QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| OneSearch Direct Holdings Ltd (formerly SPH Holdings Ltd) (trading as OneSearch Direct)
|- and -
|City of York Council
Jason Coppel (instructed by Dickinson Dees LLP) for the Defendant
Hearing dates: 16-17 March 2010
Crown Copyright ©
MR JUSTICE HICKINBOTTOM :
Background to Local Property Searches
"Without prejudice to any powers exercisable apart from this section but subject to the provisions of the Act and any other enactment passed before or after this Act, a local authority shall have power to do any thing… which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions."
Authorities considered that the provision of information about a property to prospective purchasers of that property was "incidental to" their statutory function of collecting and holding that information. Section 2 of the 2000 Act, enacted at least in part because of concerns about the scope of the "subsidiary" powers granted by section 111, provides, under the heading, "Promotion of well-being":
"(1) Every local authority are to have power to do anything which they consider is likely to achieve any one or more of the following objects:
(a) the promotion or improvement of the economic well-being of their area
(b) the promotion or improvement of the social well-being of their area
(c) the promotion or improvement of the environmental well-being of their area.
(2) The power under subsection (1) may be exercised in relation to or for the benefit of:
(a) the whole or any part of a local authority's area, or
(b) all or any persons resident or present in a local authority's area.
Local authorities considered that, to facilitate the transfer of property in their area, promoted well-being within this provision. When acting under either power, authorities were granted a power to charge the person making the enquiries for providing answers, by regulation 2 of the Local Authorities (Charges for Land Searches) Regulations 1994 (SI 1994 No 1885).
"… anything relating to or affecting the property that is contained in… records kept by a person who can reasonably be expected to give information derived from those records to the seller at his request (on payment, if required, of a reasonable charge);..."
That was an indication - indeed, one may think, an obvious and clear steer by Parliament - to the Secretary of State that it might be a proper requirement of HIPs to include information derived from local authorities' records.
"In accordance with the 'Local Authority Property Search Services - Costing and Charging Guidance' and 'The Local Authorities (England) (Charges for Property Searches) Regulations 2008' the purpose of this communication is to advise you of the new arrangements which this Council will operate from Monday 6th April 2009 in relation to property searches services for Personal Search Companies.
It is the intention of the City of York Council to provide property search information through the Local Land Charges Office in a 'one-stop-shop' solution. This will be an extension of the current method of working that has existed for Official Search customers since 1996.
The Council operates a computerised service centred around the Local Land Charges Office with information held in a refined format for both the Local Land Charges Register and for the CON29(R) and CON29(O). Raw data is no longer available. Information is collated by the Local Land Charges Office and is currently provided to Official Search customers in the form of a computer print out which contains responses to all the CON29(R) enquiries and to CON29(O) enquiries when requested. By extending this service to [PSCs] you will have access to the same information and on the same terms as Official Search customers.
The Council is currently not able to provide answers to enquiries on a question by question basis as the computer software does not allow the selection of individual components of the CON29(R). Any question of developing such an approach would very much depend on the likely volume of requests and ultimately the development costs in upgrading our computer software. This may well increase the cost to personal search companies.
Having considered the contents of the Guidance and the Charging Regulations, we feel that this is the most cost effective way in providing access to information. However, you are still at liberty to attend the Council Offices and carry out a personal search of the Local Land Charges Register and also to inspect the statutory registers as you currently do. Please be advised that you will not be able to obtain answers to the non statutory questions on the CON29 from the respective departments, such information will be provided through the Local Land Charges office as already described.
The charges set for the provision if property information covers only that information which is not deemed to be statutory information. All statutory information is available free of charge and is therefore not included in the costing calculations.
Attached is a schedule showing the charges applicable to search services from 6th April 2009….".
"The table of fees below have been calculated in accordance with regulation 9(1) of the Local Authorities (England) (Charges for Property Searches) Regulations 2008 and have been calculated on a cost recovery basis for non statutory information only. These fees have taken into account the estimated cost of service provision and likely volume of enquiries to be received in the next financial year. A more detailed financial statement will be produced by June 30th 2010 financial as required by regulation 9(2)."
