Surrey Searches Limited & Ors v Northumbrian Water Limited & Ors

The Environmental Information Regulations 2004 must be interpreted purposively, consistently with the Directive and Aarhus Convention. The definition of environmental information is broad, but does not capture every item having a minimal connection with water, land or an environmentally relevant activity.

In property searches, the question is ordinarily whether the particular information requested is environmental information. Location, ownership, connection, billing and responsibility information may be non-environmental where it says little about the state, operation or environmental effects of the relevant infrastructure. Information about flooding risk, sewage treatment works, trade effluent, water quality, build-over approvals and the identity of the responsible undertaker may qualify.

A CON29DW is a commercial service, involving contractual rights, guarantees, quality control and additional services. Its charges are therefore outside the charging regime in regulation 8, even where some information in the report is environmental information.

These proceedings concerned claims by personal search companies and their assignees against water and sewerage undertakers. The claimants sought restitution of charges paid for CON29DW and CommercialDW drainage and water search reports.

The stage 1 trial determined agreed issues under the Environmental Information Regulations 2004, including whether information responsive to individual search questions was environmental information; whether it was held by the defendants; whether it was publicly available and easily accessible; whether personal-data restrictions applied; and whether the regulation 8 charging regime governed CON29DW reports.

The court also considered whether information supplied by associated companies was held on behalf of commercial search providers and whether answering particular questions required the exercise of skill and judgment.

1. Interpretation of the EIR. The Regulations were to be construed in light of the wording and purposes of the Directive and Aarhus Convention. The definition of environmental information is broad and fact-sensitive, but the connection with an environmental matter must be more than minimal. The purpose for which the information was produced and used, and whether access would assist environmental participation or decision-making, were relevant considerations.
2. Question-by-question analysis. The CON29DW was not to be treated as one composite body of information. The relevant information was generally that called for by each question, although closely related questions could be considered together.
3. Environmental information. Information responsive to build-over approvals or consultations, internal sewer-flooding risk, proximity to sewage treatment works, trade-effluent consents, water-quality information and authorised departures from water-quality standards was environmental information. Information identifying the responsible water or sewerage undertaker was also environmental information. By contrast, information principally concerning the location of assets, connections, adoption arrangements, wayleaves, water-meter locations, billing arrangements, charging bases and low pressure at a particular property generally had only a minimal environmental connection and was not environmental information.
4. Information held. Information was not held by D11 or D12 merely because they had contractual access to data owned and controlled by associated undertakers. They were licensees obtaining data to perform their own commercial search functions. Where answering an internal-flooding question required interpretation of technical records and an evaluative risk assessment, the relevant information was not already held when the request was made. By contrast, measuring the distance from a property to a sewage treatment works did not require such skill and judgment.
5. Regulation 6. Information could be publicly available even if obtained on request, by inspection, electronically or subject to a reasonable fee. The claimant search companies could generally access relevant information from public-access computers, remote systems, websites, registers and online mapping tools. Booking arrangements, temporary IT problems and inconvenience did not generally make the information inaccessible.
6. Personal data. Build-over information was not personal data merely because it related indirectly to a property owner or occupier. Information about internal sewer flooding risk was personal data because it was clearly linked to identifiable owners or occupiers and could materially affect their domestic or working conditions, financial interests and privacy. Disclosure to the world under the EIR would contravene regulation 13.
7. Manifestly unreasonable requests. The court declined to determine issue 4 because the parties had not addressed the relevant considerations, particularly after the findings that much of the requested information was not environmental information.
8. Commercial CON29DW service and charges. A CON29DW order was not a request merely for access to environmental information. It sought a commercial, contractual service involving standardised reports, rapid turnaround, data collation, verification, guarantees, contractual remedies and customer support. The regulation 8 charging regime therefore did not apply, and no severance or apportionment of charges was required.

Further consequential matters were left for agreement or later hearing.