Fisheries (Amendment) Act 1997

PART I Preliminary and General

1. Short title, collective citation, construction and commencement.

1.—(1)This Act may be cited as the Fisheries (Amendment) Act, 1997.

(2)The Fisheries Acts, 1959 to 1995, and this Act may be cited together as the Fisheries Acts, 1959 to 1997, and shall be construed together as one.

(3)This Act shall come into operation on such day or days as may be fixed therefor by order or orders of the Minister, either generally or with reference to any particular purpose or provision, and different days may be so fixed for different purposes and different provisions of this Act.

2. Non-application to Moville Area of the Foyle Fisheries area.

2.—This Act shall not apply to or in relation to the Moville Area, within the meaning of the Foyle Fisheries Act, 1952.

3. Interpretation.

3.—(1)In this Act, unless the context otherwise requires—

“the Act of 1980” means the Fisheries Act, 1980;

“application regulations” means regulations made under section 10 (2);

“aquaculture” means the culture or farming of any species of fish, aquatic invertebrate animal of whatever habitat or aquatic plant, or any aquatic form of food suitable for the nutrition of fish;

“aquaculture licence” means a licence granted under section 14 to engage in aquaculture or operations in relation to aquaculture, not being a trial licence;

“the Board” means the Aquaculture Licences Appeals Board established by section 22 and, in relation to an oral hearing of an appeal in pursuance of section 49, includes a person authorised by the Board to conduct the hearing;

“Chairperson” means the Chairperson of the Board and includes the Deputy Chairperson and a member appointed under section 28(3) (c) to preside at a meeting, while so presiding;

“land” includes land covered by water and the water covering that land;

“licence” means an aquaculture licence or a trial licence;

“licensee” means a person to whom a licence is granted, or that person's heirs, executors, administrators or assigns to whom the benefit of the licence has devolved;

“licensing authority” means—

(a)the Minister,

(b)an officer to whom functions have been delegated under section 21(1) by the Minister, or

(c)the Board;

F3[‘local authority’means a local authority for the purposes of theLocal Government Act 2001(as amended by the Local Government Reform Act 2014);]

“the Principal Act” means the Fisheries (Consolidation) Act, 1959, as amended;

“trial licence” means a licence granted under section 14 to carry out any operation, activity, trials or experiments referred to in section 9 (1).

(2)In Part II—

(a)“oyster bed licence” means an oyster bed licence within the meaning of Part XIV of the Principal Act; and

(b)“oyster fishery order” means an oyster fishery order within the meaning of Part XIV of the Principal Act as in force immediately before the commencement of section 5, and includes an oyster fishery order applying to mussels, mussel beds and mussel fisheries by virtue of section 282 of the Principal Act as then in force.

(3)In sections 9, 13(1), (2) and (3), 14 and 40, a reference to the Minister shall, where functions have been delegated to an officer of the Minister under section 21(1), be construed as including a reference to that officer.

(4)In this Act, including a Schedule to this Act—

(a)a reference to any other enactment shall, except to the extent that the context otherwise requires, be construed as a reference to that enactment as amended by or under any other enactment, including this Act;

(b)a reference to a section, Chapter or Part is a reference to a section, Chapter or Part of this Act, unless it is indicated that reference to some other enactment is intended,

(c)a reference to a subsection, paragraph or subparagraph is a reference to a subsection, paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that a reference to some other provision is intended, and

(d)a reference to a Schedule is a reference to a Schedule to this Act.

(5)A reference in this Act to the performance of functions includes a reference to the exercise of powers and the performance of duties.

4. Repeal of sections 54 and 54A of Act of 1980 and revocation of orders and savings.

4.—(1)Sections 54 and 54A (inserted by Regulation 21 of the European Communities (Environmental Impact Assessment) Regulations, 1989 (S.I. No. 349 of 1989)) of the Act of 1980 are hereby repealed.

(2)Any order under section 54 of the Act of 1980 in force immediately before the commencement of this section is, on that commencement, revoked.

(3)The revocation of an order referred to in subsection (2) shall not affect the validity or the operation of any aquaculture licence granted under section 54 of the Act of 1980 and the licence shall continue as if that section had never been repealed.

5. Repeal and amendment of provisions of Principal Act.

5.—(1)Section 15 of the Principal Act is hereby repealed.

(2)Section 15A of the Principal Act (inserted by Article 18 of the European Communities (Environmental Impact Assessment) Regulations, 1989 (S.I. No. 349 of 1989)) is hereby repealed.

(3)Section 244 of the Principal Act is hereby amended—

(a)by inserting in the definition of “oyster bed (1959 Act) licence” the words “before the commencement of section 12 of the Fisheries (Amendment)Act, 1997,” after “under section 245”, and

(b)by inserting in the definition of “oyster fishery (1959 Act) order” the words “before the commencement of section 12 of the Fisheries (Amendment)Act, 1997,” after “under Chapter III of this Part”.

