Court sets aside narrow interpretation of environmental info, remits for full content assessment under Aarhus Regulations.

[2016] IEHC 91

HIGH COURT

[RECORD NO. 2015/50 MCA]

IN THE MATTER OF THE EUROPEAN COMMUNITIES (ACCESS TO INFORMATION ON THE ENVIRONMENT) REGULATIONS 2007 –

2014

S.I. NUMBER 133 OF 2007

AND IN THE MATTER OF AN APPEAL PURSUANT TO ARTICLE 13 OF THE EUROPEAN COMMUNITIES (ACCESS TO INFORMATION

ON THE ENVIRONMENT) REGULATIONS 2007 – 2014

AND IN THE MATTER OF SECTION 7 OF THE ENVIRONMENTAL (MISCELLANEOUS PROVISIONS) ACT 2011

BETWEEN

STEPHEN MINCH

APPELLANT

AND

THE COMMISSIONER FOR ENVIRONMENTAL INFORMATION

RESPONDENT

AND

THE DEPARTMENT OF COMMUNICATIONS, ENERGY AND NATURAL RESOURCES

NOTICE PARTY

Judgment of Ms Justice Baker delivered on the 16 day of February, 2016.

1. This is a statutory appeal from the decision of the Commissioner for Environmental Information (hereinafter, “the Commissioner”)

given on the 15th December, 2014 by which he refused the request made by the appellant to the notice party (hereinafter, “the

Department”) on the 18th May, 2013 for access to a report entitled “Analysis of Options for Potential State Intervention in the Role

out of Next-Generation Broadband” (hereinafter, “the Report”).

2. The request for access to the Report was rejected by the Department on the 17th July, 2013 on the grounds that the information

sought was not “environmental information” as defined in the Regulations. The appellant appealed to the Commissioner by letter dated

the 24th July, 2013 and the Commissioner rejected the appeal on the same ground.

3. The appeal was filed by originating notice of motion in accordance with the requirements in Order 84C on the 16th February, 2015.

The Report

4. The report was prepared by consultants, Analysys Mason and is described as an economic analysis of the various options available

to Government to achieve generalised rollout of high speed broadband services within the State. It seems that the Report considers in

particular two options available to achieve the objectives of the National Broadband Plan (hereinafter, “N.B.P.”), namely whether

broadband would be made available by a wireless or wired mode. The N.B.P. itself is freely available.

The legislative framework

5. The European Communities (Access to Information on the Environment) Regulations 2007, S.I. 133 of 2007, transposes Directive

2003/4/EC3 on public access to environmental information and repealing council directive 90/313/EEC. The Directive was implemented

following the signing by the European Community of the UN/ECE Convention on Access to Information, Public Participation and

Decision-Making and Access to Justice in Environmental Matters, the Aarhus Convention (1998).

6. Article 6 of the Regulation of 2007, as amended, provides for the making of a request for environmental information to be made in

the first place to the relevant public authority, and provision is made under Article 12 for an appeal to the Commissioner for

Environmental Information.

7. Article 13(1) provides an appeal to the High Court on a point of law of any decision of the Commissioner:-

“A party to an appeal under article 12 or any other person affected by the decision of the Commissioner may appeal to

the High Court on a point of law from the decision.”

8. The Regulations provide a definition of environmental information at article 3(1) as follows:-

“In these Regulations—

“environmental information” means any information in written, visual, aural, electronic or any other material form on—

a. the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural

sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified

organisms and the interaction among these elements,

b. factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and

other releases into the environment, affecting or likely to affect the elements of the environment,

c. measures (including administrative measures), such as policies, legislation, plans, programmes, environmental

agreements, and activities affecting or likely to affect the elements and factors referred to in paragraphs (a) and (b) as

well as measures or activities designed to protect those elements,

d. reports on the implementation of environmental legislation,

e. cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities

referred to in paragraph (c), and

f. the state of human health and safety, including the contamination of the food chain, where relevant, conditions of

human life, cultural sites and built structures inasmuch as they are, or may be, affected by the state of the elements of

the environment referred to in paragraph (a) or, through those elements, by any of the matters referred to in paragraphs

(b) and (c).”

Subparagraphs (b), (c) and (e) are engaged in this appeal. For convenience I will refer to “emissions” when discussing the

environmental factors listed in (b), as it is in regard to information on emissions into the environment that the applicant primarily

argues.

