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.

16. Effect of licence.

16.—(1)A licence is binding on the State and on all persons whomsoever, and, subject to section 8 (3), shall operate to enable the licensee to carry on, in accordance with the licence, such operations as are specified in the licence, free from all prior or other rights, titles, estates or interests, if any.

(2)In addition to his or her entitlement under subsection (1), and notwithstanding anything contained in the Fisheries Acts, 1959 to 1995, or any instrument under those Acts, a licensee and any person acting under the directions of a licensee shall, by virtue of, but subject to the conditions of, the licence and the requirements of any regulations made under section 71, have the exclusive right to do within the boundaries or limits specified in the licence anything authorised by the licence or necessary or expedient to conduct the operations specified in the licence.

17. Application of sections 263 and 264 of Principal Act.

17.—Sections 263 and 264 of the Principal Act shall, with the necessary modifications, each apply to any operation carried on pursuant to a licence as they apply to an oyster fishery granted under an oyster fishery order.

18. Licence may be amended to give effect to later agreements.

18.—The licensing authority may amend an aquaculture licence so as to give effect to any undertaking or agreement which, after the date of the licence, may have been given or entered into by or on behalf of a licensee with any other person.

19. Renewal of licence.

19.—Subject to section 15 (1), an aquaculture licence granted for a period specified in the licence may, on the expiration of the period, be renewed or further renewed by the licensing authority for such period as may be specified by it, after consultation with such bodies, if any, as may be prescribed for that purpose.

19A. F8[ Renewal of licence after its expiration

19A.—(1) The power of the licensing authority to renew or to further renew an aquaculture licence under section 19 is exercisable notwithstanding the expiration of the period for which the licence was granted or renewed.

(2) Where, prior to the passing of the Sea-Fisheries and Maritime Jurisdiction Act 2006, an aquaculture licence has been renewed or further renewed after the expiration of the period for which the licence was granted or renewed, such renewal shall be and be deemed always to have been as valid and effectual as if the licence had been renewed or further renewed on the expiration of the period in question.

(3) If, because of the validation expressed to be effected by subsection (2), that subsection would, but for this subsection, conflict with a constitutional right of any person, the validation shall be subject to such limitation as is necessary to secure that it does not so conflict but shall be otherwise of full force and effect.

(4) A licensee who has applied for the renewal or further renewal of an aquaculture licence shall, notwithstanding the expiration of the period for which the licence was granted or renewed but subject otherwise to the terms and conditions of the licence, be entitled to continue the aquaculture or operations in relation to aquaculture authorised by the licence pending the decision on the said application.]

20. Offence of interfering with licensee's rights under licence.

20.—Except as permitted by or under this Act, if a person, by trespass, fishing or otherwise interferes with anything done or being done pursuant to a licence, and the interference is carried on without the permission of the licensee, then, notwithstanding the existence of any public right to fish, the person so interfering shall be guilty of an offence.

21. Delegation of certain functions by Minister.

21.—(1)The Minister may, by instrument under his or her hand or seal, delegate to a named officer of the Minister who is an established civil servant for the purpose of the Civil Service Regulation Act, 1956, the function of determining applications for licences, or applications of a particular class or description.

(2)A delegation under subsection (1) is without prejudice to the right of the Minister to perform the function delegated.

(3)Subject to section 62 (2), a function delegated under subsection (1) shall be exercisable and performed by the delegate in accordance with—

(a)the general directives, if any, issued under section 62 (1) by the Minister,

(b)the general superintendence and control of the Minister, and

(c)such limitations, if any, as may be specified by the Minister in the instrument of delegation or in writing at any time after the delegation of the function.

(4)The Minister may, at any time, revoke a delegation under sub-section (1).

(5)Where a delegation under subsection (1) is revoked at a time when an application for a licence has not been fully determined by the delegate, the Minister himself or herself, or another duly delegated officer, may determine the application.

(6)In this section, a reference to determining applications for aquaculture licences shall include a reference to determining applications for reviews of aquaculture licences.

PART III Appeals and Related Matters

Chapter I

22. Aquaculture Licences Appeals Board.

22.—(1)There is hereby established, on such day as shall be appointed for that purpose by order of the Minister, a body to be known as the Aquaculture Licences Appeals Board, to perform the functions assigned to it by this Act.

(2)The provisions of the Schedule shall have effect in relation to the Board.

23. Membership of Board.

23.—(1)The Board shall consist of a Chairperson and six other members.

F9[(1A) A person who is, for the time being—

(a) entitled under the Standing Orders of either House of the Oireachtas to sit therein,

(b) a member of the European Parliament, or

(c) a member of a local authority,

shall be disqualified from being appointed as the Chairperson or member of the Board.]

