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Judgment
Title:
National Asset Management Agency -v- Commissioner for Environmental Information
Neutral Citation:
[2013] IEHC 86
High Court Record Number:
2011 357 MCA
Date of Delivery:
02/27/2013
Court:
High Court
Judgment by:
Mac Eochaidh J.
Status:
Approved

Neutral Citation Number: [2013] IEHC 86

THE HIGH COURT
[2011 No. 357 MCA]

IN THE MATTER OF THE EUROPEAN COMMUNITIES (ACCESS TO INFORMATION ON THE ENVIRONMENT) REGULATIONS 2007 (S.I. No. 133/2007)

AND

IN THE MATTER OF AN APPEAL PURSUANT TO THE PROVISIONS OF ARTICLE 13 OF THE EUROPEAN COMMUNITIES (ACCESS TO INFORMATION ON THE ENVIRONMENT) REGULATIONS, 2007





BETWEEN

NATIONAL ASSET MANAGEMENT AGENCY
APPELLANT
AND

COMMISSIONER FOR ENVIRONMENTAL INFORMATION

RESPONDENT

JUDGMENT of Mr. Justice Colm Mac Eochaidh delivered on the 27th day of February 2013

1. This is an appeal by the National Asset Management Agency ("NAMA") pursuant to the provisions of Article 13 of the European Communities (Access to Information on the Environment) Regulations, 2007 (the "2007 Regulations") against a decision of the Commissioner for Environmental Information (the "Commissioner") made on the 13th September 2011. The issue for decision is whether the respondent erred concluding that NAMA was a public authority by operation of article 3(1)(vi) of the 2007 Regulations.

Background
2. A request for information in accordance with Article 6 of the 2007 Regulations was made by Mr. Gavin Sheridan on 3rd February 2010. That request was refused by NAMA. Mr. Sheridan appealed this decision to respondent who upheld his appeal on the 13th September 2011.

3. The Commissioner's decision was communicated by letter of 13th September 2011 as follows: "In accordance with Article 12(5) of the Regulations, the Commissioner reviewed the decision of NAMA and found that it was not justified in refusing the request on the ground that it is not a public authority within the meaning of the Regulations. She annulled the decision of NAMA and found that it is a public authority within the meaning of the Regulations".

4. A party to an appeal under Article 12 of the 2007 Regulations or any other person affected by the decision of the Commissioner may appeal to the High Court on a point of law from the decision by virtue of Article 13(1) and it is on that basis the appellant makes this appeal.

Legal Issues
5. The legal and procedural issues which in this case are as follows:

      a. Is NAMA a "public authority" for the purposes of the 2007 Regulations as found by the respondent?

      b. Does the High Court have jurisdiction to quash the decision of the Commissioner and remit the matter to the Commissioner?

      c. Does the High Court have jurisdiction to substitute its own decision for that of the Commissioner?


Appellant's Submissions
6. The Commissioner in her decision of 13th September 2011 determined that NAMA constituted a "public authority" as it came within the wording in Article 3(1)(vi) of the 2007 Regulations. Counsel for the appellant submitted that in reaching this conclusion the Commissioner erred in law.

Public Authority
7. Article 3(1) of the 2007 Regulations provides that: "public authority" means, subject to sub-article (2)-

      (a) government or other public administration, including public advisory bodies, at national, regional or local level,

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

      (c) 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),

and includes-
      (i) a Minister of the Government,

      (ii) the Commissioners of Public Works in Ireland,

      (iii) a local authority for the purposes of the Local Government Act 2001 (No. 37 of2001),

      (iv) a harbour authority within the meaning of the Harbours Act 1946 (No. 9 of 1946),

      (v) the Health Service Executive established under the Health Act 2004 (No. 42 of2004),

      (vi) a board or other body (but not including a company under the Companies Acts) established by or under statute,

      (vii) a company under the Companies Acts, in which all the shares are held-

      (I) by or on behalf of a Minister of the Government,

      (II) by directors appointed by a Minister of the Government, (III) by a board or other body within the meaning of paragraph (vi), or

