Information about unauthorised construction at Hendy Wind Farm, Llandegley, Powys

The request was successful.

Dear Powys County Council,
EIR: ENVIRONMENTAL INFORMATION REQUEST
Hendy Wind Farm :
P/2014/0672 (APP/T6850/A/17/3176128): Land Off A44 SW Of Llandegley Llandrindod Wells Powys

Brecon and Radnor Branch of CPRW would be grateful for the following information concerning this EIA application.

Issue 1
Under the cover of Covid19 measures the developer recommenced unauthorised works both on and off site. We need to understand how much communication there has been between PCC and Hendy Wind Farm and whether PCC has any accurate plans of proposed development with coordinates of wind turbines.

We request all written communication and information (emails, records of meetings, hardcopy letters, plans etc) since January 1st 2020, internally between Powys Council Officers and between Powys Council Officers and the Hendy Wind Farm Developer or any other parties about the construction of “Phase 2” of the wind farm.

Issue 2
As far as we are aware there has been no application to the Planning Inspectorate for common permissions in order to comply with Condition 49. The access track from the A44 is across common land. Third parties have pointed out there is also land subject to the Commons Act 2006 on the wind farm site.

We request all written communication (emails, records of meetings, hardcopy letters, plans etc) since January 1st 2020, between Powys Council Officers and the Hendy Wind Farm Developer, internally between Powys Council Officers and between Powys Council Officers and any other parties, concerning the need for commons consent prior to development of Hendy Wind Farm.

We would be grateful for a full response to this request within the prescribed time limit.

Yours faithfully,
Christine
Dr Christine Hugh-Jones
Secretary: Brecon and Radnor Campaign for the Protection of Rural Wales.

Information Compliance, Powys County Council

Vanessa Young, Corporate Director Rheoli Gwybodaeth/
(Resources and Transformation) /
Cyfarwyddwr Corfforaethol (Adnoddau Information Compliance
a Thrawsnewid)
Neuadd Y Sir / County Hall

Spa Road East

Llandrindod Wells

Powys LD1 5LG
  If calling please ask for / Os yn galw
gofynnwch am
 
Information Compliance
 
Tel / Ffôn: 01597 82 7543
 
Email/Llythyru electronig:
  [1][email address]

Our ref / Ein cyf: 2020-0575E

Date / Dyddiad: 28/07/20

 

 

Dear Ms Bond

 

Please be advised that as of 18^th March, the Council’s has invoked it’s
Business Continuity Plans in response to Covid-19, which will see all
non-critical activity of the Council being stepped down to allow capacity
to focus on business critical activities and for the redeployment and
training of staff (including Information Compliance staff) to fulfil
business critical roles.   It has therefore been determined that requests
made under Freedom of Information Act 2000, the Environmental Information
Regulations 2004 and General Data Protection Regulations will be
acknowledged but not dealt with until business resumes as normal.  We will
contact you when the Authority is in a position to recommence its
information regime responsibilities.  If in the interim you wish to
withdraw your request and resubmit at a later date then please let us
know.

 

The Information Commissioners Office as the Regulator acknowledges that
public bodies maybe diverting staffing to deliver essential services, and
as such is advising the public that they are likely to experience delays
over their information requests, during these times. For more information
on the ICO’s advice  then please visit, their web pages
 [2]https://ico.org.uk/about-the-ico/news-an...
and [3]https://ico.org.uk/your-data-matters/you...

 

We apologise for the inconvenience that this decision may cause to some
individuals, however, at a time of national crisis I am sure you will
understand that certain critical work needs to be prioritised, continued
and underpinned.

 

Yours sincerely,

 

Information Compliance Team

 

 

We keep your details safe and we have updated our privacy notice in line
with the requirements set out in General Data Protection Regulations. We
will only ever use the details you share with us to enable us to undertake
our statutory obligations. You can find out more by looking on our web
site. [4]https://en.powys.gov.uk/privacy

 

 

 

show quoted sections

References

Visible links
1. mailto:[email address]
2. https://ico.org.uk/about-the-ico/news-an...
3. https://ico.org.uk/your-data-matters/you...
4. https://en.powys.gov.uk/privacy

Information Compliance, Powys County Council

Dear Ms Bond,

Having now received a number of responses from relevant service areas The information Compliance Team are in a position to advise that the volume of correspondence that we must consider for release is sizeable.
Section 7(1) of the Environmental Information Regulations allows for the extension of the timescales at Section 5(2), Section 6(2)(a) and Section 14(2) of The Regulations where the complexity or volume of information would be impractical to consider within 20 working days. As such, this email is notification that we are extending the deadline to 40 working days which will require us to respond by the 23/09/2020.

Many Thanks
Carl Bryden
Information Compliance Officer.

show quoted sections

Dear Information Compliance,

Thank you for your response, however BRB CPRW do not find it acceptable to extend the time for another 20 days. You state you have the information. It is hard to believe there is so much information that it will take 20 days to collate and redact the documents. Your request to extend the time leads us to conclude that there has been considerable communication between the developer and PCC prior to commencement of further unauthorised works.

Our request for information is a matter of great public interest. It is essential that PCC do not drag their feet over releasing important information about a highly controversial unauthorised development.

Yours sincerely,

Christine Hugh Jones

Information Compliance, Powys County Council

Dear Ms Bond,

Thank you for your email. The extension to the timeframe is set out at Section 7(1) of the regulations and does not require permission from the requestor. Our email served notification of the extension.

We would caution against your conclusion. Whilst we have nearly 1000 pages of documentation to consider, a vast majority of those pages may constitute internal communications, extended email trails, duplicated items, personal information, or other documentation that do not meet the criteria of the request and it is this consideration that will require the additional 20 working days.

