Surrey Searches Limited & Ors v Northumbrian Water Limited & Ors

This judgment follows the ‘stage 1’ trial of certain issues arising in these proceedings.

The Claimants are personal search companies (PSCs) or their assignees who undertake different types of searches for use in real property sale and purchase transactions, both residential and commercial. Using different sources of information available to them, they compile personal search reports (PSRs) (commonly known as ‘regulated’ reports) for sale to their clients, many of which are solicitors’ firms acting for property purchasers and/ or their mortgagees. For information concerning water and drainage, the Claimants have sought information from the water and sewerage company (WASC) for the area in which the relevant property is located.

For the purpose of this stage 1 trial, a number of ‘lead’ Claimants have been identified, comprising (i) P & S Gradwell Limited (formerly trading as PSG Gateshead) (ii) Whitefield Legal Services Limited (iii) Property Information Exchange Limited (trading as PIE, PIEX, poweredbypie, Brighter Law, and Homeinfo UK) (iv) Simon Gill & (B) Uzma Bozai (trading as PSG Cornwall) (v) Searchflow Limited (vi) Scrutinor Limited (in its own right and as assignee of Corner House Legal Services Limited) (vii) NSS Franchising Limited (trading as National Search Service) (viii) Michael and Jayne Chetwynd (as assignees of Libmos Limited (formerly trading as PSG Chesterfield)) (ix) TM Property Search Limited (x) Conveyancing Data Services Limited (xi) Dye & Durham (UK) Limited (as assignee of Index Property Searches (East Central) Limited (trading as Index Property Information and Index East Central)), Index Property Information Limited and Stanley Davis Group Limited (trading as Stanley Davis Group Limited and York Place) (xii) Index East Anglia Limited (trading as Index Property Information) (xiii) Index West Midlands Limited (trading as Index Property Information and Index West Midlands Limited) and (xiv) Index Property Information Lincolnshire Limited (trading as Index Property Information).

In this judgment, I refer to the First to Third, Seventh to Tenth and Twelfth Defendants collectively as the “Eversheds Defendants”. The Sixth Defendant was separately represented as were (together) the Fourth and Eleventh Defendants. I refer to the Defendants individually either numerically or by the abbreviations in the table below. So, for example, the Third Defendant, Yorkshire Water Services Limited, is referred to in this judgment as D3 or YW.

D1-D4 and D6-10 are the nine English WASCs, licensed to provide water and sewerage services as statutory undertakers under the Water Industry Act 1991 (WIA). They are subject to various statutory obligations, some identified below, and are subject to regulatory oversight, including by the Office of Water Services (Ofwat).

D5 is no longer a Defendant, the claim against that WASC having settled before trial.

D11 and D12 are not WASCs but are commercial providers of so-called ‘official’ water and drainage information search reports known as a CON29DW Drainage and Water Enquiry (CON29DW) for residential property transactions and a Commercial Drainage and Water Enquiry (CommercialDW) for commercial property transactions. They are associated with, respectively, D4 and D8. Whenever the CON29DW shorthand is used in this judgment in a general sense, it should be considered to encompass Commercial DWs unless otherwise indicated. In addition to their activities as statutory water and sewerage undertakers, the WASC Defendants (save for D4 and D8) also sold CON29DWs and Commercial DWs on a commercial basis.

Although closely aligned in their defences, the Defendants’ positions did differ somewhat on certain aspects of the argument and evidence.

These proceedings concern sums paid by the Claimants to the Defendants for the purchase of CON29DWs and CommercialDWs. The relevant period of the claim is 18 December 2013 to date, during which there have been thousands of such transactions.

The Claimants allege that all the information responsive to a CON29DW is “environmental information” (EI) within the meaning of the Environmental Information Regulations 2004 (EIR). Following the European Court of Justice (CJEU) decision in Fish Legal v Information Commissioner (Case C-279/12) [2014] QB 521, and applying the tests it laid down, the Upper Tribunal (Administrative Appeals Chamber) (UT) determined that the Defendants were ‘public authorities’ within the meaning of the EIR (Fish Legal v Information Commissioner [2015] UKUT 0052 (AAC)). As such, the Defendants were obliged to make EI available for free or for no more than a reasonable charge.

The Claimants claim in restitution, asserting that the charges levied by the Defendants were unlawful and/ or paid under a mistake of law and that the Defendants have been unjustly enriched to the extent of those charges, less such sum as the Court may determine the Defendants could lawfully charge had they made the information available in compliance with the EIR. The Defendants deny liability, including on the basis that the information responsive to a CON29DW was not EI, that the information was not ‘held’ by them at the time the relevant request was made or that they were otherwise entitled under the EIR to refuse its disclosure.

The Defendants’ liability (or otherwise) in unjust enrichment formed no part of the issues to be decided at the stage 1 trial. Nor was there any consideration of quantum issues. Rather, the six overarching issues falling for my determination were set out in an agreed List of Issues (LOI), all concerned with the interpretation and/ or application of the EIR (EIR Issues).

The scope of the stage 1 trial had its origins at the first case management conference on 25 March 2021 (CMC1). Given the scale of the proceedings, the parties were agreed that it was not feasible to resolve them completely within a single trial. The Court therefore directed this ‘stage 1’ trial, involving a number of lead Claimants, to determine the EIR Issues (then expressed in more general terms) and made directions for the identification of sub-issues and criteria for lead Claimants, it being anticipated that the determination of the EIR Issues for a small number of lead cases at stage 1 could be extrapolated to the remainder.

Having made good progress between themselves, the parties agreed an order at CMC2 on 22 September 2021, including directions for the more detailed LOI to replace the general issues identified at CMC1, now setting out the sub-issues, fact patterns and assumed or agreed facts in relation to the EIR Issues and providing for some to be tested by reference to sample transactions, as well as directions to facilitate the selection of lead Claimants.

A further set of directions was agreed ahead of CMC3 on 10 February 2022, including for the agreement of a list of sample transactions for some of the EIR Issues.

By the time of CMC4, the parties had agreed lists of sample transactions and the Defendants had proposed a revised LOI, removing some of their original arguments. The sequencing of service of factual evidence was ordered to take place in three rounds, with the evidence addressed to Issue 3.1 to be served sequentially, the Claimants going first.

The final iteration of the EIR Issues reflects revisions agreed by the parties in light of amendments proposed by the Defendants in September 2023 to their respective defences. The final form of LOI, reflecting those amendments, was approved by me following the PTR on 3 October 2023 and is annexed to the PTR order but, for present purposes, the ‘overarching’ EIR Issues can be summarised as follows (with specific Regulations within the EIR henceforth identified as, for example, Reg 2):-

Accordingly, the ‘stage 1’ trial was a trial of issues, not of test cases, with the 14 lead Claimants above having been identified for that purpose. The EIR Issues were developed to include a number of sub-issues. For some issues, the parties identified certain fact patterns, assumed or agreed facts and sample transactions.

In their skeleton argument for trial, the Claimants argued that it is not appropriate or necessary to determine Issue 3.1, the engagement (or otherwise) of Reg 6(1)(b) being a fact sensitive enquiry. Moreover, they also said that Issues 4-6 do not reflect issues that arise on their case in any event, including on the basis that their restitution claim does not rest on any suggestion that their past orders for CON29DWs were, or should be treated as, requests under the EIR. The Claimants therefore questioned the utility of the court determining these issues at this stage 1 trial as well. It is fair to say that this triggered considerable consternation on the Defendants’ part, including their filing shortly before trial of a joint supplementary skeleton in which they explained why it had always been part of the Claimants’ case that the CON29DWs were to be treated as EIR requests. The Claimants, in turn, argued that this mischaracterised matters, explaining in opening by reference to the Particulars of Claim (PoC) how their claim was not that the Defendants’ charges were unlawful because the CON29DWs had been requested under the EIR. Rather, instead of complying with the statutory regime governing public access to EI, the Defendants restricted such access and operated a separate commercial regime making EI available only to those ordering CON29DWs. The EIR Issues reflect points advanced by the Defendants in their respective defences, not by the Claimants. The Defendants responded by taking me to how they say the EIR Issues came to be formulated and directed and how, based on what the Claimants had told the Court earlier in that context, they clearly were (or at least had been) contending for the treatment of the CON29DWs as requests under the EIR.

It is not necessary for me to recount that history here. Suffice to say that I am unable to accept that the Defendants have mischaracterised the Claimants’ case. First, it seems clear to me that the Claimants were contending (PoC at [23.1]) that the charges for CON29DWs were unlawfully demanded because the Defendants had charged the Claimants more than a reasonable amount permitted by Reg 8(3). Since the Defendants’ ability to make such a charge depends on there being a request for EI under Regulation 5(1), I am satisfied that the Claimants were contending that the CON29DWs were to be treated as EIR requests.

Second, the matter is, in my view, put beyond doubt by the Claimants’ written and oral submissions at CMC1 at which they sought to have determined that unlawful demand case (under PoC [at 23.1]) in addition to the related issues contended for by the Defendants, albeit not at this first stage their alternative cases (under PoC [22] and [23.2]).

Third, even though the Claimants did not persuade the Court at CMC1 to order the determination of this element of their unlawful demand case, the Claimants positively agreed to the determination of the related issues contended for by the Defendants, including as recently as the PTR on 3 October 2023 before me when these were revised, again by agreement.

Fourth, that the Claimants were contending that the CON29DWs were to be treated as requests under the EIR is consistent with the agreed framing in the LOI of the EIR Issues and of their related fact patterns and sample requests.

Fifth, the Claimants’ suggestion that they did not apply to amend the LOI because they thought that this would not realistically be re-visited by a different judge following CMC1 was unconvincing, not least given that the LOI did continue to be discussed and developed right up to this stage 1 trial.

Sixth, even if that had been the Claimants’ view, I am satisfied that they would have made clear much earlier their view as to the (lack of) utility in the determination of these issues. They did not do so until their skeleton argument for trial.

Seventh, the Claimants’ reliance on the Request For Further Information dated 23 December 2020 (Footnote: ²) as indicative of the Defendants’ suggested understanding of the Claimants’ case was unconvincing. That request concerned but one aspect of that case.

Drawing these threads together, in my view, it is not credible that the Claimants would, as they did, agree that the EIR Issues should be decided first and undertake the necessary preparations, only then to suggest on the eve of this stage 1 trial that some of them might not be relevant to their case after all. To the contrary, for whatever reason, the Claimants have had a very late change of heart about the formulation of aspects of their case.

As both parties realistically accepted, the question then arose in light of the Claimants’ stance whether I should proceed nonetheless to decide all the EIR Issues. I have come to the view that I should. Not only did the Claimants positively agree to them all being decided at this ‘stage 1’ trial, including as recently as the PTR, all parties have undertaken significant preparations to that end, including extensive disclosure and witness evidence. More importantly, however, there is, in my view, substantive utility to deciding the EIR Issues at this stage, including in relation to:-

Despite the Claimants’ reservations, and recognising at the outset that my findings on some issues may well affect how I might decide to proceed (if at all) for others, I am therefore presently of the view that it is desirable to determine all the EIR Issues. I am, however, conscious that it is no part of my role to decide or express views on the Claimants’ restitution claim, the hypothetical scenarios it envisages or (to the extent such an argument is open to the Defendants in light of Vodafone Ltd v Office of Communications [2020] EWCA Civ 183 as will apparently be relied on by the Claimants) how the parties might have acted in those scenarios. In this regard, some of the arguments advanced by the parties at the stage 1 trial did appear to trespass on territory that does not arise for my determination. However, I have confined myself to the EIR Issues, leaving it for others to decide if my related findings do indeed inform and, if so to what extent, matters arising for later determination.

The body of witness evidence was extensive, with the Claimants serving, by my calculation, 34 witness statements from 17 witnesses, 14 of whom also gave oral evidence. The evidence from the Defendants was even more extensive, serving 67 statements from 59 witnesses, 22 of whom gave oral evidence (one by videolink from India, another by the same method from within the UK).

It is fair to say that there was some criticism by both sides of the approach to the evidence taken by the other. In terms of the witnesses themselves, as in most cases, little, if anything, will turn on demeanour. However, given how the parties put matters, particularly in closing argument, it is only appropriate to make some headline observations at the outset. In general terms, I found that some of the Claimants’ witnesses expressed themselves in somewhat vague terms, their statements concerned matters not arising at this stage 1 trial or they somewhat overreached themselves. Understandably, most did not have extensive knowledge of the Defendants’ internal processes but this did not stop some from engaging in argument, even speculation, including about the Defendants’ suggested motives, or to comment on matters beyond their purview.

Perhaps unsurprisingly given that they did have such knowledge, the Defendants’ evidence was generally very detailed. In closing argument, the Claimants argued that the Defendants’ statements had been over-engineered and that some did not comply with CPR, Part 57, PD AC. I have considered those criticisms carefully and I found the vast majority of them to be unwarranted. Taking Ms Tonia Reeve of NW merely as an example, she was criticised for explaining an aspect of her early employment history, her approach to her business development and operations roles, the performance of NW’s statutory role under the New Road and Street Works Act 1991 (NRSWA), her current team’s customer service approach, the different resourcing of NW’s EIR and CON29DW functions, her role when incorrect information is provided in a CON29DW report and NW’s response to the increased demand for the e-mail map request service during the Covid pandemic. Pausing there, I am unable to say that any of this should be criticised as not being “restricted to evidence as to matters of fact that need to be proved at trial”. It was either useful context for her evidence or it was, in itself, relevant evidence.

Ms Reeve was also criticised for addressing “matters of fact of which the witness has no personal knowledge relevant to the case”, in this case on the basis that she did not have “day-to-day experience of using the PC view to carry out searches”. However, Ms Reeve’s witness statement did not suggest otherwise. Nevertheless, as the person supervising the team responsible for the booking system for NW’s public access computer (PAC), she was able to give relevant evidence, including even about her own interactions with individual PSC agents. In this regard, I found somewhat unrealistic the Claimants’ broader point that, because some of the WASC witnesses had a senior role, they lacked the requisite knowledge, particularly of the so-called ‘PAC issues’ encountered by PSC agents as were relied on by the Claimants under Issue 3.1. In performing their supervisory roles, the witnesses concerned did have relevant knowledge of how these issues affected PAC demand, operation, use and content. Ms Reeve was also said to have argued the case or engaged in speculation. However, the criticised evidence was, again, largely directed to her and her team’s approach in performing their roles and, again, relevant, Ms Reeve making clear where she had made certain related assumptions.

Ms Reeve was also criticised for taking the Court through documents in the case. However, I was unable to discern this approach from the matters relied on. Rather, she provided an explanation of NW’s approach in light of the content of a particular compliance note, code of conduct and marketing document and certain interactions with Mr Peter Gradwell. As to the suggestion that she referred to documents she neither created nor saw while the events were fresh in her mind, in one case, Ms Reeve was not speaking to the content of the document but to the reason it did not show something. For another, Ms Reeve was explaining how the approach indicated in a communication from Mr Andrew Cowan when he was employed by NW differed from her own. For others, she explained by reference to certain written requests for information her understanding of NW’s typical approach. Again, she did have knowledge and relevant evidence to impart about these matters. In this regard, I also found misplaced the broader criticism that a number of WASC witnesses had given evidence about sample CON29DW transactions in which they themselves had not been involved, their related evidence directed to explaining the process undertaken by the relevant WASC in producing the report of which, again, they did have relevant knowledge.

The utility of some of the more marginal matters described to the overall resolution of the issues falling for my determination could perhaps be questioned. To the same end, some of the witness statements could perhaps have been streamlined. However, the same could be said of the Claimants’ witnesses. Just as Ms Reeve considered it important to explain NW’s customer orientated approach, Mr Gradwell and Mr Cowan considered it important to explain their perception of NW’s hostility to PSCs. Likewise, although Mr Owen Davies (for STW) sought to be a helpful witness, I agree that his evidence attempted to carry too much weight on a number of matters of which his direct knowledge was limited. However, the same can be said of Messrs Albone and Dyoss for the Claimants. On any view, the Claimants’ concerted attack in closing was overly forensic and not warranted. Moreover, the suggested concerns were advanced late in the day for the Court meaningfully to address them. They should have been raised at the Pre-Trial Review at the latest, not in closing after the witnesses concerned had given evidence. Given these matters, the approach I have adopted is simply to address in this judgment where they arise any issues potentially affecting my assessment of the evidence presented by a particular witness.

Finally, the Claimants did not cross-examine a number of the Defendants’ witnesses. It is, of course, generally a matter for the parties as to the particular course they may wish to take in the evidence and the Court does not condone repetitive questioning of multiple witnesses on the same point if it can fairly and effectively be addressed through one witness. However, the explanation proffered for this approach, ostensibly the limited time available and need for proportionality, was not compelling in circumstances in which much of the cross-examination of the Defendants’ witnesses was taken up having them re-confirm aspects of their written evidence. This was not of much assistance to the Court. That was all the more marked when the Claimants made submissions in closing about shortcomings in some of the factual evidence even though they did not cross-examine some of the impugned witnesses about it, including on matters material to findings they invited the Court to make.

