Decision
Mr. H and An Bord Pleanála
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-143025-X5B2B5
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-143025-X5B2B5
Published on
Whether the Board was justified in refusing the request on the basis that the information sought was not held by, or for it, under article 7(1) of the AIE Regulations.
23 May 2024
1. This appeal concerns a request submitted by the appellant with An Bord Pleanála [the Board] on 16 September 2022. The request was headed “Bord Na Móna - Unauthorised Peat removal & Substitute Consent & the current status of the cutaway bogs & Access to information request”.
2. The request, textually intact, is as follows:
“1. On the 3rd February 2021 An Bord Pleanála notified me (by post) that BORD NA MÓNA had withdrawn their applications for substitute consent. The reference numbers in the application for retention are; 307283, 307282, 307281, 307280, 307279, and 307278.4 Link to BNM application for substitute consent; Link to BNM application for substitute consent; http://www.pleanala.ie/lists/oc/SU/ [note: this link is no longer functioning, but insertion of a reference number in the website’s search box will lead to the relevant application documents].
“Previous to this on the 28/04/2020 An Bord Pleanála decided in advance that applications 307283, 307282, 307281, 307280, 307279, and 307278, that;
“(a) an environmental impact assessment and an appropriate assessment were required in respect of the development concerned, And that; the actual or likely significant effects on the environment or adverse effects on the integrity of a European site, if any, resulting from the carrying out of the development, could likely be substantially remediated;
“1. A. Would the board clarify under the access to information on the environment directive;
“1 A 1. Under what legislation did An Bord Pleanála not carry out or apply the EIA and Habitats Directive for peat removal.
“1 A 2. Under what legislation did An Bord Pleanála not carry out a remedial EIA and a remedial Appropriate Assessment.
“1 A 3. Under what authority did An Bord Pleanála allow the applications to be withdrawn.
“1 A 4. Please clarify what is the current planning status of the cutaway bogs.
“2. I include for the board's consideration and or agreement;
“2.a. Does the Bord not agree that because of the ruling of the CJEU in case C-91/92 Faccini Dori v Recreb the Competent authority and the Board (on appeal) are obliged to comply with the ruling of the CJEU in case C-201/02 Wells and nullify the consequences of not having complied with or applied the EIA correctly or at all for any and all of the previous decisions on the connected development’s.
“2.b Is it the case that because of the findings of the ECJ in Wells v Secretary of State, Case C201/02, that it now applies to the Local authorities to nullify the effects of the peat removal activities of Bord Na Móna in that; " under Article 10 EC, the competent authorities are obliged to take, within the sphere of their competence, all general or particular measures for remedying the failure to carry out an assessment of the environmental effects of a project as provided for in Article 2(1) of Directive 85/337", and that the polluter pays principle applies.
“3. The Legal status of the underlying and connected developments.
“Furthermore, in the case Sloan v. An Bord Pleanála [2003] 2 ILRM 61, Judge Kearns ruled that cumulative assessment requires the development to be assessed in light of existing and permitted development in the relevant area.
“3.a. The obligation to establish the legal status of the underlying development is further clarified by Justice Hedigan in his judgement Harrington v An Bord Pleanála [2010] IEHC 428 at 7.6 to 7.7 where he stated; “… It is clear from the cases of Westwood Club Ltd v. An Bord Pleanála [2010] IEHC 16 and Quinlan v. An Bord Pleanála [2009] IEHC 228, that the Board was obliged to take into account the legal status of the underlying development. To do otherwise would be to view the proposal out of context; …7.7 It seems clear that An Bord Pleanála can and indeed should take into account all relevant factors known to exist within the context of the application made, including the planning history of the site.”
3. The request was acknowledged on 19 September 2022. However, on 17 March 2023, the appellant sent an email to the Board, indicating that this request had not been “addressed or resolved” and seeking resolution. In response, the Board indicated that it had no knowledge of the AIE request, seeking a copy of same.
4. On 20 March 2023 the appellant sought an internal review of the deemed refusal of his original request.
5. On 20 April 2023, the Board issued its internal review decision. The internal review decision addressed each point of the appellant’s request individually.
