10:00pm Tuesday 16th March 2010
A LEADING property search company accused a council today of acting unlawfully by refusing it access to its property records.
OneSearch Direct Holdings Ltd, which sells search reports to potential property buyers, says the refusal by York City Council is preventing fair competition with the authority, which also sells property information.
In an action with important general implications, the company is seeking a test case declaration that the council is acting unlawfully.
OneSearch was founded in Scotland in 1992 and expanded its business into England a decade later.
The company says property search reports perform a vital function, strongly reinforced by the Government's introduction of home information packs (Hips), which every home being sold in England and Wales now needs.
Packs, which can cost hundreds of pounds, contain information about a property prepared by the owners for prospective buyers, including a standard searches document.
Much of the information comes from local authority records and can include searches relating to water, drainage and nearby planning proposals, as well as evidence of title documents, which prove that the seller owns the property.
York council describes today's legal action as the culmination of a concerted campaign by OneSearch to gain access to property records held by local authorities up and down the country.
Mr Justice Hickinbottom was told some authorities have agreed to the OneSearch demands, but ''most have not''.
Michael Fordham QC, appearing for OneSearch, said the raw material needed for conveyancing was held in the records of local authorities.
York council wished to package and sell the property information it held for an overall set price.
Companies like OneSearch wanted access to that same information in order to supply their own packages at their own price.
York was operating a blanket policy of not allowing access.
The QC said the question for the court was: ''Is it lawful for a local authority to maintain a policy of not allowing access to its property records to those who wish to compile search material?''
Mr Fordham said lawyers for York council were arguing that it was not obliged to allow access ''unless and until there is an express statutory duty'' to do so.
The Local Authorities (England) (Charges for Property Searches) Regulations 2008 provided a new legal basis for charges to be levied for access to property records and answering enquiries about property.
But York council contended the regulations did not impose new duties upon local authorities to grant access to information.
Mr Fordham told the court: ''We say that is wrong.''
The centrally important purpose of the regulations was to secure fair competition between companies such as OneSearch and local authorities competing against them in the market for providing search reports.
Where a company wanted access to a particular file, register or other item it had to have that access on a strict cost-basis.
A local authority was not entitled to force a company to receive ''refined'' information derived from records or to buy a ''bundle'' of information covering several items.
This was essential to ensure proper competition between a company and local authorities which wanted to sell packages themselves.
Stressing the importance of the case, Mr Fordham stated: ''Ultimately the question in the case is whether the purpose of the statutory provisions - to secure fair competition between search companies and local authorities - has failed.''
He accused York of failing in its public law duty to act reasonably and not frustrate the purpose of the regulations.
He said the council had departed from guidelines which had been accepted by local authorities as part of ''the new deal''.
Jason Coppel, appearing for York council, described OneSearch's case as ''misconceived''.
He argued the regulations were never intended to impose any legal duty on local authorities, and did not do so.
It could not be right that the guidance had - ''by a sidewind'' - created a legal obligation to provide access to property records.
In the absence of any such duty, the council was entitled to refuse access to ''raw data''.
The hearing continues tomorrow.
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