The Court of Appeal has upheld a ruling preventing the full transcript of a compensation hearing linked to the Clashavoon-Dunmanway 110kV powerline in County Cork from being released as environmental information.
The dispute arose from a two-day property arbitration in June 2017 concerning compensation payable to landowners whose property was affected by an ESB wayleave. The powerline itself had already been approved by An Bord Pleanála in 2012, with non-material alterations approved in 2016.
Right to Know CLG later sought a copy of the hearing transcript from ESB under the Access to Information on the Environment Regulations. In August 2022, the Commissioner for Environmental Information directed ESB to release it, finding that the transcript in its entirety was environmental information and that copyright did not prevent disclosure.
ESB successfully appealed that decision to the High Court. The Commissioner then appealed to the Court of Appeal.
Ms Justice Butler and Mr Justice O’Moore, with Court of Appeal President Ms Justice Costello agreeing, dismissed the Commissioner’s appeal.
The court held that the compensation arbitration was separate from the environmental decision-making process which had already approved the route of the electricity line. The property arbitrator had no power to alter that route. The transcript recorded arguments made during the compensation hearing but did not contain the arbitrator’s decision or the amount ultimately awarded.
The court found that the transcript as a whole was not sufficiently connected to the electricity line to qualify as environmental information. It stressed, however, that this did not rule out the possibility that individual passages within the transcript might themselves contain environmental information.
The Court of Appeal also upheld findings that the Commissioner had inadequately explained a change from an earlier decision involving the same transcript, particularly on copyright.
The appeal was dismissed on all grounds. ESB was also held presumptively entitled to its appeal costs, subject to any written submissions by the Commissioner seeking a different order.