We would also note that whilst the 20 working days may seem excessive, that we also receive around 1500 requests for information each year and these requests must also be addressed alongside your own.

We note your assertion that there is public interest in the development. The ICO is quite clear that information requests must be dealt with as 'applicant blind'. The public interest in a topic bears weight when considering exceptions to release but should not be used to give priority to requests over others.

Whilst we appreciate that you may feel that Powys County Council are 'dragging their feet' we would remind you that the Information Compliance Team within Powys County Council are a small team, who have had members redeployed to assist with Covid 19 essential work and that the Council itself is still operating under Business Continuity Planning arrangements. Having said this, we are still progressing requests where we, and the service areas, have capacity to do so and hope to respond within the 40 working days.

Many Thanks
Carl Bryden
Information Compliance Officer.

show quoted sections

Dear Information Compliance,

Thank you for responding so quickly.

BRB CPRW do understand that PCC are still having to deal with fallout from these unprecedented times but we have previously had to take the council to the Information Commissioner over length of time to produce information. We do not wish to have to do that again.

As we have only asked for information since Jan 2020 we are puzzled that there should be so much information for you to deal with. We do hope that the relevant departments have not given you information we have already received via a previous information request or that is already on the planning website.

Yours sincerely,

Christine Hugh Jones.

Information Compliance, Powys County Council

Dear Ms Bond,

Please accept my further apologies, I am aware that today is the deadline for release and I will not be in a position to make the release. I am working through the material provided by the service area and have made significant headway with it, I do not anticipate being more than a few days overdue, I would certainly hope to have the work completed by next week at the latest.

Many apologies
Carl Bryden
Information Compliance Officer.

show quoted sections

Information Compliance, Powys County Council

2 Attachments

Nigel Brinn, Corporate Director Rheoli Gwybodaeth/
(Economy and Environment) /
Cyfarwyddwr Corfforaethol (Yr Information Compliance
Economi a’r Amgylchedd)/
Neuadd Y Sir / County Hall

Spa Road East

Llandrindod Wells

Powys LD1 5LG
If calling please ask for / Os yn galw
gofynnwch am

Tel / Ffôn: 01597 82 7543

Email/Llythyru electronig:
[1][email address]

Our ref / Ein cyf: 2020-0575

Date / Dyddiad: 20/11/2020

Dear Ms Bond

 

Thank you for your request for information dated 27/07/2020 concerning
Hendy Wind Farm – Communications

This is to inform you that your request has been considered and I can
provide the following response which will be split over 3 emails due to
the size of the attachments This email being PART 3 of 3

 

Request

 

Hendy Wind Farm : P/2014/0672 (APP/T6850/A/17/3176128): Land Off A44 SW Of
Llandegley Llandrindod Wells Powys

 

Issue 1

Under the cover of Covid19 measures the developer recommenced unauthorised
works both on and off site. We need to understand how much communication
there has been between PCC and Hendy Wind Farm and whether PCC has any
accurate plans of proposed development with coordinates of wind turbines.

 

We request all written communication and information (emails, records of
meetings, hardcopy letters, plans etc) since January 1st 2020, internally
between Powys Council Officers and between Powys Council Officers and the
Hendy Wind Farm Developer or any other parties about the construction of
“Phase 2” of the wind farm.

 

Issue 2

As far as we are aware there has been no application to the Planning
Inspectorate for common permissions in order to comply with Condition 49.
The  access track from the A44 is across common land. Third parties have
pointed out there is also land subject to the Commons Act 2006 on the wind
farm site.

 

We request all written communication (emails, records of meetings,
hardcopy letters, plans etc) since January 1st 2020,  between Powys
Council Officers and the Hendy Wind Farm Developer, internally between
Powys Council Officers and between Powys Council Officers and any other
parties, concerning the need for commons consent prior to development of
Hendy Wind Farm.

Response:

Please find linked correspondence that covers your criteria.

 

Regulation 14 of the Environmental Information Regulations requires Powys
County Council,

(1) If a request for environmental information is refused by a public
authority under regulations 12(1) or 13(1), the refusal shall be made in
writing and comply with the following provisions of this regulation.

(2) The refusal shall be made as soon as possible and no later than 20
working days after the date of receipt of the request.

(3) The refusal shall specify the reasons not to disclose the information
requested, including—

 

Where redaction has occurred this is because:

In this instance the exception relied upon is  Section 13

13.—(1) To the extent that the information requested includes personal
data of which the applicant is not the data subject and as respects which
either the first or second condition below is satisfied, a public
authority shall not disclose the personal data.

(2) The first condition is—

(a) in a case where the information falls within any of paragraphs (a) to
(d) of the definition of “data” in section 1(1) of the Data Protection Act
1998, that the disclosure of the information to a member of the public
otherwise than under these Regulations would contravene—

(i) any of the data protection principles; or

(ii) section 10 of that Act (right to prevent processing likely to cause
damage or distress) and in all the circumstances of the case, the public
interest in not disclosing the information outweighs the public interest
in disclosing it; and

(b) in any other case, that the disclosure of the information to a member
of the public otherwise than under these Regulations would contravene any
of the data protection principles if the exemptions in section 33A(1) of
the Data Protection Act 1998([2]1) (which relate to manual data held by
public authorities) were disregarded.

 

We have considered whether the information constitutes the personal data
of third parties, and have considered whether disclosure would breach the
data protection principles.  Principle (a) under Article 5 of GDPR is
applicable in this instance.   When considering whether disclosure of
information is a breach of principle (a), we have considered whether
disclosure is lawful and then whether it is fair. The lawful relevant
basis is that of legitimate interests under Article 6.1(f)). The Data
Protection Act 2018 amends FOIA and the EIR so that the legitimate
interests lawful basis is applicable to public authorities when they are
considering disclosure.

