Tarmac Trading Ltd v The Information Commissioner

1. This appeal is brought by the Appellant against a decision of the Respondent, the Information Commissioner (“the Commissioner”) Reference: IC-293514-P7M2, regarding a request for disclosure of information under the Environmental Information Regulation 2004 (“EIR”).

2. The appeal was heard via CVP, attended by the Appellant. The Commissioner was given the opportunity to attend but confirmed to the Tribunal that they would not attend an oral hearing of the appeal. Background to the Request

3. The Appellant owns land adjoining Hartshill Quarry (‘the Quarry’), an active quarry operated by Crown Aggregates Ltd (‘CAL’), regulated by Warwickshire County Council (‘WCC’), in its capacity as Mineral Planning Authority (‘MPA’). The Appellant’s land adjoining the quarry has been allocated for development as residential land. On 9 June 2023, the Appellant made a number of requests to WCC in their capacity as MPA. The requests are set out in full at paragraph 4 of the Commissioner’s Decision Notice. The Appellant requested information from WCC to assist with development proposals which address the impact of the quarry on future dwellings. A central issue on the planning application is the extent of vibration and noise disturbance from the Quarry, as it relates directly to where housing can be sited, and how it should be designed with the aim that any impacts can be mitigated, whilst allowing the Quarry to operate lawfully and within its planning consent.

4. The only two requests for information, which originally remained in issue for the purposes of this appeal, were requests 4 and 7 which are: Request 4 - “Copies of any monitoring site visit reports, for site visits undertaken by WCC to Hartshill Quarry for the period 1 January 2018 to 9 June 2023. Copies of any invoices or receipt of payments for monitoring site visits within this period.” Request 7. – “Any information that WCC may possess, as Mineral Planning Authority, in respect of blast events for Hartshill Quarry for the period 1 January 2018 to 9 June 2023. For example, dates of blast events; number of blasts per event; number of blast events per annum; size of blast events etc.”

5. In response to the above requests, on 8 September 2023, WCC stated that for request 4, the information in the monitoring site visit reports was withheld under regulations 12(5)(b) and 12(5)(e) EIR. The invoices or receipts requested were not held. For request 7, the information was withheld under regulations 12(5)(b) and 12(5)(e) EIR. Following an internal review, WCC stated that, for request 4, it maintained the application of regulation 12(5)(b) EIR. For request 7, it maintained the application of regulation 12(5)(e) EIR.

6. During the Commissioner’s investigation, WCC disclosed information held on invoices within scope for request 4. For request 7, WCC released 63 blasting reports dated between 21 July 2019 and 6 February 2023, with redactions. The information disclosed in the blasting reports was some of the information previously withheld under Regulation 12(5)(e), on the basis that this information was information on emissions and therefore could not be withheld under regulation 12(5)(e). However, WCC maintained that the remaining information held within scope, did not relate to emissions and was exempt under regulation 12(5)(e).

7. The Commissioner decided in the Decision Notice under appeal, that the remaining information withheld under request 4 was exempt under regulation 12(5)(b) and the public interest in maintaining the exception outweighed the public interest in disclosure. The withheld information in scope of request 7 did not relate to emissions and therefore regulation 12(9) EIR does not apply and the information withheld is exempt under regulation 12(5)(e). The public interest in maintaining the exception outweighed the public interest in disclosure. The Relevant Law

8. It is not disputed that the regime applicable in this appeal is the EIR.

9. Environmental information is defined in Regulation 2 of the EIR. “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);”

10. Regulation 5(2) EIR provides: - “(2) Information shall be made available under paragraph (1) as soon as possible and no later than 20 working days after the date of receipt of the request”.

11. The requestor’s right under Regulation 5(1) EIR is subject to certain exceptions, outlined in Regulation 12 EIR which provides (so far as is relevant) as follows: - (1) Subject to paragraphs (2), (3) and (9), a public authority may refuse to disclose environmental information requested if – (a) an exception to disclosure applies under paragraphs (4) or (5); and (b) in all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information. (2) A public authority shall apply a presumption in favour of disclosure.

12. Regulation 12(9) EIR provides that: - “To the extent that the environmental information to be disclosed relates to information on emissions, a public authority shall not be entitled to refuse to disclose that information under an exception referred to in paragraphs (5)(d) to (g)”.

13. ‘Emissions’ is not only used in regulation 12(9). It first appears in the definition of what is environmental information provided by regulation 2(1) EIR.