6. On 10 October 2023, the appellant erroneously submitted an appeal to the Office of the Information Commissioner, citing the Board’s AIE reference number, on a pro forma document for use by appellants seeking a review by that Office of an FOI request refusal or part-refusal. This was because the Board erroneously indicated to him in its internal review decision that an appeal against its decision was to be submitted to the Office of the Information Commissioner within the space of six months of the date of its decision, even though the decision was signed by an “Internal Review Officer, Access to Information on the Environment” and the time within which an appeal to this Office is to be submitted is one month from the date of the internal review decision. Notwithstanding this fact, as the appellant had been given erroneous information by the public authority in relation both to the body to which an appeal should be addressed and in respect of the appropriate deadline, the Commissioner exercised his right, under article 12(4) of the AIE Regulations, to extend the time for initiating an appeal as he was satisfied in the circumstances that it was reasonable to do so. I shall comment on this matter further below.
7. I am directed by the Commissioner to carry out a review under article 12(5) of the AIE Regulations. In carrying out this review, I have had regard to the submissions made by the appellant and the Department. In addition, I have had regard to:
a. 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);
b. Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based;
c. 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);
d. the Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’).
8. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
9. The scope of the review in this case is confined to whether the refusal of the request is justified under article 7(1) of the AIE Regulations, which enjoins a public authority to make available any information the subject of a request held by, or for it.
10. It is regrettable that the Board, in its internal review decision letter to the appellant, indicated that an appeal should be submitted to the Office of the Information Commissioner rather than to this Office. It is equally regrettable that the timeframe within which it indicated that an appeal could be made was six months from the date of its letter rather than to the one-month deadline indicated in the AIE Regulations. Public authorities are urged to review their administrative practices and internal training on access to information requests in order not to cause untold confusion to appellants and delays to the appeal process.
11. I note for the record the Board’s comments to this Office by letter of 30 November 2023 that it did not consider the request in this case to be an AIE request, “given the nature of the questions asked, i.e. procedural questions as opposed to asking for access to particular records held by An Bord Pleanála.” Having reviewed a copy of the original request, I see that the request has a title (see paragraph 1 above) containing the words “Access to information request” which an ordinary reader may not associate necessarily with an AIE request. However, at item 1.A of the request, the appellant does ask the Board to “clarify under the access to information on the environment directive”, which dispels any ambiguity in the matter and makes it clear that the appellant intended his request to be dealt with under the AIE Regulations. The Board should note the provisions of article 7(7) of the AIE Regulations which states:
(7) Where a request is made to a public authority which could reasonably be regarded as a request for environmental information but which is not a request that has been made in accordance with— (a) article 6(1), or (b) the Freedom of Information Acts 1997 and 2003, the public authority concerned shall inform the applicant of his or her right of access to environmental information and the procedure by which that right can be exercised, and shall offer assistance to the applicant in this regard.
12. The effect of this provision is that if the Board were in any doubt as to whether the appellant’s request was a valid request under the AIE Regulations, it should have provided the appellant with appropriate assistance and information to allow him to make a valid request.
Peat Extraction, Development Consent and Substitute Consent
13. It will be helpful to give some initial background to the matters raised by the appellant in his request. The appellant maintains that by virtue of European Community Directive 85/337/EEC [subsequently amended by Directive 97/11/EC] (the Directive), transposed into Irish law by Statutory Instrument 93/1999 European Communities (Environmental Impact Assessment) (Amendment) Regulations, 1999 (the Regulations), peat extraction activities carried out by Bord na Móna on a number of named bogs constitutes a project likely to have significant effects on the environment such that it is subject, by virtue of the Directive and the Regulations, to a requirement for “development consent” and “an assessment with regard to those effects” (the Directive, article 2(1)). Part 1 of the First Schedule to the Regulations, at article 19, and Part 2 of the First Schedule, at article 2(a), cite “peat extraction” as “development” for the purposes of the Regulations such as to require development consent and assessment with regard to environmental effects. The Explanatory Note contained within the Regulations explains that the assessment to be carried out in cases of proposed development is an “environmental impact assessment” (EIA) and that the Regulations provide details as to the procedures to be followed in the case of a proposed development “which would be located on an environmentally sensitive site”.
14. The appellant contends that “no Development Consent was ever granted for peat removal by Bord na Móna from any of their bogs … without the Environmental effects having been assessed”. Moreover, he states, “no EIA or Appropriate Assessment [AA] was ever carried out for the drainage or peat removal activities for any of the Bord na Móna Bogs.”
15. He claims a number of environmental effects arising from the peat extraction activities, including the “obliteration of the Freshwater Pearl Mussel…from the main channel of the (river) Barrow” and the “loss of water to the Barrow Navigation” which is a designated Special Area of Conservation (SAC) known as the “Barrow Nore SAC, site code 002162.”
