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.
- 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)?
- What are the common issues?
- What about documents containing both environmental and non-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.
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
“environmental information” has the same meaning as in Article 2(1) of the Directive, namely any information in written, visual, aural, electronic or any other material form on—
(a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements;
(b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in (a);
(c) 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;
(d) reports on the implementation of environmental legislation;
(e) cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in (c); and
(f) the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are or may be affected by the state of the elements of the environment referred to in (a) or, through those elements, by any of the matters referred to in (b) and (c);
The definition of environmental information encompasses recorded information in any material form, including:
- 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 Ofcom v ICO and T-Mobile [EA/2007/0078], 4 September 2007 the First-Tier Tribunal considered the application of “any information…on”. The applicant requested information about the location, ownership and technical attributes of mobile phone cellular base stations. Ofcom argued the names of mobile network operators were not environmental information as they did not constitute information “about either the state of the elements of the environment ….or the factors….that may affect those elements.”
The Tribunal disagreed and commented that “the name of a person or organisation responsible for an installation that emits electromagnetic waves falls comfortably within the meaning of the words ‘any information…on….radiation’. In our view it would create unacceptable artificiality to interpret those words as referring to the nature and effect of radiation, but not to its producer. Such an interpretation would also be inconsistent with the purpose of the Directive, as expressed in the first recital, to achieve ‘… a greater awareness of environmental matters, a free exchange of views [and] more effective participation by the public in environmental decision making…’. It is difficult to see how, in particular, the public might participate if information on those creating emissions does not fall within the environmental information regime”.
On further appeal (to the High Court and the Court of Appeal) Ofcom did not challenge the Tribunal finding that the names were environmental information.
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.
In Mersey Tunnel Users Association (MTUA) v Information Commissioner and Halton Borough Council [EA/2009/0001, 24 June 2009] the MTUA had requested information about a proposal to introduce tolling on an existing bridge and a proposed bridge across the River Mersey. The Tribunal agreed with the Commissioner that the information fell within the definition of environmental information.
The council had argued that the information on tolling was not sufficiently connected to the ‘measure’ (ie the proposal to construct a new bridge) to be environmental. However the Tribunal stated: “there is no dispute that the Mersey Gateway Project will have a significant impact on the state of elements of the environment, such as, at least, the land and the landscape, and on factors such as emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to, such that information relating to it would fall squarely within the definition of environmental information under Regulation 2(1) of the EIR” and “we are satisfied that tolling is an integral part to the Project and its viability.”
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.
Any information on or about the state or condition of the elements of the environment is environmental information under regulation 2(1)(a).
- Information about the water quality of a river is information on the state of water as an element of the environment.
- A map showing the location of mountain ranges, urban areas and woodland is information on the state of the land as an element of the environment.
Similarly information on or about the interaction between the elements of the environment is environmental information under this regulation.
Information about coastal erosion from the sea is information on the interaction between two elements of the environment (water and land).
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 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
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.
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.
- Information on the life cycle of the badger is information on a single species and so won’t fall into the definition of information on the state of biological diversity and its components.
- Information on how the population of earthworms and grubs is affected by the number of badgers in a particular location is information on the state of biological diversity and its components, as an element of the environment.
Information on factors affecting or likely to affect the elements of the environment is environmental information under regulation 2(1)(b).
Information about the waste that is accidently leaked into a river is information on a factor (waste) which is affecting the state or condition of water (the river) as an element of the environment.
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:
This includes all physical materials or matter, natural or synthetic, in solid, gas or liquid form.
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.
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 is energy transmitted as rays, waves, or in the form of sub-atomic particles. It can be natural or man-made.
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.
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).
Information on a proposal to build a new retail park is information on a measure (the building proposal) likely to affect the state of the land as an element of the environment.
“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).
Information on regulations to determine fishing quotas is information on a measure (the fishing quota regulations) designed to protect biological diversity and its components (the balance between the species of fish in the sea in specified areas) which is an element of the environment under regulation 2(1)(a).
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.
ICO Decision Notice FER0148337, upheld by the First-Tier Tribunal in Rudd v Information Commissioner and The Verderers of the New Forest [EA/2008/0020, 29 September 2008] information about payments received by individual verderers under the Countryside Stewardship Scheme and legal advice obtained by the Verderers of the New Forest on the Countryside Stewardship Scheme was deemed environmental information, as information on a measure that affects or is likely to affect an element of the environment.
