Minch v Commissioner for Environmental Information

• Jurisdiction: Ireland
• Judge: Ms Justice Baker
• Judgment Date: 16 February 2016
• Neutral Citation: [2016] IEHC 91
• Docket Number: [RECORD NO. 2015/50 MCA]
• Court: High Court
• Date: 16 February 2016

[2016] IEHC 91

HIGH COURT

Baker J.

[RECORD NO. 2015/50 MCA]

IN THE MATTER OF THE EUROPEAN COMMUNITIES (ACCESS TO INFORMATION ON THE ENVIRONMENT) REGULATIONS 2007 – 2014

S.I. NUMBER 133 OF 2007

AND IN THE MATTER OF AN APPEAL PURSUANT TO ARTICLE 13 OF THE EUROPEAN COMMUNITIES (ACCESS TO INFORMATION ON THE ENVIRONMENT) REGULATIONS 2007 – 2014

AND IN THE MATTER OF SECTION 7 OF THE ENVIRONMENTAL (MISCELLANEOUS PROVISIONS) ACT 2011

BETWEEN

STEPHEN MINCH

APPELLANT

AND

THE COMMISSIONER FOR ENVIRONMENTAL INFORMATION

RESPONDENT

AND

THE DEPARTMENT OF COMMUNICATIONS, ENERGY AND NATURAL RESOURCES

NOTICE PARTY

Environment – Statutory appeal – The European Communities (Access to Information on the Environment) Regulations 2007 – Directive 2003/4/EC3 – UN/ECE Convention on Access to Information, Public Participation and Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention) – Access to information

Facts: The appellant had filed an appeal against the decision of the respondent refusing the request made by the appellant to the notice party to have access to a report prepared by the government to achieve the objectives of national broadband plan (NBP) on the basis that the information sought was not the environmental information as envisaged under the European Communities (Access to Information on the Environment) Regulations 2007. The appellant sought a declaration that the report contained ‘environmental information’ within the said Regulations of 2007.

Ms. Justice Baker granted an order for setting aside the determination of the respondent and remitted the matter to him for further consideration. The Court refused to grant a declaration that the said report contained environmental information as it was out of the jurisdiction of the Court. The Court held that it was appropriate for the Court to ascertain whether the conclusion reached by the respondent was based on a correct view of law. The Court observed that respondent while applying the Regulations of 2007, must have regard to the purpose and the Aarhus Convention, which required an effective public participation in relation to the environment. The Court held that reg. 13 (1) (e) of the 2007 Regulations should be interpreted broadly to include not only the elements directly affected by environment but also the consequential effect on those elements. The Court found that the conclusion of the respondent that the link between N.B.P. and emissions into the environment was too remote to have any effect on environment was based on an erroneous interpretation of the said regulations.

Judgment of Ms Justice Baker delivered on the 16 day of February, 2016.

1 This is a statutory appeal from the decision of the Commissioner for Environmental Information (hereinafter, ‘the Commissioner’) given on the 15th December, 2014 by which he refused the request made by the appellant to the notice party (hereinafter, ‘the Department’) on the 18th May, 2013 for access to a report entitled ‘Analysis of Options for Potential State Intervention in the Role out of Next-Generation Broadband’ (hereinafter, ‘the Report’).

2 The request for access to the Report was rejected by the Department on the 17th July, 2013 on the grounds that the information sought was not ‘environmental information’ as defined in the Regulations. The appellant appealed to the Commissioner by letter dated the 24th July, 2013 and the Commissioner rejected the appeal on the same ground.

3 The appeal was filed by originating notice of motion in accordance with the requirements in Order 84C on the 16th February, 2015.

The Report

4 The report was prepared by consultants, Analysys Mason and is described as an economic analysis of the various options available to Government to achieve generalised rollout of high speed broadband services within the State. It seems that the Report considers in particular two options available to achieve the objectives of the National Broadband Plan (hereinafter, ‘N.B.P.’), namely whether broadband would be made available by a wireless or wired mode. The N.B.P. itself is freely available.

The legislative framework

5 The European Communities (Access to Information on the Environment) Regulations 2007, S.I. 133 of 2007, transposes Directive 2003/4/EC3 on public access to environmental information and repealing council directive 90/313/EEC. The Directive was implemented following the signing by the European Community of the UN/ECE Convention on Access to Information, Public Participation and Decision-Making and Access to Justice in Environmental Matters, the Aarhus Convention (1998).

6 Article 6 of the Regulation of 2007, as amended, provides for the making of a request for environmental information to be made in the first place to the relevant public authority, and provision is made under Article 12 for an appeal to the Commissioner for Environmental Information.

7 Article 13(1) provides an appeal to the High Court on a point of law of any decision of the Commissioner:-

‘A party to an appeal under article 12 or any other person affected by the decision of the Commissioner may appeal to the High Court on a point of law from the decision.’

8 The Regulations provide a definition of environmental information at clause 3(1) as follows:-

‘In these Regulations—

‘environmental information’ means 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,

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 paragraphs (a) and (b) as well as measures or activities designed to protect those elements,

d. reports on the implementation of environmental legislation,

e. cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in paragraph (c), and

f. the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are, or may be, affected by the state of the elements of the environment referred to in paragraph (a) or, through those elements, by any of the matters referred to in paragraphs (b) and (c).’

Subparagraphs (b), (c) and (e) are engaged in this appeal. For convenience I will refer to ‘emissions’ when discussing the environmental factors listed in (b), as it is in regard to information on emissions into the environment that the applicant primarily argues.

The appeal as pleaded: preliminary objection

9 The originating notice of motion is broadly drafted and seeks without specificity a declaration that the Report is ‘environmental information’ within the Regulations, and relates to information on emissions into the environment within the provisions of Article 10(1) of the Regulations. The motion also seeks an order that the Court should substitute its decision for the decision made by the Commissioner to refuse access to the Report.

10 The application is grounded on an affidavit of the applicant sworn on the 16th February, 2015 and it is fair to say that the affidavit does not disclose details of how it is asserted the Commissioner fell into error, nor the basis on which it is argued that the information is environmental information for the purposes of the disclosure requirements in the Regulations. Paragraph 2 of the motion has, at best, identified the claim as coming within Article 3 (b) viz. that the information relates to emissions into the environment.

11 In his second affidavit sworn on the 25th May, 2015 the applicant seeks to rely on the definition contained in Article 3(1)(c) and Article 3(1)(e) of the Regulation. The written legal submissions and the argument of counsel for the applicant during the hearing rely entirely on sub. (c) and (e), and counsel did not seek to argue that the information fell within category (b).

12 The notice of motion does not ‘state concisely the point of law on which the appeal is made’ as is required by Order 84C, the respondent and the Department argue that the applicant ought not be permitted to rely on subs. (c) and (e) as these are not pleaded, nor were these arguments before the Commissioner.

13 The jurisdiction of the High Court is one conferred by statute and is expressly one where the Court engages a point of law ‘from the decision’. The applicant may not seek now to argue matters in the High Court which were not considered by the Commissioner. The matter is one of jurisdiction. However, I reject the submission that the applicant did not argue before the Commissioner that the Report came to be considered as information contemplated by Article 3(1)(c) and (e), and each of these subcategories are expressly mentioned in the final determination of the Commissioner.

14 Accordingly I consider that while the motion does not comply with the mandatory statutory requirement, and does not state concisely and with specificity the nature of the alleged defect in the determination of the Commissioner, the matters in issue are clear from the submissions and from the supplemental affidavit of the applicant, and therefore there is no element of surprise that might cause prejudice to the Commissioner or to the notice party in the appeal.

The role...