Mr. Marcus Dancey and An Bord Pleanála

• Case Number: CEI/14/0001
• Decision Date: 24 July 2015
• Issuer: An Bord Pleanála
• Applied Rules: Art.7(5), European Communities (Access to Information on the Environment) Regulations, 2007
• Court: Commissioner for Environmental Information

Mr. Marcus Dancey and An Bord Pleanála

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/14/0001

Published on 24 July 2015

Appeal to the Commissioner for Environmental Information

European Communities (Access to Information on the Environment) (AIE) Regulations 2007 to 2011

Appellant: Mr. Marcus Dancey

Public Authority: An Bord Pleanála, 64 Marlborough St, Dublin 1 (the Board)

Whether the Board was justified in refusing to provide access to environmental information relating to planning appeals involving seven infrastructural developments in the Rye Water River catchment

Decision

The Commissioner found that the Board was justified in refusing the appellant's request under Article 7(5) of the Regulations, on the basis that the Board did not hold the information requested. Accordingly, the Commissioner affirmed the Board's decision.

Background

On 29 October 2013, the appellant wrote to the Board citing the Access to Information on the Environment Regulations 2007 to 2011(the Regulations) and requesting information which would clarify how the Board considered and ruled on environmental issues which arose in seven planning appeal cases involving lands located in the Rye Water River catchment in counties Meath and Kildare.

The Board's case reference numbers were: PL 17.240405, PL 17.239772, PL 17.239523, PL 17.239375, PL 17.239211, PL 09.238818 and PL 17. 238370.

On 28 November 2013 the Board issued its decision: After carrying out a search of records held by or for it, the Board provided access to copies of a planning inspector's notes and informed the appellant that all other relevant records in its possession were available in the Board's files for inspection and purchase. Essentially, the Board's decision was to provide access to all of the information it held.

The appellant wrote to the Board on 13 December 2013 and expressed dissatisfaction with the information provided. He maintained that the information which he sought was not in the Board's files and had not been made available as requested. He asked for an explanation as to "why a tangible Environmental Impact Assessment (EIA) was not completed for the files". The Board took this letter to be a request for internal review of its original decision, and regarded the reference to EIA as the raising of a new issue.

The Board issued its internal review decision by letter on 9 January 2014. Although the letter stated that the decision-maker had varied the original decision, it remained the Board's position that all relevant information held by it had been made available to the appellant or was available for viewing in its files. The letter contained an explanation of the EIA process, and purported to justify the absence of records of the type sought by the appellant from the Board's files.

Still dissatisfied, the appellant wrote to my Office on 5 February 2014. He paid the required fee and his submission was accepted as constituting an appeal for the purposes of Article 12 of the Regulations.

Scope of Review

Under Article 12 of the Regulations, my role is to review the decision of the Board and to affirm, vary or annul it. It is beyond my remit as Commissioner to comment or adjudicate on how public authorities carry out their functions either generally or with regard to their obligations under Regulation 5. This Office does not have authority to investigate complaints made against public authorities or to provide an alternative dispute mechanism with respect to actions taken or not taken by such authorities; my role is confined to that prescribed in relation to appeals against decisions taken following requests for access to environmental information.

I have taken account of the submissions of the appellant and of An Bord Pleanála. I have also had regard to: the Guidance document provided by the Minister for the Environment, Community and Local Government on the implementation of the Regulations; Directive 2003/4/EC, upon which the Regulations are based; and The Aarhus Convention: An Implementation Guide (second edition, June 2014) (the Aarhus Guide) relating to 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).

Appellant's arguments

The appellant's argument is that, in carrying out an EIA, the Board must have considered the various conflicting technical issues put before it and ought to have recorded each decision made during that process, along with the associated reasoning. He points out that the flood risk guidelines issued by the Department of the Environment, Heritage and Local Government and the Office of Public Works require "transparent consideration of flood risk at all levels of the planning process". He argues that such transparency does not exist in this instance. He argues that it would not have been sufficient for the Board to have carried out EIA as if the EIA process could be equated to the process of determining appeals.

An Bord Pleanála's position

The Board's...