Hinkley Point C subsidiary must comply with environmental information rules, UTT rules

In NNB Generation Company (HPC) Ltd v Information Commissioner & Anor [2026] UKUT 241 (AAC), Upper Tribunal Judge Jacobs dismissed an appeal by NNB Generation Company (HPC) Ltd against a First-tier Tribunal (FTT) decision.

The case arose after NNB Generation Company, the EDF subsidiary responsible for the power station known as ‘Hinkley Point C’, refused an information request from Fish Legal in March 2024. It refused to process the request under the Environmental Information Regulations (EIR) because it did not consider itself a public authority.

Fish Legal appealed the refusal to the Information Commissioner, which found that NNB was a public authority under regulation 2(2)(c) of the Regulations.

The FTT later confirmed that decision, leading NNB to appeal to the UTT on three grounds.

Following a hearing in April 2026, Upper Tribunal Judge Jacobs ultimately dismissed the appeal, holding that the First-tier Tribunal had not made an error on a point of law.

One of the main thrusts of the appeal centred on the FTT's decision that NNB was vested with special powers.

NNB has a range of powers under its Development Consent Order and electricity licence, including powers of compulsory acquisition, entry, street works and works affecting watercourses, as well as harbour authority powers.

Jacobs J said the question was whether HPC had powers which were “not powers available to HPC as a matter of general private law”. Having those powers conferred “a practical advantage” on the company should it wish to use them, making them special powers.

This aspect of the judgment relied on the test for special powers set out by the Upper Tribunal in Fish Legal in 2015. That case concerned the application of the Environmental Information Regulations to bodies carrying out public administrative functions, including the question of whether they were vested with special powers.

Zoe Wedderburn-Day, Head of Policy and Strategy at Fish Legal, said: “The new government wants essential infrastructure built more quickly. Much of that programme will depend on private companies using powers granted to them by the state.

“Those companies cannot be given exceptional public powers and then close the door when people ask how the powers are being used. Public confidence depends on meaningful transparency and accountability."

“Fish Legal established that basic legal principle for privatised water companies more than 10 years ago. The Upper Tribunal has now confirmed its relevance to the private company building Hinkley Point C.”

HPC must now respond to Fish Legal’s EIR or rely on specific EIR exemptions. The deadline to response is 20 August, with any application for permission to appeal due by 16 August.

Adam Carey