In a major decision released on 23rd September, the Information Commissioner Emily O’Reilly has directed Kildare County Council to turn over to the Hill of Allen Action Group documents concerning planning at Roadstone’s quarry that the Council has fought to keep secret for more than a year.
A spokesperson for the Group said “We are delighted that the Information Commissioner has agreed that the public has a right to know why KCC has failed to enforce its 2006 decision to require Roadstone to submit an EIS and planning application for its quarry at the Hill of Allen. KCC has persisted in denying the public its right to see these documents. Maybe now we’ll finally get some answers.”
In September 2007, under Directive 2003/4/EC and the European Communities (Access to Information on the Environment) Regulations 2007 (S.I .No 133 of 2007), the Hill of Allen Group made a formal request to KCC for court papers and all other documents relating to the planning case which have not been made available to the public.
In October the Council released some documents but refused others which were deemed too sensitive.
The Group asked for an internal review of the decision, and when none was forthcoming, in January 2008 they appealed to the Office of the Information Commissioner.
The information being sought originated in KCC’s decision on the 21st July, 2006 under section 261 of the Planning and Development Act 2000 to require Roadstone to submit a planning application and an Environmental Impact Statement (EIS) for its quarry at the Hill of Allen.
Roadstone applied for judicial review of the decision in the High Court.
The Hill of Allen Group, concerned that KCC was not vigorously defending its side, applied to be added to the case as a Notice Party, but Roadstone and KCC asked the judge to strike out the case on the 30th July 2007, the day he was to rule on the Group’s application. This move denied the Group access to court documents which might explain why KCC failed to enforce its 2006 planning decision.
Since the case was struck out, the Council and Roadstone have been engaged in negotiations to secure agreement on the operation of the quarry under section 47 of the Planning Act.
At various times since August 2007 the Council has announced to the public and to government officials that completion of the agreement was “imminent”.
In the Commissioner’s decision, Ms. O’Reilly noted that “my Office was informed at various times by officials of the Council that completion of the section 47 agreement was imminent”. On the 20th of February 2008 the Council told the Commissioner that the agreement would be finalised “within the next 10 days" (by the 1st of March 2008), and on the 21st of May they wrote that it would be signed “within 21 days” (by the 11th of June). The Commissioner noted, “At the date of the drafting of this decision in September 2008 I am advised that the Agreement has still not been signed”.
A spokesperson for the Group said: “The continual delays are a real embarrassment, and for the Council to now say that they’re waiting on Roadstone’s lawyers to sign the agreement is just more evidence that they have completely ceded their authority over planning to the company. What motivation does Roadstone have to complete the deal? It appears that they’ve been quarrying the Hill illegally for the past two years with no regulation at all.”
She added, “The long-awaited agreement will be meaningless unless it requires Roadstone to submit an EIS and a planning application, and allows for public observation, objection, and appeal to An Bord Pleanala. Anything less is unacceptable to us, and invalid under Irish and EU law.”
In her decision, the Information Commissioner wrote:
“There is a strong public interest in the public being aware how a quarry operation is regulated, particularly given the potential emissions and effects that the operations could have on the environment. In the normal course of events, the applicant would have been in a position to inspect a planning application, make submissions and have these considered by the planning authority. It would have had access to an Environmental Impact Statement and would have had appeal rights to An Bord Pleanála if it considered that the Council's conditions were insufficient to protect the environment. As things stand, the Council has, apparently, decided that it cannot exercise its powers under section 261 of the Planning and Development Act 2000 to have a planning application and EIS submitted and that a section 47 agreement with Roadstone will be drawn up instead. . . . I draw attention to the fact that the Section 47 Agreement process has being going on for over a year. The public interest in release of information might be weaker if the public had already had an opportunity to be informed of the reasons for decisions taken and for the delay in regulating the operation.”
The documents that must be released to the Group do not include legally privileged communications between planning officials and Council lawyers, or “commercially sensitive” information. The Group had agreed that they would not insist on seeing that information.
By law, the Council must turn the documents over to Group within three weeks. If it doesn’t, the Office of the Information Commissioner may secure a High Court order to force compliance.
Hill of Allen Action Group