Order
of the Upper Tribunal
(Administrative Appeals Chamber)
The following questions are referred to the Court of Justice
of the European Union for a preliminary ruling:
Article 2.2(b) of Directive
2003/4/EC
1. In considering whether a
natural or legal person is one ‘performing public administrative functions
under national law’, is the applicable law and analysis purely a national one?
2. If it is not, what EU law
criteria may or may not be used to determine whether:
(i) the function in question
is in substance a ‘public administrative’ one;
(ii) national law has in
substance vested such function in that person?
Article 2.2(c) of Directive
2003/4/EC
3. What is meant by a person
being ‘under the control of’ a body or person falling within Article 2.2(a) or
(b)? In particular, what is the nature, form and degree of control required and
what criteria may or may not be used to identify such control?
4. Is an ‘emanation of the
State’ (under paragraph 20 of the judgment in Foster v British Gas plc
(Case C-188/89)) necessarily a person caught by Article 2.2(c)?
Article 2.2(b) and (c)
5. Where a person falls
within either provision in respect of some of its functions, responsibilities
or services, are its obligations to provide environmental information confined
to the information relevant to those functions, responsibilities or services or
do they extend to all environmental information held for any purpose?
Reasons
for Reference
A.
The issue
1.
The issue that I have to decide is whether water companies under English
law are public authorities for the purposes of the disclosure of environmental
information. In particular, I need to identify the criteria by reference to
which a body is classified for that purpose. Although the issue arises in
respect of water companies, it is relevant to other privatised, regulated industries
that deliver a once publicly owned service: electricity, gas, rail and telecoms.
2.
The issue is identical in each of the cases I have referred. The parties
agree that there is no material difference between them. However, the cases
offer different perspectives. Fish Legal represents anglers who collectively
have nationwide interests in water quality, whereas Mrs Shirley is an
individual concerned about the environment of her home and village.
B.
The cases
3.
Fish Legal is the legal arm of the Angling Trust. On 12 August 2009, it
wrote to United Utilities Water plc and Yorkshire Water Services Ltd asking for
information relating to discharges, clean-up operations, and emergency
overflow. Mrs Shirley is a private individual. She wrote to Southern Water
Services Ltd asking for information relating to sewerage capacity for a
planning proposal in her village. Fish Legal and Mrs Shirley accept that the
companies did eventually provide all the information they requested, although
not within the time limits that would apply if the companies were public
authorities. However, that does not dispose of these cases. The issue of
whether the water companies were under a duty to provide the information is
still a live one as it determines whether they were in breach of the legal duty
to provide the information in accordance with the domestic legislation and in
particular within the time limits set by that legislation. In addition, the
issue is relevant to other cases concerning water companies that are stayed
before the First-tier Tribunal and to other industries.
4.
Fish Legal and Mrs Shirley applied to the Information Commissioner for a
decision under section 50(1) of the Freedom of Information Act 2000, as
modified by regulation 18 of the Environmental Information Regulations 2004.
The Commissioner decided that the companies were not public authorities for the
purposes of the Regulations and therefore declined to adjudicate on the
complaints. The Commissioner did, however, indicate that he would not seek to
challenge the First-tier Tribunal’s jurisdiction to consider whether the
companies were public authorities. Fish Legal and Mrs Shirley exercised their
rights to appeal to the First-tier Tribunal, where the cases were stayed to
await the decision of the Upper Tribunal in Smartsource v Information
Commissioner and a Group of 19 additional parties [2010] UKUT 415 (AAC).
Following that decision, the First-tier Tribunal dismissed the appeals, but
gave permission to appeal to the Upper Tribunal.
5.
I directed an oral hearing of the preliminary issue whether any
questions should be referred to the Court of Justice of the European Union and,
if so, in what terms. That hearing took place on 10 January 2012. Fish Legal
instructed David Wolfe of counsel. Mrs Shirley instructed Robert McCracken QC,
who appeared pro bono. The Information Commissioner instructed Rachel Kamm of
counsel. Thomas de la Mare of counsel appeared for the water companies, instructed
by Osborne Clarke solicitors. I am grateful to all counsel for their written
and oral arguments and for their co-operative and constructive approach to the
proceedings.