      (IV) by a company to which subparagraph (I) or (II) applies, having public administrative functions and responsibilities, and possessing environmental information;"

8. The central controversy in this appeal concerned the effect of the words 'and includes' in the forgoing definition. Counsel for the appellant contended that: (1) the ordinary meaning of "includes" is not (or is not only) as contended for by the Commissioner; (2) that there is no specific legal definition of "includes" and that the legal meaning applied to the words by the Commissioner is erroneous in the context in which it is used in the 2007 Regulations; (3) applying proper principles of statutory interpretation, the respondent's interpretation of Article 3 cannot be correct; and (4) the interpretation of Article 3 contended for by the Commissioner is unconstitutional and a constitutional interpretation should be afforded to the provision.

Ordinary meaning of "includes"
9. The appellant argued that the ordinary meaning of the word "includes" should be applied and makes reference to both the Oxford English Dictionary (Second Ed. Vol. vii) and the Collins English Dictionary definitions. The appellant suggests that by adopting at least one of these dictionary definitions (for example: "To contain as a subordinate element, corollary or secondary feature;" or "To contain as a secondary or minor ingredient or element"), its use in Article 3(1) of the 2007 Regulations after the specified categories of (a) to (c) suggests that the bodies enumerated between (i) to (vii) are secondary elements of the bodies contained in the preceding provisions.

Legal definition of "includes"
10. The appellant refers to the reliance placed by the Commissioner on the definition of "includes" as provided in Murdoch's "Dictionary of Irish Law" (4th Edition). The appellant is of the view that that text is not a definitive authority in respect of the word "includes" but rather a tool to assist practitioners. That definition provides:

      "The word include has been held to be a word of extension when used in a statutory definition: Attorney General (McGrath) v. Healey [1972] I.R. 393. A word in a statute will have its ordinary meaning in addition to that included by the extension where the extension include is given its definition. The word include has the function of enlarging the meaning of words or phrases with which it is associated: Dilworth v. Stamp Commissioner [1899] A.C. 99."
11. The appellant's view is that Dilworth v. Stamp Commissioner [1899] A.C. 99 highlights that while the word "include" is generally used to enlarge the meaning of words or phrases it may often have another meaning (at p. 105):
      "The word 'include' is very generally used in interpretation clauses in order to enlarge the meaning of the words or phrases occurring in the body of the statute; and when it is so used these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include. But the word 'include' is susceptible to another construction, which may become imperative, if the context of the Act is sufficient to show that it was not merely employed for the purposes of adding to the natural significance of the words or expressions defined. It may be equivalent to 'mean and include', and in that case it may afford an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to those words or expressions. "
12. It was urged by the appellant that in the appropriate context, 'include' might be a word of limitation. The dicta of Diplock L.J. in Inland Revenue Commissioners v. Joiner [1975] 3 All E.R. 105, is cited for this proposition:
      "An interpretation clause in a statute may serve two different purposes. If it states at greater length what an expression used in other provisions in the statute 'means' it is no more than a drafting device to promote economy of language. It is a direction to the reader: 'Wherever you see this shorter expression m the statute you must treat it as being Shorthand for the longer one'. Alternatively an interpretation clause may be used by the draftsman not to define the meaning of an expression appearing in the statute but to extend it beyond the ordinary meaning which it would otherwise bear. An indication that this may be its purpose is given if it purports to state what the expression 'includes' instead of what it 'means' but the substitution of the one verb for the other is not conclusive of its being a direction to the reader: 'Wherever you see this shorter expression in the statute you may treat it as bearing either its ordinary meaning or this other meaning which it would not ordinarily bear'. Where the words used in the shorter expression are in themselves too imprecise to give a clear indication of what is included in it, an explanation of their meaning which is introduced by the verb 'includes' may be intended to do no more than state at greater length and with more precision what the shorter expression means."
13. Reference was made by the appellant to the decision of Mazza J. in the Canadian decision of Allen v. Grenier (1997) 145 D.L.R. (4th) 286: "'include' as defined in the Black's Law Dictionary is a 'term which may, according to context, express an enlargement and have the meaning of and or in addition, or merely specify a particular thing already included within general words theretofore used'. 'Including' within a statute is interpreted as a word of enlargement or of illustrative application as well as a word of limitation..."

