High Court reconfigures CJEU reference judgment to address second remittal effectiveness breach issues.

[2026] IEHC 68

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2025.0000355]

IN THE MATTER OF ORDER 84 OF THE RULES OF THE SUPERIOR COURTS AND IN THE

MATTER OF THE EUROPEAN COMMUNITIES (ACCESS TO INFORMATION ON THE

ENVIRONMENT) REGULATIONS 2007-2014

BETWEEN

PEOPLE OVER WIND

APPLICANT

AND

COMMISSIONER FOR ENVIRONMENTAL INFORMATION

RESPONDENT

AND

COILLTE CUIDEACHTA GHNÍOMHAÍOCHTA AINMNITHE, IRELAND AND THE ATTORNEY

GENERAL (BY ORDER)

NOTICE PARTIES

AND

RIGHT TO KNOW CLG (BY ORDER)

AMICUS CURIAE

(No. 2)

JUDGMENT of Humphreys J. delivered on Tuesday 10 February 2026 as amended on

Wednesday 8 July 2026

Judgment history

1. In People Over Wind v. Commissioner for Environmental Information (No. 1) [2025] IEHC

593 (Unreported, High Court, 5 November 2025), I indicated an intention to refer certain issues to

the CJEU in principle.

Procedural history

2. Following the original version of the No. 1 judgment, parties were afforded time for further

submissions on the questions to be referred, and then afforded further time for submissions on the

draft judgment for reference. The applicant availed of that, with relatively modest suggestions. By

contrast, it is fair to say that a consistent theme from the commissioner was that the decision-

making process needed to be reflected in the judgment in a more developed way, so I attempted to

answer that in the present ruling, which attempted to explain why the proposed reference was taking

the form it was. The applicant’s response was initially inter alia to seek an opportunity for comment,

and I provided for that through the draft judgment procedure.

3. Meanwhile, on 3 December 2025, the No. 1 judgment was amended in a relatively modest

respect.

4. On 4 February 2026, a draft of the original version of this No. 2 judgment (and exceptionally

a second draft of the No. 3 judgment for reference) was sent to the parties to give an opportunity

to identify any errors.

5. The deadline for such comments from the parties was to be 9:30 on Monday 9 February

2026.

6. An initial version of the present judgment was issued on 10 February 2026 following a draft

process as referred to above. The purpose of the judgment as issued was to clarify certain matters

raised by the commissioner, for the purposes of an intended reference.

7. The No. 3 judgment for reference was also issued on 10 February 2026 referring the

following two questions to the CJEU:

First question

Do Article 6(1) and/or (2) of Directive 2003/4 and/or Article 9(1) and/or (4) of the Aarhus

Convention and/or Article 47 of the Charter of Fundamental Rights of the EU insofar as the

foregoing relate to the requirement that remedies be timely and/or expeditious and/or

effective have the effect that a competent authority designated by domestic law acting under

Article 6(2) of Directive 2003/4 and/or Article 9(1) and/or (4) of the Aarhus Convention

and/or Article 47 of the Charter of Fundamental Rights of the EU is required to exercise its

functions under national law to the maximum extent possible so as to enable it to make a

final decision on the request to which the review procedure or judicial procedure relates,

including by coming to findings of fact and evaluative judgements after making a full and ex

nunc examination of all the relevant elements of fact and law submitted by the parties, in a

context where:

(a) remittal of the matter to the public body for further fact-finding or evaluative

judgements or a fresh decision would be more likely than not to occasion further

delay which could jeopardise the timely and/or expeditious finalisation of the

outcome of the request for information (including by exacerbating a delay that had

already occurred) as compared with a counterfactual scenario whereby the

competent authority required the public body to set forth its position within the

context of the appeal to the competent authority itself without remittal to the public

body; or

(b) in particular, in addition to the foregoing, the decision has already been set aside

and remitted to the public body at a previous stage of the procedure?

Second question

If the answer to the first question is Yes, do the provisions referred to in that question have

the effect so referred to independently of:

(a) the existence or extent of backlogs of other decisions pending before the

competent authority (which inherently gives rise to the possibility that some other

case may be selected as a lead case for any given issue);

(b) the administrative convenience and/or saving of resources for the competent

authority in directing remittal, and/or the desirability of having the public body make

a fresh decision in the light of an intervening domestic court decision, prior to

substantive review by the competent authority; and/or

(c) delay by the public body in responding to requests by the domestic competent

authority for submissions in the context of an appeal as a reason for favouring a

decision to remit the matter to the public body for a fresh decision rather than for

finalising the issue in the context of the appeal?

8. Not long thereafter I indicated to the parties that I was developing some concerns that the

appropriate factors had not been identified by the parties to enable the correct factual conclusions

to be drawn regarding the cause of delay, so I was considering revisiting that issue. I did offer the

parties the opportunity to provide further affidavits or submissions before amendment of the

judgments but they did not choose to avail of that. As soon as I became aware that the applicant

had submitted a set of papers for the CJEU I asked the registrars to put that on hold until I could

review matters in the light of my developing concerns, but in fact in an impressive burst of efficiency

on all sides, the papers had already been sent to Luxembourg by the time my request filtered

through.

9. On 16 April 2026, the applicant wrote to the List Registrar as follows:

“Our Reference: FPL/796/03274 Your Reference:

16 April 2026

By email

Registrar

Planning and Environment Court environment@courts.ie

Our client: People Over Wind

RE: People Over Wind v Commissioner for Environmental Information and Coillte High

Court 2025 355 JR

A Chara

Thank you for your email of the 11 March last setting out issues which the Court has

identified. We are grateful to the Court for giving the Applicant the opportunity to comment

on these issues.

By way of preliminary observation, the Applicant is concerned that the Commissioner is

seeking to put forward counterfactuals which were never the subject of evidence before the

High Court. In that context, the Applicant was never consulted in relation to the procedure

following the decision of the Court in Commissioner for Environmental Information v People

Over Wind in relation to the claimed lead case or otherwise. The decision of the

Commissioner makes no reference to the lead case. The statement of opposition filed on

the 15 May 2025, sets out the reasons for delay, and again makes no reference to the lead

case. The affidavit of Julie O’Leary verifying the statement of opposition does not refer to a

lead case, but instead sets out what happened in detail, and emphasises the increased

workload of the Commissioner. In the third affidavit of Julie O’Leary delivered on the 2

October 2025, there is reference to lead case which had then been determined, but it is not

suggested that the fact that the Commissioner had a different lead case was the reason why

this matter was remitted. Neither the written submissions delivered by the respondent, nor

the statement of case make this point.

After the delivery of judgment by the Court, a written submission was delivered by the

Commissioner in which the following statement was made;

‘In September 2024, prior to the decision to remit this case to Coillte, the Commissioner had

identified a different case as the lead case. The factual statement in paragraph 95 of the

judgment that this happened subsequent to the decision to remittal is not correct. This is

important because the Commissioner was of the view that remittal of the matter to Coillte

would not in fact delay a final decision in this case, which would in any event have to wait

until the Commissioner had decided the lead case.’

This is not a reason that was given by the Commissioner in the decision, was not put on

affidavit by Ms O’Leary, and never featured in the written record as set out above. There is

no evidence before the Court to support this statement.

In fact, the evidence from the Commissioner’s file shows that his office contacted Coillte on

2 July 2024 asking Coillte if would be agreeable to have the case remitted back for a fresh

decision-making process and envisaging a brief decision by the Commissioner which would

be of benefit both the Applicant and Coillte (Exhibits Tab 19 p. 194)

Coillte’s solicitor replied on 9 July 2024 indicating that she was inclined to make a submission

on the appeal by 26 July 2024 as previously agreed but wanted to consult with the head of

legal (Exhibits Tab 19 p 195)

There appears to be no further correspondence between Commissioner’s office and Coillte

on this issue until 7 October 2024 when the Commissioner wrote again to Coillte to ask

whether Coillte had made a submission, with a follow up reminder on 29 October 2024

(Exhibits Tab 19 p 199 and 201). In the reminder email Ms O’Leary tells Coillte that unless

she receives a response by 1 November 2024 the Commissioner will proceed to make a

decision. There is no reference in that letter to a lead case.

In a responding email of 29 October 2024 Coillte refers to a telephone call with a member

of staff in the OCEI:

‘It was my understanding, from the brief conversation we had, that your preference was to

remit the request to Coillte for a fresh decision. I mentioned this to Kevin Keegan last week

on a call and he told me he would have a look at the file and come back to me on Monday

next, 04 November, as we have arranged a call on a number of issues on that date. You

are now saying that you are going to proceed to a decision on this Friday, 01 November. If

it is not your preference to remit, Coillte will make submissions and we ask for time to do

this to 27 November 2024.’

(Exhibits Tab 19, p.202)

Ms O’Leary responded on 7 November 2024 confirming that the OCEI would go ahead and

remit the case for a new decision (Exhibits Tab 19, p.204)

The Commissioner’s decision remitting the matter was issued on 19 December 2024.

If the Commissioner is now permitted to make reference to counter-factuals involving the

lead case, the effect will be to allow the Commissioner rely on matters to support the remittal

which were not in evidence, and which do not appear to the Applicant to reflect what actually

happened.

Indeed, if it were to transpire that this were the real reason for remittal – and the Applicant

reiterates that there is no evidence to support this proposition, which was not disclosed to

the Applicant until after the case were concluded – this would call in question the decision

of the Commissioner on that ground alone. In addition, this would give rise to a further

question as to why the Commissioner would have chosen a different case as the lead case –

when this is the request where the Commissioner had stated a case to the High Court on a

point of law. If it had been suggested to the Applicant that the Commissioner proposed

using a different case as a lead case, when this request for environmental information is the

matter that was the subject of the decision of the High Court on a case stated, the Applicant

would obviously have pointed out that this request should be the lead case. However, again,

there is no evidence on any of these matters before the Court.

Finally, the Applicant notes that the Court informally gave an opportunity to the

Commissioner at an earlier stage in these proceedings to deal with these points, and avoid

the reference, and the Commissioner declined to take up that opportunity.

Having regard to all of the above matters, the Applicant suggests that there are two possible

ways forward, being :

1. If the true reason for the remittal was to allow the Commissioner consider a different

lead case, so that he would have the benefit of that decision in considering Coillte’s revised

position on the original request, the decision of the Commissioner is clearly deficient,

misleading, and gives an incorrect reason for the remittal. If this is actually what happened,

the decision of the Commissioner is flawed, and appropriate orders should be made in

relation to it, together with orders against the Commissioner in respect of all of the costs

that would effectively have been wasted to get to this point of time.

2. If in fact, the reasons given in the decision and on affidavit are correct, then the

approach set out in paragraphs 26 and 27 of the Judgment of the Court of the 10 February,

2026, (No. 2) is the correct approach, and should be reflected in the reference to the CJEU

as in the judgment (No. 3).

In that context, the Applicant’s solicitor sincerely apologises for issuing the CJEU reference

papers prematurely. It was under the mistaken impression that once the No. 3 judgment

had been published all papers were ready to be submitted and in the interests of efficiency

had everything read to go at that stage. It was not conscious that the State had not been

formally joined as Notice Parties.

In the Applicant’s experience the best way to handle the procedural issue with the Court of

Justice is to phone the Registry who are best placed to advise on whether the order for

reference can be amended at this stage or whether a different procedure is needed, for

example a withdrawal and resubmission. The Registry is usually very helpful in offering

practical solutions to issues such as this.

We would welcome the opportunity to address the Court further on this issue.”

10. The problem with that position is as follows:

(i) “the Applicant is concerned that the Commissioner is seeking to put forward

counterfactuals which were never the subject of evidence before the High Court” –

the problem there is that it is not the case that the only valid form of factual

conclusion is that capable of direct evidence. In any event there was direct evidence

from Ms O’Leary as to the cause of the delay.

(ii) “the Applicant was never consulted in relation to the procedure following the decision

of the Court in Commissioner for Environmental Information v People Over Wind in

relation to the claimed lead case or otherwise” – that is true but does not give rise

to a cause of action as explained in the No. 1 judgment.

(iii) “The decision of the Commissioner makes no reference to the lead case” – that is

also true but it does not follow from the omission of a reference in the decision that

the designation of a lead case is as a matter of fact or law incapable of being the

cause of delay.

(iv) “The statement of opposition filed on the 15 May 2025, sets out the reasons for

delay, and again makes no reference to the lead case. The affidavit of Julie O’Leary

verifying the statement of opposition does not refer to a lead case, but instead sets

out what happened in detail, and emphasises the increased workload of the

Commissioner. In the third affidavit of Julie O’Leary delivered on the 2 October

2025, there is reference to lead case which had then been determined, but it is not

suggested that the fact that the Commissioner had a different lead case was the

reason why this matter was remitted. Neither the written submissions delivered by

the respondent, nor the statement of case make this point.” – That is as may be but

failure by parties collectively to disentangle the various confounding issues from the

outset does not have the effect of elevating an applicant’s assertions into facts.

(v) “After the delivery of judgment by the Court, a written submission was delivered by

the Commissioner in which the following statement was made; ‘In September 2024,

prior to the decision to remit this case to Coillte, the Commissioner had identified a

different case as the lead case. The factual statement in paragraph 95 of the

judgment that this happened subsequent to the decision to remittal is not correct.

This is important because the Commissioner was of the view that remittal of the

matter to Coillte would not in fact delay a final decision in this case, which would in

any event have to wait until the Commissioner had decided the lead case.’ – This is

not a reason that was given by the Commissioner in the decision, was not put on

affidavit by Ms O’Leary, and never featured in the written record as set out above.

