The 6th of October saw a CJEU ruling which has potentially far reaching ramifications for conveyancers and property search professionals across England and Wales. In what may prove a seminal decision the CJEU in East Sussex v Information Commissioner held that contrary to the challenge, local authorities are not precluded under EU law from charging overheads attributable to staffing costs when responding to individual requests for environmental data. On the face of it this appears a relatively simple decision but in a slightly depressing resumption of service as usual, further examination reveals that the CJEU has once again been asked a simple question and stopped short of answering definitively (more on which later). Whilst this decision arguably raises more questions than it resolves, the real question for conveyancing professionals is are we likely to see a spike in the fees being charged for data by local authorities?

Before attempting to answer the self-imposed hypothesis a little context to the decision is needed.  The ability of Local authorities to charge for the provision of property search information is a contentious one; naturally where you sit on the divide tends to directly correlate to whether you work in land charges or for a law firm or property search provider. The ‘public data should be free at source versus should the taxpayer foot the bill for what are essentially private matters’ debate is a long and circular one which this writer does not have the will to embark on so soon after Halloween festivities but its existence is an important factor in why the question was put to the CJEU in the first place. Historically it was thought that the governance of any charges imposed by local authorities came from the Local Authorities Charges for Property Searches Regulations 2008 (CPSR , which permit local authorities to recover the staffing, maintenance and overhead costs of making such information available. There has in recent years however been a growing awareness that the body of data requested for property searches is in the most part environmental in nature. This would appear to mean (and indeed this is the line most local authorities have taken) that the imposition of charges is in fact governed by regulation 8 of the Environmental Information Regulations 2004. Regulation 8 implements Article 5 of Directive 2003/4/EC allowing ‘reasonable’ charges for the provision of environmental information.

In the phrase ‘reasonable’ lies the problem, with many councils (such as East Sussex in the subject case) deeming this to allow local authorities to charge for the upkeep and maintenance of the data or registers used by private search companies. This was the position challenged by search provider PSG, eventually referred to the CJEU through an appeal to a decision made by the Information Commissioner against charges imposed by East Sussex in the Upper Tribunal.  In East Sussex the plaintiff applied for answers to the standard questions on the law society approved CON29R form, the local authority then mistakenly applied a fixed charge for the provision of this data, taking into account staff costs, overhead costs and the costs of maintaining relevant information systems, something which the CPSR permitted.  EIR Regulation 8 EIR implementing Article 5 of Directive 2003/4/EC however holds that no charge may be implemented for permitting access to public registers or requests to view the information in situ.

It was the apparent misapplication of this regulation that East Sussex centred on, to be fair to the CJEU on the question of just what public bodies could recoup in charges it was prima facie relatively clear.  It stipulated that any charges must rely to the supply of information and that the ‘supply’ must be something above and beyond the costs of maintaining the register or list of environmental data. At  [33]-[38] the charges encompass “not only postal and photocopying costs but also the costs attributable to the time spent by the staff of the public authority concerned on answering an individual request for information, which includes the time spent on searching for the information and putting it in the form required. Such costs do not arise from the establishment and maintenance of registers and lists of environmental information held and facilities for the examination of that information“.  Whilst the court did not give a definitive answer on what would constitute a reasonable charge in these circumstances it did at least submit that at [44] costs of £1-£4.50 per question were unlikely to contravene the reasonable requirement. It must be submitted however that a failure to clearly define the upper limits of what is a reasonable cost for staff time, postage and photocopying, leaves this open to interpretation and the inevitable fresh round of disputes this brings. Indeed the application of case  C-217/97 Commission v Germany [1999], in stating that any charge must be reasonable as not to deter anyone wishing to exercise their right of access to publicly held environmental information feels too wide, to sufficiently clarify the debate.

One can’t help but feel that with East Sussex a golden opportunity to clarify the issue has been missed, in terms of the wider debate it’s a bit of a non-decision. That councils should be able to charge for staff time, is something very few within the industry wilfully disagree with.  It is the potential for misapplication of this right which has historically sparked debate and will continue to do so. What is to stop local authorities reallocating the costs previously charged for system maintenance to ‘staff time’? Coupled with this the framework for challenging erroneous costs is expensive and convoluted, with any challenger needing to rely upon a long trek up the court ladder before the local authorities’ actions can be judicially reviewed.

To answer the original hypothesis, the outlook is a mixed one for conveyancing professionals. Whilst EIR is not about to be torn up anytime soon and still remains an important tool for those wishing to access publicly held environmental data, the position lacks clarity. The test for ‘reasonableness’ in costs, leaves the current system as open to abuse as it was pre East Sussex, with this is mind it is likely that PSG are to be the first of many search companies starting the long trek up the legal ladder.