This Judgment of Mr. Justice Owens dated 25 January 2021 overturns a decision of the Commissioner for Environmental Information ("the Commissioner") on the application of the definition of "public authority" in article 3(1) of the European Communities (Access to Information on the Environment) Regulations 2007 ("the AIE Regulations") which transpose Directive 2003/4/EC on public access to environmental information into Irish law.
The Court overruled the Commissioner's decision made in 2019 that Raheenleagh Power DAC ("RP") – a joint venture company which operates a windfarm in Wicklow whose shares are divided equally between Coillte and a subsdiary of the ESB – did not fall into the definition of a "public authority", defined as follows in the Regulations:
‘Public authority’ shall mean:
(a) government or other public administration, including public advisory bodies, at national, regional or local level;
(b) any natural or legal person performing public administrative functions under national law, including specific duties, activities or services in relation to the environment; and
(c) any natural or legal person having public responsibilities or functions, or providing public services, relating to the environment under the control of a body or person falling within (a) or (b).”
The dispute arose in 2017 because Right to Know sought data from RP relating to wind turbine noise supporting information that had been provided in the application for planning permission for the wind farm. This request was refused on the basis that RP was not a "public authority" and that refusal had resulted in the appeal to the Commissioner.
The Judgment refers to the EU Court of Justice decision in Case C-279/12 Fish Legal and Shirley v Information Commissioner, United Utilities and Others. In that case, the CJEU identified a category of public authority that performed "services of public interest, inter alia in the environmental field, and which are, for this purpose, vested with special powers beyond those which result from the normal rules applicable in relations between persons governed by private law”.
In this regard, certain facts about the case were of note, such as Coillte providing the site for the wind turbines and the ESB providing expertise on building the wind farm, electricity generation and supply. RP applied to the Regulator for a licence to generate and an authorisation to construct the wind farm under ss 14 and 16 of the Electricity Regulation Act, 1999. Such authorisation can allow the applicant to acquire land or access rights necessary for the infrastructure to connect to the national grid by compulsory purchase. Other rights such as breaking up roads and laying cables under them, can be carried out by the applicant without the consent of landowners. Finally, it was noted that Coillte was established under the Forestry Act 1988 and the ESB was set up under the Electricity Supply Act 1927.
By way of general comment, the Court stated that where it is necessary to apply any test mandated by law in determining whether an entity comes within the definition of “public authority” the Commissioner should decide all factual and legal matters relevant to that test.
In this case, it was found that the Commissioner had erred in law in concluding that the effect of deregulation of the market in electricity generation and the participation of a number of entities in electricity generation and supply to the national grid meant that RP was not providing “public services” and did not have “public responsibilities or functions”. The Commissioner had decided not to determine whether RP was entrusted with "special powers" under the 1999 Act. On this point, the Judgment relying on the CJEU decision in C-279/12 makes it clear that the focus of the Commissioner's examination should have been on the entrustment and on "services of public interest" by reference to the national rules, rather than the number of entities carrying on an activity or the ownership/control of the provider of the service.
The Court also found that under the 1999 Act one of the criteria for the grant of authorisations is that the Regulator is satisfied that the applicant has or will apply for all applicable statutory consents, including relating to the protection of the environment. On this basis, the Court found that information provided in a planning application relating to turbine wind noise for wind farm touches upon "public responsibilities… relating to the environment".
Finally, the Court looked at the issue of "control" of RP. It was common case that Coillte and ESB were "public authorities". At the time when Right to Know sought the information, each of these entities was in a position (either alone or together) to exert decisive influence on the actions of RP in the environmental field. Although half its shares had been subsequently sold to a private company, the ESB retained the other half through a subsidiary that still provides data to day management, so the Court concluded that it still met the test of being "under the control" of the ESB.
The Judgment adds to the growing body of caselaw on Access to Information on the Environment, and will be of particular significance to the semi-states and related companies authorised under statutory powers for supplying public services. A copy of the full judgment can be found here.
Written by Jonathan Moore and Patrick Reilly.
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