(2)The Chairperson shall be appointed by the Government.

(3)The Minister shall prescribe not less than two organisations which, in the Minister’s opinion, are representative of each of the following classes of organisation:

(a)organisations which, in the Minister’s opinion, are concerned with the promotion of the development of aquaculture or are representative of persons carrying on the business of developing aquaculture;

(b)organisations which, in the Minister’s opinion, are concerned with the conservation, development and protection of wild fisheries;

(c)organisations which, in the Minister’s opinion, are representative of persons whose professions or occupations relate to physical planning and development;

(d)organisations which, in the Minister’s opinion, are representative of persons concerned with the protection and preservation of the environment and amenities;

(e)organisations which, in the Minister’s opinion, are concerned with the promotion of general economic development; and

(f)organisations which, in the Minister’s opinion, are concerned with the promotion of community development.

(4)Subject to subsection (5), the Minister shall appoint as members of the Board from amongst those persons nominated by each of the classes of organisations prescribed under subsection (3) one member to represent each class of organisation, or in default of such nominations after the Minister has given each a reasonable opportunity to do so, then from among such persons as the Minister thinks fit.

(5)Where because of the illness of the Chairperson or of any other member, or for any other reason, a sufficient number of members of the Board is not available to enable the Board to perform its functions effectively, the Minister may appoint a person who, in the Minister's opinion, has the appropriate knowledge or experience in matters relevant to the functions of the Board to act as a member of the Board in place of an absent member during the absence.

(6)An organisation prescribed under subsection (3) shall, whenever so requested by the Minister, select such number of candidates (not being less than two), as the Minister may specify for appointment as members of the Board and shall inform the Minister of the names of the candidates selected and of the reasons why, in the opinion of the organisation, they are suitable for such appointment.

(7)Subject to subsection (5) and except in the case of a reappointment under section 24 (1) (b), the Minister shall not appoint a person to be a member unless the person was amongst those selected pursuant to a request under subsection (6) in relation to that appointment, but—

(a)if all of the appropriate organisations refuse or fail to select any candidate, or

(b)if the Minister decides not to appoint as a member any of the candidates selected by such organisations,

pursuant to a particular request under subsection (6), then either—

(i)the Minister shall appoint as a member a person who was amongst those selected by such an organisation pursuant to a previous request (if any) under that subsection in relation to that appointment, or

(ii)the Minister shall make a further such request and shall appoint as a member a person who was amongst those selected pursuant to that request made in relation to the appointment.

(8)Where a request is made under subsection (6) or (7)(ii), failure or refusal by the organisation of whom the request is made to select the number of candidates specified in the request shall not preclude the appointment as a member of a person who was selected in relation to that appointment either by the organisation or by any other organisation.

24. Tenure of office of Chairperson and members of Board.

24.—(1)Subject to this section—

F10[(a)the Chairperson shall hold office for such period, not exceeding five years, as shall be specified by the Government when appointing the Chairperson, and may be re-appointed for a second or subsequent term of office, and]

(b)a member of the Board, other than the Chairperson, shall hold office for such period, not exceeding five years, as shall be specified by the Minister when appointing the member, and may be re-appointed for a second or subsequent term of office.

(2)The Chairperson or other member of the Board may resign the office of Chairperson or member, as the case may be, by letter addressed to the Minister, and the resignation shall take effect on the date of the receipt of the letter by the Minister.

(3)F11[…]

(4)Where the Chairperson or other member of the Board—

(a)accepts nomination as a member of Seanad Éireann,

(b)is nominated as a candidate for election to either House of the Oireachtas or to the European Parliament, or

F12[(c) is regarded, pursuant to Part XIII of the Second Schedule to theEuropean Parliament Elections Act, 1997, as having been elected to that Parliament to fill a vacancy, or

(d) becomes a member of a local authority]

he or she shall thereupon cease to be the Chairperson or a member of the Board, as the case may be.

(5)The Minister may remove the Chairperson or other member of the Board from office—

(a)if the Chairperson or member becomes incapable through ill-health of effectively performing his or her functions,

(b)for stated misbehaviour, or

(c)if the Chairperson's or member's removal appears to the Minister to be necessary for the effective performance by the Board of its functions,

and the Minister shall cause to be laid before each House of the Oireachtas a statement in writing of the reasons for any such removal.

(6)Where the Chairperson or other member of the Board—

(a)is adjudged bankrupt or makes, under the protection or procedure of a court, a composition or arrangement with creditors, or

(b)is convicted on indictment by a court of competent jurisdiction,

he or she shall thereupon be disqualified from holding, and shall cease to hold, office as Chairperson or member, as the case may be.

