Onesearch Direct Holdings Ltd (t/a Onesearch Direct) v City of York Council [2010] EWHC 590 (Admin)

Case No CO/7586/2009

[2010] EWHC 590 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 19/03/2010

Before

MR JUSTICE HICKINBOTTOM

Between

OneSearch Direct Holdings Ltd (formerly SPH Holdings Ltd) (trading as OneSearch Direct)Claimant

City of York CouncilDefendant

Michael Fordham QC and Iain Steele (instructed by Walker Morris) for Claimant

Jason Coppel (instructed by Dickinson Dees LLP) for Defendant

Hearing Hearing dates: 16-17 March 2010

Judgment

MR JUSTICE HICKINBOTTOM :

Introduction

[1]This claim raises important issues relating to the access granted by local authorities to others (including, particularly, property search companies), and the charging for such access, where the authority holds information relevant to a property that is being marketed.

Background to Local Property Searches

[2]Buying real estate is not for the unwary. A particular property may be subject to any number of burdens and disadvantages that might reduce its value or make it less enjoyable for an owner, in which prospective purchasers have a vital interest before committing themselves to buy. In respect of much of the relevant information (including building regulations compliance, planning permits, highway and road information, and tree preservation orders), the local authority for the area in which the property is situated not only has possession of the material, but it has a statutory duty to collect it. Indeed, in respect of some relevant information, they and they alone hold it.

[3]Some of this material held by local authorities is readily available to the public by statutory provision, either free of charge (e.g. planning consents) or on payment of a standard fee (e.g. entries on the Local Land Charges Register). However, the public do not have a right of access to all of the material by virtue of a particular and discrete statutory provision.

[4]Historically, in relation to this information, potential purchasers of a property would send a set of enquiries to the relevant local authority, and hope for a full and accurate response.

[5]Local authorities, being creatures of statute, only have powers granted to them, and duties imposed upon them, by statutory provision. Although there was no specific express power to respond to such requests, most authorities were prepared to answer enquiries. In doing so, they acted under the powers granted to them by section 111(1) of the Local Government Act 1972 (“the 1972 Act”) and/or section 2 of the Local Government Act 2000 (“the 2000 Act”). The former provides:

“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). (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. (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.

[6]The local authority had only a power to provide the responses to enquiries and charge for them. It was common ground before me - and in my judgment, rightly so - that there was no obligation on authorities to respond, either express or implied. Indeed, many authorities did not in fact respond to enquiries made, or did not respond in full. Insurance was one option where gaps in information were left by the failure or inability of an authority to respond to enquiries.

[7]These two sections (section 111 of the 1972 Act, and section 2 of the 2000 Act) are still relied upon by local authorities as provisions granting them power to provide answers to enquiries about a property in their area, or access to the unrefined information they hold about that property. It is rightly not in dispute before me that those provisions do give a local authority power to perform those functions.

[8]Part 5 of the Housing Act 2004 (“the 2004 Act”) changed the landscape for the provision of information in relation to property transactions. It imposes an obligation upon those marketing property (vendors or their estate agents) to have a “home information pack” (“HIP”), and to provide that pack to potential buyers on request. That scheme, amongst other things, removed the replication of enquiries by potential purchasers, by imposing on the seller the burden of obtaining the relevant material and then providing it to any potential purchasers.

[9]Section 163 of the 2004 Act provided that the contents of HIPs would be prescribed by the Secretary of State in regulations, so that a HIP would disclose what the Secretary of State considered to be “relevant information” , i.e. information about the property that would be of interest to potential buyers.

(c) (ii)):

“… 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.

[10]The Secretary of State prescribed the contents of HIPs in The Home Information Pack (No 2) Regulations 2007 (“the HIP (No 2) Regulations”). I shall return to those requirements but, briefly, the Regulations respond to section 163(5)(c)(ii) of the 2004 Act in regulation 8(k). That provides that a HIP must incorporate a “search report”, which, by virtue of regulation 2, must itself contain responses to sixteen heads of enquiry set out in Part 2 of the Regulations, all of which rely upon information held by the relevant local authority. That requirement has been translated into Form CON 29R, which faithfully replicates the sixteen enquiries. (Enquiries that are not mandatory are made on a different form, Form CON 29O.)

[11]Information held by local authorities is of course held in a wide variety of forms and, to be useful to potential purchasers and conveyancers, it needs to be collated, interpreted and put into useable format. Historically, as I have said, that was done by the local authorities themselves in response to a set of enquiries from a potential purchaser. However, in areas where authorities were able and prepared to allow access to their base records (“unrefined information”), private search companies (“PSCs”) were set up to obtain those data, and compile the necessary report in useable form for onward sale. The advent of HIPs, made compulsory by the 2004 Act, naturally resulted in property searches reports, and the companies who prepared them in competition with the local authorities who continued to provide a reporting service, having a raised importance. Form CON 29R in part reflects the former standard practice of local authorities themselves responding to enquiries (see, e.g., Note 2), but the signatory box (Box A) makes clear that the form might be completed either by that authority, or by a PSC or member of the public who might have access to the authority’s unrefined information. In relation to the compiling of search reports, PSCs provided some competition to local authorities.

