Case number: OCE-98781-F2M6F5

Whether the Council was justified in refusing access to a supporting letter submitted in respect of an application for extension of duration of planning permission on the basis that the letter is not “environmental information” within the meaning of the definition in article 3(1) of the AIE Regulations

 

OCE-98781-F2M6F5

 

24 September 2021

 

Background

 
1. All references to the appellant in this decision can be taken to refer to the appellant and/or its solicitors, as appropriate.
 
2. On 22 October 2020, the appellant wrote to the Council stating that it was unable to view the planning files for a referenced extension of duration of planning permission application (the Extension of Duration Application) online.  In response, the Council explained that the Extension of Duration Application was a request to extend the expiry date for permitted development granted under a referenced planning application (the Planning Application).  It noted that the Extension of Duration Application was not a planning application per se and incorporated an application form rather than maps and drawings etc.  It further explained that if the Extension of Duration Application was granted the other conditions attached to the Planning Application should remain the same.  It provided the appellant with a link to view the Planning Application documents online.
 
3. The appellant then asked the Council to send him a copy of the application form for the Extension of Duration Application or to make it available online.  The Council replied highlighting that extension of duration applications concern planning permission expiry dates and do not involve the reassessment of planning applications.  It also stated that extension of duration applications “do not allow for public involvement and documents submitted with such applications are not available to the public as they generally contain sensitive information.”
 
4. Following the Council’s correspondence, the appellant requested access to the application file for the Extension of Duration Application under the AIE Regulations.  In its original decision, the Council informed the appellant that its request could not be treated as an AIE request as it “did not fall within the remit of the AIE legislation.” It outlined, however, that it would forward a copy of the application form, subject to the redaction of confidential information, by way of a separate email.
 
5. The appellant sought an internal review of the Council’s decision to part release the application file, following which the Council explained that the application file contained both the application form and a supporting letter.  It noted that the appellant had received a copy of the application form, subject to the redaction of personal information, and that the supporting letter would not be released on the grounds that it was confidential.  The Council made no reference to the AIE Regulations.
 
6. The appellant’s appeal to my Office was received on 23 October 2020.
 
7. I have now completed my review under article 12(5) of the Regulations.  In carrying out my review, I have had regard to the submissions made by the appellant and the Council.  I have also examined the content of the record at issue. In addition, I have had regard to:
• the Guidance document provided by the Minister for the Environment, Community and Local Government on the implementation of the AIE Regulations (the Minister’s Guidance); 
 
• Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based;

• the 1998 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); and

• The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’).  
 
8. I have taken account of the judgments of the Superior Courts in Minch v Commissioner for Environmental Information [2017] IECA 223 (Minch), Redmond & Another v Commissioner for Environmental Information & Another [2020] IECA 83 (Redmond), Electricity Supply Board v Commissioner for Environmental Information & Lar Mc Kenna [2020] IEHC 190 (ESB) and Right to Know CLG v. Commissioner for Envirnmental Information and Raidio Teilifís Éireann [2021] IEHC 353 (RTÉ) and the decisions of the European Court of Justice in Case C-316/01 Glawischnig v Bundesminister für Sicherieit und Generationen (Glawischnig) and C-321/96 Wilhelm Mecklenburg v Kreis Pinneberg - Der Landrat (Mecklenburg). I have also had regard to the judgment of the Court of Appeal of England and Wales that is referred to in the latter three Irish judgments, Department for Business, Energy and Industrial Strategy v Information Commissioner [2017] EWCA Civ 844 (Henney).
 
9. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
 
 

Scope of Review

 
10. As referred to above, the Council, in its original decision, stated that the appellant’s request could not be treated as an AIE request as it “did not fall within the remit of the AIE legislation” and released the copy of the application form for the Extension of Duration Application, subject to the redaction of certain information, outside the AIE process. In its internal review decision, the Council acknowledged that the appellant had received a redacted copy of the application form and noted that it would not receive a copy of the supporting letter on the grounds that it was confidential.  In doing so, however, it made no reference to the AIE Regulations.  I am satisfied that the Council was of the view that the information sought did not fall within the remit of the AIE Regulations.
 
11. The appellant, in its submissions to my Office dated 9 December 2020, specifically stated that the “refused document” (i.e. the supporting letter) should be released.
 
