- Bookmark
- Share
- CaseIQ
People Over Wind v Commissioner For Environmental Information and Anor [No. 2] (Approved)
Factual and Procedural Background
This is a High Court planning and environment judgment delivered by Judge Humphreys on 10 February 2026. In an earlier judgment (Applicant v. Respondent (No. 1) [2025] IEHC 593) Judge Humphreys indicated an intention to refer certain issues to the Court of Justice of the European Union (CJEU). Parties were given time to make submissions on the questions for reference and on a draft judgment for reference. The court circulated a draft of the present judgment (and a second draft of the judgment for reference) to parties on 4 February 2026 to invite comments limited to specified categories (e.g., corrections, requests for redaction, procedural points). The deadline for comments was 9:30 on 9 February 2026.
The parties included the Applicant, the Respondent (the Commissioner for Environmental Information), Company A and Company B as notice parties, and Company C as amicus curiae. The Respondent submitted detailed comments on the draft judgment challenging (inter alia) the court's characterization of certain emails as a "decision in principle", the dating of the decision to remit the appeal, whether remittal caused delay, and whether the Commissioner remained seized of the appeal after remittal. The court addressed those points and ordered that the judgment for reference be reconfigured in light of the matters set out in this ruling.
Legal Issues Presented
- When did the Commissioner form the view to remit the appeal (the date or period of the decision to remit) and whether an email of 2 July 2024 constituted a "decision in principle".
- Whether remittal of the appeal caused delay in final determination and, if so, the extent of that delay.
- Whether the Commissioner's December 2024 remittal decision was a "final" decision such that the Commissioner was no longer seized of the appeal.
Arguments of the Parties
Applicant's Arguments
- The Applicant sought an opportunity to comment on the draft judgment and made relatively modest suggestions; it asked for the draft judgment procedure to be used to identify errors rather than to reargue the merits.
Respondent's Arguments
- The Respondent submitted that the draft judgment misclassified an investigator's email as a "decision in principle" and that the Commissioner's procedures permit informal exploration of settlement and options.
- The Respondent argued the formal decision to remit was made in December 2024 (after the designation of a lead case in September 2024) and that earlier communications (such as the July 2024 email) were exploratory and did not amount to a decision.
- The Respondent contended remittal was not the cause of delay because remittal offered a timely route to resolution and it was not inevitable that the notice party (Company A) would refuse release on reconsideration.
- The Respondent maintained that, having annulled the internal review decision in December 2024, the Commissioner had made a final decision to remit and was no longer seized of the appeal.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Applicant v. Respondent (No. 1) [2025] IEHC 593 | Reference to CJEU: procedural history of referral and preparation of questions for reference. | Cited as the prior judgment in which questions were referred in principle; forms part of the procedural background. |
| O'Sullivan v. Health Service Executive [2023] IESC 11 | Limits on procedural elaboration in draft judgment procedures; need to avoid treating every contested point as requiring trial-like procedures. | Quotations used to justify restricting draft judgment comments to limited categories and to emphasise expedition and discipline in the draft-judgment procedure. |
| O'Sullivan v. Sea Fisheries Protection Authority [2017] IESC 75 | Warning against treating administrative proceedings as requiring criminal-trial-like procedures. | Quoted to support the proposition that the draft-judgment process should not be treated as opening a new litigatory phase. |
| Attorney General v. Crosland (No. 2) [2021] UKSC 58 | Rationale for restricting publication and transmission of draft judgments in the interests of the administration of justice. | Relied on to justify the court's direction restricting circulation and publication of draft judgments. |
| OCEI v. Company A & Ors [2023] IEHC 227 | An earlier High Court judgment relevant to how Company A might reconsider disclosure following judicial guidance. | Referred to as a decision that could impact Company A's position and as context for the Office's decision-making on remittal. |
Court's Reasoning and Analysis
The court addressed each of the three identified issues in turn, on the basis of the material in the draft and the Respondent's submissions.
Issue 1 (date of decision / "decision in principle"): The court accepted that an investigator's exploratory email could be characterised as informal and that the terminology "decision in principle" could be overbroad if applied to every exploratory communication. The court nonetheless found that, once another case was designated as the lead case, remittal became inevitable; the court concluded that the Commissioner had begun to form a view in favour of remittal in June/July 2024 and that "the die was cast" at some point between July and September 2024, with the formal decision taken in December 2024. The court accepted the Respondent's semantic point but maintained that an emerging preference for remittal existed earlier than the formal date.
Issue 2 (whether remittal caused delay): The court rejected the Respondent's submission that remittal caused no delay. The court compared the counterfactual of this case being treated as the lead case and observed that remittal and the identification of a separate lead case postponed final determination. The court concluded that the option or consideration of remittal itself caused delay of uncertain duration and estimated, conservatively, that remittal was likely to have caused at least two months' delay (allowing for a couple of weeks pre-September 2024 and six weeks for the September–October 2025 gap).
The court further explained its proposed approach for the reference: remittal should be used where the Commissioner determines that (a) remittal is likely to be the most expeditious way to resolve the matter (expedition being the focus), or (b) alternatives to remittal are not reasonably possible. The court noted these conditions are especially important for second or subsequent remittals and said it would tighten the wording of the proposed answer accordingly.
Issue 3 ("final" decision / whether Commissioner remained seized): The court treated the Respondent's submission on finality as largely semantic, deleted unnecessary wording from the draft judgment, and observed that language suggesting a future "final decision" post-remittal had been used by the Respondent itself. The court therefore removed the disputed phrasing as unnecessary.
Holding and Implications
RECONFIGURED: The court ordered that the judgment for reference be reconfigured having regard to the matters set out in this judgment.
Direct effect: The draft judgment for reference will be amended to reflect the court's findings on (i) when the Commissioner formed a view in favour of remittal, (ii) that remittal likely caused non-de minimis delay (estimated conservatively at at least two months), and (iii) that certain language about finality was unnecessary and deleted. The court stated its intended criteria for when remittal is appropriate (expedition or impossibility of alternatives), to be reflected in the reconfigured judgment for reference.
No broader legal precedent beyond the immediate order was announced in this ruling; the decision's primary effect is to modify the form and content of the judgment for reference sent to the CJEU and to record the court's factual and analytical responses to the Respondent's draft-judgment submissions.
Alert