Simon Trahair-Davies, partner at Stephens Scown, considers a recent environmental case involving the Duchy of Cornwall.

 

Anyone operating in the mining sector knows full well how important environmental regulations can be – and the tricky compliance issues they can often throw up.

This was well illustrated recently in an interesting case which, though not directly relevant to mining, nevertheless highlights the extent to which environmental legislation can create challenges for organisations of all sorts.

The case involved the Duchy of Cornwall – Prince Charles’ private estate. The long running saga started back to 2008 when Michael Bruton, an environmental campaigner, requested information from the Duchy about the environmental impact of one of its oyster farms in Port Navas, Cornwall. Mr Bruton challenged the cultivation of non-native oysters at the farm, which is in an official conservation zone.

The Duchy declined to give the information on the basis that it was not a public authority and was therefore not obliged to release it under the Environmental Information Regulations 2004 (“the EIR”). The EIR implemented the EU Directive on Public Access to Environmental Information (Council Directive 2003/4/EEC) (the Directive) which requires public authorities to make available to the public information relating to the environment.

These Regulations can be of interest and concern to companies and organisations that provide confidential information to public authorities. For instance the case of Staffordshire County Council v IC & Sibelco [2010] UKFTT 573 (GRC), (EA/2010/0015) related to confidential sales and reserve figures provided by Sibelco to Staffordshire County Council on a confidential basis that the Council was then asked under the EIR to disclose to the public. Sibelco was eventually successful in upholding the confidentiality of this information.

In the Duchy case the UK Information Commissioner upheld the refusal but the first-tier Tribunal (Information Rights) ruled in 2011 that the Duchy was a public authority and so ruled that it should release the information. The Duchy duly appealed to the Upper Tribunal (UT) but the case was stayed until there had been a ruling on the appropriate test for ‘public authorities’ in another case, Fish Legal vs Information Commissioner and others.

The UT’s decision, finally handed down at the end of March, ruled that the Duchy was not a public authority.

The UT held that the decision of the Court of Justice of the European Union in Fish Legal meant that, for an entity to be a public authority under EIR regulation 2(2)(c):

  • It must be a legal person governed by public or private law
  • The legal regime applicable to it entrusts it with the performance of services of public interest in the environmental field
  • It must have been vested with special powers

 

It also added that:

  • The special powers must be vested in the entity by the legal regime applicable to that entity
  • It is the vesting of powers that turns a service of public interest into an administrative function that counts in determining whether the entity is an administrative (and so a public) authority

 

With regard to the main issues, the UT held that:

  • The Duchy has neither legal personality, nor its own separate identity, unless the description “the Duchy” is used to mean the Duke himself. It is the Duke who is a public authority in his role as harbour authority for St Marys on the Isles of Scilly, not the Duchy.  Any duty to disclose environmental information under the EIR as a result of his status as a harbour authority extends only to environmental information he holds as the harbour authority, and not otherwise
  • The Duke’s constitutional status (for example, as Heir to the Throne or as holder of bona vacantia in Cornwall) does not of itself constitute functions of public administration for the purposes of the EIR
  • Neither the Duke nor the Duchy perform public administrative functions in other respects: they do not have special powers, using the Fish Legal test

 

As well as being an interesting case in its own right, it may also be of particular interest to those bodies that do not themselves have legal personality but which carry on public (or quasi public) administrative functions, such as a harbour authority, or which relate to environmental information.

 

Simon Trahair-Davies is a partner, and head of the mining and minerals team at Stephens Scown LLP in the UK. The firm has more than 70 years’ experience representing mining and minerals clients and its specialist team has recently been recognised once again by independent guides to the law Legal 500 and Chambers. Simon can be contacted on 01872 265100 or email solicitors@stephens-scown.co.uk.