Paul Thomas Phillips v The Information Commissioner & Anor [2026] UKFTT 151 (GRC)

[2026] UKFTT 00151 (GRC)Case Reference: FT/EA/2025/0164
First-tier Tribunal
(General Regulatory Chamber)
Date 30 January 2026
Information Rights
Heard by Cloud Video Platform
Before
TRIBUNAL JUDGE SHENAZ MUZAFFERTRIBUNAL MEMBER EMMA YATESTRIBUNAL MEMBER ANNE CHAFER
Between
PAUL THOMAS PHILLIPSAppellantTHE INFORMATION COMMISSIONERRespondentSUMMERTOWN & ST. MARGARET’S NEIGHBOURHOOD FORUMRespondentDecision: The appeal is allowed as the Decision Notice contains an error of law. The Tribunal makes a Substituted Decision Notice as follows:
[1]The Tribunal finds that the Summertown & St. Margaret’s Neighbourhood Forum is a “public authority” pursuant to regulation 2(2)(c) of the Environmental Information Regulations 2004.[2]The Summertown & St. Margaret’s Neighbourhood Forum must take the following step within 28 days of promulgation of this Decision: a. Issue a formal response to the request made by the Appellant dated 14 November 2024, having regard to the determination that they are a “public authority” for the purposes of the Environmental Information Regulations 2004.[3]Any failure to abide by the terms of the Tribunal’s Substituted Decision Notice may amount to contempt which may, on application, be certified to the Upper Tribunal. REASONS[1]This is an appeal against a decision of the Information Commissioner (the “Commissioner”) dated 10 March 2025, reference IC-366591-G1Y3 (the “Decision Notice”).[2]The hearing took place via CVP on Friday 16 January 2026. The Appellant attended and was represented by Mr Philip Petchey (counsel). The First Respondent was represented by Mr Charlie Coverman (counsel). The Second Respondent was represented by Mr Christopher Pownall, Chair of the Summertown & St. Margaret’s Neighbourhood Forum.

Factual background

[3]The appeal relates to the application of the Environmental Information Regulations 2004 (“the EIR”). It concerns information requested from the Summertown & St. Margaret’s Neighbourhood Forum (“the Forum”).

The request and response

[4]The Appellant made the request which is the subject of this appeal on 14 November 2024 in writing as follows: “FOI Request: Please could you provide any monitoring or assessments in terms of 1) need 2) actions taken 3) actions planned to be taken, in your possession in respect of any of the Equality Act 2010 protected characteristics and Public Sector Equality Duty”.[5]The Forum acknowledged the request via email on 16 November 2024. The Forum responded to the request on 10 December 2024 in writing as follows: “From our review of the legislation, we understand that the Neighbourhood Forum is not subject to such requests under the Freedom of Information Act 2000. We also note your reference to Public Sector Equality Duty under the Equality Act 2010, and understand that this, too, does not apply to Neighbourhood Fora”.[6]The Appellant responded to the Forum in writing on 11 December 2024. He highlighted the Commissioner’s online guidance concerning which entities fall within the scope of either the Freedom of Information Act 2000 or the EIR, with specific reference to regulation 2(2)(c) [of the EIR]. He then stated that “But I think in the first place my appropriate response is to ask if you can explain your decision on SSTMNF not being covered [by] PSED nor FOI/EIR provisions more fully and review your earlier decision on this”.[7]The Forum responded to the Appellant in writing on 08 January 2025 as follows:
“If you consult the Freedom of Information Act you will see that neighbourhood forums are not listed in the schedule as public authorities subject to the Act. The test for the EIRs is different, as you pointed out, but again the neighbourhood forum is not a public authority. It has no legal personality, no employees, no premises and no regular income. It is totally reliant on volunteers, and in any event it does not gather environmental information”
.

The complaint

[8]The Appellant lodged a complaint with the Commissioner on 09 January 2025, stating that he disagreed with the Forum’s refusal to provide the information that he had requested from them. He also stated:
“I accept that FOI does not apply but believe under the information request comes within the scope of environmental information as defined in the EIR and the Forum is subject to the EIR in this respect. …. I believe that the information requested comes under the broad definition of Environmental Information as defined in Res 2(1)(a) to 2(1)(f) and domestic and retained EU law. I believe that the EIR apply to Summertown and St Margaret’s Neighbourhood Forum as EIR apply under Reg 2(2) to any body or person, that carries out functions of public administration. The Neighbourhood Forum being charged with producing the Neighbourhood Plan made under the Localism Act 2011 and carrying out duties in relation to the Plan carried out functions of public administration”
.

Decision notice

[9]The Commissioner’s decision was that the Forum is not a public authority for the purposes of the EIR.[10]In summary, the reasons for the Commissioner’s decision were:a. With reference to regulation 2(2) of the EIR, the Forum was neither a government department and nor had it been designated as a public authority under the Freedom of Information Act 2000;b. The Forum did not have direct decision-making powers or regulatory authority. Its activities were advisory and consultative rather than administrative;c. Neighbourhood forums are not automatically classified as public authorities unless they are explicitly designated as such or perform public administrative functions;d. The Commissioner therefore considered whether the Forum carries out functions of public administration. He noted that there were two tests to satisfy – firstly, whether the Forum had been entrusted in law with functions relating to the environment and, if so, secondly whether the Forum had special powers to carry out those functions;e. In relation to the issue of entrustment, the Commissioner stated that, in order to be classified as a public authority, “an organisation must have been entrusted in law with functions relating to the environment. In practical terms, this usually means that the state must have passed a law, requiring the organisation to carry out certain functions it would more usually carry out itself”;f. The Commissioner noted that the complainant (now Appellant) had argued that the Forum had been charged with producing the Neighbourhood Plan under the Localism Act 2011. However, the Commissioner also noted that whilst “the Localism Act 2011 places a legal duty on local planning authorities, in this case Oxford City Council, to support and advise groups wanting to do neighbourhood planning, the act does not require the organisation, in this case the Forum, to carry out certain functions it would usually carry out itself. As the act does not require the Forum to carry out these functions instead of Oxford City Council, the Commissioner does not consider that the Forum has been entrusted in law with functions relating to the environment. The first test is therefore not met”;g. The Commissioner concluded that the Forum did not carry out functions of public administration and was therefore not a public authority for the purposes of the EIR.[11]Whilst the Commissioner did not feel that it was necessary to make a determination as to whether the requested information was or was not environmental, he did note that any information held regarding monitoring or assessments in relation to actions taken/planned to be taken would be likely to be environmental information.

