Jim Redmond & Mary Redmond v Commissioner for Environmental Information & Coillte Teorantia

• Jurisdiction: Ireland
• Judge: Mr Justice Maurice Collins
• Judgment Date: 03 April 2020
• Neutral Citation: [2020] IECA 83
• Court: Court of Appeal (Ireland)
• Docket Number: Court of Appeal Record No 2018/83

BETWEEN

JIM REDMOND

AND

MARY REDMOND

Appellants/Applicants

AND

COMMISSIONER FOR ENVIRONMENTAL INFORMATION

Respondent

- AND -

COILLTE TEORANTIA

Notice Party

[2020] IECA 83

Faherty J.

Haughton J.

Collins J.

Court of Appeal Record No 2018/83

THE COURT OF APPEAL

CIVIL

Judicial review – Environmental information – Access to information – Appellants seeking judicial review of the decision of the respondent– Whether information sought constituted environmental information

Facts: The first appellant, Mr Redmond, sought certain information relating to the sale by the notice party, Coillte Teorantia, of its leasehold interest in 402.92 hectares of land at Kilcooley Abbey Estate, Thurles, County Tipperary (the Coillte Lands). The appellants, the Redmonds, applied for leave to seek judicial review of the decision of the respondent, the Commissioner for Environmental Information, with leave being granted by the High Court (Barrett J) on 19 January 2016. The application failed. Mr Redmond appealed to the Court of Appeal against that decision on the grounds set out in his notice of appeal filed 7 March 2018. The fundamental point made in the notice of appeal and in the written and oral submissions of Mr Redmond was that the High Court Judge erred in concluding that information sought in categories 3-7 of the request did not constitute “environmental information” within the meaning of Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 (the AIE Directive) and the European Communities (Access to Information on the Environment) Regulations 2007 (as amended) (the AIE Regulations). In that context, reliance was placed on the documents that had been provided to Mr Redmond and on the fact disclosed by those documents that Coillte had conducted an environmental impact appraisal of the land sale and had concluded “that there would be a high likelihood of environmental impact”. The Commissioner objected to reliance being placed on this material by Mr Redmond, on the basis that it was not relied on before him or before the High Court. More generally, it was said that the Commissioner should have considered the likely impact of the sale on the environment, including the fact that a very large piece of publicly owned forestry managed in accordance with Coillte’s statutory obligations was being sold to a private party that did not have the same statutory obligations or public interest motives as Coillte. It was also said that the Judge was wrong insofar as she affirmed the finding of the Commissioner that a change of ownership in itself did not constitute a “measure” given that further permits would be required before the purchaser could fell any trees. The notice of appeal also challenged the Judge’s findings in relation to the revised category 8 request.

Held by Collins J that the Commissioner’s conclusion that categories 3–7 do not constitute “environmental information” was flawed and must be set aside. It appeared to Collins J that the Commissioner asked himself the wrong question, did not have sufficient regard to the evidence available to him (and failed to have any regard to a significant portion of that evidence) and failed to carry out an appropriate investigation, including (if required) exercising the significant powers available to him under the AIE Regulations. While critical of the manner in which the issue of the reformulated category 8 request was dealt with by the Commissioner, Collins J did not think there was any basis for impugning the substance of the Commissioner’s decision; in circumstances where the reformulated category 8 request (which was significantly broader in scope than the original category 8 request) had not been the subject of any decision by Coillte, the Commissioner was entitled to take the view that it was not properly within the scope of the appeal, though that position should have been communicated earlier to Mr Redmond. Even if Collins J had reached a contrary conclusion, he held that it would not be open to the Court to stand in the shoes of Coillte or the Commissioner and to decide on the reformulated category 8 request. Collins J held that, given that the Commissioner did not adjudicate on the reformulated category 8 request, it was not necessary or appropriate for him to reach any view on the redactions to the Coillte material; that issue remained to be addressed, in the first instance by Coillte and then by the Commissioner in the event of an appeal to him.

Collins J held that, subject to hearing the parties, it followed from the conclusions above that Mr Redmond’s appeal in respect of categories 3-7 should be remitted to the Commissioner for reconsideration.

