Decision
Mr D and the Department of Housing, Planning and Local Government
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-93480-F7W4P3
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-93480-F7W4P3
Published on
Whether the Department was justified in refusing access to information relating to the Urban Regeneration and Development Fund (URDF) and the decision making behind investing just over €6 million into the former Brewery site in Kilkenny (referred to as the Abbey Quarter Project) on the basis that the information was not “environmental information” within the meaning of the definition in article 3(1) of the AIE Regulations.
1. On 2 August 2018, the appellant made a request under the AIE Regulations for access to the following:
1. a copy of records in relation to the urban regeneration fund and the decision making behind investing just over €6 million into the former brewery site in Kilkenny City announced by the Minister for Housing, Planning and Local Government the previous day;
2. a copy of both internal and external correspondence regarding same;
3. a copy of any environmental reports and /or audits which may have been sought by or on behalf of the Department in order to inform the Department prior to making this investment decision and any related correspondence;
4. a copy of environmental reports, audits, memo’s which the Department may have had reference to prior to making this decision;
5. records concerning environmental liabilities which were considered by the Department prior to making this decision and related correspondence; and
6. correspondence, memos, audits between the Department and Kilkenny County Council (the Council) about historic pollution on this site and the brownfield nature of this site.
The appellant’s request also outlined his belief that the information requested was environmental information.
2. On 30 August 2019, the Department refused access to the information sought on the basis that it did not hold “any relevant records as defined by the AIE Regulations”. The appellant requested an internal review of the Department’s decision on 2 September 2019. In his internal review request he stated that the Department had “failed to consider how such records documenting plans, project or measures may have an affect ‘on’ the environment”.
3. On 1 October 2019, the Department made an internal review decision affirming its original decision on the basis that the information requested was not environmental information within the meaning of the definition in article 3(1) of the AIE Regulations. The Schedule of Records provided to the appellant identified one file titled “URDF File Number Reference 137” which contained records relating to the Council’s application for Urban Rural Development Fund (URDF) for the Abbey Quarter Project. The internal review decision stated that all of the requested information related to the Council’s application under the URDF for financial support for the Abbey Quarter Project. It explained that file URDF File Number Reference 137 contained the Council’s original bid submission (its application), the initial review and finalised assessments, and emails between the Council and Department. It further explained that the file did not contain any environmental reports, audits, memos or any information on the state of the environment, factors likely to affect those elements, reports on the implementation of environmental legislation, economic analyses or records related to the state of human health and safety. It rejected that the URDF was a measure or activity affecting or likely to affect the environment.
4. The appellant made this appeal against the Department’s refusal of access to the information requested to my Office on 4 October 2019.
5. 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 Department. I have also examined the contents of the records at issue. In addition, I have had regard to:
6. I have had regard to the judgments in Minch v Commissioner for Environmental Information [2017] IECA 223 (Minch), Redmond & Anor -v- Commissioner for Environmental Information & Anor IECA [2020] 83 (Redmond) and Electricity Supply Board v Commissioner for Environmental Information & Lar Mc Kenna [2020] IEHC 190 (ESB). I have also had regard to the judgment of the Court of Appeal of England and Wales that is referred to in the latter two Irish judgments, Department for Business, Energy and Industrial Strategy v Information Commissioner [2017] EWCA Civ 844 (Henney).
7. 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.
8. The Department refused the appellant's request for information on the basis that the information was not environmental information. My powers as Commissioner for Environmental Information apply only in respect of environmental information held by or for a public authority. Accordingly, the question before me is whether the information at issue falls within the definition of "environmental information" in article 3(1) of the AIE Regulations.
9. The Department explains that all the records it holds relating to the Council’s application for URDF funding for the Abbey Quarter Project are contained in URDF File Number Reference 137. The Department provided a copy of URDF File Number Reference 137 to my Office for the purposes of my review.
10. I have examined the records in URDF File Number Reference 137. The file contains 51 records relating to the Council’s bid submission and records relating more generally to the decision-making process for applications under Call 1 for URDF funding. Two of the records are duplicates (records 10 and 13). Accordingly, the question before me in this review is whether the Department was justified in refusing access to the remaining 49 records on the basis that the records are not, or do not contain, environmental information.
11. The request in this case sought information relating to the Council’s application for funding from the URDF for the Abbey Quarter Project, and the decision-making process allocating funding to the Council for that Project.