There is no evidence before the Court to support this statement.” – This repeats the

earlier basic misunderstanding. The fact, even if it is a fact, that there is no direct

evidence of something does not equate to a conclusion that there is “no evidence”

of that something. Many factual conclusions arise by implication or inference or by

comparing the probabilities of different interpretations, a process by which the more

plausible interpretation emerges. That more plausible interpretation isn’t nullified

by a catch-cry of “no evidence”.

(vi) “In fact, the evidence from the Commissioner’s file shows that his office contacted

Coillte on 2 July 2024 asking Coillte if would be agreeable to have the case remitted

back for a fresh decision-making process and envisaging a brief decision by the

Commissioner which would be of benefit both the Applicant and Coillte (Exhibits Tab

19 p. 194) Coillte’s solicitor replied on 9 July 2024 indicating that she was inclined

to make a submission on the appeal by 26 July 2024 as previously agreed but wanted

to consult with the head of legal (Exhibits Tab 19 p 195) There appears to be no

further correspondence between Commissioner’s office and Coillte on this issue until

7 October 2024 when the Commissioner wrote again to Coillte to ask whether Coillte

had made a submission, with a follow up reminder on 29 October 2024 (Exhibits Tab

19 p 199 and 201). In the reminder email Ms O’Leary tells Coillte that unless she

receives a response by 1 November 2024 the Commissioner will proceed to make a

decision. There is no reference in that letter to a lead case. In a responding email

of 29 October 2024 Coillte refers to a telephone call with a member of staff in the

OCEI:

‘It was my understanding, from the brief conversation we had, that your preference

was to remit the request to Coillte for a fresh decision. I mentioned this to Kevin

Keegan last week on a call and he told me he would have a look at the file and come

back to me on Monday next, 04 November, as we have arranged a call on a number

of issues on that date. You are now saying that you are going to proceed to a decision

on this Friday, 01 November. If it is not your preference to remit, Coillte will make

submissions and we ask for time to do this to 27 November 2024.’ (Exhibits Tab 19,

p.202) Ms O’Leary responded on 7 November 2024 confirming that the OCEI would

go ahead and remit the case for a new decision (Exhibits Tab 19, p.204) The

Commissioner’s decision remitting the matter was issued on 19 December 2024.” –

the problem with the literalistic interpretation of the correspondence is that asking

Coillte for views on remittal makes no sense unless there is some context, advantage

or purpose to the remittal, and the purpose is illustrated by the separate

development, not mentioned by the applicant in the above narrative, of identifying

another case as the lead case in September 2024.

(vii) “If the Commissioner is now permitted to make reference to counter-factuals

involving the lead case, the effect will be to allow the Commissioner rely on matters

to support the remittal which were not in evidence, and which do not appear to the

Applicant to reflect what actually happened.” – This just repeats the misconceived

reductionist approach of the applicant to the drawing of factual conclusions and the

shrivelled meaning they wish to impute to the term “evidence”.

(viii) “Indeed, if it were to transpire that this were the real reason for remittal – and the

Applicant reiterates that there is no evidence to support this proposition, which was

not disclosed to the Applicant until after the case were concluded – this would call

in question the decision of the Commissioner on that ground alone. In addition, this

would give rise to a further question as to why the Commissioner would have chosen

a different case as the lead case – when this is the request where the Commissioner

had stated a case to the High Court on a point of law. If it had been suggested to

the Applicant that the Commissioner proposed using a different case as a lead case,

when this request for environmental information is the matter that was the subject

of the decision of the High Court on a case stated, the Applicant would obviously

have pointed out that this request should be the lead case. However, again, there

is no evidence on any of these matters before the Court.” – It is, respectfully, quite

incorrect to submit that there is “no evidence on any of these matters”. The decision

of the commissioner cannot be called into question on any ground not pleaded. The

applicant’s dramatic suggestion that all this is just something that “transpire[s]” in

these proceedings is misplaced – the applicant has been aware for a long time that

another case was selected as the lead case, something that is self-evidently relevant

to the fact that its own case was remitted.

(ix) “Finally, the Applicant notes that the Court informally gave an opportunity to the

Commissioner at an earlier stage in these proceedings to deal with these points, and

avoid the reference, and the Commissioner declined to take up that opportunity.” –

That is fair comment but any suggestions I make are only suggestions and it won’t

be held against anybody if they don’t take them up, either in this case or any case.

(x) “Having regard to all of the above matters, the Applicant suggests that there are

two possible ways forward, being : 1. the true reason for the remittal was to allow

the Commissioner consider a different lead case, so that he would have the benefit

of that decision in considering Coillte’s revised position on the original request, the

decision of the Commissioner is clearly deficient, misleading, and gives an incorrect

reason for the remittal. If this is actually what happened, the decision of the

Commissioner is flawed, and appropriate orders should be made in relation to it,

together with orders against the Commissioner in respect of all of the costs that

would effectively have been wasted to get to this point of time.” – That is a

misconception. A decision does not become invalid because the decision-taker does

not set out a full legal analysis of how it came to be made. I agree that the decision

could have outlined that the background for the remittal was that there was going

to be a different lead case which would take time, so that by the time the decision

came back to the commissioner on remittal it would be in better shape for decision

than if it were just left to lie awaiting the lead case. But failure to say that does not

render the decision invalid or even come anywhere within a hundred miles of

rendering the decision invalid. By the time the impugned decision was made the

applicant had enough information to challenge the decision on any grounds it wanted

relating to the lead case which it was well aware of by that time. Failure to do that

does not create any basis whatsoever for any dramatic claim that some “true reason”

is now emerging that creates some entitlement to relief – or, of course tellingly, to

costs.

(xi) “2. If in fact, the reasons given in the decision and on affidavit are correct, then the

approach set out in paragraphs 26 and 27 of the Judgment of the Court of the 10

February, 2026, (No. 2) is the correct approach, and should be reflected in the

reference to the CJEU as in the judgment (No. 3).” – The problem with that is that

the original version of this judgment did not account for the fact that the parties had

failed to disentangle the confounding factors, so ultimately the position is not as

simple as I put it originally.

(xii) “In that context, the Applicant’s solicitor sincerely apologises for issuing the CJEU

reference papers prematurely. It was under the mistaken impression that once the

No. 3 judgment had been published all papers were ready to be submitted and in

the interests of efficiency had everything read to go at that stage. It was not

conscious that the State had not been formally joined as Notice Parties. In the

Applicant’s experience the best way to handle the procedural issue with the Court of

Justice is to phone the Registry who are best placed to advise on whether the order

for reference can be amended at this stage or whether a different procedure is

needed, for example a withdrawal and resubmission. The Registry is usually very

helpful in offering practical solutions to issues such as this.” – No apology is

necessary. If there was any slight procedural mishap here it comes firmly within the

concept of no harm, no foul. As the applicant anticipated, withdrawal and

resubmission was my working approach to the reference. It was withdrawn on 30

April 2026 (removed from the register of the CJEU on 12 May 2026) and I am still

considering whether resubmission is appropriate.

11. On 8 May 2026, the No. 1 judgment was amended again following further engagement with

the parties and it was indicated that consideration would be given to amending the present

judgment.

12. On 15 May 2026, a draft of the present amended judgment was sent to the parties, pursuant

to paras. 15, 195 to 198 and 204 of Practice Direction HC 137, to give an opportunity to address

matters such as errors/ ambiguities on the basis set out below.

13. The deadline for comments from the parties was to be 16:00 on Tuesday 19 May 2026. The

applicant asked for and was given an extension until 20 May 2026 at 10:00. Responses were as

follows:

(i) applicant – no comments, not seeking a reference;

(ii) commissioner – no changes;

(iii) Coillte – not participating further;

(iv) State – no response; and

(v) RTK – no comments, not seeking a reference.

14. In view of the volte face from the applicant regarding whether there should be a reference,

it is important for me to set out in more detail the basis of my factual conclusions. It was also

essential to clarify what remained to be determined in the case.

15. For that reason on 25 May 2026, I invited the parties’ views on the following:

Whether any issue is referred or not, in order to progress the case the court needs to be

clear on what issues are contended to come within the pleadings, which is not currently

altogether evident to the court. Accordingly the parties with a stake in defining the issues

at this stage (i.e., just the applicant, commissioner and State) are invited to sequentially

convey their views to the court on whether each of the following come within the pleadings

(or whether they are neutral on any such item), on the assumption that the court does not

currently see any persuasive reason to find otherwise than that remittal in and of itself (as

opposed to selecting another case as the lead case, something of which remittal was a

consequence) was not the cause of the significant delay in this case (as averred to on behalf

of the commissioner). Reference to findings of fact in the below issues should be construed

on the basis of that assumption. The matter will be listed on 3 June 2026 at 09:30 and the

parties might agree a sequence of responses to be completed by then and preferably the

applicant might create a Scott schedule to enable the court to readily compare the

responses. The court will hold off on amending the No. 2 judgment until it has received and

digested such responses. The headings the court is considering are:

(i) Whether there was a breach of timeliness/expedition by reason of:

(a) the fact that the actual procedure adopted was not the most timely one even

though remittal as such was not the cause of this (the cause being not selecting this

case as the lead case);

(b) the fact that the time taken to process this case was affected by backlogs;

(c) the fact that this was a second remittal;

(d) the lack of express reference to/ consideration of timeliness/expedition in

the decision to remit;

(e) the fact that the commissioner had tolerated a degree of non-response to

correspondence by the public body and then relied on the non-response in making

a remittal decision;

(f) any appearance of breach of timeliness by a second remittal even though

actual delay was not demonstrated; or

(g) any other factor (to be identified, consistent with the findings of fact).

(ii) Whether there was a breach of effectiveness by reason of:

(a) the fact that this was a second remittal;

(b) the lack of express reference to/ consideration of effectiveness in the

decision to remit;

(c) the fact that the commissioner had tolerated a degree of non-response to

correspondence by the public body and then relied on the non-response in making

a remittal decision;

(d) any appearance of breach of effectiveness by a second remittal; or

(e) any other factor (to be identified, consistent with the findings of fact).

(iii) Any other issue (to be identified, consistent with the findings of fact).

16. The responses are dealt with below under the appropriate headings. When the matter was

listed for mention thereafter on 15 June 2026, I advised the parties that the final judgment was

likely to be significantly different from the draft, and offered the option of a further draft, but they

did not want to avail of that.

Issues raised by the commissioner

17. On foot of the circulation of the original draft judgment for any corrections, the commissioner

provided a relatively lengthy submission which begins with the following:

“RESPONDENT SUBMISSIONS IN RELATION TO DRAFT JUDGMENT (No. 2)

1. The Court issued a draft judgment on 26th January 2026 in order to refer two

questions to the Court of Justice of European Union. The cover email requested that any

corrections be emailed to the Registrar by 4 pm on Friday January 30th 2026.

2. The Commissioner is aware that the decision to refer is purely a matter for the High

Court. Notwithstanding this, he remains of the view that a referral is not necessary here

and is conscious of the expense that one will incur, and the internal resources of the Office

that will be used in engaging with the reference.

3. The Commissioner has three submissions to make on the draft judgment:

a. The draft judgment incorrectly classifies an email sent during the

investigation of the appeal as a ‘decision in principle’. Rather, the Commissioner’s

procedures are to be as informal as possible and all parties understand that

investigators explore possible options for informal settlement;

b. The draft judgment is in error when it finds, at paragraph 26, that the

decision to remit caused a delay of over a year; and

c. Paragraph 27 of the draft judgment incorrectly states that upon remittal that

the Commissioner remained seized of the appeal.”

18. I will address these although not in this exact sequence.

Date of the decision

19. The commissioner’s comments on the first issue are as follows:

“Incorrect classification of emails

4. The Commissioner is concerned about how the draft judgment deals with the facts

in relation to the decision by the Principal Office in the OCEI, Julie O’Leary, to remit the case

to Coillte for further consideration. As has been previously communicated to the Court, post

the hearing of the matter, this decision was taken in December 2024. This was after the

OCEI had decided that a different case (Right to Know v Department of Housing) would be

the lead case on the application of the High Court judgment in OCEI v Coillte & Ors [2023]

IEHC 227 to AIE appeals.”

20. The problem with that is that, given the approach being adopted by the commissioner, a

decision to remit or alternatively otherwise pause the present matter was virtually inevitable as soon

as another case was selected as the lead case. So while December 2024 was the formal date of the

decision to remit, the die was effectively cast at some point before that.

21. The commissioner continues:

“5. Paragraph 16 of the draft judgment states:

‘In or about June/July 2024, the commissioner formed the view that the matter should be

remitted again.’

6. The sole basis for this finding of fact appears to be the email sent by the OCEI

Investigator to Coillte on 2nd July 2024 where the Investigator stated:

‘Hi ...,

In order to progress this appeal and to provide Coillte with additional time to consider the

different factors of the case, may I enquire if Coillte would be agreeable to have this case

remitted back to you for a fresh decision making process to be carried out?

I am conscious of the passage of time and also the outcome of the recent judgment of the

High Court in Commissioner for Information v People over Wind & Coillte [2023] IEHC 227

which may impact on Coillte`s position on this case.

A brief Decision by this Office remitting the case back for a new decision making process

would seem to be of benefit both to the appellant and Coillte.

I would appreciate if you could reply to this email by 09 July 2024 outlining how you wish to

proceed.

Regards,

...’

7. This email in contained on page 20 of the extracts from the OCEI investigation file

exhibited at Tab 20 of PB1 in the grounding affidavit.