14. The decision of McCarthy J. in The Governors and Guardians of the Hospital for the Relief of Poor Lying in Women - The Rotunda Hospital v. Information Commissioner [2009] I.E.H.C. 315, relied upon by the Commissioner in making her decision, was also examined by the appellant. In that case, the relevant provision with regard to what constituted "personal information" was as follows:

      '"personal information' means information about an identifiable individual that-

      (a) would, m the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or

      (b) is held by a public body on the understanding that it would be treated by it as confidential, and, without prejudice to the generality of the foregoing, includes-


        (i) information relating to the educational, medical, psychiatric or psychological history of the individual,

        (ii) information relating to the financial affairs of the individual,

        (iii) information relating to the employment or employment history of the individual,

        (iv) information relating to the individual in a record falling within

        section 6 (6) (a),

        (v) information relating to the criminal history of the individual,

        (vi) information relating to the religion, age, sexual orientation or marital status of the individual,

        (vii) a number, letter, symbol, word, mark or other thing assigned to

        the individual by a public body for the purpose of identification or any mark or other thing used for that purpose,

        (viii) information relating to the entitlements of the individual under

        the Social Welfare Acts as a beneficiary (within the meaning of the

        Social Welfare (Consolidation) Act, 1993 ) or required for the purpose

        of establishing whether the individual, being a claimant (within the meaning aforesaid), is such a beneficiary,

        (ix) information required for the purpose of assessing the liability of the individual in respect of a tax or duty or other payment owed or payable to the State or to a local authority, a health board or other public body or for the purpose of collecting an amount due from the individual in respect of such a tax or duty or other payment,

        (x) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the public body concerned relates to the individual,

        (xi) information relating to property of the individual (including the nature of the individual's title to any property), and

        (xii) the views or opinions of another person about the individual, but does not include-

            (I) in a case where the individual holds or held office as a director, or occupies or occupied a position as a member of the staff, of a public body, the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions aforesaid,

            (II) in a case where the individual is or was providing a service for a public body under a contract for services with the body, the name of the individual or information relating to the service or the terms of the contract or anything written or recorded in any form by the individual in the course of and for the purposes of the provision of the service, or

            (III) the views or opinions of the individual in relation to a public body, the staff of a public body or the business or the performance of the functions of a public body;"

15. In interpreting this section, counsel suggests that McCarthy J. placed particular emphasis on the addition of "and, without prejudice to the foregoing, " immediately preceding "includes" and claims that this addition could only result in an expansive meaning being ascribed to the word. Counsel submitted that it did not follow that this case is authority for the proposition that "includes" must always be given an expansive meaning as a result. In the event McCarthy J. remarked:
      "I think that I might safely, and briefly, at this stage dispose of the proposition that if given information was to fall within the category of 'personal information', it would be necessary not merely that it should be one of the listed classes in the definition (at (i) to (x)) but also that it would 'satisfy' what the Commissioner has described as "the overarching prior requirements", namely, those at subparas. (a) and (b) above. It seems to me that this is a fundamental misconception in terms of an interpretation of the Act. This is because what is described as the list is 'without prejudice to the generality of the foregoing'; the point is, accordingly, that personal information may well extend beyond the listed items but that, whatever else, such listed items are personal information. This type of provision is a commonplace in legal usage, if not on a more widespread basis. "
16. The appellant proposes that the approach of the Commissioner in treating the words "and includes" as meaning "and also includes" or "without prejudice to the generality of the foregoing, includes" had the bizarre consequences that a company in which shares are held by the Minister would be a public authority but its subsidiary is only a public authority if it possesses information on the environment and has public administrative functions and responsibilities.

