Lar McKenna and Statutory Property Arbitrator

• Case Number: CEI/15/0026
• Decision Date: 28 November 2016
• Issuer: Statutory Property Arbitrator
• Applied Rules: Art.3(1) Art.3(2), European Communities (Access to Information on the Environment) Regulations, 2007
• Court: Commissioner for Environmental Information

Lar McKenna and Statutory Property Arbitrator

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/15/0026

Published on 28 November 2016

1. Background
2. Scope of Review
3. Relevant Legal Provisions
4. Analysis and Findings
5. Decision
6. Appeal to the High Court

Background

The Acquisition of Land (Assessment of Compensation) Act 1919 (the 1919 Act) ilished a statutory arbitration system to decide questions of compensation and apportionment of rent in circumstances where the State compulsorily acquires land. Under this Act, a statutory body called the Reference Committee was established (currently comprised of the Chief Justice, the President of the High Court and the President of the Society of Chartered Surveyors), and was empowered to appoint arbitrators and to make rules regulating the arbitration process. The Property Values (Arbitrations & Appeals) Act 1960 provides for the Office of "property arbitrator", which combines the functions of three earlier statutory arbitrators, including "official arbitrators" under the 1919 Act. The Reference Committee has made rules to govern the arbitration procedure, including the Acquisition of Land (Assessment of Compensation) Rules 1920 and the Property Values (Arbitrations and Appeals) Rules 1961. At present, the Reference Committee has appointed one full-time property arbitrator, Mr Michael Neary, and a number of part-time property arbitrators.

On 24 June 2015, the appellant wrote to Mr Neary (the property arbitrator) and requested two categories of information under the AIE Regulations. Mr Neary replied to the appellant on 21 July 2015, and contended that the AIE Regulations did not apply to the Office of property arbitrator. The appellant requested an internal review of this decision on 6 August 2015, stating that the property arbitrator fell within the AIE Regulations as a body established "under statute". Mr Neary replied on 2 September 2015, restating his view that the AIE Regulations did not apply to the Office of property arbitrator. An appeal to my Office was made on 30 September 2015.

Scope of Review

In his correspondence with the appellant, Mr Neary contended that as a property arbitrator he is not a public authority under the AIE Regulations. Article 12(3) of the Regulations provides a right of appeal to my Office where a request for environmental information has been refused. Article 11(5)(a) of the Regulations specifies that I may review refusals made "on the grounds that the body or person concerned contends that the body or person is not a public authority". Consequently, a question of threshold jurisdiction arises as to whether the property arbitrator falls within the definition of "public authority".

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 Directive) implements the first pillar of the United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters ("the Aarhus Convention"). The Directive is transposed into Irish law by the AIE Regulations. In making this decision I have had regard to the Guidance for Public Authorities and others on implementation of the Regulations (May 2013) [the Minister's Guidance] published by the Minister for the Environment, Community and Local Government; and The Aarhus Convention: An Implementation Guide (Second edition, June 2014) [the Aarhus Guide].

Relevant Legal Provisions

The AIE Regulations

Article 3(1) of the AIE Regulations provides the following definition of 'public authority':

"'public authority' means, subject to sub-article (2)-

(a) government or other public administration, including public advisory bodies, at national, regional or local level,

(b) any natural or legal person performing public administrative functions under national law, including specific duties, activities or services in relation to the environment, and

(c) any natural or legal person having public responsibilities or functions, or providing public services, relating to the environment under the control of a body or person falling within paragraph (a) or (b),

and includes-

(i) a Minister of the Government,

(ii) the Commissioners of Public Works in Ireland,

(iii) a local authority for the purposes of the Local Government Act 2001 (No. 37 of 2001),

(iv) a harbour authority within the meaning of the Harbours Act 1946 (No. 9 of 1946),

(v) the Health Service Executive established under the Health Act 2004 (No. 42 of 2004),

(vi) a board or other body (but not including a company under the Companies Acts) established by or under statute,

(vii) a company under the Companies Acts, in which all the shares are held-

(I) by or on behalf of a Minister of the Government,

(II) by directors appointed by a Minister of the Government,

(III) by a board or other body within the meaning of paragraph (vi), or

(IV) by a company to which subparagraphs (I) or (II) applies, having public administrative functions and responsibilities, and possessing environmental information".

Article 3(2) provides that, notwithstanding anything contained in article 3(1), the definition of "public authority" does not include any body when acting in a judicial or legislative capacity.

Irish Law

In National Asset Management Agency v Commissioner for Environmental Information [2015] IESC 51 (the NAMA case) O'Donnell J. interpreted the structure of the definition of "public authority" as "reproducing the international and European law terms, and thereafter attempting to clarify the scope of application of those terms within the Irish legal system, rather than somehow extending them." Accordingly, paragraphs (i) to (vii) do not extend the primary definitions of "public authority" contained at (a) to (c), which are necessary considerations in every case. At paragraphs 4 and 36 of his decision in the NAMA case, O'Donnell J. interpreted the last part of paragraph (b) as meaning that public administrative functions include but are "not limited to" specific duties, activities or services in relation to the environment. Accordingly, only paragraph (c) of the definition requires that the responsibilities, functions or services at issue must relate to the environment.

Court of Justice of the European Union Jurisprudence

In his decision in the NAMA case, O'Donnell J. applied the judgment of the Court of Justice of the European Union (CJEU) in Fish Legal and Emily Shirley v Information Commissioner and Others (C-279/12), which considers the meaning of "public authority" under Articles 2(2)(a), (b) and (c) of Directive 2003/4 (replicated as paragraphs (a), (b) and (c) of the definition of "public authority" in the AIE Regulations).

Paragraphs 51 and 52 of the Fish Legal judgment clarify what entities are captured by the first two parts of the definition, stating:

"51. Entities which, organically, are administrative authorities, namely those which form part of the public administration or the executive of the State at whatever level, are public authorities for the purposes of Article 2(2)(a) of Directive 2003/4. This first category includes all legal persons governed by public law which have been set up by the State and which it alone can decide to dissolve.

52. The second category of public authorities, defined in Article 2(2)(b) of Directive 2003/4, concerns administrative authorities defined in functional terms, namely entities, be they legal persons governed by public law or by private law, which are entrusted, under the legal regime which is applicable to them, with the performance of services of public interest, inter alia in the environmental field, and which are, for this purpose, vested with special powers beyond those which result from the normal rules applicable in relations between persons governed by private law."

With regard to the meaning of "public administrative function" in Article 2(2)(b), the CJEU proposed a "special powers" test in the following terms:

"In order to determine whether entities...can be classified as legal persons which perform 'public administrative functions' under national law...it should be examined whether those entities are vested, under the national law which is applicable to them, with special powers beyond those which result from the normal rules applicable in relations between persons governed by private law."

The Court also clarified the legal test to be applied when assessing whether a body is a public authority under Article 2(2)(c), ruling that:

"Undertakings...which provide public services relating to the environment are under the control of a body or person falling within Article 2(2)(a) or (b) of Directive 2003/4, and should therefore be classified as 'public authorities' by virtue of Article 2(2)(c) of that directive, if they do not determine in a genuinely autonomous manner the way in which they provide those services since a public authority covered by Article 2(2)(a) or (b) of the directive is in a position to exert decisive influence on their action in the environmental field."

The appellant's submission

The appellant submitted that the property arbitrator is a public authority falling within paragraphs (a), (b) and (c) of the definition. The appellant noted that the Office of property arbitrator is established by statute, and an arbitrator can only be removed from Office by the State. The appellant noted that the property arbitrator was publicly funded, unlike a private arbitrator appointed by parties pursuant to a...