Transcript Eir – p&dp - Cornerstone Barristers

Environmental Information
Regulations 2004
and Planning enforcement
Royal Town Planning Institute
6th July 2007
Damien Welfare, 2-3 Gray’s Inn Square
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
EIR and planning
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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
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
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)
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
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
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
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”.
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
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.
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
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)
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
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
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)
Relationship with FOI
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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
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))
Exceptions –
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1
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))
Exceptions-
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1
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
Exceptions – 2nd Group: Reg
12(5)
• Disclosure would adversely affect:
(a) International relations, public safety etc
(b) Course of justice
(c) 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
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)
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)
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)
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
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
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
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
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)
Guidance
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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.
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