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Property searches and the EIR

About this detailed guidance

This guidance discusses property searches and the EIR in detail and is written for use by public authorities. Read it if you have questions not answered in the Guide, or if you need a deeper understanding to help you handle property search requests under the EIR.

This guidance explains how you should respond to requests for local property search information, and the relationship between the EIR and Local Authorities (England) (Charges for Property Searches) Regulations 2008 (CPSR) and the Local Authorities (Charges for Property Searches) (Wales) Regulations 2009.

Property searches in Northern Ireland are the responsibility of the Land Registry as part of the Land and Property Services.

Scotland has its own environmental information legislation and you can read their guidance on the Scottish Information Commissioner’s website.

This guidance only applies to those public authorities in England and Wales who have not yet transferred their local land charge register to HM Land Registry in accordance with the Infrastructure Act 2015. HM Land Registry is responsible for responding to property search enquiries for those public authorities whose registers have been transferred.

In brief

The term “property searches” usually describes enquiries made to local authorities when buying a property. The answers make prospective buyers aware of issues before they complete their purchase, such as legal interests in the property, rights of way over the property, and any planning restrictions or proposals.

Requesters will usually send you a CON29 form. You may be asked to simply complete the form or for access to underlying information so that the requester can answer the questions in the CON29 form themselves. Sometimes you may be asked to guarantee the answers.

The majority of information that you use to answer property search enquiries is likely to be environmental information as defined by the EIR.

When you are asked to only complete the CON29 form or provide access to the underlying environmental information so that the requester can complete the information themselves, the charging provisions in the EIR rather than the CPSR will apply.

When you are asked to complete and guarantee the content of a CON29 form, this involves more than simply providing access to environmental information as required by the EIR. Therefore the charging provisions in the EIR do not apply and you can use the CPSR charging regime.

You cannot use the publication scheme provisions of the Freedom of Information Act 2000 (FOIA) to justify applying CPSR rather than the EIR charges for access to environmental information.

You should consider requests for information that is not environmental under FOIA. In such cases, the CPSR can form the basis for any charging.

In detail

How should we respond to a property search request?

A local land charge is a binding obligation on land or property that can restrict its use and can include planning decisions, road agreements, tree preservation orders, listed building notices and environmental health notices.

Under the Local Land Charges Act 1975, local authorities were required to maintain a Local Land Charges Register which records local land charges for land within their areas. However, following the Infrastructure Act 2015, responsibility for maintaining a nationwide database of land charges has been given to the Land Registry and the local registers are being transferred to the national database in a phased approach from 2018.

If you have transferred your local land charges register, you are no longer required to conduct property searches as these are the responsibility of HM Land Registry. However, requests for the same underlying information under the EIR are still valid. You should handle these requests in accordance with the EIR.

The term “property searches” usually describes enquiries made to local authorities when buying a property. The answers make prospective buyers aware of issues such as legal interests in the property, rights of way over the property, and planning restrictions or proposals before they complete their purchase.

Property searches are an integral part of the process of purchasing property. Purchasers and mortgage lenders require assurances about the legal and environmental factors which might affect the legal ownership, use or value of a property.

The Law Society has developed two standard form questionnaires to aid these property searches:

  • CON29R which is recommended for use in every transaction; and
  • CON29O which contains optional additional enquiries.

There are two types of property search:

  • Personal search – for this search you are asked only for the information required to complete the form. It is essentially a request for information you hold and therefore you should treat it as a request under either the EIR or FOIA.
  • Official search – you certify the requested information and insure it against errors. As you are providing a service beyond disclosing the information you hold, you are entitled to charge for the information in accordance with the Charging for Property Searches Regulations.

Most questions in either search require a yes or no response, but some may need more detailed analysis. Where detailed analysis is required, you should consider whether you hold the information or if you need to create it in order to answer the request. In the majority of cases, you will hold the requested information. However, if you require specialist or expert judgement to analyse the underlying information and provide an answer, this may constitute creation of information. We have issued guidance on when information is held.

As indicated in our guidance on What is environmental information? the definition of what comprises environmental information is broad.

The vast majority of the information you use to answer the questions in a CON29 form is likely to be environmental because it affects or is likely to affect the use or state of the land (Regulation 2(1)(c)). However, with some of the enquiries the situation may be less clear so you need to consider this on a case by case basis.

Can we charge for the information?

The EIR charging provisions state that:

Regulation 8 (1) Subject to paragraphs (2) to (8), where a public authority makes environmental information available in accordance with regulation 5(1) the authority may charge the applicant for making the information available.

(2) A public authority shall not make any charge for allowing an applicant –

(a) to access any public registers or lists of environmental information held by the public authority; or

(b) to examine the information requested at the place which the public authority makes available for that examination.

(3) A charge under paragraph (1) shall not exceed an amount which the public authority is satisfied is a reasonable amount.

In summary, you can make a charge to recover the cost of supplying information in response to a request, including staff and disbursements costs, if it is reasonable to do so. The ICO considers that the circumstances in which an applied charge may be reasonable are limited.

The Regulations are clear that you cannot charge for providing inspection facilities or access to public registers of environmental information. You can charge for staff time spent locating the information to be inspected and making it ready for inspection. However, you must satisfy yourself that it is reasonable to do so.

You must ensure that any charge you apply does not have the effect of deterring the requester from submitting their request and is in accordance with the purpose of the EIR which is to make environmental information easily available to the public.

For further information, please read our guidance on Charging for environmental information that explains the circumstances in which you can request payment.

How do the CPSR and EIR interact?