The Claim

[12]The Claimant, OneSearch Direct Holdings Limited trading as One Search Direct, is a PSC. The Defendant, the City of York Council (“the Council”), is a local authority. In this judicial review, the Claimant challenges the Council’s published policy dated 6 April 2009 in relation to access to and charges for information it holds about properties within its area.

[13]The policy provides: “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….”.

[14]There is attached a table of charges, with the following explanation:

“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.

[15]The policy document therefore has the following features:(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).

[16]In this action, the Claimant claims that this policy is based on an unlawful exercise of the Council’s power to allow access to the relevant information, because (it is submitted) it is unlawful for the Council now to have a policy which does not allow the public (including PSCs) open access to their unrefined information.

[17]The failure of the Council to provide such access is of course detrimental to the business of the PSCs, and particularly the Claimant which has an established a 40% market share of all searches commissioned for inclusion in HIPs (First Statement of Elizabeth Jarvis dated 14 July 2009 Paragraph 11), the total market being a nine-figure sum. Where a customer of the Claimant wishes to have a search report in Form CON 29R in respect of a property within the area of the Council, as the Claimant is deprived of access to any of the relevant unrefined data, it can only purchase a full set of answers to CON 29R enquiries for a full price - even if it has much of the information provided by the Council from other sources. A PSC, such as the Claimant, is in the unenviable commercial position of having to purchase a final consumer-ready product from its (local authority) competitor, and at a price set by that competitor who has a monopolistic position in respect of the underlying, unrefined data. I shall return to this “anti-competitive” aspect of the policy, in due course.

[18]Although, as I have indicated, it is the Claimant’s contention that the Council have an obligation to allow access to their unrefined data, Mr Fordham QC for the Claimant did not suggest that, within the statutory provisions (including the relevant secondary legislation), there is to be found any express duty on local authorities requiring them to allow access to their unrefined information. He conceded that there is none. He accepted that access to unrefined information is granted by an authority under provisions expressed as powers, namely section 111 if the 1972 Act and section 2 of the 2000 Act (see Paragraph 5 above).

[19]However, relying upon Padfield v The Minister of Agriculture, Fisheries and Food

[1968] AC 997

, he submitted that, when the statutory scheme is read as a whole and in the light of the purpose for which it was put in place, upon receiving a request for access to its unrefined information, an authority can only properly exercise its power to allow access positively, by allowing such access. There is therefore, he submits, in substance, an effective implied obligation on authorities to allow such access. That was a bold submission, put boldly.

[20]I consider the public law principles to be derived from Padfield are clear and well-settled. Within our constitution, usually driven by initiatives and policies of the Government, the elected legislative arm - Parliament - is generally supreme. It is the law giver. When called upon to construe statutory provisions, the court therefore seeks the true intention of Parliament: but we deduce that from the words of the statutory provisions themselves. In a much-quoted statement of that long-standing principle of public law and approach of the courts to statutory interpretation, Tindall CJ said in the Sussex Peerage case ((1844) 11 Cl & Fin 85 at page 143):

“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

[1975] 1 All ER 810

at page 814 per Lord Reid, another much-cited passage).

[21]In considering whether statutory words are clear and unambiguous, or not, the court may look at those words in their full context. That context may drive the court to find that words are indeed not clear and unambiguous; and may further lead the court to find that Parliament intended a particular construction to be given to those words.

[22]On this approach, words as used in statutory provisions may have a different meaning from when they are used in common speech. As a matter of English language, “may” means something different from “shall”. In common usage, the former imports some discretion; the latter, some obligation. However, in Padfield, the House of Lords considered that, although under the Agricultural Marketing Act 1958 the Minister had an express power (“… if he thinks fit to do so…”) rather than a duty to refer a complaint to a committee of investigation, it was the Minister’s duty not to frustrate the policy and intentions of the Act which conferred that discretion upon him: and that, irrespective of the wording which was in terms of a discretionary power, the Minister’s refusal to refer a complaint in the circumstances of that case was not in accordance with the intention of the statute which conferred it. Therefore, a power expressed in terms of permission may, upon consideration of the statutory context in which the power is given, be accompanied by a duty to exercise it in particular circumstances. It is a perfectly sensible and proper tenet of statutory construction that Parliament is unlikely to have intended that a power granted in a statute should be exercised in such a way as utterly to defeat the obvious wider purpose of that statute.

[23]In Padfield, the power which was being considered was granted in the very statute the purpose of which - on the House of Lords’ ruling - would have been defeated by a failure to exercise that power. In such circumstances, the courts have regularly found that, by granting a power, Parliament did not intend the grantee to have an absolute, unfettered discretion as to its use. In some circumstances, although phrased as the grant of a power, the grantee must exercise the power. Therefore, as a matter of statutory construction, “may” might mean “shall”. The standard textbooks recite examples of where the courts have found that to be the case (see, e.g., Administrative Law, Wade & Forsyth, 9th Edition (2004), at page 234-5).

