Redmond and Another v Commissioner for Environmental Information and Another
| Jurisdiction | Ireland |
| Judge | Ms. Justice Ní Raifeartaigh |
| Judgment Date | 14 December 2017 |
| Neutral Citation | [2017] IEHC 827 |
| Docket Number | [2016 No. 27 J.R.] |
| Court | High Court |
| Date | 14 December 2017 |
AND
[2017] IEHC 827
[2016 No. 27 J.R.]
THE HIGH COURT
JUDICIAL REVIEW
Environment, Transport & Planning – Judicial review – Certiorari – Directives 90/313/EEC and 2003/4/EC – AIE Regulations (Access to Information on the Environment) Regulations, 2007 – Environmental information – Aarhus Convention
Facts: The applicants sought an order of certiorari in relation to a decision made by the first respondent upholding the decision of the second respondent in respect of information relating to a property sale. The applicants relied upon the High Court decision in Minch v. Commissioner for Environmental Information [2016] IEHC 91 for arguing that the application of a 'remoteness' test by the first respondent was not appropriate. The applicants argued that the first respondent's use of the Glawischnig v Bundesminister fur soziak Sicherheit und Generationen (Case C-316/01) [2003] E.C.R. I-6009 constituted a fettering of his discretion and the adoption of strict policy. The applicants contended that the first respondent had erred in failing to rule on the redacted documents furnished by the second respondent to the applicants. The first respondent submitted that the applicants had sought to rely on the information and evidence that were not before the first respondent and it was outside the jurisdiction of the first respondent. The first respondent contended that the proceedings had not been brought in the proper form and that the applicants sought to avoid the time limit for the statutory appeal by bringing the judicial review proceedings.
Ms. Justice Ní Raifeartaigh refused the reliefs sought by the applicants. The Court cited the decision of Hogan J. in Koczan v. Financial Services Ombudsman [2010] IEHC 407, where it was stated that there existed certain exceptional categories of cases where the legal argument might have appropriately fallen to be dealt with by the judicial review. The Court held that the complaints about fair procedures and bias were not made out. The Court further held that the first respondent was legally correct in reaching the conclusion on the evidence before him that the information sought did not constitute environmental information within the meaning of the regulations.
This is an application by way of judicial review for an order of certiorari of a decision made by the first respondent (hereinafter 'the Commissioner') on the 2nd November, 2015, upholding a decision of the second respondent (hereinafter 'Coillte') in respect of information relating to a property sale by Coillte. The sale in question concerned lands and forestry at Kilcooley Abbey Estate, Thurles, Co. Tipperary. The kernel of the case concerns the meaning of the term 'environmental information' within the meaning of the EC (Access to Information on the Environment) Regulations, 2007.
The EC (Access to Information on the Environment) Regulations, 2007 (hereinafter 'the Regulations') transpose the obligations to provide for access to environmental information as required by Directives 90/313/EEC and, subsequently, 2003/4/EC (the latter Directive having replaced the former).
The Directives were 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, known as 'the Aarhus Convention' (1998).
Article 3(1) of the AIE Regulations provides for the following definition of 'environmental information':-
'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).'
It is necessary to distinguish between a number of different stages in the chronology; the initial request for information by the applicants to Coillte, the internal review within Coillte, and the appeal to the Commissioner.
The request for information made to Coillte
By letter dated the 22nd May, 2014, the first applicant wrote to Coillte requesting information/documentation in relation to the 'recent sale of the Coillte lands/forestry at Kilcooley Abbey Estate, Thurles, Co. Tipperary', under the Access to Information on the Environment Regulations 2007. He specified the information and documents sought in eight bullet points as follows:
• 'On what date was the land lease for forestry at Kilcooley Abbey Estate purchased from Coillte by the new owner?
• How many acres were purchased from Coillte and what other assets were included in the sale?
• Who purchased the Coillte land/ forestry at Kilcooley Abbey Estate?
• What price was paid to Coillte for the leasehold of the forestry lands or other leases at Kilcooley Abbey Estate?
• What other parties and other legal representatives were involved in transferring the lease to the new owner?
• Provide details on who valued the leased lands/forestry and how the valuation was compiled.
• What was the valuation of the leased lands/forestry?
• I also request any information or correspondence you have on the proposed development of lands/forestry on Kilcooley Abbey Estate.'
By email dated 11th June, 2014, Mr. Tom Byrne of Coillte replied as follows.
'Coillte disposed of its leasehold interest in 402.92 hectares at Kilcooley. Contracts were issued in March 2011 and the transaction completed on 20th December 2013 and in relation to your other questions regarding who purchased the land, price paid and other details about valuation process we will not be disclosing this information on the basis it is commercially sensitive, under s. 9 of the Access to Environmental Information Legislation. I am not sure what correspondence you are referring to when you asked about correspondence on proposed development of the lands at Kilcooley. Can you be more specific as to what you are asking here?'
Thus, some information in relation to items 1 and 2 was provided; the information on items 3-7 was refused on the basis of commercial sensitivity; and further information was sought about the request at item 8.
By letter dated the 23rd June, 2014, Mr. Redmond expressed his disappointment with the decision and indicated that he would be appealing. He added, in relation to the last point and 8th bullet point, as follows:
'Regarding my last point, in Coillte's disposal of its freehold interest in the lands at Kilcooley Abbey Estate it was aware of the proposed development of the lands, what I am seeking is for you to provide information of correspondence that you have on the proposed development of the land, forestry etc. and also information you have on access and the rights of ways to and throughout the land that was formally (sic) leased by Coillte. Did you consider the impact of the disposal of the leased land would have on the environment and the rights of way and can you provide me with information/report on how it was assessed and the finding of that assessment. Would you also provide information on who requested the issuing of the contracts in 2011 and who Coillte issued the contracts to?'
his may be referred to as the 'expanded' or 'enlarged' item 8 request.
The request for review of the decision
By letter dated the 2nd July, sent by email on the 4th July, 2014 and re-sent on the 10th July, 2014, the first applicant wrote to Coillte requesting a review of the decision. The internal review is a procedure contemplated by the Regulations.
By email dated the 16th July, 2014 from Ms. Maura McCarthy, with the heading 'Coillte Internal Review', Ms. McCarthy referred to Mr. Redmond's 'appeal' regarding a request for information under the Access to Environmental Information legislation. She said that having reviewed the matter, she agreed with the withholding of information sought by him but not on the original ground identified. In her view, the information sought was not 'environmental information' as defined in Statutory Instrument 133/2007 and therefore did not fall to be disclosed under the legislation. The email went on to say:
'Notwithstanding the above, further to point 2 of your request, I am happy to advise that we sold a leasehold interest in lands and trees. I can also...
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