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Annual Report 2008 - Text
Hill of Allen Action Group & Kildare County Council (Case CEI/08/0001)
Whether the Council is justified by reference to articles 8 and 9 of the European Communities (Access to Information on the Environment) Regulations 2007 (S.I. No. 133 of 2007) in refusing a request for information about planning and enforcement matters.
Background
The Hill of Allen Action Group requested the following information from Kildare County Council:
- information relating to the judicial review between Roadstone Dublin Limited and Kildare County Council
- all correspondence and any other documents related to the Allen Quarry which have not been made publicly accessible in the planning file already made available.
The Council released some information and refused information relating to the judicial review proceedings. The Group applied for an internal review of that decision. It identified certain additional information which, it said, should have been included in the documents released. On 17 January 2008, not having received a decision from the Council on its internal review application, the Applicant appealed the refusal to my Office.
The Information
The information sought originated in a decision of July 2006 by the Council under section 261 of the Planning and Development Act 2000 to require the quarry operator (Roadstone) to submit a planning application and an environmental impact statement (EIS) in respect of its operation of the Allen Quarry. That decision was the subject of an application by Roadstone for judicial review in the High Court in respect of which the proceedings were struck out in July 2007. Since that time, the Council and Roadstone engaged in negotiations with a view to securing agreement on the operation of the quarry under section 47 of the Planning Act. In the course of the appeal, the Council identified further records - including some reports by its planning staff and correspondence with Roadstone - covered by the request
The Applicant's Position
The applicant said that it is entitled to know why the planning application and EIS were not pursued by the Council and that, if the normal planning procedure had been followed, it would have had the right to consider the proposals, make observations and exercise a right of appeal if necessary. The applicant was anxious to get some explanation as to why the Council acted as it did.
The Council's Position
The Council accepted that there had been a delay in having the proposed agreement with Roadstone signed but that it expected it would be finalised by March 2008. My Office made several attempts to have the case settled without a formal decision but eventually concluded that a formal, binding decision was necessary. At the date of the drafting of my decision in September 2008 I was advised that the agreement had still not been signed. According to the Council, it is under an obligation to make the section 47 agreement available to the public when it is finalised.
Appeal Decision
Following submissions from the Council and the third party, Roadstone, I considered the application of the Regulations to the following issues:
- whether the applicant has locus standi (standing) to make the appeal
- whether the information sought comes within the definition of "environmental information"
- whether the information sought is exempt under Article 8(a)(iv) (legal professional privilege) of the Regulations
- whether the information sought is exempt under Article 9(1)(b) (course of justice) of the Regulations
- whether the information sought is exempt under Article 9(1)(c) (commercial or industrial confidentiality)
- whether the information sought is exempt under Article 9(2)(c) (material in the course of completion).
I found that:
(i) the Hill of Allen Action Group is an "applicant" within the meaning of that term in article 3(1) of the Regulations;
(ii) the information sought is "environmental information" within the meaning of that term in article 3(1) of the Regulations;
(iii) article 8(a)(iv) of the Regulations entitles the Council to withhold those parts of the information which qualify for legal professional privilege
(iv) article 9(1)(b) of the Regulations does not apply to any of the remaining information and the Council is not entitled to rely on this exception to withhold it;
(v) with the exception of a small amount of information relating to the quarry's reserves, article 9(1)(c) of the Regulations does not apply to the remaining information and the Council is not entitled to rely on this exception to withhold it and
(vi) article 9(2)(c) of the Regulations does not apply to any of the remaining information and the Council is not entitled to rely on this exception to withhold it.
As regards the definition of environmental information, I considered that this was a planning case and all of the information, including that on the judicial review proceedings relates directly to the operation of and regulation of quarrying at a particular site. My conclusion might have been different if the content or purpose of the information on the judicial review proceedings was remote from the effect of the quarry on the environment. In other words, I concluded that matters - including litigation arising from the control of the operation of the quarry - were sufficiently connected to factors and measures which affect the environment to be classed as environmental information in this particular case.
Given my finding that other records should be released which explained the background and progress since the legal proceedings in this case, I did not consider that the public interest in the applicant knowing the detailed exchanges between the Council and its lawyers outweighed the public interest in upholding legal professional privilege in this particular instance. In relation to its consideration of the other records which did not disclose legal advice, I expressed concern that the Council's original decision had made no reference whatever to public interest considerations. It is important to note that the Regulations provide that a public authority 'shall consider each request on an individual basis and weigh the public interest served by disclosure against the interest served by refusal". Furthermore, the Regulations require that the grounds for refusal be interpreted ''on a restricted basis having regard to the public interest served by disclosure''.
I annulled the Council's decision and directed it to release most of the withheld information to the applicant.