[24]As a matter of principle, although it may be easier in practice to show that Parliament could not have intended the grant of a power in a statute to defeat the very purpose of that same Act, I do not see why a court might not conclude that Parliament could not have intended that a power in one statute be exercised in a way that would utterly defeat the purpose of another statute: although that would be very much dependent upon the circumstances of a particular case, including, most importantly, the wording and even (possibly) timing of the specific statutory provisions. The dearth of examples from the authorities shows just how rare such cases might be, and the caution with which the courts would infer such an intention. Mr Fordham was unable to provide any such examples: but, as a matter of law, such a construction is not impossible and, as statutory schemes and relationships become more complex, it may be that such a construction is more likely to find favour. However, intellectually, it requires the court to conduct the same exercise as that performed in Padfield, namely one of construing the intention of Parliament through the words they have used in the relevant statutory provisions.

[25]Mr Fordham submitted that the Council’s decision, within its policy document of 6 April 2009, not to allow any access to unrefined information it holds would defeat the obvious and clear intention of the statutory scheme in relation to the provision of property information in the hands of local authorities, a central purpose of which is competition in the field of provision of property reports and, consequently, access to the unrefined information necessary for the preparation of such reports. The Council’s policy, he submitted, defeats that purpose, and is therefore unlawful on Padfield principles.

[26]That is the sole ground of challenge. Mr Fordham did not suggest that, other than being flat contrary to the purpose of the statutory scheme, the Council’s policy was in any other way unlawful as being (e.g.) otherwise irrational or unreasonable in a public law sense. Nor (despite what is said in the Claimant’s Skeleton Argument Paragraph 55) did he suggest before me that the Council’s failure to follow the good practice guidance issued by the Secretary of State, to which I refer below, is a discrete ground of challenge in this case. Of course, as the Council accept (Defendant’s Skeleton Paragraph 39), they have an obligation to have rational regard to central government guidance and give reasons for adopting a course different from that in any guidance: but they have provided an explanation as to why the Council does not allow access to unrefined information (First Statement of Peter Audin dated 4 August 2009 Paragraphs 9 and 11: and Summary Grounds of Defence Paragraphs 13-15), and identified some of the steps they are taking (e.g.) to enable them to answer individual CON 29R enquiries (Third Statement of Peter Audin dated 12 March 2010 Paragraph 6). These were not issues before me, the guidance being relied upon by the Claimant only to evidence what they say is the intention and purpose of the statutory scheme. The Claimant’s case is that it is always unlawful for any local authority to have a policy of refusing open access to unrefined information, whatever the particular circumstances of that local authority.

[27]The normal starting point for considering such a submission would be the wording of the statutory provisions themselves, to see whether there is any ambiguity. I must say that I would adopt a different starting point only with great caution. However, as I have indicated (Paragraph 21 above), sometimes one has to look at the wider context properly to address the question of whether particular statutory wording is clear and unambiguous or not. Both parties addressed me at some length on both the other relevant provisions in statutes and regulations thereunder, and, more especially in Mr Fordham’s case, the background material to the statutory scheme. It was submitted on behalf of each party that this material showed a Parliamentary intention which supported its respective case before me.

[28]Outside the statutory provisions themselves, much of this material sets out Government policy, which is not necessarily the same as Parliamentary intention even where, as here, Parliament entrusts much to regulations to be made by the Secretary of State. However, given the Claimant’s heavy reliance placed on it, not without some hesitation, I shall start by considering this material, before looking at the wording of the statutory provisions themselves.

The Background to the Statutory Scheme

[29]I have already referred to the fact that, historically, some local authorities did not respond fully to enquiries about properties within their area, even in respect of information which uniquely they held.

[30]Concerns about the limits on the availability of some property information and the potential for abuse by local authorities of its position because of a lack of competition, led to a market study on property searches by the Office of Fair Trading (OFT 810, September 2005) (“the OFT Report”). Even then (pre-HIP), property searches were a large market, worth an estimated £190m per year in England, Wales and Scotland (OFT Report, Paragraph 1.8), with prices charged by local authorities in England and Wales ranging from £55-£269 with a median of £119 (Paragraph 3.16).

[31]The OFT Report concluded that those concerns were well-founded. It stated (at Paragraphs 4.3 and 4.4):

“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.”

[32]The report recommended, in Paragraphs 4.4 and 4.5, that: “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.

[33]Having firmly concluded and recommended that “PSCs must be able to obtain all the unrefined property information need to compile a local property search for inclusion in a HIP” (Paragraph 4.32), and on a level playing field with local authorities themselves, the OFT Report went on to consider how that might be effected (Paragraphs 4.34 and 4.35):

“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.”

[34]The OFT, in this seminal report, therefore(i) made a clear and firm recommendation that unrefined information should be made available by local authorities, and

(ii) identified two means of implementing their recommendations namely by encouraging voluntary compliance through guidance with regard to good practice, or by making compliance compulsory through legislative change. Of those possible modes of implementation, the OFT recommended the former route.

