Publication - FOI/EIR release

Land to the east of Red Path Brae, Orchard Terrace, Kinghorn: EIR release

Published: 5 January 2024
Directorate: Legal Services (Solicitor to the Scottish Government)
Topic: Public sector
FOI reference: 202300354858
Date received: 2 May 2023
Date responded: 17 May 2023

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

Information requested

The Reporter to provide a detailed explanation as to why she considers that determining appeal PPA- 250-2368 would prejudice or otherwise undermine the Scottish Ministers’ determination of the Mossend appeal.
A detailed explanation as to why the Reporter considers the Mossend appeal must be determined first.
Provide a copy of the Reporter’s most recent draft decision notice in appeal PPA-250-2368.
Provide copies of all correspondence between the Reporter, Chief Reporter and DPEA staff concerning the decision to sist appeal PPA-250-2368, both before and after the Direction in Mossend appeal was given.

If I might firstly explain that, because, the information you have requested is ‘environmental information’ for the purposes of the Environmental Information (Scotland) Regulations 2004 (EIR’s), 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, 39(2), 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.

Response

Whilst our aim is to provide information whenever possible, some exceptions do apply to the information you have requested and will be identified below.

1. The Mossend case was selected for recall due to an opinion of senior counsel submitted in that case, which directly challenges the application of all elements of Policy 16 prior to adoption of ‘new style’ LDPs. As such, it was decided to ensure we do not prejudice or otherwise undermine the ministerial decision by issuing related appeal decisions in advance of that. The decision also reflects the need to protect scarce public resource, which could quickly be consumed by further appeals to the Inner House.

2. A direction given to Reporters pending the issue of the Ministerial decision in the Mossend appeal. This is because decisions by individual Reporters in those other cases mustn’t prejudice or otherwise undermine the pending ministerial decision as detailed in the response above. Procedural decisions of the reporter to the Mossend appeal will have no bearing on the conduct of your clients appeal. There is no intention for the reporter appointed to the Mossend appeal to request further submissions from any party.

3. We are not in a position to release a copy of the most recent draft decision notice in appeal PPA- 250-2368. Regulation 10(4)(d) of the EIRs provides an exception from the duty to make environmental information available, where the request relates to material which is still in the course of completion, to unfinished documents or to incomplete data. The reporters decision notice is clearly unfinished as further submissions will be requested from parties following Ministers decision on the Mossend appeal. In accordance with Regulation 13(d), I can confirm that we anticipate, at this stage, to issue the decision notice on 31 August.

Having applied this exception to this information I am required to apply the public interest test to see whether, in all the circumstances of this case, the public interest test in maintaining this exception outweighs that in making the information available. As a starting point I can confirm I am considering the public interest test to be something that is of serious concern and benefit to the public and not merely something of individual interest. In applying the public interest test I note that the starting point is that this information should be disclosed and only if there is a strong competing public interest in withholding the information should exceptions be applied. I also note that "public" in this context does not mean the entire population and it may mean a relatively localized public group.

Given the above, I recognise that there is public interest in planning appeals and specifically appeals relating to housing developments; in understanding whether a reporter is likely or otherwise to grant planning permission; and the assistance it would provide to parties taking part in similar other appeals. I also recognise that there is strong public interest in ensuring that the planning process is open, fair and transparent with regard to public scrutiny of both the decision making process and decisions themselves. As such I can see that there would be some public interest in releasing this information.

At the same time I recognise that reporters require time and space to consider an appeal; to ensure that they have all the information necessary to fully consider an appeal and issue a decision; to ensure they understand the determining issues and to fully set out their conclusions and make their final decision as to whether or not to grant planning permission. All of the above may be subject to change as the reporter considers an appeal.

Having considered the above I have concluded as follows. It is clear that there is a public interest in relation to this information; there would be some benefit in release of this information to the public; release would help the public understand the position of the reporter's conclusions at this point in time; and that it would help demonstrate the perception of a planning system that is open, transparent and fair. However I have also concluded that it is essential that reporters have the time and space to fully consider proposals in front of them; that it would be confusing and not in the public interest for draft decisions, subject to possible change, on planning proposals to be in the public domain; and that the planning system itself would suffer from release of this information by releasing a decision in draft form prior that be subject to change both in content and in the decision itself.

I therefore consider that the public interest test is in upholding the exception and not releasing this information. The public interest, in my view, is not served if for my reasons set out above.

4. Please find attached 7 attachments, which relate to correspondence between the Reporter, Chief Reporter and DPEA staff concerning the decision to sist appeal PPA-250-2368 before and after the Direction in Mossend appeal was given.

Please note that some of the information within the documents provided such as names/signatures/email addresses have been redacted in line with our privacy policy and in accordance with regulation 11(2) of the EIRs (personal information), because that information is personal data of a third party and disclosing it would contravene the data protection principles in Article 5(1) of the General Data Protection Regulation and in section 34(1) of the Data Protection Act 2018.

There is one exception to this in attachment 5, where the information refers to other cases that are not PPA-250-2368. This information is therefore outwith the scope of your request.

About FOI

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.