Environmental Information Regulations 2004 and Planning enforcement

1. Environmental Information Regulations 2004and Planning enforcement Royal Town Planning Institute 6th July 2007 Damien Welfare, 2-3 Gray’s Inn Square

2. Introduction • EIR 2004 (SI 2004 No 3391) • replaced EIR 1992 • Directive 2003/4/EC on public access to environmental information • All information requests are under FOI Act 2000, EIR or Data Protection Act 1998

3. EIR and planning • Bridgnorth (2 July 2005): planning enforcement • Markinson (IT): file on planning applications • Mid Suffolk (2 June 2006): planning applications • City of Plymouth (2 March 2006): pedestrian crossing • Kirkcaldie (Thanet District Council) (IT) (4 July 2006) – section 106 agreement • DCLG (27 July 2006) – report of planning inspector

4. Implications • EIR, not FOI, is main information regime applying to planning enforcement, and to planning generally • Most information requests concerning planning are covered by EIR, or should be treated as such • Planning authorities need to apply EIR rules

5. Environmental Information • Information in any form on: • (a) state of the elements (eg air, landscape, biological diversity) and their interaction • (b) factors affecting/likely to affect, elements (eg waste, emissions) • (c) measures affecting/likely to affect (or designed to protect) elements and factors (eg policies, plans, activities)

6. Definition (cont) • (d) reports on implementation of environmental legislation • (e) cost/benefit or other economic analyses • (f) state of human health & safety (inc. food contamination), conditions of human life, cultural sites and built structures (as affected by elements, factors or measures) • Proximity/remoteness test

7. Cases on why EIR apply • [Cases above] • B’ham Nrthn Relief Rd (BNRR) (1998)– road concession agreement • Ibstock (1995) – information by which to judge quality of information • Wolverhampton (2 June 2006) – criteria for determining boundary lines of property

8. Who is subject to EIR • a) Public authority • b) Person carrying out public functions • c) Person under control of a) or b): (i) who has public responsibilities; (ii) exercises functions of public nature; or (iii) provides public services … ……..relating to environment • ERM Ltd (7 June 2006): environmental consultant • Network Rail (26h July 2006): public functions

9. Who holds environmental information • Applies when information is held, produced or received by the authority • Or held by another person on behalf of the authority (ie wider than FOI) • Doncaster MBC (21st Nov 2006): information accessible by cumbersome computer link to which had contractual right was “held”.

10. Duties under the EIR • Reg 4: duty on public authority progressively to make env. information which is held available on its website • eg policies, programmes etc (Art 7.2) • eg facts/analyses relevant to major environmental policy proposals

11. Regulation 5 - EIR requests • To make information held available on request as soon as possible: within 20 working days • May extend to 40 w. d. where complexity and volume make normal deadline impracticable. If extending, tell applicant within 20 w.d • Includes oral requests • Replies in format requested, unless reasonable to make available in another format, or easily accessible in another format.

12. Advice & assistance • Duty to assist to applicants and prospective applicants (so far as reasonable to expect) • If request too general, duty to ask for more particulars within 20 w.d. • Conformity to DEFRA Code is compliance with duty to assist

13. Refusals • In writing, within deadline for response • Reasons - including exception relied on, matters considered and Public Interest Test [NB: both sides] • Inform of how to make representations, seek enforcement and appeal (below)

14. Costs and charges • No limit on cost enabling refusal • Request could be “manifestly unreasonable” • Charge not to exceed what authority is satisfied is a reasonable amount (Reg 8(3)). • Public registers/lists, inspection: no charge • Advance payment with notice in 20 w.d. (payable within 60 days). Clock stops. • Publish schedule of charges

15. Costs and charges (cont) • Guidance: harmonise chges with FOI • Markinson (IT) (28 March 2006): guide price for copying of 10p per sheet unless “good reason” for more, having regard to DEFRA guidance • Disregard costs (inc staff costs) associated with maintaining, identifying or extracting information

16. Complaints, enforcement, appeals • After refusal. any representations within 40 working days • Response (ie review) within further 40 w.d. • Application to Commissioner • Information, decision or enforcement notices • Appeal to Information Tribunal • Appeal to High Court (pt of law)