[35]The Government responded to the OFT Report in December 2005 (Property Searches - Government Response to Office of Fair Trading Property Searches Market Study, December 2005).

[36]The Government accepted the recommendation in Paragraph 4.34 of the report (see Paragraph 33 above), in the following terms (Paragraphs 6 and 16):

“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….”

[37]In relation to how this might be effected, the Government said (at paragraphs 11 and 12):

“… [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”

[38]With regard to Paragraph 4.35 of the OFT Report (concerning charging), the Government responded by saying that it was envisaged that detailed guidance would be published, to “sit below a high level set of principles to be published by central government, as to which costs should be recovered from fees” (Paragraph 25).

[39]Therefore, in essence, the Government accepted the recommendations of the OFT, both with regard to the need for authorities to give access to unrefined information, and with regard to the method of implementation. I have dealt with that initial response of the Government to the OFT Report at some length because, as we shall see, the Government have not diverted from the course they set in that document.

[40]Understandably, given the Government intention to proceed by way of encouragement, guidance and a voluntary approach, to help progress the implementation of the OFT’s recommendations in the run up to the introduction to HIPs, the Secretary of State established the Communities and Local Government’s Property Searches Working Group, comprising members from local authorities, the property searches private sector and government departments. That assisted in preparing draft good practice guidance, which was put out to consultation by the Secretary of State in May 2007 (Delivering Property Searches: Good Practice Guidance for Local Authorities and Personal Searchers). That identified two issues for implementation of the recommendations, namely how access to allunrefined information held by local authorities might appropriately be given (Paragraph 3.3) and how it might be charged for (Paragraph 3.4).

[41]This consultation paper confirmed, and indeed stressed, both the Government policy to enable access to all unrefined property information in the hands of local authorities, and its proposed mode of implementation. The Government promoted an approach that would not impose a duty on local authorities to allow access to information (that would, in the Government’s view, have required primary legislation), but rather to set “clear standards of conduct and expected levels of service for both [local authorities] and private searchers” (Paragraph 10 of the Partial Regulatory Impact Assessment at Annex 3 to the consultation paper) by “[encouraging local authorities] to adopt the ‘best practice’ approach rather than the ‘mandatory’ approach to providing access to unrefined information” (Paragraph 16).

[42]The whole document resonates with encouragement to local authorities to make undefined information available, and the expectation of Government that, with that encouragement, they would do so. It said, for example: “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).

[43]However, importantly, it also stressed that “it does not reflect new duties on either [local authorities] or [PSCs]” (Paragraph 2.10), and further confirmed (at Paragraph 38 of the Partial Regulatory Impact Assessment):

“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.”

[44]In other words, as robust as the encouragement might be, the mode of implementation deliberately fell short of imposing an obligation upon local authorities to allow access to unrefined information. If that approach failed (the Government, of course, setting the standard of “success”), then the Government indicated that, then, they would have to consider imposing an obligation in the form of primary legislation.

[45]In January 2008, following the consultation to which I have referred and in line with his chosen mode of policy implementation, the Secretary of State published his promised practice guidance (Personal Searches of the Local Land Charges Register and Other Records held by Local Authorities: Good Practice Guidance for Local Authorities and Personal Searches). This guidance can properly be considered here because, as I have said (Paragraph 26 above), Mr Fordham relied upon it only to evidence the parliamentary intention (which, he submitted, the Council’s policy defeats).

[46]Having confirmed Government acceptance of the OFT recommendations that local authorities make available all unrefined property information needed to complete a HIP search report (and on terms which do not disadvantage PSCs as against local authorities themselves), the aims of the guidance are made clear from the foreword, by the relevant Minister of State (Iain Wright MP):

“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.”

[47]The guidance itself much reflected the earlier draft, encouraging authorities to allow access, and repeating the OFT recommendation that “central government should consider the case for legislative change if a best practice approach [which the guidance represented] failed” (Paragraph 1.7).

[48]The Government having set out its stall in respect of both policy and mode of substantive implementation of that policy, it turned its attention to charging. Later in January 2008, it issued a further, lengthy consultation paper on charging (Local Authority Property Search Services: Charges for Property Search Services: A Consultation Paper). Local authorities had a concern that, if they provided access to unrefined information, they would not recover the costs of that service. This paper, amongst other things, addressed that issue, by proposing that, in relation to access to unrefined information, local authorities should be able to provide that service on a cost-recovery basis - but only if the charges reflected the “internal sale” of such information to the authority’s own report-producing arm, and were transparent. The paper, although indicating that access and charging were inextricably linked (Paragraph 2.8), proceeded on the basis that it was in pursuit of and progressed the implementation of the OFT recommendations as to policy and mode of implementation of that policy which had been accepted by the Government.