12. The Abbey Quarter Project is a development project to regenerate the Abbey Quarter in Kilkenny City. The Abbey Quarter is an area that comprises a significant brownfield site (the site of a former brewery site referenced in the appellant’s request) which the Council agreed to purchase in 2012 and adjacent lands (combined total of approximately 20 acres). The elements of the Abbey Quarter Project are set out in a “Masterplan” that was adopted by the Council in 2015, pursuant to the Kilkenny City and Environs Development Plan 2014-2020. The Masterplan includes a number of proposed developments for office, residential, education, leisure, retail and civic use. The Masterplan was subject to a number of public consultations including one on a draft Masterplan in November 2013 and one in June/July 2015 where a draft Masterplan was put on public display alongside a draft Strategic Environmental Assessment (SEA), Appropriate Assessment (AA) and Archaeological Strategy. The Council entered into a 50:50 partnership with the National Treasury Management Agency (NTMA) through the Ireland Strategic Investment Fund (ISIF) and established Kilkenny Abbey Quarter Development Limited (KAQDL) to develop the building plots for the Abbey Quarter Project. The Council is responsible for the public realm aspect of the Abbey Quarter Project and KAQDL is responsibility for the commercial development of the plots.
13. The URDF was one of four funds established under the National Development Plan 2018- 2027 (NDP) to provide investment to implement the National Planning Framework (NFP). The URDF is a €2 billion fund that will run for the ten-year duration of the NDP under the responsibility of the Department. It provides for the allocation of resources to support, amongst other objectives, urban regeneration. It is, as the Department explains, “a State funding support mechanism” in its submission to my Office, or, as the Department’s circular for proposals under Call 1 describes it, a competitive, bid-based exchequer grant programme.
14. The URDF sets out the criteria for applications for funding including that the bids must be a catalyst for development that would not otherwise occur, a list of the types of proposals relating to urban regeneration and areas that are eligible for the fund, and how applications can be made and assessed. The assessment criteria for proposals for the URDF include the compatibility of the proposals with NPF and NDP objectives. Thus, the URDF is an administrative measure for implementing a national policy under Project Ireland 2040, the NPF and the NDP to regenerate certain urban areas by providing exchequer funding to specific proposals that are compatible with, or contribute to, that national policy. Eighty-eight proposals, including the proposal for the Abbey Quarter Project, out of 189 applications were approved for funding from the URDF.
15. The appellant queries whether the Department holds further information relating to Parts 3 to 6 of the request. He states that his request was not confined to URDF File Reference Number 137 and that he sought all documents relevant to the Abbey Quarter Project URDF application. He also states that he would expect the Department to have records relating to a risk audit, reports, memos, environmental liabilities, etc. concerning the Abbey Quarter Project.
The Department’s Position
16. The Department states that the 51 records comprising URDF File Number Reference 137 relate to Parts 1 and 2 of the request. It submits that it does not hold records relating to Parts 3 to 6 (inclusive) of the request. In relation to Parts 3 to 6 of the request, it explains that:
3. No such environmental reports and/or audits were sought by the Department in respect of making a decision on URDF support on this project. It explains that the advancement of URDF supported projects is a matter for the applicant – in this case Kilkenny County Council – and that legal requirements, consultation processes, planning or other consents (including environmental consents or consultations) necessary for the advancement of URDF supported projects are a matter for the applicant. Therefore, there are no such records on URDF File Number 137.
4. The Department did not make reference to any environmental reports or audits in making its decision on URDF support. By way of explanation, it re-iterates that legal requirements, consultation processes, planning or other consents necessary for the advancement of URDF supported projects are a matter for the applicant. Therefore, there are no such records on URDF File Reference Number 137.
5. No records concerning environmental liabilities appear on the Abbey Quarter Project URDF File Reference Number 137.
6. No records concerning historical pollution on the Abbey Quarter site are present on the Abbey Quarter Project URDF File Reference Number 137. It states that while 8 of the 51 documents mention the fact that the Abbey Quarter site is a brown field site, there are no documents present on the file that provide any further detail about the brownfield nature of the site.
17. As I have set out directly above at paragraph 16, the Department’s position is that all records held by or for it relating to the Abbey Quarter Project URDF application are held in URDF File Reference Number 137. I have also set out its explanation as to why it did not hold records relating to Parts 3 to 6 of the request at the time the request was made. The Department further explains that the Abbey Quarter Project is an on-going project and that further information will have been received, and sent, by it since the request was made. Such information does not fall within the scope of this review.
