Court says National Broadband Plan is environmental information

The Court of Appeal today delivered its judgment in Stephen Minch v. Commissioner for Environmental Information where it found that the National Broadband Plan constitutes environmental information because the plan discussed a variety of options each of which would have significant environmental impacts.

The Court also found that while a report containing a financial analysis of various options for the delivery of broadband infrastructure was not in itself environmental information, it could nevertheless be considered as such if it was used within the framework of the broadband plan.

In making its decision, the Court of Appeal dismissed appeals by the Commissioner for Environmental Information and the Minister for Communications, Energy and Natural Resources against a decision of the High Court quashing a decision of the Commissioner for Environmental Information refusing to grant access to a financial report relating to the National Broadband Plan.

The Court observed that it seemed implicit from the Commissioner’s conclusions that the economic analyses contained in the report were used in the formation of the National Broadband Plan although there was no express finding in that regard. The Court observed that if this was accepted then the requested report itself must be environmental information.

Members of the public have a particular right of access to environmental information under EU law and the Aarhus Convention. What may be categorised as environmental information is an important aspect of the scope of this right and with the judgment in Minch, the Court of Appeal has clarified where the boundary lies between an idea that is merely an academic thought experiment and more definite plans, policies or programmes that are likely to affect the environment.

A copy of the judgment is available here.

FP Logue Solicitors acted for the applicant, Mr Minch in this case.

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