An important line was drawn in the sand on 6 October when the European Court of Justice (ECJ) decided local councils were allowed to charge for the cost of time involved in supplying environmental information.
The ruling affects not only property searches but has wide ranging implications for the charges authorities can levy for all types of environmental information.
Property buyers, home owners, property search agencies and other interested parties make many thousands of requests for property searches and other types of environmental information from public authorities every year.
The ruling clarifies what public authorities can charge for environmental information and, importantly, means they will be able to offset the costs of time their staff spend searching.
This follows a series of disputes between local authorities and property search agencies. The courts had previously held that under the Environmental Information Regulations, authorities were restricted to charging only disbursements such as photocopying and postage and could not recover the costs of staff time. The ECJ has confirmed that authorities can recover the costs associated with this significant call on human resources.
We acted on behalf of East Sussex CC and 314 other LGA member authorities across the country following a legal challenge brought by the Property Search Group (‘PSG’).
The ECJ’s decision supports the earlier opinion of the advocate general but only applies to providing environmental information under the Environmental Information Regulations (2004).
Local authorities are under huge pressure to provide fast and accurate information on a wide range of environmental issues. The 2004 regulations provide public access to recorded environmental information held by public authorities in England, Wales and Northern Ireland. Public authorities must make environmental information available proactively, and members of the public are entitled to request environmental information.
Environmental searches were introduced primarily to comply with legal concerns about contaminated land under the Environmental Protection Act 1990. More recently, these searches have widened to include information on a vast number of environmental issues such as flooding or ground stability that which could affect property values, and purchasers’ decisions about whether or not to proceed.
The court drew a distinction between staff costs and various overhead costs because, in its view, maintenance costs are incurred anyway by authorities in complying with their wider obligations.
The decision is now binding law and any charges levied for supplying environmental information must be consistent with the decision. All public authorities will now need to identify, assess and review how they process and provide environmental information to ensure they comply with the 2004 regulations and this ruling.
Public authorities will be able to put in place charging processes that reflect the vast amounts of time and effort put in by their land charges, information management and other teams and to recoup those costs.
Virginia Cooper is a partner at law firm Bevan Brittan