The CPSR were introduced to provide a framework for local authorities to charge for granting access to property records and answering enquiries about a property. In essence, they permit you to make charges on a cost recovery basis.

There are caveats within the CPSR that mean the charging provisions in the EIR take precedence. These are found in regulation 4(2) of the CPSR which disapplies the charging provisions of the CPSR if a local authority is imposing charges that are not permitted under other legislation, such as EIR.

Consequently, you cannot use the CPSR as the basis for charging for access for environmental information during a “personal search” and you must adopt the charging provisions in the EIR.

An “official search" requires you to guarantee the information and therefore goes beyond the right of access under the EIR. You can therefore charge under the CPSR if the property search request goes beyond simply providing the information you hold.

Can we charge for viewing the information on site?

In some cases, individuals (including those working for property search companies) will ask to inspect underlying environmental information so that they can answer the CON29 questions themselves. This is often referred to as a “personal search”. You may hold the underlying environmental information in a variety of forms, however it is likely you will hold this information in a register or database, and access it electronically or through paper files.

In this situation, the EIR charging regime applies because you are only being asked for access to underlying environmental information. You are not providing the additional official search service of analysing information and guaranteeing the accuracy of CON29 answers.

The EIR allows you to charge a reasonable amount to cover the costs of locating the information in order to make it available for examination.

However, in most personal search cases, it is unlikely that it is reasonable to charge for staff time. This is because you do not have to prepare any information for inspection as you give the person conducting the personal search access to registers, databases and files and they locate the relevant information themselves.

If the searcher then asks to make photocopies of the located information, you are able to charge for the photocopying.

For further information on whether charges are “reasonable” and how to calculate photocopying charges please see our guidance on Charging for environmental information.

You are allowed to offer inspection in situ instead of providing the information, under Regulation 6(1)(b) of the EIR.

Example

In decision notice FER0676534, Wokingham Borough Council refused to supply the requested information by email as it considered that the information was easily accessible to the requester. The Council relied on regulation 6(1)(b) as the information was available for public inspection at the Council’s offices.

The Commissioner acknowledged that the location of the requester relative to the Council meant that personal inspection would require a substantial journey. However, they also noted that the requester was an officer or employee of Pali Limited, a limited company concerned with the “supply of conveyancing searches and other property related reports anywhere in England and Wales to property professionals” and that it is normal practice for property search companies to use agents to attend the offices of local authorities around the country to carry out searches on the company’s behalf.

The Commissioner found that whilst the complainant would need to undertake a substantial round trip to inspect the information, the particular circumstances of the complainant, as an officer or employee of a limited company with access to corresponding resources, meant that the information could still be deemed easily accessible.

Can we charge for providing copies of the environmental information?

Under the EIR, applicants are entitled to ask for copies of environmental information. In the context of property searches, this could relate to various types of information about a specific property. A request for information which would allow the applicant to complete a CON29 enquiry form themselves is likely to be a valid EIR request.

In these cases, you are entitled to make a charge for the cost of supplying the information, including staff costs and the disbursement costs involved in producing a copy (ie the cost of photocopying and posting the information). The charge must be reasonable, and you must clearly explain it to the applicant. You cannot include the costs of holding the information and must not exceed the actual costs of providing the information. Further detailed guidance on charging under the EIR is available in the ICO’s Charging for environmental information.

This guidance explains that the context of a request may affect the reasonableness of any charge. A reasonable charge in one context (eg for property search information requested as part of a commercial transaction), may differ from a reasonable charge in another (eg a public group seeking information about pollution in relation to environment concerns).

Applying a charge for property search information is unlikely to deter an applicant as it is a required element of a transaction which will potentially involve hundreds of thousands of pounds. However, you do need to satisfy yourself that the information does not have a significant public interest and therefore would not be considered objectively unreasonable to charge for.

How long do we have to respond?

If the request is valid under the EIR, you should comply as soon as possible and no later than 20 working days following receipt of the request.

In view of the potentially large number of enquiries that you may receive, it may be difficult to provide inspection facilities that meet the requirements of each requester. There are various methods to provide or arrange inspection within the 20 working day timeframe. However you choose to do this, and as a matter of good practice, you should keep the requester updated and explain the reasons for any delays.

In cases involving search enquiries for a significant number of properties, you may be able to extend the time limit by a further 20 working days due to the volume of information involved and the difficulties in making arrangements for inspection (regulation 7(1)). You must inform the requester of this within 20 working days.

Is the request manifestly unreasonable?

Regulation 12(4)(b) provides an exception from the duty to disclose environmental information where a request is manifestly unreasonable. Generally, you will use this exception if you consider that the request is vexatious or presents an unreasonable burden.

For example, a request for the records relating to all, or a significant number of, properties within your local authority’s area. However, you should be aware of your duty to advise and assist applicants (eg to help to refine the request) and that the exception is subject to a public interest test. For further information on when this exception can apply, please see out guidance on Manifestly Unreasonable requests.

What should we include in our publication scheme?

It may be possible for you to include property search records as a category of information that you publish through your publication scheme adopted under section 19 of FOIA. However, you cannot use the charging policy scheme to import the charging provisions of the CPSR on the basis that charging is authorised under another statute.

Where the records comprise environmental information, you are still obliged to adhere to the charging regime created by the EIR. You cannot circumvent the provisions of the EIR and make a CPSR charge on the basis that this is permitted under the publication scheme.

You should also include a schedule of charges in your publication scheme. For more information about the requirement to provide a schedule of charges see our guidance on Charging under EIR.

 

Further reading