Response 3963469

Response to request for information

Reference

3963469

Response date

20 April 2026

Request

I am writing to request information under the Freedom of Information Act 2000 in relation to the Land East of Gamston / North of Tollerton Strategic Urban Extension (“SUE allocation”), including but not limited to planning applications 20/03244/OUT and 24/00347/HYBRID.

Please provide copies of all documents held by Rushcliffe Borough Council which contain, constitute, refer to, or summarise any of the following in connection with the SUE allocation or either of the above planning applications:

1. Cost plans - Any cost plan or cost plans, whether prepared internally or by an external consultant, including drafts, partial costings, preliminary estimates, or updated iterations.
2. Financial or development appraisals - Any:
   • financial appraisal
   • development appraisal
   • residual land value appraisal
   • costed development scenario
   • financial modelling or spreadsheet-based calculations prepared for, by, or supplied to Rushcliffe Borough Council.
3. Infrastructure cost estimates Any documents containing infrastructure cost schedules or estimates, 
   including:
   • highway and junction works
   • Section 106 contribution calculations
   • utilities or service upgrades
   • land remediation
   • abnormal development costs
   • transport or access infrastructure cost forecasts
4. Affordable housing assessments. Any document assessing:
   • the relationship between development costs and affordable housing delivery
   • the effect of infrastructure or abnormal costs on affordable housing provision
5. Consultant correspondence and reports. Any correspondence, reports, advice, or meeting notes from or to external consultants, including but not limited to:
   • Porter Planning Economics
   • BNP Paribas Real Estate
   • Arcadis
   • Ward Williams
   • Bruton Knowles
   • any quantity surveying, cost consultancy, or development economics firm relating to development costs, infrastructure costs, cost assumptions, financial appraisals, or costed delivery of the SUE allocation or its component applications.
6. Independent reviews or audits Any independent review, critique, audit, or appraisal of any of the documents described above, whether commissioned by Rushcliffe Borough Council or received from another public body or consultee. Clarification note the Council’s previous response to FOI 3671486, stating that no “viability assessment” had been submitted with the planning applications. For avoidance of doubt, this request:
   • does not seek documents titled “viability assessment”;
   • covers all cost-related documents of any type, regardless of the terminology used;
   • includes documents not formally submitted through the planning portal;
   • includes any documents held by officers, managers, external consultants, or partner bodies acting on behalf of the Council.

 

Response

Thank you for your request for information under the Freedom of Information Act 2000 (FOIA). You requested a substantial amount of information relating to the Land East of Gamston / North of Tollerton Strategic Urban Extension (“SUE allocation”), including but not limited to planning applications 20/03244/OUT and 24/00347/HYBRID. The request was made under 6 headings relating to cost-related documents of any type.

Your Request: Please provide copies of all documents held by Rushcliffe Borough Council which contain, constitute, refer to, or summarise any of the following in connection with the SUE allocation or either of the above planning applications:

1. Cost plans - Any cost plan or cost plans, whether prepared internally or by an external consultant, including drafts, partial costings, preliminary estimates, or updated iterations.
2. Financial or development appraisals - Any:
   • financial appraisal
   • development appraisal
   • residual land value appraisal
   • costed development scenario
   • financial modelling or spreadsheet-based calculations prepared for, by, or supplied to Rushcliffe Borough Council.
3. Infrastructure cost estimates Any documents containing infrastructure cost schedules or estimates, 
   including:
   • highway and junction works
   • Section 106 contribution calculations
   • utilities or service upgrades
   • land remediation
   • abnormal development costs
   • transport or access infrastructure cost forecasts
4. Affordable housing assessments. Any document assessing:
   • the relationship between development costs and affordable housing delivery
   • the effect of infrastructure or abnormal costs on affordable housing provision
5. Consultant correspondence and reports. Any correspondence, reports, advice, or meeting notes from or to external consultants, including but not limited to:
   • Porter Planning Economics
   • BNP Paribas Real Estate
   • Arcadis
   • Ward Williams
   • Bruton Knowles
   • any quantity surveying, cost consultancy, or development economics firm relating to development costs, infrastructure costs, cost assumptions, financial appraisals, or costed delivery of the SUE allocation or its component applications.
6. Independent reviews or audits Any independent review, critique, audit, or appraisal of any of the documents described above, whether commissioned by Rushcliffe Borough Council or received from another public body or consultee. Clarification note the Council’s previous response to FOI 3671486, stating that no “viability assessment” had been submitted with the planning applications. For avoidance of doubt, this request:
   • does not seek documents titled “viability assessment”;
   • covers all cost-related documents of any type, regardless of the terminology used;
   • includes documents not formally submitted through the planning portal;
   • includes any documents held by officers, managers, external consultants, or partner bodies acting on behalf of the Council.

