Court overturns ‘flawed’ decision about information sought from Coillte

Commissioner for Environmental Information must reconsider request for disclosure

 

The Court of Appeal (COA) has overturned a “flawed” decision by the Commissioner for Environmental Information that data sought from the State forestry agency Coillte about a substantial lands sale in Co Tipperary was not “environmental information”.

The Commissioner must now, in light of the COA findings, reconsider Jim and Mary Redmond’s request for disclosure of information relating to Coillte’s late 2013 sale of almost 403 hectares of lands and forestry at Kilcooley Abbey Estate, Thurles.

The relevant request sought the identity of the purchaser, the purchase price, the valuation, and the identities of the parties and lawyers involved in transferring the lands to the new owner.

Given the passage of time, it may be considered an entirely new request should be made, the COA said.

In a recently published judgment, it allowed the couple’s appeal against the High Court’s rejection of their judicial review challenge.

The appeal centred on the meaning of “environmental information” under Article 3.1 of the 2007 EC (Access to Environmental Information) Regulations - the AEI Regulations.

The case arose after Coillte, which took no part in the legal proceedings, informed the couple it had sold a leasehold interest in lands and trees but refused to disclose other information on grounds it was commercially sensitive. It said the sale complied with its process and protocol requirements.

The Redmonds concerns about the sale included that the estate is part of an important historical site with a listed building status and their belief the sale could impact on the environment, including wildlife and deer.

Giving the COA judgment, Mr Justice Maurice Collins said the Commissioner’s conclusion the information sought was not environmental information was based on his view the sale did not constitute a “measure”, as defined in Article 3.1.c of the Regulations, “affecting, or likely to affect” environmental elements and factors .

The Commissioner erred in considering the information “in itself” must be shown to be information affecting or likely to affect the environment, he said. The question was rather whether the “measure” itself -the lands sale - is capable of affecting the environment.

In deciding the sale was not such a “measure”, the Commissioner said there was no evidence the new owner intended to develop the lands and also noted any attempt to fell trees would require a tree felling licence.

The Commissioner’s focus was mistaken and the correct test is whether there is a “real and substantial” possibility the sale would affect the environment, the judge said.

It was an error to conflate environmental effect and development because, while development will generally affect the environment, a “measure” such as this land sale may affect the environment without any development.

This sale was of a “very substantial” area of woodland, including old woodland, as well as monuments and archaeological features. The land was/is “very clearly of some environmental significance and sensitivity”, as manifest from Coillte’s own assessment, he said.

It is relevant Coillte is a public body subject to the “general duty” to have due regard to the environmental and amenity consequences of its operations. It was “unsurprising” that transfer of such a significant area of forestry and woodland from ownership of a public body into ownership of a private owner might give rise to concern as to potential environmental impact.

The fact Coillte appears to have a policy of selling land for purposes other than forestry would likely heighten such concern and was “an important factor”.

In effectively deciding against the Redmonds on the basis of lack of any evidence of knowledge by Coillte concerning the purchaser’s intentions for the lands, the Commissioner took an “unduly restrictive” approach, he held.

The Commissioner also failed to properly discharge his functions arising from his failure to interrogate Coillte’s own environmental impact appraisal of the sale which, in certain areas, appeared to indicate it had potential to result in high environmental impacts, he found.

For those and other reasons, the Commissioner’s conclusion the information sought was not “environmental information” within Article 3.1.c was flawed and must be set aside, he ruled.

The Commissioner must now determine whether the lands sale was a “measure” likely to affect the environment in the sense indicated in the COA judgment. If the Commissioner finds it is a measure, he must then decide whether the information sought is “environmental information “ and whether it may be disclosed.