Interpretation of 2007 Regulations in accordance with Directive 2003/4/EC
17. In attempting to interpret the 2007 Regulations, the appellant also has regard to the provisions of the Directive which it implements, namely Directive 2003/4/EC on public access to environmental information (hereafter the "Directive"). Article 2(2) of the Directive provides a definition of "public authority":

      '"Public authority' shall mean:

      (a) government or other public administration, including public advisory bodies, at national, regional or local level;

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

      (c) 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 (a) or (b).

      Member States may provide that this definition shall not include bodies or institutions when acting in a judicial or legislative capacity. If their constitutional provisions at the date of adoption of this Directive make no provision for a review procedure within the meaning of Article 6, Member States may exclude those bodies or institutions from that definition."

18. The appellant submits that the Directive does not identify those bodies set out in Article 3(1)(i) to (vii) of the 2007 Regulations and that the definition of "public authority" contended by the Commissioner exceeds that which is provided for in the Directive. The appellant refers to the case of Von Colson v. Land Nordrhein­ Wesifalen [1984] E.C.R. 1891 which establishes the principle that national laws which implement European directives must be interpreted in conformity with the relevant directives and therefore the appellant contends that as a matter of proper construction the definition of "public authority" under the 2007 Regulations cannot exceed that provided for in the Directive.

19. Further, the appellant submits that there is a constitutional imperative to interpret the 2007 Regulations strictly in accordance with the Directive. The appellant submits that such an imperative exists in view of Article 29.4.7 of the Constitution, s. 3 of the European Communities Act 1972 and the decision of the Supreme Court in Meagher v. Minister for Agriculture [1994] 1 I.R. 329. The appellant refers to the dicta of Denham J. in that case (at pg. 366) who observed:

      "If the [domestic] regulations contained material exceeding the policies and principles of the directives then they are not authorised by the directives and would not be valid under s.3 unless the material was incidental, supplemental or consequential. In those circumstances if they were not incidental, supplementary or consequential the regulations would be an exercise of legislative power by an authority not so permitted under the Constitution."
It is the appellant's contention that the interpretation of the 2007 Regulations asserted by the Commissioner would provide for substantive differences between the 2007 Regulations and the Directive, which were more than incidental, supplemental or consequential and therefore that the interpretation asserted by the Commissioner is both invalid as a matter of E.U. law and Irish constitutional law.

20. At trial, the appellant also referred to the dicta of Cooke J. in M.S.T & J.T v. Minister for Justice, Equality and Law Reform [2009] IEHC 529 where he summarised the principle espoused by the appellant with regard to the transposition of directives:

      "27. In the ordinary course, where a statutory instrument has been adopted on the basis of s. 3 of the Act of 1972 in order to transpose a Community directive, the Court must presume, in the absence of explicit wording to contrary effect, that the legislative purpose is to give full and accurate effect to the provisions of the Community measure and no more. Thus, the 2006 Regulations fall to be construed in the light of the wording and objective of the Community measure. Where a regulation fails to give full or correct effect to the provision of the Community measure, it may be necessary for a court in an appropriate case to have regard to the possible direct effectiveness of the Community provision where the transposition period has expired and when the State or a State agency purports to rely as against a litigant upon the defective or incomplete domestic provision."
And further:
      "37. So far as concerns, on the other hand, national law, it is to be noted that s. 3 (2) of the 1972 Act provides that regulations may contain 'such incidental, supplementary and consequential provisions as appear to the Minister making the Regulations to be necessary for the purpose of the regulations . . .' Given that the additional wording [used in the 2006 Regulations] has the limited effect, as indicated above, of facilitating the interpretation and application of the transposed provision of Article 4.4 in individual cases where previous harm gives rise to compelling reasons but in which there might be doubt as to whether the criterion of risk of repetition is met, the Court considers that the additional wording constitutes an incidental and supplemental provision to the transposition. "
The appellant submits on this basis that if there are two different ways of interpreting the definition of "public authority" then it is the interpretation which keeps it within the framework of the Directive which is the correct interpretation.