16. In submissions to this Office, the appellant asserts that the Board was statutorily obliged to carry out a remedial EIA and remedial AA in connection with Bord na Móna’s application for leave to apply for substitute consent under section 177C of the Planning and Development Act 2000 (as amended) to regularise the planning status of Bord na Móna’s historic peat extraction on the bogs at issue.
17. The concept of substitute consent was usefully explained in response to Parliamentary Question 1719 of 16 January 2018 by the Minister for Housing, Planning and Local Government who stated that it “is essentially a form of retrospective development consent for development requiring environmental impact assessment (EIA), screening for EIA or appropriate assessment (AA). The substitute consent procedure is set out in Part XA of the Planning and Development Act 2000 (as amended) and related provisions.” Accordingly, substitute consent is a procedure to make good planning permission lacunas in respect of developments that should be in possession of development consent, but that, for one reason or another, was not sought or granted at a point in time historically. This is the consent that was being sought for its peat extraction activities by Bord na Móna for the bogs the subject of this appeal.
18. In relation to substitute consent, the Board’s website explains here that its functions were expanded by the insertion into the Planning and Development Act 2000 (as amended, the 2000 Act), by section 57 of the Planning and Development (Amendment) Act 2010, of a new Part XA. This part deals with the issue of substitute consent which the website explains as follows: “The concept of substitute consent derives from a European Court of Justice (ECJ) finding to the effect that permission for the retention of development affected by the EU Directive on Environmental Impact Assessment may be granted only in exceptional circumstances.” In the reply to the parliamentary question cited above, the Minister added that this judgment of the ECJ also found that “generally speaking, provisions of the 2000 Act permitting applications for planning permission to retain existing developments requiring environmental impact assessment (EIA) or appropriate assessment (AA) were contrary to EU law.” The website goes on to explain that, by virtue of section 177C of the 2000 Act, a person who has carried out development or the owner or occupier of the land may apply to the Board for leave to apply for substitute consent in certain situations. Section 177E(2)((d) of the 2000 Act stipulates that, if the Board grants leave to apply for substitute consent, an application for substitute consent shall be accompanied by a remedial environmental impact statement or remedial Natura impact statement or both of those statements, as the case may be.
19. The investigator in this appeal discovered from the Board’s website that Bord na Móna made applications for leave to apply for substitute consent in respect of each of the six bogs the subject of the appellant’s request on 16 December 2019. Leave was subsequently granted for two on 30 April 2020 and four on 1 May 2020 and applications for substitute consent, signed on 29 May 2020, were made by Bord na Móna, for each of the six bogs on 2 June 2020. Each application was accompanied, in accordance with section 177D(7)(b) of the 2000 Act, by a remedial environmental impact statement (rEIS) and a remedial Natura impact statement (rNIS). The investigator also verified that, in all six cases, the applications for substitute consent were withdrawn by Bord na Móna on 14 January 2021.
20. In the rNIS which accompanied each of Bord na Móna’s applications to the Board for leave to apply for substitute consent, it explains that from October 2019 peat extraction activities of the scale that it operates require planning permission and that, in addition, any peat extraction activity since September 2012 in excess of 30 hectares needs to be regularised by means of the substitute consent process. It goes on to explain that this is because, from the coming into force of the Environment (Miscellaneous Provisions) Act 2011 in August of that year, section 4(4) of the Planning and Development Act 2000, as amended, was amended to the effect that if peat extraction activities required either Environmental Impact Assessment or Appropriate Assessment then any exemption afforded by the Planning and Development Regulations 2001, as amended, was from that point ‘de-exempted’ and such activities required planning permission from the coming into force of this provision in September 2012. From a further reading of the rNIS document, it appears that some level of legal uncertainty surrounded the appropriateness or relevancy of section 4(4) to peat extraction, as it explains that “[a]ny doubt as to the applicability of Section 4(4) to peat extraction activities was extinguished by High Court judgements in … Friends of the Irish Environment Ltd v. Minister for Communications, Climate Action and the Environment [2019] IEHC 646 and IEHC 685 delivered in September and October 2019 which set aside the EU (Environmental Impact Assessment) (Peat Extraction) Regulations 2019 and the Planning and Development Act (Exempted Development) Regulations 2019 which provided exempted development provisions for peat extraction activities.”
21. On a final note, the investigator in this appeal, following an examination of the content of the Board’s web pages relating to the granting of leave to apply for substitute consent for the six bogs the subject of the requester’s appeal, has been able to verify in each case that, according to the website, the “Board’s Decision [was] quashed by the High Court” on 7 May 2021. These applications for leave to apply for substitute consent preceded the subsequent applications for substitute consent referred to in the appellant’s request.