The table shows "Estimated Enquiries" as 4,100, "Estimated Costs" as £345,017.77, and consequent "Unit Costs CON 29(R)" as £69. With the standard Local Land Charges search fee of £15, that gives a combined cost for both that search and the completion of the Form CON 29(R) as £84. CON 29(O) fees are individually itemised, as are fees for additional parcels of land.
(i) Where the Council has a specific express duty to make information available to the public, either free or for a standard fee, then the Council allows access to the relevant "unrefined information" or registers.
(ii) Otherwise, the Council does not allow access to any unrefined information.
(iii) The various departments of the Council have input all property information onto a single computer database which can respond to any enquiry required of a search report or Form CON 29R. The departments have, in various forms, the original data, but the Council do not have recourse to that. They rely upon the computer system.
(iv) Where any request about a property is made (whether in the form of an enquiry or a request for access to unrefined data), the Council respond in the form of a computer print out which, in substance, is a completed Form CON 29R. When the policy states, "Raw data is no longer available", it means that unrefined information is not available or provided to the public. As I have said, that information is "available" from individual departments, although the Council in fact rely upon the computer system.
(v) Whatever the request - even if it is limited to a request for access to one piece of unrefined information - the Council respond in the form of a full computer print-out in CON 29R form. The computer system is currently unable to respond to individual enquiries (although there was evidence that it is being modified to do so: Third Statement of Peter Audin dated 12 March 2010 Paragraph 6).
(vi) In relation to charging, as they must, where the Council have to allow public access to information by virtue of a specific express duty (e.g. planning control material, and the Local Land Charges Register), they allow access freely or for the standard fee, as the relevant specific statutory provisions require.
(vii) However, all other enquiries or requests for access to information are treated the same. They are all provided with the same response (i.e. a full computer print-out), for which they are charged the same fee. That fee is calculated on a "cost recovery" basis, the estimated annual costs of providing those responses being divided by the estimated annual number of enquiries/requests. I was told that the estimated costs do not include (i) the costs of providing information that is open to the public (First Statement of Peter Audin dated 4 August 2009 Paragraph 11), or (ii) the inputting of the data onto the computer system (because the system is used by Council departments for other purposes than answering enquiries about properties).
"The only rule for the construction of Acts of Parliament, is that they should be construed according to the intent of Parliament which passed the Act. If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in that natural and ordinary sense. The words themselves alone do, in such case, best declare the intention of the lawgiver. But if any doubt arises from the terms employed by the legislature, it has always been held a safe means of collecting the intention, to call in aid the ground and cause of making the statute…."
That has been reiterated in numerous cases since (see, by way of example, Black-Clawson International Ltd v Paperwierke Waldhof-Aschaffenburg AG  1 All ER 810 at page 814 per Lord Reid, another much-cited passage).
The Background to the Statutory Scheme
"4.3 [Local authorities] have, in effect, a monopoly over the unrefined property information needed to compile local property searches. The evidence available to the OFT suggests some [local authorities] are not making some of this information available to PSCs. Where this occurs PSCs can produce only incomplete local property searches, limiting the extent to which they can compete with [local authorities] compiled local property searches. This reduces the incentives on [local authorities] to price competitively, be cost efficient and innovative in compiling.
4.4 The situation is likely to worsen with the introduction of the HIP in 2007. The HIP will require certain information to be provided by the seller of the property… Unless the relevant unrefined property information is available to competing compilers, this will potentially eliminate competition from PSCs."
"4.4 … [Local authorities] make available all the unrefined information they hold that is needed to compile a property search for inclusion in a HIP to all those who ask. This must be done on terms that do not advantage their own compiling activities over competing compilers.
4.5 … Central government should provide clear guidance for [local authorities] on how they should recover the costs of providing property information in compiled and unrefined forms and, if [local authorities] are to set their own prices for these two services, how they should set these charges to avoid distorting competition in the supply of local property searches."
"Two services", of course, is a reference to (i) the allowing of access to unrefined information and (ii) the provision of a property search of compiled, refined information in response to enquiries.
"4.34. [Local authorities] could make this information available voluntarily as a matter of best practice. There are no significant legal barriers to overcome, and this would be the simplest and least costly way of enabling competition in compiling. However, the effectiveness of this latter approach would rely on voluntary compliance by [local authorities]. Requiring [local authorities] to make unrefined property information available on public registers may be more effective, but it would involve changes to primary and secondary legislation.