Grounds of appeal

[12]The Appellant lodged his appeal on 06 April 2025.[13]The Grounds of Appeal were, in essence, that:a. The Commissioner erred in concluding that the Forum was not a public authority for the purposes of the EIR;b. The Forum was an organisation exercising functions of public administration and was therefore covered by the EIR, “most likely under Regulation 2(2)(c)”;c. The Commissioner’s guidance on its website headed “Who is a public authority under regulation 2(2)(c)?” outlined the relevant test, namely the dual functional test as cited in the CJEU’s decision in Fish Legal;d. The preparation of a development plan which affects the way that land is regulated and developed within the terms of the Town and Country Planning Act 1990 would appear to be a public function. In conclusion, “It seems that preparing a development plan is carrying on activity on behalf of the State and which is not similar in kind to the services that could be performed by private persons and that within the meaning of the EIR and the EU Directive Neighbourhood Forums are exercising functions of public administration”.

The response of the Commissioner

[14]The Commissioner lodged his response on 07 August 2025, in which he did not oppose the appeal.[15]After considering the provisions of the European Council Directive 2003/4/EC on Public Access to Environmental Information (“the Directive”), the United Nations Economic Commission for Europe’s Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matter 1998 (“the Aarhus Convention”), the EIR, and the CJEU decision in Fish Legal and another v Information Commissioner and others (C-279/12) [2014] QB 521 (“Fish Legal CJEU”),the Commissioner concluded that the Tribunal would need to consider the following questions when determining whether the Forum was a public authority for the purposes of regulation 2(2)(c) of the EIR:a. Whether the Forum is “a body or other person” for the purpose of regulation 2(2)(c) of the EIR. If so;b. Whether the Forum has been entrusted, under the legal regime which is applicable to it, with the performance of services of public interest. If so;c. Whether the Forum has, for the above purpose, been vested with ‘special powers’. If so, the Forum would therefore be a public authority for the purpose of regulation 2(2)(c).[16]In considering whether the Forum was “a body or other person”, the Commissioner concluded that, consistent with the wording of the Directive and the Aarhus Convention, the term “body or other person” in regulation 2(2)(c) of the EIR must be read as referring to natural or legal persons. He noted that a neighbourhood forum, normally comprising of a group of volunteer individuals (in other words, natural persons) coming together for a common purpose, was typically an unincorporated association. He made specific reference to Aireborough Neighbourhood Development Forum v Leeds City Council [2020] EWHC 45 (Admin) in which it had been held that neighbourhood forums were regarded as unincorporated associations.[17]The Commissioner also relied upon Schedule 1 of the Interpretation Act 1978, in which ““person” includes a body of persons corporate or unincorporate”.[18]Whilst the Commissioner accepted that the Forum has no legal personality, he concluded that the Forum – as a group or body of natural persons – could still be a “public authority” for the purposes of the EIR (subject to the dual functional test).[19]The Commissioner interpreted the requirement for an ‘entrustment’ as meaning that the entity in question must have been empowered with carrying out functions of public administration by virtue of a legal basis in a piece of legislation to which the entity is subject. The Commissioner relied on the applicable legislation, namely section 61F(3) of the Town and Country Planning Act 1990 (as amended by the Localism Act 2011), which stated that “For the purposes of a neighbourhood development order, an organisation or body is authorised to act in relation to a neighbourhood area if it is designated by a local planning authority as a neighbourhood forum for that area”. The Commissioner concluded that the use of the words “designated” in conjunction with “authorised to act” were clear indicators of entrustment under the applicable law.[20]The Commissioner was not satisfied that the absence of a duty to act was fatal to the concept of entrustment. He noted that the entrustment limb of the test referred to “empowerment”, rather than placing a positive duty on a body to perform functions of public administration.[21]The Commissioner took the view that the Forum had been designated to “initiate a process for the purpose of requiring a local planning authority in England to make a neighbourhood development plan” (section 38A of the Planning and Compulsory Purchase Act 2004), which was clearly a service in the public interest.[22]The Commissioner therefore concluded that, on reflection, “the Forum has been entrusted with the performance of a service in the public interest for the purpose of the relevant test under Fish Legal CJEU”.[23]The Commissioner then moved to consider whether the Forum has been ‘vested with special powers’ for the purposes of performing the services with which it had been entrusted. He specifically considered whether the Forum has an ability that confers on it a practical advantage relative to the rules of private law, and noted an example that was given in his own guidance of a special power, namely “Special levels of influence or advisory roles, i.e. the ability - given to you by statute – to formally advise other public authorities or influence public policy…..the fact that the role has been conferred on you through legal provisions is what sets you apart from other entities having the ability to lobby or influence government through formal or informal means”.[24]The Commissioner concluded that the Forum had two statutory ‘powers’ – firstly, the ‘power’ to influence Oxford City Council policy on development by making a proposal for a neighbourhood development plan which the City Council would be obliged to make (subject to certain requirements) and secondly the ‘power’ to initiate a process for the purpose of requiring a local planning authority to make a neighbourhood development order. The Commissioner noted that neither ‘power’ would be available under private law, and therefore concluded that the Forum was vested with special powers for the purposes of performing the services with which it had been entrusted.[25]The Commissioner concluded his response by inviting the Tribunal to allow the appeal and to issue a substituted Decision Notice with a finding that the Forum is a public authority for the purposes of the EIR.