Parties to have opportunity of considering Judgment and making further submissions on all consequential issues.

JUDGMENT of Mr Justice Maurice Collins delivered on 3 April 2020

PRELIMINARY

1 The right of access to information on the environment is recognised as a matter of international law (the United Nations Convention on Access to Information, Public Participation and Decision-Making and Access to Justice in Environmental Matters – hereafter the “ Aarhus Convention”), EU law ( Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 – hereafter the “AIE Directive”) and Irish law (the European Communities (Access to Information on the Environment) Regulations 2007 (as amended) 1 – hereafter the “AIE Regulations”). According to the AIE Directive (recital (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.”

2 In broad terms, these instruments provide for access to “environmental information” in terms initially defined in Article 2 of the Aarhus Convention and subsequently adopted in Article 2 of the AIE Directive and Article 3 of the AIE Regulations. It will be necessary to look more closely at this definition later in this judgment. At this stage, however, it may simply be noted that the principal issue in this appeal is whether certain information sought by the first appellant (hereafter “Mr Redmond”) 2 relating to the sale by Coillte of its leasehold interest in 402.92 hectares of land at Kilcooley Abbey Estate, Thurles, County Tipperary (hereafter “the Coillte Lands”) is “ environmental information”. Whatever the current position may be, the evidence before the Court establishes that at the time of the sale those lands largely comprised forestry and woodland (including old woodland) but also included monuments/archaeological features, including, it appears, a boundary wall around Kilcooley House that is a protected structure under the Planning Acts.

3 A further issue arises concerning the manner in which the Commissioner for Environmental Information ( “the Commissioner”) dealt with one aspect of Mr Redmond's request (referred to in this judgment as “category 8”).

ACCESS TO INFORMATION ON THE ENVIRONMENT

4 Access to information on the environment was first provided for at EU level by Council Directive 90/313/EC of 7 June 1990. In 1998 the European Community signed the Aarhus Convention and the need to amend the EU legal regime to make it consistent with the Convention resulted in the adoption of the AIE Directive in 2003. Member States were required to take appropriate steps to give effect to the Directive by February 2005. The AIE Regulations give effect to the AIE Directive in this jurisdiction and it follows that the Regulations are to be construed by reference to it: National Asset Management Agency v Commissioner for Environmental Information [2015] IESC 51; [2015] 4 IR 626.

5 Separately, Ireland has ratified the Aarhus Convention in its own right and various measures have been adopted to give effect to the provisions of the Convention relating to public participation and access to justice in the environmental field. As this Court observed in Minch v Commissioner for Environmental Information [2017] IECA 223, the extent to which those provisions of the Convention that have not been incorporated into EU law are part of domestic Irish law is governed by Article 29.6 of the Constitution and the terms of any implementing legislation. We are not concerned with any such issue in this appeal. The only issue before the Commissioner, and the only issue before the High Court and this Court in these judicial review proceedings, concerns access to environmental information under the AIE Regulations. Wider issues of public participation in the sale of the Coillte lands are not before us.

6 The core provision of the AIE Regulations is Article 7(1) which provides that:

“ A public authority shall, notwithstanding any other statutory provision and subject only to these Regulations, make available to the applicant any environmental information, the subject of the request, held by, or for, the public authority.”

7 The issue of what is a “ public authority” for the purposes of the AIE Regulations is one of some complexity, as is evident from the Supreme Court's decision in National Asset Management Agency v Commissioner for Environmental Information and the decision of CJEU in Case C-279/12 Fish Legal & Emily Shirley v Information Commissioner [2014] 2 CMLR 36 which is discussed by O'Donnell J in his judgment in National Asset Management Agency v Commissioner for Environmental Information. Here, however, there is no dispute that Coillte is such an authority for the purposes of the AIE Regulations.

8 The term “environmental information” is defined in Article 3(1) of the AIE Regulations as follows:

“ ‘environmental information’ means any information in written, visual, aural, electronic or any other material form on

(a) the state of the elements of the...