Court of Appeal clarifies concept of “environmental information”

Aerial view of Kilcooley estate, Co Tipperary

The Court of Appeal this morning handed down its judgment in Redmond v Commissioner for Environmental Information [2020] IECA 83 which was an appeal against a decision of the High Court upholding a decision of the Commissioner for Environmental Information that details of the sale by Coillte, the State Forestry Company, of a leasehold interest in 402 hectares of land at Kilcooley Abbey Estate in Co Tipperary was not environmental information for the purposes of the Access to Information on the Environment Regulations (the “AIE Regulations”).

In reaching its decision the Court adopted and applied the now well-established interpretative principles from the NAMA and Minch decisions.

Importantly the Court agreed with the approach of the English Court of Appeal in Department for Business, Energy and Industrial Strategy v Information Commissioner [2017] EWCA (Civ) 844 that the definition does not mean that the information itself must be intrinsically environmental. The defining aspect is that the information is on a measure or activity that affects or is likely to affect the environment.

The Court also went on the hold that the Commissioner did not need to establish the probability of a relevant environmental impact since that would lead to an overly narrow definition. On the other hand something more than a remote or theoretical possibility is required because this would sweep too widely.

The effect of this decision consolidates the requirement for decision makers to apply a purposive interpretation to the AIE Regulations and building on Minch confirms that the scope of the right of access extends beyond information that is intrinsically environmental to include any information on measures or activities that are likely to affect the environment.

FP Logue acted for the Appellants in the Court of Appeal.

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