Mixed outcome for councils as EU court rules on property search charges

Local authorities are not permitted under EU law to include in the amount they charge property search companies for supplying environmental information any part of the cost of maintaining databases, the Court of Justice of the European Union has ruled.

In East Sussex v Information Commissioner the court said councils could, however, include the overheads attributable to the time their staff spent on answering individual requests for information, “properly taken into account in fixing the charge, provided that the total amount of the charge does not exceed a reasonable amount”.

In its ruling the CJEU went on to find that Article 6 of Directive 2003/4 must be interpreted as not precluding national legislation under which the reasonableness of a charge for supplying a particular type of environmental information is the subject only of limited administrative and judicial review as provided for in English law.

However, this is “provided that the review is carried out on the basis of objective elements and, in accordance with the principles of equivalence and effectiveness, relates to the question whether the public authority making the charge has complied with the conditions in Article 5(2) of that directive, which is for the referring tribunal to ascertain”.

The CJEU judgment follows a referral by the First-tier Tribunal (Information Rights), which has been hearing a challenge by the Property Search Group to East Sussex’s charging for the supply of information to a property purchase.

The ruling will have implications for local authorities and agencies such as water companies, the Highways Agency, the police and the NHS, according to Bevan Brittan, which advised the Local Government Association (as intervener) on the case.

The law firm pointed to previous decisions by courts in England and Wales which it said meant that public authorities could only recover disbursements such as photocopying and postage costs when supplying environmental information.

"The ECJ’s decision means that authorities can recover the costs of staff time spent supplying environmental information, and producing information in the format requested – by recovering costs including paper and photocopying," it argued.

Partner Virginia Cooper, who led the Bevan Brittan team, said: "This is a landmark decision which, for the first time, clarifies the costs that public authorities can recover for supplying environmental information regardless of whether it has been requested under the Environmental Information Regulations."

She insisted it was "a positive legal outcome for local authorities that are under huge pressure to provide fast and accurate information on a wide range of environmental issues".  

Cooper added: “The scope of environmental information held by public authorities is vast – encompassing land use, housing development, pollution levels, public health, energy production, water and waste management....  

“All public authorities should now review and assess how they process and provide environmental information to ensure they are both complying with the Environmental Information Regulations 2004 regulations and the specifics of this new ruling by the [CJEU].”

Cllr Claire Kober, Lead Resources Portfolio Holder for the LGA, said: “This decision is good news for councils who will now have clarity over the costs that they can recoup for providing, finding and sending environmental information.

“Councils use significant amounts of staff time and resources providing the hundreds of thousands of requests they can receive each year from property search agencies. It is right that local government can continue to charge for this and that local taxpayers aren’t expected to foot the bill.”

See also: Charging ahead under the EIR - 11KBW's Christopher Knight analyses the CJEU's ruling.