Publication - FOI/EIR release

Information relating to Kype Muir Wind Farm: EIR release

Published: 25 Oct 2018

Information request and response under the Environmental Information (Scotland) Regulations 2004.

Published:
25 Oct 2018
Information relating to Kype Muir Wind Farm: EIR release
FOI reference: FOI/18/02720
Date received: 25 September 2018  
Date responded: 23 October 2018
 
Information requested
 
Responses to a number of points and the provision of information in relation to   environmental information held by the Scottish Ministers in respect to Kype Muir wind farm (KMWF), Kype Muir wind farm extension (KMExt) and associated developments.
 
Response
 

We consider that points 2, 5, 6 and 7 constitute fresh requests for information, and our response to those requests is set out in Annex A.

However, we do not consider that points 1, 3, and 4 are requests for information, for the reasons set out in Annex B. If you have any queries, please contact me quoting case number FoI/18/02720.

Annex A

Point 2

“When considering applications reporters and local planning authorities usually present a comprehensive report which sets out their assessment, the basis for their recommendations, how they have assessed the proposal, the results of consultation and public representations. Do you submit a similar such a report to the Minister? If so, is that available for public view. If so, please can you provide a copy for the KMWF and KMExt consents.”

Submissions are made to the Scottish Ministers about applications made under Section 36 of the Electricity Act so that the Ministers may determine the application. These submissions are not made available for public viewing.

Point 5

“Where an Environmental Statement is to be prepared developers often seek a scoping and sometimes a screening opinion.  For these developments these opinions would be from yourselves. When seeking these opinions the developer presents an environmental report or reports, sometimes called a screening and/or scoping report. Could you please provide these reports on any screening opinion and scoping opinion that was carried out for the KMWF and KMExt, together with the resulting opinions.  If the screening or scoping process was amended in any way please could you provide copies of those reports and opinions.”

When we responded to you originally (FoI/17/01442) we sent a copy of the Scoping Opinion (also sometimes referered to as a Scoping Determination) for Kype Muir Wind Farm. We advised that we held no other documentation in respect of scoping documentation for Kype Muir Wind Farm or Kype Muir Extension. This was also confirmed in the response to your request for a review following further searches. I have included, as an attachment to this email, a scoping cover letter for Kype Muir wind farm. This letter references a scoping report but as advised previously we have been unable to locate a copy of this or any other scoping documentation, other than the scoping opinion sent to you, despite undertaking extensive searches in relation to both wind farms.

Given the size and nature of wind farm development, it is normally assumed by applicants that they constitute EIA development and therefore requests for screening are not undertaken. Nevertheless extensive searches have been undertaken to identify if that is the case with either Kype Muir Wind Farm or Kype Muir Wind Farm extension.

While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested because an exception under regulation 10(4)(a) (information not held) of the EIRs applies to that information. Under the terms of that exception, the Scottish Government is not required to provide information which it does not have. The Scottish Government, despite extensive searches, has not been able to locate any further information relating to either screening or scoping for either development.

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 scoping and or screening documentation for these wind farms, clearly we cannot provide information which we do not hold.

Point 6

“I gather you have powers to require further information in the event of an ES being insufficient. Please confirm whether any further information has been requested for these applications. If so, please provide the request and information provided in response.”

Further environmental information, in accordance with regulation 13(1) of The Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2000 was not requested by Scottish Ministers for the Kype Muir Wind Farm application - therefore no such request was made by Scottish Ministers.    

The applicant did however submit supplementary environmental information via addendum on 12 December 2011 to address issues identified by consultees and to provide additional information. I have included, as an attachment to this email, the supplementary environmental information submitted for Kype Muir Wind Farm. 

I can confirm that no further environmental information was requested by Scottish Ministers in accordance with regulation 13(1) of The Electricity Works (Environmental Impact Assessment) Scotland Regulations 2000, in relation to the Kype Muir Wind Farm Extension. While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested because an exception under regulation 10(4)(a) (information not held) of the EIRs applies to that information. Under the terms of that exception, the Scottish Government is not required to provide information which it does not have.

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 environmental information requested by the Scottish Ministers for these wind farms, clearly we cannot provide information which we do not hold.

Point 7

“Your website shows two other applications at Kype Muir, for Auxiliary Supply (509) and Extension variation (541). Could you please confirm or otherwise that there have been no other changes, adjustments or amendments to the current consents. If so could you provide details of these”.

The application referenced 509 is not a change, adjustment or amendment to a current section 36 consent for Kype Muir or Kype Muir Extension wind farms. I can confirm the application called Kype Muir Extension Variation, reference 541, is the only current application to amend (vary) an existing section 36 consent for the aforementioned wind farms and relates solely to the existing section 36 consent for Kype Muir wind farm extension.

Annex B

Point 1

“Could you confirm or otherwise that the documents and information now online for KMExt are all of the documents that were previously online on your website. Could you confirm that this consists of all documents that were submitted to you by all parties, including third parties such as consultees and public representations.”

We do not consider that this point constitutes a valid request for information. Instead, it invites the recipient of your letter to express a view about whether or not information published on a Scottish Government website is the same as information published at an earlier point in time. In our view, this is not environmental information within the meaning of regulation 2(1) of the EIRs. Accordingly, we are not obliged to respond to it under the EIRs.

However, we can confirm that the 42 documents which were re-published on our website are the same 42 documents that were previously available to view for part of the time that the application was under consideration by Scottish Ministers (application received October 2014 – CMS developed and implemented first half of 2015).  In response to the second part of your query, we would advise that the published documents do not include the Planning Statement, the Design Evolution, Drawings and Appendices for Volume 1 of the Environmental Statement, Volume 2 of the Environmental Statement or confidential annexes. They include consultation responses to the application but do not include the 256 representations received from members of the public in response to the adverts placed by the applicant.

Point 3

“You mention that the document, KMExt ‘pre-application consultation report’, together with other documents on the KMWF application can be found on the South Lanarkshire Council planning portal. Please can you certify that these documents relating to these two consents are identical to the documents which you hold/ held and on which the Scottish Ministers based their decision. In legal terms, can I rely on these documents you have directed me to on the SLC planning portal as originals.”

We do not consider that this point constitutes a valid request for information. Instead, it invites the recipient of your letter to express a view about whether or not information published on the website of South Lanarkshire Council is the same as information provided at an earlier point in time to the Scottish Ministers. It also seeks legal advice as to the status of the documents. In our view, this is not environmental information within the meaning of regulation 2(1) of the EIRs. Accordingly, we are not obliged to respond to it under the EIRs.

Point 4

“I appreciate that it isn’t possible to transfer the information which predates your CMS to online. You mention that you have managed to locate a CD which contains some of the Environmental Statement for KMWF. Could you please confirm or otherwise that you hold all of the documents and information on the KMWF application on which the Scottish Ministers based their decision, at least in paper form”.

We do not consider that this point constitutes a valid request for information. Instead, it invites the recipient of your letter to express a view about whether or not information published on a Scottish Government website is the same as information published at an earlier point in time. In our view, this is not environmental information within the meaning of regulation 2(1) of the EIRs. Accordingly, we are not obliged to respond to it under the EIRs.

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