8. It is respectfully submitted that this email does not amount to the Commissioner

forming the view that the matter should be remitted. It was no more than a suggested route

to be discussed between the Investigator and Coillte. This reflects the procedures of the

OCEI that were available on the OCEI’s website when the matter was being investigated.”

22. While I accept the point to a degree, this objection is primarily semantic. The more correct

phrase would be that the commissioner began to form a view in favour of remittal in June/July 2024.

But it is overstatement to say that this was no more than a suggestion. It was the first articulation

of an emerging preference that was advancing on two related fronts – by way of remittal of this

case, and more fundamentally, by way of progressing and deciding a different case.

23. The commissioner continues:

“9. As with many administrative decision-makers carrying out an inquisitorial function,

OCEI investigators will explore an informal settlement between the parties. Such

settlements are achieved on a regular basis. It is the Commissioner’s strong view that

without such informal settlements, it would be virtually impossible for the Commissioner to

meet his obligations on timeliness.

10. The OCEI procedures are not available online as they are under review. A copy of

the old Procedures Manual, dated June 2020, is available on request. The relevant sections

states:

‘20.4. However, an Investigator may set out his or her view of the likely outcome of the

review on an informal basis, e.g., by telephone followed by a brief email, in the following

circumstances:

• when seeking to narrow the scope of the review,

• when endeavouring reach a settlement or similar resolution without a binding

decision, and

• when seeking further information from the public authority or other relevant party

11. The introduction to the Procedures Manual states that the process before the

Commissioner should be as informal as possible. It noted that the OCEI procedures mirror

those followed by the Office of the Information Commissioner under the Freedom of

Information Act. Both bodies have are inquisitorial in nature and carry out very similar

functions. Importantly, s. 22(2)(a) of the Freedom of Information Act 2014 states:

‘(7) (a) Where an application under subsection (2) is made, the Commissioner may at any

time endeavour to effect a settlement between the parties concerned of the matter

concerned and may for that purpose, notwithstanding subsection (3), suspend, for such

period as may be agreed with the parties concerned and, if appropriate, discontinue, the

review concerned.’

12. It is submitted that the July 2024 email was just an attempt by the Investigator to

move the case on by exploring options. It would pose significant operational difficulties for

the Commissioner if emails seeking to explore the position of the parties to various options

were to be viewed by the High Court as ‘decisions in principle’ to adopt a position set out in

those emails.”

24. Again I accept that to a degree. It can be a lawyerly tendency to tend to offer platitudes

about the need for informal administrative procedures but then illogically express discomfort about

such informal procedures when actually adopted. I can see the commissioner’s point if the

suggestion is that there is some element of that in the wording, but that wasn’t the intention. To

that extent the commissioner’s point is totally reasonable but I go back to what I said earlier – this

is primarily albeit not exclusively semantic. I agree, with the benefit of the commissioner’s patient

efforts to educate the court, that the term “decision in principle” does not equate to the exploration

of the possibility of remittal, taken on its own. But it certainly does arise as soon as another case is

determined to be the lead case. Once that happens, remittal (or otherwise pausing) of this matter

is just a matter of time. If that isn’t a decision in principle I don’t know what is. So I accept the

correction, but it doesn’t mean that there was no decision until December 2024. The die was cast

at some point between July and September.

25. So I agree that the commissioner should be free to explore options without that being

characterised as a decision in principle. At some point though, exploration hardens into a decision

in principle, and that can happen in advance of the date of the formal decision – which is what I was

driving at, even if the commissioner has some well-aimed critiques of the particular way I attempted

to phrase it.

26. The commissioner continues:

“13. The Commissioner re-iterates his position that the decision to remit was made in

December 2024, after the designation of the lead case in September 2024.”

27. Hopefully the problem with that characterisation is now apparent. The formal decision was

made in December, but that (or an equivalent non-remittal pausing of the case) was inevitable from

at least September.

Wording of a “final” decision

28. On the third issue, the commissioner states:

“A decision of the Commissioner being final

19. The draft judgement paragraph 27 refers to ‘As a matter of probability, while

administratively inconvenient, the commissioner remaining seized of the appeal and

investigating and deciding it himself with Coillte’s input at that appellate level would have

resulted in a final commissioner’s decision materially earlier than the course adopted of

remitting it’. The Commissioner respectfully submits that the decision in December 2024 to

remit the case for fresh consideration was a final decision of the Commissioner. From that

point on the Commissioner was not seized of the appeal. The decision annulled the relevant

internal review decision, at which point, as set out above, Coillte had a number of options

available to it including to release the requested information thereby resolving the case.”

29. This is purely semantic and in fairness to the commissioner I have deleted this wording as

being unnecessary.

30. That said, I can’t resist pointing out that the commissioner had previously submitted that

the fact that a lead case was identified before the formal decision to remit “is important because the

commissioner was of the view that remittal of the matter to Coillte would not in fact delay a final

decision in this case ...” (emphasis added). So the language of a future “final decision” post-

remittal in fact comes from the commissioner, rather than me. But none of this matters – it’s just

a choice of wording.

Whether remittal caused delay

31. We can now turn to this issue which is the most problematic one. I need to outline first of

all why I am revisiting this issue.

32. The basic reason for doing so is that my original analysis failed to distinguish between the

different confounding factors that brought about delay in this matter. The reason for that was that

the parties did not expressly identify all of the confounding factors and distinguish between their

several effects, and I didn’t appreciate the problem until a later stage. When I recognised the

difficulty I informed the parties that I would reconsider the wording. The purpose of doing so was

simply to correct this error. In the absence of a final perfected order in the proceedings, the court

can simply change its mind: Re L [2013] UKSC 8, [2013] 1 W.L.R. 634, [2013] 2 All E.R. 294 (Lady

Hale SCJ., nem. diss.); Lavery v. DPP [2018] IEHC 185 (Unreported, High Court, 13 March 2018).

That is especially the case when we are talking about correcting errors, and doubly so in a context

of dialogue with the CJEU which is discretionary for a non-apex court but which, if embarked upon,

needs to be animated by a spirit of assistance to the CJEU. As the original reference has been

withdrawn it is a procedurally straightforward matter to rewind the clock to the point where the

misunderstanding occurred.

33. With that in mind we can now turn to the submission made. The commissioner submits:

“Remittal was not the cause of the delay

14. In December 2024, when this matter was remitted to Coillte, the Commissioner

could not pre-empt the decision by Coillte to refuse the release of the information. Once

the appeal was remitted to Coillte, Coillte had a number of options. Coillte had previously

relied on the FOI exemptions to refuse access to the information. The High Court judgment

in 2023 clearly found that it could not rely on those exemptions. Therefore it was by no

means certain that Coillte would refuse to release all of the information after fresh

consideration.

15. The Commissioner has, in many cases, annulled and remitted a decision in

circumstances where the public authority has contested the appeal, only for the public

authority to reconsider its position and release all, or part, of the requested information, to

the requester’s satisfaction. This has proved to be the best and quickest outcome for all

parties. The Commissioner did not have reason to believe that Coillte would not, in good

faith, give fresh consideration to the request in light of the intervening High Court judgment.

16. The Commissioner does not suggest the decision actually made by Coillte was done

in bad faith, but just makes the point that at the time of the decision in December 2024, it

was not inevitable that Coillte would refuse to release all the information requested.

17. Had Coillte chosen to release all or part of the information on reconsideration, this

would have been a considerably quicker resolution to the case than this Office proceeding to

investigate whether any relevant exemptions were applicable or justified to prevent release

of the requested information, which would have involved requesting submissions from both

parties, and examining the relevant records. The complexity of the case is illustrated by the

fact that the final decision ran to 220 paragraphs.”

34. The main problem with that is that if Coillte was in fact minded to agree to release of the

information then they could have done that by way of submissions to the commissioner when the

matter was before him. Remittal was not necessary for them to adopt such a position.

35. I totally understand and sympathise about the fact that the commissioner is uneasy about

the power to remit being questioned. The reference was not seeking to abolish such a power. By

way of reminder, the applicant sought in effect to have such a power declared unlawful generally –

I rejected that in the No. 1 judgment. The parties can take it that any amended No. 3 judgment will

be confined to second or subsequent remittals only, rather than remittal generally, for reasons which

will become apparent later in this judgment.

36. The commissioner continues:

“18. It is submitted that the Commissioner’s decision to remit the case in December 2024

was the most-timely course of action to resolving the case viewed at the time of the decision

itself. It is further submitted that it is incorrect to rely on the subsequent positions taken

by both Coillte and People over Wind to criticise the decision to remit.”

37. This brings us to the crux of the matter. To analyse this we need to be clear on the facts,

in particular regarding the confounding factors and the timeline.

Assessment of affidavit evidence

38. The starting point to resolve the difference between the parties as to whether delay was

caused by remittal is the onus of proof. In Amariei v. Chief Appeals Officer [2026] IESC 22

(Unreported, Supreme Court, 25 March 2026) at para. 96 per Donnelly J. (O’Donnell C.J., Charleton

and Murray JJ. concurring) (see also per Denham J. (Murray C.J. and Fennelly J. concurring) in

Meadows v. Minister for Justice, Equality and Law Reform [2010] IESC 3, [2010] 2 I.R. 701 at p.

743; O’Doherty and Waters v. Minister for Health [2022] IESC 32, [2023] 2 I.R. 488, [2022] 1

I.L.R.M. 421 per O’Donnell C.J. (Irvine P., MacMenamin, O'Malley, Baker and Murray JJ. concurring)

at para. 116), the Supreme Court emphasised that an applicant must have discharged the onus of

proof to establish all facts necessary for relief.

39. Where there is a conflict of admissible evidence, in the absence of cross-examination such

a conflict must generally be resolved against the party carrying the onus of proof: RAS Medical Ltd

v. Royal College of Surgeons in Ireland [2019] IESC 4, [2019] 1 I.R. 63, [2019] 2 I.L.R.M. 273

(Clarke C.J.) (O’Donnell, MacMenamin, Dunne and Finlay Geoghegan JJ. concurring), Re Bayview

Hotel (Waterville) Limited [2022] IEHC 516 (Unreported, High Court, Butler J., 8 September 2022).

40. The applicant here has not cross-examined the commissioner’s deponents so any contested

issues must be resolved in favour of the commissioner.

41. In coming to conclusions on the issue of delay, the applicant bears the onus of proof to

establish all facts necessary for relief. This onus has not been discharged – the assertion that

remittal caused delay is ultimately no more than an assertion and has not been substantiated once

subjected to scrutiny.

42. While there is no direct evidence of certain matters, and while the parties did not take up

my offer to adduce further evidence or submissions, the critical issues are clear, and the necessary

inferences as to the causes of delay, other than by reason of remittal, flow from the uncontested

facts.

43. Again, with due respect to all concerned, my erroneous approach to this issue in the original

version of this judgment was caused by a collective failure by the parties to identify the relevant

confounding factors. That omission obscured the necessary pathway to the appropriate factual

conclusions.

44. In the absence of cross-examination, I therefore accept the averments in the following

affidavits on behalf of the opposing parties:

(i) affidavit of Carol Daly filed on 3 May 2025;

(ii) first affidavit of Julie O’Leary filed on 15 May 2025;

(iii) second affidavit of Julie O’Leary filed on 16 June 2025; and

(iv) third affidavit of Julie O’Leary filed on 3 October 2025.

45. Thus in the absence of cross-examination, I accept the following from Ms Daly:

“5. As set out in the Statement of Grounds and the Affidavits of Paula O’Byrne and Julie

O’Leary, communications took place between the OCEI and Coillte following on the from the

High Court judgment in The Commissioner for Environmental Information v Coillte & Ors

[2023] IEHC 227 and prior to the Decision on the appeal.

6. It was initially agreed that Coillte would make a further submission on the appeal in

light of the 2023 High Court judgment by an extended deadline of 26 July 2024. By email

dated 2 July 2024, the OCEI raised the possibility of remittal for the first time. I indicated

by email of 9 July 2024 that I was inclined to say that Coillte should proceed with a

submission by 26 July 2024 but wished to discuss the matter internally. I regret that I did

not respond thereafter and accept that Coillte did not either confirm its position on remittal

or make a submission at that time. However, I confirm that Coillte not request or express

a preference for remittal.

7. When the OCEI subsequently advised by email dated 7 November 2024 that the

matter would be remitted, Coillte submitted that it would be more beneficial to carry out a

fresh original decision making process in the circumstances of this case. This submission

was not accepted for the reasons explained in the Decision which directed Coillte to provide

a new internal review decision.

8. Coillte issued a new internal review decision on 18 March 2025 which was appealed

to the OCEI by the Appellant on 17 April 2025. It is understood that the OCEI intend to

issue a letter to Coillte requesting targeted submissions in this appeal.

9. In this respect, I note that the new appeal is stated as being made without prejudice

to these judicial review proceedings.

10. Coillte is very conscious of the delays in a final decision being made on the AIE

request the subject of these proceedings. However, in the event that this Honourable Court

quashes the Decision directing Coillte to carry out this new internal review and directs that

the Commissioner make a decision on the merits of the appeal dated 28 April 2020 rather

than on the new appeal, I wish to note that Coillte may request that it be given a final

opportunity to make targeted submissions on the implications of the 2023 High Court

judgment on the available exemptions under the AIE Regulations. This is in circumstances

where the Commissioner ultimately decided to remit the matter to Coillte for a new internal

review decision instead of obtaining further submissions and making a decision on the merits

of the 2020 appeal, and where the Statement of Grounds suggests that the Commissioner

ought to have directed Coillte to provide the information to the Appellant without giving it

the opportunity to make submissions on the 2023 High Court judgment.