25. Remuneration, etc., of Chairperson and members of Board.

25.—There shall be paid by the Board to the Chairperson and each other member of the Board such remuneration and allowances for expenses as the Minister, with the consent of the Minister for Finance, determines.

26. Chairperson to ensure efficient performance of functions of Board.

26.—(1)It shall be the function of the Chairperson, or, where he or she is not available or where the office of Chairperson is vacant, the Deputy Chairperson, to ensure the efficient performance of the functions of the Board.

(2)Where the Chairperson is of the opinion that the conduct of a member of the Board has been such as to bring the Board into disrepute or has been prejudicial to the effective performance by the Board of its functions, the Chairperson may, in his or her absolute discretion—

(a)require the member to attend for interview and on the member so attending interview the member privately and inform the member of that opinion, or

(b)otherwise investigate the matter and, if he or she considers it appropriate so to do, report to the Minister the result of the investigation.

27. Deputy Chairperson.

27.—(1)The Minister shall appoint from amongst the members of the Board a person to be the Deputy Chairperson of the Board for such period, not exceeding the period remaining to be served of the member's current term of office as a member of the Board, as the Minister thinks fit and specifies at the time of the appointment.

(2)If the Deputy Chairperson ceases to be a member of the Board, he or she shall thereupon cease to be Deputy Chairperson.

(3)The Deputy Chairperson shall, in addition to his or her remuneration as a member of the Board, be paid by the Board such additional remuneration, if any, as the Minister, with the consent of the Minister for Finance, determines.

(4)The Deputy Chairperson may resign the office of Deputy Chairperson by letter addressed to the Minister and the resignation shall take effect on the date of the receipt of the letter by the Minister.

28. Meetings and procedure of Board.

28.—(1)The Board shall hold such meetings as may be necessary for the performance of its functions.

(2)Subject to section 34 (l)(d), the Chairperson and each other member, at a meeting of the Board, shall have a vote on any matter before the Board.

(3)At a meeting of the Board—

(a)the Chairperson, if present, shall preside,

(b)if and for so long as the Chairperson is not present, or if the office of Chairperson is vacant, the Deputy Chairperson shall, if present, preside, or

(c)if and for so long as the Chairperson is not present or the office of Chairperson is vacant and the Deputy Chairperson is not present or the office of Deputy Chairperson is vacant, the members present shall appoint one of their number to preside.

(4)Every question at a meeting of the Board shall be determined by a majority of votes of the members present and, in the event that voting is equally divided, the person presiding shall have a casting vote in addition to his or her deliberative vote.

(5)Subject to any provision of this Act or any regulation made under this Act which regulates or otherwise affects the procedure of the Board, the Board shall regulate its own procedure.

(6)Subject to subsections (7) and (8), the Board may perform any of its functions through or by the Chairperson or any other member of the Board or other person who, in either case, has been duly authorised by the Board in that behalf.

(7)Subsection (6) shall be construed as enabling a member of the Board finally to determine a particular case only if the case has been considered at a meeting of the Board before the giving of the authorisation.

(8)Subsection (6) shall not be construed as enabling the Board to authorise a person who is not a member of the Board finally to deter-mine a particular case with which the Board is concerned.

29. Board's quorum, vacancies, etc.

29.—(1)The quorum for a meeting of the Board shall be four.

(2)Subject to subsection (1), the Board may act notwithstanding a vacancy in the office of Chairperson, Deputy Chairperson or among the other members.

(3)Where a vacancy occurs in the office of Chairperson, Deputy Chairperson or among the other members, the Minister shall, as soon as practicable, take steps to fill the vacancy.

30. Disclosure of confidential information.

30.—(1)A person who discloses confidential information obtained by the person in his or her capacity of Chairperson or other member of the Board, secretary of the Board or consultant or adviser engaged by the Board F13[or an employee of the Board or a person of whose services the Board has availed itself pursuant to section 35C], unless the person is authorised by the Board to do so, shall be guilty of an offence.

(2)In subsection (1) “confidential information” includes information, or information of a particular class or description of information, expressed by the Board to be confidential.

31. Prohibition of certain communications in relation to appeals.

31.—(1)A person who communicates with the Chairperson or other member of the Board, the secretary of the Board or a consultant or adviser engaged by the Board F14[or an employee of the Board or a person of whose services the Board has availed itself pursuant to section 35C], for the purpose of influencing improperly the consideration by the Board of an appeal or the decision of the Board in relation to an appeal shall be guilty of an offence.