18. I am of the view that the Department’s account as to why it did not hold information relating to Parts 3 and 6 of the request is reasonable. In particular, I note that the legal requirements, consultation processes, planning or other consents necessary for the advancement of URDF projects are a matter for the applicant, in this case the Council. The Department further explains that it has never sought or received any records of the type sought at Parts 3 to 6 of the request. I have not seen anything during the course of my review to indicate that further information relating to the request is held by or for the Department. Having carefully considered the matter, I accept that the Department does not hold further information relating to the request. Accordingly, I find that article 7(5) of the AIE Regulations applies and that no further environmental information within the scope of the request is held by the Department.
19. 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 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) ".
20. 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.
21. According to national and EU case law on this matter, while the concept of “environmental information” as defined in the AIE Directive is broad (Case C-321/96 Mecklenburg at paragraph 19), there must be more than a minimal connection with the environment (Case 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 at paragraph 58; see also ESB at paragraph 43). However, a mere connection or link to the environment is not sufficient to bring the information within the definition of environmental information. Otherwise, the scope of the definition would be unlimited in a manner that would be contrary to the judgments of the Court of Appeal and CJEU.
22. The right of access to environmental information that exists includes access to information “on” one or more of the six categories at (a) to (f) of the definition. In this case, the question is whether the information at issue is “on” a “measure” or “activity” which is “affecting or likely to affect the elements and factors referred to in paragraphs (a) and (b)” (i.e. the environment) or “designed to protect those elements” (i.e. the environment). Therefore, article 3(1)(c) requires the identification of a relevant measure or activity to which the information at issue is “on”. Information may be “on” one measure or activity, more than one measure or activity or both a measure or activity which forms part of a broader measure (Henney at paragraph 42). In identifying the relevant measure or activity that the information is “on” one may consider the wider context and is not strictly limited to the precise issue with which the information is concerned, and it may be relevant to consider the purpose of the information (ESB at paragraph 43).
23. Administrative measures are included in article 3(1)(c), and the list of examples of measures and activities given in that paragraph are illustrative examples (Redmond at paragraph 55). The Aarhus Guide describes the terms "activities or measures", as referring to "decisions on specific activities, such as permits, licences, permissions that have or may have an effect on the environment". The Court of Appeal in Minch held that the reference to “plans” and “policies” in article 3(1)(c) is significant, and that there must be a plan or something in the nature of a plan which, either intermediately or mediately, affects or is likely to affect the environment (paragraph 39). Hogan J. went on to explain that this requirement for there to be a plan or something in the nature of a plan curtails a potentially open-ended or indefinite right of access to documents (paragraph 41). If this were not the case, then virtually any information held by or for a public authority referring, either directly or indirectly, to environmental matters would be environmental information. This would run contrary to the CJEU’s judgment in Glawischnig (paragraph 41; see also Glawischnig at paragraph 25).
24. The essential question is whether the measure or activity is one affecting or likely to affect 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). As “any information … on” a measure affecting or likely to affect the environment is prima facie environmental information (Redmond at paragraph 57), the information at issue does not, in itself, have to affect or be likely to affect the environment (Redmond at paragraphs 57 and 59).
25. Where the measure or activity which the information is about has the requisite environmental effect, one must consider whether the information is “on” that measure or activity within the meaning of that word as it is used in article 3(1) of the definition. Information that is integral to the relevant measure or activity is information “on” it (ESB at paragraphs 38, 40 and 41). While information that is too remote from the relevant measure or activity does not qualify as environmental information (ESB at paragraph 43). The Court of Appeal in Redmond noted that the Court of Appeal of England and Wales in Henney suggests that, in determining whether information is “on” the relevant measure or activity, it may be relevant to consider the purpose of the information such as why it was produced, how important it is to that purpose, how it is to be used, and whether access to it advances the purposes of the Aarhus Convention and AIE Directive (paragraph 99; see also ESB at paragraph 42). Information that does not advance the purposes of the Aarhus Convention and AIE Directive may not be “on” the relevant measure or activity (Redmond at paragraph 99).