(4)Section 247 of the Principal Act is hereby repealed.

(5)Section 252 of the Principal Act is hereby amended by the substitution of “oyster bed (1959 Act) licence” for “grant any oyster bed (1959 Act) licence in lieu thereof to the licensee or his representative”.

(6)Sections 256, 257, 258, 259, 260 and 269 of the Principal Act are hereby repealed.

(7)Section 282 of the Principal Act is hereby amended by the substitution of “Sections 261 to 268” for “Sections 256 to 269”.

(8)For the avoidance of doubt, section 312 of the Principal Act, to the extent if any that, by virtue of section 72 of the Act of 1980 and the table to that section, it is in force, is hereby repealed.

PART II Regulation of Aquaculture and Related Matters

6. Regulation of aquaculture.

6.—(1)A person who, at any place or in any waters, engages in aquaculture except under and in accordance with an aquaculture licence, a trial licence, or an oyster bed licence or an oyster fishery order shall be guilty of an offence.

(2)If an offence under subsection (1) of which a person was convicted is continued after the conviction, the person shall be guilty of a further offence on every day on which the act or omission constituting the offence continues, and for each such further offence the person shall be liable on summary conviction to a fine not exceeding F4[€300] or on conviction on indictment to a fine not exceeding F5[€2,000].

7. Aquaculture licences.

7.—(1)Subject to section 8, the licensing authority may, if satisfied that it is in the public interest to do so, license a person, at a place or in waters specified in the licence, to engage in aquaculture or such operations in relation to aquaculture, and subject to such conditions, as it thinks fit and specifies in the licence.

(2)A licence may be granted notwithstanding the existence of any public right to fish in any waters to which the licence relates.

(3)Without limiting the generality of subsection (1), conditions to which an aquaculture licence may be subject may include or relate to any or all of the following:

(a)a specification, by means of a map or otherwise, of the boundaries or limits of the place or waters in relation to which the licence is granted;

(b)the amount of feed inputs;

(c)annual or seasonal limits on stock inputs, outputs and standing stock on site;

(d)operational practices, including the fallowing of sites;

(e)the reporting of incidences of disease and the presence of parasites;

(f)the disposal of dead fish;

(g)measures for preventing escapes of fish, and arrangements for the reporting of escapes;

(h)monitoring and inspection of the aquaculture carried on pursuant to the licence;

(i)the keeping of records by the licensee;

(j)the protection of the environment (including the man-made environment of heritage value) and the control of discharges;

(k)appropriate environmental, water quality and biological monitoring.

8. Limitation on licensing to engage in aquaculture.

8.—(1)The licensing authority shall not license a person to engage in aquaculture within the limits of an oyster bed or oyster fishery the property of any private person or to which an oyster bed licence or oyster fishery order relates, without the consent of that private person or of the person who for the time being is beneficially entitled to the oyster bed or oyster fishery.

(2)The licensing authority may license a person to engage in aquaculture within the limits of a several fishery, as defined by section 3 of the Principal Act, only—

(a)if the person is the owner of the fishery, or

(b)with the consent in writing of the owner.

(3)An aquaculture licence shall not be construed as taking away or abridging any right on, to or over any portion of the seashore enjoyed by a person under a local or special Act, or any charter, letters patent, prescription or immemorial usage, or a right of several fishery, without the consent of that person.

9. Trial licences.

9.—(1)The Minister may license a person, other than in fresh water—

(a)to carry on, at a place or in waters specified in the licence, such operations for the purpose of investigating the suitability of the place or waters for aquaculture, or for any activity forming part of an aquaculture operation, or

(b)to carry out such other trials or experiments (including trials in the culture or farming of novel species),

for such period—

(i)in the case of salmon, not exceeding one year, and

(ii)in all other cases, not exceeding 3 years,

and subject to such conditions, which may include or relate to all or any of the matters specified in section 7 (3), as the Minister thinks fit and specifies in the licence.

(2)Without limiting the generality of subsection (1), a trial licence may specify, by means of a map or otherwise, the boundaries or limits of the place or waters in relation to which the licensee is licensed.

(3)A trial licence is not capable of being renewed.

(4)The Minister may revoke a trial licence where he or she considers that there has been a contravention of or failure to comply with the terms of the licence or of a condition subject to which it was granted.

10. Applications for licences.

10.—(1)A person may, in accordance with the application regulations, apply to the Minister for an aquaculture licence or trial licence.

(2)The Minister shall make regulations providing for procedures in relation to the making of applications for aquaculture or trial licences and the consideration of applications, and the regulations may contain different provisions in respect of different classes of applications.

