Landmark decision forces National Trust to release information in trespass dispute

Martin Shipton

The National Trust will have to be a more open and accountable organisation following a landmark ruling by the Information Commissioner’s Office, according to the legal adviser to a Welsh firm with which it has been in conflict.

Earlier this year Nation.Cymru reported how the conservation body had issued a trespass notice to a “coasteering” company that had operated for 30 years on a stretch of the Wales Coast Path at Ceibwr Bay in north Pembrokeshire.

When the firm asked the National Trust to explain its reasoning, it said it didn’t have to because it wasn’t a public authority.

Now the Information Commissioner’s Office (ICO) has ruled that it is a public authority under the Environmental Information Regulations 2004, and must provide a substantive response concerning its policies, correspondence and environmental assessments relating to commercial access to the Pembrokeshire coastline.

The Decision Notice was issued following a complaint by Peter Ainsworth, independent legal adviser to Adventure Beyond, the Pembrokeshire-based coasteering company run by Jethro Moore. The National Trust has 30 days to comply.

The ruling overturns a previous ICO decision from March 2022 in which the Commissioner had found the National Trust was not subject to environmental information law.

The Commissioner found that the National Trust’s own Pembrokeshire Coasteering Concordat — a multi-party regulatory document issued jointly with the Pembrokeshire Coast National Park Authority, Natural Resources Wales and Pembrokeshire County Council — demonstrated that the Trust “has used its statutory powers in practice, to regulate access to land for conservation and environmental purposes”.

On that basis, the Commissioner found the Trust satisfied both limbs of the legal test for carrying out functions of public administration.

Mr Moore said: “For the past year the National Trust has refused to tell us anything — not what decisions it has made, not what evidence it relied on, not what it said to other bodies about our business.

“It has been able to act like a private club, making decisions that affect our livelihood behind closed doors. This ruling levels the playing field.

“The National Trust has been exercising public powers over this coastline and it now has to account for how it has used them. We look forward to seeing the documents.”

The firm claims that in recent years the National Trust has made it increasingly difficult for the company to operate, through a series of restrictions, conditions and governance decisions made without transparency, without scientific justification and without any meaningful right of response.

Adventure Beyond challenged the National Trust’s approach on multiple fronts, including by making its own request for environmental information — which the National Trust refused, on the same grounds now overturned by the Commissioner.

The information requests and the wider dispute have run in parallel. Adventure Beyond has consistently argued that the National Trust has sought to present itself as a private landowner when it comes to legal accountability, while acting as a public regulator when it comes to controlling and restricting what commercial operators may do on the Welsh coast. The ICO has now confirmed that position is untenable.

Public administration functions

Mr Ainsworth said: “The Commissioner has found that the National Trust is entrusted by Parliament with functions of public administration in the environmental field and is vested with special powers that go beyond those of any ordinary landowner. That is the correct analysis.

“The documents it must now disclose will, we believe, show that the restrictions placed on Adventure Beyond’s operations were not supported by any conservation evidence and were not reached by any fair or lawful process.”

He said the ruling had significance beyond this dispute, with the Commissioner’s finding that the National Trust carries out functions of public administration in relation to the environment applying to the Trust as an institution across its landholdings, not only in Pembrokeshire.

It is the first time the Commissioner has made such a finding in relation to the National Trust since the 2022 decision went the other way.

Mr Ainsworth said the implications extended to farmers who tenant National Trust land, or whose own land borders it, who can be subject to conditions and restrictions imposed on environmental or conservation grounds.

He said that until now, farmers seeking information about the evidence behind those decisions, or communications between the Trust and bodies such as Natural Resources Wales and the Pembrokeshire Coast National Park Authority, had no legal route to compel disclosure.

‘Embarrassing’

Mr Ainsworth said: “That has now changed. The Environmental Information Regulations give anyone the right to request environmental information from a public authority.

“The authority has 20 working days to respond and can only refuse on specific, limited grounds — it cannot simply decline because disclosure would be inconvenient or embarrassing. If it refuses without proper justification, the Information Commissioner can order disclosure and, if the authority still fails to comply, certify that failure to the High Court as a contempt.”

He said the same right would extend to others affected by National Trust environmental decisions, including community groups facing restrictions on stretches of coastline or countryside and small businesses operating on Trust land.

They could seek information including scientific assessments, internal emails, advice received by the Trust and communications with statutory bodies before decisions were made.

‘Wrong in Law’

Mr Ainsworth said: “The Commissioner has found that position to be wrong in law. When the Trust exercises its statutory powers in relation to the environment — and it is doing so constantly, across Wales — it is subject to the same transparency obligations as any other public body.”

He added: “It is quite extraordinary to think that the National Trust issued a trespass notice to a longstanding Welsh business and openly stated that they did not have to give reasons – and we had no way to find out what those reasons might be.

“Forcing large institutions to make extensive disclosures is a key element of a free society and, in my opinion, all large charities should be subject to the same disclosure rules as public authorities. It helps to keep them honest.”

The National Trust has been asked to respond and is expected to do so next week.

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