12. My powers as Commissioner for Environmental Information apply only in respect of environmental information held by or for a public authority. In accordance with my Office’s Procedures Manual, available at www.ocei.ie, my general practice in cases such as this, concerning a threshold jurisdictional question, is to limit my review to the preliminary matter of whether the information at issue is "environmental information" such that it falls within the remit of the AIE Regulations.
 
13. In light of all of the above, I am satisfied that the scope of this review concerns whether the Council was justified in refusing access to the supporting letter submitted with the application form for the Extension of Duration Application on the basis that the letter is not “environmental information” within the meaning of the definition in article 3(1) of the AIE Regulations.
 
 

Preliminary Matter 

 
14. Before I address the substantive issue in this case, I wish to highlight one important matter. Neither the Council’s original decision nor its internal review decision provided reasoning in support of its position that the information sought fell outside the remit of the AIE Regulations. I would remind the Council that articles 7(4) and 11(4) of the AIE Regulations require it to provide reasons for refusal of AIE requests at both original and internal review stage.  As such, I encourage the Council to take steps to ensure that as much detail is possible is provided to applicants when responding to requests made under the AIE Regulations, in order for it to comply with the letter and spirit of the AIE Regulations.
 
 

Analysis and Findings 

 
15. The Council, in its correspondence with my Office, stated that the letter at issue contains supporting information in relation to question 17(a) “Commercial or Economic Considerations” on the application form for the Extension of Duration Application and contended that it is not environmental information.  It also explained that the Extension of Duration Application was refused and the planning permission granted under the related Planning Application has expired.  It noted that there is no mechanism in planning legislation to appeal an extension of duration decision.
 
 
Definition of “environmental information”
 
16. Article 3(1) of the AIE Regulations is the relevant provision to consider where the issue is whether information is “environmental information”. In line with Article 2(1) of the AIE Directive, article 3(1) of the AIE Regulations provides that "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). "
 
17. The AIE Regulations transpose the AIE Directive. The AIE Directive was adopted to give effect to the first pillar of the Aarhus Convention in order to increase public access to environmental information so that an informed public can participate more effectively in environmental decision-making. It replaced Council Directive 90/313/EEC, the previous AIE Directive. The right of access under the AIE Regulations is to information “on” one or more of the six categories at (a) to (f) of the definition. According to national and EU case law on the definition of “environmental information”, while the concept of “environmental information” as defined in the AIE Directive is broad (Mecklenburg at paragraph 19), there must be more than a minimal connection with the environment (Glawischnig at paragraph 25). Information does not have to be intrinsically environmental to fall within the scope of the definition (Redmond at paragraph 58; see also ESB at paragraph 43).
 
18. In my view, paragraph (c) of the definition, which provides that “environmental information” means any information on 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, is the most relevant to this review.  Accordingly, I will proceed to consider it first.
 
Identification of a measure or activity
 
19. Paragraph (c) requires the identification of a relevant measure or activity, which the information at issue is “on”. Information may be “on” more than one measure or activity (Henney at paragraph 42). In identifying the relevant measure or activity, one may consider the wider context and is not strictly limited to the precise issue with which the information is concerned (ESB at paragraph 43). The list of examples of measures and activities given at paragraph (c) is not exhaustive, but it contains illustrative examples (Redmond at paragraph 55). The CJEU stated in Mecklenburg that the term ‘measure’ serves “merely to make it clear that the acts governed by the directive included all forms of administrative activity” (Mecklenburg at paragraph 20, emphasis added). 
 
20. Section 42 of the Planning and Development Act 2000 (as amended) (the PDA 2000) provides that a planning authority, such as the Council, shall grant an application for extension of duration of planning permission by an additional period not exceeding five years in certain circumstances. 
 
21. The letter at issue was submitted with the application form for the Extension of Duration Application, which sought a five-year extension to a planning permission, the development granted under which had not yet commenced.  The Council refused the Extension of Duration Application. 
 
22. I am satisfied that the Council’s decision on the Extension of Duration Application is a measure or activity within the meaning of paragraph (c).
 
Whether the measure or activity is affecting, likely to affect or designed to protect the environment
 
23. To meet the definition, the measure or activity must affect or be likely to affect the elements and factors referred to in paragraphs (a) and (b) (i.e. the environment) or designed to protect the environment (Redmond at paragraph 57). A measure or activity is “likely to affect” the elements and factors of the environment if there is a real and substantial possibility that it will affect the environment, whether directly or indirectly. While it is not necessary to establish the probability of a relevant environmental impact, something more than a remote or theoretical possibility is required (Redmond at paragraph 63). 
 