The response of the Forum

[26]The Forum was formally joined to these proceedings on 08 August 2025.[27]The Forum lodged its response on 08 September 2025 in which it opposed the appeal and asserted that the initial Decision Notice was correct. The Forum also stated that the proceedings were “misconceived and an inappropriate use of the Tribunal’s time, as the Forum does not hold the information sought by the appellant”.[28]The Forum stated that there are in the region of 1200 neighbourhood plans adopted nationwide, and therefore that the appeal raised a point of law of considerable importance.[29]The Forum agreed that they were properly classified as an unincorporated association in law, with no independent legal personality. Whilst they recognised that Aireborough Neighbourhood Development Forum v Leeds City Council [2020] EWHC 45 (Admin) established that a neighbourhood forum could bring judicial review proceedings, the Forum argued that they were not aware of any authority that would permit public law proceedings to be brought against a neighbourhood forum, which would presumably be necessary for the Forum to be subject to public law obligations like the EIR.[30]The Forum stated that they have no premises and no postal/fixed address for service of requests or proceedings concerning environmental information. It has no employees, operating instead via volunteers. The Forum has no power to retrieve information from the private email accounts or computers of its volunteers, who do most of the day-to-day work of the Forum using those means. The Forum also noted that they have no regular public funding, and so would not be able to engage experts to monitor or manage requests for environmental information. Taking those points together, the Forum stated that: “It seems bizarre to describe the Forum as a public or administrative authority when it is not established, funded or staffed to operate as such by law. We note that Parliament did not consider it appropriate to make neighbourhood fora subject to the Freedom of Information Act. An instructive comparison may be drawn with Parish Councils, which also engage in neighbourhood planning. It is only possible to establish a neighbourhood forum in an area where there is not already a Town or Parish Council. These Councils are subject to FOIA and EIR, but have a clerk, an address, regular income through tax receipts and certain powers”.[31]The Forum endorsed the Commissioner’s initial description of its role as being advisory and consultative rather than administrative. The Forum stated that they may be consulted by the local planning authority but that they did not have powers to enforce the Neighbourhood Plan or over individual planning decisions.[32]The Forum concluded by stating that they did not hold the requested information, and sought to characterise the Appellant’s request as being unreasonable and vexatious.

The Appellant’s joint reply to the Commissioner’s response and the Forum’s response

[33]The Appellant submitted a joint reply to the Commissioner’s response and to the Forum’s response on 18 September 2025.[34]He attached an advice that he had received from Mr Philip Petchey (counsel) on whether the Public Sector Equality Duty applied to the Forum. Whilst the Appellant recognised that the advice was not related to the EIR, he asserted that it set out some background and issues which may be of assistance to the Tribunal when assessing whether the Forum performed functions of public administration.[35]The Appellant noted that the Forum had only indicated that they did not hold the requested information in their response filed with the Tribunal. He stated that, given the change in the Commissioner’s stance, it was important to obtain a definitive ruling on the matter. The Appellant indicated that he accepted the analysis of the Commissioner in subsequently concluding that the Forum was subject to the provisions of the EIR.[36]The Appellant disputed that his conduct had been unreasonable or vexatious, noting that his correspondence relating to the EIR had been limited.

Neighbourhood Forums

[37]The Localism Act 2011 set out a series of measures aimed at achieving a substantial and lasting shift in power away from central government and towards local people. The measures included the introduction of neighbourhood planning to make the planning system more democratic and more effective, and to enable development plans to be prepared at a more local level than had hitherto been the case.[38]Section 38A(2) of the Planning and Compulsory Purchase Act 2004 defines a “neighbourhood development plan” as “a plan which sets out policies (however expressed) in relation to the development and use of land in the whole or any part of a particular neighbourhood area specified in the plan”.[39]Section 38A(1) of the same Act states that “Any qualifying body is entitled to initiate a process for the purpose of requiring a local planning authority in England to make a neighbourhood development plan”.[40]Section 38A(12) of the same Act defines a “qualifying body” as “a parish council, or an organisation or body designated as a neighbourhood forum, authorised for the purposes of a neighbourhood development plan to act in relation to a neighbourhood area as a result of section 61F of the principal Act, as applied by section 38C of this Act”. For these purposes, “the principal Act” is the Town and Country Planning Act 1990.[41]Section 61F(1) of the Town and Country Planning Act 1990 authorises a parish council to act in relation to a neighbourhood area for the purposes of a neighbourhood development order (or plan). Where a neighbourhood area does not consist of all or part of the area of a parish council, then section 61F(3) of the Town and Country Planning Act 1990 states that “an organisation or body is authorised to act in relation to a neighbourhood area if it is designated by a local planning authority as a neighbourhood forum for that area”.[42]Section 61F(5) of the Town and Country Planning Act 1990 provides that a local planning authority may designate an organisation or body as a neighbourhood forum if the authority are satisfied that it meets the following conditions:a. It is established for the express purpose of promoting or improving the social, economic and environmental well-being of the neighbourhood area concerned;b. Its membership is open to individuals who live in or work in the neighbourhood area concerned, or who are elected members of a county council, district council or London borough council within the neighbourhood area concerned;c. Its membership includes a minimum of 21 individuals, each of whom live or work in the neighbourhood area concerned, or who are elected members of a county council, district council or London borough council within the neighbourhood area concerned;d. It has a written constitution; ande. Such other conditions as may be prescribed.[43]By virtue of section 38A(3) of the Planning and Compulsory Purchase Act 2004 and Schedule 4B of the Town and Country Planning Act 1990, a qualifying body “is entitled to submit a proposal to a local planning authority for the making of a neighbourhood development order [or plan] by the authority in relation to a neighbourhood area within the area of the authority”.[44]Schedule 4B of the Town and Country Planning Act 1990 sets out the procedure for the making of a neighbourhood development plan. In summary, the procedure envisages that the qualifying body prepares the neighbourhood development plan which will then be subject to consideration by the local planning authority to ensure that it conforms with local strategic planning policies, and then subject to examination by an independent examiner who will consider whether certain statutory conditions are met.[45]The neighbourhood development plan must then be put to a referendum. If approved, section 38A(4) of the Planning and Compulsory Purchase Act 2004 imposes a mandatory requirement on a local planning authority to whom a proposal for the making of a neighbourhood development plan has been made to make a neighbourhood development plan to which the proposal relates.[46]By virtue of section 38(3) of the Planning and Compulsory Purchase Act 2004, for any area outside of Greater London, the neighbourhood development plan forms part of the development plan for the area. If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts, then the determination must be made in accordance with the plan unless material considerations indicate otherwise (section 38(6) of the Planning and Compulsory Purchase Act 2004). In addition, when dealing with any application that is made to a local planning authority for planning permission, the local planning authority must have regard to the provisions of the development plan, so far as material to the application (section 70 of the Town and Country Planning Act 1990).

