Electricity Supply Board v Commissioner of Environmental Information

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Mark Heslin
• Judgment Date: 17 January 2024
• Neutral Citation: [2024] IEHC 17
• Docket Number: [Record No. 2022/279MCA]

In the Matter of An Appeal Pursuant to Article 13 of the European Communities (Access to Information on the Environment) Regulations 2007 – 2018

Between

Electricity Supply Board

Appellant

and

Commissioner for Environmental Information

Respondent

and

Right to know Group CLG and Gwen Malone Stenography Services Unlimited Company

Notice Parties

[2024] IEHC 17

[Record No. 2022/279MCA]

THE HIGH COURT

Judgment of Mr. Justice Mark Heslin delivered on 17th January 2024

Introduction

1 . The present proceedings involve an appeal on a point of law against the decision of the Commissioner for Environmental Information (“the Commissioner”) made on 29 August 2022 (“the decision”).

2 . In the originating motion of 28 October 2022 the Appellant (otherwise “ESB”) seeks the following relief:

“(1) An order setting aside the decision of the Commissioner for Environmental Information made under Article 12(5) of the European Communities (Access to Information on the Environment) Regulations 2007–2018 under reference OCE-94897-N8Y8Y3 and issued on 29 August 2022.

(2) A declaration that the Transcript of the hearing held in the proceedings entitled Sylvester and Philomena Murphy v Electricity Supply Board before the Property Arbitrator, Paul Good, on 19 and 20 June 2017 is not environmental information and within the meaning of Article 3(1) of the European Communities (Access to Information on the Environment) Regulations 2007 – 2018.

(3) A declaration that the Commissioner for Environmental Information erred in law and acted ultra vires in determining that the Electricity Supply Board was not entitled to rely on Article 9(1)(d) of the European Communities (Access to Information on the Environment) Regulations 2007–2018 to decline to release the Transcript of the hearing held in the proceedings against Sylvester and Philomena Murphy v Electricity Supply Board before the Property Arbitrator, Paul Good, on 19 and 20 June 2017.”

3 . As I did at the conclusion of the hearing, I want to repeat my thanks to Ms. Barrington SC (for the Appellant) and to Mr. Browne SC (for the respondent). Both made oral submissions with great skill, supplementing detailed written submissions, all of which I have carefully considered. There was no participation by the notice parties, although I have considered the written submissions furnished on their behalf.

4 . The position of the respondent can be summarised as follows:

• (1) The Commissioner was entitled to conclude that the information requested by Right to Know is “environmental information” within the meaning of the AIE Regulations;

• (2) The Commissioner was entitled to reach this conclusion, notwithstanding the Commissioner's previous decision of 13 December 2018 in case CEI/18/0003, which followed a request by a Mr. McKenna (“the Commissioner's first decision” or “the first decision”); and

• (3) The Commissioner was correct to conclude that ESB could not rely on Art. 9(1)(d) of the AIE Regulations.

The 2003 Directive

5 . To understand the Regulations referred to in the Appellant's motion it is necessary to turn to the antecedent Directive being “ Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC” (the “2003 Directive” or the “AIE Directive”). The recitals to the 2003 Directive speak to its aim and begin as follows:

“Whereas:

(1) Increased public access to environmental information and the dissemination of such information contribute to a greater awareness of environmental matters, a free exchange of views, more effective participation by the public in environmental decision-making and, eventually, to a better environment …”

6 . Recital (5) refers to “the Aarhus Convention” (being the UN/ECE Convention on access to information, public participation in decision-making and access to justice in environmental matters) to which the European Community is a signatory. Recital (5) states that provisions of Community law must be consistent with the Aarhus Convention.