The EIR gave domestic effect to EU Directive 2003/4/EC on public access to environmental information of 28 January 2003 (Directive), itself giving EU-wide effect to the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters of 25 June 1998 (Convention), to which the UK and the EU are signatories. The EIR replaced earlier 1992 Regulations which gave effect to an earlier 1990 EU Directive. Regulations affording a statutory right of access to EI held by public authorities have therefore existed at EU and UK level for over 30 years, with the EIR continuing to have domestic effect as retained EU law within the meaning of s.6(7) of the European (Withdrawal) Act 2018.

The Preamble to the Convention states as to the purpose for granting public access to EI:-

To the same end, Recital 1 to the Directive states:-

As explored further below, these indicate important context against which the EIR, including the definition of EI in Reg 2(1), falls to be construed.

In DBEIS v Information Commissioner & Henney [2017] EWCA Civ 844, the Court of Appeal summarised (at [14]-[15]) the guidance provided by EU and UK caselaw to the approach to interpretation of the EIR:-

Accordingly, the EIR falls to be interpreted in accordance with the language and objectives of the Directive and the Directive, in turn, with those of the Convention. For the purpose of interpreting the latter, Fish Legal also indicates (at [38]) that the Convention Implementation Guide “may also be regarded as an explanatory document, capable of being taken into consideration, if appropriate, among other relevant material … ”, albeit “the observations in the guide have no binding force and do not have the normative effect of” the Convention. The Guide states in relation to the Preamble (at [p.18]) that:-

The Guide states (at [p.19]) in relation to access to information:-

The Claimants also relied to the same end on orthodox principles of statutory interpretation and, as relevant background material at least, the comments of the relevant Minister as recorded in Hansard upon the introduction of the EIR in the House of Lords. The Defendants took exception to the admissibility of the latter but did not consider that much turned upon it. Given that the Minister’s comments are a synopsis of the aims of the Convention, and it does not appear to be in dispute that these inform the interpretation of the EIR, I agree.

The Secretary of State has published a statutory Code of Practice (Code) pursuant to Reg 16. Although it does not have the status of legislation, public authorities are expected to adhere to it unless there are good reasons, capable of justification to the Information Commissioner (IC), why it would be inappropriate to do so.

In addition, the Information Commissioner’s Office (ICO) has issued guidance on the EIR, including (i) the ICO Guide to the EIR (ii) Guidance on the Code and (iii) guidance on specific aspects of the EIR. In its guidance concerning “What are the Environmental Information Regulations?”, the ICO gives its own synopsis of their underpinning:-

Finally, I was shown a number of decisions of the First-tier (General Regulatory) (Information Rights) Tribunal (Tribunal) and the IC. Although they do not have the precedential status of Court of Appeal and UT authority, both parties relied on aspects of those decisions as instructive of how the EIR are applied in practice.

The EIR came into force in the UK on 1 January 2005.

Reg 2(1) (under “Interpretation”) defines EI as “ … any information in written, visual, aural, electronic or any other material form on:-

As Reg 2(1) itself notes, this definition replicates that contained in the Directive. It also corresponds broadly to that in the Convention.

The Claimants rely in particular on Reg 2(1)(a), (b), (c) and (f) for the purpose of Issue 1.

Reg 3(1) provides that, with certain exceptions, the EIR apply to “public authorities” (as that term is defined in Reg 2(2)). In light of the CJEU’s decision in Fish Legal, there is no dispute that D1-D4 and D6-10 are public authorities for the purpose of the EIR. Although this is disputed with respect to D11 and D12, the ‘stage 1’ trial proceeded on the assumption that they too are public authorities for that purpose.

Reg 4 imposes on public authorities the following duty:-

Article 7(2) of the Directive requires information to be made available and disseminated to include at a minimum (a) texts of international treaties, conventions or agreements, and of Community, national, regional or local legislation, on the environment or relating to it (b) policies, plans and programmes relating to the environment (c) progress reports on the implementation of the items referred to in (a) and (b) when prepared or held in electronic form by public authorities (d) national and, where appropriate, regional or local reports on the state of the environment as published at least every four years (e) data or summaries of data derived from the monitoring of activities affecting, or likely to affect, the environment (f) authorisations with a significant impact on the environment and environmental agreements (or a reference to the place where such information can be requested or found within the framework of Article 3) and (g) environmental impact studies and risk assessments concerning the environmental elements referred to in Article 2(1)(a) (or similar place reference).

The ICO has issued specific guidance on “[p]roactive dissemination: routinely publishing environmental information (regulation 4).” In addition, the Code provides (at [II(4)-(7)]) that public authorities should give consideration to making web sites accessible to all and simple to use, so that information can be readily found, for example by enabling search functions and having an alphabetical directory as well as tree structures. Information should not be ‘buried’ on a site. In addition, public authorities should consider how to publicise applicants’ rights to information, for example as part of general information on services provided by the authority. Finally, when public authorities are considering what information to disseminate proactively, they should not restrict themselves to the minimum requirements as listed in the Directive. For example, consideration should be given to disseminating frequently requested information, which will reduce individual requests for such information in the future.

As explained later in this judgment, the Claimants rely on the duty to disseminate information under Reg 4(1) as relevant to the approach to some of the issues in this case.

Reg 5 imposes on public authorities the following duty to make EI available on request to an “applicant”:-

Reg 7(1) permits the public authority to extend the time referred to in Reg 5(2) to 40 working days if it reasonably believes that the complexity and volume of the EI requested means that it is impracticable to comply within 20.

The ICO Guide to the EIR (at [p.20]) and ICO Guidance to the Code (at [17]) points out that, unlike the FOIA regime, there is no need for a request for EI to be made in writing. Oral requests are sufficient.

The Claimants also emphasise that requests made under the EIR are ‘motive-blind’ in the sense that the motives or interests of the EI applicant are not relevant. This is confirmed by Article 3(1) of the Directive and Article 4(1) of the Convention. The ICO Guide to the EIR (at [p.7]) also emphasises that an applicant does not have to give a reason for wanting the EI. Rather, it is for the public authority to justify any refusal and all requests should be treated equally.

Article 2(4) of the Convention and Article 2(6) of the Directive provide that applicants for EI may be natural or legal persons.

Reg 9(1) requires a public authority to “provide advice and assistance, so far as it would be reasonable to expect the authority to do so, to applicants and prospective applicants.” Reg 9(2) also requires a public authority to seek more particulars in relation to the request and to assist the applicant in providing these where the former decides that the latter has “formulated a request in too general a manner”.

The Code indicates (at [10]-[11]) that appropriate assistance might include (i) “providing access to detailed catalogues and indexes, where these are available, to help the applicant ascertain the nature and extent of the information held by the public authority” and/ or (ii) “advising the person that another person… may be able to assist them with the application or make the application on their behalf”. Public authorities “should be flexible in offering advice and assistance most appropriate to the circumstances of the applicant”. The ICO’s detailed guidance on Reg 9 explains that giving advice and assistance “is a wide-ranging duty. Often, it may be relevant to most, if not all, stages of the request process.”

Again, the Claimants rely on Reg 9(1) as informing the proper approach to the issues in this case.

Reg 3(2) explains that EI is “held by a public authority” for the purposes of the EIR (including Regs 4 and 5) “if the information:-

Reg 3(2) is central to Issue 2.

Where a public authority receives a request for EI that it does not hold, but believes that another public authority does, the former shall either transfer the request to the latter or supply the applicant with the name of the latter and inform the applicant accordingly with the refusal of the information under Reg 14(1).

Reg 8(1) provides that a public authority may charge for making EI available in accordance with Reg 5(1), albeit Reg 8(2) precludes a charge “for allowing the applicant:-

Moreover, any charge under paragraph 8(1) must not exceed an amount that the public authority is satisfied is a “reasonable amount” (Reg 8(3)).

Where a person requests EI in a particular form or format, Reg 6(1) provides that “a public authority shall make it so available unless:-

Reg 6(1)(b) is central to Issue 3.1.

Reg 12 admits of exceptions to the duty to disclose EI where Reg 12(4) or (5) is engaged and the public interest in maintaining the exception outweighs the public interest in its disclosure.

Reg 12(4) provides that the public authority may refuse to disclose EI to the extent:-

Reg 12(4)(a) is again central to Issue 2. Reg 12(4)(b) is central to Issue 4. Further exceptions are provided by Reg 12(5) (e.g. where national security, the course of justice, intellectual property rights or commercial confidentiality would be adversely affected), albeit none is said to be relevant here.

The Claimants also emphasise that, these exceptions notwithstanding, Reg 12(2) requires the public authority to apply a presumption in favour of disclosure. To the same end, the ICO Guide to the EIR states (at [p.7]) that “everybody has a right to access environmental information. Disclosure of information should be the default - in other words, information should be kept private only when there is a good reason and the Regulations allow it”.

The Claimants also emphasise that, consistent with the general EU law principle that exceptions should be construed restrictively, the UT has held in the EIR context that “… the grounds for refusal under the EIRs should be interpreted in a restrictive way, taking into account for the particular case the public interest served by disclosure” (Vesco v Information Commissioner [2019] UKUT 247 (AAC) at [16]).

The Defendants emphasise that the above presumption arises in the context of excepted matters and should not be read across the EIR more broadly.

In relation to personal data, Reg 12(3) provides that to the extent that the information requested includes such data of which the applicant is not the data subject, it shall not be disclosed otherwise than in accordance with Reg 13. The personal data exception does not therefore require a balancing of the relevant public interests. Rather, Reg 13(1) provides that personal data shall not be disclosed where one of the three stipulated conditions is satisfied.

Reg 13 is central to Issue 3.8, for that purpose the key issues being whether the relevant categories of CON29DW data identified by the Defendants comprise personal data and, if so, whether disclosure thereof to a member of the public would contravene any of the data protection principles (DPP).

It is also helpful briefly to consider the Freedom of Information Act 2000 (FOIA). Unlike the EIR, FOIA is a purely domestic regime which does not give effect to any international or EU obligations. FOIA applies to all kinds of information held by public authorities, not just EI. Moreover, although both FOIA and the EIR apply to public authorities, the term is defined differently for each, with none of the Defendants being public authorities for FOIA purposes. Disclosure under both FOIA and the EIR in response to a request for information is often said to be to the ‘world at large’.

In Henney, Beatson LJ highlighted certain differences between the two regimes, observing (at [4]) that the obligations of public authorities to disclose (EI) under the EIR are generally broader than under FOIA to disclose (non-EI) information. For example, apart from the exception for personal data, all EIR exceptions are subject to the public interest balancing test, whereas a number of FOIA exemptions are absolute. Moreover, FOIA does not contain the presumption in favour of disclosure under Reg 12(2). Perhaps most important for present purposes is the difference explained by Beatson LJ (at [37]) between the definition of “information” in s.1 of FOIA and of EI in Reg 2(1)(c), the focus of the former being on the information, the latter focusing additionally on the relevant measure.

Despite these differences, there is an interrelationship and overlap between the two regimes, with the courts seeking to give similar legislative provisions a consistent interpretation such that FOIA case law is often relevant to the interpretation of the EIR. The two regimes also share (with some differences) the same enforcement and appeals provisions in Part IV and V of FOIA, enabling dissatisfied requesters of information to complain to the IC, with a right of appeal to the Tribunal.

The main duties and powers of the Defendants as statutory water and sewerage undertakers are set out in the WIA. The Claimants rely on a number of them for the purpose of identifying the relevant ‘measures’ or ‘activities’ within the meaning of Reg 2(1)(c) which the information responsive to the CON29DW questions is said to be ‘on’, those measures or activities said to have potential for huge environmental impacts. Although extensive, it is convenient to summarise them here since they inform the argument under Issue 1.

Part I of the WIA sets out the powers of Ofwat and identifies one of its duties as the furtherance of the “resilience objective”, namely to secure the long-term resilience of water undertakers’ supply systems and sewerage undertakers’ sewerage systems as regards environmental pressures, population growth and changes in consumer behaviour (s.2(2A)(e) and s.2(2DA)(a)).

Part I also imposes “[g]eneral environmental and recreational duties”, including in the exercise by the WASCs of any of their powers conferred with respect to proposals relating to any of their functions to comply with requirements imposed, including “to further the conservation and enhancement of natural beauty and the conservation of flora, fauna and geological or physiographical features of special interest and, in the case of the exercise of such a power by a company holding an appointment as a relevant undertaker, as to further water conservation” (s.3(1)-(2)).

S.4(3) contains consultation obligations in connection with works that may be carried out at sites of special scientific interest.

S.5 makes provision for the Secretary of State to issues codes of practice with respect to environmental and recreational duties, including to give practical guidance and promote desirable practices. The Water and Sewerage (Conservation, Access and Recreation) (Code of Practice) Order of 2000 gave effect to such a code.

That code provides advice and guidance on the exercise of undertakers’ duties, including the general approach to matters such as seeking to contribute to the overarching objective of sustainable development and having special regard to the requirements of statutory protection afforded to areas, species or habitats afforded landscape or conservation designations (both on land they own and on which they exercise their functions).

The code also provides advice and guidance on more specific matters such as water resources management, pipe laying and sewerage, sewage disposal and pollution control. So, for example, in relation to sewerage connections, the code provides (at [3.17]) that:-

Moreover, in relation to pipe laying, when laying new trunk sewers and trunk mains or replacing existing pipelines, “the undertakers should seek to adjust routes to minimise damage to the landscape and important habitats, to by-pass sites of importance for conservation and to avoid damage to features of archaeological or historical interest.” The use of the “trenchless method” should be considered to “minimise environmental damage” ([3.18]).

Part II of the WIA concerns the appointment and regulation of water and sewerage undertakers by Ofwat.

Part IIA of the WIA concerns the regulation of provision of infrastructure for the use of the water and sewerage undertakers, including as to its design, construction, ownership and operation.

Part III of the WIA concerns the main powers and duties of water undertakers, including (at s.37) the general duty to “ ... develop and maintain an efficient and economical system of water supply within its area and to ensure that all such arrangements have been made:-

Other powers and duties under Part III concerning water supply include:-

Part IIIA of the WIA provides that:-

Part IV of the WIA concerns the main powers and duties of sewerage undertakers, including the general duty (s.94) to:-

Other powers and duties under Part IV include:-

Since it is relevant to the information responsive to a number of the CON29DW questions, I note here that, as explained by the Defendants’ witnesses, with effect from 1 October 2011, the bulk of private drains for existing terraced and semi-detached houses became vested in the WASCs by reason of The Water Industry (Schemes for Adoption of Private Sewers) Regulations 2011.

Part V of the WIA confers power on water and sewerage undertakers to fix and recover charges for their services (s.142(1)). An undertaker also has the power to make a charges scheme (s.143), as to which, Ofwat may issue rules (s.143B) in accordance with the guidance issued by the Minister (s.144ZE). The charging guidance lists four overriding objectives of equal weight to be reflected in Ofwat’s charging rules, including environmental protection. The guidance indicates:-

Part VI of the WIA confers powers on undertakers, including to:-

Part VI of the WIA also confers upon water undertakers certain statutory rights of entry onto land, including for works, surveys and water searches, disconnection, water quality monitoring, sewerage and metering purposes (ss.168-172).

Part VII of the WIA imposes duties on undertakers with respect to the provision of information, including to:-

Asset location records are required to comprise:-

Sewerage undertakers are also required to provide local authorities with copies of the same sewerage records as are required to be kept under s.199 (and modifications thereto), with a corresponding duty of inspection on the local authority (s.200).

The water and sewerage undertakers are also obliged to provide the Secretary of State with all such information concerning the actual or proposed performance of their functions as he or she may require (s.202).

Finally on the subject of information provision, the Claimants referred me to the NRSWA, setting out requirements to which water and sewerage undertakers must adhere when installing, renewing, maintaining or inspecting underground apparatus in the street, including as to the recording of the location of every item of apparatus as soon as reasonably practicable after placing or locating it in the street, such records to be kept up to date, in the prescribed form and available for inspection at all reasonable hours and free of charge by any person authorised to have authority to execute works in the street or otherwise appearing to the undertaker to have a sufficient interest (s.79).

The evidence of a number of the Defendants’ witnesses was to the effect that they produced their waterworks and sewerage asset maps to comply with their WIA and NRSWA information provision obligations. The public availability of, and ease of access to, those maps falls to be considered under Issue 3.1.

Before leaving the WIA, I should also add that regulations have been made thereunder encompassing water quality, including relevantly to one of the previous CON29DW questions, The Water Supply (Water Quality) Regulations 2000, as well as customer service, complaints and compensation, interruption of supply, water pressure and sewer flooding (The Water Supply and Sewerage Services (Customer Service Standards) Regulations 2008).

Finally, the Claimants also relied on the Water Industry Strategic Environmental Requirements (WISER), produced by the Environment Agency and Natural England, setting out “the statutory and non-statutory expectations of water companies for price review 2024 and expected practice”, organised under three overarching objectives, being (i) a thriving natural environment; (ii) resilience for the environment and customers and (iii) expected performance and compliance. The intention of the WISER document is expressed as a “strategic steer” to companies on improving the environment, resilience for the environment and customers, flood risk and relevant legal requirements “designed to help water companies understand their environmental obligations and the regulators’ expectations of them.”