C.
The environmental legislation
6.
The domestic legislation is contained in the Environmental Information
Regulations 2004 (SI No 3391). Regulation 2(2) defines ‘public authority’:
(2) Subject to
paragraph (3), “public authority” means—
(a) government
departments;
(b) any other public authority as defined in section 3(1) of the
Act, disregarding for this purpose the exceptions in paragraph 6 of Schedule 1
to the Act, but excluding—
(i) any body or office-holder listed in Schedule 1 to the Act only
in relation to information of a specified description; or
(ii) any person
designated by Order under section 5 of the Act;
(c) any other body or other person, that carries out functions of
public administration; or
(d) any other body or other person, that is under the control of a
person falling within sub-paragraphs (a), (b) or (c) and—
(i) has public
responsibilities relating to the environment;
(ii) exercises
functions of a public nature relating to the environment; or
(iii) provides
public services relating to the environment.
The Act referred to is the Freedom of Information Act 2000.
Paragraph (3) applies only to Scotland.
7.
These Regulations implement Directive 2003/4/EC. The definition of
‘public authority’ reflects Article 2.2 of the Directive:
‘Public authority’ shall mean:
(a) government
or other public administration, including public advisory bodies, at national,
regional or local level;
(b) any
natural or legal person performing public administrative functions under
national law, including specific duties, activities or services in relation to
the environment; and
(c) 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).
Member States may provide that
this definition shall not include bodies or institutions when acting in a
judicial or legislative capacity. If their constitutional provisions at the
date of adoption of this Directive make no provision for a review procedure
within the meaning of Article 6, Member States may exclude those bodies or
institutions from that definition.
8.
The definitions in the Regulations and the Directive are so similar that
it is inconceivable that I could give them different meanings, especially in
view of my duty to interpret the Regulations in order to comply with the
Directive.
9.
The definition in the Directive in turn reflects Article 2.2 of the
Aarhus Convention On Access To Information, Public Participation In
Decision-Making And Access To Justice In Environmental Matters 1998:
‘Public authority’ means:
(a) Government
at national, regional and other level;
(b) Natural
or legal persons performing public administrative functions under national law,
including specific duties, activities or services in relation to the
environment;
(c) Any
other natural or legal persons having public responsibilities or functions, or
providing public services, in relation to the environment, under the control of
a body or person falling within subparagraphs (a) or (b) above;
(d) The
institutions of any regional economic integration organization referred to in
article 17 which is a Party to this Convention.
This definition does not include
bodies or institutions acting in a judicial or legislative capacity.
D.
The enforcement and appeal provisions
10. A
person may request environmental information from a public authority, which
must make it available ‘as soon as possible and no later than 20 working days
after the date of receipt of the request’: regulation 5(1) and (2). The authority
has power to extend that time to 40 working days ‘if it reasonably believes
that the complexity and volume of the information requested means that it is impracticable
either to comply with the request within the earlier period or to make a
decision to refuse to do so’: regulation 7(1). Those provisions are in Part 2
of the Regulations. It if denies being a public authority, the person
requesting the information may apply to the Information Commissioner under
section 50(1) of the Freedom of Information Act 2000, as modified by regulation
18 of the 2004 Regulations, for a decision whether the request has been complied
with in accordance with the requirements of Parts 2 and 3 of the Regulations.
11. There
is an appeal to the First-tier Tribunal against the Information Commissioner’s
decision notice under section 57 and that tribunal must decide whether the
notice is ‘in accordance with the law’ under section 58(1)(a). An appeal lies
against that tribunal’s decision on an issue of law to the Upper Tribunal under
section 11 of the Tribunals, Courts and Enforcement Act 2007.
12. There
is no dispute that the issue whether a person is a public authority is a matter
within the jurisdiction of the First-tier and Upper Tribunals. I regard it is
as a precedent fact to be decided by the tribunal. That approach is consistent
with the decision of the House of Lords in BBC v Sugar [2009] 1 WLR 430.
E.