The Forum

[47]The Forum was founded in 2011 and was designated as a neighbourhood forum by Oxford City Council in early 2014. The Constitution of the Forum was approved in 2015.[48]The principal stated aim of the Forum is to “enable all those with an interest in the Forum area….to meet to discuss common concerns with the intention of maintaining and improving the social, environmental and economic well-being of the Forum area”.[49]The stated purposes of the Forum in the Constitution include to: i. Seek to create and promote a neighbourhood plan for the forum area; ii. Secure the support of the residents of the forum area for the neighbourhood plan; iii. Distribute the funds provided by the Community Infrastructure Levy according to an agreed process.[50]The Forum was redesignated as a neighbourhood forum in 2024.[51]The Forum comprises of a Steering Committee and four Working Groups, including one that deals with planning matters.[52]The Forum produced the final version of the Neighbourhood Plan on 07 March 2019. The plan comprised of Spatial Planning Policies which, if approved by a referendum, would become part of the Statutory Local Planning documents which determine planning applications in the forum area, and of Community Policies, which would need to be delivered directly by the Forum or by working with partners/stakeholders.[53]The Summertown and St Margaret’s Neighbourhood Development Plan was adopted by Oxford City Council on 29 April 2019.

Legal Framework

[54]The relevant provisions of the EIR are as follows: s.2 Interpretation …… (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. …… s.3 Application (1) Subject to paragraphs (3) and (4), these Regulations apply to public authorities. (2) For the purposes of these Regulations, environmental information is held by a public authority if the information – (a) is in the authority’s possession and has been produced or received by the authority; or (b) is held by another person on behalf of the authority. …… s.5 Duty to make available environmental information on request (1) Subject to paragraph (3) and in accordance with paragraphs (2), (4), (5) and (6) and the remaining provisions of this Part and Part 3 of these Regulations, a public authority that holds environmental information shall make it available on request. ……[55]Council Directive 2003/4/EC on Public Access to Environmental Information (“the Directive”) sets out a regime for public access to environmental information held by public authorities in the Member States. It implements the United Nations Economic Commission for Europe’s Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matter 1998 (“the Aarhus Convention”).[56]Article 2(2) of the Aarhus Convention provides that, for the purposes of the Convention, the term "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.[57]The Aarhus Convention is the source of the Directive, which implements the Aarhus Convention as between the Member States of the European Union. Article 2(2) of the Directive states that the term “a 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.[58]The EIR were introduced to implement the Directive. Regulation 2(2) of the EIR gives effect to Article 2(2) of the Directive. As was noted in Export Credits Guarantee Department v Friends of the Earth [2008] EWHC 638 (Admin), the Directive has direct effect as regards its object in domestic law, but it is otherwise not of direct effect. It is, however, a powerful aid to the interpretation of domestic legislation passed into law to give effect to it.[59]The leading authority in relation to Regulation 2(2)(c) of the EIR is Fish Legal and another v Information Commissioner and others (C-279/12) [2014] QB 521 (“Fish Legal CJEU”). At paragraph 52, the Court held: “The second category of public authorities, defined in article 2(2)(b) of Directive 2003/4, concerns administrative authorities defined in functional terms, namely entities, be they legal persons governed by public law or by private law, which are entrusted, under the legal regime which is applicable to them, with the performance of services of public interests, inter alia in the environmental field, and which are, for this purpose, vested with special powers beyond those which result from the normal rules applicable in relations between persons governed by private law".[60]Fish Legal CJEU has been applied in domestic cases, including in Information Commissioner v Poplar Housing and Regeneration Community Association and another [2020] UKUT 182 (AAC), which confirmed that Fish Legal CJEU laid down a dual test in so far as entrustment is different from the vesting of special powers.[61]Following Fish Legal CJEU, domestic caselaw (including Cross v Information Commissioner and Cabinet Office [2016] UKUT 0153 and Information Commissioner v Poplar Housing and Regeneration Community Association and another [2020] UKUT 182 (AAC))has consequently confirmed that the dual test under regulation 2(2)(c) of the EIR is: i. Entrustment: Has the entity been entrusted, under the legal regime applicable to it, with the performance of services of public interest (inter alia in the environmental field)?[62]Special powers: Has the entity been vested, for this purpose, with special powers beyond those which result from the normal rules applicable in relations between persons governed by private law?[63]The Information Commissioner’s guidance on “Who is a public authority under regulation 2(2)(c)?” (referring to the EIR) states as follows:
“You are likely to be a public authority within the meaning of regulation 2(2)(c) if you are an organisation which performs functions of public administration….. The exact meaning of regulation 2(2)(c) and when an entity falls within its scope is established through case law. The leading authority on the issue is the Upper Tribunal’s decision in Fish Legal vs IC & Others [2015] UKUT 52 (AAC)(19 February 2015)…… The EIR implement the 2003/4/EC Directive on access to environmental information. In order to determine the correct approach to the interpretation of art.2(2)(b) of the Directive, which regulation 2(2)(c) transposes into UK law, the UT referred the issue to the Court of Justice of the European Union (CJEU)…… The CJEU’s decision in Fish Legal C-279/12 (19 December 2013) introduced a dual functional test to determine whether an organisation is a public authority within the meaning of article 2(2)(b) of the Directive….. This means that there are two separate conditions an entity must meet in order to qualify as a public authority under regulation 2(2)(c). These are: • entrustment under the applicable law with the ability to carry out public administrative functions; and • the vesting of special powers for carrying out those functions. Therefore, you are a public authority within the meaning of regulation 2(2)(c) if you meet the following cumulative requirements: • Entrustment under the legal regime applicable to you. This means that you have been entrusted with carrying out functions of public administration by virtue of a legal basis in a piece of legislation you are subject to. In other words, you have received an express delegation of statutory functions under the legislation applicable to you.....; and • The vesting of special powers. This means that you have been given powers, created in law, that give you practical benefits which are not available to entities or persons whose relations are governed by the normal rules of private law. Private law governs and regulates relationships between individuals and organisations….. Examples of special powers include, but are not limited to: …… • Special levels of influence or advisory roles, ie. the ability – given to you by statute – to formally advise other public authorities or influence public policy. For the purposes of regulation 2(2)(c), the fact that the role has been conferred to you through legal provisions is what sets you apart from other entities having the ability to lobby or influence government through formal or informal means”. • entrustment under the applicable law with the ability to carry out public administrative functions; and • the vesting of special powers for carrying out those functions. • Entrustment under the legal regime applicable to you. This means that you have been entrusted with carrying out functions of public administration by virtue of a legal basis in a piece of legislation you are subject to. In other words, you have received an express delegation of statutory functions under the legislation applicable to you.....; and • The vesting of special powers. This means that you have been given powers, created in law, that give you practical benefits which are not available to entities or persons whose relations are governed by the normal rules of private law. Private law governs and regulates relationships between individuals and organisations….. • Special levels of influence or advisory roles, ie. the ability – given to you by statute – to formally advise other public authorities or influence public policy. For the purposes of regulation 2(2)(c), the fact that the role has been conferred to you through legal provisions is what sets you apart from other entities having the ability to lobby or influence government through formal or informal means”
.

The role of the Tribunal

[64]By virtue of regulation 18 of the EIR, the Tribunal’s remit is governed by section 58 of the Freedom of Information Act 2000. This requires the Tribunal to consider whether the decision made by the Commissioner is in accordance with the law or, where the Commissioner’s decision involved an exercise of his discretion, whether he ought to have exercised it differently. The Tribunal may receive evidence that was not before the Commissioner and may make different findings of fact from the Commissioner.

Issue

[65]The substantive issue for the tribunal to determine is whether the Information Commissioner’s Decision Notice was in accordance with the law – namely whether the Information Commissioner was correct in determining that the Forum was not a public authority for the purposes of the EIR.[66]In determining this issue, we have considered the following three questions: i. Is the Forum “a body or person” for the purposes of regulation 2(2)(c) of the EIR? ii. Has the Forum been entrusted, under the legal regime which is applicable to it, with the performance of services of public interest (inter alia in the environmental field)? If so; iii. Has the Forum, for this purpose, been vested with special powers beyond those which result from the normal rules applicable in relations between persons governed by private law?[67]It is not asserted that the Forum is a public authority pursuant to regulation 2(2)(a), (b) or (d) of the EIR, and we have therefore not considered these provisions further.

Evidence

[68]We read and took account of the following documentation: i. An open bundle containing 202 pages including indexes; ii. Skeleton arguments submitted on behalf of each party; iii. An agreed bundle of authorities; iv. Additional case of Poplar Housing Association and Regeneration Community Association (Poplar HARCA) v The Information Commissioner and the Peoples Information Centre, reference EA/2018/0199; v. Additional statutory provision, namely section 70 of the Town and Country Planning Act 1990; vi. Summertown & St. Margaret’s Neighbourhood Forum Constitution.[69]We also heard submissions on behalf of all parties which we have taken into account. Discussions and conclusions Is the Forum “any other body or other person” for the purposes of regulation 2(2)(c) of the EIR?