[49]A second charging consultation paper, which sought comments on draft charging regulations, was issued in July 2008. The foreword (in the name of the same Minister of State and his equivalent in the Welsh Assembly Government, Jocelyn Davies AM) was again written to reflect the voluntary nature of the underlying scheme that encouraged authorities to allow access to their unrefined information:

“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.”

[50]I shall return to that reference to “insurance”, and indeed the charging regulations that were eventually implemented. However, this consultation paper, in July 2008, did nothing to suggest that the mode of policy implementation determined by the Government had changed.

[51]The responses to the two charging consultation papers were published in November 2008. Again, there is nothing in this document that suggests the Government considered that the new regime would impose a new obligation on local authorities to provide access to all their unrefined information. Indeed, once more, the document is written on the basis that the new regime will be voluntary; although the Government considered that the new charging regulations, by providing that authorities could recover their costs of providing access to such information, would in practice increase access. However, recognition by the Government that “more work needs to be done” (Paragraph 8.13) makes clear that, even in November 2008, the Government did not consider that the new regime (which included the new charging regulations, and the ending of the “insurance provision” to which I shall shortly come) would result in an obligation upon every local authority to provide access to all their unrefined property information. Had that been the case, there would have been no “more work to be done”, so far as the Government was concerned, with regard to such access.

[52]Finally, I was referred to a letter sent in (I believe) February 2009 by the Minister of State to all local authorities, which refers to the “[completion of] our implementation of the OFT’s recommendations”: and to the fact that, the ending of the ability of PSCs to use insurance “means that they must be able to obtain the necessary data”. That, once again, underlines the consistent approach of the Government to the implementation of the OFT recommendation, with regard to both policy and how that policy ought to be implemented. The reference to the need for PSCs to have access to unrefined information is, in context, no more than further exhortation to the local authorities to allow such access. Given the Minister’s comments in the various consultation and guidance documents to which I have referred, it cannot be construed as more.

[53]From this material, Mr Fordham urged me to find that the intention of the Government, and hence Parliament and the Secretary of State, was manifestly clear. The purpose of the statutory provisions was “to secure fair competition between search companies and local authorities” (Claimant’s Skeleton Argument Paragraph 8). In pursuit of that, it was the intention to make all unrefined property information in the hands of local authorities available to the public, and particularly to PSCs. It was that intention, he submitted, that the Council’s policy entirely destroyed. By exercising their power to allow access to that information negatively - i.e. by refusing all access - the Council were deliberately thwarting the whole intention and purpose of the statutory scheme, which was to allow that very access and thereby secure competition between local authorities and PSCs.

[54]With respect to Mr Fordham’s powerful and lucid submissions, I consider that this approach represents a simplistic view of Parliamentary “intention”.

[55]I accept that, from these documents and for the purposes of this application, the Government’s policy is clear. From its first response to the OFT Report, the Government has pursued a policy, as recommended in that report, to deliver open access to all local authority-held data necessary to compile a property search, to ensure consumers have all the relevant information upon which to base decisions when buying a home: and to do so in such a way that there is a level commercial playing field for both local authorities and PSCs for the provision of such reports, given that local authorities have a unique, monopolistic hold on the unrefined information needed to complete such reports. The consistency of that Government policy appears manifestly clear.

[56]However, so is the Government’s chosen mode of implementing that policy. The OFT Report recommended an approach falling short of coercion of the local authorities, preferring one based upon obtaining the cooperation of authorities, which was to be encouraged by good practice guidance. The Government accepted that recommendation too, and did not deviate from it throughout the lengthy consultation process. Perhaps such guidance (and the consultation upon it) would not have been necessary if the Government had imposed an obligation on local authorities to give open access, at least in the form in which it was in fact made. Certainly, had the Government intended to impose a significant additional duty on local authorities, they would have been bound to have consulted on that. They did not do so. These documents clearly indicate that the new regime was intended to impose no new duty upon authorities in relation to access: in relation to implementation of its policy, the Government intention appears clearly to have been one that fell short of obliging or coercing local authorities to give access to all their unrefined property information upon request.

[57]Further, I do not accept Mr Fordham’s premise that “the purpose of the statutory provisions [is] to secure fair competition between search companies and local authorities… The central purpose was to secure fair and effective competition” (Claimant’s Skeleton Argument Paragraphs 8 and 24). The statutory scheme is driven by concern for consumers: a concern that consumers should have full, efficient and cost-effective access to information about properties in which they have an interest as potential purchasers. It arose out of an OFT Report. The securing of competition between local authorities and PSCs is a means to an end, not an end in itself. It is but one piece of a complex jigsaw of consumer-orientated measures designed to ensure that consumers have full relevant information in respect of any property that they have an interest in buying.

[58]In my view, in construing statutory provisions, it is difficult and potentially dangerous to start with the “intention” or “purpose” of a statute or statutory scheme, as Mr Fordham did in this case. That difficulty and danger are compounded when a focus is maintained, not on the intention of Parliament, but the policy of Government. The starting point should be the wording of the statutory provisions themselves.