The parties’ arguments in outline
Fish Legal
13. Fish
Legal argued that the questions of whether a natural or legal person is one
‘performing public administrative functions under national law’ for the purposes
of the Environmental Information Directive 2003/4/EC, and/or whether they are
‘under the control of’ a body or person falling within Article 2.2(a) or (b) of
that Directive, are matters of EU law, not simply a national question.
14. In
answering these questions, the court must give effect to the wide purpose of
the Directive as well as the precautionary and preventative principles which
underpin EU environment law generally. The court must also give effect to the
principles of access to information and public participation arising from the Aarhus
Convention.
15. Applying
that approach, the water and sewerage companies in the present case plainly
perform public administrative functions for the purpose of the Directive, at
least in part. It follows that they are public authorities at least in relation
to the functions in question.
16. Likewise,
the degree and nature of the control exercised over the water and sewerage
companies by bodies or persons falling within Article 2.2(a) or (b) is
considerable, and sufficient for them to be public authorities in relation to
the activities they undertake under that control.
Mrs Shirley
17. Mrs
Shirley’s case was that the water and sewerage companies are public authorities
for the purpose of the Environmental Information Directive 2003/4/EC.
18. The
degree of supervision and control by the state of the performance of their
functions is considerable.
19. The
purpose of the Directive is such that, interpreted
(a) in
accordance with fundamental principles, such as the precautionary and
preventive principles, of the law relating to the environment recognised in TEU
and TFEU and
(b) in
accordance with the principle of participation in environmental decision making
of the Aarhus Convention to which the EU is a party,
it should apply to bodies performing their functions in
accordance with the legislative scheme established for their sectors in English
legislation.
20. Further
it would be inconsistent with the broad scope and wide purpose of the Directive
if bodies which provide services affecting the environment and which are subject to the direct effect of unimplemented or
inadequately implemented directives were not subject to the Directive.
The Information Commissioner
21. The
Information Commissioner’s primary submission was that the Upper Tribunal’s
decision in Smartsource was correctly decided and that the water
companies were not public authorities for the purposes of the Directive. The Information
Commissioner relied on the reasons given in the Smartsource judgment.
22. First,
applying the multi-factorial approach set out in Smartsource, the Information
Commissioner submitted that the water companies were not bodies carrying out
functions of public administration. The Information Commissioner acknowledged
that this approach could lead to different bodies being public authorities for
the purposes of the Directive in different parts of the EU, or even of the UK,
depending on whether (and, if so, how) the functions in question had been privatised
in that area. However, the Information Commissioner submitted that this was
entirely consistent with the Convention Guidance which envisaged that ‘What is
considered a public function under national law may differ from country to
country’.
23. Secondly,
the Information Commissioner submitted that the water companies were not bodies
under the control of a specified person. As the Upper Tribunal held in Smartsource,
‘Control must go further than the functions associated with regulation. ... it
connotes command or compulsion, and the power to determine not just ends but
the means to achieve those ends. There is, in our view, a step change between
the degree of regulation to which the water companies are subjected and control’.
24. The
Information Commissioner submitted in the alternative (if the Upper Tribunal
were to find that Smartsource was not correctly decided) that the hybrid
argument was correct and that insofar as the regulatory functions discharged by
the water companies could be said to amount to functions of public administration,
this had the effect of creating a situation in which the water companies were
public authorities only insofar as they were discharging those functions. In
support of this argument, the Information Commissioner relied on the fact that
the Directive (and also the Aarhus Convention and accompanying guidance) expressly
envisage that some functions of a public authority are not relevant functions
for the purposes of the Directive, in that the Directive excluded those functions
where the public authority was acting in a judicial or legislative capacity.
The water companies
25. The
water companies submitted that they were not ‘public authorities’ for the
purposes of the domestic legislation, the Directive and the Convention. The
question was recently considered by the Upper Tribunal in Smartsource.
In that case, the Upper Tribunal heard detailed arguments on both sides and
undertook a comprehensive review of the Regulations, Directive and Convention.
It considered a range of relevant material, including the Aarhus Convention
Implementation Guide and factors relevant to the status of water companies and
the regulation of the water industry in England and Wales. The Upper Tribunal
decided that the water companies in England and Wales were not ‘public
authorities’ and that decision was correct.
F.