4.35 As voluntary compliance by [local authorities] is simpler and less costly than the alternative of legislative change, central government and the Local Government Association… should encourage [local authorities] to adopt the best practice approach. If this fails, for example due to a lack of compliance, central government should consider the case for legislative change."
"The Government accepts that [local authorities] should make available all of the unrefined information they hold that is needed to compile a property search for an inclusion in a [HIP] to all who ask. If [local authorities] possess information and use it themselves to compile such responses it should be available to personal searchers….
… The Government accepts the general thrust of this recommendation [concerning making access available to the public on similar terms to a local authority's own report-preparing arm] as any distortion of the charges made for, or access of the unrefined data may adversely affect the market for compiled property information…."
"… [T]here is no explicit right in statute for the public to have direct access to other [information which does not have to be publicly available under express statutory provisions] used to compile the search. [The Secretary of State] will provide guidance for [local authorities] in England and Wales on how to implement a more cost based approach to fees in time for the introduction of HIPs….
If access should remain a problem in relation to CON 29 information [the Secretary of State] will consult on the best way of achieving equal access for all"
"The guidance expects local authorities to make available all the information needed to compile a valid property search for inclusion in a [HIP] to all who ask in line with the recommendations in the OFT report." (Paragraph 22).
"A local authority must act reasonably in fulfilling its duty to allow access to records for public inspection. It must not act in a way that inhibits or prevents reasonable access." (Paragraph 2.2).
"The good practice guidance is not enforceable by law but has been developed by a working group including private and public sector interests and therefore should be acceptable to both sides of the industry. As the section on the voluntary and statutory options states Government will keep this issue under review and will consider a statutory approach should the voluntary approach embodied in the guidance fail. However, this would require legislative change."
"The guidance in this document therefore aims to promote good practice and good working relationships between local authorities and personal searchers in delivering property search services. It will be accompanied by guidance on charging for property search services."
"These Regulations, if implemented, aim to complete the conditions for open access arrangements and the levelling of the playing field in the provision of searches as envisaged by the [OFT].
[Local authorities] should be providing access to personal searchers to all data necessary to compile a property search in line with the good practice access guidance we published in January 2008. The charging proposals set out in this consultation paper would provide a transparent framework for [local authorities] to recover 'reasonable costs' in delivering the necessary open access. This should enable all [local authorities] to provide open access to all private sector and therefore negate the need for the insurance to cover any missing data."
The Relevant Statutory Provisions
"(c) that local authority has a policy of not allowing other persons to inspect such records;
(d) a local authority is not requested to provide the search report;
(e) any enquiries not answered are the subject of a contract of insurance against the liabilities that, if they had been answered, they would have affected (i) an actual buyer's decision to buy the property; or (ii) the price an actual or potential buyer would be prepared to pay for it, and result in financial loss."
The use of the present tense in these provisions is irrelevant for the current purposes, because, once a HIP has been produced, there is only a power (and not a duty) to update it (parts 4 and 5 of the HIP (No 2) Regulations).
"By 6 April  we expect to see virtually all [local authorities] providing open access to the private sector" (emphasis added).
That is telling, because, in relation to the withdrawal of the paragraph 4 exemption, there is a recognition that some local authorities will still be able to - and will still in fact - withhold access, despite the encouragement they have had to give it. It contraindicates an intention to impose any obligation on authorities to give open access from 6 April 2009.
"Any person may prepare a report required by regulation 8(k)…".
That, he submitted, was a further indicator or legislative assumption that any person must be enabled to prepare such a report, by having open access to the relevant raw data.
"… access to property records granted by a local authority in any of the following ways:
(a) allowing a person to inspect or search property records at a place designated by the authority for doing so;
(b) allowing the making of or providing copies of, property records; or
(c) the electronic transmission of property records, or copies of such records."
Regulation 5 states that charges for access to records apply "where a local authority grants access to property records" (emphasis again added).
"(1) This regulation applies for the purposes of the grant of access to property records to other persons (including another local authority) by a local authority.
(3) Nothing in these Regulations imposes a duty on a local authority to grant access to property records."
In the regulations eventually made, in December 2008, regulation 5(1) had changed to read as follows:
"This regulation applies where a local authority grants access to property records to a person (including to another local authority).
Regulation 5(3), as drafted in July 2008, had disappeared.