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.
In Omagh District Council v Information Commissioner [EA/2010/0163, 20 May 2011] the request was for the names of the authors of an Equality Impact Assessment (EQIA) about a policy on the disposal of land containing a memorial to IRA members who had died in hunger strikes in 1981. The memorial comprised a flag, a monument and 10 trees. The council had refused the request under FOIA; the Commissioner instead found that the information requested was environmental and should have been handled under the EIR. This was on the basis that the information was directly related to a measure – the proposed sale of the land - that would impact on the state of the land.
The council argued that the focus of the information was on equal opportunities, and that the EQIA was too remote from a measure affecting the environment, since it was too far removed from the final decision on the sale of the land. The Tribunal did not accept these arguments and decided the information did have a significant connection with the decisions on the sale of the land and the future of the memorial and therefore was environmental information.
The Tribunal supported the ICO approach and upheld the Decision Notice.
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.
In The Department for Business, Energy And Industrial Strategy v The Information Commissioner & Alex Henney  EWCA Civ 844 (29 June 2017] EWCA Civ 844 (29 June 2017) the Court of Appeal (CoA) considered a request made to Department for Business, Energy and Industrial Strategy for a Project Assessment Review about the communications and data component of the Smart Meter Programme.
The CoA found that there was nothing in regulation 2(1)(c) requiring the relevant measure to be that which the information is primarily on. Identifying the measure may require consideration of the wider context.
(This may include:
- the purpose for which the information was produced;
- how important the information is to that purpose;
- how it is to be used; and
- whether access to it would enable the public to be informed about, or to participate in, decision-making in a better way.)
It said that determining whether information qualifies as "environmental information" should be decided by reference to the general principle that the EIR, Directive 2003/4/EC and the Aarhus Convention must be construed purposively.
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.
the The European Commission’s views on this issue remain informative. In its European Environmental Policies, it has previously explained environmental legislation as “legislation which, irrespective of its legal basis, contributes to the pursuit of the objectives of … policy on the environment …: preserving, protecting and improving the quality of the environment, protecting human health, the prudent and rational utilisation of natural resources, and promoting measures at international level to deal with regional or worldwide environmental problems…”.
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 an 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).
- A public authority holds a report on the cause of an outbreak of sickness among a local population. The report concludes that the sickness arose because industrial waste had been illegally emptied into a river and this contaminated fish which were later sold for human consumption. This report is environmental information under regulation 2(1)(f). This is because it is information on a contamination of the human food chain by an activity under regulation 2(1)(c) (the emptying of industrial waste into a river) that has affected human health and safety, through the state of an element of the environment in regulation 2(1)(a) (the contaminated water).
- The public authority also holds a separate report on a different outbreak of sickness in another area. This report concludes that the sickness arose because a restaurant failed to properly cook the meat it served. In this case, the report is not environmental information. This is because the information does not link the contamination of the food chain and the resultant effect on the state of human health and safety back to the state of an element of the environment, or a measure affecting the state of the elements of the environment.
- Information on how a building has been affected by subsidence of the land it stands on is environmental information. This is because it is information on the state of a built structure inasmuch as it is affected by the state of the land, as an element of the environment.
- Information on how a built structure has been affected by use of poor building materials is not environmental information under regulation 2(1)(f). This is because there is no information on how the building has been affected by the state of any element of the environment.
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.
This section contains more examples of specific, detailed issues when identifying environmental information for the purposes of the EIR.
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.
In London Borough of Southwark v Information Commissioner, Lend Lease (Elephant and Castle) Limited and Glasspool [EA/2013/0162] 9 May 2014 the First-Tier Tribunal considered a request for a financial viability assessment submitted with a planning application by Lend Lease to redevelop a very large area, including much of the Heygate Estate.
The Tribunal commented that although “there may be a tendency to overuse EIR; almost an assumption that, for example, anything to do with land or anything to do with the planning process in England and Wales is outside the scope of FOIA” the answer lay in “a purposive application to the facts of a case of the definition of “environmental information” in Reg 2(1) EIR”. For example, it considered that appropriate weight should be given to “the state of the elements of the environment”.
