8) The Board may, on its own initiative or at the request of the Minister, make submissions or recommendations to the Minister on any matter relating to its functions or to licensing (including trial licensing) policy.

(9) The Minister may consult with the Board on any matter relating to the performance of—

(a) the functions of the Board, or

(b) the functions in relation to aquaculture assigned to the Minister by or under the Fisheries Acts, 1959 to 1995 as amended by this Act, or by any order, regulation or other instrument under those Acts or this Act.

57. —(1) In conducting an oral hearing of an appeal, the Board may require any officer of the Minister or an officer of the Marine Institute to give to the Board such information in relation to the appeal as the Board may reasonably require, and the officer shall comply with the requirement.

(2) The Board may visit and inspect any land, foreshore or area or water to which an appeal relates.

(3) Any person who obstructs the Board in its performance of a function under subsection (2) shall be guilty of an offence.

(4) The Board, in conducting an oral hearing of an appeal, may take evidence on oath and for that purpose may administer oaths, and a person giving evidence at an oral hearing shall be entitled to the same immunities and privileges as if he or she were a witness before the High Court.

(5) Subject to subsection (6), the Board in conducting an oral hearing of an appeal may, by notice in writing to any person, require the person to attend at such time and place as is specified in the notice to give evidence in relation to any matter in question at the hearing or to produce any books, deeds, contracts, accounts, vouchers, maps, plans or other documents in his or her possession, custody or control which relate to the matter.

(6) The following provisions shall have effect for the purposes of subsection (5):

(a) it shall not be necessary for a person to attend in compliance with a notice at a place more than 10 miles from his or her ordinary place of residence unless an amount of money sufficient to cover the reasonable and necessary expenses of the attendance has been paid or tendered to the person;

(b) the Board shall pay or tender to any person whose attendance is required such amount of money as it considers will cover the reasonable and necessary expenses of the attendance;

(c) the Board shall pay to any person who in compliance with a notice has attended at any place all reasonable and necessary expenses of the attendance which have not already been paid to the person and in default of such payment by the Board the expenses shall be recoverable as a simple contract debt in a court of competent jurisdiction;

(d) every person to whom a notice has been given who—

(i) refuses or wilfully neglects to attend in accordance with the notice,

(ii) wilfully alters, suppresses, conceals or destroys any document to which the notice relates, or

(iii) having so attended, refuses to give evidence or refuses or wilfully fails to produce any document to which the notice relates,

shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £500.

(7) In this section “the Board” includes a person appointed by the Board to conduct an oral hearing on its behalf.

58. —Where a question of law arises on any appeal to the Board, the question may be referred by the Board to the High Court for decision.

59. —Where in connection with the performance by the Board of its functions an inspection is carried out, or an oral hearing is conducted, on behalf of the Board by a person appointed for the purpose by the Board, the person so appointed shall make to the Board a written report on the inspection or hearing, and shall include in the report a recommendation relating to the appeal with which the inspection or hearing was concerned, and the Board shall, before determining the appeal, consider the report and any recommendation contained in the report.

60. —(1) The Minister may make regulations providing for such additional, incidental, consequential or supplemental procedural matters in respect of appeals as appear to the Minister to be necessary or expedient.

(2) Without limiting the generality of subsection (1), regulations under this section may in particular make provision for—

(a) the procedures of the Board in relation to appeals and the notification of the results of an appeal,

(b) the persons who may be heard at an oral hearing of an appeal,

(c) matters related to the implementation of Directive 85/337/EEC⁽³⁾ on Environmental Impact Assessment, or any provision amending or replacing that Directive, and

(d) the availability for inspection of documents or extracts from documents relating to appeals, the period of such availability, and the purchase of copies of or extracts from such documents.

⁽²⁾O.J. No. L175, 5.7.1985.

⁽³⁾OJ. No. L175, 5.7.1985.