 

The exception applies to third party personal data. This would not be
released under the Environmental Information Regulations unless there is
strong public interest to do so. This is because any release would breach
the Data Protection Principles as contained within the General Data
Protection Regulations (see above).  Information released under the
Environmental Information Regulations is considered to be released into
the public domain, without caveat, not just to the individual requesting
the information. We believe that information relating to identifiable
individuals constitutes their personal data and if released would
contravene the data protection principle under Article 5.

The first principle of the General Data Protection Regulations (Article 5)
 states in part that: “Personal data shall be processed “lawfully, fairly
and in a transparent manner in relation to data subjects” and, in
particular, shall not be processed unless at least one of the conditions
in Article 6 is met, and in the case of sensitive personal data, at least
one of the conditions in Article 9 is also met”.  We have to assess
whether the information relates to living individuals, whether an
individual can be identified from the information requested.

 

We are obliged to comply with the first principle where we are required to
‘handle people’s personal data only in ways they would reasonable expect’.
It is reasonable in these circumstances that the identity of the
individuals and the information relating to them would not be disclosed in
response to an Environmental Information Regulation request.

Therefore, based on the considerations above the exception afforded under
Section 13 of the Environmental Information Regulations is engaged and
this letter acts as a Refusal Notice for this element of your request.

 

In this instance the exception relied upon is Section 12(4)(d)

 

12.—(1) Subject to paragraphs (2), (3) and (9), a public authority may
refuse to disclose environmental information requested if—

 (4) For the purposes of paragraph (1)(a), a public authority may refuse
to disclose information to the extent that—

(d) the request relates to material which is still in the course of
completion, to unfinished documents or to incomplete data

 

Information which is being gathered in the process of an authority
formulating its policies and plans or deciding how to proceed in relation
to a particular matter, can be said to form part of an overall, larger,
“end product” and it is this material that is in the course of completion.
We acknowledge that there is public interest in documents related to
construction projects such as wind turbines and that there is transparency
in the conditions applied to those construction projects. We consider that
there is need to develop those documents in a ‘safe space and a drafting
space’ and that to release incomplete or draft versions of those documents
would be prejudicial to the planning work being undertaken and to future
planning work. However, at this point it is important to state that the
completed documents are available for viewing on the public web site and
the links are provided below. The prejudice comes from a general public
viewing draft documents and applying the outcomes and particulars detailed
there to the finished document and/or to future projects where it would be
inappropriate to do so. It would also be prejudicial to the exploration of
ideas that are later discarded if each of those draft ideas had to then be
subject to public scrutiny and justification (Where an idea was rightly
discarded as part of the standard process and did not make the final
draft). The public interest, on balance, is better served by allowing
officers to complete their work and to provide a considered and accurate
final document that is correct and proper. As such the exception at
12(4)(d) is engaged.

 

The complete documentation that we hold as part of our communications is
available from the Powys County Council website in a more complete form at
the following URL:

[3]https://pa.powys.gov.uk/online-applicati...

[4]https://pa.powys.gov.uk/online-applicati...

 

Specifically the ‘Ecological Monitoring Plan’ and the ‘Construction
Environment Management Plan’

 

 

In this instance the exception relied upon is Section 12(5)(b)

 

12.—(1) Subject to paragraphs (2), (3) and (9), a public authority may
refuse to disclose environmental information requested if—

(5) For the purposes of paragraph (1)(a), a public authority may refuse to
disclose information to the extent that its disclosure would adversely
affect—

(b) the course of justice, the ability of a person to receive a fair trial
or the ability of a public authority to conduct an inquiry of a criminal
or disciplinary nature;

A public authority can refuse to disclose information to the extent that
disclosure would adversely affect “the course of justice, the ability of a
person to receive a fair trial or the ability of a public authority to
conduct an inquiry of a criminal or disciplinary nature”. The Commissioner
accepts that the exception is designed to encompass information that would
be covered by Legal Professional Privilege (‘LPP’).  We are relying, in
this instance, on legal advice privilege. Legal advice privilege is
attached to confidential communications between a client and its legal
advisers, and any part of a document which evidences the substance of such
a communication, where there is no pending or contemplated litigation. In
order to attract LPP, the information must be communicated in a
professional capacity; Furthermore, the communication in question also
needs to have been made for the principal or dominant purpose of seeking
or giving advice.

 

The withheld information in this case comprises of the opinion of legal
team on matters relating to the construction at Hendy Wind Farm.  We
consider that disclosure of the withheld information would be likely to
prejudice our ability to obtain advice on our legal rights and
obligations. The legal advice provided by the legal team in this case
refers to an opinion based on a particular set of circumstances and the
advice could be used in the future. In light of this, the Council is
satisfied that it is more than likely that disclosure of the legal advice
in this case would adversely affect the course of justice.  The disclosure
of the legal advice would undermine the important common law principle of
legal professional privilege. This would in turn undermine a lawyer’s
capacity to give full and frank legal advice and would discourage service
areas from seeking legal advice.

 

Powys County Council acknowledges that disclosure would promote
accountability and transparency in its decision making processes and would
ensure that the Council is seen to be acting appropriately and with
probity.  It would also allow scrutiny of a public authority’s role and
enhanced transparency in its decision making process by allowing the
public to understand and challenge decisions.