The appeal as pleaded: preliminary objection

9. The originating notice of motion is broadly drafted and seeks without specificity a declaration that the Report is “environmental

information” within the Regulations, and relates to information on emissions into the environment within the provisions of Article 10(1)

of the Regulations. The motion also seeks an order that the Court should substitute its decision for the decision made by the

Commissioner to refuse access to the Report.

10. The application is grounded on an affidavit of the applicant sworn on the 16th February, 2015 and it is fair to say that the

affidavit does not disclose details of how it is asserted the Commissioner fell into error, nor the basis on which it is argued that the

information is environmental information for the purposes of the disclosure requirements in the Regulations. Paragraph 2 of the motion

has, at best, identified the claim as coming within Article 3 (b) viz. that the information relates to emissions into the environment.

11. In his second affidavit sworn on the 25th May, 2015 the applicant seeks to rely on the definition contained in Article 3(1)(c) and

Article 3(1)(e) of the Regulation. The written legal submissions and the argument of counsel for the applicant during the hearing rely

entirely on sub. (c) and (e), and counsel did not seek to argue that the information fell within category (b).

12. The notice of motion does not “state concisely the point of law on which the appeal is made” as is required by Order 84C, the

respondent and the Department argue that the applicant ought not be permitted to rely on subs. (c) and (e) as these are not

pleaded, nor were these arguments before the Commissioner.

13. The jurisdiction of the High Court is one conferred by statute and is expressly one where the Court engages a point of law “from

the decision”. The applicant may not seek now to argue matters in the High Court which were not considered by the Commissioner.

The matter is one of jurisdiction. However, I reject the submission that the applicant did not argue before the Commissioner that the

Report came to be considered as information contemplated by Article 3(1)(c) and (e), and each of these subcategories are expressly

mentioned in the final determination of the Commissioner.

14. Accordingly I consider that while the motion does not comply with the mandatory statutory requirement, and does not state

concisely and with specificity the nature of the alleged defect in the determination of the Commissioner, the matters in issue are clear

from the submissions and from the supplemental affidavit of the applicant, and therefore there is no element of surprise that might

cause prejudice to the Commissioner or to the notice party in the appeal.

The role of the High Court

15. The applicant contends that the High Court engages its original and full jurisdiction on the appeal, which, it is argued, is close to a

de novo appeal. The respondent and the notice party assert that the appeal on a point of law must be informed by the approach of

the courts to judicial review, as is found in case law dealing with the appeals provisions in the Freedom of Information Act, considered

by White J. in O’Grady v. Information Commissioner [2007] IEHC 152 (Unreported, High Court, 30th March, 2007) and in Deely v. The

Information Commissioner [2001] 3 I.R. 439. The jurisdiction, thus, understood confines the court to considering whether inferences

from fact were ones “which no reasonable decision making body could draw”, to quote from the judgment of McKechnie J. in Deely v.

The Information Commissioner.

16. In Sheedy v. Information Commissioner [2005] 2 I.R. 272 Kearns J. said that:-

“… but it would be obviously incorrect to apply exclusively judicial review principles to matters of statutory interpretation

in the way that might be appropriate to issues of fact. A legal interpretation of a statute is either correct or incorrect and

the essence of this case is to determine whether the interpretation giving first by the respondent and later by the High

Court … was correct or otherwise.”

17. That approach was approved by MacEochaidh J. in NAMA v. Commissioner for Environmental Information [2013] IEHC 86

(Unreported, High Court, 27th February, 2013) but note he also considered it proper for him to engage with questions of statutory

interpretation.

18. I consider that the correct approach was identified by O’Neill J. in An Taoiseach v. Commissioner of Environmental Information

[2013] 2 I.R. 510 . O’Neill J. was considering the requirement that the State in transposing the Directive was required to afford a

hearing on appeal, subject to the procedural autonomy that the member state enjoys within the requirements of equivalence and

effectiveness. O’Neill J. at para. 7.11 described the appeal as a “full rehearing on all legal issues which arose in the case”.

19. At 7.5 O’Neill J. said the following:-

“…although the appeal is limited to an appeal on a point of law, as all of the issues which have arisen and are in issue

between the parties are questions of law, the appeal procedure contains ample jurisdiction so as to fulfil the requirement

in Art 6[2] of providing a review procedure in this case. I would construe the term ‘review’ in a wide general sense rather

than the more familiar judicial review concept in Irish law or the review type appeal such as the appeal from the High

Court to the Supreme Court. I would treat this appeal as full rehearing of the appeal or review before the respondent on

all legal issues arising, including the jurisdictional issue now under discussion and all issues of interpretation of the

Directive and the Regulations. To that extent, the jurisdiction of this Court on this appeal may be greater than that of the

respondent on the review now under appeal, that seems to me to be necessary to ensure that the full original jurisdiction

of this Court, is made available to determine the issues that necessarily arise in the consideration of the notice party’s

rights under the Directive and Regulations, thereby achieving full compliance with Art 6 of the Directive.”