22. Having now explained the background to substitute consent and Bord na Móna’s reasons for applying for leave to seek it for the bogs at issue in this appeal, I now turn to an analysis of the appellant’s request itself.
Whether the Board was justified in refusing the request under article 7(1) of the AIE Regulations
23. Article 7(1) states as follows:
“A public authority shall, notwithstanding any other statutory provision and subject only to these Regulations, make available to the applicant any environmental information, the subject of the request, held by, or for, the public authority.”
24. Article 6(1)(d) states that a request for environmental information shall “state in terms that are as specific as possible, the environmental information that is the subject of the request”.
25. The Board, varying “the request” (by which it means the original decision, under article 11(2)(a) of the AIE Regulations, despite the non-issuing of same), refused the appellant’s request in its entirety in its internal review decision, for the following reasons, each attached to each element of the request:
26.
[Item] “1.A.: Substitute Consent cases 307278, 307279, 307280, 307281, 307282 and 307283 were all withdrawn by the applicant [Bord na Móna] on 14 January 2021.”
[Item] “1 A 1.: As the substitute cases listed above were withdrawn by the Applicant, Bord na Móna, the cases did not progress for assessment by the Board.”
[Item] “1 A 2.: “As the substitute cases listed above were withdrawn by the Applicant, Bord na Móna, the cases did not progress for assessment by the Board.”
[Item] “1 A 3: “It is the applicant’s right to withdraw a case before An Bord Pleanála once a decision on the case has not been made by the Board.”
[Item] “1 A 4.: “It is not within the remit of An Bord Pleanála to give a statement on the current planning status of cutaway bogs.”
“Items 2 and 3 of your email of 16 September 2022 are not deemed to be an access request under the AIE Regulations. Items 2 and 3 outline a number of statements on legal precedent and requests An Bord Pleanála’s consideration and/or agreement with the statements. I wish to inform you that An Bord Pleanála does not engage in debate on the merits of case law and items 2 and 3 of your email do not come within the scope of the AIE Regulations.”
27. In submissions to this Office, the appellant maintains that the Board did not have the power or the specific authority to allow Bord na Móna to withdraw its applications for substitute consent and contends that the Board’s position that the applicant for substitute consent (Bord na Móna) had a right to withdraw its applications is incorrect, as the Board had already made a decision to grant leave to Bord na Móna for leave to apply for substitute consent. He further asserts that, in relation to the Board’s position that, as the cases “did not progress for assessment by the Board”, its obligation in regard to assessment goes back to 1999 when the 1999 Regulations (see paragraph 13 above) came into operation.
28. In ordinary course, requesters of information on the environment under the AIE Regulations seek information contained in documents, held electronically or in other forms of information transmission such as spreadsheets or maps. It is open and free availability of such information that the AIE regime, including the Aarhus Convention and the AIE Directive is designed to facilitate in order to promote increased public access to environmental information and, by the dissemination of such information, to contribute to a greater awareness of environmental matters, a free exchange of views, more effective participation by the public in environmental decision-making and, ultimately, to a better environment.
29. It is information that is “held by, or for” public authorities that is the subject matter of article 7(1) of the AIE Regulations and of the suite of other measures that constitute the AIE regime.
Was information held by, or for the Board attaching to Items 1 A 1. to 1 A 3. of the request?
30. I note that the first three elements of Item 1 of the appellant’s request (1 A1. to 1 A 3.) seeks information on internal Board procedures or decision-making processes rather than any information that might be held by, or for the Board. It is useful to recall those elements, which are as follows:
a. “1 A 1. Under what legislation did An Bord Pleanála not carry out or apply the EIA and Habitats Directive for peat removal.
b. “1 A 2. Under what legislation did An Bord Pleanála not carry out a remedial EIA and a remedial Appropriate Assessment.
c. “1 A 3. Under what authority did An Bord Pleanála allow the applications to be withdrawn.”
31. I am of the view that these elements of the request do not seek information that is held by or for the public authority as envisioned by the AIE Regulations but rather the reasons for the Board’s action or inaction in the matters referred to in each of the elements. For this reason, I do not consider these elements of the request to be valid requests for information under the AIE Regulations. Consequently, it is outside the jurisdiction of this Office to make any determination in relation to these elements of the request, as they are not requests for information held by, or for the public authority. Rather, they concern internal processes of the Board. I will note, however, that the Board did provide an explanation to the appellant, namely that the relevant applications had been withdrawn, as is the right of the appellant to know in advance of a decision being made, and that accordingly the cases did not progress for assessment.
