Right to Know CLG v Commissioner for Environmental Info and Another

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Ms Justice O'Malley
• Judgment Date: 06 March 2024
• Neutral Citation: [2024] IESC 7
• Docket Number: S:AP:IE:2022:000120 High Court Record No: 2019/87 MCA

Between/

Right to Know CLG

Appellant

and

Commissioner for Environmental Information

Respondent

and

Raheenleagh Power DAC

Notice Party

[2024] IESC 7

S:AP:IE:2022:000120

Court of Appeal Record No: 2021/103

High Court Record No: 2019/87 MCA

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Judgment of Ms Justice O'Malley delivered the 6 ^th day of March 2024

Introduction

1 . The substantive issue in these appeals is whether or not Raheenleagh Power DAC (“Raheenleagh”, or “the company”) is a “public authority” within the meaning of the European Communities (Access to Information on the Environment) Regulations 2007– 2008 (S.I.133/2007) (“the regulations”).

2 . Raheenleagh owns a wind farm. In that context it was authorised to construct the wind farm and it is licensed under the Electricity Regulation Act 1999 to generate electricity and sell it into the electricity market. If the company is a “public authority”, it is obliged by the regulations to make available on request specified environmental information held by it. The campaign group Right to Know CLG (“RTK”) maintains that the company does come within the regulations. It seeks to be given information concerning data (about wind turbine noise) submitted by Raheenleagh in the course of its application for planning permission to construct the wind farm. The Court of Appeal decided that Raheenleagh was not such a body ( [2022] IECA 210). In so holding it reversed the findings of the High Court ( [2021] IEHC 46), which had in turn reversed the decision of the Commissioner for Environmental Information (“the Commissioner”). Both RTK and the Commissioner now appeal to this Court.

3 . Apart from the substantive question of the status of Raheenleagh, the appeals also concern certain process-related issues arising from the judgment of the Court of Appeal. Separately, there is an issue in relation to the position of the Commissioner in this appeal. The Commissioner originally found that Raheenleagh was not a public authority within the meaning of the regulations. It did not appeal the decision of the High Court, even though that Court reversed it, but now appeals against the decision of the Court of Appeal, even though that Court reached the same conclusion as it had at first instance. Its concerns relate to the process by which the Court of Appeal came to its conclusions and also to certain aspects of its decision where, on its view, that Court misinterpreted the relevant law under the regulations. It considers that the decision has serious implications for its functions under the regulations. It is contended by Raheenleagh that the Commissioner is not entitled to maintain an appeal in the circumstances.

4 . Raheenleagh has cross-appealed in respect of the finding of the Court of Appeal that it satisfied one element of the definition of a “public authority”. The Court held that the company was vested by law with “special powers beyond the normal rules applicable to persons governed by private law” (an element of the test laid down by the Court of Justice of the European Union). Raheenleagh disputes that finding.

The regulations in context

5 . The regulations implement directive 2003/4/EC, which in turn derives from the European Union's (and Ireland's) obligations as a party to the Aarhus Convention (the UNECE Convention on Public Participation in Decision-Making and Access to Justice in Environmental Matters 1998). Article 1 of the directive defines its objectives as follows:

• (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 made available and disseminated to the public in order to achieve the widest possible systematic availability and dissemination to the public of environmental information…

6 . The directive permits Member States to exclude from the scope of their implementation measures, bodies or institutions acting in a judicial or legislative capacity.

7 . As set out in the recitals, the further purposes of the directive include an increase in public access to environmental information so as to contribute to a greater awareness of environmental matters, with a view to more effective participation by the public in environmental decision-making, and thus, ultimately, to a better environment. Recital (11) reads:

“To take account of the principle of Article 6 of the Treaty, that environmental protection requirements should be integrated into the definition and implementation of Community policies and activities, the definition of public authorities should be expanded so as to encompass government or other public administration at national, regional or local level whether or not they have specific responsibilities for the environment. The definition should likewise be expanded to include other persons or bodies performing public administrative functions in relation to the environment under national law, as well as other persons or bodies acting under their control and having public responsibilities or functions in relation to the environment.”

8 . Article 2(1) of the directive sets out a lengthy definition of “environmental information”. It is unnecessary to set it out, since the parties are agreed that the information sought in this case is environmental information.

9 . Article 3 of the regulations is the interpretation provision. The definition of a “public authority” set out in Article 3(1) mirrors that in Article 2(2) of the directive (which, in turn, is essentially identical to that in the Aarhus Convention) and encompasses:

“ a) government or other public administration, including public advisory bodies, at national, regional or local level;

(b) any natural or legal person performing public administrative functions under national law, including specific duties, activities or services in relation to the environment; and

(c) any natural or legal person having public responsibilities or functions, or providing public services, relating to the environment under the control of a body or person falling within (a) or (b).”

10 . These are the exact equivalents of Article 2(2)(a), 2(2)(b) and 2(2)(c) of the directive. In the regulations, they are further accompanied by a non-exhaustive list of persons and bodies who are included within the definition, as follows:-

“ (i) a Minister of the Government,

(ii) the Commissioners of Public Works in Ireland,

(iii) a local authority for the purposes of the Local Government

Act 2001 (No. 37 of 2001),

(iv) a harbour authority within the meaning of the Harbours

Act 1946 (No. 9 of 1946),

(v) the Health Service Executive established under the Health

Act 2004 (No. 42 of 2004),

(vi) a board or other body (but not including a company under the Companies Acts) established by or under statute,

(vii) a company under the Companies Acts, in which all the shares are held—

(I) by or on behalf of a Minister of the Government,

(II) by directors appointed by a Minister of the Government,

(III) by a board or other body within the meaning of paragraph (vi), or

(IV) by a company to which subparagraph (I) or (II) applies, having public administrative functions and responsibilities, and possessing environmental information;”

11 . A public authority must on request make available environmental information held by it, with no requirement for the applicant to justify the request by stating an interest.

12 . It is not argued that Raheenleagh comes within paragraph (a) of the definition. Having regard to the view of this Court, expressed in ( NAMA v. Commissioner for Environmental Information [2015] 4 IR 626 [2015] IESC 51), to the effect that the non-exhaustive list in the regulations would be ultra vires the provisions of the European Communities Act 1972 if it goes further than is required by EU law, the key question before the Court in this appeal is the applicability of either paragraph (b) or (c) of regulation 3(1)/Article 2(2) of the directive.

The interpretation of the directive

The Aarhus Convention and the Implementation Guide

13 . According to the case-law of the Court of Justice of the European Union, the wording and aim of the Convention itself is to be taken into account in interpreting the directive designed to implement it. An implementation guide to the Aarhus Convention is produced by the United Nations Economic Commission for Europe. The observations in the Guide are expressly stated therein to have no legally binding effect. However, the CJEU has said that the Guide may be regarded as an explanatory document, capable of being taken into consideration, if appropriate, among other relevant material for the purpose of interpreting the Convention.

14 . In its commentary on Article 2 of the Convention, the Guide (2 ^nd ed., 2014) states that the Convention is intended to apply to a whole range of executive or governmental activities (not including legislative or judicial activities). It is noted that recent developments in privatised solutions to the provision of public services have added a layer of complexity to the definition, but the Convention tries to make it clear that such innovations do not take public services or activities out of the realm of public information, participation or justice.

15 . All governmental authorities of whatever function (environmental or otherwise), at all geographical levels, come within paragraph (a).

16 . Paragraph (b) is said to cover natural or legal persons that perform any public administrative function – “ that is, a function normally performed by governmental authorities, as determined according to national law”. This means that there must be a legal basis in national law for the performance of the function before a body can come within paragraph (b). It...