EIR/202600517042 · FOI/EIR · not held
High hedge appeals: EIR release
Information requested
Please provide the following information held by the Scottish Government and the Directorate for Planning and Environmental Appeals (DPEA):
1. Interpretation of Section 34: In high hedge appeals where an applicant asserts that a hedge adversely affects light to a future/proposed dwelling that neither possesses active planning permission nor is the subject of an extant planning application, what internal policy, briefing notes, or legal interpretations have DPEA Reporters utilised to determine the scope of the statutory phrase "intended to be occupied, as a separate dwelling"?
2. DPEA Case Precedents: Please provide a list, case references, or decision letters for any high hedge appeals (under the 2013 Act) determined by the DPEA where the specific issue of a proposed, unbuilt, or unpermitted dwelling's "intent to be occupied" was a material consideration in deciding the appeal.
3. Evidentiary Thresholds: In the cases identified in Question 2, what specific categories of proof or supporting documentation have Reporters accepted or rejected as sufficient evidence to demonstrate that a proposed dwelling is genuinely likely to be built?
4. Reporters’ Guidance: Does the DPEA Reporters' Handbook, or any supplementary guidance/training material issued to Reporters, contain instructions, advice, or methodologies regarding high hedge appeals involving unbuilt or proposed properties? If so, please provide a copy of the relevant sections.
5. Impact Assessment Methodologies: In high hedge appeals involving a proposed dwelling where no explicit site layout, window orientation, or dimensions exist (due to the absence of planning applications/permissions), what guidance or standard methodology do Reporters use to evaluate or quantify the "unreasonable barrier to light" required to issue or uphold a High Hedge Notice?
Response
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 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 to your request :
Under regulation 6(1)(b) of the EIRs, we do not have to give you information which is already publicly available, this letter however contains the relevant links to access this information for ease.
DPEA Reporters refer specifically to the High Hedges (Scotland) Act 2013 and Guidance Note 13 when dealing with High Hedge Appeals (HHA). Both of these are within the public domain, however for ease I have included the links.
High Hedges (Scotland) Act 2013
Microsoft Word - Reporter Guidance Note 19 - High Hedge Notice appeals
This exception is not subject to the ‘public interest test’, so we are not required to consider if the public interest in providing the information outweighs the public interest in applying the exception.
2. DPEA Case Precedents:
I am able to provide you with a list of all HHA decisions issued (see attachment), however we do not define where the specific issue of a proposed, unbuilt, or unpermitted dwelling's "intent to be occupied" was a material consideration in deciding the appeal. In some instances this information may be referenced in the decision notices if applicable, however we are not able to provide you with an exact list.
For ease, I include the link to the portal for you to access all decisions listed in the attachment: Scottish Government - DPEA - Case List
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.
3. Evidentiary Thresholds:
DPEA does not hold this specific information.
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.
4. Reporters’ Guidance:
Under regulation 6(1)(b) of the EIRs, we do not have to give you information which is already publicly available, this letter however contains the relevant links to access this information for ease.
DPEA Reporters refer specifically to the High Hedges (Scotland) Act 2013 and Guidance Note 13 when dealing with HHA’s. Both of these are within the public domain, however for ease I have included the links.
High Hedges (Scotland) Act 2013
Microsoft Word - Reporter Guidance Note 19 - High Hedge Notice appeals
This exception is not subject to the ‘public interest test’, so we are not required to consider if the public interest in providing the information outweighs the public interest in applying the exception.
5. Impact Assessment Methodologies:
DPEA does not hold this specific information.
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.
About FOI
The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at https://www.gov.scot/foi-responses.
Detected exemption language
Interpretation of Section 34: In high hedge appeals where an applicant asserts that a hedge adversely affects light to a future/proposed dwelling that neither possesses active planning permission nor is the subject of an extant planning application, what internal policy, briefing notes, or legal interpretations have DPEA Reporters utilised to determine the scope of the statutory phrase "intended to be occupied, as a separate dwelling"? 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.