Regulation 2(1) - What is environmental information?

Latest updates

01 July 2023 - We have updated the guidance to reflect the Commissioner’s position that all applications to list a building will be environmental information, whilst still recognising that whether an application for listed building planning consent is environmental information will be influenced by whether it relates solely to internal features. The changes can be found in ‘What are the common issues?

This guidance discusses the definition of environmental information in regulation 2(1) of the EIR in detail and is written for use by public authorities. Read it if you have questions not answered in the guide or if you need a deeper understanding to help you deal with requests.

In detail

• Why is it important to identify environmental information?
• What does the EIR say?
• What is “information in any material form”?
• What is “any information on”?
• What are the definitions in regulations 2(1)(a)-(f)?
  
  • Regulation 2(1)(a)
  • Regulation 2(1)(b)
  • Regulation 2(1)(c)
  • Regulation 2(1)(d)
  • Regulation 2(1)(e)
  • Regulation 2(1)(f)
• What are the common issues?
• What about documents containing both environmental and non-environmental information?

Why is it important to identify environmental information?

If you are subject to the EIR, you need to ensure that you handle a request under the correct regime: the EIR or FOIA. You must therefore carefully consider the content of the requested information because there are some fundamental differences:

• The reasons why you can withhold information are different under FOIA (exemptions) from under the EIR (exceptions).
• Requests can be made verbally under the EIR (unlike under FOIA).
• There are different time limits for compliance.

If some of the information you hold is environmental information and some is not, you have to apply the EIR to the environmental information and FOIA to the non-environmental information.

We have written separate guidance on how this works when you think the request may be costly, vexatious or manifestly unreasonable: Calculating costs where a request spans different access regimes and Manifestly unreasonable requests.

What does the EIR say?

Parliament originally introduced the EIR to implement EU Directive 2003/4/EC. The source of the Directive is the Aarhus Convention, an international agreement to which the UK is an independent signatory.

Regulation 2(1) states:

2.-(1) In these Regulations

What is “information in any material form”?

The definition of environmental information encompasses recorded information in any material form, including:

• emails;
• drawings;
• sound recordings;
• CCTV recordings; and
• hard copies of letters and other documents.

As with FOIA, you are not required to create information, but you are expected to extract existing information, (eg from a database). For more details, read our guidance: Information held by a public authority for the purposes of the EIR.

What is “any information on”?

“Any information” covers any environmental information about, concerning or relating to the various factors, elements and other items stated.

You should interpret “any information on” broadly. Information that would inform the public about matters affecting the environment or enable them to participate in decision-making is likely to be environmental information, even if the information does not directly mention the environment.

You should apply the test about whether the information is on or about something falling within the definitions in regulations 2(1)(a)-(f), and not whether the information directly mentions the environment or any environmental matter.

In line with the Tribunal’s comments above, it is not acceptable to separate out (as non-environmental information) details such as names, which form an integral part of information falling under the EIR.

What are the definitions in regulations 2(1)(a)-(f)?

The EIR does not attempt to provide a definitive list of environmental information but breaks down its scope into categories and within each category provides examples.

Regulation 2(1)(a): what are “elements of the environment”?

Any information on or about the state or condition of the elements of the environment is environmental information under regulation 2(1)(a).

Similarly information on or about the interaction between the elements of the environment is environmental information under this regulation.

Regulation 2(1)(a) gives various examples of elements of the environment. The use of the words “such as” in this subsection make clear that the list is not exhaustive, so you need to be aware that information on the condition of other elements of the environment is also environmental information.

Further guidance on what is covered by the examples of elements of the environment listed in regulation 2(1)(a) is given below.

• Air and atmosphere

The use of both words in this definition indicates that it encompasses air that is confined in some way, as well as the air outside. Since the air and atmosphere are made of various gases and contain solid particles, they are included in the definition.

• Water

Water may exist in various forms at different temperatures and in different conditions, and the definition covers all of them. The location of the water is immaterial - underground, on the surface, or in natural settings.

• Soil and land

These include:

• • soil as the loose top layer on the earth’s surface where plants may grow; and
  • land as the solid parts of the earth, whether at the surface or underground. Note that the meaning of land for the purpose of the EIR is as an element of the environment, rather than the definition of land in English law.
• Landscape

This is landscape as it is commonly understood, ie an area of land whose character and appearance has resulted from the interaction of natural or human factors, or both. A landscape within this definition may be in any location and of any quality - urban or rural, attractive or ugly. Landscape can also be described as the visible features of an area of land, or the vista from a certain vantage point.

