Water and drainage searches do not fall under EIR regime, judge rules
A group of property search companies have failed to persuade a High Court judge that CON29DW water and drainage searches provided by nine English water and sewerage companies and separate search operations run by Severn Trent and Wessex Water fall under the Environmental Information Regulations (EIR) regime and should be provided at "reasonable cost" rather than commercial rates.
The case concerned payments by the searchers to the water companies for reports known as CON29DW drainage and water enquiries, and their equivalents for commercial premises.
The five claimants are personal search companies that undertake searches for property transactions during which they have to contact the defendant companies for information on water and drainage. The claimants argued that all the information given in response to a CON29DW is 'environmental information’ within the meaning of the Environmental Information Regulations 2004 and that the Upper Tribunal (Administrative Appeals Chamber) had determined the water companies were 'public authorities' within the regulations and as such were obliged to make environmental information available free or for no more than a "reasonable charge".
The search firms claimed the water companies had unlawfully enriched themselves by charging at commercial rates for this information, while the latter said the information given in response to a CON29DW was not ‘environmental information’ as it was not 'held' by them at the time the relevant request was made or that they were otherwise entitled refuse its disclosure.
The stage 1 hearing in Surrey Searches Ltd & Ors v Northumbrian Water Ltd & Ors [2024] EWHC 1643 (Ch), limited itself to the question of whether the EIR regime should be applied to such searches, which are provided on a commercial basis by the water companies involved.
While accepting that in many of the sample cases submitted to hearing, the information requested in CON29DW searches was "held" by the water companies, Mr Justice Richard Smith said the information requested should be considered on a question-by-question basis and that many of the questions in the search form did not constitute "environmental information".
Richard Smith J concluded that someone ordering a CON29DW report is seeking “something very different from that sought under the EIR regime such that attempted parallels between the two are not meaningful”.
He said an order for a CON29DW “is for a freestanding commercial service operating outside the EIR regime”,which did not govern orders for the CON29DW reports or the amount that can be charged for them.
The judge said search firms paid for all the information concerned regardless of whether some of it happened to also be ‘environmental information’ and in the absence of any regulatory regime like that for local authority search charges “the level of charges levied for the CON29DWs is a matter entirely for the [water and sewerage companies] to decide”.
Richard Smith J noted it was more than 10 years since the first CON29DW in this case was purchased, and more than four years since the issue of the first claim form.
He said: “Something has gone wrong here and I trust that all parties will reflect on my findings and give meaningful consideration to whether this dispute is now capable of resolution other than through the court's process.”
A spokesperson for the claimants said: “We are pleased that the court agreed with some important aspects of the claim on environmental information and believe this to be a matter of public importance. As we now consider our legal options ahead of a stage 2 trial, we note the court’s guidance to give meaningful consideration to whether this dispute is now capable of resolution and hope that the defendant water companies can do the same.”
The full judgment is available here: https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/Ch/2024/1643.html
Mark Smulian