Discussions and conclusions

[70]It was not disputed that the Forum is properly described as an unincorporated association.[71]The Appellant placed reliance on the decision in Aireborough Neighbourhood Development Forum v Leeds City Council [2020] EWHC 45 (Admin), which considered whether, on a claim for judicial review or a statutory challenge, the claimant was a “person aggrieved” for the purposes of section 113(3) of the Planning and Compulsory Purchase Act 2004. It was held that, by virtue of section 5 of and the Schedule to the Interpretation Act 1978, an unincorporated association was capable of having standing to bring a challenge under section 113 of the 2004 Act as “a person aggrieved”. In his written submissions, the Appellant submitted the following: “If a Forum enjoys the privilege of being a claimant in a claim for judicial review, it would [be] surprising if Parliament intended that it should, by virtue of its lack of legal personality, not be subject to the Regulations. Moreover a Parish Council, fulfilling the same functions, is subject to the Regulations”.[72]The Appellant also submitted that the use of the phrase “body or other person” in regulation 2(2)(c) of the EIR indicates a wider, rather than a narrower, approach as to whether any particular entity is subject to the EIR and that, given its natural meaning, “body” would include an unincorporated association. Finally, the Appellant submitted that, if it is determined that the Forum carries out functions of public administration, it would be surprising to say that it is not subject to the EIR because the entity lacks legal personality.[73]Similar submissions were made on behalf of the Commissioner, who stated that the wording of regulation 2(2)(c) itself demonstrated that the provision could plainly apply to unincorporated associations. The Commissioner also observed that, as a matter of ordinary statutory interpretation, an unincorporated association falls within the definition of “person” for the purposes of Schedule 1 of the Interpretation Act 1978, and noted the conclusion reached in Aireborough Neighbourhood Development Forum v Leeds City Council [2020] EWHC 45 (Admin).[74]The Commissioner also made submissions in relation to the wording of regulation 2(2)(c) of the EIR which, on its face, is wider than the corresponding provision in the Directive which refers to “any natural or legal person”. The Commissioner argued that the broader formulation in the EIR is permissible, given that the Directive only establishes the minimum standards that must be transposed into domestic law, which can be exceeded by the Member States. Even if that were not to be the case, the Commissioner submitted that the wording of the Directive and the Aarhus Convention would include an unincorporated association for two reasons in any event. Firstly, a restrictive interpretation of the term “public authority” that excluded statutory bodies exercising statutory environmental functions, simply because they lacked corporate personality, would undermine the objectives of the Aarhus Convention in guaranteeing a right of access to environmental information. Secondly, the Forum’s members are natural persons who have come together for a common purpose and there would be no reason as to why these natural persons were outside the scope of the EIR regime when exercising public administrative functions.[75]A contrary position was advanced on behalf of the Forum, who submitted that the Forum was not an entity or legal person with reference to the specific outline in Fish Legal CJEU. The Forum noted that there were significant practical problems with imposing administrative law obligations, such as responding to EIR requests, upon a collection of natural persons. The Forum also noted that they have no postal address for service of legal process, no IT systems, and no employees.[76]In addition, the Forum sought to draw a distinction between neighbourhood forums and parish councils, being the only two entities that could be designated as a “qualifying body” pursuant to the relevant Act. The Forum noted that, unlike a neighbourhood forum, a parish council had an independent legal personality, certain public powers and duties, and are furnished with staff, public funds, offices and IT equipment. The Forum also observed that, if Parliament had considered that it was appropriate for designated forums to be subject to the Freedom of Information Act 2000 regime or the EIR regime, it could have added them to Schedule 1 of the Freedom of Information Act 2000 when the Localism Act 2011 came into force.[77]Having carefully considered all of the submissions, we are satisfied that the Forum, as an unincorporated association, is “a body or other person” for the purposes of the EIR. We find that the wording of Schedule 1 of the Interpretation Act 1978 is clear and unambiguous in that a “person” include a body of persons corporate or unincorporate - in other words, including an unincorporated association. We are also satisfied – and indeed there is no dispute – that, in the absence of any contrary intention, the provisions of Schedule 1 are applicable to the EIR.[78]Whilst we do not find that it is necessary to look beyond Schedule 1 of the Interpretation Act 1978 to determine this issue, we do accept the submissions of the Appellant and the Commissioner that the wording of regulation 2(2)(c) of the EIR, of itself, would include an unincorporated association.[79]We have considered the Forum’s submissions that they are manned by volunteers, with extremely limited resources. Whilst we recognise that these constraints may cause practical challenges in dealing with requests for information, we do not consider that they are relevant factors when determining whether, for the purposes of the EIR, the Forum is a “any other body or other person”.[80]We do not find it particularly helpful – or necessary – to compare and contrast a neighbourhood forum with a parish council. Whilst they conduct a similar function in relation to the development of neighbourhood plans, they are not intended to mirror each other in all substantive regards, rendering any attempt to draw exact comparables or distinctions of very limited assistance.[81]For the reasons outlined above, we are satisfied that the Forum is “any other body or other person” for the purposes of regulation 2(2)(c) of the EIR. Has the Forum been entrusted, under the legal regime which is applicable to it, with the performance of services of public interest (inter alia in the environmental field)?[82]The Appellant submitted that, although the Forum does not itself make (in the sense of implement) a neighbourhood development plan, it has a key role in its making (in the sense of its development). The Forum will prepare the plan which, albeit subject to potential modifications, will be subsequently made by the local planning authority, in this case Oxford City Council. It is therefore not appropriate to describe the Forum’s activity as merely advisory and/or consultative. In addition, the Forum carries out the administrative function of determining the distribution of Community Infrastructure Levies, which would otherwise be carried out by Oxford City Council.[83]In relation to the entrustment limb of the dual functional test, the Commissioner submitted as followed: i. The entity should be trusted, authorised, or empowered, under national law, to perform services of public interest – but it does not need to be under a duty to perform those services; ii. The national law in question must be legislation; iii. The question as to whether a particular entity is “entrusted” is a matter of context and the effect of the regulatory scheme in question; iv. Pursuant to section 61F(3) of the Town and Country Planning Act 1990, a designated neighbourhood forum “is authorised to act” in relation to the neighbourhood area. The Commissioner submits that this wording is the language of entrustment; v. Pursuant to section 38A(1) of the Planning and Compulsory Purchase Act 2004, a designated neighbourhood forum is a “qualifying body” which is “entitled to initiate a process for the purpose of requiring a local planning authority in England to make a neighbourhood development plan”. Again, the Commissioner submits that the language used is that of statutory empowerment; vi. The Forum operates within a statutory framework that can compel action by a public authority in that, if the Forum’s proposal is successful at a referendum, the local planning authority “must” make the neighbourhood development plan and “must” do so as soon as it reasonably practicable after the referendum is held (section 38A(4) of the Planning and Compulsory Purchase Act 2004.