Local government — Private search company – Local property search — Claimant company carrying out searches for information for inclusion in home information packs — Defendant council publishing policy on access to and charges for information — Defendants allowing access to unrefined information only where expressly required to do so – Claimant seeking judicial review of defendants’ published policy — Whether defendants’ policy lawfully restricting public access to information — Application dismissed
The claimant private search company (PSC) undertook searches for the information required for inclusion in home information packs (HIPs), which were introduced by Part 5 of the Housing Act 2004. The content of HIPs was prescribed by the Home Information Pack (No 2) Regulations 2007, regulation 8(k) of which responded to section 163(5)(c)(ii) of the 2004 Act. That provided that a HIP had to incorporate a search report containing responses to 16 heads of enquiry, all of which relied on information held by the relevant local authority.
Such information was wide-ranging. In order to be of use to potential purchasers and conveyancers, it needed to be collated, interpreted and put into a useable format. Historically, local authorities had undertaken the task in response to enquiries from a potential purchaser. However, where authorities were able and prepared to grant access to their records (unrefined information), PSCs could obtain those data and compile the necessary report. The advent of HIPs resulted in property search reports, and the PSCs become increasingly important and provided competition to local authorities.
The claimant sought judicial review of the defendants’ published policy on access to and charges for the information that they held on properties within their area. It challenged the lawfulness of the policy in so far as it did not allow the public or PSCs open access to unrefined information because the defendants wanted to package and sell that information for an overall set price.
Held: The application was dismissed.
In denying access to unrefined information, the defendants might not be complying with the government’s policy aim to provide open access to all such information. However, the claimant had failed to show that it was contrary to the government’s intention, which encompassed not only long-term policy aims but also the way in which they were implemented. The government had decided not to force lcoal authorities to allow such access. Nor was the defendants’ policy of refusing access to unrefined information contrary to the aims and purposes of statutory provisions, including the subsidiary legislation made by the secretary of state. There was no compelling evidence that parliament and the secretary of state had, contrary to the government’s intention, made statutory provision, including a new duty on local authorities, to allow access to such information. The statutory provisions could not sensibly be interpreted in that way. Consequently, the defendants’ decision to refuse access to unrefined information was not, in all the circumstances, contrary to the purposes or intention of any statutory provision such as to make that decision unlawful.
The claimant had accepted that access to unrefined information was granted by an authority under provisions expressed as powers, namely section 111(1) of the Local Government Act 1972 and section 2 of the Local Government Act 2000. In construing statutory provisions, it was difficult and potentially dangerous to start with the intention or purpose of a statute or statutory scheme. The starting point had to be the wording of the statutory provisions. However, before considering those provisions, the claimant had failed to identify the government’s intention, by focusing exclusively on the government’s policy aim, without establishing its intention concerning the implementation of the policy.
The government did not intend to pursue its policy objective by obliging local authorities to grant access to their unrefined property information on request. Its intention was to pursue its policy of open and fair access by voluntary means, encouraging authorities to provide access, with the possibility of using coercion if necessary.
Paragraph 4 of Schedule 6 to the 2007 Regulations, which had been a transitional measure, provided that a report that did not answer all the required heads of enquiry could still be adequate for the purposes of the regulations. The claimant contended that the end of that exemption meant that the defendants’ policy had become unlawful at that point. However, the government had chosen to implement its policy in respect of access to unrefined property information without imposing a duty on local authorities. Looked at in the context of the statutory provisions as a whole para 4 was not meant to have such an effect.
Central to the claimant’s case were the Local Authorities (England)(Charges for Property Searches) Regulations 2008. The terminology of the regulations as a whole did not reflect or suggest any obligation on the part of a local authority to provide access to unrefined information. Regulation 5 stated that charges for accessing records applied where a local authority granted access to property records. The regulations had been made under section 150 of the Local Government and Housing Act 1989, which related purely to the charging function, and no new duty could lawfully be imposed on a local authority in respect of allowing access to information. Regulation 9 was expressly concerned with charges for access to unrefined information and was mandatory, but regulation 5, which concerned the substance of charging, was not and suggested that the grant of access was not mandatory. The policy document under challenge was not a regulation 9 statement. The defendants’ decision to refuse access to unrefined information was not contrary to the purposes or intention of any statutory provision such as to make it unlawful under the principles set out in Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997.
Michael Fordham QC and Iain Steele (instructed by Walker Morris, of Leeds) appeared for the claimant; Jason Coppel (instructed by Dickinson Dees LLP, of Newcastle upon Tyne) appeared for the defendants.
Eileen O’Grady, barrister