On that basis, the Tribunal decided that the project was so large that it was likely to affect the state of the landscape as an element of the environment, and was therefore a measure which fell within regulation 2(1)(c). In addition the viability assessment was an economic analysis used within the framework of that measure and activity, and fell within regulation 2(1)(e). Therefore the requested information was environmental information.
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
In Black v Information Commissioner (EA/2011/0064, 8 September 2011) the First-Tier Tribunal considered a request for information about policies concerning the fitting of reproduction or antique fireplaces in a grade one listed Regency building in central London. The Information Commissioner’s decision notice had drawn a distinction between internal and external works and concluded that information concerning internal fixtures, such as fireplaces or chimney pieces, did not fall within the definition of “environmental information” in Regulation 2(1) of EIR. This meant that aspects of the information request fell to be considered under FOIA rather than the EIR, and that certain provisions of the EIR did not apply to that aspect of the appellant’s original information request.
The Tribunal upheld the decision notice, stating that “on a plain reading of both the Directive and the EIR (which are identical in any event) the Tribunal finds that information relating to the internal fixtures of a building does not constitute ‘environmental information’ within the definition, whether as landscape or otherwise”.
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.
In Kirkaldie v Information Commissioner and Thanet District Council Kirkaldie v Information Commissioner and Thanet District Council [EA/2006/0001] 4 July 2006 the First Tier Tribunal considered a request for legal advice on an agreement made under section 106 of the Town and Country Planning Act 1990 between a local planning authority and a developer in relation to Manston Airport. Such agreements commonly set out planning obligations by the developer about a planning proposal. As part of its decision, the Tribunal found that the request should have been handled under the EIR rather than under FOIA because:
- such an agreement amounted to environmental information under regulation 2(1)(c) as a measure affecting or likely to affect the elements in 2(1)(a) and (b); and
- the legal advice was ‘on’ the agreement: “The Legal Advice……related to the enforceability of the s106 Agreement, land usage and other planning matters”.
The Tribunal also said that “entering into and extending such an agreement is the sort of measure envisaged by the rule which is “likely to affect the elements and factors referred to in (a) and (b) as well as measures or activities designed to protect these elements.”
However in the view of the Information Commissioner it is not necessary to say that entering into and extending such an agreement is also a measure. Once it is established that the s106 Agreement is a “measure affecting or likely to affect the elements and factors referred to in (a) and (b)”, then the legal advice is environmental information because it is information on this measure.
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.
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  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  EWCA Civ 2241). Such cases should, however, be rare.
In Information Commissioner v DfT & Hastings  UKUT 184 (31 May 2018), the Upper Tribunal concluded that:
“It is necessary to consider the subject matter of both parts of the disputed information, and the link between them, as well as taking a holistic approach to the information, in order to decide whether the supposed non-environmental information can indeed be properly regarded as being “on” something other than one of the matters enumerated in the regulation 2(1) [EIR] definition”  and that “once the right line has been identified at the boundary of FOIA and the EIR, then the question of whether particular information falls one side of that line or the other is necessarily fact-specific” .
The UT then went on to give the following guidance on the approach to take on documents that include both environmental and other information:-
“69. First, the starting point for a Tribunal’s analysis is that “environmental information” in regulation 2(1) of the EIR must be construed broadly (see e.g. recitals (1), (2), (10) and (16) and Article 1 of Directive 2003/4 and the case law discussed above).
70. Second, the documents containing the requested information must be considered as a whole. Tribunals should ask themselves whether the requested information as a whole is information ‘on’ one or more of the matters identified in the regulation 2(1) EIR definition.
71. Third, where the public authority has disaggregated the information in the document into information which it accepts is environmental information (and so governed by the EIR) and information which it considers is other information (and so subject to FOIA), the tribunal must ask itself whether those component parts are separately information ‘on’ one or more of the matters set out in regulation 2(1) of the EIR. To that extent the approach set out by the information tribunal in DBERR v IC & FoE (at paragraph ) is helpful”.
For further information about who is subject to the EIR, and request handling under the two different pieces of legislation, see:
You may also want to refer to the following guidance: