knowledge 4 October 2022 |

The Court of Appeal examines the definition of “public authority” under the AIE Regulations

Background

The European Communities (Access to Information on the Environment) Regulations 2007-2018 (the AIE Regulations) provide the public with a right of access to “environmental information” held by or on behalf of bodies falling within the definition of “public authority” contained in the AIE Regulations.

In this case, Right to Know CLG (RTK) requested all noise data and associated wind speed/direction data from Raheenleagh Power DAC (RPD), a limited liability company and the owner and operator of a wind farm in Wicklow.  RPD had been granted an authorisation to construct a generation station and holds a licence to generate electricity under the Electricity Regulation Act 1999 (the 1999 Act).  Of note, RPD is a joint venture between ESB Wind and GR Wind (a wholly owned subsidiary of Greencoat Renewables PLC), who are the 50/50 shareholders in the company.

RPD refused RTK’s request on the basis that it was not a “public authority” under the AIE Regulations. The Commissioner for Environmental Information (the Commissioner) agreed. RTK appealed the Commissioner’s decision to the High Court.

High Court judgment of Owens J

The High Court was asked to determine whether the Commissioner correctly decided that RPD did not come within limbs (b) or (c) of the definition of “public authority” set out in the AIE Regulations. The limbs are, in the relevant part:

1. government or other public administration, including public advisory bodies, at national, regional or local level,

2. any natural or legal person performing public administrative functions under national law, including specific duties, activities or services in relation to the environment, and

3. any natural or legal person having public responsibilities or functions, or providing public services, relating to the environment under the control of a body or person falling within paragraph (a) or (b).²

The High Court³ found that RPD was a “public authority” under limbs (b) and (c) of the definition.

Under limb (b), the High Court held that RPD was a “natural or legal person performing public administrative functions under national law”. That was so because, applying the Court of Justice’s decision in Fish Legal,⁴ the High Court found that RPD had been “entrusted…with the performance of services of public interest” and had for that purpose been vested with “special powers”. It said electricity was a service of public interest similar to water, sewerage, gas and railways. RPD was vested with “special powers” because the 1999 Act conferred certain benefits on RPD as the holder of a licence to generate electricity, including compulsory purchase powers.

Under limb (c), the High Court held that RPD was a “natural or legal person having public responsibilities or functions, or providing public services, relating to the environment under the control of a body or person falling within paragraph (a) or (b).” Again, applying Fish Legal, the High Court found that RPD had “public responsibilities or functions” under limb (c). In so doing, it linked the grant of statutory consents under the 1999 Act to the concept of public responsibilities. The High Court also held that because ESB Wind (a subsidiary of ESB, which the High Court determined was itself a public authority under limb (a) or (b) of the definition) was a shareholder in RPD and because there was a management agreement in place by which ESB undertook the day to day management of the windfarm, this “led inexorably” to the conclusion that RPD was under the control of ESB.

RPD appealed the entirety of the High Court’s judgment to the Court of Appeal.

Court of Appeal judgment of Costello J⁵

The Court of Appeal addressed three distinct issues in its judgment. The first was whether RPD was entrusted with the performance of services of public interest. The second was whether RPD had been vested with special powers. The third was whether RPD was under the control of ESB.  

Entrusted with the performance of services of public interest

The court noted that determining whether RPD had been entrusted with the performance of services of public interest involved answering two separate questions:

In answering those questions, the court noted that RPD had been granted a licence and authorisation under the 1999 Act and was regulated by the Commission for the Regulation of Utilities (the CRU). However, the court placed emphasis on the fact that RPD has “no responsibility for the generation of electricity; it has a permission to do so.” In the court’s view, that lack of responsibility was “inconsistent…with the performance of a public function or the provision of a service of public interest.” The court continued by holding that the liberalisation of the electricity market meant that “[t]he generation of electricity is no longer the provision of a service in the public interest.” The court further explained that the generation of electricity is “in essence a voluntary or optional activity in a competitive market and the fact that it is a regulated -indeed highly regulated- market does not detract from this crucial fact.” For that reason, licence and authorisation holders were precluded from “satisfying the test in Fish Legal”.⁶

Vested with special powers

Notwithstanding its finding that RPD was not a public authority under limb (b) of the definition because it was not entrusted with the performance of services of public interest, the Court of Appeal turned to whether RPD had been vested with special powers. On this point, the Court of Appeal agreed with the High Court and found that it was “clear beyond argument” that RPD had been vested with special powers within the meaning of Fish Legal. The court held that in determining whether an entity has been vested with “special powers” the appropriate comparator for the entity in question was “another hypothetical private enterprise who does not benefit from the statutory powers conferred on the holders of licences and authorisations”. In that regard, the court noted the powers afforded to a licence-holder under the 1999 Act to “enter upon the lands of another, cut trees, shrubs or hedges without the permission of the landowner”. The court further noted the compulsory purchase power granted to licence-holders like RPD in the 1999 Act, holding that it was irrelevant that licence-holders “must obtain the consent of the CRU to exercise the power or that they may formally be exercised by the CRU”. That was because the power nonetheless resulted in “a difference between the normal rules applicable between persons governed by private law and the entity in question”.

Control

On the issue of control, the Court of Appeal held that pursuant to the decision in Fish Legal two separate questions must be asked. The first is whether “public authority within the meaning of Article 2(2)(a) or (b) is in a position to exert decisive influence on the entity’s action in the environmental field” (emphasis added). In addition, “it must be shown that the entity does not determine in a genuinely autonomous manner the way in which it performs the functions in the environmental field which are vested in it.” The court held that it is not enough to merely show the potential for influence, rather, it is “necessary to show that a public authority has had an actual impact on the entity’s decision-making”. In that regard, the court held that no findings of fact had been made by the Commissioner that subtended the High Court’s finding in relation to control, and that the only evidence before the court indicated that RPD did act in a genuinely autonomous manner. The Court of Appeal also observed that “there would be no reason for GR Wind to invest in RPD if it did not so operate but, instead, was in fact, under the control of ESB Wind.”  The fact that ESB provided management services to RPD did not change the conclusion on control, as the management and operations agreement did not relate to control of RPD.   

Those reasons were sufficient for the court to overturn the High Court’s finding in relation to control, but in view of the fact that the High Court had held that the Commissioner erred in its interpretation of the other part of the test under limb (c) as to whether RPD was an entity “having public responsibilities or functions, or providing public services”, the court thought it appropriate to also address that issue.⁷ The court found that RPD did not have public responsibilities or functions or provide public services for the same reasons that it had found that RPD was not entrusted with the performance of services of public interest.⁸

The court noted that in the absence of any necessary factual findings by the Commissioner, the only courses open to the High Court were to find as a matter of law that RPD could not be under the control of a public authority within the meaning of limb (a) or (b), or, alternatively, to remit the matter to the Commissioner so that the necessary factual findings could be made.   

Comment

It is now clear that private entities will not be deemed public authorities under the AIE Regulations on the sole basis that they hold authorisations and/or licences under the 1999 Act.

In addition, the Court of Appeal’s comments on control will provide greater clarity to all entities who are in a JV with a public authority.

Also contributed by Darragh Caldwell.