20. I consider that the approach identified by O’Neill J. is correct having regard to the principles that informed his decision, namely the

principle of effectiveness under European law. Furthermore his approach is consistent with the approach identified by McKechnie J. in

Deeley v. Information Commissioner, and the quote at p. 452 which has been much followed:-

“There is no doubt but that when a Court is considering only a point of law, whether by way of a restricted appeal or via

a case stated, the distinction in my view being irrelevant, it is, in accordance with established principles, confined as to

its remit, in the manner following:-

a. it cannot set aside findings of primary fact unless there is no evidence to support such findings,

b. it ought not set aside inferences drawn from such facts unless such inferences were ones which no reasonable decision

making body could draw,

c. it can however, reverse such inferences, if the same were based on the interpretation of documents and should do so

if incorrect, and finally,

d. if the conclusion reached by such bodies shows that they have taken an erroneous view of the law, then that also is a

ground for setting aside the resulting decision.”

21. In my view the approach that I take in the appeal is that identified by O’Neill J., namely I may consider whether the conclusion

reached by the Commissioner was based on a correct or erroneous view of the law, as noted by Mc Eochaidh J. in NAMA v.

Commissioner for Environmental Information. I may engage “all legal issues arising”, and I may consider the issues of the

interpretation of the underlying Directive and of the Regulation. The appeal does engage the full jurisdiction of the court, but not as

argued by the appellant, in that I cannot substitute findings of fact, and I cannot reverse the inferences drawn by the Commissioner

with regard to the nature of the Report.

22. Counsel for the respondent and the notice party both assert that the decision of the Commissioner was a decision based on his

analysis of the facts, i.e. an analysis of the contents of the Report, how it was to be viewed, and how it, and the N.B.P. were to be

characterised. It is argued that my approach is confined to the question of whether the Commissioner, on the facts that he found,

made a legal error in concluding from those facts that the report was not environmental information. I consider that my approach

must be more nuanced than that proposed, in that I must look to the conclusion drawn by the Commissioner as to the

characterisation of the N.B.P. and thereafter of the Report, and the test of remoteness he applied.

The Commissioner characterises the Report

23. The Commissioner delivered a five page reasoned decision in which he refers to the purpose of the Regulations, and the

requirement for public access to environmental information laid down in Directive 2003/4. He accepted the Department’s description of

the Report and it is useful to repeat that description here:-

“This Report is a financial and technical analysis of options for potential State intervention in the roll out of next

generation broadband and was commissioned by the Department in the context of the National Broadband Plan for Ireland.

The purpose of the Report was to develop a financial model to calculate the likely capital expenditure associated with

deploying next generation broadband under a number of different scenarios.

The department’s description contained the following assertion:-

It contains no environmental content.”

24. The Commissioner went on to characterise the purpose and contents of the Report:-

“I agree that its purpose was to examine the cost of deploying ‘next generation’ broadband (NGB) infrastructure to areas

that the private sector is not expected to serve based on a range of options or scenarios of a technical nature, i.e. to

develop a financial model to calculate the likely capital expenditure associated with deploying NGB infrastructure for each

of the scenarios identified by the Department in order to provide the Department with an understanding of the scale of

investment required for each case. In other words, put simply, the report is about the cost implications for the state of

deploying various types of NGB infrastructure to areas underserved by the private sector.”

25. The Report did not address spectrum availability or planning issues, presumably questions, such as whether masts or under ground

cables might be necessary or appropriate for the deployment of the relevant technologies, and did not contain any discussion of the

various technologies in respect of their potential impact on the environment but rather in terms of their performance, characteristics

and related cost implications. He goes on to say that:-

“The report notes that actual deployment may differ from the illustrative scenarios discussed as a result of such matters.”

26. Thus it seems that the Report deals with the performance, characteristics and relative cost implications of the various options

identified in the N.B.P.

