Onesearch Direct Holdings Ltd (t/a Onesearch Direct) v City of York Council

A local authority’s statutory power to provide property information does not ordinarily impose a duty to provide access to its unrefined records. The court must begin with the statutory wording and construe it in context. Government policy and guidance may illuminate the background, but cannot themselves create a statutory obligation. A power expressed as discretionary may require exercise where failing to use it would defeat the purpose of the statute, applying the principle in Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997. That principle did not require open access here. The statutory scheme deliberately pursued access through encouragement and voluntary compliance, while the relevant charging and home-information-pack provisions could not lawfully impose a new duty to disclose unrefined information.

The claimant, a personal search company, sought judicial review of the defendant local authority’s policy on access to property information and charges. The Council supplied completed CON29R search reports but refused access to unrefined information held in its records, charging on a cost-recovery basis for the reports. The claimant argued that the statutory scheme, read in light of government policy and the withdrawal of transitional insurance arrangements, created an implied obligation to provide open access. The central issue was whether the Council’s refusal was contrary to the purpose or intention of the relevant statutory provisions and therefore unlawful under Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997.

1. The application was dismissed. The Council was not obliged to allow open access to all unrefined property information, and its policy was not unlawful.
2. The Council had powers under section 111 of the Local Government Act 1972 and section 2 of the Local Government Act 2000 to provide property information. Those provisions did not impose an obligation to respond to enquiries or disclose unrefined records.
3. The principle in Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 permits a court to conclude, from statutory context, that a power must be exercised in particular circumstances where otherwise the statutory purpose would be defeated. Thus, “may” can in an appropriate case mean “shall”. Such an implication must be derived from Parliament’s intention as expressed in the statutory provisions.
4. The court accepted that, in principle, the purpose of one statute might exceptionally constrain the exercise of a power under another statute. Such cases would be rare and require careful attention to the wording, context and timing of the provisions.
5. The Government’s policy favoured open access and fair competition, but its chosen implementation method was voluntary guidance and encouragement rather than a statutory duty. Government policy could not substitute for the wording enacted by Parliament.
6. The Housing Act 2004, the Home Information Pack regulations and the Local Authorities (England) (Charges for Property Searches) Regulations 2008 did not impose a new duty to provide access. The transitional insurance provision recognised that a local authority could lawfully refuse access before April 2009, and its withdrawal did not change that position. The charging regulations concerned charging functions and could not impose an access obligation.
7. The Council continued to provide completed CON29R reports, enabling property to be marketed and traded. Its refusal of unrefined information therefore did not defeat the statutory scheme or amount to an irrational exercise of its powers. Whether a different authority’s charges or use of a monopolistic position would be unlawful was left open.