Gwaith amgylcheddol yn Trevor Rocks, Llangollen

30 May 2022

Dear

ATISN 16287 Information Request Regarding Reports of Breaches of EIA (Agriculture) Regulations at Trevor Rocks, Llangollen

Thank you for your request which I received on 29 April 2022. You asked for:

1. Any advice sought from the Welsh Government on whether the project to remove the existing vegetation, cultivate and re-seed the land at this site should be submitted for a screening decision.
    
2. Whether a request for a screening decision was made and whether an Environmental Statement was prepared and was consent granted for these operations.
    
3. Details of any investigation undertaken.
    
4. The evidence collected in the investigation and which other organisations were consulted and what conclusions reached.
    
5. The reasons for basing a decision should the works undertaken fall within the scope of the EIA Regulations and that an Environmental Impact Assessment was not required.

6. As part of this investigation, if the conclusion was reached that the operations on the site did not comply with the EIA regulations and that an Environmental Statement should have been submitted, the basis and evidence for this decision.

7. A copy of the completed inspection proforma which contains details of the level of significance.

8. Details of what enforcement actions have been taken in terms of remediation or financial penalties and any notices applied to the land should the EIA Regulations have been broken.

Our response

The information you requested is enclosed. Annex B to this letter addresses the above requests and Annex C contains the details on file directly relating to the information you have requested. Please note that some personal information has been redacted from the information in Annex C. This is personal data of correspondents and is exempt from disclosure under Regulation 13 of the Environmental Information Regulations (EIRs) – Personal Data. My reasons for applying the exemption are explained in Annex A.

Next steps

If you are dissatisfied with the Welsh Government’s handling of your request, you can ask for an internal review within 40 working days of the date of this response.  Requests for an internal review should be addressed to the Welsh Government’s Freedom of Information Officer at:

Information Rights Unit, 
Welsh Government,
Cathays Park, 
Cardiff, 
CF10 3NQ 

or Email: Freedom.ofinformation@gov.wales

Please remember to quote the ATISN reference number above.   

You also have the right to complain to the Information Commissioner.  The Information Commissioner can be contacted at:  Information Commissioner’s Office,

Wycliffe House, 
Water Lane, 
Wilmslow, 
Cheshire, 
SK9 5AF.

The Commissioner will not normally investigate a complaint until it has been through our own internal review process.

Yours sincerely

Annex A – Regulation 13 of the Environmental Information Regulations 2004

I have decided to withhold the following information:

Engagement of Regulation 13

Regulation 13 of the Environmental Information Regulations 2004 (EIRs) provides an absolute exception to disclosure if disclosure of personal data would breach any of the data protection principles.

‘Personal data’ is defined in sections 3(2) and (3) of the Data Protection Act 2018 (‘the DPA 2018’) and means any information relating to an identified or identifiable living individual. An identifiable living individual is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of the individual.

We have concluded that, in this instance, the information requested contains third party personal data.

Under Regulation 13 of the EIRs, personal data is exempt from release if disclosure would breach one of the data protection principles set out in Article 5 of the GDPR.  We consider the principle being most relevant in this instance as being the first. This states that personal data must be:

“processed lawfully, fairly and in a transparent manner in relation to the data subject”

The lawful basis that is most relevant in relation to a request for information under the FOIA is Article 6(1)(f). This states: “processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child”.

In considering the application of Article 6(1)(f) in the context of a request for information under FOIA it is necessary to consider the following three-part test:-

• The Legitimate interest test: Whether a legitimate interest is being pursued in the request for information;

• The Necessity test: Whether disclosure of the information/confirmation or denial that it is held is necessary to meet the legitimate interest in question;

• The Balancing test: Whether the above interests override the interests, fundamental rights and freedoms of the data subject.

Our consideration of these tests is set out below:

1. Legitimate interests

Whilst we recognise that there is a legitimate interest in release of information relating to understanding the matter at hand, we cannot identify any legitimate interest in the disclosure of the personal data of officials and correspondents whose role was simply administrative in nature, for example, forwarding or receiving emails.

2. Is disclosure necessary?

We do not believe it is necessary to release the personal data of administrative staff to understand the context of the information, nor its content. The identity of the correspondents is not material to the matter, nor does it add to an understanding of it. The function could have been carried out by a number of officials, which is to say that the function would be the same irrespective of who carried it out.

3. The balance between legitimate interests and the data subject’s interests or fundamental rights and freedoms

As we do not believe there is a legitimate interest in disclosing the personal data of administrative officials, not do we believe that disclosure is necessary to aid an understanding of the information being released, we are of the view that disclosure of the personal data would breach the fundamental rights of individuals as provided by the GDPR/DPA and would constitute unfair processing.  Consequently, we believe this personal data is exempted from disclosure by virtue of Regulation 13 of the EIRs.

Annex B

In terms of the case you have requested information about, I can confirm the following:

• Any advice sought from the Welsh Government on whether the project to remove the existing vegetation, cultivate and re-seed the land at this site should be submitted for a screening decision.

Welsh Government was not asked for advice before any improvement works were carried out. I can confirm no application for screening had been received.

• Whether a request for a screening decision was made and whether an Environmental Statement was prepared and was consent granted for these operations.

No application for screening was received by Welsh Government for the work undertaken. Therefore no Environmental Statement was prepared.

• Details of any investigation undertaken.

Details of the investigation have been provided in the document pack attached. This includes site visit reports and consultation with other stakeholders with interest in this land. The investigation officers undertake a full inspection using a number of data sources, which includes a full botanical survey.

• The evidence collected in the investigation and which other organisations were consulted and what conclusions reached.

This is detailed within the document pack. As a matter of course when investigating cases, statutory consultees are contacted for input into the overall decision. In this instance the following organisations were asked for comment:

• Natural Resources Wales,
• Clwyd-Powys Archaeological Trust, and
• Denbigh Borough Council.

• The reasons for basing a decision should the works undertaken fall within the scope of the EIA Regulations and that an Environmental Impact Assessment was not required
  
  After a full and thorough investigation, it was determined breaches to the Environmental Impact Assessment (Agriculture) (Wales) Regulations 2017 had occurred. A referral was made to Rural Inspectorate for Wales to investigate Cross Compliance breaches.

• As part of this investigation, if the conclusion was reached that the operations on the site did not comply with the EIA regulations and that an Environmental Statement should have been submitted, the basis and evidence for this decision.
  
  Details of all site visits are provided within the document pack. In order for an Environmental Statement to be requested, the landowner must apply for a Screening Decision before any work is undertaken. Following Screening, the process allows for a scoping meeting with all interested parties to scope the project and determine the likelihood of damage by the project being carried out and proposed mitigations to prevent environmental damage. If officials remain dissatisfied by the outcomes of the Scoping stage, an Environmental Statement is then requested. In this case, as no application for screening was made, no request for an Environmental Statement was requested.
   
• A copy of the completed inspection proforma which contains details of the level of significance.
  
  This is provided within the document release.
   
• Details of what enforcement actions have been taken in terms of remediation or financial penalties and any notices applied to the land should the EIA Regulations have been broken.

A redacted copy of the enforcement undertakings has been provided within the document release.