Surrey Searches Limited v Northumbrian Water Limited

The court conducted a stage 1 trial to decide a bundle of issues about whether information supplied in standard water and drainage search products (CON29DW and CommercialDW) amounts to "environmental information" within the meaning of the Environmental Information Regulations 2004 (EIR) and related questions about whether the information was "held", whether Regulation 6(1)(b) (already publicly available and easily accessible) applied, whether exemptions in regulation 12 or the personal-data rule in regulation 13 barred disclosure, and whether the commercial CON29DW product falls within the EIR charging regime in Reg 8(3).

The judge applied the purposive approach to the definition of "environmental information" (Reg 2(1)) as explained in Fish Legal, Henney and related authorities and held that some items commonly supplied in CON29DW/CommercialDW reports are environmental information while others are not. In particular, information about the risk of internal sewer flooding at a property (CON29DW Q2.8), sewage treatment works proximity (Q2.9), trade effluent consents (CommercialDW Q5.1), and water quality/classification (Q3.5 / Q3.6 where applicable) were held to be environmental information; by contrast a number of detailed map, asset-location and billing items (many of the sewer and clean-water asset/connection questions) were not regarded as environmental information in the EIR sense because their connection to the environmental elements in Reg 2(1)(a)-(f) was minimal.

The court further held that certain reseller/portal arrangements (Severn Trent/STDP/D11 and Wessex/D12/D8) did not mean the data was "held on behalf of" the reporting company: D11 and D12 therefore did not "hold" the relevant data for EIR purposes. The court found that, for the present claimants, much of the information the WASCs relied on was already publicly available and, in practice, easily accessible (via public access computers, web-postcode tools, data portals and published registers), so Reg 6(1)(b) frequently applied in practice when the same items were sought in a different format. The court held that internal sewer-flooding information is personal data of occupiers/owners and that disclosure to the world at large under the EIR would contravene the data protection principles and so is prohibited by Reg 13. Finally, the court concluded that the CON29DW reports are supplied as commercial, packaged services (with speed, customer support, quality control, contractual remedies and limited warranties) and that the charges for those packaged searches are not governed by the EIR charging rule in Reg 8(3).

The claimants are personal search companies (PSCs) or their assignees who bought and re-sold CON29DW/CommercialDW drainage and water reports purchased from water and sewerage companies (WASCs). They sued to recover sums paid for those official searches on restitutionary grounds, asserting that (i) the information in a CON29DW is "environmental information" within regulation 2(1) of the EIR, (ii) the WASCs were public authorities required to make environmental information available free or for a reasonable charge under the EIR and (iii) the WASCs were therefore unjustly enriched to the extent of the unlawful charges. The stage 1 trial restricted to legal and interpretative EIR issues (no restitution quantification) resolved six overarching EIR issues about definition of environmental information (Issue 1), whether the defendants "held" the information (Issue 2), exceptions (Issue 3, including public availability at Reg 6(1)(b) and personal data at Reg 13), manifestly unreasonable requests (Issue 4), whether the CON29DW service sits outside the EIR charging regime (Issue 5) and the consequence for application of Reg 8(3) (Issue 6).

The court (Richard Smith J) analysed the proper interpretative approach to the EIR in light of the Directive and the Aarhus Convention, following the purposive approach in Henney and Fish Legal. He applied that framework question-by-question to the CON29DW and CommercialDW schedules. He found that some questions elicit information that is genuinely "on" environmental elements or measures (and so is EI): notably internal sewer flooding risk (CON29DW Q2.8), proximity to sewage treatment works (Q2.9), trade effluent consents (CommercialDW Q5.1), and matters about water quality/classification (Q3.5 / Q3.6 where framed to ask for water quality departures). By contrast, many catalogue-style questions that simply locate assets in relation to a property (certain sewer/water map extracts, most adoption/wayleave/connection/billing detail questions and some asset depth/manhole detail) were too limited or incidental to be "environmental information" as defined in Reg 2(1).

On the question of whether a defendant "held" information for EIR purposes (Reg 3(2)), the court applied a common-sense factual analysis. It held that two companies which obtained search data via group portal/licence arrangements (D11 obtaining Severn Trent data via STDP; D12 obtaining Wessex data from D8) did not themselves "hold" that material on behalf of the water undertaker within the meaning of Reg 3(2)(b). The court also made particular factual findings about when information derived by manual checks or technical assessment (for example where a sewer-flooding flag required technical review) involved the exercise of skill or judgement and so was not information already "held" in the sense relevant to Reg 3(2).

When asked whether information was already publicly available and "easily accessible" (Reg 6(1)(b)), the court examined the WASCs' public access computers (PACs), website postcode tools, map-e-mail services introduced during the Covid pandemic and statutory registers. It found that, for the PSC claimants, map data and many items were effectively and easily accessible from the WASCs' public platforms or the WASCs' published web resources (and in some cases other public sources) at the relevant periods and, accordingly, Reg 6(1)(b) operated in practice as a bar in many instances.

On data protection, the court concluded that the internal sewer-flooding information (Q2.8) was personal data of identifiable owners/occupiers (address-linked) and that routine disclosure of that material to the world at large under the EIR would ordinarily be unlawful and disproportionate; Reg 13 therefore prevented open disclosure of that category of data.

The court declined to determine Issue 4 (manifestly unreasonable requests) at stage 1 because its relevance and the facts required would arise later and might depend on the court's further factual findings.

Finally, on Issues 5 and 6 the court held that the commercial CON29DW product is a packaged, paid-for service which includes many customer-facing elements (speed, checking, reconciliation across sources, a standardised form, contractual remedies and quality-control) and therefore does not fall for charging control under Reg 8(3); the EIR charging rule did not cap the commercial fee for the CON29DW product.

The judge emphasised that the stage 1 ruling addressed EIR interpretation and left restitution, quantification and causation questions to later stages. He also observed the scale and complexity of the proceedings and the benefits of determining these EIR issues first for case management purposes.

The court determined the stage 1 EIR issues. It held that some elements of a CON29DW/CommercialDW are environmental information within Reg 2(1) (notably internal sewer flooding risk Q2.8, proximity to sewage treatment works Q2.9, trade effluent consents and water quality/classification where framed as such) while many asset-location, connection and billing questions did not meet the Reg 2(1) threshold. The court found that D11 and D12 did not "hold" Severn Trent/Wessex data on behalf of the reporting companies for EIR purposes. On public availability under Reg 6(1)(b) the court found that, in practice, much of the relevant material was already publicly accessible via PACs, websites and published registers. The court held that internal sewer-flooding data are personal data and their disclosure to the world at large would contravene data-protection principles so Reg 13 prevents open EIR disclosure. The court did not decide Issue 4 (manifestly unreasonable) at this stage. It also held that the CON29DW is supplied as a commercial packaged service and its charges are not constrained by Reg 8(3) of the EIR. The rulings were grounded in a purposive interpretation of the EIR (Fish Legal / Henney) and careful factual analysis as to "held" status, public availability and data protection.