M50 Skip Hire & Recycling Ltd v Commissioner for Environmental Information

JurisdictionIreland
JudgeMr. Justice Heslin
Judgment Date02 September 2020
Neutral Citation[2020] IEHC 430
Docket Number[2019/ 287 MCA]
CourtHigh Court
Date02 September 2020

IN THE MATTER OF AN APPEAL PURSUANT TO ARTICLE 13(1) OF THE EUROPEAN COMMUNITIES (ACCESS TO INFORMATION ON THE ENVIRONMENT) REGULATIONS 2007 - 2018

BETWEEN
M50 SKIP HIRE & RECYCLING LIMITED
APPELLANT
AND
COMMISSIONER FOR ENVIRONMENTAL INFORMATION
RESPONDENT
AND
FINGAL COUNTY COUNCIL & MR. XY
NOTICE PARTIES

[2020] IEHC 430

Heslin J.

[2019/ 287 MCA]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Declaratory relief – European Communities (Access to Information on the Environment) Regulations 2007 – Appellant seeking an order setting aside, varying or annulling the decision of the respondent – Whether the respondent erred in law in making the decision

Facts: The second notice party, on 24th April 2018, made an appeal to the respondent, the Commissioner for Environmental Information, against the decision by the first notice party, Fingal County Council, to refuse the second notice party access to the waste destination data of the appellant, M50 Skip Hire & Recycling Ltd. On 10th July 2019, the respondent allowed the appeal, setting aside the first notice party’s decision. The appellant brought an appeal to the High Court by way of an originating notice of motion dated 9th September 2019. In the manner pleaded in the said motion, the appellant sought inter alia an order pursuant to Regulation 13 of the European Communities (Access to Information on the Environment) Regulations 2007, as amended, setting aside, varying or annulling the decision as well as a range of declaratory relief. The fundamental basis for the appellant’s objection to the decision was the view that a different outcome should have been arrived at by the respondent when he carried out the public interest balancing test under Article 10 (3).

Held by Heslin J that, regardless of how sincerely the appellant felt that the respondent struck the “wrong” balance, it was not a basis for an entitlement to any of the relief sought, where the evidence demonstrated that the decision which the respondent came to was lawfully made and not vitiated by error. Heslin J held that the evidence supported a finding that the respondent’s decision was not based on any erroneous understanding of the law. Heslin J also found that the respondent’s decision was clearly based on the evidence before him, did not fly in the face of reason or common sense and was not based on any error. Heslin J held that it would be wholly inappropriate for the Court to disturb the respondent’s decision which was one carefully and lawfully arrived by an expert decision-maker, who properly understood and acted in accordance with their statutory obligations and powers.

Heslin J held that the appellant was not entitled to any of the relief claimed.

Application refused.

JUDGMENT of Mr. Justice Heslin delivered on the 2nd day of September 2020 Introduction and brief summary of the background
1

These proceedings concern a decision made by the Respondent on 10th July 2019 in Case No. CEI/18/0027 (hereinafter “the Decision”). The Appellant brings an appeal to this Court by way of an originating notice of motion which is dated 9th September 2019. In the manner pleaded in the said motion, the Appellant seeks inter alia an order pursuant to Regulation 13 of the European Communities (Access to Information on the Environment) Regulations 2007, as amended (hereinafter “the 2007 Regulations”) setting aside, varying or annulling the Decision as well as a range of declaratory relief.

