Decision
Dr Fred Logue and Leitrim County Council
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-128559-C6Y7H0
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-128559-C6Y7H0
Published on
Whether or not Leitrim County Council dealt with the request in accordance with the AIE Regulations
7 June 2024
1. On 20 July, the appellant filed a request for environmental information with Leitrim County Council
• A list of all the currently approved local authority own developments in your functional area that have yet to be commenced and in each case the date of approval; and
• A list of all the currently approved local authority own developments in your functional area that have commenced and yet to be completed and in each case the date of approval and the date of commencement.
2. On 19 August 2022, the Council provided a response to the appellant purporting to grant access to all information sought. The decision stated: “I attached two spreadsheets with lists of Leitrim County Council projects subject to Part 8 and An Bord Pleanala approvals. The spreadsheets indicate whether commenced or otherwise. I also include an Email from our Planning Department by way of explanation of the list that they prepared and the rational for selecting only Part 8’s granted in the last 10 years.” The information provided to the appellant related to developments from 2012 onwards. The planning department advised that “It is the view of the Planning Authority that although there is no time limit in place in the Planning and Development Act 2000, as amended, for Local Authority own developments in a manner similar to a section 34 planning permission (5-year duration), that a Local Authority would be opening itself to potential legal challenge in relying on a Part 8 which was approved beyond 10 years. No provisions of the AIE Regulations were relied upon in this decision to justify limiting the response to post 2012.
3. On 23 August 2022, the appellant requested an internal review.
4. On 22 September 2022, the Council affirmed the original decision. This decision stated “I wish to advise that I do not believe that Leitrim County Council is withholding any information which is not discoverable from the public register. A record detailing the position on each implemented Part 8 was provided within the timeframe. All the remaining unimplemented Part 8’s are on the public register.” Again, no provisions of the AIE Regulations were relied upon in this decision.
5. The appellant brought an appeal to this Office on 23 September 2022
6. I am directed by the Commissioner for Environmental Information to carry out a review of this matter under article 12(5) of the Regulations. In so doing, I have had regard to the parties to each appeal. 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 Aarhus Convention);
• The Aarhus Convention – An Implementation Guide (Second edition, June 2014) (’the Aarhus Guide’).
• 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).
7. In accordance with article 12(5) of the AIE Regulations, the role of this office is to review the Council’s internal review decision and to affirm, annul or vary it. In this appeal, the Council has provided the appellant with information for developments post 2012, but has directed the appellant to the public register in respect of the remaining information. The scope of this review is whether this decision was in accordance with the Council’s obligations under the AIE Regulations.
8. The Council in its submissions stated that in the absence of a reasonable time frame outlined by the applicant to which this request related, advice was sought from the Planning Department on the most appropriate approach to adopt. The Council reiterated its position that on the basis of legal advice, it does not rely on a Part 8 approval which had been approved for a number of years and definitely not beyond a 10-year time period. Its position was that a Part 8 approval before 2012 could not be construed as a “currently approved Local Authority own development”. The Council also submitted that consideration must be given to any legislative changes particularly in relation to environmental assessment.
9. The Council stated that considerable work would be involved to ascertain dates when various projects would have commenced before 2012 with corporate knowledge affected by retirements etc., and the fact that there is no requirement to advise the Planning Authority when approved projects would have commenced as no Commencement Notices would have been required by the Local Authority for such projects at that time. The Council’s submissions were that it has applied “reason and common sense” in its approach to the request.
10. In a second set of submissions to this Office, the Council stated that it has not in fact refused access to information from prior to 2012, but had instead indicated that the Council was not in a position to indicate which projects prior to 2012 has commenced and their date of commencement or which projects has not commenced. The Council then suggested that any Part 8 approval before 2012 could not be construed as a “currently approved Local Authority own development” and further suggested that the information at issue does not come within the definition of environmental information, as in, if the Council no longer proposes to undertake a project, it does not have an effect on the environment as required by paragraph (c) of the definition of environmental information.
11. The Council advised the appellant that all Part 8’s approved prior to 2012 were available on a public register, which the appellant could inspect in the normal way. The Council concluded by stating that this was the only record available to the Local Authority.
12. Firstly, I find that the Council was not justified under the AIE Regulations in limiting its initial response to the appellant’s request to developments dating post 2012. The legal advice received by the Council regarding Part 8 developments is largely irrelevant to this request. It is clear that these developments remain approved as a matter of law under the Planning and Development Act 2000. Regardless as to the Council’s position on whether or not those developments could now in fact be commenced without legal challenge, the information that the appellant is seeking is clear from his request. The Council failed to provide any basis under the AIE Regulations for limiting its initial response to the appellant’s request.
