Lunney and Another v Canny and Another Practising in the Style and Title of Canny Corbett

• Jurisdiction: Ireland
• Court: High Court
• Judge: Humphreys J.
• Judgment Date: 05 November 2025
• Neutral Citation: [2025] IEHC 593
• Docket Number: [H.JR.2025.0000355]

IN THE MATTER OF ORDER 84 OF THE RULES OF THE SUPERIOR COURTS AND IN THE MATTER OF THE EUROPEAN COMMUNITIES (ACCESS TO INFORMATION ON THE ENVIRONMENT) REGULATIONS 2007–2014

Between

People Over Wind

Applicant

and

Commissioner for Environmental Information

Respondent

And

Coillte Cuideachta Ghníomhaíochta Ainmnithe, Ireland and the Attorney General (By Order)

Notice Parties

[2025] IEHC 593

[H.JR.2025.0000355]

THE HIGH COURT

PLANNING & ENVIRONMENT

Judicial review – Reference – Planning and environment – Plaintiff seeking an order of certiorari – Whether questions should be referred to the CJEU

Facts: The applicant, People Over Wind, applied to the High Court seeking inter alia: (i) a declaration that the respondent, the Commissioner for Environmental Information, was obliged to make a decision on the merits of the applicant’s appeal, on the basis of the material before it, under art. 12 of the AIE Regulations; (ii) an order of certiorari quashing the decision dated 19 December 2024 annulling the decision of the notice party, Coillte, and directing it to carry out a new internal review decision making process in respect of the information at issue under the Access to Information on the Environment request dated 12 November 2018; and (iii) an order that ss. 3 and 4 of the Environment (Miscellaneous Provisions) Act 2011, and/or the interpretative obligation set out in Case C-470/16 North East Pylon Pressure Campaign Ltd v An Bord Pleanála applied to the proceedings.

Held by Humphreys J that the referrable questions were as follows: (1) Does art. 6(1) and/or (2) of Directive 2003/4 and/or art. 9(1) and/or (4) of the Aarhus Convention and/or art. 47 of the Charter of Fundamental Rights of the EU insofar as the foregoing relate to the requirement that remedies be timely and/or expeditious and/or effective have the effect that a competent authority designated by domestic law acting under art. 6(2) of Directive 2003/4 and/or art. 9(1) and/or (4) of the Aarhus Convention and/or art. 47 of the Charter is required to exercise its functions under national law to the maximum extent possible so as to enable it to make a final decision on the request to which the review procedure or judicial procedure relates, including by coming to findings of fact and evaluative judgements after making a full and ex nunc examination of all the relevant elements of fact and law submitted by the parties, in a context where remittal of the matter to the public body for further fact-finding or evaluative judgements or a fresh decision would be more likely than not to occasion further delay which could jeopardise the timely and/or expeditious finalisation of the outcome of the request for information as compared with a counterfactual scenario whereby the competent authority required the public body to set forth its position within the context of the appeal to the competent authority itself without remittal to the public body, or, in addition to the foregoing, the decision has already been set aside and remitted to the public body at a previous stage of the procedure? (2) If the answer to the first question is Yes, do those provisions have that effect independently of (a) the existence or extent of backlogs of other decisions pending before the competent authority, (b) the administrative convenience and/or saving of resources for the competent authority in directing remittal, and/or the desirability of having the public body make a fresh decision in the light of an intervening domestic court decision, prior to substantive review by the competent authority, and/or (c) delay by the public body in responding to requests by the domestic competent authority for submissions in the context of an appeal as a reason for favouring a decision to remit the matter to the public body for a fresh decision rather than for finalising the issue in the context of the appeal?

Humphreys J held that the identified questions be in principle referred to the CJEU under art. 267 TFEU.

Reference to CJEU.

Date of impugned decision: 19 December 2024

Date proceedings commenced: 14 March 2025

Date of main hearing: 20 October 2025

Date draft judgment circulated: 24 October 2025

JUDGMENT of Humphreys J. delivered on Wednesday the 5 ^th day of November 2025

“Environmental information should be made available to applicants as soon as possible and within a reasonable time and having regard to any timescale specified by the applicant”

1 . As a result of what the applicant calls “an endless process of request, refusal, appeal, remittal” (submissions para. 62 – a characterisation naturally disputed by the commissioner), a request for environmental information made under the AIE directive almost seven years beforehand on 12 November 2018 remained outstanding as of the hearing of this case on 20 October 2025. The primary question in this Jarndyce v. Jarndyce of transparency is whether the procedure adopted was contrary to that obligation of timeliness. That said, delay, where it occurs, tends to have many causes, and it would be incorrect to attribute all, or even most, of the delay here to the commissioner. But he will have to take ownership of some of the lapse of time, specifically the additional time taken here by a second remittal rather than by deciding the matter himself at that point.