[84]In light of the above, the Commissioner submitted as follows: “This is a clear statutory entrustment. The Forum is not a purely private body that has chosen voluntarily to engage in an activity. It exists and operates within, and by virtue of, a specific statutory framework established by Parliament to enable community participation in the planning system”.[85]In contrast, the Forum submitted that the element of “entrustment” in the context of Fish Legal CJEU is absent. The statutory framework [of the Town and Country Planning Act 1990 and the Planning and Compulsory Purchase Act 2004] entrusts the community, through a neighbourhood forum as a qualifying body, with initiating and drafting neighbourhood development plan proposals. The Forum submitted as follows: “That entrustment via legislation is of a community right; it is to insert a democratic and community-led development process into planning. It is not an entrustment of a governmental function that the LPA, or indeed any other branch of government, itself carries out. The LPA does not possess, and therefore cannot delegate or confer, the power to author and make the content of a neighbourhood plan…..Only the qualifying body may prepare it; only the electorate may authorise it; only the LPA may formally “make” it. The LPA cannot entrust what it does not have”.[86]The Forum also submitted that neighbourhood planning was not a function of public administration and that, if it was, it would not have been left to non-professional people to carry out.[87]We are satisfied that section 61F(3) of the Town and Country Planning Act 1990 clearly sets out a statutory framework, applicable to the Forum, which entrusts it with the performance of services of public interest – specifically, acting in relation to a neighbourhood area as the designated neighbourhood forum for that area. We agree with the submissions of the Commissioner that the wording “is authorised to act” is clearly wording of entrustment and empowerment.[88]It is our view that the relevant services carried out by the Forum are the creation and promotion of a neighbourhood development plan which, in turn, forms part of the development plan for the local planning area, and ensuring community participation in the planning system. We do not accept the submissions made on behalf of the Forum that they are engaged in an activity that is of interest to the public but that they are not performing a service. We are satisfied that, in carrying out the services outlined above, the Forum is performing a service of public interest.[89]We were not expressly addressed on the question as to whether the entity’s public administrative functions must include specific duties, activities or services relating to the environment. For completeness, we are satisfied that the Forum’s activities in designing and developing a neighbourhood development plan are activities that form part of the functions of town and country development. Having regard to the definition of “environmental information” in regulation 2(1) of the EIR as guidance, we are satisfied that this activity relates to the environment, given the likely impact of planning proposals and actions on the state of the environment, land, and soil. Has the Forum, for this purpose, been vested with special powers beyond those which result from the normal rules applicable in relations between persons governed by private law?[90]The Appellant adopted the submissions of the Commissioner, submitting that the power to initiate and write the neighbourhood plan in an unparished area can only be exercised by the neighbourhood forum, which clearly amounted to “special powers”.[91]The Commissioner submitted that the question as to whether a body has “special powers” is a practical one, which requires a consideration as to whether the powers give the body an ability that confers on it a practical advantage relative to the rules of private law. The Commissioner also referred to his own guidance where he states that a “special power” can include special levels of influence or advisory roles.[92]In his written submissions, the Commissioner advanced the following arguments:
“The Forum is vested with special powers for the purpose of performing its entrusted functions. These powers are conferred by statute and are not available to private persons; a. Power to influence local planning authority policy on development. Pursuant to section 38A of the PCPA 2004, the Forum may make a proposal for a neighbourhood development plan, which the local planning authority is obliged to make (subject to a check by a planning inspector that the plan meets certain conditions and a successful local referendum). Such a power would not be available under private law. b. Power to initiate a process requiring the making of a neighbourhood development order. Section 61E TCPA 1990 provides that the Forum, as a qualifying body, is entitled to “initiate a process for the purpose of requiring a local planning authority in England to make a neighbourhood development order”
. Such a power would also not be available under private law. These powers are “special” because they confer on the Forum a practical advantage relative to the rules of private law. Private individuals may lobby or make representations about planning matters, but they cannot compel a local planning authority to prepare and adopt a development plan, nor can their proposals bind future planning decisions with statutory force”. a. Power to influence local planning authority policy on development. Pursuant to section 38A of the PCPA 2004, the Forum may make a proposal for a neighbourhood development plan, which the local planning authority is obliged to make (subject to a check by a planning inspector that the plan meets certain conditions and a successful local referendum). Such a power would not be available under private law. b. Power to initiate a process requiring the making of a neighbourhood development order. Section 61E TCPA 1990 provides that the Forum, as a qualifying body, is entitled to “initiate a process for the purpose of requiring a local planning authority in England to make a neighbourhood development order”. Such a power would also not be available under private law. These powers are “special” because they confer on the Forum a practical advantage relative to the rules of private law. Private individuals may lobby or make representations about planning matters, but they cannot compel a local planning authority to prepare and adopt a development plan, nor can their proposals bind future planning decisions with statutory force”.[93]The Forum submits that they have no special powers. As per their written submissions, the Forum "cannot compel participation, disclosure, entry, or acquisition; it cannot issue binding determinations; it cannot enforce; it cannot direct the LPA’s decisions. Its consultation duties are procedural obligations applicable to it as proposer; they do not confer powers over others”. The Forum submits that the neighbourhood development plan has no legal effect unless and until it passes a referendum and is made by the local planning authority. Once it reaches the stage of a referendum, it is effectively ‘out of their hands’. The Forum submits that the lack of special powers is fatal to the application of regulation 2(2)(c) of the EIR.[94]We are satisfied that the Forum has been vested with special powers for the purposes of the test outlined in Fish Legal CJEU. We agree with the submissions of the Commissioner that the Forum has the power to influence local planning policy on development by making a proposal for a neighbourhood development plan (pursuant to section 38A of the Planning and Compulsory Purchase Act 2004) and that the local planning authority is obliged, subject to certain requirements, to make such a plan as soon as is reasonably practicable after the required referendum has been held. We also accept that the Forum has the power to initiate a process requiring the making of a neighbourhood development order pursuant to section 61E of the Town and Country Planning Act 1990, and that neither power would be available under private law. We are satisfied that both powers are vested in the Forum for the purpose of enabling it to perform its functions of ensuring community input into the planning process and developing an integral part of the development plan for the local area.[95]In coming to this conclusion, we also have regard to the Commissioner’s own guidance which, although not binding, is instructive in that it specifically refers to the ability, given by statute, to formally advise other public authorities or influence public policy, which we view as accurately encompassing the role of the Forum.

