- 2 Aug 2018
FOI reference: FOI/18/02038
Date received: 20 July 2018
Date responded: 2 August 2018
A copy of DPEA's Quality Plan and written system of working and a copy of DPEA's Complaints Procedure.
I refer to your letter of complaint dated July 2018 and also to your requests for information under the Freedom of Information (Scotland) Act 2002. The information requested is a copy of DPEA's Quality Plan and written system of working and a copy of DPEA's Complaints Procedure.
With regard to your request for information I can confirm that as the information you have requested is 'environmental information' for the purposes of the Environmental Information (Scotland) Regulations 2004 (EIRs), we are required to deal with your request under those Regulations. We are applying the exemption at section 39(2) of the Freedom of Information (Scotland) Act 2002 (FOISA), so that we do not also have to deal with your request under FOISA.
This exemption is subject to the 'public interest test'. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. We have found that, on balance, the public interest lies in favour of upholding the exemption, because there is no public interest in dealing with the same request under two different regimes. This is essentially a technical point and has no material effect on the outcome of your request.
I attach a link to our complaints policy - DPEA Complaints. Under regulation 6(1)(b) of the EIR's, we do not have to give you information which is already publicly available and easily accessible to you in another form or format. However, if you do not have internet access to obtain this information from the website listed, then please contact me again and I will send you a paper copy.
Turning now to your request for a copy of the DPEA Quality Plan and written system of working I can confirm that under the terms of the exception at regulation 10(4)(a) of the EIRs (information not held), the Scottish Government is not required to provide information which it does not have. The Scottish Government does not have the information you have requested.
This exception is subject to the 'public interest test'. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exception. We have found that, on balance, the public interest lies in favour of upholding the exception. While we recognise that there may be some public interest in information about DPEA, clearly we cannot provide information which we do not hold.
However in order to try and provide you with help in relation to your request I have attached a link to DPEA guidance notes and reporters guidance notes which set out how decisions are made - DPEA Guidance. If you require any further information please do not hesitate to contact me.
Turning now to your complaint and taking the issues you raise in the same order as your letter I would comments as follows:
1. I can confirm that the change in relation to the title of the building had no impact on the reporters consideration of this appeal, it was only as explained in earlier correspondence to ensure the notice itself was clear in intent. This change did not alter the statutory framework in which the reporter had to decide this appeal.
2. It was not for the reporter to review the processing of the planning application by the council nor the decision of the local review body. The Town and Country Planning (Appeals) (Scotland) Regulations 2013 set out that the reporter is responsible for deciding what process is appropriate to consider and decide an appeal. This may include a site inspection, further written submissions, hearing or inquiry sessions or any combination of these processes. In this instance the reporter concluded that she was able to consider fully the appeal on the basis of written submissions and a site inspection. I would confirm that had she considered either a hearing or inquiry session appropriate this would only have dealt with specified matters in front of her in relation to this appeal and not the actions of the council leading up to the service of this Enforcement Notice.
3. The purpose of the site inspection is to acquaint the reporter with the physical aspects of the site as they relate to the case. It is not to allow parties the opportunity to put forward their case in relation to the appeal.
4. This point is addressed within the decision notice at paragraph 8.
5. As above, it was not for the reporter to consider the actions of the local planning authority but to consider the appeal against the enforcement notice.
Turning now to the points you raise in relation to the site inspection:
1. I note that our letter of 12 March acknowledged your request for a hearing/inquiry session but indicated that the reporter did not consider this necessary.
2. It is quite normal for parties to express contrary views in relation to an appeal. At all stages of the process you were given the opportunity to comment on other parties submissions.
3. As set out above and confirmed in our correspondence of 12 March and 17 April the purpose of the site inspection was to acquaint the reporter with the physical aspects of the site – not to allow a discussion on the merits of the appeal.
4. As above the purpose of the site inspection was set out in correspondence.
5. Had the reporter required further information with regard to the purpose of the site inspection she would have asked. Other matters relevant to the appeal were being dealt with in writing and it would not have been appropriate to discuss these at the site inspection.
6. As above the purpose of the site inspection was set out in correspondence.
7. I can confirm that the target date for this case was extended in line with normal practice when a request was made for further written submissions. Whilst the reporter met the revised target for dealing with this appeal I acknowledge that whilst this change was recorded on our web site you were not informed of this change. I will consider this point further with a view to looking at how we can ensure parties are informed of changes to target dates for deciding appeals we deal with.
Having fully considered the points you raise I can confirm that in my view the reporter has dealt with your appeal as required and in an appropriate manner in all regards.
The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at http://www.gov.scot/foi-responses
Please quote the FOI reference
Central Enquiry Unit
Phone: 0300 244 4000
The Scottish Government
St Andrew's House