Information on factors likely to affect the environment

27. The Commissioner separately examined the request in the context of the definition in the Regulations, and his decision involved

him in first deciding whether the Report itself contained environmental information, primarily with regard to sub s.(c), i.e. did it contain

information relevant to emissions etc. likely to affect elements of the environment. He concluded as follows:-

“In the circumstances, I do not accept that the report provides information on factors such as energy, radiation, or

emissions affecting or likely to affect the elements of the environment. Thus, I find that the report does not qualify as

environmental information under Article 3 (1) (b) of the definition. I also do not accept that the report provides

information on a measure or activity affecting or likely to affect the elements and factors referred to in paras. (a) and (b)

of the environmental information definition. It follows that I find no basis for concluding that the report, in and of itself,

qualifies as environmental information within the meaning of Article 3 (1) (c) of the regulations.”

The interplay between the National Broadband Plan and the Report

28. The Commissioner then considered the request under sub.(e), i.e., whether the Report might be a cost benefit analysis within the

framework of a measure to which sub . (c) relates.

29. To consider this question he had to first determine whether the N.B.P. itself might be “a measure affecting or likely to affect the

environmental elements” and within 3(1)(c). He concluded that as it contains a number of different policy objectives to achieve the

targets for high speed broadband availability throughout the country, a review of the national spectrum policy, publication of a

national digital strategy, infrastructure barrier removal, and a proposed state intervention, the N.B.P. was “merely a high level

strategy, and the many variables which might effect the environment or the level of discharge emissions or other releases into the

environment, are not apparent from a policy document”.

30. He determined that the N.B.P. itself is not environmental information as “[t]he link between the plan and any effect on the

environment is simply too remote, unlike the measures and activities that may be adopted to implement the plan.”

31. In light of that conclusion the Commissioner considered that the Report did not qualify as environmental information by virtue of

Article 3(1)(e), as the characterisation of the Report depended on whether it was a report, economic analysis or cost benefit analysis

regarding a policy or plan or measure which itself is environmental information.

32. To understand the approach of the Commissioner it is therefore necessary to understand his approach to the N.B.P. He considered

that the link between the N.B.P. and emissions into the environment is “too remote” to have any effect on the environment, as it was

a high level strategy and at that level of generality could not have on emissions into the environment.

33. He then concluded that if the N.B.P. is not on measure affecting or likely to affect emissions, cost benefit or other economic

analysis and assumptions that might either underlie or be used within the “framework” of the measures, could also not be

environmental information.

34. It seems to me that a question of law is engaged namely whether he was correct in the following conclusions:-

a. Whether the link between the N.B.P. and an effect on the environment was “simply too remote” to enable the N.B.P. to

be characterised as environmental information and

b. Whether the Report could not therefore be environmental information.

The arguments

35. The applicant argued that the N.B.P. was a measure within the meaning of Regulation 13(1)(c), primarily because radio wave

emissions from wireless transmitters were emissions into the environment. He quoted decisions of the U.K. Information Tribunal as

authority for that proposition. He also argued that any technology that might be used for the roll out of broadband would have

attendant power requirements, and the choice between technologies would have consequence for the volume of emissions, including

CO2 from the burning of fossils fuels, or radio wave radiation. He identified different power consumption that might be required for

wireless or fixed line technologies. He argued that any decision with regard to the recommendation of one technology over the other

could have consequences for emissions, and the choice is not environmentally neutral.

36. The Department argues that the Report and the N.B.P. were general or high level documents containing no concrete choices or

proposals. The proposition advanced is set out in summary form at para. 24 above.

Authorities on the definition of environmental information

37. The applicant relies on a decision of the European Court of Justice in Case C-321/1996 Mecklenburg v. Kreis Pinneberg, 17th June,

1998, concerning the wording of Article 2(a) of the old Directive, broadly similar to the Directive of 2003. The Court said that the

definition covered any statement which was “capable of adversely affecting or protecting the state of one of the sectors of the

environment covered by the Directive.”

38. The applicant relies also on the Aarhus Convention Implementation Guide itself also suggested that the meaning of “activities or

measures in Article 3(b)” is broad:-

“And most importantly the activities or measures do not need to be part of some category of decision making labelled

‘environmental’. The test is whether the activities or measures may have an affected on the environment.”

39. In relation to economic analysis the Guide states the following:-

“As economic analyses may have a great impact on whether or not a particular project will go ahead, it is important to be

able to examine the thinking that went into them. The quantification of environmental values and the ‘internalization’ of

environmental costs are among the most difficult questions for economists.”

40. Counsel for the applicant accepts that the Guide does not have binding force of law, but that it may be taken into consideration

as explained by the European Court of Justice in Case C-182/10 Marie-Noëlle Solvay & Ors v. Région Wallonne, 30th March, 2010.

A matter of law?