(2)If the Chairperson or a member, secretary or consultant or adviser F15[or employee of the Board or a person of whose services the Board has availed itself pursuant to section 35C] is of the opinion that a communication is in contravention of subsection (1), he or she shall not entertain the communication further and shall immediately inform the Board in writing of the substance of the communication, and the Board shall acknowledge in writing the receipt of such information.

32. Secretary of Board.

32.—An officer of the Minister who is an established civil servant for the purpose of the Civil Service Regulation Act, 1956, and who is seconded to the Board for that purpose, either on a whole-time or part-time basis, shall act as secretary of the Board.

33. Declaration of interests.

33.—(1)A person to whom this section applies shall give to the Board a declaration in the prescribed form, signed by him or her, containing particulars of—

(a)every interest of his or hers which is an interest to which this section applies, and

(b)every change in any such interest or any other interest to which this section applies subsequently acquired by the person.

(2)This section applies to—

(a)the Chairperson,

(b)other members of the Board,

F16[(c) the secretary of the Board,

(d) each consultant or adviser engaged by the Board, and

(e) each employee of the Board and each person of whose services the Board has availed itself pursuant to section 35C.]

(3)This section applies to the following interests:

(a)any estate or interest which a person to whom this section applies has in any land, or in any process, development or operation, associated with aquaculture or fish processing or the manufacture, sale or distribution of products used in aquaculture or fish processing;

(b)any business or dealing in or developing land, or any process, development or operation associated with aquaculture or fish processing or the manufacture, sale or distribution of products used in aquaculture or fish processing, in which such a person is engaged or employed and any such business carried on by a company or other body of which he or she, or any nominee of his or hers, is a member;

(c)any profession, business or occupation in which such a person is engaged, whether on his or her own behalf or otherwise, and which relates to dealing in or developing land or to any process, development or operation associated with aquaculture or fish processing or the manufacture, sale or distribution of products used in aquaculture or fish processing.

(4)A person to whom this section applies who has an interest to which this section applies shall be regarded as complying with the requirements of subsection (1) only if he or she gives to the Board a declaration mentioned in that subsection within the period of 28 days—

(a)beginning on the day on which he or she becomes such a person, or

(b)where there is a change in an interest particulars of which are contained in a declaration already given by the person, or where the person acquires any other interest to which this section applies, beginning on the day on which the change occurs or, as the case may be, the other interest is acquired.

(5)For the purposes of this section but subject to subsection (6), a person shall be regarded as having an estate or interest in land or an activity if the person, or the person's nominee, is a member of a company or any other body which has an estate or interest in the land or activity.

(6)For the purposes of this section, a person shall not be regarded as having an interest to which this section applies if the interest is so remote or insignificant that it cannot reasonably be regarded as likely to influence a person in considering or discussing, or in voting on, any question in respect of a matter arising or coming before the Board or in performing a function in relation to that matter.

(7)Where a person to whom this section applies has an interest to which this section applies by reason only of the beneficial ownership of shares in a company or other body by him or her or by his or her nominee and the total nominal value of those shares does not exceed the lesser of—

(a)£1,000, or

(b)one-hundredth part of the total nominal value of either the issued share capital of the company or body, or where that capital is issued in shares of more than one class, the issued share capital of the class or classes of shares in which he or she has an interest,

subsection (1) shall not have effect in relation to that interest.

(8)The Board shall, for the purposes of this section, keep a register (in this section referred to as the “register of interests”) and shall enter in it the particulars contained in declarations given to the Board pursuant to this section.

(9)The register of interests shall be available for inspection by any person at the office of the Board during normal office hours, and a copy of the register or any entry in the register may be obtained by any person on the payment to the Board of such fee, if any, as the Board may fix, not exceeding the reasonable cost of making the copy.

(10)Where a person ceases to be a person to whom this section applies, all particulars entered in the register of interests as a result of a declaration being given by the person to the Board pursuant to this section shall be removed from the register by the Board as soon as practicable after the expiration of the period of 20 years beginning on the day on which the person ceases to be a person to whom this section applies.

(11)Subject to subsection (12), a person who, when purporting to comply with subsection (1), gives particulars which are false or which, to his or her knowledge, are misleading in a material respect, shall be guilty of an offence.

(12)In proceedings for an offence under this section it shall be a defence for the defendant to prove that at the relevant time he or she believed, in good faith and on reasonable grounds, that—

(a)the relevant particulars were true,

(b)there was no matter about which he or she was then required to make a declaration under subsection (1), or

(c)that the matter in relation to which the offence is alleged was not one about which he or she was so required to make a declaration.

