Decision
Mr W and Dublin Airport Authority plc
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-93473-B1N5L7
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-93473-B1N5L7
Published on
**1) Whether any information falling within the scope of the appellant’s request is held by or for daa; and
(2) Whether the information requested is environmental information.**
On 26 May 2019, the appellant requested from Dublin Airport Authority (daa) “all details in relation to costs budgeted for the Voluntary Purchase Scheme and Noise Insulation Scheme for the new North Runway”. In relation to the Noise Insulation Scheme, the appellant requested “all details of how the daa have tendered for contractors and how costs will be attributed on a per house basis. For example, has an amount been agreed upon with the contractor for every house or is it based on an individual survey of each house?”
On 31 May 2019, daa refused access to the information on the basis that the exceptions in articles 9(1)(c) and 9(2)(d) of the AIE Regulations applied.
On 10 June 2019, the appellant applied for an internal review of the decision.
On 23 July 2019, daa affirmed its decision on internal review.
The appellant brought this appeal to my Office on 20 August 2019.
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 by daa. I have also examined the contents of any documents provided to my Office. In addition, I have had regard to:
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 [external-link https://unece.org/fileadmin/DAM/env/pp/documents/cep43e.pdf | the "Aarhus Convention”);
The [external-link https://s3-eu-west-1.amazonaws.com/govieassets/266193/47cb3144-88b0-4bdc-abf3-a8796526f6c1.pdf | Aarhus Convention—An Implementation Guide (Second edition, June 2014) (the “Aarhus Guide”); and
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”).
What follows does not comment or make findings on each and every argument advanced but I have considered all materials submitted in the course of the investigation.
This appeal is now one of the oldest appeals in my Office awaiting a first instance decision, having been with my Office for more than two years. I sincerely regret the delay in reaching a decision on this appeal. In light of this delay, I gave careful consideration to the scope of my review. On balance I have concluded that the best way to achieve a fair, comprehensive and clear outcome in relation to the appellant’s request for information is for me to reach a conclusion solely on the issues of (a) whether any information falling within the scope of the request is held by or for daa, and (b) whether the information requested is environmental information. However, I acknowledge that this outcome is disappointing in the context of the overall delay in this case. I continue to be committed to improving the efficiency of my Office in order to achieve timely reviews in future.
In accordance with article 12(5) of the AIE Regulations, my role is to review the public authority’s internal review decision and to affirm, annul or vary it. Where appropriate in the circumstances of an appeal, I will require the public authority to make available environmental information to the appellant.
daa refused the request on the basis of the exceptions in articles 9(1)(c) and 9(2)(d) of the AIE Regulations. However, in submissions to my Office daa stated that, while it had considered 31 potentially relevant documents when coming to its decision, none of those documents actually fell within the scope of the appellant’s request. Accordingly, the first question before me is whether any information falling within the scope of the appellant’s request is held by or for daa.
daa also submitted that, even if it holds information falling within the scope of the request, none of the information requested by the appellant is environmental information. As such, the second question before me is whether the information requested is environmental information.
As set out above, I have carefully considered the scope of my review in this case, taking into account the delay in dealing with this appeal and the multiplicity of issues, including both threshold jurisdictional issues and the application of exceptions. I have concluded that, on balance, the best way to achieve a fair, comprehensive and clear outcome in this case is to confine this review to the two issues above.
In 2007, daa was granted planning permission, following an appeal to An Bord Pleanála, to build a new runway at Dublin Airport, known as the North Runway (see planning reference F04/1755 . The planning permission included conditions requiring mitigation measures to be put in place by daa. Three of the planning conditions are relevant to this appeal:
a. Condition 7 states:
“Prior to commencement of development, a scheme for the voluntary noise insulation of existing dwellings shall be submitted to and agreed in writing by the planning authority. The scheme shall include all dwellings predicted to fall within the contour of 63dB LAeq 16 hours within 12 months of the planned opening of the runway for use. The scheme shall
include for a review every two years of the dwellings eligible for insulation.
Reason: In the interest of residential amenity.”
b. Condition 8 states:
“The runway hereby permitted shall not be brought into use until noise insulation approved under conditions numbers 6 and 7 above has been installed in all cases where a voluntary offer has been accepted within the time limit of the scheme.
