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Decision 093/2025

Decision 093/2025: Operational Noise Management Plan


Authority:  Highland Council
Case Ref:  202300898
 

Summary

The Applicant asked the Authority for a copy of the Operational Noise Management Plan required by a specified planning consent.  The Authority informed the Applicant that it did not hold the information requested.

The Commissioner investigated and found that the Authority’s handling of the request did not comply with the EIRs, but he was satisfied that the Authority did not hold the information requested.

Relevant statutory provisions

Freedom of Information (Scotland) Act 2002 (FOISA) sections 1(1), (2) and (6) (General entitlement); 47(1) and (2) (Application for decision by Commissioner).

The Environmental Information (Scotland) Regulations 2004 (the EIRs) regulations 2(1) (definition of “the Act”, “applicant” and “the Commissioner”) (Interpretation); 5(1) and 5(2)(a) (Duty to make environmental information available on request); 10(4)(a) (Exceptions from duty to make environmental information available); 13(a) and (b) (Refusal to make information available); 16 (Review by Scottish public authority); 17(1), (2)(a) and (b) (Enforcement and appeal provisions).

Background

  1. On 9 February 2023, the Applicant made a request for information to the Authority.  They asked for two plans required by conditions 5 and 6 of planning consent 19/02777/FUL in relation to development at Nigg East Quay.

    Condition 5 – 

    No development shall commence until a plan for the establishment of (or continuation of an existing) Community Liaison Group (CLG) has been submitted to and approved in writing by the Planning Authority.  The purpose of the CLG shall be to discuss the progress of the construction of the development and in its initial years of operation.  The CLG shall thereafter sustain an open invitation to representatives of Nigg and Cromarty Community Councils as well as residents within 1km of the site.  The approved plan shall be implemented as agreed, including a general timetable to ensure meetings are held in advance of critical periods of construction (particularly those that may result in increased noise levels or are to take place on evenings/weekends such as night time dredging) or on a reasonable regular basis to facilitate purposeful community engagement. 

    Reason: To provide for effective community consultation on the development and operation of the development in its early years.

    Condition 6 – 

Prior to the first use of the development hereby approved, an Operational Noise Management Plan which addresses noise impact of the approved development in combination with existing operations (drawing on the principals detailed in the approved EIAR) has been submitted to and approved in writing by the Planning Authority.  Thereafter the development shall operate in accordance with the approved Plan.

Reason: To minimise the cumulative noise impact of the proposed development and existing operations.

  1. The Authority did not respond to the request.
  2. On 13 March 2023, the Applicant wrote to the Authority requesting a review of its decision. The Applicant was dissatisfied that they had not received a response from the Authority.
  3. The Authority did not respond to this requirement for review.
  4. On 5 June 2023, the Applicant wrote to the Commissioner, applying for a decision in terms of section 47(1) of FOISA, as the Authority had failed to respond to their original request and requirement for review.  
  5. The Authority subsequently carried out a review and provided the Applicant with the outcome of its review on 4 July 2023.  In its review outcome, the Authority made the following points:

    1. In relation to the requirements of condition 5, the Authority explained that the CLG had formed and had met on a regular basis but that there was no plan which referred to the establishment of the CLG which could be provided to the Applicant.

    2. In relation to condition 6, the Authority stated, “I can confirm that to date the applicant has not provided [the Authority] with a further noise management plan and no Operational Noise Management Plan has been provided in respect of the above condition”.

  6. On 14 July 2023, the Applicant wrote to the Commissioner, applying for a decision in terms of section 47(1) of FOISA.  By virtue of regulation 17 of the EIRs, Part 4 of FOISA applies to the enforcement of the EIRs as it applies to the enforcement of FOISA, subject to specified modifications.  The Applicant was dissatisfied with the Authority’s failure to respond to the initial request and its delay in responding to their requirement for review. The Applicant was also dissatisfied with the outcome of the Authority’s review.  The Applicant stated that, because of the use of the phrase “further noise management plan” in the review outcome, they were unclear whether the Authority held the information that had been asked for in relation to planning condition 6.

Investigation

  1. The Commissioner determined that the application complied with section 47(2) of FOISA and that he had the power to carry out an investigation.
  2. On 11 August 2023, and in line with section 49(3)(a) of FOISA, the Commissioner gave the Authority notice in writing of the application and invited its comments.
  3. The Authority was also asked to send the Commissioner the information withheld from the Applicant, if any existed.
  4. The case was subsequently allocated to an investigating officer.

Commissioner’s analysis and findings

  1. The Commissioner has considered all of the submissions made to him by the Applicant and the Authority. 

FOISA or EIRs?

  1. The requested information relates to noise management as required by the planning consent for a new quay development on land at Nigg.  During the investigation, the Authority confirmed that it had considered the request under the EIRs.
  2. The Applicant has not disputed the Authority’s decision to handle their request under the EIRs and the Commissioner is satisfied, in the circumstances, that the information requested falls within the definition of environmental information set out in regulation 2(1).