The document identifies the current environmental challenges, including the lack of significant improvement in the ecological status of England’s waters, climate change and biodiversity loss and growing demands on the environment. The Government’s priorities for the relevant period are stated to include action to enhance water quality and delivery of a resilient and sustainable water supply, specifically (i) significantly reducing the frequency and volume of sewage discharges from storm overflows so they operate infrequently and only in cases of unusually heavy rainfall (ii) achieving zero serious pollution incidents and significantly reducing all pollution incidents (iii) reducing nutrient pollution from wastewater treatment works and (iv) maintaining, restoring and enhancing protected sites and priority habitats such as chalk streams.

The Government’s environmental ambitions are stated to include water quality, the Environment Act 2021 imposing binding targets, including in the priority area of water, as well as new biodiversity duties for water companies and making statutory the requirement for drainage and sewerage management plans. Other expectations and legal obligations are identified, including for the three overarching objectives in this document (and in the more detailed accompanying technical document), in the areas of bathing water, drinking water, protected habitats, biodiversity, net zero, water quality, drainage resilience and flood risk.

The local authority property search form, CON29R or, with optional enquiries, form CON29O, requested information from local authorities about a property. It was usually used when the property was being bought and sold. Prior to 2002, it included two drainage and water questions. In 2002, the Law Society developed the CON29DW to provide purchasers (and lenders) with more drainage and water information.

The introduction of Home Information Packs (HIPs) was announced in the 2003 Queen’s Speech, followed by the introduction of the Home Information Pack Regulations 2007, Regulation 9(m) requiring HIPs to contain “a search report which complies with Parts 1 and 2 of Schedule 7 and with Schedule 9 (drainage and water enquiries).” Schedule 9 listed the matters that such a search report had to cover, comprising essentially the information in a CON29DW. HIPs were compulsory for property purchases, CON29DWs becoming known as ‘official’ searches.

The HIP regime endured for three years or so. During that period, PSRs were not permitted for use in property sales. PSCs that wished to provide a customer with water and drainage information therefore had to buy and re-sell CON29DWs. From May 2010, HIPs ceased to be compulsory, albeit ‘official’ searches remain a common feature of property sales, the Drainage and Water Search Network (DWSN), an industry body, describing the CON29DW as:-

Two versions of the residential CON29DW fall to be considered, version 1 (v1) and version 2 (v2). Since it will be necessary to consider these in some detail, I reproduce below the iteration taken from the LOI combining v1 and v2. Category A questions do not have a CON29DW version (v) reference as the relevant questions appear in both CON29DW v1 and v2. Category B questions have a CON29DW v2 reference (v2/[x]). Category C questions have a CON29DW v1 reference (v1/[x]). The CommercialDW contains a number of questions common to the CON29DW. Questions specific to the CommercialDW are not reproduced immediately below but are addressed later in this judgment where they arise.

Finally, it is appropriate to note that searches undertaken by local authorities (in the form of the CON29R or CON29O) are subject to their own statutory regime under the Local Authorities (England) (Charges for Property Searches) Regulations 2008 (CPSR), made under s.150 of the Local Government and Housing Act 1989. The CPSR permit local authorities to charge for answering enquiries about a property, albeit as the related ICO Guidance makes clear, that power is constrained for EI provided in response to a “personal search” to which the charging provisions in the EIR do apply. By contrast, since an “official search” requires the local authority to guarantee the information, and therefore goes beyond the right of access under the EIR, the authority can charge under the CPSR. Although not subject to their own specific statutory regime, the Defendants say that their drainage and water searches too go beyond the mere provision of information they hold but also encompass additional services such that the EIR charging regime in Reg 8 does not apply to them. I re-visit that question under Issue 5 but consider first the prior question of whether the CON29DW information was, in fact, EI at all (Issue 1).

The Claimants assert that all information responsive to the CON29DW (and CommercialDW) questions is EI within the meaning of Reg 2(1). The Defendants deny this, albeit AW’s response is a mixture of denial and non-admission.

The LOI asks under Issue 1 whether the “various items of information in a CON29DW” are EI within the meaning of Reg 2(1) and, under Issue 1.1 (relating to v.1 and v.2 of the CON29DW and the common questions from the CommercialDW), whether for each of the questions identified therein, the “information responsive to that question” is EI.

Issue 1.2 is no longer live, D5 no longer being a Defendant.

The fact patterns and agreed or assumed facts for Issue 1 concern the versions of CON29DW or CommercialDW used, their periods of use and the provision of information responsive thereto.

A preliminary point arises as to whether the relevant information for the purpose of this stage 1 trial was (i) the direct answer to the relevant question or request (without regard to additional information the Defendants chose to provide) or (ii) the information actually provided by the Defendants in response to CON29DWs and CommercialDWs. The Claimants contend for (i), albeit they were content for the Court to make findings with respect to both. The Defendants contend for (ii). Although the answers to the CON29DW provided by the Defendants do contain variations, including additional information beyond that strictly required, the Reg 5 duty is to make available information on request. Since it is the request for the information that frames what the public authority is required to make available, and having regard to my views as to the ongoing utility of deciding the EIR Issues, it seems to me that these are most appropriately considered by reference to the information actually called for by the question without supplementation, save for Issue 5 for which the additional information provided by the Defendants is relied upon as a particular feature of the CON29DW said to take it outside the EIR charging regime.

As noted, EI is defined in Reg 2(1). The parties referred me in this regard to the Court of Appeal decisions in Henney and Department of Transport v (1) Information Commissioner and (2) Hastings [2019] EWCA Civ 2241 and the UT decision in DfT, DVSA and Porsche Cars GB Ltd v Information Commissioner and John Cieslik [2018] UKUT 127 (AAC), as summarised below.

Henney concerned a FOIA request to the (then) Department for Energy and Climate Change for information about an independent project assessment review of the communications and data component (PRA) of the UK Government’s Smart Meter Programme (SMP) introduced under a 2009 Council Directive. The programme sought to provide sophisticated information about energy usage to consumers, suppliers and network operators to facilitate better control of energy usage and improve grid efficiency. After receiving a heavily redacted copy of the report representing the culmination of the review (and some further information after re-evaluation of the request), Mr Henney complained to the IC, saying that his request should have been dealt with under the EIR since it was a request for EI within the meaning of Reg 2(1), in particular Reg 2(1)(c), for “any information ... on ... measures ... affecting or likely to affect” the state of the elements of the environment or factors affecting those elements. The UT agreed with the Tribunal that the information was ‘on’ a relevant measure, namely the SMP, as to which, it was common ground that the programme as a whole was a measure under Reg 2(1)(c) likely to affect the relevant elements and factors within the meaning of Reg 2(1)(a) and (b) respectively. The UT did not decide whether the communications and data component was itself a measure, considering it permissible to look beyond the precise issue with which the disputed information was concerned and to have regard to what it described as the “bigger picture”.

In considering the UT’s approach in Henney, Beatson LJ in the Court of Appeal identified the (uncontroversial) principles gleaned from CJEU and UK court decisions. The starting point is that the EIR must be interpreted, as far as possible, in light of the wording and purpose of the Directive and the Convention, both stressing the importance of access to, and dissemination of, EI (at [14]-[15]) (citing Fish Legal at ([35]-[37]). The term “environmental information” was to be given a broad meaning to avoid “ … the effect of excluding from the scope of the directive any of the activities engaged in by the public authorities” (at [16]) (referring to Glawischnig v Bundesminister für soziale Sicherheit und Generationen (Case C-316/01) EU:C:2003:343 (at [24])). However, there are limits to that broad approach (at [17]): the fact that the Directive is to be given a broad meaning does not mean that it intended “to give a general and unlimited right of access to all information held by public authorities which has a connection, however, minimal with one of the environmental factors mentioned. … To be covered by the right of access it establishes, such information must fall within one or more of the … categories set out in that provision” (Glawischnig at [25]). In Glawischnig, the CJEU had concluded (at [35]) that certain information relating to administrative measures monitoring products manufactured from genetically modified soya and maize did not constitute EI within the meaning of the predecessor to the Directive.

Beatson LJ considered unhelpful the UT’s “bigger picture” terminology, a phrase apt to lose sight of relevant context, “deflect attention” from the statutory definition in Reg 2(1)(c) and lead to an approach that assesses whether information is ‘on’ a measure by reference to whether it relates to, or has a connection with, one of the environmental factors mentioned, however minimal. Nevertheless, he concluded (at [35]-[36]) that the UT had not fallen into error in applying Reg 2(1). In reaching that view, Beatson LJ noted, as the UT had done, that it was first necessary to identify the measure that the disputed information was ‘on’, information being ‘on’ a measure if it is about, relates to or concerns the measure in question ([37]). The language of Reg 2(1)(c) did not require the measure to be that which the information is “primarily” on. The UT’s finding that it was permissible to look beyond the precise issue did not amount to a finding that it was permissible to look at issues with which the information was not concerned or was merely connected. It simply meant that the tribunal was not restricted by what the information is specifically, directly or immediately about ([39]). Moreover, information may be about a specific measure, about more than one measure, or about both a measure which is a sub-component of a broader measure and the broader measure as a whole ([42]).

Identifying the measure that the disputed information is ‘on’ may require consideration of the wider context. That wider context may include the purpose for which the information was produced, how important the information was to that purpose, how it is to be used and whether access to it would enable the public to be better informed about, or to participate in, decision-making in a better way. None of these matters may be apparent on the face of the information itself. When identifying a measure, a tribunal should apply the definition in the EIR purposively, bearing in mind the modern approach to statutory interpretation, particularly to international and EU measures such as the Convention and Directive. Having taken these steps, it is then necessary to decide whether the measure so identified has the requisite environmental impact for Reg 2(1) purposes ([43]).

Simply because a project had some environmental impact did not mean that all information concerned with the project was EI but nor, given that the Directive is to be given a broad meaning, need the information itself be intrinsically environmental ([45]). The line between information that qualifies and that which does not will be drawn by reference to the general principle that the EIR, Directive and Convention are to be construed purposively. Determining on which side of the line information falls will be fact and context specific [(47]). The recitals to the Convention and the Directive, referring to the requirement for citizens to have access to information to enable them to participate in environmental decision-making more effectively, and the contribution of greater access to a greater awareness of environmental matters and, eventually, a better environment, give an indication of how the broad language of the text may have to be assessed and provide a framework for determining whether information can properly be described as ‘on’ a given measure ([48]). The purposive approach (including enabling public participation in environmental decision-making) may yet narrow an otherwise over-broad definition, in effect ‘reading down’ the provision by legislative purpose ([50]).

I address a number of these points in greater detail below under the parties’ respective arguments on Issue 1. However, applying them to the case before him, Beatson LJ concluded that the PRA was ‘on’ the SMP for the purposes of Reg 2(1)(c). Although focused on the communications and data component, it could nonetheless be described as being about the wider SMP, that component being integral to the programme as a whole.

The approach in Henney was summarised and applied by the Court of Appeal in Hastings (at [28]-[31]), that case being concerned with a journalist’s request to two UK Government departments relating to a meeting between the (then) Prince of Wales and departmental ministers. The Department for Transport (DfT) declined the request, principally on the basis of the FOIA exemption for communications with the heir to the throne. The journalist complained to the IC that the DfT should have considered the request under the EIR. The DfT then disclosed the name of the minister attending the meeting but refused disclosure of the rest of the information sought, it not being considered to be EI. The IC upheld the complaint, taking the view that most of the disputed information was “environmental”. The DfT appealed, albeit conceding before the matter reached the Tribunal that substantial parts of the information (concerned with the Government’s activities in the environmental field) were EI. However, the IC maintained that the (undisclosed) remainder of the information (including briefing material in connection with the meeting) fell to be treated in the same way.

The case therefore concerned information of potentially “mixed” character, with some undoubtedly EI, but with some the DfT contended was not such that the FOIA regime was engaged instead (with its absolute exemption for communications with the heir to the throne). After considering (at [28]-[31]) the overriding principles indicated by Henney, McCombe LJ stated (at [32]) that:-

It was common ground in Hastings that the “measure” in question for Reg 2(1)(c) purposes was Government housing policy. McCombe LJ considered that the released information contained the material elements ‘on’ that measure but that the framework for the meeting discussions in the undisclosed material did not help better to understand it. Reference to “context” added nothing. Since it said nothing about the policy itself, the undisclosed material was not information ‘on’ that ‘measure’, the Court concluding that it was not EI.

The Defendants also referred me to the UT decision in Cieslik. In that case, the issue was whether information in the form of a vehicle safety test received by the DVSA (which test drove the vehicle but had no remit to consider its environmental impacts or manufacturer environmental compliance) fell within Reg 2(1), the Tribunal having found it did because (i) to carry out the safety test, it was necessary to run the vehicle’s engine, causing emissions (ii) those emissions affected the air and (iii) the test was therefore a measure likely to affect the elements (air) within Reg 2(1)(c). The UT rejected (at [31]-[34]) both aspects of this reasoning as constituting an unduly broad approach, holding (at [35]) that the Tribunal had failed to address the considerations identified in Henney:-

In the context of the proper meaning of EI, the Claimants also referred me to the Convention Implementation Guide which states (at [p.50]) that:-

And later (at [p.53]) that:-

Similarly, the ICO guidance on Reg 2(1) states (at [p.3] under “[w]hat is “any information on?”) that:-

And (at [p.17] under “[w]hat about documents containing both environmental and non-environmental information?”):-

The Claimants also relied on a broad range of cases in which the ICO and Tribunal have found the information held by the relevant public body to be EI, including in the case of the latter:-

The Defendants say that the Claimants’ reliance on these ICO and Tribunal decisions is inapposite, not being authoritative and, at best, merely illustrative of certain factual situations and how they were dealt with. For some, the particular point relied on in the case was not contested. In others, the information went much wider than about a single property. The Defendants also rejected the Claimants’ reliance for some of the CON29DW information on cases from other EU states. These are considered below where they arise on the Claimants’ analysis but the Defendants say that they do not assist the Court, arising as they do from how the Directive has been implemented in those EU states.

A number of the decisions relied upon by the Claimants concern planning manners, as to which, they also referred me to Venn v Secretary of State for Communities and Local Government [2014] EWCA Civ 1539 in which the Secretary of State accepted (at [11]) that EI “is given a broad definition in article 2(3), and … that since administrative matters likely to affect “the state of the land” are classed as “environmental” under Aarhus the definition of “environmental” in the Convention is arguably broad enough to catch most, if not all, planning matters.” In a not unrelated vein, the Claimants also referred me to the Tribunal’s treatment of the information required to respond to local authority search enquiries relating to the sale and purchase of property in the form of the CON29R (East Riding of Yorks v Information Commissioner and Stanley Davis Group Ltd [EA/2009/0069, 15 March 2010]; Kirklees Council v Information Commissioner and PALI [2011] UKUT 104 (AAC) at [37]-[40]). In these two Tribunal cases, it appears to have been accepted by the parties that the information sought was EI. The ICO guidance on EI also states (at [p.17]) that “[t]he majority of the information that is used to answer questions in a property search form is likely to be environmental information. This is because it affects or is likely to affect the use and therefore the state of the land (regulation 2(1)(c)).” The specific ICO guidance on property searches and the EIR adds “[h]owever, with some of the enquiries the situation may be less clear so you need to consider this on a case by case basis.” The Defendants say that the position of planning information and local authority search reports under the EIR sheds little or no light on what the Court has to decide in this case, being concerned with different public bodies dealing with different information from that featuring in this case.

Finally, in the context of the breadth of the meaning of EI, the Claimants referred me to the ICO Guidance on Reg 2(1) (at [p.5]) identifying “water” (as one of the elements of the environment listed in Reg 2(1)(a)) as existing “ … in various forms at different temperatures and in different conditions, and the definition covers all of them. The location of the water is immaterial - underground, on the surface, or in natural settings.”

The Claimants contend that the CON29DW information, viewed as a whole, is EI within the meaning of Reg 2(1). In general terms, the information it provides is on water, and on the water, drainage and sewerage infrastructure, and connections on, under and around a property or plot of land, including any arrangements for removal or treatment of surface and foul water, and related information affecting or that may affect the property, those services and/ or the water in question. Considered through the prism of the definition of EI in Reg 2(1), which Henney requires to be applied broadly and holistically, the Claimants say that information in the CON29DW is ‘on’:-

Despite the Defendants minimising the CON29DW information as relevant only to private or commercial interests, and not concerned with access to information for wider public benefit and environmental good, the Claimants point to the Defendants holding this information to facilitate the discharge of their duties as statutory water and sewerage undertakers, as to which, the Claimants relied extensively on the related matters admitted by the Defendants in response to the Claimants’ Requests for Information. Those duties include the obligation to collect, maintain and make available the information itself, including on their water and sewerage assets (such as public water and sewer maps), trade effluent consents and new road and street works and to provide to the Secretary of State, Ofwat or their customers with performance standards information on water quality, sewer flood risk and water pressure.

