NNB Generation Company (HPC) Ltd v Information Commissioner & Anor

Under the Environmental Information Regulations 2004, public-authority status is assessed functionally and in the circumstances as a whole. The characteristics described in Fish Legal v Information Commissioner—entrustment to perform services of public interest and special powers beyond ordinary private-law rules—guide the inquiry but do not replace the statutory definition. Entrustment does not require a duty to exercise a power, and the activity need not be inherently State-related. Powers obtained by application may qualify, and a power may both mitigate a disadvantage and confer a practical advantage. The assessment does not require a separate cross-check stage; relevant factors must be considered together.

NNB Generation Company (HPC) Ltd is a private company responsible for constructing Hinkley Point C nuclear power station. It holds a development consent order and licences to construct and operate a nuclear facility and to generate electricity. Fish Legal requested environmental information about fish protection measures. HPC refused the request on the ground that it was not a public authority under regulation 2(2)(c) of the Environmental Information Regulations 2004.

The Information Commissioner treated HPC as a public authority, and the First-tier Tribunal (General Regulatory Chamber) upheld that decision in EA/2024/0393 on 4 June 2025. HPC appealed to the Upper Tribunal, arguing that the tribunal had misapplied the requirements of entrustment and special powers and had failed to conduct a distinct cross-check. The issue was whether the First-tier Tribunal’s decision involved an error of law under section 12 of the Tribunals, Courts and Enforcement Act 2007.

1. Appeal dismissed. The First-tier Tribunal made no error of law in finding that HPC was a public authority under regulation 2(2)(c) of the Environmental Information Regulations 2004. Its decision stands.
2. Regulation 2(2)(c) must be interpreted consistently with Article 2(2)(b) of the Directive 2003/4/EC on public access to environmental information. The description in Fish Legal v Information Commissioner [2014] QB 521 is not a freestanding definition. It describes characteristics that assist in applying the statutory definition. Those characteristics must be considered together and in the particular case: [9]–[10].
3. Entrustment does not require a duty to perform the function. Nor does a permission become incapable of entrustment merely because the company may decide whether to exercise it by reference to commercial interests. That argument wrongly assumed that public administration must follow a particular model of the State. Building and operating a nuclear power station may be a public administrative function even though it is not inherently State-related: [14]–[20].
4. The possibility that many bodies might satisfy the entrustment criterion did not establish an error. Entrustment is only one aspect of the inquiry; special powers must also be considered. The factors are assessed together and in the circumstances of the case: [21]–[24].
5. Following the Upper Tribunal’s binding decision in Fish Legal v Information Commissioner [2015] UKUT 52 (AAC), special powers are assessed by asking whether they confer a practical advantage relative to private-law rules. The comparison is with powers that result from those rules, not powers that might be obtained by exercising them. The First-tier Tribunal was entitled to find that HPC’s listed development consent order and licence powers were not available under general private law and conferred a practical advantage. It did not matter that HPC had applied for the powers or might choose not to exercise them: [26]–[36].
6. A provision may mitigate a disadvantage and still confer a practical advantage. The First-tier Tribunal was not required to decide each listed power through a binary choice between those descriptions. The observation in Information Commissioner v Poplar Housing and Regeneration Community Association and People’s Information Centre [2020] UKUT (AAC) was contextual; it did not establish a separate category excluding powers that mitigate disadvantage: [37]–[42].
7. The reference in Cross v Information Commissioner [2016] UKUT 153 (AAC) to a cross-check described the need to assess relevant factors in combination. It did not create a separate legal stage. The First-tier Tribunal had considered the evidence in the round, and its findings on entrustment and special powers left only one proper conclusion: [43]–[52].

1. Upper Tribunal (Administrative Appeals Chamber): On 26 June 2026, held that the First-tier Tribunal’s decision involved no error of law under section 12 of the Tribunals, Courts and Enforcement Act 2007; the decision stands. [2026] UKUT 241 (AAC)
2. First-tier Tribunal (General Regulatory Chamber): On 4 June 2025, upheld the Information Commissioner’s decision that HPC was a public authority under regulation 2(2)(c) of the Environmental Information Regulations 2004. Reference EA/2024/0393.