 

However, whilst the arguments in favour of disclosure have significant
weight, there are stronger public interest arguments in favour of
maintaining the exception. Powys County Council, and it’s officers, need
to be able to obtain free and frank legal advice. The disclosure of advice
and opinion would undermine the Council’s ability to obtain such advice in
a timely fashion in the future and have the confidence that advice given
is done so freely without the consideration of disclosure. This would lead
to advice that is not informed by all the relevant facts. In turn this
would be likely to result in poorer decisions being made by the public
authority because it would not have the benefit of thorough legal advice.
In previous decision the Information Commissioner has stated that there
must be reasonable certainty relating to confidentiality and the
disclosure of legal advice. If there were a risk that it would be
disclosed in the future the principle of confidentiality might be
undermined and the legal advice less full and frank than it should be.

 

Therefore on balance, we have determined that, in this case, the public
interest in protecting the established convention of legal professional
privilege is not countered by at least equally strong arguments in favour
of disclosure. We therefore concluded that the public interest in
maintaining the exception at Regulation 12(5)(b) outweighs the public
interest in disclosure of the information. As such the exception at
12(5)(b) is engaged.

 

We regret the delay you have experienced with this request. We acknowledge
that Powys County Council has failed in its obligation under the Freedom
of Information Act 2000, to provide you with a response to your request
within the statutory timescale of 20 working days. Please accept our
apologies for this and for any inconvenience this may have caused.

 

We believe that this request is now complete and shall be closed
immediately. Should any further information be requested regarding this
topic, a separate request will need to be submitted.

We would like to take this opportunity to thank you for your interest in
Powys County Council.

 

Yours sincerely,

Information Compliance Team

 

The supply of documents under Freedom of Information does not give the
person or organisation who receives them an automatic right to re-use the
documents in a way that would infringe copyright.

You are free to use any information supplied for your own use, including
for non-commercial research purposes. The information may also be used for
the purposes of news reporting. However, any other type of re-use, for
example, by publishing the information or issuing copies to the public
will require the permission of the copyright owner. The copyright of most
of the information that we provide in response to Freedom of Information
Act requests will be owned by Powys County Council. The copyright in other
information may be owned by another person or organisation, as indicated
in the information itself. For HMSO Guidance Notes on a range of copyright
issues, see the Office of Public Sector Information(OPSI) website:
[5]http://www.opsi.gov.uk/advice/crown-copy...

 

If you are dissatisfied with the service you have received in relation to
your request and wish to make a complaint, please contact Information
Compliance. Our complaints procedure is available on request or on our
website.

If you are still not satisfied following this, you can make an appeal to
the Information Commissioner, who is the statutory regulator. The
Information Commissioner can be contacted at:

Information Commissioner's Office

2nd floor

Churchill House

Churchill way

Cardiff

CF10 2HH

Tel: 0330 414 6421

Email: [6][email address]

[7]www.ico.org.uk

[8]Footer_banner[1]

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References

Visible links
1. mailto:[email address]
2. Go to footnote 1
https://www.legislation.gov.uk/uksi/2004...
3. https://pa.powys.gov.uk/online-applicati...
4. https://pa.powys.gov.uk/online-applicati...
5. http://www.opsi.gov.uk/advice/crown-copy...
6. mailto:[email address]
7. http://www.ico.org.uk/

Information Compliance, Powys County Council

2 Attachments

 

Nigel Brinn, Corporate Director Rheoli Gwybodaeth/
(Economy and Environment) /
Cyfarwyddwr Corfforaethol (Yr Information Compliance
Economi a’r Amgylchedd)/
Neuadd Y Sir / County Hall

Spa Road East

Llandrindod Wells

Powys LD1 5LG
If calling please ask for / Os yn galw
gofynnwch am

Tel / Ffôn: 01597 82 7543

Email/Llythyru electronig:
[1][email address]

Our ref / Ein cyf: 2020-0575

Date / Dyddiad: 20/11/2020

Dear Ms Bond

 

Thank you for your request for information dated 27/07/2020 concerning
Hendy Wind Farm – Communications

This is to inform you that your request has been considered and I can
provide the following response which will be split over 3 emails due to
the size of the attachments This email being PART 2 of 3

 

Request

 

Hendy Wind Farm : P/2014/0672 (APP/T6850/A/17/3176128): Land Off A44 SW Of
Llandegley Llandrindod Wells Powys

 

Issue 1

Under the cover of Covid19 measures the developer recommenced unauthorised
works both on and off site. We need to understand how much communication
there has been between PCC and Hendy Wind Farm and whether PCC has any
accurate plans of proposed development with coordinates of wind turbines.

 

We request all written communication and information (emails, records of
meetings, hardcopy letters, plans etc) since January 1st 2020, internally
between Powys Council Officers and between Powys Council Officers and the
Hendy Wind Farm Developer or any other parties about the construction of
“Phase 2” of the wind farm.

 

Issue 2

As far as we are aware there has been no application to the Planning
Inspectorate for common permissions in order to comply with Condition 49.
The  access track from the A44 is across common land. Third parties have
pointed out there is also land subject to the Commons Act 2006 on the wind
farm site.

 

We request all written communication (emails, records of meetings,
hardcopy letters, plans etc) since January 1st 2020,  between Powys
Council Officers and the Hendy Wind Farm Developer, internally between
Powys Council Officers and between Powys Council Officers and any other
parties, concerning the need for commons consent prior to development of
Hendy Wind Farm.

Response:

Please find linked correspondence that covers your criteria.

 

Regulation 14 of the Environmental Information Regulations requires Powys
County Council,

(1) If a request for environmental information is refused by a public
authority under regulations 12(1) or 13(1), the refusal shall be made in
writing and comply with the following provisions of this regulation.

(2) The refusal shall be made as soon as possible and no later than 20
working days after the date of receipt of the request.