The CON29DW information, including at individual property level, is also relevant to enable those interested in that property and its vicinity, to understand the Defendants’ compliance with their public duties and responsibilities under the WIA. This encompasses their general duties to maintain and develop the water supply system and to provide clean water, the corresponding general duties in relation to the public sewer system, and the overriding statutory obligation to further water conservation and promote efficient water use by customers, including water metering. The CON29DW also informs many more specific WIA duties and powers, including to provide and maintain mains water connections and clean water supply to individual properties (ss.41, 45 and 52), to provide a public sewer at, and to maintain sewerage connections to, those premises (ss.98, 101A and 106), to disconnect pipes (e.g. to prevent water wastage) (s.75) and to grant individual trade effluent consents (s.118), as well as the water pressure and flood risk performance standards for premises in their area and related compensation obligations if not met. Accordingly, the information is not limited to the state of the water, soil or land at a particular property (or factors affecting the state of those elements), albeit this would still be sufficient for Reg 2(1)(a) and (b) purposes, but it is also ‘on’ the Defendants’ measures or activities, as statutory water and sewerage undertakers, of providing clean water and sewerage services to properties in their area which, whether viewed regionally, locally or at individual property level, are ultimately driven by environmental considerations.

Indeed, that statutory scheme seeks to ensure that the public has access to clean water, the collective water resource is used efficiently and the whole system of water distribution and waste water and sewage collection is operated in a manner that promotes environmental protection. This reflects the essential environmental consideration that all uses of water, from whatever source, are inextricably connected, the action of removing water from rivers or the ground for irrigation or trade reducing the supply of drinking water, the action of removing and treating sewage or effluent creating the potential to pollute those water sources. For these reasons, the WIA (and related Regulations), code of practice and WISER guidance all recognise that, simply by their nature, the Defendants are engaged in functions and activities with the potential for huge impacts on the environment, particularly water resources.

The Defendants’ critical responsibilities in relation to the environment extend to the land on which their infrastructure is based, where they lay their pipes and undertake works and where sewage, surface water and clean water is stored, transported and treated and returned to the environment. The Defendants’ measures and activities so identified therefore clearly have the requisite environmental impact for Reg 2(1) purposes. Accordingly, the Defendants’ framing of the case as being only about individual pipes serving an individual property, and the suggested insignificance of that information to the public, is misconceived. A similar argument could easily be made about any planning application or permitting matter concerning only a single property despite the relevant proposal having potentially significant environmental impacts. As such, a purposive approach to the CON29DW information also supports it falling on the EI ‘side of the line’.

The Defendants deny that any of the information responsive to a CON29DW is EI (save that AW’s position is part non-admission), emphasising that the starting point for the analysis is to focus on the particular information provided to the Claimants in the CON29DW reports. The Defendants agree that the definition of EIR must be construed in a purposive way, having regard to their role as the implementing Regulations for the Directive and the Directive, in turn, the Convention, including by reference to the principles already outlined. In relation to the specific definition of EI in Reg 2(1), the Defendants say that the UK caselaw summarised above helpfully cautions against too wide an approach to Reg 2(1). Although the authorities emphasise that each case is highly fact-specific, they also make clear that the underlying purpose(s) for which the right of access to EI is conferred will be crucial when determining the proper scope of that right.

In particular, Henney shows that the word ‘on’ bears considerable weight in determining whether the information concerned is ‘on’ one or more of the six limbs of Reg 2(1). On one view, it could be said that any item of information will be ‘on’ one or more of those limbs. To that end, the Defendants say that the Claimants could have taken a very simplistic approach, looking at this case as concerning information all about water. However, the caselaw shows that the definition is not to be applied mechanistically, looking for any connection, however remote, between the information and the Reg 2(1)(a)-(f) matters. That would be tantamount to the approach in Cieslik in which the Tribunal considered it sufficient for an engine to be turned on to safety test a car to mean that the state of the air is being altered such that Reg 2(1) is engaged, an approach rejected by the UT. Likewise, characterisation of the information as being ‘on’ the general measure or activity of the supply of water or sewerage services (under Reg 2(1)(c)) would suffer from the same mechanistic shortcoming.

For these reasons the Defendants say, the Claimants construct a more complex case to argue, in particular, that the information is on various measures and activities, reflecting WIA powers and duties relating to the environment such that it falls within Reg 2(1)(c). So, for example, the Claimants say that the answer to the question whether a property is connected to the water mains is ‘on’ the high level duties to maintain a water supply (s.37) or to comply with a water main requisition (s.45). To the same end, the Claimants rely on the Defendants’ power to charge for their services (s.142) to say that information about how a particular property is billed is information ‘on’ the exercise of that power. Although the approach to charging generally might, in some circumstances, constitute EI, the question of whether a particular property is charged in a particular way, by reference to a water meter or rateable value for example, says nothing bearing on the considerations arising under the Convention. The same is true of the other measures and activities undertaken by the WASCs relied on by the Claimants in this context.

Moreover, there is nothing in the WIA about the provision of CON29DW reports. Those reports and their pricing are not regulated in any way, unlike local authority search reports under the CPSR. The WASCs hold information, some of which may be used in a CON29DW, for various purposes. However, even if it was originally obtained or held pursuant to their WIA obligations, it does not follow that the subsequent provision of a very small part of it in a CON29DW is governed by the same statute. The purpose of the Defendants providing information in that way is to fulfil CON29DW orders for individual properties, not to discharge their WIA obligations. More specifically, the fact that some of the information used to answer a CON29DW may be drawn from the records required to be held by the Defendants under Part VII of the WIA does not mean that the information is ‘on’ that Part itself. The CON29DW information tells the customer nothing about how the Defendants’ records are collated, stored or maintained. The CON29DW is provided to prospective purchasers or their funders or, as here, to PSCs, who then sell it to prospective purchasers. The information it contains is on a specific individual property and/ or the respective rights and obligations of the relevant undertaker and water customer as they pertain to that property. The Defendants were not providing different information about the state of their water and sewerage infrastructure, their billing policies or their water and sewerage activities more generally.

The Claimants say that it is not necessary to consider the wider factual context or purposive approach, this not being a difficult case. It is clear from the face of the CON29DW that the information it contains is ‘on’ the Defendants’ statutory activities as water and sewerage undertakers, themselves affecting or likely to affect the elements and factors in Reg 2(1)(a)-(b). Since Reg 2(1)(c) is obviously engaged, there is no need to search for a ‘wider’ measure as the Court did in Henney and, therefore, no need to explore the broader context. Even from the narrow description on the CON29DW website of the form as comprising “information on water and sewerage assets in, around and under a residential or commercial property or plot of land”, it is still clear that the information must (at least) be ‘on’ the provision of water and sewerage services to that property or plot of land. However, even if necessary to consider the wider context or purpose, this too supports the Claimants’ case that the CON29DW information is EI:-

The Defendants place particular emphasis on the need for a purposive rather than mechanistic approach, Henney also recognising that considerations of purpose can be used to restrict the scope of the broad definition under Reg 2(1) (at [43], with emphasis supplied):-

The Defendants say that these considerations are relevant not merely when there are two candidates in the frame for the relevant ‘measure’ the information is said to be ‘on’ for the purpose of Reg 2(1)(c), one narrow, one wide, as in Henney itself. Rather, these considerations arise whenever the question is asked whether particular information is ‘on’ a particular measure or other Reg 2(1) matter(s). In this case, the information was produced to answer a particular order for a CON29DW for use by PSCs by way of re-sale for profit as part of their business to customers who will decide whether they wish to purchase, or lend money against, the particular property with which it is concerned. Although very important for that purpose, it does not illuminate any wider one.

Further still the Defendants say, it is not merely the environmental impact of the relevant measure with which the purposive approach is concerned. Just because a project has some environmental impact, it does not mean that all information ‘on’ it must be EI. As Henney held (at [45]):-

Beatson LJ then went on to explain (at [47]) how the line will be drawn, namely:-

His starting point for drawing that line was the Recitals to the Convention and Directive and, specifically (at [48]), the “requirement that citizens have access to information to enable them to participate in environmental decision-making more effectively, and the contribution of access to a greater awareness of environmental matters, and eventually, to a better environment” which “give an indication of how the very broad language of the text of the provisions may have to be assessed and provide a framework for determining the question of whether in a particular case information can properly be described as ‘on’ a given measure.”

Finally, the Defendants point to Beatson LJ’s reference (at [49]-[50]) to the CJEU decision in European Commission v Stichting Greenpeace Nederland (Case C-673/13 P) in which it held that the General Court had erred in giving a broad and purposive interpretation to Article 6(1) of Regulation 1367/2006 such that any link between the information and emissions into the environment sufficed to fall within its scope. Although this decision did not assist his task given the different legislative context, he nevertheless went on to say (at [50]) that:-

The Defendants say that the same warnings about an overbroad interpretation detached from the purposes of the relevant legislation are to be found in Glawischnig and Cieslik. So, for example, it does not further the Convention’s objectives to know that a particular property is connected to the mains supply or that the water meter is located in the hall cupboard.

The Claimants also say that placing undue focus on Glawischnig and Beatson LJ’s caveat in Henney (at [17]), the Defendants’ approach is to ‘salami slice’ the CON29DW into its individual questions and to consider them in isolation rather than as a coherent body of property-specific information. In this way, the Defendants argue that the information only has a remote connection with the Reg 2(1) matter but this approach falls foul of:-

The Claimants also say that this approach is intentionally not seeing the woods for the trees and is premised on a false view of their position, it being no part of the Claimants’ case that the correct approach is to ask about the relationship between the information and the Reg 2(1) environmental factors (as Henney held (at [35]) was inapt). Rather, the Claimants’ focus is what the information is ‘on’ as the (broad) definition of EI in Reg 2(1) does require. In line with the guidance in Hastings, the Court should look at the information as a whole and, applying the broad and holistic approach in Henney, ask whether the information is ‘on’ a relevant measure. The multitude of question-specific findings sought by the Defendants is not required. All that said, even if viewed in that “unnecessarily narrow and artificial” way (as that phrase was used in Henney (at [53])), the Claimants say that the information responsive to each CON29DW question would still satisfy the definition of EI for the multiplicity of reasons set out in the detailed schedule to the Claimants’ skeleton argument, including, for Reg 2(1)(c) purposes, by reference to the Defendant’s relevant powers and duties embodied in the statutory scheme governing their activities.

The Defendants deny that their approach of looking at the information responsive to each of the CON29DW questions is ‘salami-slicing’. That was, in fact, the very approach agreed in the LOI which asks under Issue 1.1 (with emphasis supplied):-

Accordingly, the LOI, to which the Claimants themselves signed up, itself recognises that Issue 1 is to be approached by reference to each individual question and the information responsive thereto. The Defendants also say that the agreed approach reflects the right approach given the need to focus closely on the particular information in issue for the purpose of Reg 2(1). More substantively, the Defendants say that each of the CON29DW questions has been carefully drafted, addresses a different issue and targets different information from different sources. Accordingly, were a CON29DW to be viewed hypothetically as an EIR request, each question is, in reality, a separate request. The Claimants’ so-called holistic approach would have surprising consequences since the addition to a CON29DW of something obviously not EI would allow that outlier item to be considered in the round with everything else.

Properly understood, neither Henney nor Hastings assists the Claimants on this point. The high-water mark of the Claimants’ case appears to be the latter (at [32]) concerning the general run of cases where ‘mixed’ information was in issue. Hastings was concerned with a short document, the majority of which had already been disclosed under the EIR, with an even smaller part still disputed. With the small amount of material McCombe LJ had before him, and without much theorising, he found it straightforward to consider that disputed element in the context of the whole to find that the former was not EI. He did so based on the characterisation of the information that remained disputed. However, he was reluctant (at [41]) to give more guidance “which might turn out to be less useful in a more complex case.” That context was very different from the present case in which the Defendants say that the Court need do no more than take the common sense approach of looking at 25 questions on different subject matters one by one.

In relation to whether the Court should consider the information responsive to CON29DWs as a single property-specific set of questions or on a question by question basis for the purpose of determining whether that information is EI, it seems clear from the way in which the LOI has been framed by reference to “each of the questions” (emphasis supplied) that the parties had originally agreed the latter. Nevertheless, the parties’ agreement is not necessarily determinative of the proper approach the Court should take.

As noted, the Claimants placed some store by McCombe LJ’s observation in Hastings (at [32]) to the effect that the Court will rarely need to do more than apply the principles indicated in Henney “to the information as a whole” to see whether, “in the context of the whole and applying a broad and holistic view” (emphasis supplied), the disputed elements of the information are ‘on’ the “measure” in question. The Defendants, however, contend that this “guidance” for the general run of the cases where “mixed” information is in issue is inapposite here. Hastings was concerned with information of potentially “mixed” character. Some material was undoubtedly EI but this was disputed for the smaller balance, all of it concerned with aspects of a meeting between the (then) Prince of Wales and certain ministers about the UK Government’s housing policy. In the context of a dispute about whether a subset of material about the same meeting was also ‘on’ the measure in question, it is hardly surprising that the Court considered the whole body of material to see if it informed that question. This case, however, is different.

First, there is no consensus here on the suggested ‘measure’ in question or other Reg 2(1) matter(s). The Claimants say that this is clear but the Defendants dispute this for the entirety of the CON29DW information.

Second, although the CON29DW questions are all concerned with aspects of the drainage and water arrangements at a particular property, they cover a range of different topics. Information about the distance of a particular property from an STW is unlikely meaningfully to inform whether information about the location of a water meter in that property is ‘on’ a measure (or other Reg 2(1) matter(s)).

Third, to the contrary, if anything, such an approach risks misidentifying information as EI when it is not, and vice versa.

Fourth, these points were rather reinforced by the overarching ‘measure’ said by the Claimants to be in issue in this case, namely the Defendants’ statutory activities as water and sewerage undertakers of providing clean water and sewerage services in their area, a somewhat broad formulation.

Accordingly, I am satisfied that it would be wrong to approach the CON29DW as a single composite body of information. That said, the matter is not as binary as the parties’ arguments appeared to assume. Unlike the STW/ water meter location example, other CON29DW questions do traverse subjects much more closely related. For those, it seems appropriate to consider together, rather than in isolation, the responsive information even if, ultimately, the analysis under Issue 1 may yield different answers for those related questions.

As noted, the Claimants suggest that considerations of wider context and purpose do not arise where, as here, the relevant measure is clear. In my view, that qualification is not supported by Henney and would fall foul of the principles of construction that determine meaning in light of context. Although it may turn out (as in Hastings) that the wider context does not meaningfully advance matters, it may yet do so. As also noted, there is no consensus here on the suggested ‘measure’ in question or other Reg 2(1) matter(s).

The Claimants also say that the information responsive to the CON29DW questions for any particular property is drawn from a much larger universe of information produced by the Defendants, including in furtherance of their activities as statutory water undertakers and related duties under the WIA. Although the purpose for which the latter was produced and used is potentially relevant to the general context against which the former falls to be considered, I was not persuaded that this point held quite the significance that the Claimants attached to it, the environmental importance of many of those activities and duties notwithstanding. In my view, of greater significance is the purpose for which the particular CON29DW information in issue here was obtained and used.

In this regard, I did not consider compelling the Defendants’ emphasis on the private and commercial interests of the PSCs in acquiring, and re-selling for a profit, that information. The PSCs’ role and interest in that process, effectively as intermediaries, seemed to add little, the more important focus being the purpose for which the ultimate recipients obtained and used the information in the CON29DWs. As to that, the Claimants correctly point out that the CON29DW is in a standard form devised by the Law Society in conjunction with the WASCs to elicit important drainage and water information about individual properties, its prior use being mandatory under the former HIPs regime. As such, it was, and continues to be, used as part of the due diligence process in the purchase of residential and commercial property alongside other enquiries made by the purchasers and/ or their mortgagees. I agree that the information it supplies is very important for these purposes as they are elaborated upon under the individual questions in a helpful question-by-question STPS CON29DW ‘explainer’ relied upon extensively by the Claimants in their skeleton argument concerning whether the responsive information is EI.

The Claimants say that this information enabled the public to find out, and therefore to make more informed decisions, about the Reg 2(1) matters, including the state of water and land, activities and measures affecting or likely to affect water, soil or land, built structures that may be affected by such matters and associated risks or mitigations at a particular property or plot of land. In this regard, I did not find persuasive the Claimants’ reliance on certain ICO decisions and responses to EIR requests from which it appears that the Defendants may once have accepted some of the CON29DW information as EI. Whether certain information is EI does not fall to be considered by reference to positions once assumed by the relevant WASCs differently from how they may now articulate them, rather than by way of objective assessment, guided by the principles indicated in Henney, of whether this information is ‘on’ a Reg 2(1) matter. The Claimants also point to the Defendants’ stance that the CON29DW information is not ‘environmental’ or is too remote from any Reg 2(1) matters but say that this is inconsistent with them pressing for the inclusion of CON29DWs as a mandatory element of HIPs. However, the historical actions of the Defendants with respect to the HIPs regime again seemed to add little, as did the suggested inconsistency with the Defendants’ own marketing materials. Although those materials, including the STPS ‘explainer’, emphasised how important the CON29DW is properly to understand the water and drainage infrastructure at a particular property, including the associated risks, liabilities and restrictions, it does not follow that the information is EI. That will depend upon the particular information provided and the wider context.