The questions referred
26. Questions
1 and 2 ask about the meaning of ‘public administrative functions’. Does this
have an autonomous meaning under the Directive? I notice that, although the
Directive applies throughout the EU, it implements an international Convention
with wider application. I also note that the definition refers expressly to
domestic law, although that may merely set up a contrast between bodies
operating under law (Article 2.2(b)) and those operating under control (Article
2.2(c)). If this concept has an autonomous meaning, what criteria are relevant?
I have found it difficult to understand how some of the factors taken into
account in Smartsource are relevant.
27. Question
3 asks about the meaning of ‘control’. Must the control be legal and enforced
through mechanisms set out in legislation or practical and effected through
indirect forms of influence such as the control of appointments? Does control
cover the ends to be achieved, the means of achieving them or both? How does
control differ, if at all, from regulation?
28. I
have asked question 4 without much enthusiasm. Some, but not all, of the
parties asked me to ask it. At best, it seems to me to insert an unnecessary
issue between the definition in the Directive and the facts to which the
definition has to be applied. At worst, it risks substituting a test for the
one laid down in the definition. However, from a practical point of view, it is
possible that classification as an emanation of the State might assist in
applying the definition in the context of a particular body.
29. Question
5 asks about the scope of a public authority’s duty in respect of environmental
information that it holds in respect of functions that are outside the scope of
the definition in Article 2.2(b) and (c). It was referred to in Smartsource
as the hybrid issue.
G.
The legal structure of the water industry
30. This
section has been written by the parties in order to give the Court some
idea of the nature of the legal structure of the water industry in England and Wales.
Background
31. In
the middle of the 20th century the majority of water and sewerage services were
in public ownership with provision by local government authorities (often
acting cooperatively through ‘Joint Boards’) under the Public Health Act 1936.
32. The
Water Act 1973 transferred, in general, responsibility for these services to
regional water authorities. Some services were provided by statutory companies
acting on their behalf.
33. The
Water Act 1989 privatised the water industry in England and Wales with effect from 1 September 1989, introducing largely the structure which applies
today. At privatisation the functions, powers, property and other assets of the
regional water authorities were divided between the National Rivers Authority
(now, after the Environment Act 1995, the Environment Agency (‘EA’)) and the
new privatised companies, which were in future to provide water and sewerage
services in England and Wales (together the ‘companies’, each a ‘company’). The
Authority became the principal water quality regulator, and received the water
authorities’ environmental regulatory functions, including the management and
licensing of water resources and pollution control and prevention. The
companies received inter alia the networks of pipes and reservoirs,
sewers and sewage treatment works which formed the relevant physical systems. Shares
in the companies were then made available on the open market in a public offering.
34. The
water authorities in Scotland and Northern Ireland remain in public ownership,
answerable to central (Northern Ireland) or devolved (Scotland) government and with directors appointed by central/devolved government. The Scottish
and Northern Irish water authorities are not regulated by OFWAT.
The Water Industry Act 1991
35. The
legislation governing water management in England and Wales was consolidated and amended in 1991. One of the principal Acts which now provides the
statutory framework for the water industry is the Water Industry Act 1991 (‘WIA
1991’). It is split into eight parts, each addressing different aspects of the
organization of water and sewerage services.
·
Pt I establishes the Water Services Regulation Authority
(commonly known as ‘OFWAT’) (s 1A). OFWAT has primary responsibility for
supervising water and sewerage undertakers. OFWAT has replaced the Director
General for Water Services. It is described on its website as ‘a
non-ministerial government department… independent of government and the
[companies], although...
directly accountable to Parliament …’
·
Pt II provides for the appointment and supervision of water and
sewerage undertakers. Appointment (and the imposition of conditions on the
same) is a function undertaken solely by the Secretary of State, but with
supervision often jointly undertaken by the Secretary of State and OFWAT.
·
Pt III provides the framework for the supply of water by water
undertakers and licensed suppliers, including the rights and duties of water
undertakers.
·
Pt IV provides the framework for the provision of sewerage
services by sewerage undertakers.
·
Pt V contains the financial provisions. Specifically, it
addresses the charges that can be made by water and sewerage undertakers for
their services.