21. Counsel for the appellant asserts that the view of the Commissioner, expressed in her decision, that the Directive encourages an expansive approach to the definition of "public authority" is based on a deviation from the proper meaning of Recital (11) of the Preamble to the Directive. The appellant states that Recital (11) provides that the definition of "public authorities" should be expanded within the Directive to include those bodies which are so defined within the Directive and does not seek to expand the definition of "public authority" beyond that provided for in the Directive.

22. The appellant further submits that in respect of the provisions of Recital (24) of the Preamble to the Directive, which states that the Directive "shall not affect the right of a Member State to maintain or introduce measures providing for broader access to information than required by this Directive", the Commissioner misunderstood this as somehow empowering the Minister to introduce measures by way of statutory instrument which are not provided for in the Directive and which are not incidental to its implementation. Rather, the appellant submits, such a function is only something which the Oireachtas can provide for in primary legislation.

Ejusdem Generis Principle
23. The appellant, in addressing the ejusdem generis rule of statutory interpretation, cited Bennion on Statutory Interpretation (pg. 1234) to the effect that: "For the ejusdem generis principle to apply, there must be a sufficient indication of a category that can properly be described as a class or genus, even though not specified as such in the enactment. Furthermore, the genus must be narrower than the general words it is said to regulate." In this instance, the appellant asserts the genus is defined in Article 3(1)(a),(b) and (c) (persons with public responsibilities relating to the environment) and that it is narrower than the general words it is said to regulate (as a board or body may have no public responsibilities relating to the environment). The appellant believes the Commissioner erroneously applied the rule by relating the genus to the term "public authority" rather than to the classes identified at Article 3(1)(a), (b) and (c) of the 2007 Regulations. In this regard it was asserted that the proper application of the rule shows that the general categories in Article 3(1)(i) to (vii) must be interpreted as being of the same genus as the specific categories in Article 3(1)(a), (b) and (c).

24. Finally, in respect of the question as to whether NAMA constitutes a "public authority" for the purposes of the 2007 Regulations, the appellant submitted that the 2007 Regulations cannot be interpreted so that a body might be considered a public body by virtue of Article 3(1)(vi) alone. It was contended that such a finding would result in all boards or bodies established by or under statute (other than companies under the Companies Acts) being public authorities within the meaning of the 2007 Regulations.

Role of the Court in 'Question of Law' Statutory Appeal
25. In respect of the procedural issues raised at paragraph 5 (b) and (c) above, the appellant first addresses the question of whether the High Court has jurisdiction to quash the decision and remit the matter to the Commissioner. It appears to the appellant that there is no explicit power to quash and/or remit a decision provided for in the 2007 Regulations, however, it is submitted that the court has an inherent jurisdiction to quash a decision and that the absence of such power would otherwise severely impair the statutory appeal process. Counsel for the appellant refers to Usk and District Residents Association v. An Bord Pleanala and Others [2007] IEHC 86 and the dicta of Kelly J. therein, in respect of the court's power to remit a matter:

      "Since the coming into force of the Rules of the Superior Courts of 1986, the Court is granted an express power to remit a decision in respect of which an order of certiorari has been made. This is contained in 0. 84, r. 26(4) which states:

        'Where the relief sought is certiorari and the court is satisfied that there are grounds for quashing the decision to which the application relates, the court may, in addition to quashing it, remit the matter to the court, tribunal or authority concerned with a direction to reconsider it and reach a decision in accordance with the findings of the court."'
26. While the appellant accepts that the remarks of Kelly J. in the above case are obiter dicta, it is submitted that those observations are persuasive and that support for such a view can also be found in the case of Sheehan v. District Judge Reilly [1993] 2 I.R. 81 where Finlay C.J. in considering the provisions of Order 84, rule 26(4) stated:
      "It must first clearly be stated that this rule which, on the face of it, gives to the court a discretion as to whether or not to remit a matter in which an order has been quashed for further consideration, cannot, having regard to the limitation of the powers vested in the rule making authority pursuant to the Courts of Justice Acts be the grant of any new or different power that is not already vested in the court by virtue of statute or by virtue of inherent jurisdiction."
Kelly J. in Usk noting the above comments of Finlay C.J., states:
      "Interesting as this proposition may be, it is quite unnecessary for me to consider it since all I am doing in the instant case is deciding whether or not the discretion undoubtedly granted by the relevant rule ought to be exercised in the manner urged by Green Star and the Board."
27. Counsel for the appellant also refers to instances in which the courts have previously remitted cases to inferior tribunals in circumstances where matters had arisen on foot of statutory appeals and where no explicit power to remit had been provided by the statute in question, namely F.P. v. The Information Commissioner [2009] IEHC 574 and N. McK v. Information Commissioner [2006] 1 I.R. 260. On this basis the appellant submits that the power to quash the decision and remit it for further consideration is either or both implicit in the statutory framework and I or arises from the inherent jurisdiction of the court.

Power to Substitute Decision
28. In answering the second procedural issue raised at paragraph 5 above, the appellant is of the view that the power of the court to substitute its decision for that of an inferior tribunal exists by reference to the specific appellate jurisdiction which has been granted by statute. The appellant points to the decision of Finnegan P. in Glancre Teo. v. Cafferkey [2004] 3 I.R. 401 where he considered that the scope of the appeal should be determined by construing the statute which provided for it and also noted a distinction between general appellate jurisdiction and one limited to a point of law:

      "Accordingly, where the court is given an appellate jurisdiction it must construe the words used by the legislature to see whether the court has power to substitute its own opinion for that of the decision maker if it considers that the impugned act was wrong on the merits and not merely wrong in law. In Dunne v. Minister for Fisheries [1984] I.R. 230 Costello J. started from the premise that the Oireachtas, in conferring the appellate jurisdiction, must have intended that the jurisdiction on appeal should be wider than the court's powers when exercising its inherent jurisdiction at common law of review. He had regard to the fact that the section under consideration there did not expressly limit the appeal to one on a point of law. Adopting this approach in the present case I am satisfied that s. 5 of the Local Government (Planning and Development) Act, 1963 confers upon the High Court a full power of appeal and not some more limited form of review. There is nothing in the wording of the section to suggest any restriction and in these circumstances the High Court has full appellate jurisdiction."
29. The appellant submits that the approach of Costello J. in the Dunne case was recently taken by Cooke J. in Rye Investments Ltd. v. Competition Authority [2009] IEHC 140 wherein Cooke J. stated:
      "It is well settled that where the Oireachtas creates a statutory remedy by way of review or re-examination of a decision taken by an administrative or quasi judicial tribunal, the primary rule for determining the nature and scope of that review is that of construing the words used by the legislature. In particular, where the statute expressly employs the term 'appeal' rather than limiting the remedy explicitly to 'judicial review' or to an appeal on a point of law, it is of primary importance to determine whether the Oireachtas intended the Court to have power to substitute its own view of the merits of the contested decision for that of the decision maker if it judges that the decision was incorrect on its merits and not merely wrong in law."
30. Cooke J. in examining the provisions of s. 24 Competition Act 2002 went on to say:
      "(b) In principle and subject to the important limitation mentioned below, an appeal may raise 'an issue of law or fact' concerning the determination. The procedure before the High Court is not therefore confined to an appeal on a point of law and thus contrasts with a further limited review which is possible for the Supreme Court as provided in ss.(9) of s. 24. It follows, accordingly, that the appeal includes, but is wider than, a review of the substantive and procedural legality of a determination. To paraphrase the words quoted from Wade's Administrative Law by Costello J. in Dunne v. Minister for Fisheries (above) the appeal may raise both the question 'Is it lawful or unlawful?' and the question 'Is it right or wrong?'