24. It is also important to note that an intervention that does not constitute or is not likely to lead to “development” – in the sense in which that term is generally understood in the context of planning and environmental law – may nonetheless constitute a measure or activity “affecting or likely to affect the environment” and that inaction or omission may affect the environment as much as positive development (Redmond, at paragraph 12).  Furthermore, the actual outcome of a measure or activity is irrelevant.  In this respect, I note the analysis of Hogan J in Minch at paragraph 40 of his judgment.
 
25. In my view, there is a real and substantial possibility that any decision made by a planning authority on an extension of duration application, whether it to be to grant or refuse such an application, will affect the environment.  On the one hand a decision to grant an extension of duration application results in extra time for an applicant to undertake the development that has been permitted pursuant to planning permission they wish to extend.  On the other hand, a decision to refuse means that the development to which the planning permission relates can no longer be undertaken.  As such, it is clear to me that there is a real and substantial possibility that either decision, regardless of any action taken or not taken by an applicant as a result of it, will affect the environment.  
 
26. As noted above, the Council refused the Extension of Duration Application.  The planning permission granted under the Planning Application has expired and the permitted development, which has not yet commenced, can no longer be undertaken.  In all the circumstances, I am satisfied that there is a real and substantial possibility that the Council’s decision will affect the environment.  
 
27. I find, therefore, that the Council’s decision on the Extension of Duration Application is a measure or activity likely to affect the environment.
 
Whether the information is on the measure or activity
 
28. Where the relevant measure or activity has the requisite environmental effect, one must consider whether the requested information is “on” that measure or activity within the meaning of article 3(1) of the AIE Regulations. Information is “on” a measure or activity if it is about, relates to or concerns the measure or activity in question (Henney at paragraphs 37-44, referred to in Redmond at paragraph 99, ESB at paragraphs 36-45, and RTÉ at paragraph 52). As “any information … on” a measure affecting or likely to affect the environment is prima facie environmental information, the information at issue does not, in itself, have to affect or be likely to affect the environment (Redmond at paragraphs 57 and 59). However, consideration of whether information is “on” the measure does require examination of the content of the information (ESB at paragraph 50).
 
29. It is my understanding that extension of duration applications can be made to the Council by way of completion of an application form, copies of which are available on its website.  As noted above, the Council informed my Office that the letter at issue contains supporting information in relation to question 17(A), “Commercial or Economic Considerations”, on the application form that was submitted for the Extension of Duration Application.  
 
30. In this case, the measure or activity identified is the Council’s decision on the Extension of Duration Application.  I note that the Council’s reasons for the refusal, as outlined in the decision notification letter, concerned the fact that a Natura Impact Statement screening exercise was not carried out before the permission under the Planning Application was granted and that the applicant had not demonstrated that the proposed development was consistent with the proper planning and development of the area having regard to the Flood Risk Management Guidelines (2009).
 
31. Having examined the letter at issue I acknowledge that it does not concern the reasons outlined by the Council for its refusal of the Extension of Duration Application.  However, given that it comprises supporting information in respect of a specific question on the application form submitted, I am satisfied that it did form part of the application considered by the Council in making its decision.  Accordingly, I find that the letter amounts to information “on” the Council’s decision on the Extension of Duration Application.
 
 

Conclusion

 
32. In conclusion, I find that the letter at issue is environmental information within the meaning of paragraph (c) of the definition in article 3(1) of the AIE Regulations. In light of this finding, it is not necessary for me to consider whether the letter also falls within other paragraphs of the definition.
 
 

Decision

 
33. Having carried out a review under article 12(5) of the AIE Regulations, I hereby annul the Council’s decision to refuse access to the supporting letter at issue on the basis that it is not “environmental information” within the meaning of the definition in article 3(1) of the AIE Regulations. I direct the Council to conduct a new decision-making process in respect of the letter in accordance with the provisions of the AIE Regulations.
 
 

Appeal to the High Court

 
34. A party to the appeal or any other person affected by this decision may appeal to the High Court on a point of law from the decision.  Such an appeal must be initiated not later than two months after notice of the decision was given to the person bringing the appeal.
 
 
 
 

Peter Tyndall
Commissioner for Environmental Information