26. The Department maintains that the information contained in URDF File Number Reference 137 is not environmental information. In particular, it rejects that the URDF or the Abbey Quarter Project is a “measure” within the meaning of article 3(1)(c) of the definition of environmental information.
27. In support of its position that the URDF is not a measure, the Department explains that the URDF is a funding support mechanism for applicant led projects, the development, planning and advancement of which is the responsibility of the applicant. It states that the URDF “operates at a remove from the actual planning and implementation of the projects it supports and that it does not, in itself, materially impact on the environment”. It also states that the URDF is only one of a range of funding options open to applicants for the funding of their projects and that it never accounts for 100% of a project’s funding. In the case of the Abbey Quarter Project, it states that the URDF funding is only a small part of the overall funding for the project. It contends that a decision on the URDF will not materially impact on any component of the environment. By way of example it states that, if a decision was made not to grant URDF funding to the project, there may be alternative funding sources. It contends that, regardless of whether URDF funding is granted, the advancement of the project including any statutory planning consents is the responsibility of the applicant, in this the Council. It notes that under section 30 of the Planning and Development Act 2000 (as amended) (the 2000 Act) the Minister is generally precluded from involvement in planning matters.
28. In addition, the Department states that the URDF application or assessment process does not address particular matters that relate to the state of the environment and that this is reflected by the fact that the marking scheme used in assessing URDF applications does not include environmental details. It contends that a decision on URDF support will have no material impact on the environment.
29. The Department also submits that the information in the relevant URDF file is not directly related to measures or activities affecting or likely to affect the element and factors of the environment. It accepts that the AIE Directive be given a broad meaning, however, it states that it was not intended “to give a general and unlimited right of access to all information held by public authorities which has a connection, however minimal, with one of the environmental factors mentioned …. To be covered by the right of access it establishes, such information must fall within one or more of the … categories set out in that provision.” (Glawischnig at paragraph 33). It contends that the connection in this case between the documentation held on the Abbey Quarter Project URDF File Number Reference 137 and the impact on the environment is very minimal.
30. The Department notes that the purpose of access environmental information in the Aarhus Convention, AIE Directive and AIE Regulations is to facilitate an appropriate level of public participation and consultation in relation to matters affecting the environment. It states that the Council, the applicant leading the Abbey Quarter Project, has undertaken extensive public consultation in development of the project as a whole. It states the reports forming part of the Council’s public consultations did not form part of URDF File Number Reference 137 held by the Department.
31. The appellant submits that the information requested is environmental information due to the nature of the plans, projects and measures, as they will have an effect on the environment. He contends that the funding from the URDF resulted in works for the Abbey Quarter Project being carried out which would not have progressed at the time they did, had it not been for the URDF funding. While he notes that the URDF funding is one of a range of funding options open to the applicant, he asserts that the fact that funding for the Project could have come from other sources is moot because it remains the case that the Project received URDF funding for the works.
32. In addition, the appellant submits that the URDF is directly linked, and has an impact on, the environment. He states that the Abbey Quarter Project involves matters such as demolition, construction, etc. that were progressed precisely because of the decision on the URDF and the URDF funding. He notes that the URDF supports more compact and sustainable development through the regeneration and rejuvenation of urban areas, in line with the objectives in national government policy including Project Ireland 2040, the NPF and the NDP. He states that this “funding mechanism” is a measure that is key to delivering a project within the overall NDP.
33. Furthermore, he submits that the URDF “funding mechanism” is a measure that progressed a plan. The plan being the development of the brownfield site, which is central to the development of the Abbey Quarter Project. He notes that the Abbey Quarter is in the middle of rich archaeological site that borders with adjacent archaeological National Monuments and a Special Area of Conservation River i.e. the River Nore.
34. As I have set out paragraphs 8 and 10, the question before me is whether the information comprising the 49 records relevant to the request is environmental information within the meaning of article 3(1) of the Regulations, in particular article 3(1)(c). In carrying out my review, I have examined the content of the records at issue. It should be noted that, while I am required by article 12(5)(b) of the AIE Regulations to specify reasons for my decision, I must also be careful not to disclose withheld information in my decisions. This means that the detail that I can give about the content of the record(s), and the extent to which I can describe certain matters, in my analysis is limited.