14. Regulation 2(1)(b) provides that environmental information includes information on:- “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)”

15. Neither the EIR nor the Directive defines ‘emissions’. The First-tier Tribunal in Ofcom v Information Commissioner & T-Mobile EA/2006/0078 was of the view that ‘emissions’ in the regulations “should be given its plain and natural meaning ”.

16. In the decision of the Upper Tribunal in GW v Information Commissioner & LGO & Sandwell MBC (‘GW’), the Upper Tribunal concluded that legal advice which related primarily to the meaning and effect of legislation relating to emissions from chimneys in a smoke control area did not “relate to information on emissions” for the purpose of regulation 12(9) EIR. [2014] UKUT 0130 (AAC) Presumption in favour of disclosure

17. Regulation 12(2) EIR requires a public authority to apply a presumption in favour of disclosure when relying upon the exceptions under regulation 12. Burden of proof

18. The onus is upon the Appellant to demonstrate that the Commissioner’s decision notice involved an error of law as held in Forstater v Information Commissioner & Ministry of Justice & Judicial College [2023] UKUT 303 at [37-38]. Grounds of Appeal

19. The Appellant originally appealed on the basis that the Commissioner’s Decision Notice was wrong in relation to requests 4 and 7. Whilst some information was released under request 7, namely 63 blast reports, information redacted from those reports included a) the blast location, b) The number of holes blasted, c) The depth of the holes blasted, d) Burden, e) Spacing, f) Maximum Instantaneous Charge Weight (“MIC”), g) Total Explosive Charge Weight, h) Explosive Type, i) Initiation Blast Plan and j) Map of Blast Location. The Appellant’s original appeal was on the basis that all of this redacted information should be disclosed, however, the Appellant took further advice from its technical consultants as to the minimum information required to model the vibrations emitted from the Quarry and experienced at the Site as a result of each blast. Following this advice the Appellant confined its appeal in relation to request 7, to only the MIC and blast location information and no longer pursued the appeal on request 4.

20. Therefore, the only issue for the Tribunal to determine was whether the location of the blasts monitored and the MIC of the blasts monitored, which were redacted under request 7, should be disclosed.

21. This information has been withheld on the basis of the exception under regulation 12(5)(e).

22. The Appellant submits that that the Commissioner was incorrect to maintain that information requested should be withheld on the basis of the exception under regulation 12(5)(e) because; a) The information falls within regulation 12(9) such that regulation 12(5)(e) cannot be relied upon; b) In any event the information does not engage regulation 12(5)(e); and c) To any extent that the information does engage regulation 12(5)(e), the Commissioner erred in failing to recognise the limited extent to which it does, and the strong public interest in disclosing the information.

23. The Commissioner submits that the information withheld does not relate to emissions and therefore the information is exempt under Regulation 12(5)(e) EIR, as the information can be used to extrapolate the mineral being blasted and worked at the site, the amount of product being generated and sold and the specific locations within the quarry where mineral is being blasted and that disclosure of this confidential information could enable competitors to deduce the amount of product being generated and sold. That disclosure of the withheld information (individually and collectively) would, more likely than not, adversely affect the legitimate interests of the quarry site operator. The public interest does not favour disclosure. The Evidence and Submissions

24. The Tribunal considered an open bundle of 2237 pages. A closed bundle was provided which contained the blast reports in the open bundle with the redactions removed. Further evidence was provided from the Appellant before the hearing which consisted of explanatory blasting terms. At the hearing, the Tribunal heard from Counsel for the Appellant and 3 expert witnesses. The Commissioner did not attend and informed the Tribunal that they did not intend to attend. The Tribunal had the benefit of written submissions from the Commissioner, which set out their position in full. Whilst reference is not made to each individual piece of evidence considered in this judgement, we have carefully considered all of the evidence in the hearing bundle and the Appellant's oral evidence.

25. In accordance with Regulation 12(9), if environmental information to be disclosed relates to information on emissions, then WCC cannot refuse to disclose that information under Regulation 12(5)(e). Therefore, if the Appellant is correct and the information requested in the narrowed appeal relates to information on emissions, the information must be disclosed.