• Natural sites including wetlands, coastal and marine areas

This definition covers any sites that are regarded as examples of the landscape in their natural condition or as sites supporting natural flora or fauna. There is no need for these sites to have been formally designated, for example as a Site of Special Scientific Interest (SSSI).

• Biological diversity and its components, including genetically modified organisms

Biological diversity is the balance between the various species on the earth. A genetically modified organism (GMO) is a life form whose genetic material has been modified in a laboratory in a way that does not occur naturally (eg in crop farming and livestock production). Because this element of the environment is listed as”‘biological diversity and its components”, we consider that information about a single species won’t fall into the definition. However, it does include information on or about the balance between the species, and how individual species make up that balance.

Regulation 2(1)(b): what are “factors”?

Information on factors affecting or likely to affect the elements of the environment is environmental information under regulation 2(1)(b).

The word “factor” here means something physical that has an impact or influence on the elements of the environment.

Information about a factor is only environmental information under this regulation if the factor is “affecting” or “likely to affect” the state of the elements of the environment indicated in regulation 2(1)(a).

“Affecting” means there has already been an impact on the state of the elements of the environment, or that the impact is current or ongoing.

“Likely to affect” means there is a likelihood the factor will impact on the state of the elements of the environment. This does not have to be more probable than not, but it does have to be real and significant and substantially more than remote.

The effect could be either detrimental or beneficial, and large or small scale.

Again, regulation 2(1)(b) provides a list of some factors and the words “such as” indicate that these are examples rather than an exhaustive list, including:

• Substances

This includes all physical materials or matter, natural or synthetic, in solid, gas or liquid form.

• Energy

In scientific terms this means the ability to do work and it includes all different types of energy; thermal, chemical, electrical, nuclear, kinetic, sound, potential, light and gravitational. So it covers familiar concepts such as heat, cooling, solar energy, sunlight, nuclear and wind power.

• Noise

Although noise is itself generated by sound energy, it is included here separately. A simple definition of noise is a sound, especially one that is loud, unpleasant, or disturbing.

• Radiation

Radiation is energy transmitted as rays, waves, or in the form of sub-atomic particles. It can be natural or man-made.

• Waste

Waste can be broadly interpreted to mean anything discarded. This includes household, industrial, agricultural and commercial waste.

• Radioactive waste

Radioactive materials are widely used in many situations, settings and industries such as hospitals, industry, research, power generation, and the military. Radioactive waste is the unwanted or unusable by-product of these activities.

• Emissions, discharges and other releases

These three terms may overlap. “Emissions” and “discharges” indicate the direct or indirect, accidental or deliberate release of substances, heat, radiation or noise into the air, water or land. “Release” suggests liberation, or a change of state from confined to unconfined. For more details, read our guidance: Information on emissions (regulation 12(9)) which considers the definition of emissions in detail.

What are regulation 5(5) requirements about information falling under regulation 2(1)(b)?

When you make information available that falls within regulation 2(1)(b), you must bear in mind the requirements of regulation 5(5). If the applicant requests this, you are required to do the following (so far as you are able to do so):

• inform the applicant where they can find available information on measurement procedures used in compiling the information, including methods of analysis, sampling and pre-treatment of samples; or
• refer the applicant to a standardised procedure that was used.

Regulation 2(1)(c): what are “measures and activities”?

Information on measures and activities affecting or likely to affect the state of the elements of the environment, or factors such as those listed in regulation 2(1)(b), is environmental information due to regulation 2(1)(c).

“Affecting” means the effect on the elements of the environment, or factors such as those listed in regulation 2(1)(b), has already occurred, or is current or ongoing.

“Likely to affect” means there is a likelihood the elements of the environment, or factors such as those listed in regulation 2(1)(b), would be affected if the measure went ahead. This likelihood does not have to be more probable than not, but does have to be real and significant and substantially more than remote.

The effect could be either detrimental or beneficial, and large or small scale.

When the measure is proposed for the future, you should consider whether it would be likely to affect the elements and factors referred to in regulations 2(1)(a) and (b). You should not consider whether the plan is actually likely to happen. Once you have 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 regulation 2(1)(c).

Once you have established an intention to initiate a plan or develop a policy, then any information about this comes within regulation 2 (1) (c).

