The Court of Appeal dismissed appeals by the Commissioner for Environmental Information and the Minister for Communications, Energy and Natural Resources in a dispute over access to a report on options for State intervention in next-generation broadband rollout.
In a judgment delivered by Mr Justice Gerard Hogan on 28 July 2017, the court held that the report could qualify as “environmental information” under Article 3(1)(e) of the European Communities (Access to Information on the Environment) Regulations 2007, if it was used in preparing the National Broadband Plan. It did not order the report’s release.
Stephen Minch had applied to the Minister in May 2013 for access to the report, prepared by consultants Analysis Mason. The Minister refused the request on the basis that it was not environmental information. The Commissioner upheld that preliminary decision in December 2014, without considering whether another ground might justify withholding the report. The High Court set aside the Commissioner’s decision in February 2016, prompting appeals by the Commissioner and Minister.
The report modelled the likely capital costs of different technical options for providing high-speed broadband in areas not expected to be served by the private sector. It did not assess environmental effects or discuss whether particular technologies would require masts or cable-laying. The Court of Appeal agreed that the report was not itself a plan, policy or programme likely to affect the environment, and so did not fall within Article 3(1)(c).
The court took a different view of the National Broadband Plan. It said the plan proposed actions with potential environmental effects, including road openings for fibre and planning permissions for wireless installations. The plan said at least 2,000 new installations might be needed for wireless technology. The court said these effects could not be dismissed as remote or incidental.
The judgment said an economic analysis falls within Article 3(1)(e) when used in the framework of a plan or other measure that affects, or is capable of affecting, the environment. The Commissioner had not expressly found whether the broadband report’s analysis was used in preparing the plan. If that point remained disputed, the judgment favoured remitting the matter to the Commissioner for a factual finding. If the Commissioner found that the report was so used, the judgment directed that it would constitute environmental information.
The court’s conclusion addressed the report’s classification under the regulations. It did not decide whether any other exception could justify refusing access. The judgment proposed that counsel discuss the precise form of order required.