Reason: In the interest of the amenities of residences and schools in the area.”
c. Condition 9 states:
“Prior to commencement of development, a scheme for the voluntary purchase of dwellings shall be submitted to and agreed in writing by the planning authority. The scheme shall include all dwellings predicted to fall within the contour of 69 dB LAeq 16 hours within twelve months of the planned opening of the runway for use. Prior to the commencement of operation of the runway, an offer of purchase in accordance with the agreed scheme shall have been made to all dwellings coming within the scope of the scheme and such offer shall remain open for a period of 12 months from the commencement of use of the runway.
Reason: In the interest of residential amenity.”
daa’s plans for the North Runway were put on hold due to the economic downturn and subsequent fall in passenger numbers. However, in 2016, daa announced that it was progressing its plans to deliver the North Runway . In March 2017, daa was granted a five-year extension to its original planning permission. That year, it also launched mitigation measures for the local community in accordance with the above conditions of its planning permission, including a voluntary purchase scheme and a noise insulation scheme. In its 2017 Annual Report , daa’s chief executive described the schemes as follows (p.26):
“A voluntary purchase scheme offers the owners of 38 dwellings the option of selling their property to daa at a 30% premium to the market value excluding the impact of the runway being built. The scheme, which is not compulsory, will remain open for three years after North Runway begins operation to allow those property owners adequate time to determine their preferred option. We also introduced a comprehensive sound insulation scheme for affected houses and schools during the year and have contacted those eligible directly. Our contractors will carry out the work to ensure it is of the highest standards.”
Further information about all mitigation measures implemented by daa, including those schemes, is available on daa's website and in the planning documents associated with planning reference F04A/1755 . Both the voluntary purchase scheme and the noise insulation scheme were approved by the planning authority in December 2016. daa has also implemented an insulation programme additional to the one required by its planning permission, known as the Home Sound Insulation Programme (HSIP), which provides the same range of insulation measures for over 70 additional houses as the noise insulation scheme required by the planning permission.
Question 1: Does daa hold information falling within the scope of the request?
Understanding the scope of the appellant’s request
The appellant requested: (1) details in relation to costs budgeted for the Voluntary Purchase Scheme and Noise Insulation Scheme for the new North Runway; and (2) in relation to the Noise Insulation Scheme, details of how daa tendered for contractors and how costs will be attributed on a per house basis.
I have considered the terms of the request objectively and in light of the request as a whole, the ordinary language used and the context outlined above. Two points are relevant.
First, I accept that there is a distinction between the noise insulation scheme required by daa’s planning permission for the North Runway and the HSIP, which is an additional voluntary scheme covering additional houses. However, I consider that the appellant’s request may reasonably be understood as including both initiatives. Both initiatives are included in the same paragraph on daa’s webpage on mitigation measures. The distinction between the two initiatives, and the different names used to refer to them, would not necessarily be obvious to members of the public, who might reasonably refer to either or both of the insulation initiatives as a ‘noise insulation scheme’. As such, I interpret the appellant’s request as including both the noise insulation measures required by the daa’s planning permission for the North Runway and the voluntary additional noise insulation measures implemented by daa, both of which are described under ‘insulation of homes’ on daa’s webpage on mitigation measures. In the remainder of this decision, I refer to both schemes using the term “noise insulation scheme” or “NIS”.
Second, the planning conditions refer to a ‘scheme for the voluntary purchase of dwellings’, while daa’s 2017 launch referred to a ‘voluntary purchase scheme’ and daa’s website refers to a ‘Voluntary Dwelling Purchase Scheme’. Irrespective of the term used, it is clear to me that all three references mean the same thing, namely the scheme approved by the planning authority under condition 9 of the planning conditions, outlined above, and described on daa’s webpage on mitigation measures. I interpret the appellant’s request as referring to this scheme. In the remainder of this decision, I refer to the scheme as the “voluntary purchase scheme” or the “VPS”.
Taking these matters into account, the request may be broken into three separate categories of information:
1. Information about costs budgeted by daa for both the VPS and the NIS;
2. Information about the method by which daa tendered for contractors for the NIS; and
3. Information about how the costs of the NIS will be attributed on a per house basis.
Any information which falls outside those categories only falls within the scope of the request to the extent that it is necessary to understand the information in those categories, for example necessary contextual information.