34. Disclosure of interests.

34.—(1)Where the Chairperson or other member of the Board, the secretary of the Board or a consultant or adviser engaged by the Board F17[or an employee of the Board or a person of whose services the Board has availed itself pursuant to section 35C] has a pecuniary or other beneficial interest in, or material to, any appeal or matter to be considered by the Board, he or she shall—

(a)disclose to the Board the nature of the interest in advance of any consideration of the appeal or matter,

(b)neither influence nor seek to influence a decision in relation to the appeal or matter,

(c)take no part in any consideration of the appeal or matter, or

(d)withdraw from the meeting of the Board for so long as the appeal is being considered or matter discussed by the Board and shall not vote or otherwise participate in the determination of the appeal or consideration of the matter or, in the case of a member, be counted towards a quorum at the meeting during that time.

(2)For the purposes of this section, but without limiting the generality of subsection (1), a person shall be regarded as having a beneficial interest if—

(a)the person or any member of the person's household, or any nominee of the person or of any member of his or her household, is a member of a company or other body which has a beneficial interest in, or material to, a matter referred to in that subsection,

(b)the person or any member of the person's household is in partnership with or is in the employment of a person who has a beneficial interest in, or material to, such a matter,

(c)the person or any member of the person's household is a party to any arrangement or agreement (whether or not enforceable) concerning land to which such a matter relates, or

(d)any member of the person's household has a beneficial interest in, or material to, such a matter.

(3)For the purposes of this section, a person shall not be regarded as having a beneficial interest in, or material to, a matter by reason only of an interest of the person or of a company or other body or person mentioned in subsection (2) which is so remote or insignificant that it cannot reasonably be regarded as likely to influence a person in considering or discussing, or in voting on, a question in respect of a matter arising or coming before the Board or in performing a function in relation to such a matter.

(4)Where a question arises as to whether or not a course of conduct, if pursued by a person, would be a failure by the person to comply with the requirements of subsection (1), the question shall be determined by the Board and particulars of the determination shall be recorded in the minutes of the meeting concerned.

(5)Where a disclosure is made to the Board pursuant to subsection (1), particulars of the disclosure shall be recorded in the minutes of the meeting concerned.

F18[(6) Where the Minister is satisfied that a member of the Board has failed to comply with subsection (1), the Minister may, if he or she thinks fit, remove that member from office or take such other action as he or she considers appropriate and, in case a person is removed from office pursuant to this subsection, he or she shall thereafter be disqualified from membership of the Board.

(7) Where the Board is satisfied that a person who is not a member of the Board has failed to comply with subsection (1), the Board shall decide the appropriate action (including removal from office or termination of contract) to be taken.

(8) For the purposes of this section a person shall not be regarded as having an interest in any matter by reason only of an interest of that person, or of any company in which he or she has an interest, which is so remote or insignificant that it cannot reasonably be regarded as likely to influence a person in considering, discussing or in voting on, any question relating to the matter, or in performing any function in relation to that matter.]

35. Consultants and advisers.

35.—(1)The Board may, from time to time, engage such consultants or advisers as it considers necessary for the performance of its functions and any fees due to a consultant or adviser so engaged shall be paid by the Board out of moneys made available by the Oireachtas.

(2)Any person may notify the Board in writing of his or her willingness to be engaged by the Board as a consultant or adviser and give to the Board particulars of his or her qualifications and experience, and the Board shall maintain a list of such persons.

(3)The Board shall, in engaging a consultant or adviser under this section, have regard to the list maintained under subsection (2), but nothing in this subsection shall be construed as precluding the Board from engaging as a consultant or adviser a person whose name is not on the list.

(4)The Board shall include in its annual report a statement of the names of the persons, if any, engaged pursuant to this section during the year to which the report relates.

35A. F19[Employees of Board.

35A.—(1) The Board shall appoint such and so many persons to be employees to the Board as the Board, subject to the approval of the Minister, given with the consent of the Minister for Finance, as to the number and kind of those employees, from time to time considers appropriate.

(2) The Board may employ a person in a part-time capacity to be remunerated by the payment of fees in such amounts as the Board may, with the approval of the Minister, given with the consent of the Minister for Finance, from time to time determine.

(3) An employee of the Board holds his or her employment on such terms and conditions as the Board, subject to the approval of the Minister, given with the consent of the Minister for Finance, from time to time determines.

(4) There shall be paid by the Board to its employees out of moneys at its disposal such remuneration and allowances as the Board, subject to the approval of the Minister, given with the consent of the Minister for Finance, from time to time determines.]

35B. F20[Superannuation of employees of Board.

35B.—(1) The Board shall prepare and submit to the Minister for his or her approval, a scheme or schemes for the granting of pensions, gratuities and other allowances on retirement or death to or in respect of such whole-time employees of the Board as it considers appropriate.

(2) The Board may, at any time, prepare and submit to the Minister a scheme amending a scheme under this section.