41. What constitutes environmental information is a matter of law, and all parties agree with that general proposition. The respondent

argues that for information to be environmental information, it must be information on the various matters set out in Regulation 13(1),

and rejects the suggestion that the Regulations permit a more broad approach in requiring there to be made available information

which relates to information on emissions.

42. The affidavit of David Hanley, sworn on behalf of the notice party on 6th March, 2015, describes the Report as follows:-

“…a financial and technical analysis was options for potential State intervention in the roll out of next generation

broadband. The purpose of the report was to develop a financial model to calculate the likely capital expenditure

associated with deploying next generation broadband under a number of different scenarios. The report contains no

environmental information.”

43. This description is consistent with how the Commissioner characterises the Report as being “about the costs implications” of the

deployment of various types of broadband infrastructure.

44. The respondent argues in reliance on the opinion of Advocate General Kokott in Case C-524/09 Ville de Lyon, 22nd December,

2010, that the Directive does not “…give a general and unlimited right of access to all information held by public authorities which has

a connection, however, minimal, with an environmental factor.”

45. He also relies on the Court of Justice judgment in Case C-316/01 Eva Glawischnig, 12th June, 2013, where the request for

information regarding measures applied to monitor products with genetically modified food stuffs and ensure compliance with labelling

requirements. The Court, answering a question referred for a preliminary ruling, took the view that the name of the manufacturer and

the product description and the administrative penalties imposed for controlling compliance with the labelling requirements “do not

constitute information relating to the environment.”

46. The Commissioner's conclusion was one based primarily on a view that as the N.B.P. was not a measure or policy to which the

Regulation applied, that a cost benefit analysis that might inform the implementation of that plan is equally not environmental

information.

47. The characterisation of the N.B.P. was clearly and concisely dealt with by him. I conclude that I must approach the decision of

the Commissioner by first considering his characterisation of the N.B.P., and whether the Commissioner was correct in applying a test

of remoteness.

The approach of the Commissioner to the N.B.P.

48. I reject the argument of the respondent that the applicant is incorrect to argue that first matter for determination is whether the

N.B.P. contains environmental information. Article 3(1)(e) identifies as environmental information a cost benefit analysis of a measure

or policy to which Regulation Article 3(1)(c) applied. That is a starting point for 3(1)(e) and the Commissioner was correct that any

analysis of the applicability of Article 3(1)(e) had to involve first a consideration of the status of the N.B.P. Article 3(1)(e) does not

relate to stand alone information, but rather cost-benefit or economic analyses in framework of other documentation and information.

The interpretative approach

49. The European Court of Justice, in its judgment in Mecklenburg v. Pinneberg made clear its view that:-

“the Community legislature intended to make that concept a broad one, embracing both information and activities relating

to the state of those aspects.”

50. At para. 21 of its judgment the Court said the following:-

“In order to constitute ‘information relating to the environment for the purposes of the directive’, it is sufficient for the

statement of views put forward by an authority, such as the statement concerned in the main proceedings, to be an act

capable of adversely affecting or protecting the state of one of the sectors of the environment covered by the directive.

That is the case, as the referring court mentioned, where the statement of views is capable of influencing the outcome of

the development consent proceedings as regards interests pertaining to the protection of the environment.”

51. This approach is supported by the recent judgement of the Supreme Court in NAMA v. Commissioners for Environmental

Information [2015] IESC 51 (Unreported, Supreme Court, 23rd June, 2015) where, at para. 10, O’Donnell J. giving the judgement of

the court expressed the view, specifically with regard to the implementation of the Aarhus Convention, that the specific obligation

taken by Ireland as a Member State of the E.U.:-

“requires that the courts approach the interpretation of legislation in implementing a Directive, so far as possible,

teleologically, in order to achieve the purpose of the Directive.”

52. Having regard to the approach identified by O’Donnell J. I consider that the Environmental Commissioner in applying the

Regulations must have regard to their purpose, and ipso facto to the Aarhus Convention itself. The Aarhus Convention recognises that

public participation relating to the environment is to be achieved, inter alia, by making available to members of the public the

information necessary to fully so participate.

53. In the preamble to Aarhus there was recited inter alia that the parties thereto recognise:-

“ … that, in the field of the environment, improved access to

information and public participation in decision-making enhance the quality

and the implementation of decisions, contribute to public awareness of

environmental issues, give the public the opportunity to express its concerns

and enable public authorities to take due account of such concerns…”

54. The Convention's stated aim is:-

“to further the accountability of and transparency in decision-making and to strengthen public support for decisions on

the environment.”

