Line to take - LTT83 - Future likely effects

• FOI/EIR: EIR
• Section/Regulation: reg 2(1)
• Issue: Future likely effects
• Source: European Parliment
• Details: EIRs, Council Directive 2003/4/EC, Aarhus Convention 1998
• Related Lines to Take: LTT80, LTT82, LTT84
• Related Documents: Aarhus Convention, 2003/4/EC
• Contact LA
• Date: 11/01/2008
• Policy Reference: LTT83
• © Copyright Information Commissioner's Office, re-used with permission
• Original source linked from here: LTT

Line to take

When a measure is a proposal for the future the relevant consideration will be whether, if it were to go ahead, it would be likely to affect the elements and factors referred to in Reg 2(1)(a) & (b). The likelihood of a plan actually coming to fruition is not a relevant consideration.

Further Information

Regulation 2(1)(c) includes in the definition of Environmental Information

“Information on —

Measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in (a) and (b) as well as measures or activities designed to protect those elements.”

The EIR implement Council Directive 2003/4/EC on public access to environmental information and the source of the directive is the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, known as the Aarhus Convention.

Article I of the Aarhus Convention provides that:

“In order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and wellbeing, each party shall guarantee the rights of access to information, public participation in decision—making, and access to justice on environmental matters in accordance with the provisions of this Convention.”

Article 7 of the Aarhus Convention includes that:

Each party shall make appropriate practical and/or other provisions for the public to participate during the preparation of plans and programmes relating to the environment, within a transparent and fair framework, having provided the necessary information to the public.”

The 1st recital of Council Directive 2003/4/EC states that:

“Increased public access to environmental information and the dissemination of such information contribute to a greater awareness of environmental matters, a free exchange of views, participation by the public in environmental decision-making and, eventually, to a better environment.”

Affecting or likely to affect

It has been argued that a measure only becomes a measure likely to affect the elements of the environment at the point at which it is likely to go ahead (see case review panel FS50158551). This would require a 2 part test to consider the likelihood of

• an effect on the environment occurring if the measure/activity did go ahead, and
• the measure/activity actually going ahead

The current ICO view is that - as Aarhus seeks to involve the public during the preparation of plans and programmes relating to the environment, and the Directive acknowledges the connection between access to environmental information and effective participation in environmental decision-making - the Regulations should not be interpreted to only consider information to be environmental at the point at which a plan is likely to go ahead. This would effectively exclude information relevant to participation at the preparation stage of plans relating to the environment.

Therefore, when the measure under consideration is something that is proposed for the future the relevant consideration will be whether, if the measure were to go ahead, it would be likely to affect the elements and factors referred to in Reg 2(1)(a) & (b). The likelihood of a plan actually coming to fruition is not a relevant consideration.

Further, because Article 7 of Aarhus states that the necessary information should be provided to allow public participation during the preparation of plans and programmes relating to the environment then it is not only completed plans that fall within the definition of Environmental Information. Once it is established that there is an intention* to initiate a plan or to develop a policy then this is sufficient to bring information which will contribute to the preparation of that plan within the intended scope of the Aarhus convention, the Directive, and so within the Regulations.

Before this point, when all that exists is an idea, a problem or an issue*, then there would be no intended plan or programme for the public to participate in the preparation of, and no identifiable measure or activity likely to affect the elements of the environment.

Using this principle - where a range of options (that would be likely to affect the elements of the environment if they went ahead) are considered, but it is known from the outset that one at most will be developed further, then information on all the options still falls within the definition of environmental information. If this were not the case then provision to allow the public access to information relevant in the preparation of plans and programmes relating to the environment would not have been made. Article 6, paragraph 4 of the Aarhus convention provides that “Each party shall provide for early public participation, when all options are open and effective public participation can take place.”

(*) where a public authority is to formulate a plan then the intention must be the public authority’s organisational intention (rather than just the personal idea of an individual within the pa)

(**) Although 2(1)(c) would not apply in this situation, if the information was on the existing state of the elements of the environment then 2(1)(a) would apply . E.g. information on the location of flood plains in an area is environmental information by virtue of 2(1)(a) regardless of whether any plan to combat flooding is proposed.