·
Pt VI relates to powers and works, and to the statutory
protection enjoyed by water and sewerage undertakers' works and apparatus. It
sets out the statutory powers available to water or sewerage undertakers.
·
Pt VII contains the ‘information provisions’ applying, variously,
to OFWAT, water and sewerage undertakers and others.
·
Pt VIII contains miscellaneous provisions.
36. Under
the WIA 1991 (s 6) regime only companies appointed by the Secretary of State or
(now) OFWAT, as the water supply and/or sewerage undertaker for an area of
England and Wales may provide these services.
The companies’ corporate structure
and governance
37. The
companies have been appointed as water and sewerage undertakers in their
respective areas. They were, following privatisation, set up as limited liability
companies (with shares either held privately or listed on a stock exchange).
Only a limited company may be appointed as a water or sewerage undertaker (s 6(5)).
The companies are run by boards of directors, responsible to the companies’
shareholders. The companies are run on normal commercial principles, as set out
in their memoranda and articles of association, with the aim of generating
profits for distribution to shareholders as dividends and to allow reinvestment
in the business.
38. The
companies are subject to the rules that bind all other public limited companies
or limited companies (Licence condition F6A.5A), including compliance with the
Combined Code on Corporate Governance contained within the Listing Rules of the
Financial Services Authority.
39. The
companies receive no public subsidy, whether in the form of capital or income.
Neither borrowing nor investment decisions are directly dictated by government
or any other public body. Nor is any of the companies' borrowing backed by the
State. Accordingly, each company's funds derive from these sources:
·
charges to customers;
·
sale of shares and other rights issues;
·
borrowing through the capital markets at normal commercial rates
(either through direct loans or the issue of corporate bonds); and
·
other commercial activities such as sale of land and other assets.
40. Each
company has an Instrument of Appointment (a ‘Licence’) running from 1 September
1989. The Licence contains the terms of the appointment of each company as a
water and/or sewerage undertaker. The Licence not only imposes the general
statutory duties and grants the general statutory powers but also includes
other conditions (s 11). These may include the payment of sums of money to the Secretary
of State. Some of the important conditions are summarized in the judgement of
Blackburne J in Griffiths v SWWS at paragraphs 95-112 (see
Appendix 2).
41. The
Licence can be terminated only on 25 years’ notice (Licence condition O as
amended), with reasons (s 195A(1)(c)). The Licence may only be modified by
OFWAT (1) with the relevant company's consent, or (2), without consent, after a
Competition Commission report (social security 13, 16 and 17). It may be
amended to replace an outgoing company with a new one under what are known as
“inset appointments” (s 7).
42. Compliance
with the terms of the Licence is enforced by the Secretary of State or OFWAT,
who may require that an undertaker carries out specific actions or measures
(social security 18-20). Part II Chapter III WIA 1991 now also provides for
financial penalties. Part II WIA 1991 also restricts the operation of the
ordinary provisions for the dissolution of the companies.
Functions of OFWAT
43. The
companies are effectively monopoly suppliers to most users of their services in
their areas of appointment. Therefore, the regulatory system seeks to
scrutinise such monopoly prices through what is widely called (by OFWAT and
industry operators) ‘comparative competition’, that is a system under which the
prices of the companies are benchmarked against each other to assess how each
company's performance compares with that of the most efficient companies. This
occurs during the five yearly price reviews described below. On the basis of
this assessment, the maximum which each company can charge customers and the
means by which their charges are levied is determined by OFWAT for five year
periods(Pt V, especially s 143(6)). The
current one is the fifth such period and covers 2010 to 2015.
44. Every
five years the companies submit draft asset management plans (also known as
‘business plans’) which set out details of their desired outputs such as
capital investment programmes. Such a plan must be one which, according to the
OFWAT website, ‘optimises and exposes the costs and benefits of the plan at the
overall and component level’. OFWAT provisionally determines which elements of
the plans are in its view appropriate and produces drafts of what it will approve
for the relevant period (e.g. Periodic Review 2009 ‘PR09’ for the period
2010-2015). After a process of consultation the companies submit final business
plans and OFWAT determines the maximum charges that may be levied on the basis
of its final judgement of matters such as the appropriate capital
investment programme. This final determination sets the maximum that the
companies may charge their customers to finance the desired outputs contained
in their business plans. The companies are at liberty to seek to achieve
additional outputs. However, these would have to be self-funded as the
companies are not permitted to charge more than the maximum set by OFWAT. For a
diagrammatic representation of this process, see Appendix 3.