      (c) On the other hand, it is equally clear that the procedure is not expressly an appeal by way of re-hearing of the original notification in which the decision of the court fully replaces that of the Authority and, in this respect, the provision can be contrasted with, for example, the procedure for review of an application for planning permission decided by a local authority when appealed to the Planning Board under s. 37 of the Planning and Development Act 2000 (see in particular ss(l)(g) of that Section)."

31. Cooke J. ultimately held that an appeal pursuant to s. 24 Competition Act 2002 did allow the court to substitute its own determination for that of the Competition Authority, however the appellant submits that from his observations above, Cooke J. considered that such an approach was not open to the court if it was simply examining an appeal on a point of law. The appellant submits that this is the logical implication given that the jurisdiction of the court to entertain an appeal is limited in these circumstances to identified issues of law. Counsel suggests that in any other approach the court would essentially be making, in the first instance, a decision which the legislature has deliberately vested, in the first instance, in an inferior body.

32. The appellant goes on to cite a decision of the Court of Appeal of England and Wales in E. v. Secretary of State of the Home Department [2004] Q.B. 1044, where that court examined the scope of the High Court's appellate jurisdiction in respect of a decision of the Immigration Appeal Tribunal. In examining the various remedies in administrative law the court opined:

      "40. There was some discussion in the present case as to whether the grounds upon which the Court may question a decision of the IAT differ materially, depending on whether the case comes before the Court as an application for judicial review, or as an appeal on a point of law. It would certainly be surprising if the grounds for judicial review were more generous than those for an appeal. In practice, such cases only come by way of judicial review because the IAT has refused leave to appeal, and its refusal can only be challenged in that way. There is certainly no logical reason why the ground of challenge should be wider in such cases.

      41. More generally, the history of remedies in administrative law have seen the gradual assimilation of various forms of review, common law and statutory. The history was discussed by the Law Commission in its consultation paper Administrative Law: Judicial Review and Statutory Appeal (1994) (No. 126), Parts 17-18. The appeal 'on a point of law' became a standard model (supplanting in many contexts the appeal by 'case stated') following the Franks Committee report on Administrative Tribunals and Inquiries (1957) (CMND 218), which was given effect in the Tribunals and Inquiries Acts, 1958 (now Tribunals and Inquiries Act, 1992, Section 11). In other statutory contexts, (notably, planning, housing and the like), a typical model was a statutory application to quash on the grounds that the decision was 'not within the powers of the act'; see e.g. Ashbridge Investments Limited v. Minister for Housing and Local Government [1965] 1 WLR 1320. Meanwhile the prerogative writ procedures were remodelled into the modem judicial review procedures. In R. v. Hull University Visitor ex parte Page [1993] AC 682, the House of Lords acknowledged the evolution of a common set of principles 'to ensure that the powers of public decision making bodies are exercised lawfully': pg. 701, per Lord Browne Wilkinson.

      42. Thus, in spite of the differences in history and wording, the various procedures have evolved to the point where it has become a generally safe working rule that the substantive grounds for intervention are identical. (The conceptual justifications are another matter; see, for example, the illuminating discussion in Craig, Administrative Law 5th ed. (2003), (pp. 476 ff). The main practical diving lime is between appeals (or review procedures) on both fact and law, and those confined to law."

The appellant asserts that from the above authorities, an appeal on a point of law is limited and is analogous though not identical to judicial review. Counsel submits that the court's jurisdiction in hearing such an appeal is to decide whether or not the decision was right or wrong as a matter of law and, if it finds that it was wrong, to quash the decision and remit the matter to the inferior tribunal.

