The Supreme Court has remitted a dispute over access to wind turbine noise data to the Commissioner for Environmental Information, directing a fresh assessment of whether Raheenleagh Power DAC is a “public authority” under the environmental information regulations.
Right to Know CLG sought data Raheenleagh had submitted during the planning process for its wind farm. The company refused, arguing it was not covered by the regulations. The Commissioner agreed. The High Court reversed that decision, but the Court of Appeal restored the Commissioner’s conclusion. Right to Know and the Commissioner appealed to the Supreme Court; Raheenleagh cross-appealed a Court of Appeal finding that it had special powers beyond those available under ordinary private law.
In a judgment delivered on 6 March 2024, Ms Justice O’Malley said the Commissioner had erred by treating the separate elements of the tests for public authority status as standalone questions. The relationship between an entity’s powers and the purpose for which they were granted must be considered, she said. She also said “entrustment” with a public service implies some level of obligation, while not necessarily requiring a predetermined form or level of service.
The judgment said the Commissioner should reassess the terms and duration of Raheenleagh’s electricity licence, the notice period for ending it, its obligations under statutory codes and the regulator’s power to modify the licence. The Commissioner should also consider the renewable energy price support scheme under which the company participated, and whether its activity could amount to a public service or function.
On the separate question of control by a public authority, the Supreme Court said this was a mixed question of fact and law. It could not be resolved simply by asking whether a shareholder held more than half the shares. The Commissioner had not investigated the relevant facts, including the company’s ownership, management and actual operation at the relevant time, so the courts should not have determined the issue on appeal.
The Court remitted the entire matter to the Commissioner. It did not itself decide whether Raheenleagh is a public authority or whether the requested information must be disclosed. Its discussion identifies matters for the Commissioner’s reconsideration; the judgment expressly declined to give decided or binding views on issues not previously argued and decided by the Commissioner.