AIE Update – Broadening the Scope of “Environmental Information”

In the recent decision of Redmond v Commissioner for Environmental Information^[1], the Court of Appeal has overturned the previous decisions of the High Court, and of the Commissioner for Environmental Information, on the scope of “environmental information” under Article 3(1) of the European Communities (Access to Information on the Environment) Regulations 2007 (as amended) (AIE Regulations).

The relevant information requested by Mr Redmond from Coillte in this case related to the sale by Coillte of forestry lands in County Tipperary to a private buyer. Contrary to the decisions of the High Court and the Commissioner, the Court of Appeal determined that such information did constitute environmental information within the scope of the AIE Regulations.

In doing so, the Court of Appeal has re-confirmed the meaning of environmental information, and as a result the scope and obligations of public authorities under the AIE Regulations, are very wide indeed.

Decisions of the Commissioner and High Court

Before considering the Court of Appeal decision, the main findings of the High Court were as follows:

• The Commissioner had correctly applied the remoteness test to disqualify the requested information as “environmental information”. The Minch^[2] decision does not disapprove of the use of remoteness as an appropriate test, but rather applies that test. Here, the Commissioner found that potential future deforestation could not be regarded as a consequence of the sale. Thus, the fact that the forestry lands might be deforested by the buyer did not mean that information on the sale was “environmental information”, and

• The Commissioner was also correct in categorising information on any proposed development of the sold lands as “environmental information”. However, Coillte did not hold information on the buyer’s intentions. It held some information about development which might be expected in the future, but this was not “proposed” development. Coillte’s stated policy of selling lands for purposes other than forestry did not automatically make the details of every sale, such as those refused in this case, “environmental information”.

Court of Appeal decision

The principal issue in the appeal was whether the information sought by Mr Redmond relating to Coillte’s sale of forestry lands was “environmental information”. Mr Redmond also argued that: (i) the Commissioner should have considered the likely impact of the sale on the environment; and (ii) the High Court was wrong to affirm the Commissioner’s finding that a change of ownership in itself did not constitute a “measure… affecting or likely to affect” the environment, given that further permits would be required before the purchaser could fell any trees.

The Court of Appeal held that the High Court had erred in concluding that the relevant information did not constitute “environmental information”. The Court of Appeal’s main findings were as follows:

• The actual sale of a specific property is capable of being a “measure” under part (c) of the definition of “environmental information”, subject to showing that it is “affecting or likely to affect” the environment

• Applying the well-established principles from Minch, and agreeing with the approach of the English Court of Appeal[3], the information itself does not need to be intrinsically environmental. The relevant aspect is whether the information is on a measure or activity that affects or is likely to affect the environment. A measure or activity is “likely to affect” the environment if there is a real and substantial possibility that it will affect the environment. It is not necessary to establish the probability of a relevant environmental impact. However, something more than a remote or theoretical possibility is required

• The Commissioner erred in considering that the information in itself must be shown to be information “affecting or likely to affect” the environment. Rather, the Commissioner should have considered whether the measure – the sale of the land – was capable of affecting the environment

• The fact that the buyer did not have an unrestricted right to fell the trees, or that a felling licence would be required before there could be any significant interference with the forest, did not warrant the decisive weight accorded to it by the Commissioner, or justify the conclusion on whether it was environmental information

• It was an error to conflate environmental effect and development. While development will generally affect the environment, a measure may affect the environment absent of any such development

• The approach taken by the Commissioner in deciding the appeal on the basis of the absence of any direct evidence of the purchaser’s intentions for the use and/or development of the lands was unduly restrictive, and

• The Commissioner failed to discharge his functions properly by failing to consider certain material available in the course of the appeal before him. This material confirmed that Coillte had undertaken an environmental impact appraisal of the sale, and that this appraisal identified the sale’s potential to result in high environmental impacts. Being aware of this material, the Commissioner ought to have had regard to it in the appeal

The Court of Appeal also made a number of interesting observations and findings in relation to the role of the Commissioner, the nature of appeals before the Commissioner and the scope of appeals to the High Court under the AIE Regulations. These are as follows:

• Appeals before the Commissioner are inquisitorial rather than adversarial in nature, and the extent of the inquiry is determined by the Commissioner, not the parties. In particular, the Commissioner does not require any invitation from the parties in order to consider material available to him

• Efforts by the ultimate decision-maker to informally resolve an issue that may ultimately have to be decided by that same decision-maker is fraught with potential difficulty. The decision-maker must follow a transparent process, which the Commissioner failed to do in this instance, and

• An appeal to the High Court under Article 12(3)(a) of the AIE Regulations is confined to an appeal of the public authority’s internal review decision, and does not include the initial decision

Conclusion

This Court of Appeal’s decision in Redmond re-confirms the broad interpretation of “environmental information” in line with the Minch decision. It also clarifies that part (c) of the definition of environmental information is not limited to information that is intrinsically environmental, but can include information on measures or activities that are likely to affect the environment.

The decision also re-iterates the need for the Commissioner to follow a transparent process in appeals under the AIE Regulations, and to consider all relevant material before him.

Interestingly, this is one of a number of recent Court decisions that have found against the Commissioner, including in his capacity as Information Commissioner under the Freedom of Information Act 2014. This includes the recent AIE decision of the High Court in ESB v Commissioner for Environmental Information[4], which is the subject of a forthcoming ezine that will issue shortly.