The ‘cross-check’

[96]The Forum submitted that a ‘cross-check’ was of value in this case and should therefore be carried out. The ‘cross-check’ involves standing back and asking whether, in all of the circumstances of the case, the combination of the factors identified in Fish Legal CJEU result in the relevant entity being a functional public authority. In Cross v Information Commissioner and Cabinet Office [2016] UKUT 0153, this was interpreted as meaning “that what the entity does must have a sufficient connection with what entities that are organically part of the administration or the executive of the state do”.[97]The Forum submitted that there was no clear link between the Forum and the state administration. They submitted that the Forum was very far removed from being part of the State – they were a collection of volunteers and, whilst they could lobby a state entity, that did not make them a public authority in the sense that would be understood by an ordinary person in the street. The Forum’s role was, in their submission, more analogous to that of a statutory proposer.[98]The Commissioner submitted that the carrying out of a ‘cross-check’ would not assist the Tribunal in their determinations and, even if a ‘cross-check’ were to be carried out, the combination of factors identified in Fish Legal CJEU pointed to the Forum being a functioning public authority. Neighbourhood forums were created by statute to carry out tasks that were previously within the preserve of the local planning authority. A neighbourhood forum exercises statutory powers and, once made, the neighbourhood development plan forms part of the statutory development plan for the area.[99]Having carried out a ‘cross-check’, we take the view that the Forum is a functional public authority. It only exists due to the powers conferred on it by the state via legislation. We also accept the Commissioner’s argument that, once made, the neighbourhood development plan forms part of the statutory development plan for the area.

Is the requested information held by the Forum?

[100]At the start of the hearing, the Forum asserted that it does not hold any of the requested information. It submitted, both orally and in written submissions, that the debate over whether the Forum was a “public authority” was therefore a theoretical one, and that determining the question would make no difference to whether the Appellant’s request is satisfied. The Forum submitted that the most appropriate conclusion would be for the appeal to be dismissed and/or for a substituted Decision Notice to be ordered on the basis that the Forum does not hold the information that is sought by the Appellant.[101]We remind ourselves that the power of the Tribunal is limited to determining whether the Information Commissioner was correct in determining that the Forum was not a public authority for the purposes of the EIR. We therefore do not find it appropriate to avoid determining the substantive issue as to whether the Forum is a “public authority” for the purposes of the EIR, which is the basis upon which the Forum initially refused the Appellant’s request.[102]Further, the Forum submits that, pursuant to regulation 3(2) of the EIR, any environmental information about neighbourhood planning held by or with the Forum (if that was the position) would be held on behalf of the local planning authority, and consequently the local planning authority would be the correct respondent to any EIR request. We do not feel that it necessary – or appropriate – to determine this issue as part of this appeal, not least because the Forum’s (revised) position is that they do not hold the information at all, either themselves or on behalf of the local planning authority, and so the question is hypothetical.

Is the requested information environmental?

[103]Given that the initial request was made pursuant to the Freedom of Information Act 2000, we address this question briefly for the sake of completeness. We note that no party disputed that the requested information constituted “environmental information” for the purposes of the EIR. Whilst the Commissioner did not reach a determination on this point, we agree with his comments at paragraph 12 of the Decision Notice that, as the Forum supports local residents and individuals working within an area to be directly involved in the planning of their neighbourhoods, any information held that relates to monitoring or assessments of actions taken or planned would likely be environmental information. Having regard to regulation 2(1) of the EIR, we are satisfied that, if we had been called on to determine this issue, we would have concluded that the requested information was environmental for the purposes of the EIR.

The work of neighbourhood forums

[104]We conclude by acknowledging the valuable work that is carried out by the volunteers who make up neighbourhood forums. Ensuring that the local community are able to input into the shaping and influencing of Council policies that will directly affect the local area is a vital way of empowering communities and mitigating the perception that planning decisions are taken at a national level with limited regard for local considerations and concerns. We are acutely aware, having listened carefully to the submissions on behalf of the Forum, of the resource constraints on neighbourhood forums and of the obvious diligence and care that is applied to the work by their members – for which they should be commended.

Conclusion

[105]The Tribunal allows the appeal for the reasons given above and makes a Substituted Decision Notice in the terms outlined.