Regulation 5(1) – Duty to make environmental information available

  1. Regulation 5(1) of the EIRs requires a Scottish public authority which holds the information to make it available when requested to do so by any applicant. This obligation relates to information that is held by the authority when it receives a request.
  2. On receipt of a request for environmental information, the authority must ascertain what information it holds falling within the scope of the request.  
    Having done so, regulation 5(1) requires the authority to make the information available, unless a qualification in regulation 6 to 12 applies (regulation 5(2)(b)).
  3. Under the EIRs, a Scottish public authority may refuse to make environmental information available if one or more of the exceptions in regulation 10 applies.
  4. During the investigation, the Authority submitted that it should have cited regulation 10(4)(a) of the EIRs in its review outcome of 4 July 2023, but it had not done so because there was confusion about whether a plan was held or not.

Regulation 10(4)(a) – Information not held

  1. Regulation 10(4)(a) of the EIRs states that a Scottish public authority may refuse to make information available to the extent that it does not hold the information when it received the request.
  2. The standard of proof to determine whether a Scottish public authority holds the information is the civil standard of the balance of probabilities.  In determining where the balance of probabilities lies, the Commissioner considers the scope, quality, thoroughness and results of the searches carried out by the public authority.
  3. The Commissioner also considers, where appropriate, any reasons offered by the public authority to explain why it does not hold the information.  While it may be relevant as part of this exercise to explore expectations about what information the authority should hold, ultimately the Commissioner’s role is to determine what relevant information is (or was, at the time the request was received) held by the public authority.

The Applicant's submissions

  1. As part of their investigation into complaints arising from noisy activities at the Nigg site, the Applicant explained that they had asked both the Authority and the Scottish Government’s Marine Licensing Operations Team (MLOT) for copies of plans related to noise mitigation which were submitted in relation to the planning consent and the Marine Licence consent, respectively.  A few days after submitting their request to the Authority, the MLOT provided the Applicant with a “draft” operational noise plan, submitted to MLOT as part of a Marine Licence application
  2. The Applicant explained that they were unsure whether this plan was (a) a final version of the plan required by the Authority with agreed content but simply unsigned and undated, (b) a draft version of the plan required by the Authority including wording that was changed before agreement and finalisation of the content, or (c) a different plan that had been drafted for the purposes of the Marine Licence, independent of the Authority as planning authority.  Whilst the purpose of their request was to obtain a copy of the plan submitted to the Authority under the terms of the planning consent, by obtaining that plan the Applicant would be able to confirm the status of the MLOT plan.
  3. The Applicant submitted that on 17 April 2023, in correspondence with the Authority regarding the investigation into noise complaints, they had provided the Authority with a copy of the MLOT plan.
  4. The Applicant further submitted that, during correspondence about the noise complaints, the Authority had informed them that the plan (required by planning condition 6) was submitted to the Authority at the time of the planning application.  
    However, the Applicant commented that this was incorrect because the planning application was made in June 2019, and the planning officer’s report on the planning application stated that the application “includes a baseline noise survey” (as opposed to an operational noise management plan) and endorsed “the applicant’s intention to prepare an operational noise management plan” in future.

The Authority’s submissions

  1. The Authority submitted that it had informed the Applicant, in an email subsequent to its review outcome, that it did not hold the plan required by planning condition 6.
  2. The Authority submitted that it had asked the Planning team and the Environmental Health team to carry out searches for the plan.  The Authority explained that the planning case officer had searched the case file and had also checked that nothing had been provided which had not been transferred to the case file.  The Authority’s Environmental Health Officer noted that he had been given an operational noise management plan by the Applicant. which related to the development, and he had assumed that the request related to “any updated plan”.
  3. The Authority explained that the development had been built and was operational.  The Authority submitted that, despite the Authority having made requests to the agent for the development, a noise management plan had never been submitted and, therefore, technically condition 6 had not been satisfied.  The Authority argued that it was considering the issue of noise across the whole site associated with existing operations and new planning applications and, because of this, the noise environment that any operational noise management plan required by condition 6 related to was likely to have changed.
  4. The Authority submitted that it held only one version of a draft plan, which was unsigned and which had been provide to the Authority by the Applicant.  The Authority argued it had provided this in response to the request because there had been miscommunication internally.  It stated that it had not received any other versions of the operational noise management plan from the Port of Nigg for this application since the FOI request was responded to.