26. The Commissioner submits that the Appellant is interpreting the term ‘relates to’ too broadly, extending the scope of Regulation 12(9) to capture any information that can somehow be linked to the noise and vibration. The Commissioner considers a narrower approach is required and that, in line with GW , regulation 12(9) will only be relevant, if the information falls squarely within the definition of environmental information under Regulation 2(1)(b) because it is information on emissions. GW held that it is impossible to construe the words “information on emissions” in Regulation 12(9) as covering anything beyond information relating to the nature, extent etc of the emissions themselves. Therefore, it could not extend to legal advice as to the effect of legislation designed to protect the environment by regulating emissions. However, Regulation 12(9) does not apply only to “information on emissions”, but rather to information which “relates to information on emissions”, and the question is then as to the meaning and effect of the words “relates to”. In GW, when considering question of the meaning and effect of the words “relates to”, The UT found that the words “relates to information on emissions” must be construed with close reference to the definition of “environmental information in regulation 2(1). That definition includes, by virtue of limb (b), “information…on…factors, such as…emissions…”. Advice as to legal powers to control the emissions from the neighbours’ chimneys cannot properly be said to be information which “relates to information on emissions”… In substance the Advice did not “relate to” information as to the particular nature and extent of those emissions, but rather it related to the meaning and effect of the legislation”.

27. The Commissioner submits that ‘emissions’ “should be given its plain and natural meaning” as held in Ofcom v Information Commissioner & T-Mobile ( UK) Ltd EA/2006/0078 at [25 ]. The Shorter Oxford English Dictionary provides the following definitions of the words ‘emit’ and ‘emissions’: - ‘Emit’ – Give off, send out from oneself (something imponderable, as light, sound, scent, flames etc); discharge, exude (a fluid). ‘Emission’ 1. Something emitted; an emanation. 2. The action or an act of emitting”. Applying these definitions, the Commissioner’s guidance on emissions states that emissions for the purposes of regulation 12(9) EIR will generally be: • The by-product of an activity or process • That is added (or potentially added) to and affects the elements of the environment; and • Over which control is relinquished

28. The Commissioner does not dispute that sound and vibration can be an emission and are an emission from the quarry’s works. The question for the Tribunal in this appeal is whether the remainder of the withheld environmental information falling within the scope of part 7 of the request “relates to information on emissions” for the purposes of regulation 12(9) EIR.

29. The Commissioner concludes that on the facts of this case, the remaining withheld information falling within the scope of request 7 (information on blast events) is information regarding prior blast events which caused the emissions (noise and vibration) rather than “information relating to the nature and extent of the [noise and vibration] themselves”.

30. The Appellant submits that the Blast location and MIC are both information on the emissions themselves and so fall squarely within Regulation 12(9). The blast location is where the noise and vibration emission is emitted from. In the event that the blast location and MIC are not information on the emissions themselves, they relate to the nature and extent on the emissions themselves. Blast Location

31. The Commissioner submits that applying GW , information held on “blast location” would be information concerning the blasts, as opposed to information relating to the nature and extent of the noise and vibration which would be caused by such blasts at the location contained in the information.

32. The Appellant submits that the location of a blast is information as to where emissions have occurred. This is the “place” of the emission and the location of the blast informs where the emission originated. It is a description not only of one location where the emissions are, but also (normally) a description of where they are most concentrated. In Mr Clarke’s oral evidence to the Tribunal, he explained it is an essential component of the information which the blast reports cumulatively convey, as to the nature and extent of the vibration emission. Whilst blast location is part of an activity, it is the actual emitting activity. It is not something distinct from the emission in the sense contemplated by the EIR.

33. Further, the Commissioner’s approach to the status of information as to location is unsustainable when its wider implications are considered. If applied consistently it would exclude the location of all emissions from the scope of Regulation 12(9). So, for example, the location of an oil spill, or of a discharge to a river, or whether industrial airborne emissions occurred at one factory or another, would all be outside of the scope of Regulation 2(1)(b) and the scope of Regulation 12(9). It would undermine the protections of Regulation 12(9), by removing an essential component of the information required to understand where an emission extends to or where it will have effects. MIC

34. As regards the information held on the ‘Maximum Instantaneous Charge Weight’ or ‘MIC’ the Commissioner assumes that the Appellant is referring to the vibration and understands that blast-induced ground vibration can be measured in three different ways: as acceleration, velocity and displacement:- i) Acceleration is a measure of how quickly the point of interest changes velocity over a set period of time, usually expressed in millimetres per second per second (mm/s2) ii) Velocity is a measure of how far the point of interest moves in a set period of time, usually expressed in millimetres per second (mm/s). iii) Displacement is the distance that the point of interest moves from a certain reference point, usually expressed in millimetres (mm).

