Underground grid connection, Kenly Wind Farm planning appeal: FOI release

FOI reference: FOI/17/01763
Date received: 31 July 2017
Date responded: 28 August 2017

Information requested

PPA-250-2278 Plannning permission appeal: Underground grid connection midpoint, Lathokar, St Andrews, Fife (Kenly Wind Farm). Copies of all correspondence which is not available on the web (letters and emails), notes of meetings, notes of telephone calls, any additional information which has not been published and which refers to this appeal and which is not at the moment publicly available.

Response

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 enclose a folder containing a copy of most of the information you requested. Whilst 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)(e) (internal communications) of the EIRs applies to thatinformation. The reasons why that exception applies are explained below.

Due to the file size of the documents released, copies can be provided on request by emailing ceu@gov.scot, quoting the FOI reference number FOI/17/01835.

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.

Reasons for not providing information

Regulation 10 (4)(e ) - Internal Communications

We recognize the significant public interest in transparency and accountability in the decision making process in appeals. There is a public interest in understanding how a particular decision was arrive at. There is a particularly strong public interest in ensuring that the planning process is open to public scrutiny. That is already firmly provided for in the appeals process. In addition to such transparency and accountability, the appeals system run by us (in a statutory appeals context) requires to be and is procedurally fair. We conduct a quasi-judicial decision making process requiring procedural fairness to all affected so that all relevant material matters before the decision maker are seen and can be commented on by all relevant parties. The processes in play include ensuring that any material considerations put to the reporter by one party is seen for comment by all and that any material that the reporter her or himself intends to be taken into account is seen for comment by parties.

However, in relation to materials created in the development of planning appeal decisions (or concerning procedural steps before deciding an appeal) involve a public interest in protecting them from such strict disclosure provisions where they are drafts or exchanges relating to developing consideration of representations made or internal exchanges within DPEA designed to better or fully inform the appointed Reporter in making procedural decisions or preparing appeal decision notice or reports. There is a strong public interest in ensuring that DPEA will be able to discuss sensitive issues, draft recommendations and responses to representations from parties (separate from the formal response to them), in the knowledge that these discussions would not be placed into the public domain. The exempt documents in this case relate to representations by one party claiming that DPEA have no jurisdiction to hear the appeal and calling on the reporter to dismiss the appeal.

Some of these representations to which the documents relate include legal representations which required careful, frank and private consideration as to how they related to the factual circumstances. At the time they were created, they did not represent the concluded view of the Reporter, which once decided was advised to parties in a procedurally fair way. The public interest was met through that latter process. Separately, since the request has been made while the appeal is live and undecided, a question arise about ensuring procedural fairness and compliance with natural justice in the conduct of the appeal if selective and potentially unrepresentative documents (dependent on how one party to the appeal frames the EIR request) require to be produced. Any such documents would inevitably be required to be produced to all parties if disclosed to one. While that is of course possible, the effect would be a) that the appointed decision maker – despite being so – would no longer be able to determine at his/her own hand the fair and appropriate procedure to apply.

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