This position derives from the Aarhus Convention and the EU Directive which Parliament implemented by introducing the EIR.  Together they aim to involve the public during the preparation of plans and programmes about the environment, acknowledging the connection between access to environmental information and effective participation in environmental decision-making. This reinforces the view that you should not only consider information to be environmental when a plan is likely to go ahead. This effectively excludes information relevant to participation at the preparation stage of plans relating to the environment.

Information on measures and activities designed to protect elements of the environment is also environmental information under regulation 2(1)(c).

Again the regulation gives “such as” examples of measures or administrative measures: policies, legislation, plans, programmes and environmental agreements. This covers a broad range, and includes the steps you take to ensure something happens and the methods, processes or instruments you use to implement the measure.

Also included are regulatory measures such as Acts of Parliament and local by-laws, taxes, prosecutions, charges and voluntary agreements. “Policies” are not restricted to environmental policies, but cover those on development, economic, transport or health, if they are likely to affect the elements of the environment.

You should remember that the earlier part of regulation 2(1) states environmental information is “any information…on” the matters listed later in regulation 2(1). This means regulation 2(1)(c) covers:

• documents setting out the measures themselves;
• any information on the way they have been developed and are applied; and
• any information about the results of that application.

It can sometimes be difficult to decide which parts of large projects fall within this definition. It is often clear that the main project itself constitutes a measure that will affect the environment (eg building a bridge). Questions often arise when sub-projects or connected projects are considered as separate projects or measures (eg IT projects). You need to consider whether the information on these projects is information on the overall measure and therefore environmental information.

The key test in this situation is how integral the additional project or measure is to the overall measure. For example, if an IT system was integral to an automatic floodgate system, then this is still information about the measure of the floodgate system.

This is the approach taken by the Tribunal in the Mersey Tunnel Users Association case referenced above.

The Court of Appeal has confirmed the appropriateness of a broad approach to defining environmental information, which may include information that is not directly connected to a measure. So, you should consider whether something is likely to affect the environment depending on the context/ facts. Identifying the measure the disputed information is "on" might, therefore, require you to consider the wider context, including taking a purposive approach to the EIR, the EU Directive and the Aarhus Convention.

By a “purpose approach”, the CoA meant that, when looking at whether in a specific case the information can be considered to be ‘on’ a given measure for the purposes of the regulation 2(1)(c). It is important to bear in mind the purpose the Aarhus Convention and the Directive (the legislative instruments upon which the EIR is built) are trying to achieve. These purposes relate to the requirement that citizens have access to information to enable them to participate in environmental decision-making more effectively, the contribution of access to a greater awareness of environmental matters, and eventually, to a better environment.

Regulation 2(1)(d): what are “reports on environmental legislation”?

Reports on the implementation of environmental legislation are environmental information under regulation 2(1)(d). There is likely to be some overlap between information under this definition and that in regulation 2(1)(c), so 2(1)(d) may be viewed as clarifying and expanding on 2(1)(c). Examples of reports include any that review or monitor the operation or performance of environmental legislation, or evaluate its success or failure.

Regulation 2(1)(e): what are “cost-benefit and economic analyses”?

Information on cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in regulation 2(1)(c) is environmental information under regulation 2(1)(e).

The fact that economic information was included in the definition in the Aarhus Convention stemmed from the recognition that, when making decisions, it is important to take into account both environmental and economic considerations.

The reference in 2(1)(e) links back to the “measures” and “activities” in (c). This means that the economic analyses and assumptions stated here in (e) are those taken into account when considering and implementing the 2(1)(c) measures and activities. Regulation 2(1)(e) therefore ensures the definition of environmental information extends to information about the economic implications of environmental measures and activities.

Regulation 2(1)(f): what are “human health and safety, conditions of human life, cultural sites and built structure”?

This definition is more specific than the other definitions in regulation 2(1) and does not take the form of a list of examples. It relates to the following areas:

• the state of human health and safety (this includes the contamination of the food chain, where relevant to the state of human health and safety);
• conditions of human life; and
• cultural sites and built structures.

These areas are environmental information to the extent that they are or may be affected by:

• the state of the elements of the environment in 2(1)(a); or, through those elements,
• any of the factors, measures or activities referred to in 2(1)(b) and (c).

This definition uses different terms from the other definitions in regulation 2(1): “inasmuch as they are affected by” and “inasmuch as they may be affected by”.

“Are affected by” again means that the effect has already occurred or is current or ongoing.