Whether information falling within scope is held by or for daa
daa initially provided my Office with a schedule of 31 documents that it identified as being potentially relevant to the appellant’s request when daa conducted its search for information. daa submitted that none of the information in these documents actually falls within the scope of the appellant’s request. I have considered each of the documents in detail and I conclude as follows, with reference to the documents numbered by daa in the schedule provided to my Office:
a. Documents 1-8 and 10-31 do not contain any information falling within the scope of the appellant’s request; and
b. Document 9 contains a small amount of information falling within the scope of the appellant’s request. Document 9 is an email containing three attachments. The third attachment in turn attaches two documents, named “20170213 RNIS FINAL” and “20170505 DAP Home Sound Insulation Programme FINAL”. In the first document, the information in paragraphs 5.4.1 and 6.0 falls within the scope of the appellant’s request. In the second document, part 5 is entitled Frequently Asked Questions; the first question and answer on the final page of that document (p.12) fall within the scope of the appellant’s request.
In light of the very small amount of information identified by daa on internal review as falling within the scope of the request, my investigator sought further information from daa about the steps taken to search for information relevant to the request, along with information about daa’s records management practices insofar as they relate to the information in question.
daa responded that it holds commercially sensitive documents such as pre-tender estimate documentation, tender evaluation documentation, tender contracts, commercial contracts, pre and post tender budget records, housing budget and purchasing contracts. daa identified 124 additional documents in this category as potentially being relevant to the appellant’s request. daa confirmed that it did not consider these 124 documents as part of its internal review decision, as the documents were viewed as commercial documentation. I am satisfied that these 124 documents potentially contain information falling within scope of the appellant’s request. However, in the circumstances, I do not consider it appropriate for me to come to a conclusion about what specific information in these additional documents falls within the scope of the appellant’s request, when daa has not itself made any decision in this respect. I expect daa to make a decision as to what information in these additional documents falls within the scope of the appellant’s request, taking into account my conclusions in paragraphs 16 to 21 above.
I have considered the adequacy of the steps taken to search for information additional to these identified documents. In summary, daa submitted that its project coordinator in relation to the North Runway project conducted a manual review of relevant files, all of which are created and held within daa’s Sharepoint site, e-tenders website and shared server. If any information had been missing from those sites it would have been noted by the relevant teams, so daa does not believe that any relevant records were misfiled or misplaced. Having considered the details of the searches and the explanations given by daa, and subject to my conclusions above, I am satisfied that daa has now taken adequate steps to identify and locate all relevant environmental information held by it.
Question 2: Is the information requested environmental information?
The second question before me is whether the information at issue falls within the definition of environmental information in article 3(1) of the AIE Regulations. For the reasons given below, I find that the information requested by the appellant is environmental information, within the meaning of paragraph (c) of the definition.
The appellant submits that the information requested is environmental information within the meaning of paragraphs (c) and (e) of the definition. In summary, the appellant submits that:
a. The North Runway will introduce new flight paths over Fingal and North Dublin and is forecast to affect thousands of people. In particular, by 2025 it is anticipated that over 511,000 people will be contained within the 45dB Lden day-time contour and 268,000 people within the 40dB Lnight contour - see table 13C-51 and table 13C-52 - which have been identified by a 2018 WHO report as contours which are associated with adverse health effects (see chapter 3.3);
b. Both schemes are intended to mitigate the effect of noise above identified levels on populations living the vicinity of the North Runway, on the basis that such levels are deemed detrimental to human health. Both schemes are conditions of planning which, if not implemented fairly and correctly, could lead to detrimental health outcomes;
c. Although the information requested is not information directly about the North Runway, under the planning conditions the runway cannot be brought into use until insulation has been installed, meaning that the noise insulation scheme is pivotal to the construction and operation of the North Runway;
d. The information requested is also information on an economic analysis of measures and schemes which affect the North Runway, which in turn is likely to affect the environment;
e. Access to details about the financial costs of the schemes would advance the purposes of the Aarhus Convention and the AIE Directive by informing the public about the costs associated with insulating and purchasing homes for the operation of the North Runway, including the quality of products and workmanship and methods of installation of insulation. Environmental decision-making in relation to the North Runway is ongoing, so the provision of information about previous decision-making in relation to these schemes would facilitate effective public engagement in ongoing decision-making.
