A private affair

City of York Council recently won a test case to maintain privacy of property search information. Neil Harrison explains the ruling.

The judgment in the judicial review by personal search company One Search Direct against City of York Council has been handed down following the hearing of the case before Mr Justice Hickinbottom in March. As a result of the case, the Council’s policy was held to be lawful and the claim by One Search Direct was dismissed.

Important issues were raised with this claim about the external access to property information granted by local authorities, in particular to property search companies, and the charging for such access, where the authority holds information relevant to a property that is being marketed.

The Claim

The test claim issued by One Search Direct was a challenge to City of York Council’s policy which makes information in response to property search enquiries available at a fee. The council does not provide personal searchers with access to its underlying property records, except where certain registers of information are required by statute to be open to public inspection. Instead, like many other local authorities, it generates a standard list of responses to the local land searches (CON29R) questions, for a fee.

The claim against the council was that their policy was unlawful because they should have provided greater access to their property records and should have provided answers to individual CON29R questions, either by opening up its records, or by answering individual questions, rather than answering all, or none of them.

One Search Direct’s main contention was that the policy was unlawful because it breached the Local Authorities (England) (Charges for Property Searches) Regulations 2008. It also included a claim that the policy was unlawful because it breached best practice guidance issued by the Secretary of State in January 2008 which, it alleged, required local authorities to make all necessary property records available in order to complete a property search.

The Court decided that the council may have not been complying with the policy aim of central government to provide open access to all unrefined information needed to complete CON29R enquiries. However, it held that One Search Direct had failed to show that this was contrary to the government’s intention, which encompasses not only long-term policy aims but also the method of their implementation.

Since the government drew back from looking to impose an obligation on authorities to allow such access, the Court held that the council’s policy of refusing access to unrefined information was not contrary to the aims and purposes of statutory provisions, including the subsidiary legislation made by the Secretary of State. It decided that there was 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.

As a result, the Court did not consider that the decision of the council to refuse access to unrefined information was, in all of the circumstances, contrary to the purposes or intention of any statutory provision, and was therefore not unlawful under the principles of Padfield v The Minister of Agriculture, Fisheries and Food [1968] AC 997.

The conclusion therefore was that the council was not obliged to allow open access to all of its unrefined property information, and did not consider that its policy, which was based upon that premise, was unlawful. One Search Direct’s application was therefore dismissed.

Comment

This case has been described as a test case and it may be that it resolves some of the issues between local authorities and personal search companies. However, it must be noted that the judgement was based on the particular issues before the judge. Therefore, whether an authority has acted lawfully will depend upon the particular circumstances of any case. Clearly this case has important implications for both local authorities and personal search companies and it will be interesting to see what the future holds.

Newcastle-based law firm Dickinson Dees acted for City of York Council in this claim and instructed Jason Coppel of 11 Kings Bench Walk. For more information regarding this, please contact Neil Harrison, associate at Dickinson Dees at This email address is being protected from spambots. You need JavaScript enabled to view it. or Glen McCusker, Senior Solicitor at York City Council at This email address is being protected from spambots. You need JavaScript enabled to view it..