Refusal Notice under section 12(1) FOIA – Cost Compliance Exceeds Appropriate Limit.

The right of access to information is modified by a number of provisions including section 12(1) of the FOIA which provides:
12. - (1) Section 1(1) does not oblige a public authority to comply with a request for information if the authority estimates that the cost of complying with the request would exceed the appropriate limit. The appropriate limit for local authorities has been set at £450 (equivalent to 18 hours of officer time charged at a flat rate of £25 per hours) by The Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulation 2004 SI 2004 No 3244. The following tasks can be taken into account when estimating officer time:

• determining whether you hold the information;
• locating that information or a document which may contain the information;
• retrieving the information or a document containing it; and
• extracting the information from a document containing it.

The Council estimates that it would take far in excess of 18 hours to deal with your request. This has been determined by considering the scope and nature of the information requested, which includes 7 separate aspects for a broad range of information and documents with no prescribed time periods. It is not possible to identify reasonable search criteria for much of the request.

Method of Calculation: The estimate of the officer time has been calculated based on the actual time taken to retrieve one set of documents related to an early cost analysis exercise relevant to question 1 of your request.  Locating and retrieving this information took a senior planning officer 2 hours. This was only part of the search that would need to be undertaken to comply with the cost plans request alone (question 1). For the full scope of the request, the search and retrieval of documents from all systems would, of necessity, be followed by a manual operation to separate disclosable financial information from that which is not relevant. By extrapolating this timescale by the scope of the search required, even if an arbitrary time limit of 6 years is applied, we estimate it would take in excess of 30 hours of officer time to comply with this request.

Aggregation of Requests: In determining the cost estimate of complying with a request, the Council is entitled to consider any similar request submitted by the same requester, or requester group, within 60 working days of the receipt of a current request. This is set out at Regulation 5 of The Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulation 2004 SI 2004 No 3244 which states: 5.-

(1) In circumstances in which this regulation applies, where two or more requests for information to which section 1(1) of the 2000 Act would, apart from the appropriate limit, to any extent apply, are made to a public authority- 

(a)by one person, or 
(b)by different persons who appear to the public authority to be acting in concert or in pursuance of a campaign, the estimated cost of complying with any of the requests is to be taken to be the total costs which may be taken into account by the authority, under regulation 4, of complying with all of them.

(2) This regulation applies in circumstances in which -

(a)the two or Estimating the cost of complying with a request – aggregation of related requests more requests referred to in paragraph (1) relate, to any extent, to the same or similar information, and 
(b)those requests are received by the public authority within any period of sixty consecutive working days.

(3) In this regulation, “working day” means any day other than a Saturday, a Sunday, Christmas Day, Good Friday or a day which is a bank holiday under the Banking and Financial Dealings Act 1971(1) in any part of the United Kingdom. 

While the cost of complying with the current request is estimated to exceed the appropriate limit, the Council wishes it to be noted that these costs can be aggregated with the cost of complying with your request of 4 February 2026 (FOI request 3899054).

Council’s Decision: The estimate of the cost of compliance has been formulated in line with Regulation 4 of the 2004 Regulations and the ICO guidance to public bodies on calculating estimates that are reasonable, sensible and realistic. The Council relies on this exemption and will not be making a disclosure of the information requested. Section 12 of FOIA provides an absolute exemption and no public interest test has been applied.   

Although the request of 19 March 2026 is made under the FOIA 2000, the Council has considered whether the Environmental Information Regulations 2004 (EIR) may apply. In line with ICO guidance (where different access regimes apply) the request was considered first under FOIA first and then the EIR implications were considered. If the EIR is applied, then the Council relies on the exception at EIR Regulation 12(4)(b) which states: 

12(4) …, a public authority may refuse to disclose information to the extent that - (b) the request for information is manifestly unreasonable.

The tests for EIR regulation 12(4)(b) relies on similar logic to the test for section 12 of the FOIA.  And the Council relies on similar reasoning in the application of this exception.  

Review

I write to request an internal review of the Council’s refusal notice received by email on the 20th of April 2026, in response to my Freedom of Information Act 2000 (FOIA) request, reference 3963469, received by the Council on the 19th of March 2026. The Council has refused to disclose the information requested, citing section 12(1) FOIA, with a further basis under Regulation 12(4)(b) of the Environmental Information Regulations 2004 (EIR). I contend that this refusal is not lawful or properly reasoned for the reasons set out below.

Ground 1: Internal inconsistency with the Council’s Notice of Extension of Time dated 17 April 2026. This is the most significant ground of review. On the 17th of April 2026, four days prior to issuing the refusal notice, the Council served a Notice of Extension of Time under section 10(3) FOIA in respect of this same request. That notice stated: “We confirm that records are held in the categories requested. However, more time is required to consider the application of the public interest test in relation to the different exemptions applicable to the categories of documents within your request.” The extension notice further identified the following exemptions as being under active consideration: sections 12, 14, 36, 39, 40, 41 and 43 FOIA. The refusal notice dated 20th of April 2026 is materially inconsistent with that earlier position in the following respects:

• The extension notice explicitly confirmed that records are held across all categories of the request. The refusal notice does not meaningfully reflect this confirmation and proceeds on the basis that the request could not be satisfied due to cost prior to substantive engagement.
• Several of the exemptions cited in the extension notice (including sections 36, 41 and 43) are content-based exemptions that presuppose that documents have been located and reviewed. While it is accepted that an authority may, in principle, rely on section 12 FOIA notwithstanding prior work, the Council’s own extension notice strongly suggests that document retrieval and review had already occurred to a significant extent. This calls into question the credibility and accuracy of the subsequent cost estimate.
• The extension notice explicitly stated that additional time was required to consider the public interest test. The refusal notice contains no public interest analysis whatsoever.
• Taken together, the two responses are internally inconsistent and cannot both accurately reflect the Council’s position. I request that the Council issue a response that properly reflects the position set out in the extension notice, including a substantive public interest test in respect of each category of documents confirmed as held. I also note an apparent inconsistency in the dating of the Council’s correspondence. The refusal notice is dated 14 April 2026, which predates both the Notice of Extension of Time issued on 17 April 2026 and the date on which I received the refusal (20 April 2026). This raises a material question as to when the refusal decision was in fact taken and whether the public interest test, which the Council stated on 17 April 2026 was still under consideration, was ever conducted contemporaneously with the refusal decision. I ask the Council to clarify the chronology of decision-making in this matter, including when the refusal decision was made and when (if at all) the public interest test was 
  considered. 

Ground 2: The information requested constitutes environmental information and EIR applies A substantial proportion of the information requested falls squarely within the definition of “environmental information” under Regulation 2(1) EIR, including but not limited to:

• land remediation costs (heading 3);
• abnormal development costs arising from site conditions, including known contamination (heading 3);
• infrastructure cost estimates for works directly affecting land, water, air, and the built environment (heading 3);
• financial appraisals and cost plans relating to a major development on a site with documented radioactive contamination and potential PFAS contamination, where remediation constitutes an environmental measure within Regulation 2(1)(c) and (d) (headings 1, 2, 4 and 6). The Council’s approach of addressing the request primarily under FOIA and then invoking an EIR exception by analogy, using the same reasoning and without a distinct public interest analysis, does not comply with the obligation to apply the EIR where it is engaged. This approach is contrary to established ICO guidance on the relationship 
  between the two statutory regimes. 