(3) The refusal shall specify the reasons not to disclose the information
requested, including—

 

Where redaction has occurred this is because:

In this instance the exception relied upon is  Section 13

13.—(1) To the extent that the information requested includes personal
data of which the applicant is not the data subject and as respects which
either the first or second condition below is satisfied, a public
authority shall not disclose the personal data.

(2) The first condition is—

(a) in a case where the information falls within any of paragraphs (a) to
(d) of the definition of “data” in section 1(1) of the Data Protection Act
1998, that the disclosure of the information to a member of the public
otherwise than under these Regulations would contravene—

(i) any of the data protection principles; or

(ii) section 10 of that Act (right to prevent processing likely to cause
damage or distress) and in all the circumstances of the case, the public
interest in not disclosing the information outweighs the public interest
in disclosing it; and

(b) in any other case, that the disclosure of the information to a member
of the public otherwise than under these Regulations would contravene any
of the data protection principles if the exemptions in section 33A(1) of
the Data Protection Act 1998([2]1) (which relate to manual data held by
public authorities) were disregarded.

 

We have considered whether the information constitutes the personal data
of third parties, and have considered whether disclosure would breach the
data protection principles.  Principle (a) under Article 5 of GDPR is
applicable in this instance.   When considering whether disclosure of
information is a breach of principle (a), we have considered whether
disclosure is lawful and then whether it is fair. The lawful relevant
basis is that of legitimate interests under Article 6.1(f)). The Data
Protection Act 2018 amends FOIA and the EIR so that the legitimate
interests lawful basis is applicable to public authorities when they are
considering disclosure.

 

The exception applies to third party personal data. This would not be
released under the Environmental Information Regulations unless there is
strong public interest to do so. This is because any release would breach
the Data Protection Principles as contained within the General Data
Protection Regulations (see above).  Information released under the
Environmental Information Regulations is considered to be released into
the public domain, without caveat, not just to the individual requesting
the information. We believe that information relating to identifiable
individuals constitutes their personal data and if released would
contravene the data protection principle under Article 5.

The first principle of the General Data Protection Regulations (Article 5)
 states in part that: “Personal data shall be processed “lawfully, fairly
and in a transparent manner in relation to data subjects” and, in
particular, shall not be processed unless at least one of the conditions
in Article 6 is met, and in the case of sensitive personal data, at least
one of the conditions in Article 9 is also met”.  We have to assess
whether the information relates to living individuals, whether an
individual can be identified from the information requested.

 

We are obliged to comply with the first principle where we are required to
‘handle people’s personal data only in ways they would reasonable expect’.
It is reasonable in these circumstances that the identity of the
individuals and the information relating to them would not be disclosed in
response to an Environmental Information Regulation request.

Therefore, based on the considerations above the exception afforded under
Section 13 of the Environmental Information Regulations is engaged and
this letter acts as a Refusal Notice for this element of your request.

 

In this instance the exception relied upon is Section 12(4)(d)

 

12.—(1) Subject to paragraphs (2), (3) and (9), a public authority may
refuse to disclose environmental information requested if—

 (4) For the purposes of paragraph (1)(a), a public authority may refuse
to disclose information to the extent that—

(d) the request relates to material which is still in the course of
completion, to unfinished documents or to incomplete data

 

Information which is being gathered in the process of an authority
formulating its policies and plans or deciding how to proceed in relation
to a particular matter, can be said to form part of an overall, larger,
“end product” and it is this material that is in the course of completion.
We acknowledge that there is public interest in documents related to
construction projects such as wind turbines and that there is transparency
in the conditions applied to those construction projects. We consider that
there is need to develop those documents in a ‘safe space and a drafting
space’ and that to release incomplete or draft versions of those documents
would be prejudicial to the planning work being undertaken and to future
planning work. However, at this point it is important to state that the
completed documents are available for viewing on the public web site and
the links are provided below. The prejudice comes from a general public
viewing draft documents and applying the outcomes and particulars detailed
there to the finished document and/or to future projects where it would be
inappropriate to do so. It would also be prejudicial to the exploration of
ideas that are later discarded if each of those draft ideas had to then be
subject to public scrutiny and justification (Where an idea was rightly
discarded as part of the standard process and did not make the final
draft). The public interest, on balance, is better served by allowing
officers to complete their work and to provide a considered and accurate
final document that is correct and proper. As such the exception at
12(4)(d) is engaged.

 

The complete documentation that we hold as part of our communications is
available from the Powys County Council website in a more complete form at
the following URL:

[3]https://pa.powys.gov.uk/online-applicati...

[4]https://pa.powys.gov.uk/online-applicati...

 

Specifically the ‘Ecological Monitoring Plan’ and the ‘Construction
Environment Management Plan’

 

 

In this instance the exception relied upon is Section 12(5)(b)

 

12.—(1) Subject to paragraphs (2), (3) and (9), a public authority may
refuse to disclose environmental information requested if—

(5) For the purposes of paragraph (1)(a), a public authority may refuse to
disclose information to the extent that its disclosure would adversely
affect—

(b) the course of justice, the ability of a person to receive a fair trial
or the ability of a public authority to conduct an inquiry of a criminal
or disciplinary nature;

A public authority can refuse to disclose information to the extent that
disclosure would adversely affect “the course of justice, the ability of a
person to receive a fair trial or the ability of a public authority to
conduct an inquiry of a criminal or disciplinary nature”. The Commissioner
accepts that the exception is designed to encompass information that would
be covered by Legal Professional Privilege (‘LPP’).  We are relying, in
this instance, on legal advice privilege. Legal advice privilege is
attached to confidential communications between a client and its legal
advisers, and any part of a document which evidences the substance of such
a communication, where there is no pending or contemplated litigation. In
order to attract LPP, the information must be communicated in a
professional capacity; Furthermore, the communication in question also
needs to have been made for the principal or dominant purpose of seeking
or giving advice.

