When is a "private company" a "public authority" under the Environmental Information Regulations 2004 ("EIR") - update

The EIR imposes a duty on public authorities to provide the public with access to environmental information that they hold. Public authorities are subject to the disclosure duties under the EIR and these are defined in regulation 2(2).

Private companies can be "public authorities" under the EIR if they are:

• entrusted by law with the performance of services in the public interest
• vested with special powers beyond those that exist in private law that apply to any other company or person

Update on recent case law

In January 2020, E.ON UK plc was found to be a public authority under the EIR due to the company being:

• entrusted with the performance of a public service (electricity and gas) by statute
• responsible for the generation and supply of energy - this constituted a service in the public interest and had a clear environmental impact
• afforded “special powers” that went beyond the normal rules of private law

In February 2020, Heathrow Airport Limited ("HAL") was also found to be a "public authority" under the EIR due to its sufficient connection between HAL's functions and those of the state:

• HAL operated the airport, which was its main function. The airport's importance to the UK's economy and population meant that this was a public interest service
• The operation of any airport had a clear impact on the environment
• HAL was afforded "special powers" including to acquire land by compulsory purchase, certain permitted development rights and to control land as an airport operator

It is therefore established that a private company can be a public authority under the EIR and therefore subject to disclosure of environmental information (see Fish Legal v Information Commissioner and others [2015] UKUT 52 (AAC)).

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If you require any further information please contact a member of our Environmental Team.