35. Methods for measuring vibration include using sensors, such as accelerometers, to measure e.g. the acceleration of a vibrating object, which can then be used to calculate the vibration amplitude and frequency.

36. The Commissioner understands that MIC refers to the total charge mass of explosives detonated at one instant during a blast. It is not, “a direct measure of the force of the vibration”. Whilst the Commissioner would accept that the extent of the ground vibration from blasting at any receptor can be influenced by factors including the MIC, other factors may also be influential such as the characteristics of the rock mass. As such, the MIC cannot be described as “a direct description of the emission itself”. As with the other information requested on the blast events, information on the MIC would be information on “activities affecting or likely to affect the elements and factors referred to in (a) and (b)” and would therefore fall within Regulation 2(1)(c), not 12(1)(b) EIR.

37. The Appellant submits that the MIC is the measurement of the intensity of the explosion. It is the charge weight of the explosive used. It is therefore used as a direct measurement of the force and scale of the emission, as a blast is itself an emission of gas, energy, vibration and noise. MIC therefore falls squarely within the categories of information on the intensity of the explosive force, which is itself a vibration and is essential to the nature of the emission, its quantity and its extent. The fact that other information, such as rock mass, might also be influential in determining the vibration experienced at a third location does not change the nature of the information contained in the MIC. The MIC is not an independent variable like the nature of the rock or the location of a receptor, it is the way in which the intensity of an emitting blast is measured. The MIC is itself a measurement of an emission of force at the source location. Conclusions

38. The Tribunal was persuaded by the expert evidence provided in the form of 5 witness statements, of which 3 gave oral witness evidence.

39. The Tribunal finds that the blast causes the emission, therefore, the blast location is part of the emission information, as this is where the emission originates from. We did not consider that the discharge point of a pollutant to a river or to the air, would not be information about the discharge. To say otherwise would be to also say that the location of an explosion which emitted a toxin into the atmosphere, is not information about the emission. Therefore, we find that the blast location is information on factors such as emissions in accordance with Regulation 2(b) and Regulation 12(9).

40. Similarly, if the blast is what emits the noise and vibration emission and the MIC is the measurement of the intensity of the maximum explosion, it follows that this information is information on the emission itself. The intensity of the noise and vibration emission is caused by the intensity of the explosion. Using the same example we considered for for blast location, the intensity of an explosion which emitted a toxin into the atmosphere is information about the emission, as it informs how much toxin has entered the atmosphere and at what rate. A small explosion may only release a small amount of toxin and at a slower rate. Therefore, we find that the blast location is information on factors such as emissions in accordance with Regulation 2(b) and Regulation 12(9).

41. However, even if we were wrong that the blast location and MIC are not emission information in and of themselves, for the purposes of reg 12(9)(b), it is information that directly relates to an emission, as it tells us where the emission originated and the intensity of the emission from the point of origination.

42. The Commissioner accepts that sound and vibrations being emitted from the quarry are an emission. Without the blast location or MIC, it is not possible to measure the vibration and sound emissions, in order to predict a vibration’s magnitude at various points. As we understand, the blast emits energy into its surroundings at a certain intensity. This vibrates not only the blast location but other locations around the blast, the energy dissipating and the effects receding as the vibration moves outwards. This is analogous to a point source pollutant discharge, where the intensity is determined by the concentration of the pollutant with the intensity dispersing and effects receding as the pollutant disperses outwards/downstream.

43. The blast location and MIC are both essential components of the emission data for interpreting vibration monitoring from fixed sensors. It is not information as held in GW , which advises or reports about the legislative effects of an emission, they are direct measurements of the emission itself. At the very minimum, it is data which relates to the emissions of sound and vibration in accordance with Regulation 12(9).

44. As we find that the blast location and MIC is information which falls within Regulation 12(9) as direct emission information or at the very least, information which relates to an emission, it cannot be withheld under the exemptions identified by the Commissioner in the Decision Notice under appeal. Regulation 12(9) EIR provides that where environmental information to be disclosed relates to information on emissions, a public authority shall not be entitled to refuse to disclose that information under an exception referred to in Regulation 12(5)(d) to (g).

45. Therefore, we did not go on to consider whether the information could be withheld under Regulation 12(5)(e) or whether the public interest weighed in favour of withholding the information.

46. For the reasons given above, the appeal is allowed and the information requested in the narrowed appeal falls to be disclosed under Regulation 12(9) EIR. Signed Judge Dwyer Date: 22/12/2025