Stephen Dowds Associates on behalf of Derrybrien Development Society Limited and Galway County Council

• Case Number: CEI/14/0008
• Decision Date: 15 April 2016
• Issuer: Galway County Council
• Applied Rules: Art.7(5) Art.11(5), European Communities (Access to Information on the Environment) Regulations, 2007
• Court: Commissioner for Environmental Information

Stephen Dowds Associates on behalf of Derrybrien Development Society Limited and Galway County Council

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/14/0008

Published on 15 April 2016

Decision of the Commissioner for Environmental Information on an appeal made under article 12(5) of the European Communities (Access to Information on the Environment) Regulations 2007 to 2014 (the AIE Regulations)

Case CEI/14/0008

Date of decision: 15 April 2016

Appellant: Stephen Dowds Associates on behalf of Derrybrien Development Society Limited

Public Authority: Galway County Council (the Council)

Issue: Whether the Council's decision to grant the appellant's request for access to environmental information failed to take into account all information held by or for the Council, and was therefore not made in accordance with the AIE Regulations.

Summary of Commissioner's Decision: Under article 12(5) of the AIE Regulations, the Commissioner reviewed the decision of the Council. Following the Commissioner's raising of issues concerning the Council's search and records management practice, the Council acknowledged the existence of relevant information which had not been considered at the time of the initial decision or internal review. Accordingly, the Commissioner annulled the decision of the Council, as it was inadequately answered under article 11(5)(b) of the AIE Regulations.

Right of Appeal: A party to this appeal or any other person affected by this decision may appeal this decision to the High Court on a point of law from the decision, as set out in article 13 of the AIE Regulations. Such an appeal must be initiated not later than two months after notice of the decision was given to the person bringing the appeal.

Background

Section 177B of Part XA of the Planning and Development Act 2000 provides that where a planning authority becomes aware of a court judgment that a grant of planning permission was in breach of law or otherwise defective, the planning authority shall issue a notice to the person carrying out the development directing that they apply to An Bord Pleanála for substitute consent. On 12 October 2011, the Council issued a substitute consent notice to a number of companies connected with a wind farm at Derrybrien, County Galway, directing that the companies apply for substitute consent from An Bord Pleanála within 12 weeks, and requiring that a remedial environmental impact assessment and a remedial Natura impact statement be furnished with the application. The Council withdrew this substitute consent notice on 25 November 2011, following an exchange of correspondence with the operators of the wind farm.

On 31 March 2014, the appellant made a request to the Council under the AIE Regulations for access to "any documentation relating to Part XA of the Planning and Development Act 2000" in relation to Derrybrien wind farm. The Council refused the request in a decision of 30 April 2014. In a subsequent internal review decision of 16 June 2014, the Council purported to grant the request by disclosing two items of correspondence: a letter of 7 November 2011 from ESB Wind Development Limited to the Council concerning the substitute consent notice of 12 October 2011; and a letter of 29 November 2011 from ESB Business Services Centre to the Council, concerning the withdrawal of the substitute consent notice. Mr Dowds appealed the internal review decision to my office on the basis that not all information had been made available to him.

Scope of Review

Article 7(5) of the AIE Regulations provides that where information requested is not held by or for a public authority, it must inform the applicant as soon as possible. Articles 11(5)(b) and 12(3)(a) provide that an applicant may appeal an internal review decision to my office where the request has been inadequately answered. In the present case, the Council purported to grant the appellant's request, implying that no further relevant information was held. The appellant disputed the adequacy of this answer. My approach to cases where a public authority states that all relevant information has been disclosed is to assess the adequacy of the searches for information, and to decide whether the decision-maker was justified in determining that access had been provided to all relevant environmental information held...