 

The withheld information in this case comprises of the opinion of legal
team on matters relating to the construction at Hendy Wind Farm.  We
consider that disclosure of the withheld information would be likely to
prejudice our ability to obtain advice on our legal rights and
obligations. The legal advice provided by the legal team in this case
refers to an opinion based on a particular set of circumstances and the
advice could be used in the future. In light of this, the Council is
satisfied that it is more than likely that disclosure of the legal advice
in this case would adversely affect the course of justice.  The disclosure
of the legal advice would undermine the important common law principle of
legal professional privilege. This would in turn undermine a lawyer’s
capacity to give full and frank legal advice and would discourage service
areas from seeking legal advice.

 

Powys County Council acknowledges that disclosure would promote
accountability and transparency in its decision making processes and would
ensure that the Council is seen to be acting appropriately and with
probity.  It would also allow scrutiny of a public authority’s role and
enhanced transparency in its decision making process by allowing the
public to understand and challenge decisions.

 

However, whilst the arguments in favour of disclosure have significant
weight, there are stronger public interest arguments in favour of
maintaining the exception. Powys County Council, and it’s officers, need
to be able to obtain free and frank legal advice. The disclosure of advice
and opinion would undermine the Council’s ability to obtain such advice in
a timely fashion in the future and have the confidence that advice given
is done so freely without the consideration of disclosure. This would lead
to advice that is not informed by all the relevant facts. In turn this
would be likely to result in poorer decisions being made by the public
authority because it would not have the benefit of thorough legal advice.
In previous decision the Information Commissioner has stated that there
must be reasonable certainty relating to confidentiality and the
disclosure of legal advice. If there were a risk that it would be
disclosed in the future the principle of confidentiality might be
undermined and the legal advice less full and frank than it should be.

 

Therefore on balance, we have determined that, in this case, the public
interest in protecting the established convention of legal professional
privilege is not countered by at least equally strong arguments in favour
of disclosure. We therefore concluded that the public interest in
maintaining the exception at Regulation 12(5)(b) outweighs the public
interest in disclosure of the information. As such the exception at
12(5)(b) is engaged.

 

We regret the delay you have experienced with this request. We acknowledge
that Powys County Council has failed in its obligation under the Freedom
of Information Act 2000, to provide you with a response to your request
within the statutory timescale of 20 working days. Please accept our
apologies for this and for any inconvenience this may have caused.

 

We believe that this request is now complete and shall be closed
immediately. Should any further information be requested regarding this
topic, a separate request will need to be submitted.

We would like to take this opportunity to thank you for your interest in
Powys County Council.

 

Yours sincerely,

Information Compliance Team

 

The supply of documents under Freedom of Information does not give the
person or organisation who receives them an automatic right to re-use the
documents in a way that would infringe copyright.

You are free to use any information supplied for your own use, including
for non-commercial research purposes. The information may also be used for
the purposes of news reporting. However, any other type of re-use, for
example, by publishing the information or issuing copies to the public
will require the permission of the copyright owner. The copyright of most
of the information that we provide in response to Freedom of Information
Act requests will be owned by Powys County Council. The copyright in other
information may be owned by another person or organisation, as indicated
in the information itself. For HMSO Guidance Notes on a range of copyright
issues, see the Office of Public Sector Information(OPSI) website:
[5]http://www.opsi.gov.uk/advice/crown-copy...

 

If you are dissatisfied with the service you have received in relation to
your request and wish to make a complaint, please contact Information
Compliance. Our complaints procedure is available on request or on our
website.

If you are still not satisfied following this, you can make an appeal to
the Information Commissioner, who is the statutory regulator. The
Information Commissioner can be contacted at:

Information Commissioner's Office

2nd floor

Churchill House

Churchill way

Cardiff

CF10 2HH

Tel: 0330 414 6421

Email: [6][email address]

[7]www.ico.org.uk

[8]Footer_banner[1]

show quoted sections

References

Visible links
1. mailto:[email address]
2. Go to footnote 1
https://www.legislation.gov.uk/uksi/2004...
3. https://pa.powys.gov.uk/online-applicati...
4. https://pa.powys.gov.uk/online-applicati...
5. http://www.opsi.gov.uk/advice/crown-copy...
6. mailto:[email address]
7. http://www.ico.org.uk/

Information Compliance, Powys County Council

2 Attachments

 

 

Nigel Brinn, Corporate Director Rheoli Gwybodaeth/
(Economy and Environment) /
Cyfarwyddwr Corfforaethol (Yr Information Compliance
Economi a’r Amgylchedd)/
Neuadd Y Sir / County Hall

Spa Road East

Llandrindod Wells

Powys LD1 5LG
If calling please ask for / Os yn galw
gofynnwch am

Tel / Ffôn: 01597 82 7543

Email/Llythyru electronig:
[1][email address]

Our ref / Ein cyf: 2020-0575

Date / Dyddiad: 20/11/2020

Dear Ms Bond

 

Thank you for your request for information dated 27/07/2020 concerning
Hendy Wind Farm – Communications

This is to inform you that your request has been considered and I can
provide the following response which will be split over 3 emails due to
the size of the attachments This email being PART 1 of 3

 

Request

 

Hendy Wind Farm : P/2014/0672 (APP/T6850/A/17/3176128): Land Off A44 SW Of
Llandegley Llandrindod Wells Powys

 

Issue 1

Under the cover of Covid19 measures the developer recommenced unauthorised
works both on and off site. We need to understand how much communication
there has been between PCC and Hendy Wind Farm and whether PCC has any
accurate plans of proposed development with coordinates of wind turbines.