45. OFWAT
is required to exercise its regulatory functions so as to ensure that the
companies are able (in particular, by ensuring reasonable returns on their
capital) to finance the proper carrying out of their functions as water and
sewerage undertakers (s 2(2A)(c)). This requires that OFWAT assesses whether
the companies’ return on capital is reasonable and whether they have sufficient
commercial freedom to be able to access, in the marketplace, sufficient finance
(in terms of quantity and price) to carry out their functions.
Powers and Duties of Water and Sewerage
Undertakers
46. Water
undertakers ("WUs") have duties under WIA 1991:
·
‘to develop and maintain an efficient and economical system of
water supply within its area, and (ii) to ensure that that all such
arrangements have been made -
(i)
for providing supplies of water to premises in that area and for making
such supplies available to persons who demand them; and
(ii) for
maintaining, improving and extending the water undertaker’s water mains and
other pipes,
as are necessary for securing
that the undertaker is and continues to be able to meet its obligations under
this Part.’ (s 37(2A)(c))
·
In addition, the legislation imposes on WUs a range of duties in
relation to the provision and maintenance of the water supply and the water
supply system.
47.
The ability of WUs to disconnect customers from the water supply
is limited and subject to strict procedural requirements breach of which is a
criminal offence.
48.
The
Water Act 2003 imposed a duty on water undertakers to produce Water Resource
Management Plans and Drought Plans (‘WRMPs’ and ‘DPs’). WRMPs are documents providing
details, over a 25 year forward period (see Water Resources Management Plan
Direction 2007, Dir. 2), of the WU’s plans for managing and developing its
water resources, so as to enable it to continue to meet its supply and other
obligations under WIA 1991.
49. Sewerage
undertakers have duties under WIA 1991:
·
‘to provide, improve and extend such a system of public sewers
(whether inside its area or elsewhere) and so to cleanse and maintain those
sewers… as to ensure that that area is and continues to be effectually drained;
and
to make provision for the
emptying of those sewers and such further provision (whether inside its area or
elsewhere) as is necessary from time to time for effectually dealing, by means
of sewage disposal works or otherwise, with the contents of those sewers.’;
·
to attain certain standards of performance in accordance with
regulations: see the Water Supply and Sewerage Services (Customer Service
Standards) Regulations 2008 (as amended). These include regulations in relation
to the flooding of third party land (see Reg 12). There are related obligations
to furnish both the OFWAT and customers with information about levels of
performance (ss 95A and 96A respectively);
·
to provide sewers in certain locations where there are, or are
likely to be, adverse effects on the environment or amenity if a public sewer
is not provided (s 101A); and
·
to accept communication with its public sewers from the drains
and private sewers of premises (s 106), although this duty is qualified and
subject to the companies recovering their costs of allowing any connection from
those wishing to connect. All sewerage services delivered to the customer
through that communication are then charged for by the sewerage undertaker in
the usual way.
50. Water
and sewerage undertakers are given a range of powers exceeding those normally
enjoyed by other private companies, some of them shared with others. These
include powers of:
·
Compulsory purchase of land, and rights in and over land (including
by the creation of new rights) (ss 155, 168 and 171);
·
Bye law making over waterways (and land held with them) in their ownership
(s 157 and Sch 10) for the purposes of preserving order and preventing damage
on, or undue interference with, that land (s 157 and Schedule 10);
·
Placing, altering and maintaining pipes in both streets and other
land (ss 158 and 159);
·
Discharging water (subject to certain reasonable restrictions)
into any available watercourses, including those owned by others where such discharge
might normally constitute a trespass, wherever exercising the powers referred
to in subsection (1) (s 165);
·
(In the case of water undertakers) to impose temporary hosepipe
bans restricting usage of the water supply by the public (s 76), and either to
cut off supply to premises or serve a notice requiring a person to take steps
to ensure suspected damage, contamination, waste, misuse or undue consumption
that might be caused to an undertaker’s property and/or the water supply ceases
or does not occur (s 76); and
·
Entry over third party land for purposes related to the carrying
out of works (s 168, subject, potentially, to the payment of compensation under
Sch 6 Pt II [11]) and for sewerage purposes (s 171, in respect of which no
compensation is available under Sch 6 Pt I.
