Decision
Mr. Raymond Neilon and Tipperary County Council
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-97484-R5V6V1
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-97484-R5V6V1
Published on
Whether the Council was justified in refusing access to recorded data and audio files collected at the appellant’s home on the basis that it was not held by or for the Council
1. On 8 July 2020, the appellant requested from Tipperary County Council (the “Council”) all recorded data and audio files collected at his home between 7 February and 20 March 2020 during a noise assessment required by the Council in relation to Garracummer Wind Farm. The appellant stated that “this data is held by Brookfield Renewable for TCC so as to confirm compliance” with planning conditions and noted that “it states in the enforcement order that “Provision for logging of audio and data in a format to allow export to and analysis by third parties””.
2. On 22 July 2020, the Council notified the appellant that the Council does not hold the information requested.
3. On 17 August 2020, the appellant requested an internal review of the Council’s decision. He stated: “The raw data and audio files are held by Brookfield Renewable for TCC, this data is also to be made available to third parties according to the enforcement order issued to Brookfield. This data will also be available to me under data protection laws, as it was data that was collected at my private residence.”
4. In its internal review decision of 8 September 2020, the Council stated that it had reviewed the relevant enforcement file and was satisfied that the Council does not hold the information requested.
5. The appellant brought this appeal to my Office on 23 September 2020 on the basis that Brookfield Renewable Ireland Limited (“Brookfield”) is holding the information for the Council. The appellant noted that the Council’s planning file includes raw data relating to earlier compliance with conditions and that he has received raw data from other noise assessments that were carried out for the same wind farm at nearby residences. In addition, the appellant states: “the noise assessment was carried out at my residence with an enforcement order and in that order there is a condition which states that third parties are to have access to the raw data and audio files”.
6. I have now completed my review under article 12(5) of the AIE Regulations. In carrying out my review, I have had regard to the submissions made by the appellant, the Council and the relevant third party, Brookfield. 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;
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”); and
d. the Aarhus Convention—An Implementation Guide (Second edition, June 2014) (the “Aarhus Guide”).
7. 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.
8. 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. This review is solely concerned with whether the Council was justified in refusing access to the information requested on the basis that the information was not held by or for it.
9. This case concerns the development of Garracummer Wind Farm by Brookfield, in accordance with the planning permission granted by the Council in its capacity as planning authority and, on appeal, by An Bord Pleanála.
10. On 21 May 2019, the Council issued a warning letter to Brookfield setting out its view that conditions of its planning permission relating to noise may not be complied with and invited submissions on the matter. On 18 June 2019, Brookfield provided a detailed response to the warning letter. On 13 August 2019, the Council issued an enforcement letter to Brookfield in respect of the appellant’s home, in particular with respect to the requirement in planning conditions that tonal or impulsive qualities in the noise shall be avoided. The Council requested that Brookfield undertake and submit to it a noise survey, specifying a number of matters which should be included. As part of the noise survey, noise data was collected at the appellant’s home in February and March 2020. That noise data is the subject of this appeal.
11. On 12 June 2020, Brookfield submitted a report to the Council, which included the results of noise monitoring at the appellant’s home. A copy of that report was provided to the appellant. The Council arranged for an independent assessment of the report to determine compliance with planning conditions. Two reports were received as part of this assessment, both of which were provided to the appellant. On 6 August 2020, the Council notified the appellant that the Council were closing the enforcement file in respect of the noise conditions.
12. The development at Garracummer Wind Farm has been the subject of four previous appeals to this Office, CEI/19/0013, CEI/19/0019, CEI/19/0022 and CEI/19/0029. However, I am not bound to follow my previous decisions. I have conducted a fresh review of all aspects of this appeal.
13. Public authorities are only required by the AIE Regulations to make available environmental information which is held by, or for, the public authority (see article 7(1) and (5) of the AIE Regulations).
14. Article 3(1) of the AIE Regulations provides that environmental information held by a public authority means environmental information in the possession of a public authority that has been produced or received by that authority. It is clear from this definition that the relevant date in determining whether information was held is the date the AIE request was received by the public authority.
15. The appellant submits that the Council should have been provided with the information that he requests at the same as the noise survey report provided to the Council on 12 June 2020. The appellant relies on a copy of a noise monitoring survey report submitted to South Tipperary County Council in 2014 in a similar matter relating to Garracummer Wind Farm on behalf of a different third party, which was accompanied by a CD containing the raw survey data. The Council’s submissions state that the report in this case was not accompanied by the information requested when it was submitted.
16. The Council arranged for an independent assessment of the report by its noise consultant, Damien Brosnan Acoustics, in order to determine Brookfield’s compliance with planning conditions. The Council states that it did not request the recorded data and audio files as part of this assessment because, on the advice of its noise consultant, it did not consider that the information was necessary to establish compliance with the planning conditions.
17. The Council wrote to Brookfield on 15 and 16 July 2020, referring to the appellant’s request under the AIE Regulations, and asked that the information be forwarded to the Council to be provided to the appellant. Brookfield responded by letter dated 20 July 2020, declining to provide the information on the grounds that the information was not intended to be used by the Council for the purpose of reviewing the report, but for the sole purpose of providing the information to the appellant. The Council provided Brookfield’s response to the appellant. In its submissions to this Office, Brookfield state that they have not provided the Council with the requested information and that the information is not, and was not at the time of the request or at any time during its processing of the request, in the possession of the Council.