11. Finally, Coillte refutes any suggestion in the Statement of Grounds (Section E, Part

B, paragraphs 15 and 16) that it has sought to avoid its obligations under the AIE Regulations

or has engaged in tactics to avoid providing information which is required to be released

under the AIE Regulations.

12. Coillte endeavours to make its decisions in accordance with the statutory timelines

set out in the AIE Regulations and applies the exemptions under the AIE Regulations in good

faith and based on its understanding of the legal position at the relevant times. At no point

did Coillte submit that it was not subject to or was exempt from the AIE Regulations as

suggested in the Statement of Grounds (Section E, Part B, paragraphs 12 and 38).”

46. In the absence of cross-examination, I accept the following from Ms O’Leary’s first affidavit

(emphasis added):

“1. I am the Senior Investigator in the Office of the Commissioner for Environmental

Information (the Commissioner or the OCEI) and, as provided for in Article 12 of the

European Communities (Access to Information on the Environment) Regulations 2007 –

2018 (the AIE Regulations) the Commissioner is assisted by the staff of the Information

Commissioner. I am currently assigned to assist the Commissioner in carrying out his

functions under the AIE Regulations.

2. I make this Affidavit on behalf of the Commissioner and with his authority and

consent.

3. I beg to refer to the Respondent’s Statement of Opposition herein and I make this

Affidavit for the purpose of verifying the facts relied upon therein. I duly verify the said

facts and aver to the truth of the facts set out there insofar as they are within my knowledge.

So much of the Statement of Opposition that relates to my own acts and deeds is true and

so much of it as relates to the acts and deeds of any and every other person I believe to be

true.

4. I also make this Affidavit for the purpose of opposing the Applicant’s application for

the substantive reliefs sought on foot of the Statement of Grounds and for this purpose by

way of reply to the Affidavit of Paula Byrne, sworn on 14th March 2025 (the ‘Applicant’s

Affidavit’). I do not propose to respond to every averment made in the Applicant’s Affidavit.

5. I am advised and believe that the Applicant’s case is primarily based on matters of

law rather than fact, and that legal submission is not an appropriate subject of averment

and thus I do not engage in same in this affidavit.

6. I was the Senior Investigator on this case and I have thoroughly examined the case

file on the Office’s case management system prior to swearing this affidavit.

7. I acknowledge that this appeal has taken a significant amount of time, and

in this affidavit I want to set out an explanation for the procedural steps taken by the OCEI.

However, I refute the allegations and averments contained in the Applicant’s Affidavit that

the decision of the Commissioner dated 19 December 2024 (the ‘Decision’) in which the

request was remitted to Coillte was taken out of administrative convenience. The

Commissioner and all of the staff in this Office are committed to upholding the vital rights

of timely access to environmental information contained in the AIE regime.

8. As the Commissioner clearly recorded at paragraph 31 of the Decision, he considered

that, ‘on the whole’, the ‘most efficient way of progressing the appeal was to

require Coillte to carry out a fresh internal review decision within a defined period

of time.’ While this is properly a matter for legal submission in due course, I say and am

advised that, in all the circumstances of this case, the Commissioner was entitled to come

to that view and remit the matter to Coillte for fresh consideration.

9. In this regard, I say and am advised that an important part of the context for the

Commissioner’s Decision was the particular impact of the High Court Decision in The

Commissioner for Environmental Information v Coillte & Ors [2023] IEHC 227.

The High Court Decision in The Commissioner for Environmental Information v Coillte & Ors

[2023] IEHC 227

10. When this appeal was first received in 2019, Coillte relied on exemptions in the

Freedom of Information Act 2014 (the ‘FOI Act’) to refuse release. This Office had taken the

longstanding approach that this was allowed. However, as the matter that was not free from

doubt, and had implications for a significant number of cases, a decision was made to refer

questions of the High Court under Article 12(9) of the AIE Regulations. This resulted in the

judgment of the High Court in The Commissioner for Environmental Information v Coillte &

Ors [2023] IEHC 227, delivered on 28 April 2023, and perfected on 31 May 2023 (the ‘2023

High Court judgment’). The deadline for any appeal to the Court of Appeal was the end of

June 2023.

11. This judgment made a number of findings. Most relevant to this appeal was the

finding that bodies such as Coillte that were excluded from the FOI Act could not rely on FOI

exemptions to refuse to release environmental information under the AIE regime. Many

public authorities who are non-FOI hold significant amounts of environmental information

and engage in activities that have significant impacts on the environment. As such they

receive a significant number of requests for environmental information.

12. In March 2024, this Office wrote to all of these entities, including Coillte, in the

context of specific appeals that were outstanding, seeking submissions on what alternative

exemptions they would rely on in circumstances where they could not rely on the FOI Act.

There were approximately 25 cases on hold pending the judgment. These included

cases concerning semi-states and other bodies where they had sought to apply the FOI Act

in the context of Article 8(a)(iv), 9(1)(c) or 8(a)(i) of the AIE Regulations. Apart from Coillte,

the bodies included An Bord Pleanála, the Commission for Regulation of Utilities, Dublin

Airport Authority, the Department of the Taoiseach, ESB, the IDA, Laois County Council, the

NTMA, the Department of Housing, and Bord na Móna. This Office took the view that it

would have been a breach of fair procedures to simply apply the findings of the High Court

without allowing the parties an opportunity to make submissions on same.

13. I accept that this correspondence issued after a significant period of delay,

and that the OCEI should have acted on the High Court findings once the deadline

for appeal of the judgment to the Court of Appeal ended. The reason for this delay

was that the senior investigator in the OCEI at the time transferred to manage the Office of

the Ombudsman and the Office was engaged in a recruitment process to replace her. I was

appointed and commenced work in mid-December 2023.

14. My priorities in early 2024 were to work on clearing the significant backlog of appeals

which was then on hand, noting the statistics set out later in this affidavit that the OCEI had

373 cases on hand at the end of 2023. In this regard, I say that the Office is aware that

quick access to environmental information is vital.

15. Behind the Applicant’s affidavit (at Tab 19), the Applicant exhibited correspondence

between this Office and Coillte. Those communications show that the Office wrote to Coillte

on 10 March 2024 and sought an indication as to whether, given the passage of time, the

records could now be released to the appellant, or whether Coillte wished to make new

submissions. A deadline of 19 March 2024 was provided to respond to this correspondence.

Coillte proposed to reply to this request, in conjunction with two other matters, by 24 April

2024, as a relevant staff member was on annual leave. Coillte subsequently engaged with

the relevant investigator by phone and agreed to provide submissions by 19 June 2024. On

that date Coillte wrote saying that it no longer had the relevant records, as the Coillte staff

member who dealt with the matter no longer worked in the organisation and there was no

saved copy of the records to which Coillte had access.

16. The OCEI sent over copies of the relevant records and sent a reminder email seeking

submissions on 25 June 2024. Coillte was given a new deadline of 9 July 2024 to make

submissions.

17. On 2 July 2024, the OCEI investigator wrote to Coillte suggesting that the best way

to progress the appeal would be for the matter to be remitted to Coillte for a fresh decision

on foot of the 2023 High Court judgment. I fully accept that the Office does not need to

seek approval from a public authority or a requester to make any decision under the AIE

regulations and I say and believe that this this email merely displays professional courtesy,

and that it did not constitute a request for permission on the part of the Commissioner.

18. On 9 July 2024, Coillte responded expressing a preference that Coillte should

proceed with a submission. However, Ms. Carol Daly of Coillte wished to discuss the matter

with the Head of Legal in Coillte and requested that the Commissioner pause matters.

19. On 7 October 2024, the OCEI wrote to Coillte seeking a submission, and the OCEI

wrote once again on 29 October. At this stage, Coillte responded to say that it thought that

the matter would be remitted and asked for a deadline of 27 November for any submissions.

I responded to that email on the same date saying that the OCEI would make a new decision

and I duly issued the decision under appeal on 19 December 2024.

20. At that time, I knew that the Commissioner would not be in a position to

make a decision on the substantive issue raised by the High Court decision’s impact

on non-FOI bodies in the time that Coillte was bound to make a new internal review

decision. Accordingly, the Decision refers to the ‘defined time period’ in which Coillte

had to make a decision. Prior to the 2023 High Court judgment, non-FOI bodies relied on

sections 35 and 36 of the FOI Act to protect commercially sensitive information. On foot of

that judgment, this was no longer allowed.

21. By remitting the matter to Coillte, Coillte was under a statutory obligation to issue a

new internal review decision, which would in effect set out its views on the impact of the

2023 High Court judgment on exemptions available to it. The Office considered at the time

that this would bring the matter to as quick a conclusion as possible in the interest

of all parties. As set out in the Decision, at paragraph 33, Coillte was obliged to take into

account the 2023 High Court judgment, and if it wished to rely on any exemption provision

provided for in article 8/9 of the AIE Regulations, Coillte was obliged to fully set out its

reasons for reaching its conclusions as well as, where relevant, its considerations of article

10 of the AIE Regulations, including paragraphs (3), (4), and (5).

22. I say and believe that remittal did not materially delay the taking of a decision

in the case. In that regard, the Commissioner was itself still considering the impact of the

2023 High Court judgment at the time of the issuing of the Decision under appeal in this

case. The OCEI was still engaged in the process of seeking submissions from all of the

relevant public authorities concerned. Furthermore, in consultation with our in-house

lawyers, and aware of the commercially sensitive nature of the records in quite a number of

cases, as well as the important rights of access under the AIE Regime, we sought the advice

of senior counsel on the issue of commercial confidentiality for non-FOI bodies and received

an opinion in March 2025.

23. On 18 March 2025, Coillte issued a new internal review decision.

24. On 17 April 2025 the Applicant appealed the new internal review refusal to this Office

and we are using our best endeavours to deal with this appeal as quickly as

possible. The case has been assigned to an experienced investigator and she will shortly

write to the parties seeking their submissions.

25. It is regrettable that there has been a delay in progressing this matter to

conclusion, in taking the steps outlined above, the Commissioner has at all times

endeavoured to exercise his powers and its discretion under the AIE Regulations

in a manner consistent with the fair and efficient determination of the underlying

issues.

The Workload of the OCEI

26. As set out in the Decision, the Commissioner apologises for delay in this case, and

records at paragraph 31 that this delay ‘was caused in part by the large backlog of

cases that this Office is dealing with, and we are taking steps to ensure that this backlog

is dealt with in the coming months’.

27. In this regard, it may be of assistance to provide the Court with some insight into

the very significant increase in the workload of the OCEI by way of context for the decision

in December 2024 to remit this appeal to Coillte for the second time.

28. This appeal was first received by the OCEI in 2019. Since then the OCEI has

undergone significant transformation. It has grown from four investigators (at Assistant

Principal grade) and one part-time senior investigator (at Principal Officer grade), to 16

investigators and a full time senior investigator. It has had a 100% turnover in staff carrying

out investigations and drafting decisions, including the appointment of a new Commissioner

for Environmental information in 2022, Mr. Ger Deering.

29. There has been a dramatic increase in the volume and complexity of decisions issued

over the past five years, but this increase has been matched by an even greater increase

in appeals received from requestors.

30. The 2024 Annual Report contains the most recent public statistics on OCEI appeals.

I have included certain pages from that Report in exhibit upon which I have marked my

initials ‘JO’L’ prior to swearing this affidavit. By way of overview, I wish to summarise some

important figures from that Report.

31. In 2019, we received 64 appeals and had 38 cases on hand at the end of the year.

We completed 54 cases, issuing binding decisions in 40 of those. By contrast, in 2023 we

received 351 appeals and had 373 cases on hand at the end of the year. This is despite

completing 227 cases in 2022 and 216 in 2023, and issuing 129 binding decisions in 2022,

and 136 in 2023.

32. Of note in this regard is that, of the 136 decisions issued in 2023, 125 decisions

annulled the internal review decision of the public authority and either remitted the matter

for a fresh consideration or varied the decision and ordered release of the information. This

amounts to a 94% success rate of appeals. In other words, this Office found significant

errors in 94% of the internal review decisions of public authorities. We have noted that

many of the first instance and internal review decisions of public authorities are of a low

standard. There is a general problem of a failure to give reasons for refusal of access to

environmental information. In a significant number of appeals before the OCEI, the first

time that there is a substantive engagement by the public authority is in their submissions

to this office. This significantly increases the length and complexity of each investigation.

33. In 2021 this Office issued 42 binding decisions and annulled 24 of those, an appeal

success rate of 57%.

34. In 2024, the OCEI received 313 appeals in 2024, closed 286 cases, 168 of those by

a binding decision. Of those 168 decisions, 111 annulled the internal review decision of the

public authority. This is an appeal success rate of 66%.

35. However, and of significance in the context of this appeal, the OCEI still had 424

appeals on hand at the end of 2024. There is a significant backlog of appeals which

the Office has been endeavouring to work through and as of the date of swearing

this affidavit, the OCEI has 529 cases awaiting a decision.

36. By way of observation, it is difficult to identify why precisely the volume of appeals

before the OCEI has increased so dramatically from 2019 to 2024. However, there has been

an underlying increase in the number of requests to public authorities in that period.

Furthermore, it may be that the current level of requests and appeals is a response to a

greater level of awareness of the AIE regime, as well as perhaps a side effect of a

significant amount of litigation in the planning and environmental law sphere.

37. While the Office again acknowledges with regret the delay that occurred in this case,

that delay must be understood in the context of the very significant workload and

pressures on the Office.

Conclusion

38. In conclusion, while I say and am advised that the grounds relied upon by the

Applicant in these proceedings are matters of law which are properly for legal submission in

due course, in this Affidavit, I have endeavoured to explain the context and reason why the

Commissioner took the view and approach that it did in this case.”