Ground 3: Failure to conduct a public interest test under EIR. If the Council maintains reliance on Regulation 12(4)(b) EIR (manifestly unreasonable), it is required to conduct a public interest test and to apply the presumption in favour of disclosure under Regulation 12(2). Unlike section 12 FOIA, Regulation 12(4)(b) is a qualified exception. The refusal notice contains no public interest analysis at all. This is a clear procedural failure, particularly given that:

• a detailed public interest case was set out in my original request;
• the Council’s extension notice expressly acknowledged the need to conduct a public interest test and sought additional time to do so; and
• the refusal notice was issued shortly thereafter without any such analysis. The public interest in disclosure is substantial. The SUE allocation is a major strategic development on a site with a documented history of radioactive contamination and recently proven PFAS (per-and polyfluoroalkyl substances) contamination. There are ongoing questions regarding the financial viability and deliverability of the scheme, an unresolved National Highways objection to highways modelling at the time of SPD adoption, and a clear public interest in understanding the cost assumptions underpinning the Council’s assessment of this development. The refusal notice identifies no countervailing public interest considerations. The refusal notice further states that the test under Regulation 12(4)(b) EIR “relies on similar logic” to section 12 FOIA and that the Council therefore relies on the same reasoning. This is incorrect in law. While both provisions may concern burdensome requests, Regulation 12(4)(b) EIR is a qualified exception that requires a case-specific assessment of whether the request is manifestly unreasonable, the application of the presumption in favour of disclosure under Regulation 12(2), and a balancing of competing public interests. Section 12 FOIA, by contrast, is a purely cost-based, absolute exemption. Treating the two tests as interchangeable, and relying on section 12 reasoning alone, is inconsistent with the EIR framework and Information Commissioner's (ICO) guidance and constitutes a failure to apply the correct statutory test. 

Ground 4: The section 12 cost estimate is not reasonable, sensible or realistic Even if section 12 FOIA were the appropriate regime (which is disputed), the cost estimate provided does not meet the ICO's requirement that estimates be reasonable, sensible and realistic. In particular: 

• The estimate is based on a single retrieval exercise for one subset of heading 1 and is then extrapolated arithmetically across six differently scoped and qualitatively distinct categories. This is not a genuine estimate but a multiplication exercise.
• Heading 5 of the request identifies specific consultants (Porter Planning Economics, BNP Paribas Real Estate, Arcadis, Ward Williams and Bruton Knowles). A targeted search by correspondent or consultant name is a defined and bounded task that could not credibly require disproportionate officer time.
• The Council has not explained why it could not comply with any discrete element of the request within the cost limit, nor has it identified which parts might be capable of partial disclosure.
• The substantial work already undertaken, as evidenced by the extension notice and the consideration of multiple content-based exemptions, further undermines the credibility of the cost estimate as an objective and independent assessment rather than one constructed retrospectively to justify refusal.

Ground 5: Unlawful aggregation with FOI request 3899054. The refusal notice states that this request has been aggregated with FOI request 3899054 under Regulation 5 of the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004. This aggregation is not lawful. Regulation 5(2)(a) permits aggregation only where requests relate, “to any extent, to the same or similar information”. FOI request 3899054, received on 4 February 2026, concerned housing delivery statistics, five-year housing land supply methodology, windfall allowances, and housing trajectories under the adopted Local Plan and the emerging Greater Nottingham Strategic Plan. That request was answered fully and substantively on 25 February 2026, with no 
exemptions claimed and no cost concerns raised. The response was largely met by signposting to published Local Plan Monitoring Reports and supporting methodology documents, indicating that it did not impose any material burden on the authority for the purposes of Regulation 4 cost calculations. By contrast, the present request concerns cost plans, financial appraisals, infrastructure cost estimates, development economics, and consultant correspondence relating to deliverability. These are categorically different classes of information, with no overlap in subject matter. Furthermore, FOI request 3899054 had been answered and closed approximately six weeks before the present request was submitted. Regulation 5 is intended to prevent 
the artificial division of a single, large request and cannot properly be used to aggregate a completed, unrelated request retrospectively. 

Ground 6: Failure to provide a schedule of withheld documents My original request expressly asked that, if any information were withheld, the Council provide a schedule of withheld documents including title, date, author or consultant, and a brief description of contents. The Council has not done so. While section 12 FOIA removes the obligation to comply with the request itself, the duty 
under section 16 FOIA to provide reasonable advice and assistance remains. In circumstances where the Council has confirmed that records are held and has already engaged with them sufficiently to consider multiple potential exemptions, the provision of a basic document schedule would represent proportionate and reasonable advice and assistance, enabling me to submit a refined request.