 

We request all written communication and information (emails, records of
meetings, hardcopy letters, plans etc) since January 1st 2020, internally
between Powys Council Officers and between Powys Council Officers and the
Hendy Wind Farm Developer or any other parties about the construction of
“Phase 2” of the wind farm.

 

Issue 2

As far as we are aware there has been no application to the Planning
Inspectorate for common permissions in order to comply with Condition 49.
The  access track from the A44 is across common land. Third parties have
pointed out there is also land subject to the Commons Act 2006 on the wind
farm site.

 

We request all written communication (emails, records of meetings,
hardcopy letters, plans etc) since January 1st 2020,  between Powys
Council Officers and the Hendy Wind Farm Developer, internally between
Powys Council Officers and between Powys Council Officers and any other
parties, concerning the need for commons consent prior to development of
Hendy Wind Farm.

Response:

Please find linked correspondence that covers your criteria.

 

Regulation 14 of the Environmental Information Regulations requires Powys
County Council,

(1) If a request for environmental information is refused by a public
authority under regulations 12(1) or 13(1), the refusal shall be made in
writing and comply with the following provisions of this regulation.

(2) The refusal shall be made as soon as possible and no later than 20
working days after the date of receipt of the request.

(3) The refusal shall specify the reasons not to disclose the information
requested, including—

 

Where redaction has occurred this is because:

In this instance the exception relied upon is  Section 13

13.—(1) To the extent that the information requested includes personal
data of which the applicant is not the data subject and as respects which
either the first or second condition below is satisfied, a public
authority shall not disclose the personal data.

(2) The first condition is—

(a) in a case where the information falls within any of paragraphs (a) to
(d) of the definition of “data” in section 1(1) of the Data Protection Act
1998, that the disclosure of the information to a member of the public
otherwise than under these Regulations would contravene—

(i) any of the data protection principles; or

(ii) section 10 of that Act (right to prevent processing likely to cause
damage or distress) and in all the circumstances of the case, the public
interest in not disclosing the information outweighs the public interest
in disclosing it; and

(b) in any other case, that the disclosure of the information to a member
of the public otherwise than under these Regulations would contravene any
of the data protection principles if the exemptions in section 33A(1) of
the Data Protection Act 1998([2]1) (which relate to manual data held by
public authorities) were disregarded.

 

We have considered whether the information constitutes the personal data
of third parties, and have considered whether disclosure would breach the
data protection principles.  Principle (a) under Article 5 of GDPR is
applicable in this instance.   When considering whether disclosure of
information is a breach of principle (a), we have considered whether
disclosure is lawful and then whether it is fair. The lawful relevant
basis is that of legitimate interests under Article 6.1(f)). The Data
Protection Act 2018 amends FOIA and the EIR so that the legitimate
interests lawful basis is applicable to public authorities when they are
considering disclosure.

 

The exception applies to third party personal data. This would not be
released under the Environmental Information Regulations unless there is
strong public interest to do so. This is because any release would breach
the Data Protection Principles as contained within the General Data
Protection Regulations (see above).  Information released under the
Environmental Information Regulations is considered to be released into
the public domain, without caveat, not just to the individual requesting
the information. We believe that information relating to identifiable
individuals constitutes their personal data and if released would
contravene the data protection principle under Article 5.

The first principle of the General Data Protection Regulations (Article 5)
 states in part that: “Personal data shall be processed “lawfully, fairly
and in a transparent manner in relation to data subjects” and, in
particular, shall not be processed unless at least one of the conditions
in Article 6 is met, and in the case of sensitive personal data, at least
one of the conditions in Article 9 is also met”.  We have to assess
whether the information relates to living individuals, whether an
individual can be identified from the information requested.

 

We are obliged to comply with the first principle where we are required to
‘handle people’s personal data only in ways they would reasonable expect’.
It is reasonable in these circumstances that the identity of the
individuals and the information relating to them would not be disclosed in
response to an Environmental Information Regulation request.

Therefore, based on the considerations above the exception afforded under
Section 13 of the Environmental Information Regulations is engaged and
this letter acts as a Refusal Notice for this element of your request.

 

In this instance the exception relied upon is Section 12(4)(d)

 

12.—(1) Subject to paragraphs (2), (3) and (9), a public authority may
refuse to disclose environmental information requested if—

 (4) For the purposes of paragraph (1)(a), a public authority may refuse
to disclose information to the extent that—

(d) the request relates to material which is still in the course of
completion, to unfinished documents or to incomplete data

 

Information which is being gathered in the process of an authority
formulating its policies and plans or deciding how to proceed in relation
to a particular matter, can be said to form part of an overall, larger,
“end product” and it is this material that is in the course of completion.
We acknowledge that there is public interest in documents related to
construction projects such as wind turbines and that there is transparency
in the conditions applied to those construction projects. We consider that
there is need to develop those documents in a ‘safe space and a drafting
space’ and that to release incomplete or draft versions of those documents
would be prejudicial to the planning work being undertaken and to future
planning work. However, at this point it is important to state that the
completed documents are available for viewing on the public web site and
the links are provided below. The prejudice comes from a general public
viewing draft documents and applying the outcomes and particulars detailed
there to the finished document and/or to future projects where it would be
inappropriate to do so. It would also be prejudicial to the exploration of
ideas that are later discarded if each of those draft ideas had to then be
subject to public scrutiny and justification (Where an idea was rightly
discarded as part of the standard process and did not make the final
draft). The public interest, on balance, is better served by allowing
officers to complete their work and to provide a considered and accurate
final document that is correct and proper. As such the exception at
12(4)(d) is engaged.

 

The complete documentation that we hold as part of our communications is
available from the Powys County Council website in a more complete form at
the following URL:

[3]https://pa.powys.gov.uk/online-applicati...