47. In the absence of cross-examination, I accept the following from Ms O’Leary’s second

affidavit:

“1. The purpose of this affidavit is to exhibit a letter sent by the Legal Services Unit to

the applicant on 6th June 2025. This was in reply to a letter sent to the OCEI by the applicant

on the same date. That letter is exhibited in the affidavit of FP Logue sworn on 6 June 2025.

2. I refer to a copy of the letter upon which I have marked my initials ‘JO'L’ prior to

swearing this affidavit.”

48. In the absence of cross-examination, I accept the following from Ms O’Leary’s third affidavit:

“1. The purpose of this affidavit is to exhibit a number of documents relevant to this

appeal. The first is the draft decision that was issued to the parties on 18th September

2025, with a deadline for submissions on 2nd October 2025. Further submissions are to be

confined to an additional point of fact, an error of fact or an error of law. The cover email

accompanying the draft decision is at page 1 in the consolidated exhibit and the draft

decision at page 3.

2. Coillte responded seeking an extension to time to make submissions and the

investigator granted an extension to 6th October 2025. There has also been correspondence

between this Office and People over Wind. This is included at page 71 in the exhibit.

3. Finally, I would like to exhibit a published decision of the Commissioner at page 79

in the consolidated exhibit. In paragraph 21 of the Statement of Grounds it is expressly

pleaded that the Commissioner was in correspondence with non-FOI bodies on the impact

of the 2023 High Court judgment. The legal issues at play in this appeal were all considered

by the Commissioner for the first time in Right to Know & the Department of Housing, OCE-

127779-J9Y4Q0. A draft decision in that case was sent to the parties on 26th August 2025

and the final decision issued on 11th September 2025. As can be seen in that decision, that

appeal required extensive submissions from the parties and the consideration of a number

of novel legal issues by the Commissioner. In effect, the Department of Housing appeal was

the lead case on the application of the 2023 judgment insofar as it related to commercial

confidentiality. The records in that case originated from Bord na Mona and that decision

sets out how the Commissioner approaches commercial confidentiality claims by non-FOI

bodies.

4. Once the Commissioner had decided on his approach to commercial confidentiality

in that case, he was quickly able to apply it in the case the subject of this judicial review.

5. I refer to a copy of the consolidated exhibit upon which I have marked my initials

‘JO’L’ prior to swearing this affidavit.”

Facts

2018-19 – request and first appeal and remittal

49. On 12 November 2018, People Over Wind submitted a request to the notice party for access

to environmental information regarding Coillte’s proposed windfarm at Cullenagh, County Laois.

50. On 16 November 2018, Coillte informed the applicant that it considered the request to have

been made in too general a manner and invited the applicant to make a more specific request. The

applicant replied on the same day, offering a modified version of the request.

51. On 11 December 2018, the request was refused. The applicant sought internal review on

10 January 2019.

52. On internal review, Coillte failed to make a decision within the time-limit leading to an

implied refusal on 9 February 2019.

53. The applicant appealed this refusal to the Commissioner for Environmental Information on

25 February 2019.

54. On 22 November 2019, the commissioner decided that Coillte was justified in refusing part

1 of the request on the grounds that it did not hold the requested information but generally remitted

the balance of the request back to Coillte for a fresh decision (see https://ocei.ie/en/ombudsman-

decision/ee7d9-people-over-wind-and-coillte-teoranta-coillte/#decision).

2020 – second appeal and reference to the High Court

55. On 20 February 2020, Coillte made a fresh decision refusing access. This was affirmed under

internal review on 26 March 2020.

56. This led to a further appeal to the commissioner on 27 April 2020 (out of time, but the

commissioner accepted it), which in turn led to the commissioner making a reference to the High

Court under regulation 12(9)(a) of the AIE regulations (European Communities (Access to

Information on the Environment) Regulations 2007 (S.I. No. 133 of 2007, as amended by S.I. No.

662 of 2011, S.I. No. 615 of 2014, and S.I. No. 309 of 2018) on 15 September 2021, concerning

inter alia whether exemptions under the Freedom of Information Act 2014 provided for legal

protection of confidentiality under regulation 8(a)(iv) of the AIE regulations.

2023 – decision of the High Court and subsequent correspondence

57. The High Court decided this issue (Commissioner for Environmental Information v. Coillte

Teoranta & People Over Wind [2023] IEHC 227 (Unreported, High Court, Hyland J., 28 April 2023):

https://www2.courts.ie/acc/alfresco/7b8c99cc-e8a1-4190-8489-

200f1b0e3e92/2023_IEHC_227.pdf/pdf) in a judgment of 28 April 2023.

58. As noted above, the first affidavit on behalf of the commissioner states the following, which

is accepted by the court (emphasis added):

“7. I acknowledge that this appeal has taken a significant amount of time, and

in this affidavit I want to set out an explanation for the procedural steps taken by the OCEI.

...

10. When this appeal was first received in 2019, Coillte relied on exemptions in the

Freedom of Information Act 2014 (the ‘FOI Act’) to refuse release. This Office had taken the

longstanding approach that this was allowed. However, as the matter that was not free from

doubt, and had implications for a significant number of cases, a decision was made to refer

questions of the High Court under Article 12(9) of the AIE Regulations. This resulted in the

judgment of the High Court in The Commissioner for Environmental Information v Coillte &

Ors [2023] IEHC 227, delivered on 28 April 2023, and perfected on 31 May 2023 (the ‘2023

High Court judgment’). The deadline for any appeal to the Court of Appeal was the end of

June 2023.

11. This judgment made a number of findings. Most relevant to this appeal was the

finding that bodies such as Coillte that were excluded from the FOI Act could not rely on FOI

exemptions to refuse to release environmental information under the AIE regime. Many

public authorities who are non-FOI hold significant amounts of environmental information

and engage in activities that have significant impacts on the environment. As such they

receive a significant number of requests for environmental information.

12. In March 2024, this Office wrote to all of these entities, including Coillte, in the

context of specific appeals that were outstanding, seeking submissions on what alternative

exemptions they would rely on in circumstances where they could not rely on the FOI Act.

There were approximately 25 cases on hold pending the judgment. These included

cases concerning semi-states and other bodies where they had sought to apply the FOI Act

in the context of Article 8(a)(iv), 9(1)(c) or 8(a)(i) of the AIE Regulations. Apart from Coillte,

the bodies included An Bord Pleanála, the Commission for Regulation of Utilities, Dublin

Airport Authority, the Department of the Taoiseach, ESB, the IDA, Laois County Council, the

NTMA, the Department of Housing, and Bord na Móna. This Office took the view that it

would have been a breach of fair procedures to simply apply the findings of the High Court

without allowing the parties an opportunity to make submissions on same.

13. I accept that this correspondence issued after a significant period of delay,

and that the OCEI should have acted on the High Court findings once the deadline

for appeal of the judgment to the Court of Appeal ended. The reason for this delay

was that the senior investigator in the OCEI at the time transferred to manage the Office of

the Ombudsman and the Office was engaged in a recruitment process to replace her. I was

appointed and commenced work in mid-December 2023.”

59. The competent authority wrote to Coillte on 10 March 2024 and sought an indication as to

whether, given the passage of time, the records could now be released to the appellant, or whether

Coillte wished to make new submissions. A deadline of 19 March 2024 was provided to respond to

this correspondence. Coillte proposed to reply to this request, in conjunction with two other matters,

by 24 April 2024, as a relevant staff member was on annual leave. Coillte subsequently engaged

with the relevant investigator by phone and agreed to provide submissions by 19 June 2024. On

that date Coillte wrote saying that it no longer had the relevant records, as the Coillte staff member

who dealt with the matter no longer worked in the organisation and there was no saved copy of the

records to which Coillte had access.

60. The competent authority sent over copies of the relevant records and sent a reminder email

seeking submissions on 25 June 2024. Coillte was given a new deadline of 9 July 2024 to make

submissions.

July 2024 – second remittal considered

61. On 2 July 2024, the competent authority wrote to Coillte suggesting that the best way to

progress the appeal would be for the matter to be remitted to Coillte for a fresh decision on foot of

the 2023 High Court judgment (emphasis added):

“In order to progress this appeal and to provide Coillte with additional time to consider the

different factors of the case, may I enquire if Coillte would be agreeable to have this case

remitted back to you for a fresh decision making process to be carried out?

I am conscious of the passage of time and also the outcome of the recent judgment of the

High Court in Commissioner for Information v People over Wind & Coillte [2023] IEHC 227

which may impact on Coillte’s position on this case.

A brief Decision by this Office remitting the case back for a new decision making

process would seem to be of benefit both to the appellant and Coillte.

I would appreciate if you could reply to this email by 09 July 2024 outlining how you wish to

proceed.”

62. It is to be inferred that by 2 July 2024, the commissioner began to consider the following

steps:

(i) a lead appeal should be identified to address this issue;

(ii) another appeal should be considered as the lead appeal; and

(iii) accordingly the appeal at issue should be remitted for a second time.

63. On 9 July 2024, Coillte responded expressing a preference that Coillte should proceed with

a submission. However, the relevant official in Coillte wished to discuss the matter with the Head

of Legal in Coillte and requested that the competent authority pause matters.

64. In tandem with this, in September 2024, prior to the formal decision to remit this case to

Coillte, the commissioner identified a different case as the lead case on the relevant issues, i.e. the

commissioner identified an entirely different appeal as being the one in which the impact of the High

Court judgment would be first applied. People Over Wind was not made aware of the possibility of

a different case being selected as the lead case at the time and its views were not sought on this

issue before the decision was made.

65. A decision to remit or otherwise delay the present matter began to take shape from

approximately late June 2024, and such a decision was in practice virtually inevitable, given the

stance adopted by the commissioner, as soon as another case was selected as the lead case, namely

from September 2024.

66. On 7 October 2024, the commissioner wrote to Coillte seeking a submission, and the

commissioner wrote once again on 29 October 2024. At this stage, Coillte responded to say that it

thought that the matter would be remitted and asked for a deadline of 27 November 2024 for any

submissions. The competent authority responded to that email on the same date saying that the

commissioner would make a new decision.

December 2024 – the second remittal

67. The formal decision to remit the appeal at issue for the second time was not taken until 19

December 2024, when the commissioner again annulled Coillte’s decision and remitted the matter

for a new internal review: (https://www.ocei.ie/en/ombudsman-decision/a4b98-people-over-wind-

and-coillte/#decision). This is the decision challenged in the proceedings.

68. The decision expressly acknowledges that the delay in dealing with the matter was caused

by Coillte’s delay in dealing with correspondence, which the commissioner effectively accepts had

been tolerated, and by backlogs (emphasis added):

“30. Following the judgment of the High Court on 28 April 2023 referred to above and the

reactivation of the appeal with this Office, Coillte was invited to make updated submissions

to this Office. It took some time for this Office to receive any response from Coillte, which

contributed to the regrettable delay in progressing this appeal. I wish to note that

in future, where there are repeated delays in responding to requests for submissions, this

Office will consider simply proceeding to a final decision where appropriate.

31. In light of subsequent discussion between Coillte and this Office and given the findings

of the High Court, I have decided that the most appropriate course of action to take in this

case is to annul Coillte’s decision and direct it to carry out a fresh internal review decision

making processing respect of the information at issue. I understand that this will be

frustrating for the appellant as it causes further delay in resolving this appeal and I wish to

apologise for this. This delay was caused in part by the large backlog of cases that

this Office is dealing with, and we are taking steps to ensure that this backlog is dealt

with in the coming months. However, on the whole, I consider that the most efficient way

of progressing this appeal at this point is to now require Coillte to carry out this new internal

review process within a defined time period, and that the AIE regime as a whole is best

served by this outcome. It will be open to the appellant to appeal again to this Office should

it remain unsatisfied with the outcome of this new internal review.”

69. As noted above, the first affidavit on behalf of the commissioner states the following, which

is accepted by the court (emphasis added):

“7. ... I refute the allegations and averments contained in the Applicant’s Affidavit that

the decision of the Commissioner dated 19 December 2024 (the ‘Decision’) in which the

request was remitted to Coillte was taken out of administrative convenience. The

Commissioner and all of the staff in this Office are committed to upholding the vital rights

of timely access to environmental information contained in the AIE regime.

8. As the Commissioner clearly recorded at paragraph 31 of the Decision, he considered

that, ‘on the whole’, the ‘most efficient way of progressing the appeal was to

require Coillte to carry out a fresh internal review decision within a defined period

of time.’ While this is properly a matter for legal submission in due course, I say and am

advised that, in all the circumstances of this case, the Commissioner was entitled to come

to that view and remit the matter to Coillte for fresh consideration.

...

20. At that time, I knew that the Commissioner would not be in a position to make

a decision on the substantive issue raised by the High Court decision’s impact on

non-FOI bodies in the time that Coillte was bound to make a new internal review

decision. Accordingly, the Decision refers to the ‘defined time period’ in which Coillte had

to make a decision. Prior to the 2023 High Court judgment, non-FOI bodies relied on

sections 35 and 36 of the FOI Act to protect commercially sensitive information. On foot of

that judgment, this was no longer allowed.

21. By remitting the matter to Coillte, Coillte was under a statutory obligation to issue a

new internal review decision, which would in effect set out its views on the impact of the

2023 High Court judgment on exemptions available to it. The Office considered at the time

that this would bring the matter to as quick a conclusion as possible in the interest

of all parties. As set out in the Decision, at paragraph 33, Coillte was obliged to take into

account the 2023 High Court judgment, and if it wished to rely on any exemption provision

provided for in article 8/9 of the AIE Regulations, Coillte was obliged to fully set out its

reasons for reaching its conclusions as well as, where relevant, its considerations of article

10 of the AIE Regulations, including paragraphs (3), (4), and (5).