[59]However, before considering those provisions, in my judgment, the Claimant has failed properly or fully to identify even the Government intention in these reforms, by focusing exclusively upon the policy aim of the Government, without proceeding to look at the Government’s expressed intention so far as the mode of implementation of that policy is concerned. When looked at as a whole, from this material, it was clearly not the Government’s intention to pursue its policy objective by imposing an obligation on local authorities to allow access to their unrefined property information upon request. Its intention was to pursue its policy of open and fair access by voluntary means - by encouraging, not obliging, authorities to provide access - with the possibility, expressly left open, of proceeding to coercion (which the Government appear to accept would need primary legislation, and would certainly need consultation) if that mode of implementation did not achieve that policy end or did not achieve it quickly enough.

[60]However, that is not determinative of this application, because Government policy in vacuo cannot be determinative of issues of statutory construction. Having looked through the telescope the wrong way, it is now necessary to turn it round and look again. What do the relevant statutory provisions say?

The Relevant Statutory Provisions

[61]Mr Fordham accepted that there was no express duty in any statutory provision that obliged the Council to allow access to unrefined information. However, in support of the claim, in addition to the material to which I have already referred, he relied upon, primarily, the new charging regulations, but also the 2004 Act and the HIP (No 2) Regulations. He said, with some justification, these can and should be regarded as part of one regulatory regime.

[62]Looking first at the HIP (No 2) Regulations, as I have indicated, these oblige anyone marketing a property to have (and provide to any potential purchaser) a HIP incorporating a search report covering all of the heads of enquiry identified in part 2 of schedule 6 to the Regulations. Having such a report is a mandatory requirement of marketing a property, and, by Regulation 8, it has to contain all of the enquiries listed in parts 1 and 2 of schedule 6.

[63]However, as a transitional measure, paragraph 4 of schedule 6 provides that a report may fail to answer all of those enquiries and still be adequate for the purposes of the Regulations, if all of the circumstances set out in that regulation apply. The first is that the first point of marketing was before a specific date (regulation 4(a)) which, following amendment (by the Home Information Pack (Amendment) (No 3) Regulations 2008 (SI 2008 No 3107) (“the HIP Amendment Regulations”)), was eventually fixed at 6 April 2009. That made clear, from the outset, that this exemption was a transitional measure. Other circumstances were:

“(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).

[64]Although referred to as “the insurance provision” (because of the terms of regulation 4(e) above), the focus and effect of this exemption is to allow someone marketing a property to have and provide an incomplete search report, so long as the gaps result from a local authority failing to allow access to unrefined information and are covered by effective insurance. That exemption therefore allowed PSCs to prepare reports that complied with the HIP (No 2) Regulations, even in circumstances in which they were denied access to the raw data and consequently could not complete a full report.

[65]As I have said, the paragraph 4 exemption was always intended to be transitional and time limited. From the materials to which I was referred, the Government appear to have considered that the option of having an incomplete search report was not beneficial to consumers, but wished to have various reforms (including the new charging regulations) in place before the exemption was withdrawn, because they considered that those steps would encourage authorities to grant full access.

[66]Mr Fordham conceded, rightly, that, this provision pre-supposes that, prior to 6 April 2009, a local authority could have had a lawful policy of refusing a private searcher (including a PSC) access to unrefined information. There is express reference to such a policy in paragraph 4(c). However, he submitted that, after 6 April 2009, it is implicit in this regulation that such a policy must be unlawful - because the intention of the Government was to allow open access to such information on a cost recovery basis, and allow the pricing of search reports based on such data to be settled by the element of competition. Once the regulation 4 exemption does not apply, then, in respect of authorities that refuse to allow access to information, there is no element of competition. That, he submits, cannot have been the intention.

[67]I do not agree. Again, in my view, this submission concentrates upon the long term Government policy or aim, at the expense of any consideration of(i) its intention with regard to implementation, and

(ii) the other statutory provisions of the scheme. The Government have chosen to implement its policy in respect of access to unrefined property information without imposing any duty upon local authorities. They made it clear in the consultation documents to which I have referred that they did not intend to impose any new obligation on authorities. There was no consultation on imposing such a duty. I agree with Mr Coppel’s submission, that it would be extraordinary in those circumstances if the intention inherent in the withdrawal of this exemption - not by repeal, but dwindling by dint of time through a transitional period - was to impose such a duty. Indeed, it would be the more extraordinary, because the HIP (No 2) Regulations were made under section 163 of the 2004 Act, which relates simply to the content of HIPs, and therefore the imposition of such a duty in these regulations would be ultra vires. In my view, looked at in the context of the statutory provisions as a whole, it was not (and could not have been) the intention of paragraph 4 to have such an effect. Nor, given the background to which I have referred and the other relevant statutory provisions (some of which I shall refer to shortly), do I consider that paragraph 4 in any way reflects any new, post-6 April 2009 obligation on authorities to allow access to unrefined information derived from elsewhere.