35. The records at issue consist of records relating to the Council’s application for URDF funding for the Abbey Quarter Project (records 1 to 12, 14 to 21, 31 to 36, 40 to 51). They also include records relating to the decision-making process to allocate funding for specific urban regeneration projects that were the subject of the bid submissions for funding from the URDF under Call 1 for the URDF, including the Council’s bid submission for the Abbey Quarter Project (records 22 to 30 and 37 to 39).
36. I will now apply the guidance from the case law on the definition of environmental information, which I have set out at paragraphs 21 to 25 above, to the facts of this case. As the vast majority of the information at issue relates to the URDF application for the Abbey Quarter Project, I will first consider whether that Project is a measure or activity affecting or likely to affect the environment or designed to protect the environment.
37. I consider that the Abbey Quarter Project (the Masterplan for the development of the Abbey Quarter), being a plan for the regeneration and redevelopment of the Abbey Quarter in Kilkenny City, is a measure within the meaning of that term in article 3(1)(c). I have explained above, at paragraph 12, that the Council adopted a “Masterplan” in 2015 to regenerate and redevelopment the Abbey Quarter. The Abbey Quarter Project is comprised of a number of commercial, public realm, community and cultural infrastructure projects. The Council is responsible for the public realm aspect of the Abbey Quarter Project, which includes the development of public spaces. This involves the construction of a new skate park, the development of a Riverside walkway and park consisting of hard and soft landscaping, the removal of a boundary wall and railings at the former brewery site, the development of a new street and a coach and car park. I note that the Masterplan for the Abbey Quarter Project was subject to an SEA and AA and an Archaeological Survey.
38. In my view, the Abbey Quarter Project, being a plan involving works for the development of a number of infrastructure projects, is a measure, which affects and is likely to affect the elements and factors of the environment such as land, landscape, water, discharges, emissions and energy. I also note from the records before me that the planning permission required under Part VIII of the 2000 Act has been granted for a majority of the Council’s public realm projects and it is in progress for the remaining projects that require it. I am satisfied that the Abbey Quarter Project would, through the infrastructure projects that comprise that plan, have significant environmental effects none of which can be dismissed as remote or incidental. I am, therefore, satisfied that there is a sufficient connection between the Abbey Quarter Project and effects on the environment. I also note from the records before me, including record 11 which my Investigator located on the Council’s website, that the development of all Phase 1 public realm projects for the Abbey Quarter Project were expected to be completed by the end of 2020. In my view, there is a real and substantial possibility that the Abbey Quarter Project will directly affect the environment. Accordingly, I am satisfied that the Abbey Quarter Project is a measure affecting or likely to affect the elements and factors of the environment for the purposes of article 3(1)(c).
39. I will now consider whether the records relating to the Abbey Quarter Project are information “on” that measure. The records relating to the Abbey Quarter Project (records 1 to 12, 14 to 21, 31 to 36, 40 to 51) include the Council’s bid submission to the Department, and accompanying documents as required by the application process for the URDF, for funding from the URDF for Phase 1 public realms projects for the Abbey Quarter Project. The accompanying documents include verification letters from partners confirming their support and commitment to the project and from the sources of matched funding. The records also include a limited amount of correspondence between the Council and Department in relation to the Council’s URDF application, documents relating to the Department’s assessment of that application, documents relating to a visit by the then Taoiseach and the then Minister for Housing, Planning and Local Government to the Abbey Quarter in August 2019.
40. Having regard to the content of the records at issue, I consider that the records relating to the Council’s bid submission for funding from the URDF are directly related to the Abbey Quarter Project. The information in the relevant records includes extensive details of the plans to develop the Abbey Quarter and the financing arrangements for the proposed developments. In addition, the contents of the records show that the timely completion of the Phase 1 public realm aspect of the Abbey Quarter Project is critical to the success of the overall Project. It also shows that the URDF funding is a key element of the Council’s delivery of the Phase 1 public realm aspect of the Abbey Quarter Project in a timely manner. I am of the view that bids for URDF funding must be a catalyst for a development that might not otherwise occur. In my view, the URDF funding is an integral part of the Abbey Quarter Project. Thus, I consider that the records relating to the Council’s bid submission for funding from the URDF for the Abbey Quarter Project are not at such a remove from that Project to render them remote. Moreover, I consider that access to the information would contribute to the public being informed about matters related to the plan, which has been subject to a number of public consultations, and environmental reports, since June 2012.