18. The appellant submits that the Council’s conclusion was unreasonable and that the Council ought to have obtained the raw data and audio files from Brookfield for the purpose of assessing its compliance with noise-related planning conditions. The appellant provided my Office with documents and correspondence in support of this submission, including Environmental Noise Guidance for Local Authority Planning & Enforcement Departments , Wind Energy Development Guidelines for Planning Authorities and a Guidance Note on Noise Assessment of Wind Turbine Operations at EPA Licensed Sites , as well as internal and external Council correspondence in relation to the Council’s planning enforcement in this case. However, my remit is limited to review of the decisions of public authorities under the AIE Regulations and the AIE Directive. It is not my function to consider whether a public authority ought to hold information, but whether, as a matter of fact, a public authority held the information at the relevant time. I am satisfied that at the time of the request the information was not held by the Council.
19. Article 3(1) of the AIE Regulations provides that environmental information held for a public authority means environmental information that is physically held by a natural or legal person on behalf of that authority.
20. Both the Aarhus Guide and the preparatory documents for the AIE Directive, available at https://eur-lex.europa.eu/legal-content/EN/HIS/?uri=CELEX:32003L0004&qid=1612959952354, provide assistance in interpreting the term “on behalf of”.
21. The Aarhus Guide states:
“In practice, for their own convenience, public authorities do not always keep physical possession of information that they are entitled to have under their national law. For example, records that the authority has the right to hold may be left on the premises of a regulated facility. This information can be said to be “effectively” held by the public authority.”
22. Similarly, the European Commission's First Proposal for the AIE Directive defined information held for a public authority as meaning “environmental information which is held by a legal or natural person on behalf of a public authority under arrangements made between that authority and that person”. The Proposal explained:
“In many cases, experience shows that environmental information which public authorities are entitled to hold on their own account is kept physically on their behalf by other entities. Access to such information may be requested by the public. Public authorities should not be entitled to refuse access to this information simply on grounds that it is not physically in their possession. The proposal ensures that, if such information exists and is kept for the public authority concerned under arrangements with another person or body, it should be made available by the public authority in the normal way.”
23. The proposal was later amended by the European Council to its current wording. The European Council explained that “information held” means “physically held” and deleted the First Proposal's limitative requirement for an arrangement between the holder and an authority. The European Commission noted that by the European Council's amendments the definition was simplified, but the "underlying principle of the definition in the Commission proposal is however ensured".
24. These sources indicate that the purpose of the provision is to ensure that public authorities cannot avoid their obligations under the AIE Directive by simply outsourcing the storage of that information to a third party.
25. In this case, Brookfield holds the requested information. The appellant refers in his submissions to the enforcement letter dated 13 August 2019, which requested at point (n) that the noise survey should include “Provision for logging of audio and data in a format to allow export to and analysis by third parties”. Condition 18 of Brookfield’s planning permission provides that “all details shall be retained by the developer/operator of the 13 number wind turbines and shall be made available to the planning authority and/or their agents, following a request to the developer/operator to do so”. In my view, the requirements in the enforcement letter and in planning condition 18 do not indicate that the information is physically held by Brookfield on behalf of the Council. Rather, they indicate that the Council’s entitlement to access the information is for the limited purpose of assessing compliance with planning conditions. In this context, I note that planning condition 18 originally required that recorded data in relation to noise surveys would be submitted to the Council on a rolling 6 monthly basis, but on appeal to An Bord Pleanála that requirement was removed.
26. My Office asked the Council to state its powers (if any) to decide whether the information requested is retained, altered or deleted by Brookfield. The Council responded that if, having carried out due diligence in relation to any records requested or received, the Council considered that such records had been altered, deleted or not retained, then enforcement action could be taken under the Planning and Development Act 2000 in respect of non-compliance with planning conditions.
27. My Office contacted Brookfield, who insists that it holds the requested information for its own purposes as part of its commercial operations. It states that Brookfield has no obligation, and cannot be compelled by the Council, to provide the information to the Council, and is not under or capable of being put under a legal obligation to provide it. Brookfield states that the Council has no legal entitlement to access the requested information or any powers to decide whether the information requested is retained, altered or deleted by Brookfield.
28. I am satisfied that the Council’s ability to access the information arises from its function as a planning authority and is confined to that purpose. Although the Council may request the information to establish compliance with planning conditions, and would expect to be provided with it, the Council has no power to require Brookfield to provide it with the information. Similarly, the Council has no power to decide whether the information is retained, altered or deleted by Brookfield. Should Brookfield refuse to provide the information on request, or alter or delete the information, the Council could take action for non-compliance with planning conditions in accordance with Part VIII of the Planning and Development Act 2000, including requiring the development to cease entirely. However, those powers relate to the authorisation of the development to which the information relates, rather than access to, or the integrity of, the information itself. I also note that the Council is not responsible for dealing with queries about the content of the information and the costs arising from holding the information are not borne by the Council. While the Council may be able to access the information for a limited purpose, that does not, in my view, equate to the information being held for the Council, within the meaning of article 3(1).
29. In the circumstances, I accept that the information is not held by Brookfield for the Council.
30. Having carried out a review under article 12(5) of the AIE Regulations, I affirm the Council’s decision in this case on the basis that the information was not held by or for the Council.
31. 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