[68]What paragraph 4 does show - as Mr Fordham accepts - is that, until April 2009, local authorities could, without doubt, lawfully have had a policy of refusing access to unrefined information. That enforces the submission of Mr Coppel as to the extraordinariness of Mr Fordham’s contention that there was a sea-change on 6 April 2009, in the face of the consultation documents not referring expressly to such a proposed change. Further, it undermines Mr Fordham’s submissions in relation to the charging regulations, that were made on 16 December 2008 (coming into force the following day), well before April 2009, to which I shall turn shortly.

[69]However, before I leave paragraph 4, I would briefly refer to the Explanatory Memorandum to the HIP Amendment Regulations. This accompanied the tabling of those Regulations in December 2008. There are references throughout that document to “improving” access to unrefined information in the hands of local authorities: but, importantly in my view, there is a reference to:

“By 6 April [2009] 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.

[70]In respect of the HIP (No 2) Regulations, Mr Fordham also relied upon paragraph 5 of schedule 6, which provides:

“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.

[71]I do not agree. That provision, too, has to be read in its full context. It proceeds to impose conditions upon those who prepare reports (e.g. that they use reasonable care and skill), and the thrust of that paragraph appears to me to be the imposition of those conditions upon anyone who does prepare a report, rather than the imposition of a duty on a local authority to allow open access or even a recognition that such an obligation exists. That is reinforced by the other statutory provisions to which I have referred.

[72]I now come to the charging regulations themselves. Following the consultation to which I have referred, new provisions for charging were made in The Local Authorities (England) (Charges for Property Searches) Regulations 2008 (SI 2008 No 3248) (“the Charging Regulations 2008”). These are described in the Claimant’s Skeleton Argument as “the central instrument in the case”.

[73]Mr Fordham made two submissions in relation to specific regulations - with which I will deal, in turn - but, may I first make three preliminary points. First, looking at the terminology of the Regulations as a whole, it does not generally reflect or suggest any obligation on the part of a local authority to provide access to unrefined information. In regulation 2, “access to property records” is defined as (with emphasis added):

“… 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).

[74]Second, although the Claimant contended that the Charging Regulations 2008 “were designed to bring certainty and clarity to the question of charging and access” (emphasis added), these regulations were made under section 150 of the Local Government and Housing Act 1989, which relates purely to the charging function. Consequently, no new duty upon a local authority in respect of allowing access to information could, lawfully, be imposed here. In any event, as I have indicated, Mr Fordham conceded that, until 6 April 2009, a local authority could have a lawful policy of refusing access. The Charging Regulations 2008 were made, and brought into force, in December 2008.

[75]Third, before the Charging Regulations 2008 were made, it was though fit to make an Order disapplying section 93(1) of the Local Government Act 2003 (The Local Authorities (England) (Charges for Property Searches) (Disapplication) Order 2008 (SI 2008 No 2909)). That disapplication was necessary, if that section applied, because section 150 of the Local Government and Housing Act 1989 (under which the Charging Regulations 2008 were made) only allow regulations to be made if no other charging power exists. Section 93(1) only confers a power on local authorities to charge for discretionary services. As Mr Coppel pointed out (Defendant’s Skeleton Argument Paragraph 21)-22), consequently, if the Claimant were correct, and the intention was to make it obligatory for a local authority to respond to a request for access to unrefined information, section 93(1) would have had no relevance. That is another indicator towards there being no such duty, either by virtue of the Charging Regulations 2008 or otherwise.

[76]I now turn to Mr Fordham’s two submissions in relation to specific regulations.

[77]First, regulation 5 provides that charges for access to property records must be calculated in accordance with regulations 6 and 7. In short, they provide that an authority can charge on a cost recovery basis, taking into account the authority’s “internal transactions” with the arm of that authority that itself prepares and provides search reports. In pursuit of the principle of transparency, regulation 9 provides that, for each financial year, a local authority must publish a statement setting out the estimate of total costs and requests, the basis of those estimates and the amount of the unit charge it proposes for the following financial year. That is expressly concerned with charges for access to unrefined information - regulation 9 refers back to regulation 6(2) - and it is in mandatory terms. That submitted Mr Fordham, must be a reflection on the fact that a local authority must make the records available, otherwise there would be nothing in relation to which regulation 9 could bite.

[78]At first blush, there is force in that submission. However, in terms of statutory construction, the tail cannot wag the dog. First, for the reasons I have given, these regulations cannot in themselves found a duty in local authorities to provide full access to property records. Second, although regulation 9 (which concerns merely transparency of charging calculations) is in apparently mandatory terms (“must”), regulation 5 (which concerns the substance of charging) is, as I have indicated, not. Regulation 5 suggests that the grant of access is not mandatory.

[79]Although the Council policy document of 6 April 2009 under challenge refers to regulation 9, in substance it is not a regulation 9 statement nor did Mr Coppel suggest that it was. Regulation 9 concerns charges for access to unrefined information which, as the policy document itself makes clear, the Council will not grant. The reference to regulation 9 in the policy document is unhelpful, but in context not, in my judgment, misleading. The table in the document sets out how the Council propose to charge for answering enquiries, under regulation 8. That regulation is not constrained by the limits of cost recovery: but the statement of 6 April 2009 makes clear that the Council propose to charge for that service only on a cost recovery basis, and set out, transparently, how they have made the relevant calculation. The methodology they use (which, under regulation 8, in respect of answering enquiries, is in the discretion of the authority) is the same as the methodology of regulation 9 (which, under regulation 6, in respect of granting access to unrefined information, is mandatory).

