On 23rd February 2015, the Upper Tribunal ruled that water companies are subject to the Environmental Information Regulations 2004 (EIR).
In Fish Legal v Information Commissioner and others  UKUT 0052 (AAC) the Tribunal, applying the previous ruling of the Court of Justice of the European Union (ECJ) from December 2013 (Fish Legal and Emily Shirley v Information Commissioner, United Utilities Water plc, Yorkshire Water Services Ltd, Southern Water Services Ltd), ruled that that water companies are covered by EIR by virtue of their “special powers”. However the Tribunal rejected an argument that they were public authorities by virtue of the fact that they are under the control of other public authorities, such as OFWAT or the Environment Agency.
It’s a complex and the lengthy judgment. Those advising water companies need to read (and re read) all sixty pages. It could have widespread implications for other private organisations that are running public services, such as the electricity, gas, rail and telecommunications industries. However, the Upper Tribunal refused to lay down general principles for when the EIR would apply to such bodies.
It could be that the next round of this lengthy battle will see the parties square up in the Court of Appeal. Then again Thames Water and United Utilities (one of the parties to the appeal) seem to have changed their websites following this ruling to say that they are now covered by EIR and advising what to do to make a request.
The CON29 Drainage and Water Enquiry provides information regarding water and sewerage services for prospective property buyers. This has been a good source of income for the water companies who enjoy an almost monopoly over the information. Could personal search companies now turn their attention to water companies and try to obtain access to this information with a view to providing their own water and drainage search reports? If the battle over Con29 Local Land Charges information held by councils is anything to go by (currently at the ECJ for a preliminary ruling), EIR geeks are in for a treat!
We will be discussing these and other recent EIR developments in our EIR workshops.