(3) Where a scheme is submitted to the Minister pursuant to this section, the Minister may, with the consent of the Minister for Finance, approve the scheme without modification or with such modification (whether by way of addition, omission or variation) as the Minister, with such consent, thinks proper.

(4) A scheme submitted to the Minister under this section shall, if approved of by the Minister, with the consent of the Minister for Finance, be carried out by the Board in accordance with its terms.

(5) A scheme approved of under this section shall fix the time and conditions of retirement for all persons to or in respect of whom pensions, gratuities or other allowances are payable underthe scheme, and different times and conditions may be fixed in respect of different classes of persons.

(6) If a dispute arises as to the claim of a person to, or the amount of, a pension, gratuity or other allowance payable in pursuance of a scheme under this section, the dispute shall be submitted to the Minister who shall refer it to the Minister for Finance, whose decision shall be final.

(7) Every scheme approved of under this section shall be laid before each House of the Oireachtas as soon as may be after it is approved of and if either House within the next 21 days on which that House has sat after the scheme is laid before it, passes a resolution annulling the scheme, the scheme shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.]

35C. F21[Provision of services by Minister to Board and Board to Minister.

35C.—(1) For the purpose of enabling the Board to perform its functions, the Minister may provide services (including services of staff) to the Board, on such terms and conditions (including payment for such services) as may be agreed, and the Board may avail itself of such services.

(2) The Board may provide services (including services of staff) to the Minister on such terms and conditions (including payment for such services) as may be agreed, and the Minister may avail himself or herself of such services.]

35D. F22[Membership of either House of Oireachtas, etc.

35D.—(1) Where a person who is an employee of the Board is nominated as a member of SeanadÉireann or for election to either House of the Oireachtas or the European Parliament, or is regarded pursuant to Part XIII of the Second Schedule to theEuropean Parliament Elections Act, 1997, as having been elected to that Parliament to fill a vacancy, or becomes a member of a local authority, he or she shall stand seconded from employment by the Board and shall not be paid by, or be entitled to receive from, the Board any remuneration or allowances—

(a) in case he or she is nominated as a member of SeanadÉireann—in respect of the period commencing on his or her acceptance of the nomination and ending when he or she ceases to be a member of that House,

(b) in case he or she is nominated for election to either such House or to the European Parliament or is regarded as having been elected to the European Parliament—in respect of the period commencing on his or her nomination or appointment and ending when he or she ceases to be a member of that House or Parliament or fails to be elected or withdraws his or her candidature, as may be appropriate, or

(c) in case he or she becomes a member of a local authority—in respect of the period commencing on his or her becoming a member of the local authority and ending when he or she ceases to be a member of that authority.

(2) A person who is for the time being entitled under the Standing Orders of either House of the Oireachtas to sit therein or is a member of the European Parliament is, while he or she is so entitled or is such a member, disqualified from being an employee of the Board.

(3) A person who is for the time being a member of a local authority is, while holding office as such member, disqualified from becoming an employee of the Board.]

36. Grants to Board.

36.—The Minister may in each financial year, after consultation with the Board in relation to its proposed work programme and expenditure for that year, make grants of such amounts as may be sanctioned by the Minister for Finance out of moneys provided by the Oireachtas towards the expenditure incurred by the Board in the performance of its functions.

37. Accounts and audits.

37.—(1)The Board shall keep, in such form as may be approved by the Minister with the consent of the Minister for Finance, proper and usual accounts of all moneys received or expended by it.

(2)Accounts kept in pursuance of subsection (1) shall be submitted annually to the Comptroller and Auditor General for audit at such times as the Minister, with the consent of the Minister for Finance, directs and those accounts, when so audited, shall (together with the report of the Comptroller and Auditor General on the accounts) be presented to the Minister, who shall cause copies of the audited accounts and the report to be laid before each House of the Oireachtas.

38. Annual report, etc.

38.—(1)As soon as practicable, but not later than six months, after the end of each financial year, the Board shall, in writing, report to the Minister on its proceedings in that year and the Minister shall cause copies of the report to be laid before each House of the Oireachtas.

(2)The report shall identify the appellants involved and the number, subject matter and results of each appeal determined by the Board during the year to which it relates.

(3)The Board shall give to the Minister such information relating to the performance of its functions as the Minister may from time to time request.

39. Board to keep itself informed of certain policies and objectives.

39.—(1)The Board shall keep itself informed of the policies and objectives of any public authority whose functions have, or may have, a bearing on the matters with which the Board is concerned.