“May be affected by” means that there has to be some possibility of an effect. This is a lower test than the “likely to affect” test under regulations 2(1)(b) and (c).

The effect could be either detrimental or beneficial, and large or small scale. Again the regulation provides a list, but this time it is a definitive rather than a “such as” list, covering the following items only:

• the state of human health and safety;
• conditions of human life;
• cultural sites; and
• built structures.

The contamination of the food chain is an example of human health and safety rather than a category in its own right.

Further guidance on the list at regulation 2(1)(f) is provided below.

• Human health and safety

This refers to a collective state of human health and safety. It includes such matters as diseases, medical conditions and risks to human safety. The definition specifically mentions the contamination of the food chain, which follows concerns over environmental factors affecting our food.

• Conditions of human life

- This covers, for example, information on housing, poverty, employment, social welfare, heating, access to clean water, sanitation, and healthcare.

• Cultural sites

This includes places that have a historical, literary, educational, or artistic value, and religious, ethnic, or social significance. It covers modern as well as historical, and urban as well as rural locations.

• Built structures

This includes buildings and built structures, as well as built infrastructure, such as roads, railway lines, pylons, aerials, bridges, canals and tunnels.

What are the common issues?

This section contains more examples of specific, detailed issues when identifying environmental information for the purposes of the EIR.

Planning decisions

Information about planning matters and planning decisions are often environmental information. For example, a particular planning regulation, under which a planning decision has been made, might be a measure affecting or likely to affect the factors and elements in 2(1)(a) and (b), or designed to protect those elements. If it is, then the decision and the related planning application become environmental information because they are information on the implementation of that particular planning regulation.

This does not mean that all information contained within planning files is inevitably environmental information. You need to identify what measure the information is on (ie the particular planning regulation being applied) and ensure that this is a measure affecting or likely to affect the factors and elements in 2(1)(a) and (b), or designed to protect those elements.

Alternatively, you could consider if the planning application is a measure (a plan) likely to affect the elements of the environment.

Listed buildings

The Commissioner’s view is that information relating to a decision about whether or not to list a building is environmental information. This is because the listing process is an administrative measure which is likely to affect the environment, under the definition in regulation 2(1)(c). Such information continues to be environmental information regardless of whether the process leads to a decision to list the building, or not.

Information on applications for listed building planning consent and decisions on such applications may fall under either the EIR or FOIA depending on the nature of the application and whether the proposed changes relate to internal features only, see below.

Internal alterations in buildings

Agreements under section 106 of the Town and Country Planning Act 1990

Agreements under section 106 of the Town and Country Planning Act 1990 can be regarded as “environmental agreements” as listed in regulation 2(1)(c). The information within the agreement is environmental and subject to the EIR if the agreement:

• affects or is likely to affect any of the elements referred to in regulation 2(1)(a) and factors referred to in regulation 2(1)(b); or
• is designed to protect those elements.

Property searches

The majority of the information that is used to answer questions in a property search form is likely to be environmental information. This is because it affects or is likely to affect the use and therefore the state of the land (regulation 2(1)(c)). For more details, read our guidance Property searches and the EIR.

What about documents containing both environmental and non-environmental information?

You may receive a request for a document which contains a mixture of environmental and non-environmental information. For example, the minutes of a meeting with a varied agenda, or a letter covering more than one subject area. In this situation, you need to apply the EIR to the environmental information and FOIA to any other, non-environmental, information.

Sometimes you might think that this requirement is too onerous as it requires a line-by-line analysis of the document in order to isolate the environmental information. The ICO’s view is that, if you interpret “any information on” broadly then this should not be the case. In the vast majority of cases a broad interpretation of “any information on” should mean that you can easily divide the document into environmental and non-environmental information, depending on the broad subject matter under consideration in each section or part of the document.

You should avoid analysing the information in isolation and instead take the holistic approach recommended in the Court of Appeal decision in The Department for Business, Energy and Industrial Strategy v The Information Commissioner & Alex Henney [2017] EWCA Civ 844 (29 June 2017).

As a starting point you should consider the information in its entirety to establish if the information – on the whole – can be said to be information ‘on’ one or more of the definitions in regulation 2(1)(a) – (f).

In exceptional cases you may be permitted to follow the pragmatic approach commended by the Upper Tribunal in Information Commissioner v DfT & Hastings (an approach not overturned on appeal in DfT v Information Commissioner & Hastings [2019] EWCA Civ 2241). Such cases should, however, be rare.