[4]https://pa.powys.gov.uk/online-applicati...

 

Specifically the ‘Ecological Monitoring Plan’ and the ‘Construction
Environment Management Plan’

 

 

In this instance the exception relied upon is Section 12(5)(b)

 

12.—(1) Subject to paragraphs (2), (3) and (9), a public authority may
refuse to disclose environmental information requested if—

(5) For the purposes of paragraph (1)(a), a public authority may refuse to
disclose information to the extent that its disclosure would adversely
affect—

(b) the course of justice, the ability of a person to receive a fair trial
or the ability of a public authority to conduct an inquiry of a criminal
or disciplinary nature;

A public authority can refuse to disclose information to the extent that
disclosure would adversely affect “the course of justice, the ability of a
person to receive a fair trial or the ability of a public authority to
conduct an inquiry of a criminal or disciplinary nature”. The Commissioner
accepts that the exception is designed to encompass information that would
be covered by Legal Professional Privilege (‘LPP’).  We are relying, in
this instance, on legal advice privilege. Legal advice privilege is
attached to confidential communications between a client and its legal
advisers, and any part of a document which evidences the substance of such
a communication, where there is no pending or contemplated litigation. In
order to attract LPP, the information must be communicated in a
professional capacity; Furthermore, the communication in question also
needs to have been made for the principal or dominant purpose of seeking
or giving advice.

 

The withheld information in this case comprises of the opinion of legal
team on matters relating to the construction at Hendy Wind Farm.  We
consider that disclosure of the withheld information would be likely to
prejudice our ability to obtain advice on our legal rights and
obligations. The legal advice provided by the legal team in this case
refers to an opinion based on a particular set of circumstances and the
advice could be used in the future. In light of this, the Council is
satisfied that it is more than likely that disclosure of the legal advice
in this case would adversely affect the course of justice.  The disclosure
of the legal advice would undermine the important common law principle of
legal professional privilege. This would in turn undermine a lawyer’s
capacity to give full and frank legal advice and would discourage service
areas from seeking legal advice.

 

Powys County Council acknowledges that disclosure would promote
accountability and transparency in its decision making processes and would
ensure that the Council is seen to be acting appropriately and with
probity.  It would also allow scrutiny of a public authority’s role and
enhanced transparency in its decision making process by allowing the
public to understand and challenge decisions.

 

However, whilst the arguments in favour of disclosure have significant
weight, there are stronger public interest arguments in favour of
maintaining the exception. Powys County Council, and it’s officers, need
to be able to obtain free and frank legal advice. The disclosure of advice
and opinion would undermine the Council’s ability to obtain such advice in
a timely fashion in the future and have the confidence that advice given
is done so freely without the consideration of disclosure. This would lead
to advice that is not informed by all the relevant facts. In turn this
would be likely to result in poorer decisions being made by the public
authority because it would not have the benefit of thorough legal advice.
In previous decision the Information Commissioner has stated that there
must be reasonable certainty relating to confidentiality and the
disclosure of legal advice. If there were a risk that it would be
disclosed in the future the principle of confidentiality might be
undermined and the legal advice less full and frank than it should be.

 

Therefore on balance, we have determined that, in this case, the public
interest in protecting the established convention of legal professional
privilege is not countered by at least equally strong arguments in favour
of disclosure. We therefore concluded that the public interest in
maintaining the exception at Regulation 12(5)(b) outweighs the public
interest in disclosure of the information. As such the exception at
12(5)(b) is engaged.

 

We regret the delay you have experienced with this request. We acknowledge
that Powys County Council has failed in its obligation under the Freedom
of Information Act 2000, to provide you with a response to your request
within the statutory timescale of 20 working days. Please accept our
apologies for this and for any inconvenience this may have caused.

 

We believe that this request is now complete and shall be closed
immediately. Should any further information be requested regarding this
topic, a separate request will need to be submitted.

We would like to take this opportunity to thank you for your interest in
Powys County Council.

 

Yours sincerely,

Information Compliance Team

 

The supply of documents under Freedom of Information does not give the
person or organisation who receives them an automatic right to re-use the
documents in a way that would infringe copyright.

You are free to use any information supplied for your own use, including
for non-commercial research purposes. The information may also be used for
the purposes of news reporting. However, any other type of re-use, for
example, by publishing the information or issuing copies to the public
will require the permission of the copyright owner. The copyright of most
of the information that we provide in response to Freedom of Information
Act requests will be owned by Powys County Council. The copyright in other
information may be owned by another person or organisation, as indicated
in the information itself. For HMSO Guidance Notes on a range of copyright
issues, see the Office of Public Sector Information(OPSI) website:
[5]http://www.opsi.gov.uk/advice/crown-copy...

 

If you are dissatisfied with the service you have received in relation to
your request and wish to make a complaint, please contact Information
Compliance. Our complaints procedure is available on request or on our
website.

If you are still not satisfied following this, you can make an appeal to
the Information Commissioner, who is the statutory regulator. The
Information Commissioner can be contacted at:

Information Commissioner's Office

2nd floor

Churchill House

Churchill way

Cardiff

CF10 2HH

Tel: 0330 414 6421

Email: [6][email address]

[7]www.ico.org.uk

[8]Footer_banner[1]

show quoted sections

References

Visible links
1. mailto:[email address]
2. Go to footnote 1
https://www.legislation.gov.uk/uksi/2004...
3. https://pa.powys.gov.uk/online-applicati...
4. https://pa.powys.gov.uk/online-applicati...
5. http://www.opsi.gov.uk/advice/crown-copy...
6. mailto:[email address]
7. http://www.ico.org.uk/