And (in the case of sewerage undertakers):
·
Adoption of all or part of sewers, lateral drains and sewage
disposal works in its area (save those completed before 1 October 1937, i.e.
pre-Public Health Act 1936) (s 102).
·
To alter the drainage system of its area in the event that
drainage from any premises is not adapted to the general system or is otherwise
objectionable, by the provision of new drains/sewers and the closure/filling up
of the existing drain, sewer or cesspool (s 113); and
·
To close or restrict the use of public sewers (s 116).
51. Water
and sewerage undertakers may not dispose of any operational land without the
consent of the Secretary of State (ss 156 and 219).
Other Sources of Information
52. The
companies provide some information on a voluntary basis.
53. The
companies must also provide some information through other legislation, for
example to comply with their data protection requirements and corporate
reporting requirements. Those companies which are publicly listed make Stock
Exchange announcements in the normal manner. Those companies which are not
publicly listed public limited companies must under Licence Condition F publish
accounting information about their interim and final results as if they were
listed. As with other holders of licence to extract and discharge water to/from
watercourses, the companies provide information to the EA if the EA requires
them so to do.
54. The
companies must, as sewerage undertakers, keep a public register (s 196) with
details of trade effluent discharge consents and agreements.
55. OFWAT
must keep a register of all appointments as undertakers and conditions attached
thereto.
56. The
Secretary of State may publish such information as he chooses about the
operations of water undertakers. OFWAT has powers to publish such information
to customers (s 201).
57. It
is, in general, a criminal offence, punishable by 2 years imprisonment, to
disclose information obtained under the WIA 1991 about the operations of particular
undertakers if they do not consent (s 206, noting in particular s 206(8)).
58. A
public register must also be kept by the EA of details of applications and consents
for abstraction and impounding licences. The WIA 1991 s 189(4) does not require
that the register be available for inspection free of charge (unlike that
described below under WRA 1991 s 190(2)(a)).
59. Public
registers must be kept by the EA of all applications for discharge permits,
grants of permit, and conditions attached thereto (Environmental Permitting (England and Wales) Regulations 2010, (‘EPEWR 2010’) Reg 46 and Schedule 24), and water quality
objectives (ss 190-191). Details of samples, and analysis thereof, taken by the
EA of discharges and receiving waters must be included, as must any such
information actually supplied by the companies to the EA. Information about samples
must be placed on the register within 2 months. Information may not be included
without the consent of the companies if it is considered commercially confidential
(s 191B and EPEWR 2010 Regs 48-56).
60. The
Freedom of Information Act 2000 requires much information actually held by
public bodies, such as the EA, OFWAT and the Secretary of State, to be made
available on request. It does not purport to transpose Directive 2003/4/EC (the
‘EID’). It is in some respects narrower in scope. It does not, for example, exclude
from exemption information about emissions (as does the EID and the Environmental
Information Regulations). Information may be refused on grounds of commercial
confidentiality. There is no right to information which has been supplied on a
voluntary basis to the public body.
61. The
Kiev Protocol to the Aarhus Convention requires the establishment of a pollution
release and transfer register (maintained by the EA), accessible to the public,
containing information on the release to air, water or land of 86 substances by
8 industry sectors (including wastewater treatment).
H.
Appendices
62. At
the suggestion of the parties, I have attached a copy of the following:
A: the Smartsource
decision;
B: Marcic v Thames Water
Utilities Ltd [2004] 2 AC 42;
C: Griffin v South West Water Services Ltd [1995] IRLR 15, paragraphs 95 to 112
and 120 to 123 - since this decision, water companies have become subject to
more State-imposed duties.
D: Diagrammatic
representation of investment and price determination by OFWAT
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Signed on original
on 21 May 2012
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Edward Jacobs
Upper Tribunal Judge
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