Consistent with the less binary approach indicated above, I have organised below the CON29DW information under (i) ‘sewer map, assets and connections’ (ii) ‘sewer and water adoptions’ (iii) ‘water map, assets and connections’ and (iv) ‘undertaker and billing’ and, within those headings, grouped, and considered together, those questions more closely related in subject matter by reference to parties’ related arguments. I was reinforced in this approach by how the parties had themselves cross-referenced a number of their related arguments between the different questions. Other questions concerning matters of a more discrete nature are addressed on an individual basis. I should add, however, that after undertaking this exercise, I have stood back from the questions and, without conflating the different types of information in issue, re-visited and cross-checked the analysis to ensure consistency of approach.

As to the parties’ respective approaches to the CON29DW information generally, the Claimants focused on what they say was the relevant ‘measure’ (or other Reg 2(1) matter(s)) in question, with the Defendants focusing more closely on the degree of connection between the relevant information and its (suggested minimal) environmental significance. There were difficulties with both approaches. Although the first step in the analysis is to identify the ‘measure’ or other relevant Reg 2(1) matter that the disputed information is ‘on’ (Henney at [37)), in my view, the Claimants often placed insufficient focus on the nature and quality of the information itself in the CON29DW. Since it was canvassed in submission, I make clear that, merely because the information concerned individual properties, or some questions only called for brief or “yes” or “no” answers, or others were more often answered in the negative, it does not follow that the responsive information was not, or could not be, EI. That said, the nature of the information actually imparted by the CON29DW often did not bear the weight of the Reg 2(1) matters ascribed to it by the Claimants. Any case will, of course, turn on its own facts and relevant context but the quality of the disputed information featuring in the various authorities relied on by the Claimants rather emphasised the limits of the information in issue here. Although Henney is clear that the relevant enquiry is not limited to those ‘measures’ which the information is specifically, directly, immediately, let alone primarily, ‘on’ (at [39]), and that there may be multiple measures and components in play (at [42]), the information in Henney was squarely concerned with the PRA, the PRA being an integral element of the broader measure comprising the SMP, without which, there would have been no SMP. In this case, it is far less clear that the CON29DW information is, in fact, about, concerned with or relates to the measures identified by the Claimants even on the broad view mandated by Henney. I was again reinforced in my view by the at times rather general way in which the Claimants expressed some of those measures and their suggested interrelationship.

By contrast, the Defendants’ emphasis on the limits to the breadth of the EI definition, and the suggested minimal connection between the information in this case and its environmental significance, tended to deflect focus from the relevant Reg 2(1) matter in question. It is perhaps unsurprising that the Defendants were reluctant or unable to anticipate how the Claimants might frame their case in this regard, at least to the level of detail indicated in the schedule to the Claimants’ skeleton argument, or to canvass potential Reg 2(1) candidates of their own, if only to knock them down. Nevertheless, this different focus also led to a somewhat imbalanced approach. In light of these matters, some re-calibration was required, as explained further below.

I consider together first those CON29DW questions that seek to elicit information on the public sewer assets within the vicinity of a particular property.

Question 1.1 says: where relevant, please include a copy of an extract from the public sewer map. Question 1.1 of the CommercialDW is in the same terms.

At the risk of stating the obvious, a map contains, and imparts visually, information, including possibly EI within the meaning of Reg 2(1). Indeed, as the ICO’s specific guidance on EI indicates, “[a] map showing the location of mountain ranges, urban areas and woodland is information on the state of the land as an element of the environment” under Reg 2(1)(a). The guidance does not mention the sewer map but the Claimants say generally about this that it delineates infrastructure for centralised wastewater disposal, which has a direct impact on water, soil and land. To that end, they rely on a decision of Netherlands’ highest general administrative court in Inspector General of Mines & Vermilion Energy Netherlands BV, 201905560/1/A3 (Council of State 6 October 2021, ECLI:NL:RVS:2021:2224) that a works programme describing the method of repairing an inner pipe to a well was EI, being on a measure or activity to protect the soil even though only one component concerned the prevention of seepage. However, Vermilion adds little to the analysis for Question 1.1. Although the WASCs will undertake repairs, maintenance and/ or improvements to their sewer network to comply with their statutory duties as sewerage undertakers, unlike the works programme in Vermilion, the public sewer map does not say anything about such activities.

Rather, as the HM Land Registry water and drainage residential reports ‘explainer’ says (as also relied on by the Claimants), the sewer map is concerned with the location of sewer assets within the geographical area covered by the map. The importance of that information for prospective homeowners is explained in the following terms:-

The Claimants also rely on the STPS ‘explainer’ which states in relation to both map questions that:-

Accordingly, the public sewer map is concerned with the location of nearby sewerage assets, its utility for the users of the CON29DW lying principally in potential obstacles to development and in access rights by WASCs for asset maintenance and repair purposes.

The Claimants also rely on two cases of the Danish Environment and Food Board of Appeal in which the Board held that the following were EI: (i) all correspondence, supplementary information and drawings between the client, consultant and contractor regarding a sewer separation project (Case 18/07397 of 21 February 2019) and (ii) legal correspondence between landowners’ lawyers and the client sewerage network owner/ operator (or its lawyers) concerning the response to claims for repayment of connection fees and an account of whether local landowners had historically been connected to the Egelev public sewer system (Case 19/05392 of October 2019). In the former, the Board emphasised the broad definition of EI as not being limited to those matters with direct environmental impact, concluding that “the information in question concerns and may influence the execution of a sewer separation project, which shall be considered a measure that affects or may affect the individual environmental elements as mentioned in Section 3(1) and (2) of the Danish Environmental Information Act …” (those sections appearing to mirror Reg 2(1)(a) and (b)). In the latter, the Board decided that connection to waste water systems and collection of connection fees constituted measures or activities that affect or may affect those same individual environmental elements such that the related legal correspondence was found to be EI. However, since the related lawyer’s fee invoice only contained information about the cost of legal assistance and a brief list of the lawyer’s services performed for the sewer operator, neither directly or indirectly affecting those elements, this was not. I found neither Board decision particularly illuminating in the present context, not only because of the limited facts and reasoning they disclose, but because again of the qualitatively different information with which those cases were concerned.

Nor did I consider of assistance the various ICO decision notices in respect of which the Claimants say the Defendants “have not disputed the point” that the relevant information under discussion was EI. Their precedential status apart, as already noted, whether or not the Defendants have previously taken points now asserted does not advance the analysis. In any event, most of those decision notices again concern qualitatively different information from that contained in the CON29DW, namely (i) the location of all STWs in SW’s area, including addresses and grid references [FER0631104] (ii) a sewer connection application made to UU in relation to a housing development [IC-127338-N0F2] (iii) an environmental permit granted by D4 for a particular STW and certain discharge data [IC-163737-D3Q3] (iv) certain capacity, operational and trade effluent permit data concerning a particular STW in the STW area [IC-218612-B1J7] and (v) a copy of the combined sewer system/ road drainage hydraulic modelling for a specific location sought from Northern Ireland Water [IC-224320-F4P8].

By contrast, the ICO decision against Welsh Water did appear to concern information more akin to that contained in the CON29DW, namely the plans for the entire sewer and mains water system for a particular street [IC-46917-Z1Y4], the issue in that case being whether the charges levied were reasonable within the meaning of Reg 8(3). Although apparently not disputed, the ICO considered (at [7]-[9]) whether the information was EI, construing the term “information on” widely, usually including “information that would inform the public about the element, measure, etc under consideration and would therefore facilitate effective participation by the public in environmental decision making … .” The ICO found the information requested to be EI under Reg 2(1)(c), albeit the decision does not identify the particular measure concerned and does not appear to have considered it EI under Reg 2(1)(a) or (b). The ICO also considered (at [24]), apparently in the context of the reasonableness of the proposed charges, that “[t]he subject matter of this request - a map of the water assets in a particular street - does not suggest that the information will have any wider public value beyond the complainant’s own immediate interest”.

Finally, the Claimants say that “[a]ll Ds accept that the key purposes for which the maps were produced or obtained include to enable Ds to comply with their statutory duties”. Although the Claimants’ argument potentially informs the wider context, as I have already noted, in my view, the purpose(s) for which the CON29DW information was sought and used by the ultimate recipients, including as indicated in the HMLR and STPS ‘explainers’ relied on by the Claimants, is of greater significance. More specifically, although Part VII of the WIA requires the WASCs to make the sewer map publicly available, I agree with the Defendants that the information sought through the CON29DW is not ‘on’ that Part, the information saying nothing about how the relevant Defendants’ records are collated, stored or maintained.

The Defendants rely for Question 1.1 on their general arguments summarised above.

Question 6.2 (CommercialDW) says: on the copy extract from the public sewer map, please show manhole cover, depth and invert levels where the information is available.

For Question 6.2 (CommercialDW), the Claimants rely on the points advanced with respect to the public sewer map (Question 1.1 (above)), stating additionally that “[a]ll Ds accept that, if the responsive information is ‘held’ by a WASC, the key purposes for which it was produced or obtained include so that it knows where pipes and other assets can be accessed from and at what depth, including for inspection and maintenance purposes, and is able to maintain those manholes for which it is responsible, and to help assess the impact and risks to its sewerage infrastructure from any proposed nearby development on which it is consulted or in respect of which its approval or agreement is requested and to aid decision making in respect of the same.”

The Defendants say that the responsive information has no, or very remote or tangential, connection with any of the elements of the environment in Reg 2(1)(a). Information of this nature about a specific property, for example as to the depth of a particular manhole, would not contribute in any way to meeting the objectives properly of relevance in the EIR context.

Given their similarity of subject matter, it is convenient to address together Question 2.4 and Question 2.5. Question 2.4 asks: does the public sewer map indicate any public sewer, disposal main or lateral drain within the boundaries of the property? Question 2.4 from the CommercialDW is in the same terms. Question 2.5 asks: does the public sewer map indicate any public sewer within 30.48 metres (100 feet) of any buildings within the property? Question 2.5 from the CommercialDW is in the same terms.

The Claimants refer by way of explanation of Question 2.4 to the London Drainage Facilities website which states that:-

And:-

The Claimants also rely on the points advanced with respect to the public sewer map question (Question 1.1 (above)), stating additionally by reference to the STPS ‘explainer’ for Question 2.4 that “ … public sewer infrastructure within property boundaries will affect potential development and use of the land, including by virtue of statutory rights of entry, easements, need to inspect and repair etc. and rights to veto development.” Indeed, the ‘explainer’ identifies the two reasons why prospective homeowners might be concerned about the presence of public sewers within their property boundaries, namely (i) concern around development, WASCs having legal rights to protect their assets, including possible veto of nearby development where, for example, it makes access to the relevant asset difficult and/ or might cause sewer burst or collapse and (ii) relatedly, WASCs’ statutory access rights to private land to maintain their assets, for example, to replace or repair sewers or other assets with the risk of excavation causing damage to properties. The Claimants say that this “ … may present a risk of flooding, overflowing, collapse, with consequential environmental risks and risks to human health.” The explainer goes on to note that, although these matters may sound alarming, sewers through boundaries are very common, particularly since the 2011 private sewer transfer and, more often than not, cause minimal issues for the owner.

For Question 2.5, the Claimants rely additionally on the rationale for its inclusion in the CON29DW as also indicated in the STPS ‘explainer’, namely:-

As to the second reason:-

Finally, the Claimants again rely on the acceptance by all Defendants that the key purpose for which the information was produced or obtained includes compliance with their statutory duties, the various sections of the WIA and related legislation all said to form part of the same ‘measure’, with the state of water and the environment at its core.

The Defendants say that information is of relevance only to the respective legal obligations of the WASC and owner/ occupier of the property, the latter wanting to know whether they are able to engage in building works without having to pay to divert the sewerage pipe or whether the local authority might be able to compel a property to be connected to the sewer main in certain circumstances in the future. From an environmental perspective, whether a public sewer crosses the corner of one particular property, whether it is just outside or whether it is within 30.48m of a particular building, is neither here nor there. Furthermore, because of the transfer of sewers in 2011, there are a number of public sewers not shown on the Defendants’ maps. Accordingly, even if the presence or absence of a public sewer within specific property boundaries or within a certain distance of buildings is properly considered EI, the responsive information does not give a definitive answer. Additionally, whether a sewer is public or private does not in itself have any environmental significance and (in many cases) will depend upon the terms of the 2011 transfer. For example, the drains in a row of terraced houses may be public in respect of some but not in respect of others depending on their precise position but, from an environmental point of view, any such distinction is arbitrary and insignificant.

Finally, in relation to Question 2.5, the Defendants say that some of them (NW, UU and YW) will (in certain circumstances) express a professional opinion as to the presence of a public sewer within 30.48 metres even though not shown on the map. This is not factual information, let alone EI, being a matter of expert judgment.

Given the similarity of their subject matter, it is also convenient to address together the two pumping station questions. Question 2.4.1 asks: does the public sewer map indicate any public pumping station or ancillary apparatus within the boundaries of the property? Question 2.4.1 from the CommercialDW is in the same terms. Question 2.5.1 asks: does the public sewer map indicate any public pumping station or any other ancillary apparatus within 50 metres of any buildings within the property? Question 2.5.1 from the CommercialDW is in the same terms.

The Claimants rely for both questions on the points made under Question 2.4 (above). They also rely on the STPS ‘explainer’ which addresses Question 2.4.1 and Question 2.5.1 together, explaining that they were added to the CON29DW in 2016 on account of the then transfer of most private pumping stations to the WASCs. As to the reasons for their inclusion, the ‘explainer’ notes that:-

The Claimants rely on these potential effects on land use and amenity from maintenance as well as the other possible risks indicated to say that the related information was EI. In addition, they refer again to the two ICO decision notices against D4 referred to above ([IC-163737-D3Q3] and [IC-218612-B1J7]) in which the ICO and D4 are said to have implicitly accepted as EI information relating to (i) an environmental permit granted by D4 for a particular STW and certain discharge data and (ii) certain capacity, operational and trade effluent permit data concerning another specific STW. Again, these decisions do not meaningfully advance the analysis, such STW data being qualitatively different from that responsive to both these questions.

Finally, the Claimants again rely on the acceptance by all Defendants that the key purpose for which the information was produced or obtained includes compliance with their statutory duties, the various sections of the WIA and related legislation all said to form part of the same ‘measure’, with the state of water and the environment at its core.

In relation to these questions, the Defendants make essentially the same points as for Question 2.4 and Question 2.5 (above), it making no difference whether, for example, a pumping station is within one or other of two adjacent properties, just outside the boundaries of both properties or within a certain distance of them. Moreover, in the vast majority of cases, the answer to this question is “no”, disclosing nothing of significance as regards the property purchase, let alone in relation to the wider environment.

It is also convenient to address together both sewer connection questions. Question 2.1 asks: does foul water from the property drain to a public sewer? Question 2.1 from the CommercialDW is in the same terms.

Relying upon ICO guidance, the Claimants say that foul water is ‘water’ within the meaning of the EIR. Since wastewater discharge into the public sewer has an impact on the water composition of the sewer system (ie: the state of water), information about it is EI.

Moreover, according to another less detailed STPS ‘explainer’, the owners of unconnected properties are responsible for “all costs of operation and maintaining private treatment processes, as well as any possible future costs due to rising environmental standards or the need to connect to a public sewer.” The more detailed STPS ‘explainer’ for Question 2.1 also relied on by the Claimants states:-

The Claimants rely on the ICO decision notice against SWW [IC-246925-B5D5] in which a request for the start and finish time regarding a discharge from a particular combined sewer outflow on a specific date (and any other sewage spills at that time in the Exmouth area) was considered to be a request for EI, being information relating to the management of wastewater and, as such, on factors affecting the elements of the environment (presumably within Reg 2(1)(b)). Again, this decision did not advance the analysis, the relevant data there being qualitatively different from the information responsive to this question.

Perhaps of more relevance to this case was the decision of the Scottish ICO [048/2020] in which Scottish Water accepted that information concerning the existence or otherwise of water connections for a built structure was EI. The Scottish ICO agreed, considering the information to fall under Reg 2(1)(a) and (c), albeit on what basis was not explained. In that case, however, the request was extensive, seeking information on the precise route and locations of the mains drain into which the solum of the particular premises drained.

The Defendants say that, although water is one of the elements of the environment referred to Reg 2(1)(a), knowing whether foul water from a specific individual property drains to a sewer tells you little or nothing about the state of that element of the environment, the connection with the elements referred to Reg 2(1)(a) being incidental and tangential. Moreover, from an environmental point of view, it makes no difference whether the foul water from an individual property drains into a public sewer as opposed to a private one. Although this is relevant as regards the respective legal rights of the owner or occupier and the sewerage undertaker, it does not in itself have any real environmental significance.