I respectfully ask the Council to: 

1. Provide a response consistent with the Notice of Extension of Time dated 17 April 2026, including a substantive public interest test in respect of each category of documents confirmed as held; 
2. Reconsider whether EIR applies to all or part of the information requested and, if so, conduct a lawful public interest test in accordance with Regulation 12(2) EIR; 
3. Provide a revised and properly evidenced cost estimate, should reliance on section 12 FOIA be maintained, supported by specific calculations for each category rather than extrapolation from a single retrieval exercise; 
4. Confirm, with reasons, the basis on which FOI request 3899054 is considered to relate to the same or similar information for the purposes of Regulation 5 aggregation; and 
5. Provide a schedule of withheld documents as requested in my original request, including title, date, author or consultant, and a brief description of contents. 

I reserve the right to refer this matter to the Information Commissioner’s Office if I remain dissatisfied following the internal review. Given the live nature of associated proceedings concerning this development, I would be grateful for a response at the earliest opportunity. 

Response

You requested a review of our response of 20 April 2026 to your initial request for information. Following an internal review, some of the grounds raised in your request are upheld.  
 
On Monday 20 April 2026, we sent you a refusal notice under section 12(1) of FOIA. This followed a notice seeking an extension, sent on Friday 17 April 2026. That notice was sent because there was concern that the person qualified to make decisions on exemptions and public interest tests would be unable to consider the case before the statutory response deadline expired. Fortunately, the case was reviewed, a decision was made, and the response was sent within the statutory period. The decision letter sent on Monday 20 April 2026 therefore superseded the notice of Friday 17 April 2026. 

Our internal review. Your points have now been reviewed, and the outcomes are noted below:

Ground 1 – Internal inconsistency with the Notice of Extension of Time dated 17 April 2026. This ground is partially upheld. The notice issued on 17 April 2026 was sent because there were concerns that the officer qualified to determine the application of exemptions and the public interest might not be available to consider the request within the statutory deadline. On review, it is found that the decision letter of 20 April 2026 should have made clear that it superseded that notice. The omission of any reference in the decision letter of 20 April 2026 to the earlier notice was capable of causing confusion, and this has been recorded 
as a learning point. The response decision of 20 April 2026 was dated 14 April 2026. This ground is upheld. The decision letter was prepared by overtyping an earlier letter and, through error, the date was not amended. This typographical error led the recipient to conecture that the decision had been made on 14 April 2026 and therefore pre-dated the notice of 17 April 2026.  
 
Ground 2 - The information requested constitutes environmental information and EIR applies. A substantial proportion of the information requested falls squarely within the definition of “environmental information” under Regulation 2(1) EIR, including 
but not limited to:

• • land remediation costs (heading 3);
  • abnormal development costs arising from site conditions, including known contamination (heading 3); 
  • infrastructure cost estimates for works directly affecting land, water, air, and the built environment (heading 3); and
  • financial appraisals and cost plans relating to a major development on a site with documented radioactive contamination and potential PFAS contamination, where remediation constitutes an environmental measure within Regulation 2(1)(c) and (d) (headings 1, 2, 4 and 6). The Council’s approach of addressing the request primarily under FOIA and then invoking an EIR exception by analogy, using the same reasoning and without a distinct public interest analysis, does not comply with the obligation to apply the EIR where it is engaged. This approach is contrary to established ICO guidance on the relationship between the two statutory regimes.  
      
    This ground has been reviewed and it is accepted that part of the information requested relates to environmental matters and, to that extent, the EIR would be the more appropriate access regime. This was acknowledged in the decision 
    letter of 20 April 2026, which stated:  

Although the request of 19 March 2026 is made under FOIA 2000, the Council considered whether the Environmental Information Regulations 2004 (EIR) may apply. In line with ICO guidance (where different access regimes apply) the request was considered first under FOIA and then the EIR implications were considered. If the EIR is applied, then the Council relies on the exception at EIR Regulation 12(4)(b) which states:

12(4) …, a public authority may refuse to disclose information to the extent that –  
(b) the request for information is manifestly unreasonable  

The test for EIR regulation 12(4)(b) relies on similar logic to the test for section 12 of FOIA, and the Council relies on similar reasoning in applying this exception. This ground is partially upheld. ICO guidance indicates that, in the case of mixed requests, FOIA should be applied initially and, where environmental information is engaged, section 39 of FOIA should be 
applied.  The environmental information can then  be considered under the EIR.  