(3)The application regulations may, in particular and without limiting the generality of subsection (2)—

(a)provide for the form of applications,

(b)require applicants to publish or give specified notices relating to their applications,

(c)require applicants to furnish to specified persons any specified information relating to their applications,

(d)in connection with Council Directive 85/337/EEC^(1) or any Directive amending or replacing that Directive—

(i)require the submission of an environmental impact statement to the Minister in respect of specified applications,

(ii)provide that the Minister may require, in the case of specified applications, the submission of an environmental impact statement in respect of the application,

(iii)specify the information to be contained in an environmental impact statement,

(iv)allow the Minister to determine, for the purposes of dealing with an application, the adequacy of the information contained in an environmental impact statement,

(e)provide for the availability for inspection of documents or extracts from documents relating to applications, the period of such availability, and for the purchase of copies of or extracts from such documents,

(f)provide for consultation with such bodies, including statutory bodies, as may be prescribed for that purpose,

(g)provide for the making of submissions or observations to the licensing authority in relation to applications and the period during which such submissions or observations may be made,

(h)require applicants to submit further information relating to their applications,

(i)require the production of evidence to verify particulars or information given by an applicant, and

(j)require the licensing authority to publish or give specified notices about applications or decisions on applications.

F6[(4) Where the submission to the Minister of an environmental impact statement is required under regulations made under subsection (3)(d) in respect of an application for a licence, the Minister, if requested by the applicant, shall, after consultation with such persons as the Minister considers appropriate, give a written opinion to the applicant of the information to be contained in the statement, before the applicant submits the statement.]

11. Person not to engage in aquaculture in anticipation of grant of licence.

11.—F7[…]

12. Determination of applications for licences.

12.—(1)The licensing authority shall determine an application for a licence by deciding to—

(a)grant the licence or a variation of the licence, or

(b)refuse to grant the licence.

(2)A variation referred to in subsection (l) (a) may be a variation of the term of the licence or of a condition to which the licence is to be subject, or the inclusion or omission of a term or condition.

(3)The licensing authority shall, as soon as practicable after determining an application, advise the applicant in writing of its decision.

13. Period for determination of applications for licences.

13.—(1)The Minister shall endeavour to determine an application for a licence—

(a)in the case of an application for a trial licence, as soon as practicable, but in any case not later than four months after all requirements of or under the application regulations relating to the application have been complied with, and

(b)in the case of an application for an aquaculture licence received on or after the commencement of this section—

(i)within four months from the date on which all requirements of or under the application regulations relating to the application have been complied with, or

(ii)such other period as the Minister may prescribe, either generally or in respect of a particular class of applications to which the application belongs.

(2)Where it appears to the Minister that it would not be possible or appropriate, because of the particular circumstances relating to an application for a licence, to determine the application within the period referred to in subsection (1), the Minister shall, by notice in writing served on the applicant and any person who has made submissions or observations in relation to the application in accordance with the application regulations, inform the applicant and those persons of the reasons why it would not be possible or appropriate to determine the application within that period and shall specify the date before which, or the period within which, the Minister intends that the application shall be determined.

(3)Where a notice has been served under subsection (2), the Minister shall take such steps as are open to him or her to ensure that the application is determined before the date, or within the period, specified in the notice.

(4)The Minister may make regulations—

(a)providing that subsection (1) 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 applications,

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

(5)In this section “application for a licence” shall include an application for a review of an aquaculture licence.

14. Granting of licences.

14.—(1)Where the Minister determines an application for a trial licence by deciding to grant the licence, the Minister shall grant the licence as soon as practicable after so deciding.

(2)Where the Minister determines an application for an aquaculture licence by deciding to grant the licence or a variation of the licence and no appeal is lodged against the decision within the time allowed by section 40 (1) for the lodging of such appeals, the Minister shall grant the licence or licence as so varied as soon as practicable after the last day on which such an appeal could be lodged.

(3)Where the Minister determines an application for an aquaculture licence by deciding to grant the licence or a variation of the licence and an appeal is lodged against the decision within the time allowed by section 40 (1) for the lodging of such appeals, the Minister shall not grant the licence or licence as so varied unless the appeal is, or where more than one appeal is lodged against the decision all of the appeals are—

(a)withdrawn, or

(b)determined by the Board pursuant to section 48 by confirming under section 40 (4)(a) the decision of the Minister, or

(c)dismissed by the Board pursuant to section 51,

but shall grant the licence as soon as practicable thereafter.

(4)In this section, a reference to a case in which the Minister decides to grant an aquaculture licence shall include a reference to a case in which the Minister, following a review of an aquaculture licence in accordance with section 70, decides to alter any or all of the terms of the licence, or to amend or delete any conditions to which the licence is subject, or to impose conditions or additional conditions in relation to the licence.

15. Duration of aquaculture licences.

15.—(1)Where an aquaculture licence is granted with the consent of a person referred to in section 8 and a period is specified in that consent, the licence shall remain in force for that period only.

(2)Subject to subsection (1), an aquaculture licence shall be for such period, not exceeding 20 years, as may be specified in the licence.