Finally, where the report relates to a plot of land or new development, one possible answer by a number of the WASCs to this question was that the situation should be checked with the developer. The Defendants say that this answer had no environmental significance.

As to the surface water sewer connection question, Question 2.2 asks: does surface water from the property drain to a public sewer? Question 2.2 of the CommercialDW is in the same terms.

The Claimants say that surface water also constitutes ‘water’ within the meaning of the EIR. Since the discharge of surface water into the public sewer system has an impact on the water composition of the sewer system (i.e. on the state of water), information about it is again EI.

Likewise, if surface water does not drain to the public sewer, it will drain into the environment. In this regard, the Claimants again rely on both STPS ‘explainers’ to the effect that:-

And at more length in the more detailed ‘explainer’ for this question (and Question 2.3):-

The Defendants rely on their arguments under Question 2.1, adding that, since surface water (rainwater run-off) is less environmentally significant than sewage, their case is even stronger.

Applying the broad definition of EI, the information responsive to these questions could be said to be about, relate to or concern, and therefore be ‘on’, the state of the water (Reg 2(1)(a)), and factors such as substances, waste, discharges and releases affecting the state of the water (Reg 2(1)(b)), it being obvious from the presence, location of and/ or connection to, a public sewer (or other sewer assets) that water is likely present within, near or travelling through them and, given its source, likely content and mixture with other such water as it travels to the local STW, that one element at least will be ‘foul’. However, the responsive information says little more than those obvious facts, its focus being on the location of assets relative to a property, and potential connection thereto, not their function, content or operation.

That position remains if the responsive information indicates the lack of public sewer assets or connection thereto. The Claimants say that this might suggest the presence of private sewer assets such as septic tanks or cesspits but that is not indicated by the information, at least as called for by the questions themselves, and is therefore surmise. Nor, even if private sewer assets were indicated, would such information be likely to say more about the related discharges or the state of the water itself beyond, again, the rather obvious.

The same is true of the surface water questions. The fact that surface water, principally rainfall, may drain from the rainwater goods on a particular property directly into the public sewer, says little, if anything, about the effect of that release into the sewer system or the state of that water, other than indicating its entry into either a combined sewer to join with foul water and travel to an STW or into a (separate) surface water sewer that might, albeit this is again surmise, travel instead for discharge into a watercourse.

The Claimants also say that the absence of a surface water connection might suggest alternative forms of surface water drainage, with consequential impacts in terms of contaminants affecting the state of the water, interaction with the soil as the medium for the particular drainage system concerned and/ or excess surface water potentially affecting the state of the soil or land. However, the CON29DW questions again do not call for this information. What surface water drainage infrastructure might be in place, if there is no connection to a public sewer would again be surmise as would the consequences in that event for the state of the surface water and its interaction with other elements of the environment.

The Claimants also suggest that the responsive information is ‘on’ the soil, land, landscape and natural sites on which the infrastructure is located. However, beyond the map showing the location of certain assets (and, for some assets, their depth), information about their location relative to the boundary of a particular property and the obvious point that the sewers, pipes, manholes and pumping stations will be located in, under and/ or on the soil and/ or land, the responsive information again says little, if anything, about the state of those elements, let alone of any landscape or natural sites.

The Claimants also point to the limitations and risks associated with the presence of such assets on private land, including potential restrictions on development, damage to those assets if works are undertaken nearby without adequate protection, consequential environmental and human health risks (eg flooding, bursting or overflowing), and some assets (e.g. pumping stations) being potentially noisy or unsightly and others (e.g. pressurised sewers) presenting greater risks. However, the information responsive to these questions again does not illuminate these matters.

The Claimants also rely for these questions on an array of measures or activities, some general, some specific, which they suggest the information is ‘on’. As a preliminary matter, the suggested measure of “duties and obligations under the WIA” for (Question 1.1) (public sewer map) is, in my view, too vague to be meaningful.

The Claimants also suggest for foul water connection (Question 2.1) that the information is ‘on’ the duty of the relevant sewerage undertaker to comply with requisitions for the provision of a public sewer for domestic purposes of premises in a particular locality (s.98(1)) and related communications to it by way of lateral drain (s.98(1A)) and to provide a public sewer if the existing drainage of any relevant premises gives rise to such adverse environmental effects as to make its provision appropriate (s.101A) and other unspecified parts of Part IV of the WIA (‘Sewerage Services’) relating to sewers and lateral drains. However, the information responsive to these questions says nothing about how any such public sewer or connections to it came about. That is obviously also the case where no public sewer assets are indicated.

As to surface water connection (Question 2.2), the Claimants suggest that the information is ‘on’ the duty of the relevant sewerage undertaker to allow communication of the public sewers with drains or private sewers upon the owner or occupier of the relevant premises giving notice of his proposals (s.106), including communication with a compliant SuDs drainage system (s.106A), the power of sewerage undertakers themselves to construct drainage systems for the purpose of reducing the volume of surface water entering the public sewers at the rate it does (s.114A) and other unspecified aspects of Parts IV of the WIA (‘Sewerage Services’) relating to provision of sewers, including discharge of surface water and (presumably under Part V (‘Financial Provisions’)) surface water charges. However, the responsive information says nothing about how the property was connected to the public surface water sewer or what alternative surface water drainage systems, if any, might be present.

Although the relevant Defendant may well require access to the particular property to inspect, maintain, repair and improve its sewer assets, exercising its powers under Part VI of the WIA (‘Undertakers’ Powers and Works’) for that purpose, these questions do not call for any information about those powers or their exercise and, again, the CON29DW does not provide any.

Nor, as already noted, is the CON29DW information (including for these questions) ‘on’ the WASCs’ information provision duties under Part VII of the WIA (‘Information Provisions’), including to make available the sewer map for public inspection. These questions do not call for information about how the WASCs collect, store and make publicly available, their own information, and the CON29DW does not provide any.

At its highest, it could be said (as the Claimants do) that information indicating the presence and location of public sewer assets within and around a particular property or the connection of that property to those assets is about, relates to or concerns, and is therefore ‘on’, the relevant WASC’s provision of sewerage services and its operation and management of the sewer network, at least in the vicinity of that property. However, beyond the presence of, and a particular property’s connection to, certain individual assets, the information says little, if anything, about the function or operation of the local sewerage system, let alone about the WASC’s duty to provide, improve and extend a system of public sewers inside its area of responsibility, the cleansing and maintaining of those sewers to ensure the effective drainage of that area (s.94(1)(a)) or the provision for their emptying or effectual dealing with their contents (s.94(1)(b)).

Finally, the Claimants say that the responsive information is ‘on’ the state of built structures inasmuch as they are or may be affected by the state of the elements of the environment referred to in Reg 2(1)(a) or, through those elements, by any of the matters referred to in Reg 2(1)(b) and (c), the term ‘built structures’ said to encompass not only the property with which the prospective purchaser is interested, but also the sewers, lateral drains, pipes, infrastructure and other man-made elements of the network itself. However, even on that expansive view of the term, the responsive information says nothing about the state of those built structures, let alone how they might be affected by the state of the elements in Reg 2(1)(a) or, through them, by any of the matters in Reg 2(1)(b) and (c).

I therefore find that the information responsive to these CON29DW questions is not EI. I do so conscious of, but notwithstanding, the breadth of the definition of EI indicated by cases such as Henney, including how the proper approach is not restricted by what the information is specifically, directly, immediately, let alone primarily, “on” (Henney at [39]). I also keep well in mind the obvious need for, and environmental implications of, an effective sewerage system, not least ensuring effective sewage treatment and water conservation, as both are important aspects of the legislative and regulatory regime described above. Despite these matters, the paucity and limited scope of the information responsive to these questions, concerned as it principally is with the locational relationship of specific sewer assets with a particular property, are such that any connection with the matters identified in Reg 2(1)(a) is minimal.

I am reinforced in these findings by both the wider context of the information, including the purpose for which it has been produced to the ultimate recipients of the CON29DW and the objectives of the EIR. As to the former, there is good reason for the focus of these questions on the location of the relevant sewer assets relative to a particular property. As the STPS ‘explainer’ makes clear for a number of them, their purpose is to elicit information which might implicate the rights and liabilities of the prospective property owner, whether in terms of having to afford access to the undertaker to maintain its assets, restricting the ability to build over or near to those assets, identifying where responsibility might lie for asset repair or whether the local authority can compel connection of the property to a public sewer and cause the landowner thereby to incur related cost. The purpose of the questions is not to enquire as to the content, condition, function, operation or potential risks of the assets, their effect on the water, soil or land, the related activities of the undertaker in their deployment and operation, or the environmental protections that any related restrictions on land use or development, for example, might afford.

Relatedly, nor can it be said that the information responsive to these questions, directed as it is to those purposes, meaningfully advances the objectives of the EIR. Without more, access to information about the presence (or otherwise) of sewer assets and their connection or location relative to an individual property does not advance public debate on, or better decision-making in, environmental matters (Henney at [54]). The Claimants’ general argument is that such information facilitates better understanding of the Defendants’ compliance (or otherwise) with their public duties and responsibilities under the WIA. Although such an objective would accord with the purpose of the EIR, it is not one indicated by the answers to these questions at least.

Accordingly, I find that the information responsive to these questions is not EI.

I now turn to certain further sewerage related questions which, given their more discrete subject matter, are appropriately considered individually.

Question 2.7 asks: has a sewerage undertaker approved or been consulted about any plans to erect a building or extension on the property over or in the vicinity of a public sewer, disposal main or drain? Question 2.7 from the CommercialDW is in the same terms.

The Claimants again rely on the STPS ‘explainer’ for this question. This explains that local planning and building control authorities routinely consult WASCs about any proposed application affecting the immediate vicinity of one of their assets and that developments not requiring planning permission will still need to be approved by WASCs if they are likely to impact on their assets. The ‘explainer’ identifies the reasons for this as follows:-

In this regard, the Claimants rely on the Secretary of State’s concession in Venn that the definition of “environmental” in the Convention is arguably broad enough to catch most, if not all, planning matters. In that case, the issue arising was whether, in allowing an appeal against the local authority’s refusal of planning permission for a single story courtyard dwelling in the garden of a Lewisham property, the planning inspector had failed to have regard to the local plan policy (itself said to be supported by other national and London planning policies and guidance). To the same end, the Claimants rely on the long list of planning matters identified as EI in Coppel, Information Rights (6^th ed.) (at [17-018]), including financial viability assessments and legal advice on agreements to redevelop.

Finally, the Claimants say that all Defendants accept that, if and to the extent that the responsive information is ‘held’ by a Defendant, the key purpose for which it was produced or obtained is to (i) determine the impact of any such approval, keep informed and, if necessary, object, in relation to any such plans to build or extend, so as to ensure that it can continue to exercise its rights of access to carry out maintenance work and, if necessary, take steps towards preventing its assets from being obstructed or damaged by building work and (ii) be able to identify whether building works which pose a risk to or have already damaged its assets were approved or consulted upon and, if not, take appropriate action.

The Defendants say that the information responsive to this question relates to a landowner’s right to build on its own land and the legal rights of landowner and undertaker in respect of any building. The relevant information has only a remote or tangential connection with any of the elements of the environment listed in Reg 2(1)(a). The connection with any environmental matters is still more remote where there has merely been consultation but, as yet, no approval. The same points apply with more force to the majority of cases where the answer is “no”.

The Claimants say that the information responsive to Question 2.7 is ‘on’ the state of the elements of the environment, including water (in the sewer or drain), soil, land, landscape and the interaction among these elements (Reg 2(1)(a)). However, the information says nothing about the state of the water, its focus being on approvals for construction work over, or in the vicinity of, those assets, not their content.

Although the question does not call for information about the subject matter of the agreement or consultations or what proposed work might be undertaken if approval is given, I am satisfied that information confirming the existence (or otherwise) of plans for the development of land (even if not yet consummated) relates to the state of that land, the soil and, potentially, the landscape, within the meaning of Reg 2(1)(a).

That said, I do not accept that the information responsive to this question is ‘on’ factors such as waste (in the sewer or drain) affecting or likely to affect the state of the elements of the environment (Reg 2(1)(b)). Beyond the premise of the question being construction over or, in the vicinity of, a sewer, disposal main or drain (into which waste may well discharge), the information elicited says nothing about waste, let alone its impact on the state of the elements referred to in Reg 2(1)(a).

Nor is the information ‘on’ the state of built structures inasmuch as they are or may be affected by the state of those elements or, through those elements, by any of the matters referred to in Reg 2(1)(b) and (c) (Reg 2(1)(f)). To the extent the Claimants are referring here again to the sewer and drainage infrastructure as being built structures, the responsive information says nothing about their state, let alone how they might be affected by the state, or through the elements of, the environment. The same is true if the Claimants are, in fact, referring to any construction, including any risk of flooding or building collapse associated with unauthorised works.

Finally, the Claimants say that the information is ‘on’ measures, plans, programmes, environmental agreements and activities (e.g. the activity of the relevant WASC agreeing to a building permit or planning application) affecting or likely to affect the elements and factors referred to in Reg 2(1)(a) and (b) as well as measures or activities designed to protect those elements (Reg 2(1)(c)). I agree that the exercise of a WASC’s power to approve (or otherwise) a plan to erect a building or extension is a measure or activity that would affect, or be likely to affect, as well as being designed to protect, the soil, land and, potentially, the landscape within the meaning of Reg 2(1)(c).

As to the broader context, the Defendants are correct to say that the responsive information concerns the landowner’s rights (or otherwise) to build on his own land and the undertaker’s related rights in relation to any nearby sewer assets. However, the connection between the responsive matters and the Reg 2(1) matters identified above is more than merely tangential here. Nor did I find persuasive the Defendants’ argument that the position would be different where the relevant proposal was merely under consultation or there had been no approval or consultation at all. The prospective exercise of an approval power would still engage those matters, as would its non-exercise. I am also satisfied that this information would be of broader public environmental interest than the narrower interests of landowner and sewerage undertaker, access to information about potential or actual local land development advancing public debate on, and better decision-making in, environmental matters.

Accordingly, I find that the information responsive to this question is EI.

Question 2.8 asks: is [any] [the] [normally occupied] [building] [the dwelling house] [which is or forms part of] the property, [or any part of the property] at risk of internal flooding due to overloaded public sewers? Question 2.8 and Question 2.8 from the CommercialDW are in very similar terms.

The Claimants rely on the STPS ‘explainer’ for this question which states that, although the areas of the CON29DW that tend to concern most people are around connections and public assets within property boundaries, the area of sewer flooding is also of concern as having the potential for serious household disruption, as to which:-

The Claimants also rely on the acceptance by all Defendants that if and to the extent that the responsive information was ‘held’ by a Defendant, the key purposes for which it was produced or obtained included to monitor flood risk and take steps towards preventing the building from flooding or flooding again in the future, to address ongoing flooding incidents, to comply with its duty pursuant to s.94 of the WIA to ensure that the area it serves is, and continues to be, effectually drained and to comply with a regulatory requirement to report to Ofwat, the various sections of the WIA and related legislation/ regulatory framework all said to form part of the same ‘measure’, with the state of water and the environment at its core.

The Claimants also say that the Tribunal in Walker v IC [EA/2011/0096, 21 October 2011] held that information related to flood risks from a watercourse was EI. However, apart from the somewhat different context of the question here, it appears that the Tribunal and the parties proceeded in that case on the basis the information sought was EI such that the point was not argued, the main issue being whether the relevant request for information was ‘manifestly unreasonable’ within the meaning of Reg 12(4)(b). The two ICO decision notices relied upon by the Claimants issued against, respectively, NW [FER0588641] and YW [FER0590277] also appear to have proceeded on the same basis. Moreover, the requests for information in those cases concerned the relevant undertaker’s (DG5) flood risk database, not merely the flood risk record for a particular property. As such, the utility of these decisions is limited.

The Defendants say that, although there is some connection with Reg 2(1)(a) (water being one of the elements of the environment), the risk of flooding as regards a specific, individual property is not sufficiently closely connected with the matters in Reg 2(1), or about which the EIR is or ought to be concerned, for it to constitute EI. The fact that it may be of real interest or concern to a house-purchaser to know whether their specific property might be affected is a separate and distinct matter. The same points apply with even more force to the great majority of cases where the answer to question 2.8 is “no”.

The information responsive to Question 2.8 (and CommercialDW equivalents) is EI. First, at its most basic level, the information is “on” the (overflowing and foul) state of the water at risk of leaving the sewer system and entering the dwelling or building concerned. Unlike the questions directed to the location of, and connection to, sewer assets, the information responsive to this question is concerned with the state of the water, being a particularly unpleasant feature of internal flooding from sewers. However, I do not agree with the Claimants that the information is also concerned with the state of the land, and the interaction of water and land, the question here being directed to internal flooding.

Second, and to a similar end, the information is ‘on’ factors, including substances, waste, discharges and releases into the sewer system affecting or, likely to affect, the (overflowing and foul) state of the water at risk of leaving the sewer system and entering the dwelling or building concerned.