daa submits that the information requested is not environmental information. In summary, daa submits:
a. In relation to the VPS and the NIS as measures or activities, neither the VPS nor the NIS affects, is likely to affect or is designed to protect the environment. The VPS provides for the purchase of houses meeting certain criteria and the purchase of a house cannot affect the environment directly or indirectly. The NIS provides for the installation of insulating material in houses meeting certain criteria and the installation of insulation in a house cannot affect the environment, directly or indirectly. In any event, the information requested is not information ‘on’ the VPS or the NIS because it does not further the purpose of the Aarhus Convention or the AIE Directive, in that it does not serve to increase public awareness of or facilitate public participation in decision-making in respect of environmental matters.
b. The construction and operation of the North Runway is a measure or activity and it affects or is likely to affect the environment, but financial information regarding individual house purchases and insulation works is not information ‘on’ the construction and operation of the North Runway. Financial information about the costs of the VPS and the NIS is not useful for the purpose of participation in environmental decision-making. The VPS and NIS are separate schemes that are not an integral part of the construction and operation of the North Runway; they involve properties outside of the airport, not in daa’s ownership for use as part of the airport. As the VPS and the NIS do not have a direct environmental impact, the financial information on those schemes is too remote from the measure having an environmental impact (the North Runway) to be information ‘on’ it. Financial information regarding the VPS and the NIS is merely an incidental aspect of the construction and operation of the North Runway.
Approach to the definition of environmental information
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);”.
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: C-321/96 Wilhelm Mecklenburg v Kreis Pinneberg - Der Landrat (“Mecklenburg”), at paragraph 19), there must be more than a minimal connection with the environment: C-316/01 Glawischnig v Bundesminister für Sicherieit und Generationen, at paragraph 25). Information does not have to be intrinsically environmental to fall within the scope of the definition (Redmond & Another v Commissioner for Environmental Information & Another [2020] IECA 83 (“Redmond”), at paragraph 58; see also Electricity Supply Board v Commissioner for Environmental Information & Lar Mc Kenna [2020] IEHC 190 (“ESB”) at paragraph 43).
I consider that the most relevant paragraph of the definition in this case is paragraph (c).
Identification of a measure or activity
Paragraph (c) requires the identification of a relevant measure or activity, which the information at issue is “on”. An expansive approach must be taken to applying both of those terms (RTÉ, paragraphs 17-19; Mecklenburg, paragraph 20). I note that the list of examples of measures and activities given at paragraph (c) is not exhaustive, but it contains illustrative examples (Redmond at paragraph 55).
On the face of the request, the appellant seeks information about the VPS and the NIS, meaning that I could focus on whether these matters are measures or activities within the meaning of paragraph (c). However, I note that information may be “on” more than one measure or activity and that, 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 (Department for Business, Energy and Industrial Strategy v Information Commissioner [2017] EWCA Civ 844 [1] (“Henney”) at paragraphs 42-43).
In light of the context described at paragraphs 13-15 above, both the VPS and the NIS may be described as mitigation measures for the local community in relation to the environmental (specifically, noise) impact of the construction and operation of the North Runway. The VPS is designed to compensate for noise impact by enabling nearby residents to sell their property and move away from the noise, while the NIS is intended to minimise the extent to which the noise is heard by nearby residents when they are indoors. In other words, both schemes are intended to minimise the extent to which the environmental impact of the North Runway interferes with nearby residents’ enjoyment of their property. Accordingly, while the requested information is not specifically concerned with the construction and operation of the North Runway itself, that matter is clearly part of the wider context. While I acknowledge that it may also be a measure, I am satisfied that, as a matter of logic, the construction and operation of the North Runway is an activity within the meaning of paragraph (c).
Whether the activity affects, is likely to affect or is designed to protect the environment
To meet the definition, the 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). An 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).
I am satisfied that the construction and operation of the North Runway is likely to affect the environment. In my view, there is a real and substantial possibility that both the construction and the operation of an airport runway in the nature of that proposed by daa will directly affect the environment, through its impact on the air, land and landscape and through the discharge of noise and CO2 emissions during both construction and operation. I also note that the “construction … of airports with a basic runway length of 2100m or more” is included in annex 1 to the Aarhus Convention as one of the decisions on which public participation is required under Article 6 of that Convention. This indicates the view of the parties to that Convention that the construction of airport runways has a potentially significant effect on the environment (see pp.131 and 239-240 of the Aarhus Guide).
