The Court of Appeal has ruled that Raheenleagh Power DAC (RPD), which owns and operates the Raheenleagh Wind Farm in Co Wicklow, is not a public authority required to provide environmental information under the access-to-information rules.
In a judgment delivered on 21 September 2022, Ms Justice Costello, with whom Justices Noonan and Faherty agreed, allowed RPD’s appeal. The court held that RPD was not entrusted by law with providing a service of public interest and had not been shown to be under the control of a public authority. It said RPD was therefore not required to provide the information sought by Right to Know CLG (RTK). The court did not remit the matter to the Commissioner for Environmental Information or refer a question to the Court of Justice of the European Union. It left costs for a short hearing scheduled for October 2022.
RTK’s request arose after Coillte Teoranta refused part of an earlier request for environmental information about the wind farm, saying the information was held by RPD. In May 2017, RTK sought noise data, wind-speed and direction data, and calculations relating to noise compliance. RPD did not initially reply. It later said it was not a public authority under the regulations.
The Commissioner for Environmental Information also found that RPD was not a public authority. On RTK’s appeal on a point of law, the High Court ruled in 2021 that RPD fell within two categories in the legal definition: an entity performing public administrative functions and an entity under the control of a public authority. RPD appealed that decision.
The Court of Appeal said electricity generation was a competitive, voluntary activity. RPD’s authorisation to build a generating station and licence to generate electricity gave it permission to operate, but did not require it to generate electricity or sell it. The court also found that the renewable-energy support scheme discussed in the case placed the relevant public service obligation on electricity suppliers, not generators such as RPD. It concluded that RPD had not been entrusted with a service of public interest for the purposes of the rules.
The court agreed with the High Court on one part of the analysis: RPD held statutory powers that went beyond ordinary private-law rights, including powers relating to access to land and compulsory purchase. But those powers alone did not make it a public authority. The legal test also required entrustment with a service of public interest.
On control, the Court of Appeal said the Commissioner had made no findings about whether a public authority actually influenced RPD’s environmental decision-making. Potential influence through shareholdings or management arrangements was insufficient. The court said it had not been shown that RPD failed to operate autonomously. It therefore overturned the High Court’s finding that RPD was under public-authority control.