In this case, determining which parts of the request fell to be considered under the EIR and which under FOIA would itself have required substantial work to identify what information was held and then to locate, retrieve and extract that information. It was concluded that this preliminary exercise and subsequent scrutiny, could not be undertaken within the cost limit 
under FOIA. That assessment was based on the time taken to retrieve sample documents, as set out in the decision letter of 20 April 2026.

The decision letter should, however, have stated more clearly that, if the work of locating and retrieving the relevant documents could have been undertaken so as to separate the applicable regimes, the EIR would then have been applied to the environmental information. It was correct to state that, where the exception in regulation 12(4)(b) of the EIR is considered, a public interest test is required, and that broadly similar factors would in any event be relevant to that assessment. However, the letter should have made the contingent nature of that position clearer by stating that, if the EIR had been applied, the Council would have relied on regulation 12(4)(b), rather than stating that it relied on that exception if the EIR applied. This part of the letter would also have been better placed within the section 16 ‘Advice and Assistance’ section rather than the main body of the decision letter. The decision to apply section 12 of FOIA to the request as a whole is affirmed. The acknowledgement that certain categories of documents would more appropriately fall to be considered under the EIR is also affirmed. However, following review, it is concluded that the decision letter should have expressed that position with greater clarity.  
 
Ground 3: Failure to conduct a public interest test under EIR  On review, it is accepted that, if the EIR had been applied to the documents relating to environmental matters, a public interest test would have been required before reliance could be placed on the ‘manifestly unreasonable’ exception in regulation 12(4)(b). That exception will commonly apply where compliance with a request would involve disproportionate cost or an unreasonable diversion of resources. However, applying the ICO’s recommended approach of considering the request first under FOIA, it was concluded that the exercise required to separate the documents into the relevant regimes would itself have exceeded the cost limit. The references in the decision letter to the EIR exception and the public interest test were therefore explanatory only, and that passage would have been clearer had it 
appeared in the ‘Advice and Assistance’ section.  
 
Ground 4: The section 12 cost estimate is not reasonable, sensible or realistic. The estimate of the likely cost of compliance was based on the time taken by an officer to retrieve one category of documents relating to a cost exercise undertaken at an early stage in the planning process. This is a method recommended by the ICO for estimating the cost of compliance. The officer who commenced the disclosure exercise recorded the time taken to comply with a proportion of the request as a whole. This was not an exercise undertaken solely for the purpose of refusing the request. Advice and assistance was provided as to how the scope of the request might be reduced. This ground is not upheld.  
  
Ground 5: Unlawful aggregation with FOI request 3899054. Aggregation was relied upon because of the number of FOI requests made in connection with the same planning process. Your point that the most recent FOI request concerned different aspects of that process is accepted, and this ground is upheld. Although the underlying planning matter was the same, the particular aspect in respect of which information was sought was different.  
 
Ground 6: Failure to provide a schedule of withheld documents.  As set out above, compiling a schedule of withheld documents would itself fall within the scope of the request and is considered to involve excessive cost. A schedule of withheld documents would be more relevant where category-based exemptions had been applied. Advice and assistance has been provided as to how the scope of the request might be reduced.  

1. The decision letter of 20 April 2026 superseded the notice of 17 April 2026. The Council was able to complete its review and issue its response within the statutory timeframe, and no extension of time was required.  Compliance with the earlier notice is not required. 
2. It is acknowledged that the EIR applies to environmental information. However, the process recommended by the ICO for separating environmental and non-environmental information could not be completed within the applicable cost limit. 
3. There is no basis on the information available to conclude that the cost estimate was incorrect. The scope of the request was such that compliance would have required a disproportionate allocation of Council resources. That assessment was carried out using a method recommended by the ICO.  
4. Your ground concerning aggregation with FOI request 3899054 is upheld. 
5. Providing a schedule of withheld documents would require searches and retrieval work that would exceed the applicable cost 
   limit. Advice and assistance has been provided to enable you to reduce the scope of the request.