17. Relationship with FOI • Where the EIR apply, the FOI Act does not • So need to define EIR first • Some requests will be mixed (both regimes) • Similarities: Public Interest Test; time limit (20 wd); enforcement regime; Publication Schemes; records management procedures

18. Other differences between EIR & FOI (in addition to those above) • Presumption in favour of disclosure is express • Fewer exemptions (“exceptions”). Most narrower, and Public Interest test applies to all (other than Reg 13(2)(a)(i) re data protection) • Duty to disclose overrides other enactment or rule of law (Reg 5(6))

19. Exceptions – 1st group: Reg 12(4) • (a) Information is not held when requested • (b) Request manifestly unreasonable (vexatious; substantial and unreasonable burden on resources) • (c) request too general • (d) material in course of completion, documents unfinished, data incomplete (NB: draft” label insufficient: Plymouth (2/3/06))

20. Exceptions- 1st Group (cont) (e) would disclose internal communications - potentially wider than ss35/36, FOIA, but likely to be interpreted restrictively: DCLG (“Vauxhall Tower”), 13 June 06 (IC); 1 June 2007 (IT): advice and submissions to Ministers DCLG, 27 Nov 2006 & 4 Sept 2006: inspectors’ reports

21. Exceptions – 2nd Group: Reg 12(5) • Disclosure would adversely affect: • International relations, public safety etc • Course of justice • Intellectual property rights (d) Confidentiality of proceedings provided by law (e) Commercial or industrial confidentiality (f) Interests of provider where provides voluntarily (g) Protection of environment to which info relates

22. Likelihood of adverse effect • Formulation is “would adversely affect” not “would, or would be likely to, adversely affect…” • DEFRA Guidance does not address directly • Info Commissioner says: harm must be shown “with certainty” • UK Trade and Investment (11 April 2006) – avoided the issue • City of Plymouth (2 March 2006)

23. Exceptions relevant to planning enforcement • 1. “Process” exceptions: (info not held; man. unreasonable; too general; unfinished) • 2. Internal communications • 3. Course of justice • 4. Confidentiality of proceedings • 5. Commercial or industrial confidentiality • 6. Interests of voluntary provider • 7. Protection of environment to which info relates • 8. Personal data of third parties (Reg 13)

24. Course of Justice • Course of Justice, fair trial, ability to conduct criminal/disciplinary inquiry. • Applies where authority not acting judicially or legislatively • Includes law enforcement, prevention & detection of crime. Not applied in Bridgnorth. • Legal professional privilege (Kirkcaldie) • Commissioner for Local Administration (23 March 2006)

25. Confidentiality of proceedings • Confidentiality of proceedings of that/another authority where provided by law • Within common law duty of confidence • EIR overrides Access to Information rules (Pt VII, LGA 1972, as amended) • Does not apply to information concerning emissions

26. Confidentiality of commercial or industrial information • Where provided by law to protect legitimate economic interest. • Likely to be interpreted narrowly; restricted to confidentiality (unlike s 43, FOIA) • Cannot contract out of EIR obligations • Confidentiality clause requires good reason • Does not apply to emissions info

27. Interests of voluntary provider of info • Where informant not obliged to supply (and could not have been), and authority not entitled to disclose and no consent to do so • Identity of informant exempt; rest of enforcement file disclosable in Bridgnorth • Does not apply to information generated in negotiations • Does not apply to emissions information

28. Harm to environment • Harm to environment to which the information relates - eg vulnerable sites • Consultation with nature conservancy bodies • Degree of likelihood of harm may be tested in future

29. Personal data other than of applicant (Reg 13) • Not to be disclosed if : - would breach DP principles, or - data subject has exercised rt to prevent processing causing damage or distress (PI test applies), or - information is exempt from access by data subject (PI test applies)

30. Guidance • EIR Code of Practice (DEFRA) • EIR Guidance (DEFRA) • Info Commissioner’s guidance • DEFRA: The Boundaries between EIR and FOI (July 2006). Useful introduction to identifying scope, with examples. Also proximity or remoteness test.

31. Conclusion • Main information regime in planning enforcement, and planning generally • Fewer decisions than FOI but increasing • Information Tribunal and Commissioner applying EIR broadly • Detail of boundary with FOI yet to be defined • Critical to recognise EIR requests