Third, and more pointedly, the information is ‘on’ measures affecting or likely to affect the elements (water) and factors (substances, waste, discharges and releases in the sewer system), those measures including the requirement for effluent from a sewer not to enter a customer’s building (see Regulation 11(1) of the Water Supply and Sewerage Services (Customer Service Standards) Regulations 2008), representing a component of the service standards laid down by regulation for compliance (or otherwise) with the broader measure at s.94 of the WIA, including the duty to empty sewers and make further provision to deal effectually with their contents (s.94(1)(b)). Again, unlike the questions directed to the location of, and connection to, sewer assets, this question does concern the content, function and operation of the sewerage system, thereby, implicating the general duty to provide sewerage services, albeit not, as the Claimants suggest, the WASCs’ record-keeping or compensation obligations with which the responsive information is not concerned.

Fourth, and also more pointedly, the information is also ‘on’ the state of built structures (i.e. the flooded building or dwellinghouse) as they may be affected by the (overflowing and foul) state of the water, alternatively as such built structures may be affected through water by substances, waste, discharges and releases in the sewer system (Reg 2(1)(f)).

In this regard, I am unable to accept the Defendants’ argument that the risk of flooding of an individual property is not sufficiently closely connected with the elements of the environment in Reg 2(1)(a). The environmental and sanitary risks posed by internal property flooding, even at individual property level, mean that such connection is more than minimal. Moreover, given those risks, and the implications for the local sewerage infrastructure, including the potential need for improvement, access to such information, again even at individual property level, advances public debate, and better decision-making, in environmental matters.

Finally, the fact that the majority of these CON29DW enquiries may elicit a “no” answer does not alter the analysis. Information that a property is not at risk of internal flooding is still EI.

Accordingly, I find that the information responsive to this question is EI.

Question 2.9 says: please state the distance from the property to the nearest boundary of the nearest sewage treatment works. Question 2.9 from the CommercialDW is in the same terms.

The Claimants again rely on the STPS ‘explainer’ for this question. This states:-

The Claimants also rely on the ICO decision notice against STW [IC-163737-D3Q3] (also relied on under Question 2.4.1) in which the ICO and STW are said to have implicitly accepted as EI information relating to an environmental permit granted by D4 for a particular STW and certain discharge data. However, even though both are concerned with STWs, the information the subject matter of the ICO decision was, again, qualitatively different from that responsive to this question.

Finally, the Claimants say that most of the Defendants accept that, if the responsive information is ‘held’ by a Defendant, the key purposes for which it was produced or obtained included to comply with their statutory duties, the various sections of the WIA and related legislation all said to form part of the same ‘measure’, with the state of water and the environment at its core.

The Defendants say that the location of the STW may be EI (for example, as being information on factors falling within Reg 2(1)(b)). However, the distance of the works from a specific property does not in itself tell you anything that would contribute to meeting the objectives of the EIR. Indeed, if this information did constitute EI, the consequences would be wide-ranging and surprising, potentially requiring, for example, a public authority holding information about an environmentally relevant site or feature to measure the distance between that site or feature and any other location and to disclose the resulting measurement.

The information responsive to Question 2.9 is EI. First, although not specifically identified in the CON29DW itself, the question is clearly concerned with the ‘hazards’ of living in the vicinity of an STW, principally the smell of sewage treated at the STW. As such, it is ‘on’ the state of the elements of the environment, including air, atmosphere and (foul) water at the STW (Reg 2(1)(a)). Again, unlike the questions directed to the location of, and connection to, sewer assets, the information responsive to this question is concerned with the state of these elements albeit, with its focus on the proximity of the STW, not the landscape about which it says nothing.

Second, the information is also ‘on’ factors such as substances, waste, discharges and releases (as treated at the STW) affecting or likely to affect the state of the above elements of the environment (Reg 2(1)(b)).

Third, the information is ‘on’ the ‘measure’ or activity identified at s.94(1)(b) of the WIA of “ … dealing, by means of sewage disposal works or otherwise, with the contents of [ ] sewers”, such measure or activity likely to affect the elements and factors identified above, as well as being designed to protect the water through its treatment (Reg 2(1)(c)). Again, unlike the questions directed to the location of, and connection to, sewer assets, the information responsive to this question is concerned with the function and operation of the relevant undertaker with respect to the content of the sewers.

I was not persuaded, however, that the responsive information is ‘on’ the state of built structures inasmuch as they are or may be affected by the state of the elements of the environment or, through those elements, by the factors or measures identified above (Reg 2(1)(f)). Although, no doubt, the use and enjoyment of a property would be affected by a nearby STW, particular in terms of air quality and odour, this does not impact the state of the relevant built structure as such.

Finally, I did not find compelling the Defendants’ suggestion that knowing the distance of an STW from a specific property does not say anything that contributes to meeting the objectives of the EIR. To the contrary, even if that information is couched in that manner, access to information about local sites such as STWs, with the environmental effects described, is consistent with those objectives and advances public debate on, and better decision-making in, environmental matters.

Nor was my view affected by the suggested surprising outcome that a public authority would be required to measure the distance between any environmentally relevant site and any other location. As the Defendants recognise, this assumes that the information is “held” by the public authority in the first place. Moreover, even if the information is held by the relevant WASC, the point seems more properly one of burden rather than whether, as a matter of principle, the information is EI.

Accordingly, I find that the information responsive to this question is EI.

Question 5.1 (CommercialDW) asks: is there Consent, on this property, to discharge Trade Effluent under s.118 of the Water Industry Act (1991) into the public sewerage system?

S.141(1) of the WIA defines trade effluent as “any liquid, either with or without particles of matter in suspension in the liquid, which is wholly or partly produced in the course of any trade or industry carried on at trade premises”.

The Claimants rely for this question on STW’s website which states that:-

The Claimants again rely for this question on the two ICO decision notices against D4 concerning, respectively, (i) an environmental permit granted by D4 for a particular STW and certain discharge data [IC-163737-D3Q3] and (ii) certain capacity, operational and trade effluent permit data concerning a particular STW in D4’s area [IC-218612-B1J7] in which the ICO and D4 both implicitly accepted that the information sought was EI. However, with perhaps the exception in the latter of the list of companies holding trade effluent consents, the information the subject matter of those notices, was, again, qualitatively different from the information in issue for this question. As such, they added little to the analysis even if the point had been argued (which it was not).

Finally, the Claimants say that all Defendants accept that, if and to the extent that the responsive information was ‘held’ by a Defendant, the key purposes for which it was produced or obtained include to comply with its duties regarding trade effluent registers pursuant to s.196 of the WIA, the various sections of the WIA and related legislation all said to form part of the same ‘measure’, with the state of water and the environment at its core.

The Defendants rely on their general arguments summarised above.

The information responsive to Question 5.1 (CommercialDW) is EI. First, unlike the questions directed to the location of, and connection to, sewer assets, the responsive information is ‘on’ the state of the water (i.e. as mixed with trade effluent) within the sewers (Reg 2(1)(a)). However, contrary to the Claimants’ suggestion, it is not ‘on’ the state of the soil, land, landscape and natural sites on which the sewer infrastructure is located, or the interaction of these elements. The information says nothing about those matters.

Second, similarly, the information is ‘on’ factors such as substances, waste, emissions, discharges and other releases (i.e. trade effluent) affecting or likely to affect the state of the water (Reg 2(1)(b)).

Third, the information is ‘on’ the ‘measure’ or activity of the sewerage undertaker in giving consent for the discharge of trade effluent pursuant to s.118 of the WIA, being likely to affect the elements and factors identified above, as well as a measure or activity designed to protect those elements, including, for example, through the imposition of conditions to any consent pursuant to s.121 (Reg 2(1)(c)).

Fourth, although D4’s website explains the damaging effect of trade effluent on sewers, I was not persuaded by the Claimants’ suggestion that the responsive information is also ‘on’ the state of built structures inasmuch as they are or may be affected by the state of the water or, through the water, by any of the factors or measures identified above. The responsive information says nothing about this.

Finally, even if the person commissioning the CommercialDW may be more concerned to know the implications of the responsive information for the operation of his business than for its environmental impact, access to information about trade effluent, even as permitted to be discharged from a single property, will advance public debate on, and better decision-making in, environmental matters.

Accordingly, I find that the information responsive to this question is EI.

It is convenient to consider together the sewer and water mains adoption questions, engaging as they do similar considerations. In relation to sewer adoption, Question 2.6 asks: are any sewers or lateral drains serving or which are proposed to serve the property the subject of an existing adoption agreement or an application for such an agreement? Question 2.6 from the CommercialDW is in the same terms. In relation to water mains adoption, Question 3.3 asks: is any water main or service pipe serving or which is proposed to serve the property the subject of an existing adoption agreement or an application for such an agreement?

The Claimants rely on the STPS ‘explainer’ for Question 2.6 which, after explaining that ownership of most newly laid sewers vests in the person who laid them, states:-

The Claimants say that sewer adoption agreements regulate the transfer of private sewerage infrastructure into public ownership and comprise part of the statutory regime under s.102 (onwards) of the WIA. Moreover, all Defendants accept that, if and to the extent that the responsive information was ‘held’ by a Defendant, the key purpose for which it was produced or obtained was to (i) identify which foul, surface and combined sewers it is or will be responsible for maintaining and (ii) decide what action (if any) should be taken in respect of any such application for an adoption agreement, the various sections of the WIA and related legislation all said to form part of the same ‘measure’, with the state of water and the environment at its core.

Finally, the Claimants rely on the decision of the Stuttgart Administrative Court in Verwaltungsgericht Stuttgart, Judgment of 13 November 2014 [4 K 5228/13] holding again, consistent with the broad definition, that the “cross-border leasing contracts” in that case were EI. The decisive matter in that case appeared to be that the main lease, leaseback and framework agreements all contained provisions concerning the obligations of the operator in relation to the operation of the sewer system, the non-performance of which potentially affected both the environmental elements of water and, at least indirectly, of the soil, a particular concern in that case because the investor potentially became responsible for sewage disposal after the leaseback period ended. All the contracts (including those dealing only with financing or tax issues) were therefore considered to contain EI. However, the information in that case was again qualitatively different from the information responsive to this question.

The Defendants say that the information responsive to this question has no, or at most a remote or tangential, connection with the elements of the environment in Reg 2(1)(a). An adoption agreement concerns the division of responsibility between developer and WASC, the latter only assuming responsibility upon adoption. It has no effect on the environment but concerns against whom the householder will have legal rights during the period before or after adoption. Any link with the elements of the environment is still more remote where there is no adoption agreement yet in place but merely an application for such an agreement. Finally, the Eversheds Defendants say that they also provide information as to whether the maintenance period has started or whether the adoption agreement is supported by a bond, such information relating to the respective legal and financial liabilities of the sewerage undertakers and developers, not to any environmental matters

The Claimants rely for Question 3.3 on their arguments under Question 2.6 (sewer adoptions) as well as the STPS ‘explainer’ for the former which states that:-

Finally, the Claimants say that adoption agreements regulate the transfer of private waterworks infrastructure into public ownership, and comprise a part of the statutory regime (ss.51A-51E of the WIA). Most of the Defendants accept that, if and to the extent that the responsive information was ‘held’ by a Defendant, the key purpose for which it was produced or obtained was to (i) identify which water mains and service pipes it is or will be responsible for maintaining and (ii) decide what action (if any) should be taken in respect of any such application for an adoption agreement, the various sections of the WIA and related legislation all forming part of the same ‘measure’, with the state of water and the environment at its core.

The Defendants too rely for Question 3.3 on the points made under Question 2.6, also noting that the answer to the former in the vast majority of cases is “no” such that it therefore has no environmental significance even to the property purchaser.

Considering sewer adoption first, the information responsive to Question 2.6 could be said to be ‘on’ the state of the water (Reg 2(1)(a)) and factors such as substances, waste, discharges and releases affecting the state of the water (Reg 2(1)(b)), it being obvious that foul water at least will likely be present within, near or travelling through the relevant sewer the subject of the agreement. However, as with the sewer map, assets and connection questions, the responsive information says little more than that obvious fact, the focus being on the existence of an agreement, or of an application for an agreement, to adopt a sewer, not the content, function or operation of that asset, whether existing or yet to be built.

It could perhaps also be suggested, although the Claimants did not appear to do so, that the information is ‘on’ the state of the soil or land (Reg 2(1)(a)), it likely being a condition of any adoption agreement that the relevant sewer must be constructed using a particular method and to a certain standard before it can vest in the undertaker. However, the responsive information again says nothing about any such requirements.

The Claimants also rely for these questions on the ‘measures’ or activities constituted by s.102 (and following) of the WIA to say that Reg 2(1)(c) is engaged. Although the agreement to adopt existing sewers or those yet to be built under, respectively, ss.102 and 104 of the WIA are ‘measures’ within the meaning of Reg 2(1)(c), and the responsive information is ‘on’ them, the proposed or agreed change of ownership of the relevant sewer or lateral drains would not affect or be likely to affect, the water, land or factors identified above. Regardless of any agreement to adopt (or related application), the sewer would still be present or built and the foul and/ or surface water would still flow into it.

Consistent with Henney, it could be said that s.102 (and following) of the WIA is part of a broader measure, for example, with respect to the general duty to provide a sewerage system to ensure the effectual drainage of the area concerned. In one sense, the adoption of sewers, and their potential absorption into the public system, reflects the provision and extension of that system (s.94(1)(a) of the WIA), with the WASC having to operate, maintain and cleanse them post-adoption. However, information concerning the existence of an adoption agreement does not meaningfully inform that broader measure. In Henney, the data communication component was critical to the success, and an integral part, of the SMP. In this case, whether or not the relevant undertaker agrees to adopt a sewer in a particular locality, it would still carry on the provision of the sewer system in the area in accordance with s.94(1).

Finally, the Claimants say that the responsive information is ‘on’ the state of built structures inasmuch as they are or may be affected by the state of the elements of the environment referred to in Reg 2(1)(a) or, through those elements, by any of the matters referred to in Reg 2(1)(b) and (c). However, even on the expansive view of that term as encompassing man-made elements of the sewer network, the responsive information again says nothing about the state of those built structures, or any properties they might serve, let alone how they might be affected by the state of, or through, water for example.

The position is the same for water mains adoption and for much the same reasons. Although there obviously is, or will be, water travelling through any water main or pipes proposed to be adopted, the information responsive to Question 3.3 says nothing about its state or that of the other elements in Reg 2(1)(a), or their interaction.

Likewise, although the responsive information is ‘on’ the ‘measures’ or activities reflected in ss.51A-51E of the WIA, the existence of an adoption agreement for a water main (or application therefor), does not affect, and is not likely to affect, the water supplied to the new property (Reg 2(1)(c)). Nor can it again meaningfully be said in this context either that these specific measures on water main adoption are a sub-component of the general duty to “develop and maintain an efficient and economical system of water supply within its area” (s.37(1)).

Nor does the information concern the state of built structures, whether of the man-made elements of the network through which the water travels or of the property to which that network may be connected, let alone how they might be affected by the state of, or through, water (Reg 2(1)(f)).

Again, I am reinforced in these findings by both the wider context of the information, including the purpose for which it has been produced to the ultimate recipients of the CON29DW and the objectives of the EIR. The STPS ‘explainer’ makes clear for both questions that their importance lies in who has legal responsibility for a particular asset and the related financial risk to a house buyer pending adoption, neither of which advances public debate on, or better decision-making in, environmental matters or otherwise advances the purpose of the EIR. In my view, such information has minimal connection with the elements of the environment indicated in Reg 2(1)(a).

Accordingly, I find that the information responsive to these questions is not EI.

Finally, before moving to the water questions proper, it is appropriate to consider here a question unique to the CommercialDW form. Question 6.1 (CommercialDW), asks: is there a wayleave/ easement agreement giving the Water and/ or Sewerage Undertaker the right to lay or maintain assets or right of access to pass through private land in order to reach the Company’s assets?

The Claimants say that the existence of a wayleave or easement conferring a right to install or maintain assets or a right of access to pass through private land will affect potential development and use of the land.

They also say that the Defendants must know whether they have a right to install or maintain assets or a right of access to pass through private land to reach their assets to comply with their general duty to provide a sewerage system under s.94 WIA. All the Defendants accept that, if and to the extent that the responsive information was ‘held’ by a Defendant, the key purpose for which it was produced or obtained was to know what rights it has over the property in question and is able to act within them, the various sections of the WIA and related legislation all said to form part of the same ‘measure’, with the state of water and the environment at its core.

The Defendants say that the information responsive to this question has no connection, or at very most a remote and tangential connection, with any of the elements of the environment in Reg 2(1)(a), concerning private arrangements or agreements between a WASC and property owner in relation to access to private land at a specific individual property. This information is of obvious relevance to a prospective purchaser but of no wider or more significant relevance, being about the respective legal rights and obligations of the WASC and the property owner or occupier and whether, for example, there can be access to a particular property without trespass.