2

The background to the proceedings can be summarised briefly as follows. The Appellant is a limited liability company, having a registered office in Santry, Dublin, which carries out business as a waste collector. It is not in dispute that the Appellant provides skips for the removal of waste. In the context of holding a permit to collect waste, the Appellant is required to furnish certain information to the First Notice Party, examples being the quantity of waste collected, where it was collected from and where waste was delivered to. Such information is comprised in what is known as an Annual Environmental Report (hereinafter “AER”). On 16th June 2018, the Second Notice Party made a request to the First Notice Party for the Appellant's AER in respect of the year 2017. On 12th July 2018, the First Notice Party informed the Second Notice Party that part of the 2017 AER could be accessed but refused access to certain information including, in particular, information described as the waste destination data (hereinafter the WDD). It is not in dispute that the WDD comprises information as to the facilities to which the Appellant sends waste. Nor is it in dispute that the refusal of access to the WDD was based on the First Notice Party's view that such information was commercially or industrially confidential within the meaning of s. 9(1)(c) of the 2007 Regulations. On 26th July 2018, the Second Notice Party requested a review of the First Notice Party's decision to redact the WDD from the information furnished to the Second Notice Party, arguing that it was in the public interest for that information to be disclosed. On 24th August 2018 the First Notice Party affirmed its decision to refuse access to the WDD, citing a decision of the Respondent in a case No. CEI/17/0005 entitled “SLR Environmental Consulting (Ireland) Ltd. and Offaly County Council,” being a decision which issued on 24th April 2018 (hereinafter “the SLR decision”). On the same date, the Second Notice Party made an appeal to the Respondent against the First Notice Party's refusal of access to the WDD. On 10th July 2019, the Respondent allowed the said appeal, setting aside the earlier decision by the First Notice Party to refuse the Second Notice Party access to the Appellant's WDD, being the decision which is challenged in the present proceedings. At the outset of the hearing, it was explained that the parties agreed that the Appellant's WDD would not be made available, pending the outcome of the proceedings before this court.

Relevant legislation
3

The 2007 Regulations were adopted to give effect to Directive 2003/4/EC of the European Parliament and of the Council on Public Access to Environmental Information (hereinafter “the AIE Directive”). The AIE Directive was adopted to give effect to the 1998 UNECE Convention on Access to Information, Public Participation in Decision – making, and Access to Justice in Environmental Matters (hereinafter “the Convention”). For the sake of clarity, it is appropriate to set out certain extracts from the foregoing.

The AIE Directive
4

The first recital of the AIE Directive emphasises the importance of increased public access to environmental information and states the following: -

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…”

Article 1 of the AIE Directive specifies the objectives of the Directive in the following terms:-

“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…”.

“disclosure of environmental information should be the general rule”
5

For the purposes of the AIE Directive, “environmental information” is given a very wide definition. It is not in dispute that the Appellant's WDD comes within the definition of environmental information. It is clear from the contents of the AIE Directive that the general rule is that information should be disclosed, with any refusal by a public authority to disclose information being restricted to clearly defined cases and in circumstances where grounds for refusal should be interpreted in a restrictive way. Recital 16 of the AIE Directive states:-

“(16) The right to information means that the disclosure of information should be the general rule and that public authorities should be permitted to refuse a request for environmental information in specific and clearly defined cases. Grounds for refusal should be interpreted in a restrictive way, whereby the public interest served by disclosure should be weighed against the interest served by the refusal. The reasons for a refusal should be provided to the Applicant within the time limit laid down in this Directive”.

6

Article 4 of the AIE Directive is entitled “Exceptions” and Article 4(1) sets out certain grounds upon which member states may provide for a request for environmental information to be refused. Article 4(2)(d) states that:-

“2. Member States may provide for a request for environmental information to be refused if disclosure of the information would adversely affect:

(d) the confidentiality of commercial or industrial information where such confidentiality is provided for by national or Community law to protect a legitimate economic interest, including the public interest in maintaining statistical confidentiality and tax secrecy”;

“grounds for refusal of information… shall be interpreted in a restrictive way”
7

Article 4, echoing the contents of Recital 16, goes on to make clear that: -

“The grounds for refusal mentioned in paragraphs 1 and 2 shall be interpreted in a restrictive way, taking into account for the particular case the public interest served by disclosure. In every particular case, the public interest served by disclosure shall be weighed against the interest served by the refusal. …”

“right of...

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