The Court of Appeal has set aside the Commissioner for Environmental Information’s decision refusing access to information about Coillte’s sale of its leasehold interest in 402.92 hectares at Kilcooley Abbey Estate, County Tipperary. It remitted the request for information in categories 3 to 7 for reconsideration. The court did not decide that the sale was an environmental measure, or that the information must be disclosed.
The appeal was brought by Jim Redmond after the Commissioner concluded that details including the purchaser, price, parties involved and valuation were not “environmental information” under the Access to Information on the Environment Regulations. The High Court had rejected the Redmonds’ judicial review application. In the Court of Appeal, the central question was whether the sale could amount to a measure likely to affect the environment, making information about it potentially accessible under the Regulations.
Giving judgment on 3 April 2020, Mr Justice Maurice Collins said a public authority’s sale of land could qualify as such a measure, depending on the evidence of its possible environmental effects. “Likely to affect” required a real and substantial possibility of an effect, he said, rather than proof that an impact was more probable than not. He stressed that this did not make every public land sale an environmental measure.
The court found the Commissioner had focused too narrowly on whether a new owner could fell trees without a licence and had not properly assessed the sale’s possible environmental effects. The material before the Commissioner included Coillte appraisals identifying potential impacts involving biodiversity, old woodland and archaeological features, with some impacts scored high. Collins J said the Commissioner should have considered that material and made appropriate further inquiries.
The judgment also addressed a broader, reformulated request for information and correspondence about proposed development, access and rights of way. Coillte had not formally decided that request, so the Commissioner was entitled to exclude it from the appeal, although that position should have been communicated earlier. The court directed Coillte to make a decision on it. Any redactions should be explained sufficiently for Mr Redmond to consider an internal review or appeal.
On reconsideration of categories 3 to 7, the Commissioner must assess the evidence, including any further material and submissions from Mr Redmond and Coillte. Even if the sale is found to be an environmental measure, the Commissioner must still consider whether each category of information is “on” that measure and whether any ground for refusing access applies, including commercial confidentiality. The court expressed no final view on those questions.