EIR/202500473497 · FOI/EIR · partially withheld
Information related to PPA-250-2419 Appeal Decision: EIR release
Information requested
RE case PPA-250-2419
Thank you for your correspondence. We really cannot fathom how on earth you could conclude that this was a security essential for a facility that for the last 2 years has not had any notable security incidents, has a restricted view of the site and which is much larger than is functionally required. We also cannot understand why a building (for 365 day security purposes) can be permitted to be unoccupied for 6 months before needing to be removed. It appears your office has once again been duped.
To help us understand this and fact check the submissions made please provide me with all information related to the case file. For avoidance of doubt that is a request under the Environmental Information Regulations (Scotland).
Please also advise why we were not given the opportunity to respond to or comment on the applicants specific submissions - a clear breach of natural justice.
Response
Most of the information you have requested which is held by DPEA is available online via the DPEA website at the following link . https://www.dpea.scotland.gov.uk/CaseDetails.aspx?id=126456.
Under regulation 6(1)(b) of the EIRs, we do not have to give you information which is already publicly available and easily accessible to you in another form or format. If, however, 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.
I can confirm that there are 3 documents in addition to the above publicly available material which were not published to our website. These include an email referring to a police incident and 2 x financial justification reports numbered C007a and 7b.
In terms of the police incident email I attach a copy for convenience. Please note that some of the information within this document is subject to redaction. This is because an exception under regulation 11(2) of the EIRs (personal information) applies to some of the information requested because it 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. This exception is not subject to the 'public interest test', so we are not required to consider if the public interest in disclosing the information outweighs the public interest in applying the exception.
In terms of the latter 2 documents mentioned , an exception under regulation 10(5) (e) (confidentiality of commercial or industrial information) of the EIRs applies. This exception applies because disclosure of this information would, or would be likely to, prejudice substantially the confidentiality of commercial information where such confidentiality is provided for by law to protect a legitimate economic interest. This is because the documents outline sensitive business and financial data, including expected profit levels as well as costs. The document is clearly marked as confidential and makes it evident that the appellant had provided the information on that basis. I consider the marking of the document as sensitive implied a level of confidence upon DPEA.
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 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. Given the above, I recognise that there is public interest in planning cases and that disclosure of the documents would partially contribute to the public's understanding of some of the issues in question, in particular any economic arguments that might factor in the balance. I acknowledge that the documents were provided for the purposes of justifying a planning appeal.
However, the documents relate to financial details and commercial information and disclosure may give competitors useful insights and potential leverage which could be translated into commercial gain.
The impact on the appellant is not however my sole consideration, albeit it is relevant. I acknowledge that the public would have concerns about the proposal and the effect this would have on the local area and community. In this respect there are other opportunities within the appeal process, for engagement on all the issues raised in the appeal. While acknowledging that there may also be a real public interest in alternative points of view being advanced from the public in terms of the financial justification report which the public can interrogate, documents submitted in support of the appeal also include flooding and drainage, transportation and road safety, trees, design and biodiversity amongst other matters, all of which are publicly available. I consider that disclosure of the 2 documents would not significantly enhance the public’s understanding of justification for the planning decision. Given the aforementioned, I therefore consider that the public interest test is in upholding the exception and not releasing this information outweighs that in making the information available.
Turning to your query about you having an opportunity to comment on the appellant's specific submissions, to clarify, the Town and Country Planning (Appeals) (Scotland) Regulations 2013 set out the process to be followed.
The opportunities for people other than the appellant and the planning authority to participate will depend on the type of appeal and the procedures being followed. Anyone who has already written to the planning authority on an application, known as interested parties, will have their comments passed onto the reporter (by the planning authority ) to be considered. Interested parties are informed if and when an appeal is made, and have the chance to give further comments to the reporter. They might also be invited to participate in any further appeal procedures. In this case the reporter considered the case via the information submitted by parties and an unaccompanied inspection of the site. She did not consider any further procedures were required. As you will know your representation, on behalf of Monimail Community Council was provided to DPEA within the authority's response. You also submitted a representation in this respect directly to DPEA which was accepted and published to our website. I consider that the correct procedures were followed in this case and you had the opportunity to participate in line with the regulations. The reporter carefully considered all the information in the appeal before coming to her conclusions and she explains the extent and scope of her reasoning in reaching her decision within her notice.
As you are likely aware, once a decision has been issued in an appeal that decision is final subject only to review by the Court of Session. In this case the period for challenge remains live until 8 August 2025 and it is open to parties unhappy with the reporter's decision to consider that option. I attach a link to challenging appeal decisions here Challenging planning decisions: guidance - gov.scot.
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
This is because an exception under regulation 11(2) of the EIRs (personal information) applies to some of the information requested because it 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. In terms of the latter 2 documents mentioned , an exception under regulation 10(5) (e) (confidentiality of commercial or industrial information) of the EIRs applies.