41. In the circumstances of this case, I am satisfied that records relating to the Council’s bid submission for funding from the URDF for the Abbey Quarter Project is “on” a measure affecting or likely to affect the elements and factors of the environment. I, therefore, find that records 1 to 12, 14 to 21, 31 to 36, 40 to 51 relating to the Council’s bid submission for funding from the URDF for the Abbey Quarter Project are environmental information within the meaning of article 3(1)(c) of the definition of environmental information definition.
42. As I have set out at paragraph 35 some of the records at issue relate to the overall decision-making process for applications under Call 1 for URDF funding. I have explained above, at paragraph 12, how the URDF is an administrative measure, for implementing a national policy under Project Ireland 2040, the NPF and the NDP to regenerate certain urban areas by providing exchequer funding to projects that are compatible with, or contribute to, that national policy. I consider that the URDF is a measure within the meaning of that term in article 3(1)(c).
43. In my view, the URDF is a measure affecting and likely to affect the elements and factors of the environment such as land, landscape, water, discharges, emissions and energy. The types of urban regeneration projects that are funded under the URDF include projects for: active land management; public amenity including planting, recreational facilities, etc.; certain infrastructural projects; and transition to a low carbon and climate resilient society. The URDF provides funding for projects to regenerate land, which includes some form of management of land or works to land. The regeneration of land is the clear and stated purpose for each project that applies to the URDF for funding including, as the records before me show, for the Abbey Quarter Project. The eligibility criteria for the URDF further show that the funding will be used for projects, such as the Abbey Quarter Project, that involve development requiring works affecting the elements and factors of the environment such as land, landscape, water, discharges, emissions and energy. It is my view that such developments would have significant environmental effects, none of which can be dismissed as remote or incidental. I am, therefore, satisfied that there is a sufficient connection between the URDF and environmental effects on the environment. As I note above at paragraph 40, bids for URDF funding must be a catalyst for development that would not otherwise occur. I also note that eighty-eight projects were allocated funding in Call 1 for the URDF. In my view, there is a real and substantial possibility that the URDF will indirectly affect the environment through the approved proposals that it funds. Accordingly, I am satisfied that the URDF is a measure affecting or likely to affect the elements and factors of the environment for the purposes of article 3(1)(c).
44. I will now consider whether the records relating to the decision making process for the URDF are information “on” the URDF. The records include a presentation on the Evaluation and Appraisal Process of applications under Call 1 for the URDF to a sub-group of the Management Board, summary reports by the Project Appraisal Board and the sub-group of the Management Board, submission to the Minister for approval in principle for proposals under Call 1, a list of successful applications and a Press Release and Frequently Asked Question guide.
45. Having regard to the content of the records at issue, I consider that the records relating to the decision-making process for bid submissions under Call 1 for URDF funding are directly related to the URDF. In essence, those records comprise the Department’s consideration of, and approval of, bid submissions under the URDF. This includes bid submissions that were allocated funding such as the Abbey Quarter Project. In my view, the records are an integral part of the URDF. The information in the relevant records include extensive details of the URDF and the evaluation and appraisal process for it. The records were considered by the different boards set up to review, and advise, on the URDF. In addition, I note that the summary reports contain conclusions and recommendations in relation to both the project the subjects of the applications under Call 1 and more generally for the administration of the URDF. I also note that two of the records are a submission to the Minister seeking certain approvals in relation to the URDF and nine of the remaining records were attachments to those two submissions. In my view, the relevant records are a key element of, and critical to, the overall success of the URDF. Thus, I consider that the records relating to the decision-making process for bid submissions under Call 1 for URDF funding are not too remote from the URDF and the Abbey Quarter Project. Moreover, I consider that access to the information would enable the public to be informed about, or to participate in, decision making on matters affecting the environment, such as the URDF and the national policies which it implements and the projects which were allocated funding.
46. In the circumstances of this case, I am satisfied that records relating to the decision-making process for bid submissions under Call 1 for URDF funding are “on” a measure affecting or likely to affect the elements and factors of the environment i.e. the URDF. I, therefore, find that records 22 to 30 and 37 to 39 relating to the URDF are environmental information within the meaning of article 3(1)(c) of the definition of environmental information definition.
47. Having carried out a review under article 12(5) of the AIE Regulations, I annul the Department of Housing, Planning and Local Government’s decision. In light of my decision I expect the Department to process the appellant’s request in accordance with the AIE Regulations.
48. 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