[80]Second, again focusing on regulation 5, in the draft of the charging regulations that was attached to the July 2008 consultation paper (see Paragraph 49 above), regulation 5(1) and (3) read as follows:

“(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.

[81]However, I do not consider that the Claimant’s case gains any comfort or strength from these changes. As I have said, these regulations could not possibly have imposed a new obligation on local authorities to provide access to records, as a matter of vires. Further, in my view, the addition of the word “where” in regulation 5(1) makes it clear, if it was not already so, that there was no such obligation arising from elsewhere.

[82]In all of the circumstances, I do not consider that the 2008 Charging Regulations substantively assist the Claimant’s case.

[83]Mr Fordham did not particularly refer me to the specific powers under which the Council may grant access to its unrefined records, namely the general powers under section 111 of the 1972 Act and section 2 of the 2000 Act. Either of those provisions, submitted Mr Coppel, gives the Council sufficient power to grant access: although the Council prefer to consider the function is performed in exercise of the power under section 2. That section grants a power to a local authority “to do anything which they consider is likely to achieve… the promotion or improvement of the… well-being of their area” (see Paragraph 5 above). Mr Coppel accepted that, if the Council decided to exercise its powers not to afford access to unrefined data and not to provide answers to enquiries, then that might (indeed, he frankly conceded, would) be unlawful, given that, with the HIP regime, that would mean that no property transfers could take place at all within their area. The decision neither to allow access to unrefined information nor to answer CON 29R enquiries could not properly be taken under section 2, as that would severe damage, rather than promote or achieve, the “well-being” in the area. However, in any event, he said that the negative exercise of both those powers in those circumstances would simply be an irrational exercise of powers, whether under section 2 or section 111. I see the clear sense in that concession. But that is not the case here. The Council do provide completed Forms CON 29R to those who make a request. That is what is needed in terms of the 2004 Act and HIP (No 2) Regulations, to enable property to be marketed and traded.

[84]In not providing access to unrefined information, the Council may well not now complying with the policy aim of central government, which is to enable open access to all unrefined information in the hands of local authorities needed to complete CON 29R enquiries. However, in my judgment, the Claimant has failed to show that that is contrary to the Government’s intention, which encompasses not only long-term policy aims but also the mode of their implementation. The Government have drawn back from seeking to impose an obligation on authorities to allow such access, at least at this stage. Nor, in my judgment, is the Council’s 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 is no compelling evidence that Parliament and the Secretary of State have, contrary to the intention of the Government who brought forward the relevant matters, made statutory provision including a new duty on local authorities to allow access to such information. That cannot sensibly be wrung out of the statutory provisions.

[85]Consequently, I do not consider it can be said that the decision of the Council to refuse access to unrefined information is, in all of the circumstances, contrary to the purposes or intention of any statutory provision, such as to make that decision unlawful under the principles of Padfield.

[86]That is, in my judgment, how matters currently stand. Of course, Government policies and their implementation do not stand still. As the consultation documents clearly indicate, if the Government is not satisfied with the progress towards its policy aim in this context as a result of the measures they have put in place, the remedy is in their hands. They can bring forward suitable legislation. But that is not a matter for this court.

Conclusion

[87]For the reasons I have given, I do not consider that the Council is obliged to allow open access to all of its unrefined property information, and I do not consider its policy document of 6 April 2009 which is based upon that premise, is unlawful. I dismiss the application.

Postscript

[88]I appreciate that this case has been described as a test case, and there are more authorities than the Council who have, since last April, not provided full access to unrefined property information. I understand that there are approximately 370 authorities in England and Wales, of which about two-thirds of authorities are providing full access and one-third are not (First Statement of Elizabeth Jarvis dated 14 July 2009 Paragraph 44: and the Explanatory Memorandum to the HIP Amendment Regulations).

[89]It may well be that this judgment will resolve some or all issues between PSCs and other local authorities. However, I do not know what those issues might be: and I stress that I have only decided the issues that are before me. As I have indicated, the Council have calculated charges for provision of enquiry answers on a cost recovery only basis. If another Council makes charges that include a significant profit element - and, particularly, if the charges betray an improper use of their monopolistic position in respect of raw data - that may raise different issues, and may result in a different answer from the answer in this case. Whether any particular authority has acted lawfully will inevitably depend upon the facts relating to that particular authority. On those other potential issues, that do not arise in this case, I offer no opinion.

[90]Finally, may I thank Mr Fordham, Mr Steele and Mr Coppel for their contribution to this case. Their submissions were, as usual, able and well-focused, and particularly assisted me in identifying and determining the issues raised by this application.