13. In its in internal review decision, the Council appears to direct the appellant to the public register in respect of the remainder of the information sought. The Council subsequently informed this Office that the public register does not contain information on whether or not developments have been commenced and are yet to be completed and/or the commencement date. Therefore, it was not a sufficient response to the appellant’s request to direct him to the public register. Even if the public register contained all of this information, the appellant specifically requested this information in the form of a list, and by email. If the Council wished to provide the appellant with the information in a different form or manner, the Council should have relied upon article 7(3)(a) and explained how that provision applied to the information sought.
14. In its submissions to this Office the Council subsequently stated “There is considerable work involved to ascertain dates when various projects would have commenced before 2012 with corporate knowledge affected by retirements etc., and the fact that there is no requirement to advise the Planning Authority when approved projects would have commenced as no Commencement Notices would have been required by the Local Authority for such projects at that time” and further that the register is the only record available to the local authority. If the Council considers that the request for information relating to developments prior to 2012 is manifestly unreasonable, then the Council should have relied upon article 9(2)(a) of the AIE Regulations. The Council should note that this exemption is only available where responding to the request would involve the public authority in disproportionate cost or effort or would obstruct or significantly interfere with the normal course of its activities. In light of the findings of the Court of Justice of the European Union in T-2/03 Verein für Konsumenteninformation v. Commission, at paragraphs 101-115, article 9(2)(a) can only be applied where the administrative burden entailed by dealing with the request is particularly heavy. The burden is on the public authority to demonstrate the unreasonableness of the task entailed by the request and the public authority must provide sufficient reasons to show how the request is manifestly unreasonable. If the Council considers that it does not hold the information sought, or cannot locate it, then it should have relied upon article 7(5) of the AIE Regulations, and should have set out the steps taken in an effort to locate the information sought.
15. Finally, the Council suggested that this information may not in fact be environmental information within the meaning of the AIE Regulations. It is extremely unhelpful when issues such as this are only raised after an appeal to this Office. If the Council was of the view that this information is not environmental information, this matter should have been raised with the appellant at first instance.
16. I consider that this type of information falls squarely within the definition of environmental information provided for at paragraph 3(1)(c) of the regulations. I consider the relevant measure for the purposes of paragraph (c) to be local authority own developments in the functional area of the Council. Local authority own development relates to construction projects that the Council seeks to carry out and therefore has a clear effect on the environment.
17. The appellant states that local authority own developments which have not been completed have “practical consequences for the environment and for environmental assessment. It may be that over time an approved project might have to be re-assessed to give effect to a local authority’s obligation to prevent deterioration of European Sites under Article 6(2) of the Habitats Directive because the longer the time interval between assessment and construction the less certainty there will be around the appropriate assessment determination. Extant but unbuilt projects must be taken into account for cumulative assessments under the EIA Directive and the assessment of in-combination effects under the Habitats Directives.”
18. The information sought is information on developments in Leitrim that remain legally approved under the Planning and Development Act 2000 as amended, even if the Council has taken a view that it would seek new permission for developments that were approved over 10 years ago. I find that the information sought is information “on” local authority own development within the meaning of article 3(1)(c) of the definition of environmental information.
19. Considering all of the above, I find that the Council’s response to this request was not justified under the AIE Regulations and I will annul the decision of the Council. The Council failed to explain its decision by reference to the provisions of the regulations and due to this, the reasons given its decisions are not sufficient with regard to articles 7(4)(c) and 11 (4)(a) of the AIE Regulations which require a public authority to provide reasons for refusal both at decision and internal review stage.
20. The duty to give reasons, which arises not only by virtue of the AIE Regulations and Directive, is recognised generally as a core principle of administrative law and a fundamental element of constitutional justice (see for example, Meadows V Minister for Justice (2010) IESC and Balz & Anor v An Bord Pleanála & Ors (2019)IESC 90). Both of these judgements, in the same way as the AIE Regulations, make it clear that where a requester has all or part of a request refused, they are entitled to be provided with clear reason for that refusal. The duty arises so that the requester can take a view as to whether they consider the refusal justified, or whether they wish to exercise their entitlement to have the refusal reviewed.
21. While it would be open to me to direct release of the information sought, it is clear in this case that the Council has not carried out any or any adequate searches to establish whether it holds the remainder of the information sought by the appellant. In those circumstances, I would be required to seek further submissions before I could direct release of the information. I am satisfied that it is more efficient for me to now require the Council to provide the appellant with a new internal review decision. The Council should take into account my comments above in making this new decision and should bear in mind the requirement to give adequate reasons, grounded in the AIE Regulations, for its response.
22. Having carried out a review under article 12(5) of the AIE Regulations, on behalf of the Commissioner for Environmental Information, I annul the internal review decision. This means that the Council must provide the appellant with a new internal review decision, having regard to my findings above.
23. 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.
Julie O’Leary
On behalf of the Commissioner for Environmental Information