22. I say and believe that remittal did not materially delay the taking of a decision

in the case. In that regard, the Commissioner was itself still considering the impact of the

2023 High Court judgment at the time of the issuing of the Decision under appeal in this

case. The OCEI was still engaged in the process of seeking submissions from all of the

relevant public authorities concerned. Furthermore, in consultation with our in-house

lawyers, and aware of the commercially sensitive nature of the records in quite a number of

cases, as well as the important rights of access under the AIE Regime, we sought the advice

of senior counsel on the issue of commercial confidentiality for non-FOI bodies and received

an opinion in March 2025.

...

25. It is regrettable that there has been a delay in progressing this matter to

conclusion, in taking the steps outlined above, the Commissioner has at all times

endeavoured to exercise his powers and its discretion under the AIE Regulations

in a manner consistent with the fair and efficient determination of the underlying

issues.”

Assessment of cause of delay

70. With those facts in mind, the critical time periods are as follows:

(i) approximately late June 2024 to September 2024 – consideration of a lead case,

designation of a different lead case and potential remittal of this case;

(ii) September 2024 to 19 December 2024 – interval between formal designation of a

different lead case and formal remittal of this case;

(iii) 19 December 2024 to 17 April 2025 – remittal of this case;

(iv) 17 April 2025 to 11 September 2025 – this case parked before the commissioner

awaiting the lead case; and

(v) 11 September 2025 to 24 October 2025 – period required to apply the decision in

the lead case to this case.

71. The essential point is that this is not just a case of remittal causing delay. There are three

factors involved:

(i) the decision that a lead appeal should be identified to address this issue;

(ii) the decision that another appeal should be considered as the lead appeal; and

(iii) the decision that this appeal should be remitted again.

72. Accordingly there are a number of scenarios to be considered in identifying what caused the

delay:

(i) factual scenario – another case picked as lead case, this case remitted;

(ii) Counterfactual A – another lead case but no remittal, in which instance this case

would have remained pending before the commissioner awaiting the lead case;

(iii) Counterfactual B – this case was picked as the lead case; and

(iv) Counterfactual C – no lead case and no remittal, each case determined as it was

lodged.

73. We can then examine each of these scenarios in the light of the evidence to draw the

appropriate conclusions as to what caused the delay.

74. Starting with Counterfactual A, the period-by-period analysis indicates the following:

(i) approximately late June 2024 to September 2024 – consideration of a lead case,

designation of a different lead case – this would be likely to be the same;

(ii) September 2024 to 19 December 2024 – interval between formal designation of a

different lead case and remittal of this appeal – this period would be a fallow period

for this case anyway even without remittal if there was another lead case;

(iii) 19 December 2024 to 17 April 2025 – remittal of this case – this delay would have

happened anyway as the lead case was still under decision;

(iv) 17 April 2025 to 11 September 2025 – this appeal parked before the commissioner

awaiting the lead case – this delay would have been inherent in Counterfactual A;

and

(v) 11 September 2025 to 24 October 2025 – period required to apply the decision in

the lead case to this case – without remittal, this period would have been

significantly longer given that the commissioner would not have had the benefit of

the further analysis by the public body post remittal.

75. Thus we can conclude that by comparison with Counterfactual A, the remittal did not delay

matters but in fact facilitated a quicker decision.

76. Considering Counterfactual B, the period-by-period analysis indicates the following:

(i) Approximately late June 2024 to September 2024 – consideration of a lead case,

designation of a different lead case and remittal of this case – if this case was to be

the lead case, this period would presumably have involved considering remitting the

other case (that in the factual scenario was the lead case). Thus there would

probably have been no time difference for this period.

(ii) September 2024 to 19 December 2024 – interval between formal designation of a

different lead case and remittal of this appeal. This period would have been used

more productively for the present case as the work on the case could have started

immediately. However even if that work had started immediately, it would still

presumably have resulted in a decision about the same time on 11 September 2025.

So the three months of relative inactivity did not actually in itself delay a decision

on this case by comparison with Counterfactual B – the delay is measurable at the

other end (stage (v) below).

(iii) 19 December 2024 to 17 April 2025 – remittal of this case. This period made no

difference as the case would have been under consideration during this period.

There is no particular basis to assume that the period of consideration would have

been different depending on which case was chosen as the lead.

(iv) 17 April 2025 to 11 September 2025 – this appeal parked before the commissioner

awaiting the lead case – again the case would have been under consideration anyway

during this period. Again it is reasonable to take the view (not least by comparison

with the lead case that was not remitted) that insofar as it was quicker for the

commissioner to dispose of the present matter after further analysis on remittal, any

additional time for consideration could have been made up during this period.

(v) 11 September 2025 to 24 October 2025 – period required to apply the decision in

the lead case to this case. This period would have been saved, so not having this

case as the lead case cost six weeks or so.

77. Thus we can conclude that by comparison with Counterfactual B, a delay of six weeks was

caused, but not by remittal as such. That delay was caused by not picking this case as the lead

case.

78. Considering Counterfactual C, the period-by-period analysis indicates the following:

(i) Approximately late June 2024 to September 2024 – consideration of a lead case,

designation of a different lead case and remittal of this case. This three-month

period of administrative activity would have been saved by not having a lead case

at all.

(ii) September 2024 to 19 December 2024 – interval between formal designation of a

different lead case and remittal of this appeal. This did not delay the present case

for the same reasons as in Counterfactual B, assuming work would have started on

this case straight away (as the one with priority in time).

(iii) 19 December 2024 to 17 April 2025 – remittal of this case. No delay caused by this

period as in Counterfactual B.

(iv) 17 April 2025 to 11 September 2025 – this appeal parked before the commissioner

awaiting the lead case. No delay caused by this period as in Counterfactual B.

(v) 11 September 2025 to 24 October 2025 – period required to apply the decision in

the lead case to this case. This period of six weeks would also have been saved.

79. Thus we can conclude that by comparison with Counterfactual C, a delay of 4.5 months was

caused, but not by remittal in this scenario. That delay was caused by going down the route of

having a different lead case.

80. The overall conclusion is that when we analyse matters by reference to the full range of

confounding factors, remittal of the matter in and of itself did not in fact cause delay – as the

commissioner maintained all along and as stated in the affidavit of Ms O’Leary which the applicant

has not displaced. As already mentioned, my erroneous conclusion to the contrary in the original

version of this judgment was contributed to by a collective failure by the parties to identify the

separate impacts of those confounding factors.

81. In the light of that, the commissioner’s apology for delay in the remittal decision should not

be construed too literally as some kind of admission of causation as between remittal and breach of

timeliness. To apologise is not to admit liability. Read with the benefit of more context, the apology

is in substance for the delay overall, not an acceptance that the remittal, which was the consequence

of picking another case as the lead case, was itself the underlying cause of the delay.

82. To summarise some of the key facts emerging from the foregoing, leaving aside for now

whether they are just context or are pleaded as grounds for relief (I deal with that distinction later

in this judgment):

(i) The overall procedure in the case took an excessive period of time, and in

particular the commissioner accepted that the nine months between the expiry of

time to appeal the related High Court decision and the commissioner’s

correspondence with the public body at issue here on foot of that decision did

constitute delay.

(ii) The second remittal was not in itself the cause of the delay which followed it but

was a consequence of selecting another case as a lead case on a particular issue,

which selection caused delay that would have been avoided by selecting the case at

hand as the lead case.

(iii) On the premise of the selection of another case as the lead case, the second remittal

was a reasonably efficient, timely and expeditious way of dealing with this

particular appeal in that context as regards the period subsequent to the second

remittal and was not for the purpose of the administrative convenience of the

commissioner in any sense separate from the efficient disposition of the matter.

(iv) The decision of the commissioner remitting the matter for a second time does not

expressly address whether the remittal is the most appropriate way to comply

with the requirements of timeliness, expedition or effectiveness.

(v) The decision of the commissioner acknowledges that the delay in dealing with the

matter prior to the second remittal was partly caused by a significant backlog of

appeals before the commissioner.

(vi) The decision of the commissioner acknowledges that the delay in dealing with the

matter prior to the second remittal was partly caused by delays by Coillte that had

occurred in responding to correspondence within the context of the appeal (delays

that the commissioner in effect tolerated).

(vii) The commissioner’s apology for delay arising from the remittal decision should not

be construed as an admission of causation as between remittal and breach of

timeliness. In context, the apology is in substance for the delay overall, not an

acceptance that the remittal, which was the consequence of picking another case as

the lead case, was itself the underlying cause of the delay.

Pleading principles

83. As this judgment is now addressing what remains in the case, it will be instructive to

recapitulate some pleading principles.

84. Some relevant legal principles concerning pleading requirements which have been rehearsed

in previous caselaw include the following:

(i) Applicants are confined to their pleadings: A.P. v. Director of Public

Prosecutions [2011] IESC 2, [2011] 1 I.R. 729, [2011] 2 I.L.R.M. 100, [2011] 1 JIC

2501; Khashaba v. Medical Council of Ireland [2016] IESC 10, [2016] 3 JIC 0701,

2016 WJSC-SC 12280 per O’Malley J. (Denham C.J. and Clarke J. concurring) at

para. 56; Casey v. Minister for Housing, Planning and Local Government & Ors.

[2021] IESC 42, [2021] 7 JIC 1606 (Unreported, Supreme Court, Baker J., 16 July

2021) (Clarke C.J., O'Donnell, MacMenamin and Dunne JJ. concurring) at §§29 and

31; Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála & Ors.

[2024] IESC 28, [2024] 7 JIC 0402 (Unreported, Supreme Court, 4 July 2024) per

Murray J. at paras. 39 et seq. (O'Donnell C.J., Woulfe, Collins and Donnelly JJ.

concurring); Eglington Residents Association v. An Bord Pleanála [2025] IEHC 209

(Unreported, High Court, Farrell J., 15 April 2025) at 11. The rules of pleading are

well-established, clear and mandatory, and are of particular importance in a context

of special complexity such as technical EU-heavy areas of planning law; while exact

specification of every jot and tittle of a case is an impossible standard, an applicant

can only be permitted to advance at a hearing a point that is acceptably clear from

the express terms of the statement of grounds, subject to the grant of any order

allowing an amendment: Reid v. An Bord Pleanála (No. 7) [2024] IEHC 27, [2024]

1 JIC 2401 (Unreported, High Court, 24 January 2024).

(ii) Pleading requirements in judicial review are “stringent”, allowing “little room

for manoeuvre”: People Over Wind & Anor. v. An Bord Pleanála & Ors. (No. 1) [2015]

IEHC 271, [2015] 5 JIC 0106 (Unreported, High Court, Haughton J., 1 May 2015).

“It shall not be sufficient for an applicant to give as any of his grounds for the

purposes of paragraphs (ii) or (iii) of sub-rule (2)(a) an assertion in general terms

of the ground concerned, but the applicant should state precisely each such ground,

giving particulars where appropriate, and identify in respect of each ground the facts

or matters relied upon as supporting that ground”: Order 84 r. 20(3) RSC. “If on

the Grounds pleaded there is genuine ‘doubt, ambiguity or confusion’ an Applicant

in Judicial Review cannot have the benefit of it”, per Holland J. in Ballyboden Tidy

Towns Group v. An Bord Pleanála & Ors. [2022] IEHC 7, [2022] 1 JIC 1001

(Unreported, High Court, 10 January 2022) at para. 308.

(iii) Complex EU law arguments need to be articulated with particular clarity. It

is particularly important, in the case of an allegation of a failure properly to transpose

an obligation under EU law, that the requirements of O. 84, r. 20(3) be observed:

Sweetman v. An Bord Pleanála (Sweetman XV) [2020] IEHC 39, [2020] 1 JIC 3104

(Unreported, High Court, 31 January 2020) per McDonald J. at para. 103 (cited with

approval by Murray J. (O'Donnell C.J., Woulfe, Collins and Donnelly JJ. concurring)

in Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála [2024]

IESC 28, [2024] 7 JIC 0402 (Unreported, Supreme Court, 4 July 2024); Rushe v. An

Bord Pleanála [2020] IEHC 122, [2020] 3 JIC 0502 (Unreported, High Court, 5 March

2020) per Barniville J.; attempts to launch for example non-transposition claims not

set out on the pleadings are impermissible: Alen-Buckley v. An Bord Pleanála [2017]

IEHC 311, [2017] 5 JIC 1211 (Unreported, High Court, Costello J., 12 May 2017).

(iv) Recital of high-level principles does not create certiorari by osmosis – an applicant

must specify a route-map connecting the particular factual problem alleged with

the particular relief sought via a chain of reasoning: Ballyboden Tidy Towns v. An

Bord Pleanála [2021] IEHC 648 (Unreported, High Court, 7 January 2022), para. 20;

Foley v. Environmental Protection Agency [2022] IEHC 470 (Unreported, High Court,

Twomey J., 24 January 2023), paras. 71-72; Stapleton v. An Bord Pleanála & Savona

[2024] IEHC 3 (Unreported, High Court, Holland J., 13 February 2024), para. 124.

(v) Scattergun pleadings are liable to be viewed as “a witch’s brew designed to spread

maximum confusion and to permit any argument to be made at the hearing that

ingenuity can suggest”: Hellfire Massy Residents Association v. An Bord Pleanála

[2022] IESC 38, [2024] 1 I.R. 386, [2022] 10 JIC 2402 per O’Donnell C.J. at para.