55. The Convention also expressed a desire to encourage “widespread public awareness of, and participation in, decisions affecting

the environment and sustainable development.” I regard it as important that the Convention acknowledged that the public authorities

“hold environmental information in the public interest”, and this suggests a broad approach to the question of interpretation is

correct.

56. I consider that a purposive interpretation of the provisions of the Article 3(1)(e) suggests that what was intended to be captured

thereby were economic analysis or models which informed or were capable of informing either a programme or plan or administrative

measure, not merely information which did as a matter of fact actually inform the decision maker. To consider otherwise would fail to

have regard to the fact that the Minister is not bound by any of the policies or strategies proposed in the N.B.P, and the Regulation

intends to capture any documentation or reports or information even that which was rejected by the policy maker in coming to its

decision, and of all of the matters be considered by him or her.

57. I consider also that the word “use” in Article (3)(1)(e) does not import a narrow approach such that only those documents which

were available at the time a particular report was written are covered by the Regulation, and as the terminology of Article 3(1)(c)

includes plans and programmes “likely to affect” the environmental elements, reports, information, models or other data which are

capable of informing the thinking in a plan, programme or policy are capable of being environmental information.

58. Thus I consider that the Environmental Commissioner took an overly narrow approach in a number of respects. His approach to

the N.B.P. itself, that it was a high level or a policy document, is overly narrow. I do not consider that the question of remoteness

was a correct approach in that he failed to take into account the fact that Article 3(1)(c) included in the definition of environmental

information not merely measures, programmes, policies etc., which affected the elements of the environment, but those which were

likely to effect those elements. Therefore, I consider that the test of remoteness as identified by the Commissioner does not correctly

identify the range of information that might affect the elements of the environment, i.e. where the consequential effect is not direct

or not yet apparent.

59. Therefore, I conclude that the test applied by the Commissioner in assessing the N.B.P. was overly narrow, and in his view that

only documentation which would show how the policy was to be worked out or implemented could come within the Regulation, the

Commissioner fell into error.

60. As a result, I consider the approach of the Commissioner to be incorrect with regard to the Report the subject matter of the data

application before him. He directly, and in my view incorrectly, linked the production of the Report to his characterisation of the N.B.P.

itself. The Report, as an economic model, could inform the choice that policy makers will make. It is, to use the language of Aarhus,

part of the “thinking” that might go into such policy choices, and could impact on them.

61. The cost benefit analysis is part of the framework of information that Government will have before it when considering the various

options described in the N.B.P., and because the matter will include the element of cost, the full framework of the information

available to the Government is likely to have an impact on emissions into the environment.

62. In conclusion, I consider that any information that might have informed or be capable of informing the thinking of the Government

in making decisions with regard to the N.B.P., including economic models or cost-benefit analyses, is capable of being environmental

information, and is so capable, notwithstanding that such models do not contain information on emissions or impact on the

environment as such.

63. I consider in the circumstances that the Commissioner’s approach was too narrow, he failed to adopt the teleological approach

that is required to the interpretation and implementation of the Regulations, and imposed an overly narrow test of remoteness in

seeking to characterise both the N.B.P. and any report or information within the framework that might inform the Government on the

implementation of that plan.

Direct production of the report now?

64. The applicant argues that if true and effective access to Court is to be available, the applicant ought not have to return to the

Environmental Commissioner following a successful appeal on a point of law, and that the cost and delay involved would be a serious

obstacle to the rights recognised in the Aarhus Convention as incorporated into European law.

65. The question of whether I could substitute my decision was considered by MacEochaidh J. in NAMA v. Commissioner for

Environmental Information where he held that his jurisdiction was to remit the matter to the respondent and not substitute his

decision, although for the reasons he explained he did not consider it necessary or appropriate to remit in that case.

66. Apart from the practical reality that the Report is not before me, the Regulations clearly envisage the limit of the court’s powers

being to determine a point of law arising from the decision. There is no procedural or legal basis on which I could hear evidence with

regard to the Report and the approach urged by the applicant would involve my engaging in an exercise. Accordingly I do not consider

that I may direct production of the Report.

Conclusion

67. I propose to make an order setting aside the determination of the Commissioner, made on the 18th December, 2014, and remitting

the matter to him for further determination. I refuse to make a declaration that the Report contains information on the environment.

My conclusion on this appeal is that the Commissioner fell into error in his approach, but whether the Report is to be disclosed is a

matter for determination in the light of a consideration of its contents, is outside my jurisdiction.