7 . Turning to the Articles themselves, these begin as follows:

“ Article 1

Objectives

The objectives of this Directive are:

• (a) to guarantee the right of access to environmental information held by or for public authorities and to set out the basic terms and conditions of, and practical arrangements for, its exercise; and

• (b) to ensure that, as a matter of course, environmental information is progressively made available and disseminated to the public in order to achieve the widest possible systematic availability and dissemination to the public of environmental information. To this end, the use, in particular, of computer telecommunications and/or electronic technology, where available, shall be promoted.

Article 2

Definitions

For the purposes of this Directive:

1.‘Environmental information’ shall mean any information in written, visual, aural, electronic or any other material form on:

• (a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements;

• (b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in (a);

• (c) measures (including administrative measures) such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in (a) and (b) as well as measures or activities designed to protect those elements …” (emphasis added)

In the manner which will presently become clear, the significance of the word “on” is at the heart of the principal issue in these proceedings.

The 1927 Act

8 . It is not in dispute that Sylvester and Philomena Murphy (“the Murphys”) made a claim for compensation following the exercise, by the ESB, of powers pursuant to s. 53(3) of the Electricity (Supply) Act, 1927, as amended (“the 1927 Act”). Briefly put, s. 53 entitles the ESB to serve notice of its intention to enter a landowner's land in order to lay an electricity line and, thereafter, to do so with or without the landowner's consent, subject to the landowner's entitlement to paid compensation. S. 53 (1) of the 1927 Act sets out the ESB's statutory power to place electric lines over land, in the following terms:

“ The Board and also any authorised undertaker may subject to the provisions of this section and of regulations made by the Board under this Act place any electric line above or below ground across any land not being a street, road, railway, or tramway.” (emphasis added)

9 . Section 53(5) goes on to provide the following:

“ If the owner or occupier of such land or building fails within the 7 days aforesaid to give his consent in accordance with the foregoing subsection, the Board or the authorised undertaker with the consent of the Board but not otherwise may place such line across such land or attach such fixture to such building in the position and manner stated in the said notice, subject to the entitlement of such owner or occupier to be paid compensation in respect of the exercise by the Board or authorised undertaker of the powers conferred by this subsection and of the powers conferred by subsection (9) of this section, such compensation to be assessed in default of agreement under the provisions of the acquisition of land (Assessment of Compensation) Act 1919 the Board for this purpose being deemed to be a public authority.” (emphasis added).

1919 Act

10 . It is also common case that compensation payable to landowners is assessed, in the absence of agreement, pursuant to the provisions of the Acquisition of Land (Assessment of Compensation) Act, 1919 (“the 1919 Act”) which, very obviously, pre-dates the 1927 Act. In short, the 1919 Act provided a mechanism for the determination of compensation with respect to compulsory purchases by the State. Whilst the placing of an electric line across land is done via a ‘wayleave’ rather than a compulsory purchase, the architecture of the 1919 Act is employed to determine compensation pursuant to exercise by the Applicant of its s. 53 powers. Section 1(1) of the 1919 Act provides the following:

“Where by or under any statute (whether passed before or after the passing of this Act) land is authorised to be acquired compulsorily by any Government Department or any local public authority, any question of disputed compensation, and, where any part of the land to be acquired is subject to a lease which comprises lands not required, any question as to the apportionment of the rent payable under the lease, shall be referred to and determined by the arbitration of a property arbitrator nominated for the purposes of such reference and determination by the Reference Committee in accordance with the rules made by the reference committee under this section” (emphasis added)

The Arbitrator

11 . There is no dispute about the Murphys' entitlement to make a compensation claim ( per the 1927 Act). Mr. Paul Good (“the Arbitrator”) was the “property arbitrator” ( per the 1919 Act) who heard the Murphys' claim. The hearing before him was confined to the determination of the quantum of compensation payable by the ESB to the Murphys. The hearing before the Arbitrator was conducted in public. The Murphys were represented by senior and junior counsel. At the risk of stating the obvious, the Transcript which is at the ‘heart’ of these proceedings, does not contain the Arbitrator's determination. Rather, it captures the arguments made by the parties to the dispute.

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