Decision
Dr Fred Logue and Offaly County Council
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-144597-L6L5B5
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-144597-L6L5B5
Published on
Whether the Council adhered to the timelines for decision-making as set out in article 7 of the AIE Regulations
19 March 2024
1. On 8 October 2023, the appellant contacted Offaly County Council with the following AIE Request:
“As you know Article 9a of the EIA Directive provides as follows:
Article 9a
Member States shall ensure that the competent authority or authorities perform the duties arising from this Directive in an objective manner and do not find themselves in a situation giving rise to a conflict of interest.
Where the competent authority is also the developer, Member States shall at least implement,
within their organisation of administrative competences, an appropriate separation between
conflicting functions when performing the duties arising from this Directive.
In the Part 8 procedure, the local authority is both competent authority and developer for sub-threshold projects since the local authority makes the EIA screening decision.
Please therefore provide a copy of the documented procedure through which your organisation implements the requirement for appropriate separation between conflicting functions in this regard.
If the procedure is not documented please explain how your organisation has implemented
Article 9a for sub-threshold Part 8s.”
2. Having received no response, the appellant sent a follow up email to the Council on 9 November 2023, requesting an internal review on the basis of a deemed refusal.
3. No response issued from the Council, and the appellant submitted an appeal to this Office on 11 December 2023 the basis of an implied refusal.
4. Following the appellant’s request for an appeal to this Office, what followed was a series of emails and follow up correspondence with the Council as this Office ascertained the positon in this case. The Council provided an original decision dated 12 October 2023 on 20 December 2023 and indicated that the decision did not issue to the appellant due to a clerical error.
5. This Office sought clarification multiple times for confirmation that the original decision had issued to the appellant, and eventually received confirmation that the decision, dated 12 October 2023, issued to the appellant on 11 January 2024.
6. Given that the appellant had made his internal review request on the grounds of a deemed refusal, and the Council had missed the timeframe for issuing the original decision, this Office deemed the decision of 12 October 2023 and issued on 11 January 2024 to be the internal review decision and accepted the case.
7. I have now completed my review under article 12(5) of the Regulations. In carrying out my review, I have had regard to any submissions made. In addition, I have had regard to:
• 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);
• 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); and
• 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 late decision provided to the appellant stated that the Council did not hold any information relevant to the request, as the Council do not have documented procedures on the issue. The appellant has confirmed that he is not appealing the substance of the decision, but wishes to continue his appeal on the grounds that his request was not dealt with in accordance with the AIE Regulations or Articles 3, 4 and 5 of the AIE Directive. The scope of this review is therefore whether the appellant’s request was dealt with in accordance with those provisions.
10. Article 7(2)(a) of the AIE Regulations provides that a public authority shall make a decision on a request as soon as possible, and at the latest not later than one month from the date on which such request is received by the public authority. In this case, as the appellant’s request was made on 8 October 2023, decision on this request was due on 8 November 2023. By operation of article 10(7), a refusal was deemed to have been made on that date.
Further, the appellant’s internal review request was made on 9 November 2023, meaning that an internal review decision was due on 9 December 2023. As set out above, the Council did not provide the appellant with its decision until 11 January 2024. The Council stated that this failure to provide the appellant with a decision in time was due to a “clerical error”. The Council stated that this error came to light when the Council conducted its internal review, however as noted above, the Council also failed to issue an internal review decision in time. Accordingly, the Council’s decision making approach in this case did not comply with the timeline set out in the AIE Regulations. It is regrettable that the intervention of this Office was required in order for a decision to simply be sent to the appellant.
11. Rather confusingly, the Council’s decision which was furnished to the appellant on 11 January 2024 outlined that it was granting the request, while also stating that the Council did not hold the record and noting that the Council “have not prepared any documented procedures on this issue”. The Council made no reference to any provision of the AIE Regulations in respect of the appellant’s request. As the Council stated that it did not hold information relevant to the request, the Council should have in fact refused the request under article 7(5) of the AIE Regulations.
12. Article 7(5) of the AIE Regulations is the relevant provision to consider where the question arises as to whether the requested environmental information is held by or for the public authority concerned. While a public authority may refuse a request on the grounds that it does not hold the information requested, it may only do so if it can show that adequate steps have been taken to identify and locate relevant environmental information, having regard to the particular circumstances. In determining whether the steps taken are adequate in the circumstances, a standard of reasonableness must necessarily apply. In this instance, the Council did not engage with the AIE Regulations and failed to provide adequate reasoning and justifications of the information refused.
13. The appellant is not appealing the Council’s refusal of his request under article 7(5) of the AIE Regulations and therefore, I did not seek submissions from the Council on the searches carried out in relation to this appeal. Accordingly, I will annul the Council’s deemed refusal of the request at internal review stage, but will make no further direction.
14. This appeal follows several recent cases which highlighted issues in how the Council processes AIE Requests and is failing to engage with the AIE Regulations, particularly with regard to adhering to timelines as set out in the AIE Regulations. Accordingly, I would encourage the Council to take steps to engage more fully with the AIE Regulations and with this Office in the future, and to ensure that adequate resources are provided to staff for the processing of AIE Regulations. In particular, the Council need to have regard to the timelines set out in article 7 of the AIE Regulations.
15. I would also like to note that this Office is dealing with a considerable backlog of cases at present. It could be argued that this case was moot once the late decision of the Council was provided to the appellant. The issue of mootness may be re-visited in future appeals if this Office deems it appropriate in the circumstances of particular cases.
16. Having carried out a review under article 12(5) of the AIE Regulations, I hereby annul the internal review decision of the Council, namely the deemed refusal at internal review stage due to the Council’s failure to provide the appellant with a decision within the timelines set out by the AIE Regulations.
17. 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