(2)In this section, “public authority” means a public authority within the meaning of section 3 (1) of the Environmental Protection Agency Act, 1992, An Bord Iascaigh Mhara within the meaning of the Sea Fisheries Act, 1952, Údarás na Gaeltachta within the meaning of the Údarás na Gaeltachta Act, 1979, the Marine Institute within the meaning of the Marine Institute Act, 1991, or F23[Inland Fisheries Ireland].

Chapter II

40. Appeals against decisions of Minister on aquaculture licence applications, etc.

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.

F24[(8) (a)A determination of an appeal under this section (including an appeal to which section 52 refers) and the notification of that determination shall state the main reasons and considerations on which the determination is based.

(b)The Board shall, on request from any person, provide a summary of the main reasons and considerations on which the determination of an appeal before the commencement of the Fisheries (Amendment) Act, 2001, was based.]

F25[(9) Subject tosubsection (10), the Board shall, as soon as practicable, publish on its website notices of appeal served on it undersubsection (1).

(10)Subsection (9)shall not apply as regards notices of appeal received by the Board later than the expiration of the period referred to insubsection (1).]

41. Provisions as to making of appeals.

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,

F26[(e) state in full the grounds of the appeal and the reasons, considerations and arguments on which they are based,

(f) where an environmental impact assessment is required under Regulation 3 of the Aquaculture Appeals (Environmental Impact Assessment) Regulations 2012 (S.I. No. 468 of 2012), include evidence of compliance with paragraph (3A) of the said Regulation 3,

and

(g) be accompanied by such fee, if any, as may be payable in respect of such an appeal in accordance with regulations undersection 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. Joinder of actions.

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. Submission of documents, etc., to Board by Minister.

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. Submissions or observations by other parties to appeal.

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 F27[30 days] 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. Submissions or observations by persons other than parties to appeal.

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

F28[(2) (a) Without prejudice tosubsection (3), submissions or observations referred to insubsection (1)may be made within a period set by the Board (being not less than 30 days from the date on which the Board published the notice of appeal undersection 40(9)).

(b) The Board shall not consider any submissions or observations received after the period set by it underparagraph (a).]

(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. Power of Board to request submissions or observations.

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 F29[(being not less than 30 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. Power of Board to require submission of documents, etc.

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 F30[30] 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. Powers of Board where notice served under section 46 or 47.

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. Oral hearings.

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. Matters other than those raised by parties or other persons may be taken into account in determining appeals.

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. Board may dismiss appeals if vexatious, etc.

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. Appeals against conditions.

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. Withdrawal of appeals.

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. Power of Board to declare appeals and applications withdrawn.

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. Time for appeals, etc., extended where offices of Board closed.

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. Duty and objective of Board.

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. Certain powers in relation to oral hearings of appeals.

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)F31[…]

(3)F31[…]

(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 F32[€600].

(7)In this section “the Board” includes F33[a consultant or adviser engaged under section 35(1) or an employee of the Board or a person of whose services the Board has availed itself pursuant to section 35C] by the Board to conduct an oral hearing on its behalf.

57A. F34[Board or consultant or adviser or employee or other person may inspect land, etc.

57A.—(1) The Board or a consultant or adviser engaged under section 35(1) or an employee of the Board or a person of whose services the Board has availed itself pursuant to section 35C to carry out an inspection on its behalf as referred to in section 59 may visit and inspect any land, foreshore or area or water to which an appeal under this Chapter relates, whether or not the appeal is the subject of an oral hearing.

(2) A person who obstructs the Board or a consultant or adviser engaged by the Board in the performance of the Board’s or that consultant’s or adviser’s or employee’s or person’s functions under subsection (1) shall be guilty of an offence.]

58. Reference of certain questions of law to High Court.

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. Reports of inspections, etc.

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 F35[by a consultant or adviser engaged under section 35(1) for the purpose of the inspection or oral hearing or an employee of the Board or a person of whose services the Board has availed itself pursuant to section 35C, the consultant, adviser, employee or person] 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. Appeal regulations.

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.

PART IV Miscellaneous

61. Matters to which licensing authority shall have regard in determining aquaculture licence applications and appeals.

61.—The licensing authority, in considering an application for an aquaculture licence or an appeal against a decision on an application for a licence or a revocation or amendment of a licence, shall take account, as may be appropriate in the circumstances of the particular case, of—

(a)the suitability of the place or waters at or in which the aquaculture is or is proposed to be carried on for the activity in question,

(b)other beneficial uses, existing or potential, of the place or waters concerned,

(c)the particular statutory status, if any, (including the provisions of any development plan, within the meaning of the Local Government (Planning and Development) Act, 1963 as amended) of the place or waters,

(d)the likely effects of the proposed aquaculture, revocation or amendment on the economy of the area in which the aquaculture is or is proposed to be carried on,

(e)the likely ecological effects of the aquaculture or proposed aquaculture on wild fisheries, natural habitats and flora and fauna, and

(f)the effect or likely effect on the environment generally in the vicinity of the place or water on or in which that aquaculture is or is proposed to be carried on—

(i)on the foreshore, or

(ii)at any other place, if there is or would be no discharge of trade or sewage effluent within the meaning of, and requiring a licence under section 4 of the Local Government (Water Pollution) Act, 1977, and

(g)the effect or likely effect on the man-made environment of heritage value in the vicinity of the place or waters.