22 (Dunne, Woulfe, Hogan and Murray JJ. concurring). MacMenamin J. (Fennelly

and Clarke JJ. concurring) in Babington v. Minister for Justice Equality and Law

Reform & Ors. [2012] IESC 65 (Unreported, Supreme Court, 18 December 2012)

referred to the pleading requirements in judicial review and said at para. 7:

“Regrettably, these explicit stipulations are frequently not complied with, and the

same grounds are set out in as many different, varying, (and wearying)

reformulations of the same point as can be conceived. Practitioners should realise

that, in this entirely counterproductive and unnecessary process, there is a real risk

of not being able to see the wood for the trees. A good point does not gain force by

repetition”.

(vi) While the court has jurisdiction to grant unpleaded reliefs it can allow such relief

only within the contours of the case as defined by the pleaded grounds:

Concerned Residents of Treascon and Clondoolusk v An Bord Pleanála [2024] IESC

28, [2024] 7 JIC 0402 (Unreported, Supreme Court, 4 July 2024), para. 42 per

Murray J. (O'Donnell C.J., Woulfe, Collins and Donnelly JJ. concurring). Therefore a

court can’t grant relief if there is no supporting ground for it.

(vii) It is not necessary that the specific provisions of national or EU law relied

on are expressly enumerated if they are implicitly identifiable with acceptable

clarity: Eco Advocacy CLG v. An Bord Pleanála (No. 4) [2023] IEHC 713 (Unreported,

High Court, 18 December 2023); Kennedy & Anor. v. An Bord Pleanála [2024] IEHC

570 (Unreported, High Court, 7 October 2024), para. 132; Leech v. An Bord Pleanála

[2024] IEHC 599 (Unreported, High Court, Farrell J., 12 November 2024); Mount

Salus Residents' Owners Management Company Limited by Guarantee v. An Bord

Pleanála & Ors. [2025] IEHC 14 (Unreported, High Court, Holland J., 15 January

2025), para. 39. The standard is acceptable clarity, not express enumeration.

(viii) As noted by the Court of Appeal in Carvill v. An Bord Pleanála [2025] IECA 84

(Unreported, Court of Appeal, Barniville P., Collins and Faherty JJ., 11 April 2025)

at para. 148, where a developed pleading objection is made, the court should not

accept the point made by the applicant without first addressing the

objection. That said, the court can reject a point without deciding the pleading

objection if it fails either way.

Disposition of outstanding issues

85. A point impacting on next steps is that the applicant in argument expressly accepted the

lawfulness of identifying a lead case to deal with points such as this, and unsurprisingly therefore

did not assert that a legal wrong arose from its own case not being the lead case (there could not

be any lead case on anything if other cases could successfully assert a breach of their rights as a

result). Therefore insofar as delay was caused here, it was not caused by anything that stemmed

from a breach of the substantive rights of the applicant in that regard.

86. Turning to the extant grounds of challenge:

(i) core grounds 1 to 4 were rejected in the No. 1 judgment;

(ii) core grounds 5 to 7 relate to timeliness/ effectiveness; and

(iii) core ground 8 was rejected in the No. 1 judgment.

87. In view of the question mark over the reference, I considered that it would be preferable for

me to clarify with the parties which issues they thought come plausibly within the pleadings so as

to be potentially a basis for a potential reference to enable a decision on whether that is a route to

pursue.

88. As noted above, the potential issues that have arisen in exchanges with the parties, as

narrowed by reference to the findings of fact, are the following:

(i) Whether there was a breach of timeliness/expedition by reason of:

(a) the fact that the actual procedure adopted was not the most timely one

even though remittal as such was not the cause of this (the cause being

not selecting this case as the lead case);

(b) the fact that the time taken to process this case was affected by backlogs;

(c) the fact that this was a second remittal;

(d) the lack of express reference to/ consideration of timeliness/expedition in

the decision to remit;

(e) the fact that the commissioner had tolerated a degree of non-response to

correspondence by the public body and then relied on the non-response in

making a remittal decision;

(f) any appearance of breach of timeliness by a second remittal even though

actual delay was not demonstrated; or

(g) any other factor (to be identified, consistent with the findings of fact).

(ii) Whether there was a breach of effectiveness by reason of:

(a) the fact that this was a second remittal;

(b) the lack of express reference to/ consideration of effectiveness in the

decision to remit;

(c) the fact that the commissioner had tolerated a degree of non-response to

correspondence by the public body and then relied on the non-response in

making a remittal decision;

(d) any appearance of breach of effectiveness by a second remittal; or

(e) any other factor (to be identified, consistent with the findings of fact).

(iii) Any other issue (to be identified, consistent with the findings of fact).

89. This exercise needed to be carried out irrespective of whether anything is referred or not.

While I appreciate that the applicant is no longer seeking a reference, this remains something for

the court. Obviously I am interested in the parties’ positions but have generally remained of the

view throughout that there may be a referrable question here.

90. This works both ways. The more common situation is where a party demands a reference

or claims uncertainty in EU law, but the court, looking at things objectively, does not discern such

uncertainty. The mere fact that a party contends that the dispute gives rise to a question concerning

the interpretation of EU law does not mean that the court or tribunal concerned is compelled to

consider that such a question has been raised within the meaning of art. 267 TFEU (judgment of 6

October 1982, Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health, 283/81, EU:C:1982:335,

para. 9; judgment of 6 October 2021, Consorzio Italian Management and Catania Multiservizi SpA v

Rete Ferroviaria Italiana SpA, C-561/19, ECLI:EU:C:2021:799 (Grand Chamber) at para. 54).

91. Conversely, subject to the criteria for a reference, national courts, in their capacity as courts

responsible for the application of EU law (see, to that effect, judgment of 6 October 1982, Srl CILFIT

and Lanificio di Gavardo SpA v Ministry of Health, 283/81, EU:C:1982:335, para. 7), have the most

extensive power, or even the obligation, to make a reference to the Court if they consider that a

case pending before them raises issues involving an interpretation or assessment of the validity of

the provisions of European Union law and requiring a decision by them (see, to that effect, judgment

of 16 January 1974, Rheinmühlen-Düsseldorf v Einfuhr- und Vorratsstelle für Getreide und

Futtermittel, 166-73, ECLI:EU:C:1974:3, [1974] ECR 33, paras. 2 and 3; judgment of 12 June 2008,

Skatteverket v Gourmet Classic Ltd, C‑458/06, ECLI:EU:C:2008:338, [2008] ECR I‑4207, para. 20;

Opinion 1/09 (Agreement creating a Unified Patent Litigation System) of 8 March 2011,

ECLI:EU:C:2011:123, para. 83; and judgment of 6 October 2021, Consorzio Italian Management

and Catania Multiservizi SpA v Rete Ferroviaria Italiana SpA, C-561/19, ECLI:EU:C:2021:799 (Grand

Chamber), para. 28).

92. It is solely for the national court or tribunal before which the dispute has been brought, and

which must assume responsibility for the subsequent judicial decision, to determine, in the light of

the particular circumstances of the case, both the need for and the relevance of the questions

which it submits to the Court (judgments of 26 May 2011, Stichting Natuur en Milieu and Others v

College van Gedeputeerde Staten van Groningen and College van Gedeputeerde Staten van Zuid-

Holland, C‑165/09 to C‑167/09, ECLI:EU:C:2011:348, para. 47 and the caselaw cited; of 9

September 2015, X v Inspecteur van Rijksbelastingdienst and T.A. van Dijk v Staatssecretaris van

Financiën, C‑72/14 and C‑197/14, ECLI:EU:C:2015:564, para. 57; and of 12 May 2021, YL v

Altenrhein Luftfahrt GmbH, C‑70/20, ECLI:EU:C:2021:379, para. 25).

93. The system of direct cooperation between the Court of Justice and the national courts,

established by art. 267 TFEU, is completely independent of any initiative by the parties (see,

to that effect, judgments of 18 July 2013, Consiglio nazionale dei geologi v Autorità garante della

concorrenza e del mercato and Autorità garante della concorrenza e del mercato v Consiglio

nazionale dei geologi, C‑136/12, ECLI:EU:C:2013:489, para. 28 and the caselaw cited; of 3 June

2021, Bankia SA v Unión Mutua Asistencial de Seguros (UMAS), C‑910/19, EU:C:2021:433, para.

22; and of 6 October 2021, Consorzio Italian Management and Catania Multiservizi SpA v Rete

Ferroviaria Italiana SpA, C-561/19, ECLI:EU:C:2021:799 (Grand Chamber) at para. 53).

94. The determination and formulation of the questions to be put to the Court devolve

upon the national court or tribunal alone and that the parties to the main proceedings may not

change their tenor (see, to that effect, judgment of 18 July 2013, Consiglio nazionale dei geologi v

Autorità garante della concorrenza e del mercato and Autorità garante della concorrenza e del

mercato v Consiglio nazionale dei geologi, C‑136/12, ECLI:EU:C:2013:489, para. 29 and the caselaw

cited).

95. As determined in the judgment of 17 June 2010, Nawras Bolbol v Bevándorlási és

Állampolgársági Hivatal, C-31/09, ECLI:EU:C:2010:351 (Grand Chamber) (§40) “in the context of

a reference for a preliminary ruling, it is for the national court to establish the facts” (emphasis

added).

96. “Article 267 TFEU does not empower the Court to apply rules of EU law to a particular case,

but only to rule on the interpretation” (judgment of 19 November 2019, A. K. and Others v Sąd

Najwyższy, CP v Sąd Najwyższy and DO v Sąd Najwyższy (Independence of the Disciplinary Chamber

of the Supreme Court), joined cases C-585/18, C-624/18, C-625/19, ECLI:EU:C:2019:982 (Grand

Chamber), para. 132).

97. While in general a non-apex court is permitted rather than required to refer a question to

the CJEU, such a requirement arises in special situations, specifically where the court is of the view

that an EU act is unlawful (judgment of 11 November 1997, Eurotunnel SA and Others v SeaFrance,

C-408/95, ECLI:EU:C:1997:532 at 19; judgment of 14 December 2000, Masterfoods Ltd v HB Ice

Cream Ltd, C-344/98, ECLI:EU:C:2000:689; judgment of 11 January 2024, Friends of the Irish

Environment, C-330/22, ECLI:EU:C:2024:19 at 43). A similar approach would appear to apply

where a non-apex domestic court is of the view that following an otherwise binding domestic decision

would be contrary to EU law: “... it should be added that it is apparent from settled case-law that a

national court which has exercised the discretion conferred on it by the second paragraph of Article

267 TFEU must, where appropriate, disregard the rulings of a higher national court if it considers,

having regard to the interpretation given by the Court [i.e., the CJEU], that they are not consistent

with EU law, if necessary refusing to apply the national rule requiring it to comply with the decisions

of that higher court. That solution also applies where an ordinary court is bound, under national

procedural rule, by a decision of a national constitutional court which it considers to be contrary to

EU law (see, to that effect, judgment of 22 February 2022, RS (Effect of the decisions of a

constitutional court), C‑430/21, EU:C:2022:99, paragraphs 75 and 76)”: judgment of 4 September

2025, „R” S.A. v AW „T” sp. z o.o., C-225/22, ECLI:EU:C:2025:649 at 61 (emphasis added).

98. We can turn now to the specific headings of potential issues in the case and how they can

be disposed of.

Applicant’s general comments

99. The applicant offered the following unsolicited general comment, and the opposing parties’

responses are as follows:

“Applicant

The applicant’s position is that there is no evidence before the Court to suggest that the

remittal was a consequence of the selection of another case as the lead case. This does not

appear from the decision of the Commissioner, the Statement of Opposition or the affidavits

filed. The Commissioner has been given the opportunity on at least 2 further occasions to

clarify the matter, and has chosen not to adduce any further evidence. The applicant

respectfully submits to the Court that it would not be entitled to make any findings based

on this premise, and its answers to the questions set out below are made on that basis.

Insofar as the Court seeks details of the pleaded case on timeliness, the failure to provide

the Applicant with a timely remedy is a matter pleaded by the Applicant (see SOG E Part A

(5), (7) Part B Core Ground 3, Core Ground 6, (10) – (15) (22) Core Ground 7, (24) to (26),

(28) to (29).

Commissioner

The Commissioner understands that the purpose of this Schedule is to identify where certain

issues are pleaded and not to engage in submission on those issues. His responses below

reflect this understanding.

The issue of another lead case was clearly set out in Julie O’Leary’s 3rd affidavit, dated 2nd

October 2025. The fact that the Commissioner was engaged with other public authorities

was also expressly pleaded at paragraph 21 in the Statement of Opposition.

State

The State Parties consider that the question of whether a particular issue does or does not

within the pleadings is properly a matter for the Applicant and for the Commissioner, and

not for the State Parties qua notice parties to proceedings.

The State Parties view their involvement in the proceedings as being limited to participation

in the proposed reference to the CJEU, both in terms of feeding into the wording of questions

to be put to the CJEU and in terms of participation in the reference before the CJEU itself.

The State Parties do not consider that it is appropriate that they should have any input on

the question of whether a reference is required, as this is a substantive issue in the

determination of the case between the Applicant and the Commissioner.

Therefore, the State Parties do not adopt any view on the issues set out below.”

100. The problem with the applicant’s idée fixe here is of course a total failure – effectively a

refusal – to engage with or even acknowledge the reasons as to why I am reviewing the question of

what caused the delay.

101. Those reasons include:

(i) The initial failure by the applicant to properly disentangle the various effects of the

various confounding factors, compounded by the fact that the commissioner

countered that at a more general level rather than by a granular examination of all

of the confounding factors.