32. It is appropriate for me to add that, whatever the merits of the appellant’s quest to seek answers to his questions, it is not a function of this Office to investigate and make a determination on whether the Board was correct or incorrect to allow Bord na Móna to withdraw its applications for substitute consent or whether Bord na Móna had a right to so withdraw. Neither is it within the scope of this Office to adjudicate, for example, on the appellant’s assertions with regard to the application of the 1999 Regulations. The function of the Commissioner is solely to determine whether valid requests for information that have been refused, or part-refused, by public authorities were justified in accordance with the exemption provisions in the AIE Regulations.
Was information held by, or for the Board attaching to Item 1 A 4. of the request?
33. In respect of the fourth element of the first part of the appellant’s request, I note that it seeks the “planning status of … cutaway bogs” the subject of the request. The Board maintains in submissions to this Office that this part of the request is asking it to give its “’opinion’ on the status of the cutaway bogs” and that it is not within its remit to enter into debate and discourse under the AIE Regulations on such a matter. It contends in its internal review decision that it is not within its remit to give a statement on that planning status. This is because, in its refusal to give reasons for its action or inaction in the matters referred to in the first three elements of the first part of the request, all associated with substitute consent for the development of the cutaway bogs, it states that the substitute consent cases had not progressed for assessment by the Board due to the applications for substitute consent having been withdrawn by the applicant, namely Bord na Móna. In effect, its position is that, as the applications for substitute consent associated with the cutaway bogs had been withdrawn, it had no further remit or jurisdiction in the matter of said bogs. In other words, its position is that once the applications had been withdrawn prior to any decision on them having been made by the Board, the Board ceased to have any function in regard to the subject matter of the applications, namely the cutaway bogs. It reinforces its position by stating in its response to Item 1 A 3. that it “is the applicant’s right to withdraw a case before An Bord Pleanála once a decision on the case has not been made by the Board.” In conclusion, it is the Board’s position that it had no further function in respect of the withdrawn applications and had no further role in commenting or giving a statement on the planning status of the cutaway bogs. I find that this is a reasonable response in the circumstances. The Board has no statutory role in adjudicating on the planning status of the cutaway bogs where there is no live application before it. Therefore, it did not hold the information requested.
Was information held by, or for the Board attaching to Items 2 and 3 of the request?
34. I note that in both parts of Item 2 and in Item 3 of the request, the appellant cites legal precedent and seeks to engage with the Board and ascertain its views on certain statements relating thereto. It is clear that the appellant wishes to engage in a discussion with the Board on the merits or otherwise of those cases and statements. In its response to these items of the request, the Board states that it does not deem them to be an access request under the AIE regulations, as the items request the Board’s “consideration and/or agreement with the statements …. [the Board] does not engage in debate on the merits of case law and items 2 and 3 … do not come within the scope of the AIE Regulations.” I agree. In my view, these items do not constitute requests for information under the AIE Regulations but rather an attempt to engage in discussion with the Board. The appellant is at liberty to engage with the Board and to seek commentary on precedent and explanations regarding its internal processes in the sphere of, for example, allowing applications for substitute consent to be withdrawn. However, the appropriate form to conduct this engagement is with the Board outside of the structure of the AIE regime.
35. I note that the Board, despite Items 1 A 1., 1 A 2., 1 A3., 2 and 3 of the appellant’s request not meeting the requirements of the AIE Regulations in order to be considered a valid request for information on the environment, did not ignore the request but responded to it appropriately. I welcome the fact that the Board engaged with the appellant to this extent. However, I draw the attention of the Board to article 7(7) of the AIE Regulations as set out above. I encourage public authorities, when in receipt of requests such as the request in this appeal, to provide the requestor with as fulsome an explanation as possible as to the right of access to environmental information under the AIE Regulations, the types of information that can be requested, and how to make a valid request. I also note that it is open to the appellant to make a new request to the Board, having considered the matters set out in this decision.
Conclusion
36. Accordingly, I find that Items 1 A 1. to 1 A 3. of the request are not valid requests for information and were correctly refused. I find that Item 1 A 4. of the request sought information that was not held by the Board and was correctly refused. I find that Items 2 and 3 of the request are not valid requests for information and were correctly refused.
37. Having carried out a review under article 12(5) of the AIE Regulations, I find that the refusal of the information sought was justified by the reasons given and I affirm the decision of the Board.
38. 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