62. General policy directives.

62.—(1)The Minister may from time to time issue such general directives as to policy in relation to aquaculture as the Minister considers necessary and the licensing authority shall, in performing its functions, have regard to any such directives.

(2)Nothing in this section shall be construed as enabling the Minister to exercise any power or control in relation to a particular case with which the Board or an officer to whom functions have been delegated under section 21 (1) is or may be concerned.

(3)Where the Minister gives a directive under subsection (1), the following provisions shall apply:

(a)as soon as practicable after issuing it the Minister shall cause a copy of the directive to be laid before each House of the Oireachtas;

(b)the directive shall be published in Iris Oifigiúil; and

(c)the Minister shall cause a copy of the directive to be sent to the Board and to each officer, if any, to whom a function has been delegated under section 21(1).

(4)The Minister may amend or revoke a directive under this section and subsection (3), with the necessary modifications, shall apply as if the amendment or revocation were a directive under subsection (1).

63. Fees in relation to applications and appeals.

63.—(1)The Minister may, with the consent of the Minister for Finance, make regulations providing for—

(a)the payment to the Minister of prescribed fees in relation to applications for licences, applications for the renewal of licences or applications under section 70 for reviews of licences, and

(b)the payment to the Board of prescribed fees in relation to appeals to the Board under section 40, including oral hearings of such appeals,

and the regulations may provide for the payment of different fees in relation to cases of different classes or descriptions, for exemption from payment of fees in specified circumstances, for the waiver, remission or refund (in whole or in part) of fees in specified circumstances and for the manner in which fees are to be disposed of.

(2)Where under regulations under this section a fee is payable by an applicant in respect of an application referred to in subsection (1)(a)—

(a)the application shall not be determined unless the fee is received, and

(b)the period within which, pursuant to section 13, the licensing authority shall endeavour to determine an application shall not be regarded as having commenced earlier than the day on which the fee is received.

64. Fees for licences.

64.—(1)The Minister may, with the consent of the Minister for Finance, make regulations providing for the payment of fees to the Minister in respect of licences.

(2)Without limiting the generality of subsection (1), the regulations may—

(a)provide for the payment of different fees in respect of different classes of licences or the renewal of licences, and

(b)set out the basis on which the fees payable in respect of licences, licences of a particular class, or the renewal of licences are to be determined.

(3)Every fee received by the Minister under this section shall be paid into, and be disposed of for the benefit of, the Exchequer in such manner as the Minister for Finance shall direct.

65. Offences and general penalty for contravention or failure to comply with provision of Act.

65.—(1)A person who contravenes or fails to comply with a term of a licence or a condition subject to which it is issued shall be guilty of an offence.

F36[(2) A person guilty of an offence under subsection (1), section 6(1), 20 or 67(2) is liable—

(a) on summary conviction, to a fine not exceeding€5,000, or

(b) on conviction on indictment, to a fine not exceeding€250,000.

(2A) A person guilty of an offence (other than an offence under a provision mentioned in subsection (2) or under section 6(2) or 57(6)) is liable on summary conviction to a fine not exceeding€2,000.]

(3)Notwithstanding section 309 of the Principal Act, a summary offence under the Fisheries (Amendment) Act, 1997, shall be prosecuted only—

(a)by the Minister; or

(b)at the suit of the Director of Public Prosecutions.

F37[(4) Notwithstanding section 10(4) of the Petty Sessions (Ireland) Act 1851, summary proceedings for an offence under subsection (1) or section 6(1) may be instituted within 12 months from the date on which the offence was committed.]

65A. F38[ Offence by body corporate, etc.

65A.—Where an offence under this Act is committed by a body corporate or by a person purporting to act on behalf of a body corporate or on behalf of an unincorporated body of persons and it is proved to have been so committed with the consent or connivance of or to be attributable to any neglect on the part of any other person who, when the offence was committed, was, or purported to act as, a director, manager, secretary or other officer (including a member of such body) such other person as well as the body, or the person so purporting to act on behalf of the body, is guilty of an offence and is liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.]

65B. F39[ Prosecutor may appeal dismissal of proceedings in District Court.