The Commissioner's view on the exception

  1. The Commissioner considers that the searches carried out by the Authority, by the conclusion of the investigation, were reasonable and encompassed all areas where information of the type covered by the Applicant’s request would have been likely to be held.  He is also satisfied that those members of staff involved in carrying out the searches were the most appropriate to do so, based on their knowledge of the subject matter and their role within the Authority.
  2. The Commissioner acknowledges that the Authority did come into possession of a plan relating to noise mitigation which was given to it by the Applicant.  However, the Commissioner is satisfied that this plan was not submitted to the Authority in relation to condition 6 of the planning consent and is therefore not the information requested.  Having considered all of the submissions from the Applicant and the Authority, the Commissioner is satisfied that the Authority does not hold information which falls within scope of the Applicant’s request.
  3. The Commissioner must therefore find that the Authority was entitled to rely on the exception in regulation 10(4)(a) of the EIRs, on the basis that the Authority does not (and did not, at the time the request was received from the Applicant) hold recorded information which would fulfil the Applicant’s request.

The public interest

  1. The exception in regulation 10(4)(a) of the EIRs is subject to the public interest test in regulation 10(1)(b) and so can only apply if, in all the circumstances of the case, the public interest in maintaining the exception outweighs that in making the information available.
  2. The question of whether or not a public authority holds information is a factual one, determined on the balance of probabilities.  If a public authority does not hold the information, then there is no meaningful public interest test that can be undertaken.
  3. In this case, for the reasons set out above, the Commissioner is satisfied that the Authority does not hold any information covered by the request, and did not do so, on receipt of the request.  Consequently, he accepts that there is no conceivable public interest in requiring the disclosure of such information and finds that the public interest in making information available is outweighed by that in maintaining the exception.

Handling of the request

  1. The Applicant raised concerns in relation to the Authority’s handling of the request and, in particular, the time taken to provide a response and the apparent confusion over whether one document (the subject of the request) was held.  The Commissioner recognises and shares those concerns.
  2. Regulation 5(2)(a) of the EIRs gives Scottish public authorities a maximum of 20 working days following the date of receipt of the request to comply with a request for information.  This is subject to qualifications which are not relevant in this case.
  3. Regulation 16(4) of the EIRs gives Scottish public authorities a maximum of 20 working days following the date of receipt of the requirement to comply with a requirement for review.  Again, this is subject to qualifications which are not relevant in this case.
  4. Regulation 13 of the EIRs specifies the actions that Scottish public authorities are required to take when refusing to provide information under any of the exceptions in regulations 10 and 11 of the EIRs.
  5. The Authority was invited to provide submissions on its handling of the Applicant’s request and requirement for review.
  6. In response, the Authority submitted that it had previously apologised to the Applicant for the delays and confusion it had caused, and that it had no further comments. Separately, the Authority apologised for not properly citing the exception it had applied.
  7. The Commissioner notes that the Authority did not provide him with any explanation for the poor handling of the request or requirement for review.  The Commissioner is deeply concerned at the Authority’s apparent lack of recognition of the poor quality of its handling, and its failure to identify measures to ensure that similar issues do not arise in the future.
  8. It is a matter of fact that the Authority did not respond to the Applicant’s request or their requirement for review within 20 working days.  The Commissioner therefore finds that the Authority did not respond to the Applicant’s initial request within the statutory timescale.  As such, he finds that the Authority failed to comply with regulation 5(2)(a) of the EIRs.
  9. The Commissioner also finds that the Authority did not respond to the Applicant’s requirement for review within the statutory timescale.  As such, he finds that the Authority failed to comply with regulation 16(4) of the EIRs.
  10. In addition to these timescale failings, the Commissioner notes that the Authority did not properly specify the reasons for refusal.  Given this, the Commissioner also finds that the Authority failed to comply with regulation 13(a) and (b) of the EIRs.
  11. The Commissioner has recorded these procedural failures in his case management database, which is used to inform and monitor FOI practice by authorities.
  12. While the Commissioner does not require the Authority to take any action regarding these failures, in considering its failure to comply with the requirements of the EIRs, as outlined above, the Commissioner draws the authority's attention to Module 1[1] and Module 5[2] of his Self-Assessment Toolkit.  The Commissioner asks the Authority to consider whether there are steps it can take to adjust practice, in order to minimise the likelihood of failing to comply with the EIRs in dealing with requests in the future.

Decision 

The Commissioner finds that the Authority partially complied with the Environmental Information (Scotland) Regulations 2004 (the EIRs) in responding to the information request made by the Applicant.

The Commissioner finds that the Authority was entitled to rely on the exception in regulation 10(4)(a) of the EIRs, on the basis that it did not hold the information requested.

However, by

  • failing to respond to the request within the timescales applied by regulation 5(2)(a),

  • failing to respond to the requirement for review within the timescales applied by regulation 16(4), and

  • failing to comply with regulation 13(a) and (b) in refusing to respond to the request

the Authority failed to comply with the EIRs. 

The Commissioner does not require the Authority to take any action in respect of these failures in response to the Applicant’s application.

Appeal

Should either the Applicant or the Authority wish to appeal against this decision, they have the right to appeal to the Court of Session on a point of law only.  Any such appeal must be made within 42 days after the date of intimation of this decision.

Jennifer Ross

Deputy Head of Enforcement 


25 April 2025