Member Article

The High Court has delivered judgment in the case of Minch v The Commissioner of Environmental Information (CEI) (16 February 2016) concerning the scope of access to environmental information.

 

The Court followed the approach of the Supreme Court in NAMA v CEI [2015] IESC 51 that a teleological approach to interpretation of the Access to Information on the Environment (AIE) Regulations 2007-2014 is required, which considers the purpose of the Aarhus Convention and the implementing AIE Directive (2003/4/EC).  The Court held that the CEI failed to adopt a teleological approach and imposed an overly narrow test of remoteness when characterising the information requested by Mr Minch and the context in which it was created.

 

The decision shows a broad approach should be taken to questions of interpretation regarding the AIE Regulations.  Baker J. noted that the Aarhus Convention encourages widespread public participation in decisions affecting the environment and sustainable development "and that approach suggests a broad approach to the question of interpretation is correct".

 

Background 

This case concerned a statutory appeal from a decision of the CEI refusing access to a Report concerning an economic analysis of the options for potential State intervention in the roll out of next generation broadband, in the context of the National Broadband Plan (NBP). The CEI found that the purpose of the Report was to examine the cost implications for the State of deploying various types of next generation broadband infrastructure to areas underserved by the private sector.  The CEI upheld the decision by the Department of Communications, Energy, and Natural Resources, that the Report did not qualify as "environmental information" under Articles 3(1)(b), (c) or (e) of the AIE Regulations. In particular, he did not consider that the NBP constituted a "measure" such that the Report could qualify under Article 3(1)(e) as "environmental information".  He held that NBP was merely a high level strategy setting targets for the delivery of high speed broadband throughout Ireland, and the link between the NBP and any effect on the environment was simply too remote. 

 

Mr Minch appealed against the CEI's decision, asking the High Court make a declaration that the Report contained "environmental information"within the meaning of the AIE Regulations.

 

High Court Decision 

 

Baker J. at the High Court held that the CEI had failed to adopt the purposive approach that is required for the interpretation and implementation of the AIE Regulations, and that the test of remoteness adopted by the CEI in assessing the NBP was overly narrow and did not correctly identify the range of information that might affect the elements of the environment.  Baker J. concluded that "any information that might have informed or be capable of informing the thinking of the Government making decisions with regard to the NBP including economic models or cost-benefit analyses, is capable of being environmental information, and is so capable notwithstanding that such models do not contain information on emissions or impact on the environment as such."

 

Therefore, the Court held the CEI had fallen into error in finding that only documentation which would show how the policy was to be worked out or implemented could come within the AIE Regulations.  Baker J. noted that she did not have jurisdiction to direct production of the Report, finding that the court's jurisdiction was limited to determining a point of law arising from the CEI's decision.  She set aside the determination of the CEI, and remitted the matter to him for further determination.  

 

Comment

 

This decision demonstrates that the AIE Regulations must be interpreted in light of the purpose of the Aarhus Convention and the AIE Directive which implements it.  It shows that a broad approach must be taken in regard to questions of the interpretation concerning the AIE Regulations, as the Convention recognises that public participation relating to the environment is to be achieved by making available to members of the public the information necessary to fully participate.

 

For further information please contact Davinia Brennan at [email protected] or any member of the Environmental & Planning Law Team.