(ii) The unhelpful way this problem was obscured by the applicant’s general assertion

that remittal caused delay without properly interrogating how one allegedly caused

the other.

(iii) The fact that on such disentanglement, it is clear that the other factors were the

underlying cause of the delay here.

(iv) The necessary conclusion that remittal was not in itself the case of the delay, but

was rather a consequence or symptom of other procedural steps which were

ultimately the cause of the delay. Assuming the taking of those steps, remittal was

on that premise a reasonable and non-delay-causing response in the light of those

steps being taken.

(v) The uncontested evidence of Ms O’Leary stating the same conclusion particularly

when read in the light of the foregoing exercise.

102. I agree with the applicant that it would have been better if the decision and/or the opposition

papers has fully worked out all of these issues from the outset, but failure to do so does not have

the effect of preventing the court from addressing the matter or of elevating the applicant’s

assertions into facts by osmosis. An applicant still has to prove the entitlement to relief to the

satisfaction of the court: Ballyboden Tidy Towns Group v. An Bord Pleanála & Ors. [2024] IESC 4

(Unreported, Supreme Court, Donnelly J., 22 February 2024) (O’Donnell C.J., Woulfe, Hogan and

Collins JJ. concurring).

103. The fact that timeliness is mentioned in the statement of grounds does not entitle an

applicant to argue any and every point that may subsequently occur to them about timeliness. As

in 100 Meter Tall Group v. An Bord Pleanála [2025] IEHC 42 at 46, insofar as the applicants there

seized on particular words in the pleadings such as reference to the Hen Harrier, that didn’t allow

them to make any and every argument that subsequently occurred to them about Hen Harrier. An

applicant is confined to the particular issues expressly pleaded.

Issue 1(a) – breach of timeliness due to actual procedure adopted

104. The issue was whether the following required to be addressed:

Whether there was a breach of timeliness/expedition by reason of:

(a) the fact that the actual procedure adopted was not the most timely one even though

remittal as such was not the cause of this (the cause being not selecting this case as the

lead case)

105. The parties’ positions were:

“Applicant

As set out above, the applicant’s position is that there is no basis for the Court to make any

findings that the cause of the remittal was in any way related to the choice of lead case.

Commissioner

A breach of timeliness is pleaded in Domestic Law Ground 5 and EU Law Ground 7 of the

Applicant’s Statement of Grounds but this specific plea is not set out.

The focus of the Statement of Grounds was on remittal as the cause of delay.

State

The State Parties do not adopt any view on this issue.”

106. The applicant’s position is misconceived for the reasons set out. I would have to uphold the

commissioner’s point that there is no adequate express pleading relying on this point as a ground

for relief.

107. This point however may be a piece of context if the matter is referred, which remains to be

decided.

Issue 1(b) – backlogs

108. The issue was whether the following required to be addressed:

Whether there was a breach of timeliness/expedition by reason of:

(b) the fact that the time taken to process this case was affected by backlogs

109. The parties’ positions were:

“Applicant

This is a factor that was mentioned by the Commissioner. See the decision, and the verifying

affidavit of Julie O’Leary, paragraphs 26 – 37. A backlog is not a reason to not have a timely

procedure

Commissioner

This is not set out in the Statement of Grounds but is in the Commissioner’s Decision and

the Verifying Affidavit of the Commissioner.

State

The State Parties do not adopt any view on this issue.”

110. The purpose of the present exercise is to determine what comes legitimately within the

pleadings, not to open a general roving inquiry into the decision. The applicant does not contend

that the point that “A backlog is not a reason to not have a timely procedure” was pleaded as a

ground for relief.

111. I would have to uphold the commissioner’s point that there is no pleading relying on this

point. The fact that something is mentioned somewhere in the papers, or in the contested decision,

does not relieve an applicant from pleading that that something gives rise to a specific legal error

creating an entitlement to relief.

112. This point however may be a piece of context if the matter is referred, which remains to be

decided.

Issue 1(c) – second remittal

113. The issue was whether the following required to be addressed:

Whether there was a breach of timeliness/expedition by reason of:

(c) the fact that this was a second remittal

114. The parties’ positions were:

“Applicant

This is a matter which was pleaded.

Commissioner

Agreed that this was pleaded by the Applicant in numerous places in the Statement of

Grounds.

State

The State Parties do not adopt any view on this issue.”

115. This issue therefore needs to be decided, which I will address in the amended No. 3

judgment, either by deciding it or referring it.

Issue 1(d) – lack of express discussion of timeliness/ expedition

116. The issue was whether the following required to be addressed:

Whether there was a breach of timeliness/expedition by reason of:

(d) the lack of express reference to/ consideration of timeliness/expedition in the

decision to remit;

117. The parties’ positions were:

“Applicant

The decision of the Commissioner acknowledges that there would be delay caused by the

second remittal, and apologises for that delay.

Commissioner

This is not pleaded in the Statement of Grounds.

State

The State Parties do not adopt any view on this issue.”

118. As stated above, the purpose of the present exercise is to determine what comes legitimately

within the pleadings, not to open a general roving inquiry into the decision. The applicant does not

contend that the point was pleaded as a ground for relief.

119. I would have to uphold the commissioner’s point that there is no pleading relying on this

point. The fact that something is mentioned somewhere in the papers, or in the contested decision,

does not relieve an applicant from pleading that that something gives rise to a specific legal error

creating an entitlement to relief. Apologising for something does not generally give rise to a cause

of action, still less a cause of action that is not pleaded.

120. What the applicant is consistently missing, and misses under this heading, is that what it

calls the “acknowledge[ment]” of remittal causing delay was not a formal, estoppel-creating,

considered legal judgement. It was a piece of courtesy and consideration which does not preclude

the commissioner from producing evidence (which he has done) from which it can be concluded that

remittal in itself was not in fact the cause of the delay.

121. This point however may be a piece of context if the matter is referred, which remains to be

decided.

Issue 1(e) – tolerance of delays

122. The issue was whether the following required to be addressed:

Whether there was a breach of timeliness/expedition by reason of:

(e) the fact that the commissioner had tolerated a degree of non-response to

correspondence by the public body and then relied on the non-response in making a remittal

decision

123. The parties’ positions were:

“Applicant

This is in evidence from the materials before the Court, and the correspondence between

the public body and the Commissioner.

Commissioner

This is not pleaded in the Statement of Grounds.

State

The State Parties do not adopt any view on this issue.”

124. As stated above, the purpose of the present exercise is to determine what comes legitimately

within the pleadings, not to open a general roving inquiry into the decision. The applicant does not

contend that the point was pleaded as a ground for relief.

125. I would have to uphold the commissioner’s point that there is no pleading relying on this

point. The fact that something is mentioned somewhere in the papers does not relieve an applicant

from pleading that that something gives rise to a specific legal error creating an entitlement to relief.

126. This point however may be a piece of context if the matter is referred, which remains to be

decided.

Issue 1(f) – appearance of breach of timeliness

127. The issue was whether the following required to be addressed:

Whether there was a breach of timeliness/expedition by reason of:

(f) any appearance of breach of timeliness by a second remittal even though actual

delay was not demonstrated;

128. The parties’ positions were:

“Applicant

For the reasons set out above, the applicant does not accept the premise that delay was not

demonstrated

Commissioner

This is not pleaded in the Statement of Grounds.

State

The State Parties do not adopt any view on this issue.”

129. The applicant’s position is misconceived for the reasons set out. Nor does it make a case

that it has pleaded an appearance of breach of timeliness. I would have to uphold the

commissioner’s point that there is no pleading relying on this.

Issue 1(g) – any other factor regarding timeliness

130. The issue was whether the following required to be addressed:

Whether there was a breach of timeliness/expedition by reason of:

(g) any other factor (to be identified, consistent with the findings of fact).

131. The parties’ positions were:

“Applicant

N/A

Commissioner

N/A

State

N/A”

132. Nothing therefore arises under this heading.

Issue 2(a) – effectiveness – second remittal

133. The issue was whether the following required to be addressed:

Whether there was a breach of effectiveness by reason of:

(a) the fact that this was a second remittal

134. The parties’ positions were:

“Applicant

In the applicant’s submission, the whole process, including the second referral has given rise

to a breach of the right to an effective remedy, which includes a right to a timely remedy

under Article 9(4) of the Aarhus Convention.

Commissioner

The Statement of Grounds alleges that the Commissioner failed to provide an effective

remedy (e.g. EU Law Ground 7) by ‘repeatedly remitting the 2018 AIE Request’.

State

The State Parties do not adopt any view on this issue.”

135. Notably under this heading the applicant did not actually answer the question as to whether

this is pleaded. This is possibly consistent with its fixed view, which unfortunately began as assertion

and has not risen significantly above that, that remittal caused delay and really there is little else to

see in this case. That seems to illustrate a misunderstanding on its part and certainly a

misunderstanding as to the purpose of the present exercise. Hopefully the present judgment may

do something to clarify matters.

136. However fortunately for the applicant, the commissioner is playing fair on this point and

accepts that this does come within the pleadings.

137. This point will therefore be dealt with in the No. 3 judgment.

Issue 2(b) – lack of express discussion

138. The issue was whether the following required to be addressed:

Whether there was a breach of effectiveness by reason of:

(b) the lack of express reference to/ consideration of effectiveness in the decision to

remit;

139. The parties’ positions were:

“Applicant

In the applicant’s submission, the decision of the Commissioner, and the verifying affidavit

of Julie O’Leary, in particular, the passages identified above, implicitly acknowledge the

breach of a right to an effective remedy.

Commissioner

This is not pleaded in the Statement of Grounds.

State

The State Parties do not adopt any view on this issue.”

140. As stated above, the purpose of the present exercise is to determine what comes legitimately

within the pleadings, not to open a general roving inquiry into the decision. The applicant does not

contend that the point was pleaded as a ground for relief.

141. I would have to uphold the commissioner’s point that there is no pleading relying on this

point. The fact that something is mentioned somewhere in the papers or in the decision or evidence

from the respondent does not relieve an applicant from pleading that that something gives rise to a

specific legal error creating an entitlement to relief.

142. I do not accept that there is any “implicit acknowledge[ment of] the breach of a right to an

effective remedy” but even if counterfactually there was, an applicant still has to plead the issue.

143. This point however may be a piece of context if the matter is referred, which remains to be

decided.

Issue 2(c) – tolerance of delays

144. The issue was whether the following required to be addressed:

Whether there was a breach of effectiveness by reason of:

(c) the fact that the commissioner had tolerated a degree of non-response to

correspondence by the public body and then relied on the non-response in making a remittal

decision

145. The parties’ positions were:

“Applicant

This is in evidence from the materials before the Court, and the correspondence between

the public body and the Commissioner.

Commissioner

This is not pleaded in the Statement of Grounds.

State

The State Parties do not adopt any view on this issue.”

146. As stated above, the purpose of the present exercise is to determine what comes legitimately

within the pleadings, not to open a general roving inquiry into the decision. The applicant does not

contend that the point was pleaded as a ground for relief.

147. I would have to uphold the commissioner’s point that there is no pleading relying on this

point. The fact that something is mentioned somewhere in the papers does not relieve an applicant

from pleading that that something gives rise to a specific legal error creating an entitlement to relief.

148. This point however may be a piece of context if the matter is referred, which remains to be

decided.

Issue 2(d) – appearance of breach of effectiveness

149. The issue was whether the following required to be addressed:

Whether there was a breach of effectiveness by reason of:

(d) any appearance of breach of effectiveness by a second remittal;

150. The parties’ positions were:

“Applicant

It was not only the appearance of a breach, but an actual breach.

Commissioner

As above, EU Law Ground 7 in the Applicant’s Statement of Grounds refers to the

Commissioner ‘repeatedly remitting the 2018 AIE Request’ and alleges that as a result

adequate and effective remedies for the Applicant were not provided.

State

The State Parties do not adopt any view on this issue.”

151. It does not seem that the appearance of breach of effectiveness raises any distinct issue

from the claim that a second remittal gave rise to an actual breach of effectiveness and the parties

do not contend that it does. Nor does any party actually contend that the “appearance” of breach

of effectiveness was pleaded as a distinct issue.

152. This will therefore be treated as essentially subsumed into issue 2(a), which will be dealt

with in the No. 3 judgment.

Issue 2(e) – any other factor

153. The issue was whether the following required to be addressed:

Whether there was a breach of effectiveness by reason of:

(e) any other factor (to be identified, consistent with the findings of fact)

154. The parties’ positions were:

“Applicant

N/A

Commissioner

N/A

State

N/A”

155. This therefore does not arise.

Issue 3 – any other points

156. The issue was whether the following required to be addressed:

Whether there was a breach of effectiveness by reason of:

Any other issue (to be identified, consistent with the findings of fact).

157. The parties’ positions were:

“Applicant

N/A

Commissioner

N/A

State

N/A”

158. This therefore does not arise.

Next steps

159. It follows from the foregoing that an amended No. 3 judgment will be required. This will

necessarily either provide a decision on the matters determined as being required to be decided

(specifically issues 1(c) and 2(a), regarding second remittal, bearing some of the other issues in

mind as context where that is appropriate), or refer the matter to the CJEU.

160. I will keep open the option of circulating the amended No. 3 judgment in draft form before

finalising it, not least because in the hypothetical event of a decision to refer, the draft would allow

parties to provide wording for any proposed answers to be incorporated in the final version

Order

161. The order made on 10 February 2026 was that the proposed No. 3 judgment be reconfigured

having regard to the matters set out in the original version of this judgment.

162. The order now being made is that for the foregoing reasons, the No. 3 judgment be further

reconfigured having regard to the matters set out above.