Judgment history

2 . In Commissioner for Environmental Information v. Coillte Teoranta [2023] IEHC 227 (Unreported, High Court, 28 April 2023), which was a reference to the High Court made during the course of consideration of the request now under discussion, Hyland J. clarified the scope of exemptions under the European Communities (Access to Information on the Environment) Regulations 2007 ( S.I. 133 of 2007) (the AIE regulations), as amended by S.I. 662 of 2011, S.I. 615 of 2014 and S.I. 309 of 2018.

Facts

The first decision – 2019

3 . On 12 November 2018, People Over Wind submitted a request to the notice party for access to environmental information:

“regarding Coillte's proposed windfarm at Cullenagh, County Laois:

• Details of the cost benefit analysis (or other economic analysis as applicable) used to underpin the Cullenagh Co. Laois wind farm project.

• Details of all objectives/key drivers/reasons upon which the project is based or is designed to facilitate (including short, medium, and long-term objectives).

• A statement explaining whether there are different versions of the business case. In the instance that there are differing versions, I am requesting that all versions are supplied.

• All documentation that was submitted to Coillte Board to underpin the project.

• A copy of the decision of the Board to proceed with the project.

• A copy of all Board meeting minutes discussing the project.”

4 . On 16 November 2018, Coillte informed the appellant that it considered the request to have been made in too general a manner and invited the appellant to make a more specific request. In particular, it invited clarification of the scope of the first four parts. The appellant replied on the same day, offering the following modified version of the request:

“1. A copy of the cost benefit analysis (or other economic analysis if this exists) used to underpin the Cullenagh Co. Laois wind farm project.

2. [removed]

3. A copy of the business case for the Cullenagh wind farm project, Co. Laois. (In the instance that there are differing versions, I am requesting that all versions are supplied.)

4. All documentation that was submitted to Coillte Board regarding the Cullenagh wind farm project, Co. Laois.

5. A copy of the decision of the Board to proceed with the project.

6. A copy of all Board meeting minutes discussing the project.”

5 . On 11 December 2018, the request was refused. The applicant sought internal review on 10 January 2019.

6 . On internal review, Coillte failed to make a decision within the time-limit leading to an implied refusal on 9 February 2019.

7 . The applicant appealed this refusal to the Commissioner for Environmental Information on 25 February 2019. On 22 November 2019, the commissioner decided as follows ( https://ocei.ie/en/ombudsman-decision/ee7d9-people-over-wind-and-coillte-teoranta-coillte/#decision):

“Decision

Having carried out a review under article 12(5) of the AIE Regulations, I hereby vary Coillte's decision by making the following findings:

˙ I find that Coillte was justified in refusing part 1 of the request on the ground that it did not hold the requested information but it was not justified in maintaining that it did not hold business cases or any Board decision to proceed with the project.

˙ I find that all interim decision(s) by Coillte's Board to proceed with stages of the project fall within the scope of the request.

˙ I find that the withheld information in records 1–5 is environmental information.

˙ I find that records 1–4 include business case and cost benefit analysis information within the scope of the request.

˙ I find that the information in record 5 that relates to other projects is out of scope.

˙ I find that Coillte was not justified in refusing access to the in-scope information in record 5 on the ground of article 9(2)(d) of the AIE Regulations.

I expect Coillte to make a fresh decision on this request which will reflect these findings.”

8 . This did not in itself direct the release of any documents but ultimately remitted the matter requiring a fresh decision in the light of the findings.

The second decision – 2020

9 . On 20 February 2020, Coillte again refused access. This was affirmed under internal review on 26 March 2020.

10 . This led to a further appeal to the commissioner on 27 April 2020 (out of time, but the commissioner accepted it), which in turn led to the commissioner making a reference to the High Court under reg. 12(9)(a) of the AIE regulations on 15 September 2021, concerning inter alia whether exemptions under the Freedom of Information...