Whether the information is information ‘on’ the activity
Where an activity has the requisite environmental effect, one must consider whether the requested information is “on” that activity within the meaning of article 3(1) of the AIE Regulations. I note that, as “any information … on” an activity 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).
Information is “on” an activity if it is about, relates to or concerns the activity in question. It is not sufficient for information to be merely connected to the activity, but the information need not be specifically, directly or immediately about the activity. It is permissible to consider the wider context in determining whether information is “on” an activity, which may not be apparent on the face of the information itself (Henney, paragraphs 37-44, referred to in Redmond at 99, ESB at 36-45 and RTÉ at paragraph 52). Information that is integral to the relevant activity is information “on” it (ESB at paragraphs 38, 40 and 41), while information that is too remote from the relevant activity does not qualify as environmental information (ESB at paragraph 43).
The appellant requested information about costs in relation to the VPS and NIS and about the procurement process for the NIS. As set out above, planning permission for the North Runway is expressly subject to mitigation measures being implemented in relation to voluntary purchase and noise insulation. Conditions 8 and 9 made it clear that, without the implementation of the identified mitigation measures, the operation of the North Runway would not be permitted to commence. As a result, it is my view that the mitigation measures required by the planning permission are integral to the achievement of the construction and operation of the North Runway and not an incidental aspect of it. In addition, while the HSIP is a voluntary scheme not required by the planning permission, it is my view that its implementation is an important aspect of obtaining community buy-in to the North Runway project, so it is also integral in practice to the achievement of the construction and operation of the North Runway. The cost of the VPS and NIS to daa is therefore part of the cost of the broader North Runway project and any procurement process in respect of those schemes is part of the procurement processes under the North Runway project. Accordingly, I consider that the information requested is information ‘on’ the construction and operation of the North Runway.
I note that information may not be information ‘on’ an activity if it is not consistent with or does not advance the purpose of the Aarhus Convention and the AIE Directive (ESB at paragraph 44 and Henney at paragraph 47). In this case, daa submits that financial information about the costs of the VPS and the NIS is not useful for the purpose of participation in environmental decision-making. However, I accept the appellant’s submission that access to the information requested would advance the purposes of the Aarhus Convention and the AIE Directive. The environmental decision-making process, both by daa and by the planning authority, is ongoing in relation to the construction and operation of the North Runway. For example, in December 2020 daa applied to amend two of the planning conditions in relation to its operation and that application includes a proposal to introduce a noise insulation grant scheme for those most affected by daa’s proposed amendments . In that light, I consider that access to information about previous decision-making in relation to these schemes, including in relation to costs and procurement processes, would facilitate a greater awareness of environmental matters, a free exchange of views and more effective participation by the public in environmental decision-making, consistent with recital 1 to the AIE Directive.
For all of these reasons, I am satisfied that the information requested by the appellant is information ‘on’ the construction and operation of the North Runway. In light of this conclusion, it is not necessary for me to consider whether the information also falls within paragraph (e) of the definition.
Having carried out a review under article 12(5) of the AIE Regulations, I find that:
a. daa holds information falling within the scope of the appellant’s request, as set out in paragraphs 22-25 above; and
b. the information requested is environmental information.
Accordingly, I annul daa’s decision. I expect daa to issue the appellant with a fresh decision on the request, taking into account my conclusions in paragraphs 16-25 above.
I note daa’s position that the exceptions in articles 8(a)(i), 8(a)(iv) and 9(1)(c) of the AIE Regulations would apply to the information requested. If daa decides to refuse access to the information on these or any other grounds, I would remind daa that the requirements of the AIE Regulations must be substantively and procedurally adhered to. This includes carrying out the balancing exercise required by article 10(3) and (4) of the AIE Regulations (see Right to Know CLG v An Taoiseach (No. 2) [2018] IEHC 372, paragraphs 67-71). It also includes identifying whether information which may be withheld may be separated from information which may not, in accordance with article 10(5) of the AIE Regulations.
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
________________________________________
[1] This judgment of the England and Wales Court of Appeal was referred to in Redmond, ESB and RTÉ.