33. It follows from the above argument by the appellant, that the court in exercising its appellate jurisdiction in this case is limited to considering the specific subject matter of the appeal. The appellant submits that as the Commissioner has determined that NAMA is a public authority under Article 3(1)(vi) of the 2007 Regulations, it is not open to the court to consider whether NAMA might fall within another part of Article 3. Rather, the court has no jurisdiction to decide that NAMA is a public authority for reasons which were not canvassed before or considered by the Commissioner. The appellant cites Costello J. (at pg. 458) in Vavasour and The Employment Equality Agency v. Northside Centre for Unemployed Limited and Others [1995] 1 I.R. 450 in support of this to the effect that:

      "...As the statute only permits appeals to this court on a point of law arising from a determination of the Labour Court and as the Labour Court made no determination in relation to the point now advanced, this court has no jurisdiction to entertain it."
34. Further, the appellant refers to the decision of the Supreme Court in the Governors and Guardians of the Hospital for the Relief of Poor Lying-in-Women, Dublin v. Information Commissioner [2011] IESC 26, where the Supreme Court held that the High Court ought not have considered an issue which was not canvassed before it and which did not form part of the decision of the Information Commissioner, Fennelly J. stating:
      "[35]...I think it is an integral part of any appeal process, other than possibly an appeal by complete re-hearing, that any point of law advanced on appeal shall have been advanced, argued and determined at first instance...

      [37] I do not accept that the new point should have been considered either because many other cases raised the same issue or because it was a matter of importance. The act is clear: an appeal to the High Court lies only in respect of a point of law. It must be a point of law involved in the decision under appeal. Thus, I do not think that the High Court should have entertained the point. "

However, the appellant notes that the Supreme Court did in fact consider the point in question due to the unusual circumstances that the issue, if un-reviewed, would stand as a binding precedent.

35. As such, the appellant's final submission is to the effect that the court is limited in its appellate jurisdiction to considering the issue which is brought before it on appeal. Namely, that NAMA is a public body within the meaning of Article 3(1)(vi) of the 2007 Regulations. The court should not determine that NAMA is a public body under another provision of the 2007 Regulations or for a reason or reasons not canvassed before the Commissioner and on which the Commissioner made no determination.

Respondent's Submissions
36. The respondent submits that in order to decide on the correct interpretation of the 2007 Regulations and whether the Commissioner was correct in concluding that NAMA is a "public authority", the court must in the first instance look to the Directive which the 2007 Regulations implemented.

Implementation of the Directive
37. The Directive repealed Directive 90/313/EEC which the respondent submits had a narrower definition of "public authority" than that to be found in the Directive:

      "Any public administration at national, regional or local level with responsibilities, and possessing information, relating to the environment with the exception of bodies acting in a judicial or legislative capacity."
38. The respondent notes that there were problems with the practical application of Directive 90/313/EEC and suggests that in light of the signing of the UN/ECE Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters (the "Aarhus Convention") by the European Community a new directive was needed. The respondent asserts that one of the key aims of the Directive was to expand the definition of public authorities to encompass government or other public administration at national, regional or local level, whether or not they have specific responsibilities for the environment.

39. The respondent cites from Indent 11 of the Preamble to the Directive to the effect that one of the aims of the Directive is:

      "To take account of the principle m Article 6 of the Treaty, that environmental protection requirements should be integrated into the definition and implementation of Community policies and activities, the definition of public authorities should be expanded so as to encompass government or other public administration at national, regional or local level whether or not they have specific responsibilities for the environment. The definition should likewise be expanded to include other persons or bodies performing public administrative functions in relation to the environment under national law, as well as other persons or bodies acting under their control and having public responsibilities or functions in relation to the environment."
40. Further, the respondent cites Indent 15 of the Preamble which states:
      "Member States should determine the practical arrangements under which such information is effectively made available. These arrangements shall guarantee that the information is effectively and easily accessible and progressively becomes available to the public through public telecommunications networks, including publicly accessible lists of public authorities and registers or lists of environmental information held by or for public authorities."
41. The respondent refers to the definition of "public authority" contained in the Directive and cited at paragraph 17 above but also refers to Article 3(5) of the Directive which states that:
      "For the purposes of this Article, Member States shall ensure that:

      (a) officials are required to support the public in seeking access to information;

      (b) lists of public authorities are publicly accessible;..."











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