The Environmental Information Regulations 2004 (“EIR”) compel public authorities to disclose requested environmental information, large volumes of which are held by water companies. Although in force since 1992 and then replaced by the current EIR in 2005, the position has been unclear on whether water companies are subject to the EIR although many companies have voluntarily provided a great deal of requested environmental information.

Fish Legal and Mrs Shirley between them challenged three water companies (United Utilities, Yorkshire Water and Southern Water) on this point and the long running campaign (often referred to for ease as the “Fish Legal” case) was decided earlier this year.

Even though the Information Commissioner and First-tier Tribunal agreed with the water companies, the Upper Tribunal (which is the highest UK tribunal for determining issues relating to the EIRs), having consulted the European Court of Justice, did not. The outcome was that the three water and sewerage companies concerned were found to be EIR public authorities.

The EU Environmental Information Directive imposes the obligations of disclosure upon a “public authority” - which Article 2 (2) defines as:

  1. government or other public administration...
  2. any natural or legal person performing public administrative functions under national Law, [including specific duties, activities or services in relation to the environment];
  3. any natural or legal person having public responsibilities or functions, or providing public services [relating to the environment] under the control of a body or person falling within (a) or (b).

The European Court's judgment found that entities are "under control" of a government body (etc) for the purposes of limb (c) of the "public authority" test, "if they do not determine in a genuinely autonomous manner the way in which they provide [their public] services since a public authority [covered by limbs (a) or (b) of the public authority test] is in a position to exert decisive influence on their action..." and confirmed that the manner in which that influence is exercised is irrelevant.

The judgement also considered what is meant by "a natural or legal person performing "public administration functions" under national law" (Article 2 (2) (b)). It concluded that a body will be performing those functions if it has vested in it (under national law) "special powers beyond those which result from the normal rules applicable in relations between persons governed by private law".

From Europe the case was then sent back to the Upper Tribunal in the UK to consider the position under national law accordingly and come to a decision on those facts. Having done so, the Tribunal concluded that water and sewerage companies should be considered public authorities under the EIR by virtue of their “special powers”, not because they are under State control.

What are “special powers”?

The term “special powers” is perhaps not as exciting as it initially sounds. Essentially the Tribunal felt that to be carrying out public administration, the water and sewerage companies need to have the ability to do something, conferred by law, above and beyond those abilities which “result from the normal rules applicable in relations between persons governed by private law”, something that makes them different from and gives them a practical advantage compared to all those other companies governed by private law. One special power would be sufficient.

Examples in this case given by the Tribunal of special powers under water industry legislation (that are different to any powers available under private law) are the ability to:

  • compulsorily purchase any land anywhere in England and Wales (even though this right may be rarely used);
  • make byelaws in respect of the public use of their land or waterways;
  • lay pipes in land other than the street;
  • access another’s land, including to carry out surveys or borings on the land;
  • impose a hosepipe ban.

Implications for water and sewerage companies

The three affected water companies must comply with the EIR unless they successfully appeal the decision. Multiple and ongoing requests under the EIR should now be expected. All other water companies have identical special powers and will inevitably be caught by this judgment.

Since EIR requests may be addressed to any person at an EIR public authority and may be verbal or in writing, raising awareness and having suitable systems in place to recognise and deal with requests within the required timescale of 20 working days will be key. If not already recognised as such, record management and retention will also become vital issues.