The Claimants say that the information responsive to this question is EI essentially for the reasons indicated under a number of the sewer and water map, assets and connection questions. I reject the Claimants’ arguments for essentially the reasons stated there (above and below). The Claimants’ emphasise the potential effect of such wayleaves and/ or easements on the development and use of the land. Although entering onto land to lay or maintain, and possibly even to reach, assets might conceivably have some impact on the soil or land, the responsive information says nothing meaningful about such matters, the focus of the question being on the encumbrance created by the right of access to land, not on the consequences of its actual exercise.

As such, I consider that the information has minimal connection with the elements of the environment indicated in Reg 2(1)(a). This is to be contrasted, for example, with the information responsive to Question 2.7. That question concerns actual plans for the erection of a building or extension. As such, its focus is on the development and use of land and, for the reasons given, the responsive information is EI.

Accordingly, I find that the information responsive to Question 6.1 (CommercialDW) is not EI.

I also consider together the water map, connections and asset questions, albeit I can do so more briefly since they are fewer than, and their pattern (and the parties’ related arguments) are not dissimilar to, those for the corresponding sewer questions.

Question 1.2 says: where relevant, please include a copy of an extract from the map of waterworks. Question 1.2 of the CommercialDW is in the same terms.

The Claimants rely on their arguments for Question 1.1 (above), stating additionally that all Defendants accept that the key purposes for which the maps were produced or obtained include to enable the Defendants to comply with their statutory duties, the WIA and related legislation, all said to form part of the same ‘measure’ which has at its core the state of water and the environment.

In relation to the water map specifically, the STPS ‘explainer’ states that:-

The Defendants rely on their general arguments summarised above.

Question 3.1 asks: is the property connected to mains water supply? Question 3.1 from the CommercialDW is in the same terms.

The Claimants say that the mains water supply contains ‘water’ within the meaning of the EIR. Whether clean water in a public mains water supply is connected to a property has an impact on the state of the water in question.

The Claimants also rely on the STPS ‘explainer’ for this question which states:-

The Claimants also rely on two opinions of the French Commission d’accès aux documents administratifs (CADA) in which it held that (i) a report containing information describing the infrastructure of a water supply network and operating advice for servicing and maintenance of that network [Opinion 20103226] and (ii) a municipality master plan for drinking water [Opinion 20175061] were EI. However, apart from the limited reasoning indicated by both decisions, the subject matter of the information sought was, again, qualitatively different information from that responsive to this question and, as such, did not advance the analysis.

Finally, the Claimants say that the Defendants must know which properties are connected to their mains water supplies to comply with their general duty to maintain a water supply system under s.37 of, and all related obligations under, the WIA, the various sections and related legislation all said to form part of the same ‘measure’, with the state of water and the environment at its core.

The Defendants rely on their arguments for Question 2.1 (above), noting additionally that, in the case of a new development, all Eversheds Defendants (apart from SWW) may possibly answer the question by saying that the position with the developer should be checked, an answer with no environmental significance.

Question 3.2 asks: are there any water mains, resource mains or discharge pipes within the boundaries of the Property? Question 3.2 from the CommercialDW is in the same terms.

The Claimants rely on their arguments for Question 1.1 and Question 2.4 above.

In addition, they rely on the STPS ‘explainer’ for this question which explains that it is relatively rare for a water main to pass through private land because, unlike sewers, their location is not generally determined by the topography of the land, water mains being pressurised and capable of being laid where best suited. Moreover:-

So, the Claimants say, water network infrastructure within property boundaries will affect potential development and use of land, including by virtue of statutory rights of entry, the need to inspect, repair and excavate and the right to veto development as well as presenting a risk of bursting or overflowing with consequential risks to the environment and human health.

Finally, the Claimants say that all Defendants accept that, if the responsive information is ‘held’ by a Defendant, the key purposes for which it was produced or obtained included to comply with their statutory duties, the various sections of the WIA and related legislation all said to form part of the same ‘measure’, with the state of water and the environment at its core.

The Defendants rely on their arguments for Question 2.4 (above), noting additionally that, in the great majority of cases, the answer will be “no” because, wherever possible, the water mains are deliberately laid in the road, the question therefore generally being of no significance for a prospective house purchase, let alone the wider public and the environment.

The information responsive to these questions could, again, be said to be ‘on’ the state of the water (Reg 2(1)(a)), it being obvious from the presence and location of and/ or connection to, a water main or other mains and pipes that water is travelling through the network and, given its source, that it is clean and drinkable. However, the responsive information says little more than those obvious facts, its focus being on the connection to, and location of, water assets in the vicinity of a particular property, not the state of their contents.

That position remains if the responsive information indicates the lack of a water main or lack of connection thereto. The Claimants say that this might suggest the presence of private water sources such as wells, boreholes or springs but that is not indicated by the responsive information, at least as called for by the questions themselves, and is therefore surmise. Nor, even if such alternative private sources were indicated, would such information be likely to say more about the state of the water itself.

The Claimants also suggest that the responsive information is ‘on’ the soil, land and landscape (and the interaction of these elements and water). However, beyond the map showing the location of certain assets and the obvious point that these will be located in, under and/ or on the soil and/ or land, the responsive information again says little, if anything, about the state of those elements, let alone about the landscape.

The Claimants also point to the limitations and risks associated with the presence of such assets on private land, including access rights, potential restrictions on development (significantly heightened in the case of building near a water main) and risk of mains or pipe burst or overflow. However, the information responsive to these questions again does not illuminate these matters.

The Claimants also say that the responsive information is on ‘measures’, plans and activities (e.g. the management, maintenance and development of the water supply network, including under s.37 of the WIA), the power under Part III of the WIA (‘Water Supply’) to disconnect pipes in certain emergency circumstances, Part VI (‘Undertakers’ Powers and Works’) and Part VII (‘Information Provisions’), likely to affect the elements and factors referred to in Reg 2(1)(a) and (b) as well as measures or activities designed to protect those elements (Reg 2(1)(c)).

Although the relevant undertaker may well require access to the particular property to inspect, maintain, repair and improve its water assets, exercising its powers under Part VI of the WIA (‘Undertakers’ Powers and Works’) for that purpose, these questions do not call for any information about those powers or their exercise and, again, the CON29DW does not provide any. Nor does the information say anything about the undertaker’s power under Part III of the WIA (‘Water Supply’) to disconnect pipes in certain emergency circumstances.

Nor, as already noted, is the CON29DW information (including for these questions) ‘on’ the Defendants’ information provision duties under Part VII of the WIA (‘Information Provisions’), including to make available the water map for public inspection. These questions do not call for information about how the undertakers collect, store and make publicly available, their own information, and the CON29DW does not provide any.

At its highest, it could be said (as the Claimants do) that information indicating the presence of a clean water supply in the vicinity of, or connected to, a particular property is ‘on’ the general duty of the relevant undertaker under s.37 of the WIA to maintain a water supply system. However, information about the clean water supply infrastructure in the vicinity of, or its connection to, a particular property says little, if anything, about the obligation to develop and maintain an efficient and economical system of water supply in the WASC’s area, to ensure that all arrangements have been made to provide supplies of water in that area (s.37(1)(a) of the WIA) or to maintain, improve and extend its water mains and pipes (s.37(1)(b)).

Finally, the Claimants say that the responsive information is ‘on’ the state of built structures inasmuch as they are or may be affected by the state of the elements of the environment referred to in Reg 2(1)(a) or, through those elements, by any of the matters referred to in Reg 2(1)(b) and (c). However, even on the expansive view of the term as encompassing man-made elements of the water network, the responsive information says nothing about their state, or that of the particular property they may serve, let alone how they might be affected by the state of, or through, water.

Again, I am reinforced in these findings by both the wider context of the information, including the purpose for which it has been produced to the ultimate recipients of the CON29DW and the objectives of the EIR. There is good reason for the focus of these questions on the location of the relevant water assets relative to a particular property. As the STPS ‘explainer’ makes clear, their purpose is to elicit information which might implicate the rights and liabilities of the prospective property owner, whether in terms of having to afford access to the undertaker to maintain its assets or restricting the ability to build over or near to those assets, not to enquire as to the content, condition, function, operation of those assets or the related risks they may present. Without more, access to information about the presence (or otherwise) of water assets and their connection or location relative to a particular property does not advance public debate on, or better decision-making in, environmental matters or otherwise advance the purpose of the EIR. Indeed, it has minimal connection with the elements of the environment indicated in Reg 2(1)(a).

Accordingly, I find that the information responsive to these questions is not EI.

Next, I turn to certain water related questions which, given their discrete subject matter, are, again, more appropriately considered individually.

Question 3.4 asks: is this property at risk of receiving low water pressure or flow? Question 3.4 from the CommercialDW is in the same terms.

The STPS ‘explainer’ for this question states that:-

The Claimants also refer to the two ICO decision notices (also relied on in the context of Question 2.8) against NW [FER0588641] and YW [FER0590277] in which it is said that the ICO and the relevant Defendants implicitly accepted that information concerning properties at risk of receiving low water pressure was EI. In fact, in the former, NW did not accept that the DG2 database of properties was EI, albeit the ICO decided otherwise on the basis that the information was on the state (in this case the pressure) of water, the definition of EI encompassing water in pipes. In the latter decision, YW initially denied that information in the DG2 database was EI but did not maintain that stance in light of the NW decision notice [FER0588641].

The Claimants also say that all Defendants accept that, if and to the extent that the responsive information was ‘held’ by a Defendant, the key purposes for which it was produced or obtained included to monitor water pressure and take steps towards preventing the property from receiving low water pressure or receiving low pressure again in the future, to address ongoing low pressure incidents and to comply with a regulatory requirement to report to Ofwat, the various sections of the WIA and the related legislation and regulatory framework all forming part of the same ‘measure’, with the state of water and the environment at its core.

The Defendants rely on the points made under Question 2.8, adding that, even from the point of view of the individual house owner, the significance of low water pressure affects matters such as the strength of a shower and nothing more. That is a matter of some interest to the individual purchasing the property, but is not related to the environment or relevant to it in the required sense. Moreover, in the vast number of cases, the answer to this question is also “no”. It cannot be of any environmental significance to be informed that there is nothing significant about the water pressure of a particular house.

The Claimants say that the information responsive to this question is ‘on’ the state of the water (Reg 2(1)(a)). Although I accept that, for EIR purposes, ‘water’ includes that within a communication pipe serving a property, I found somewhat artificial the use of the word “state” to describe how it might be affected by (insufficient) mains pressure, it appearing to me that the state of the water at the kitchen tap in the flats at the top of a block is likely to be the same as at ground floor level even if the flow is slower higher up the building. I am of that view notwithstanding the ICO decision that water pressure information (albeit as indicated by the undertaker’s DG2 database for the properties in the entire area) was on the state of water [FER0588641].

Moreover, I do not accept the Claimants’ suggestion that the responsive information is ‘on’ the state of the land about which it says nothing.

Nor is the responsive information on the state of built structures inasmuch as they are or may be affected by the state of the elements of the environment referred to in (a) or, through those elements, by any of the matters referred to in (b) and (c) (Reg 2(1)(f)). The information says nothing about the state of the built structures rather than an aspect of the use and amenity of the properties served by the relevant water main.

Finally, the Claimants say that the information is on ‘measures’ affecting or likely to affect the elements and factors referred to in Reg 2(1)(a) and (b) as well as measures or activities designed to protect those elements (Reg 2(1)(c)). As a preliminary matter, I disagree with the Claimants’ suggestion that the information is ‘on’ undertakers’ record-keeping about incidents of low water pressure and their duties to compensate households suffering from low water pressure. The responsive information says nothing about these matters. However, the information here could be said to be ‘on’ the ‘measure’ in Regulation 10(1) of the Water Supply and Sewerage Services Regulations (Customer Services Standards) Regulations 2008, requiring an undertaker to maintain “in a communication pipe serving premises supplied with water, a minimum water pressure of seven metres static head.” If the responsive information indicates the risk of low water pressure, this suggests that such duty may not be being performed. If no such risk is indicated, this suggests compliance.

Moreover, Regulation 10(1) represents one aspect of the service standards laid down by regulation for assessing the relevant undertaker’s compliance (or otherwise) with its general duty to maintain a water supply system, including to ensure arrangements “for maintaining, improving and extending the water undertaker’s mains and other pipes” (s.37(1)(b) of the WIA). As such, it could be said that the information is on that broader measure too.

Despite these matters, I am still unable to conclude that Reg 2(1)(c) is engaged here. I am doubtful whether it could meaningfully be said in this context that either ‘measure’ affects, or is likely to affect, let alone is designed to protect, water. Relatedly, and conclusively in my view, the purpose for which the information is obtained and used is to identify potential issues with water flow at a particular property. Although no doubt very inconvenient to live at a property where the bath fills slowly or the low water pressure is incompatible with the use of certain appliances, access to information about that state of affairs does not advance public debate on, or better decision-making in, environmental matters or otherwise advance the purpose of the EIR. In my view, such information has minimal connection with the elements of the environment indicated in Reg 2(1)(a).

Accordingly, I find that the information responsive to this question is not EI.

The water classification and quality questions are most conveniently considered together. Question 3.5 v2 asks: what is the classification of the water supply for the property? Question 3.5 from the CommercialDW is in the same terms. Question 3.5 v1 was framed somewhat differently, asking: please include details of a water quality analysis made by the water undertaker for the water supply zone in respect of the most recent calendar year?

The Claimants rely on the STPS ‘explainer’ for Question 3.5 v2 which states:-

The Claimants also state that most of the Defendants accept that the key purposes for which the responsive information was produced or obtained included for each Defendant to be able to inform the registered customer or occupier of the property’s water hardness and, if relevant, put them on notice of a risk of hard water related issues.

The Defendants say that the answer towhether a particular area has hard or soft water may arguably be EI, but the same is not true as regards a specific privately-held property. The fact that a particular property has hard or soft water will affect, for instance, whether scale forms in kettles, a matter which may be relevant to those living in a particular property but which has no environmental significance of the kind that the EIR are intended to capture.

Question 3.6 v1 says: please include details of any departures, authorised by the Secretary of State under Part 6 of the 2000 Regulations from the provisions of Part 3 of those Regulations.

Part VI of the Water Supply (Water Quality) Regulations 2000 permitted the Secretary of State, upon the written application of the relevant water undertaker, to authorise (where necessary to maintain in the relevant zone a supply of water) a departure from the provisions of Part III of the Regulations concerning the wholesomeness of water supplied for certain domestic or food production purposes in respect of certain microbiological or chemical parameters.

In this regard, the Claimants say that most of the Defendants accept that the key purposes for which the responsive information was produced or obtained included for each Defendant to ensure that it was at all times aware of the extent of its obligations regarding the supply of “wholesome” water pursuant to Part 3 of the 2000 Regulations in relation to all relevant water supply zones and that they were met, the various sections of the WIA and related legislation all forming part of a singular statutory regime, with EI information (particularly concerning water) at its core.

The Eversheds Defendants say that, as far as they are aware, there have never been any authorised departures as regards any of them such that the answer to this question has always been “no”, a negative answer being of no significance even as to the decision to purchase a property, let alone as regards the environment.

The Claimants say that the information responsive to these questions is on the state of water (Reg 2(1)(a)). I agree, concerning at it does, the chemical and biological composition of the water and any departure from the prescribed wholesomeness standards.

Contrary to the Claimants’ suggestion otherwise, the responsive information is not on the state of built structures inasmuch as they are or may be affected by the state of the elements of the environment referred to in (a) or, through those elements, by any of the matters referred to in (b) and (c) (Reg 2(1)(f)). Although the presence of hard water may cause limescale in appliances and pipes, and soft water accelerate pipe corrosion, I am unable to conclude that these matters affect the state of the built structure as opposed to its internal pipes and fittings or an aspect of its use or amenity.

To the extent that the responsive information concerns water quality or authorised departures (Question 3.5 v1 and Question 3.6 v1), I agree that this is on the ‘measure’ under the relevant water supply quality regulations (as applicable at the relevant time) to maintain certain standards of water quality affecting or likely to affect the elements and factors referred to in Reg 2(1)(a) and (b) as well as measures or activities designed to protect those elements (Reg 2(1)(c)), itself an element of the more general duty at s.68 of the WIA to ensure the wholesomeness of the mains water. There being no standards specified for hardness, I do not agree that the information responsive to Question 3.5 v2 is on these measures. Although water companies monitor water composition, including calcium carbonate, and possibly soften the water supply, the responsive information says nothing about those activities.

Although the Defendants rely on the questions being concerned with an individual property, I remain satisfied that it is EI under Reg 2(1)(a). First, the water quality and classification information indicates the state of the water for the wider water supply zone (even if the supply itself originates from outside the geographical and geological area of the property).

Second, information about the quality of the drinking water, including its chemical and biological composition, has obvious human health implications. Consistent with the objectives of the EIR, access to such information advances public debate on, and better decision-making in, environmental matters.

Third, although the focus of the information responsive to the new classification question does not (with the possible exception of eczema) appear to give rise to human health considerations, water hardness has implications for matters such as the efficiency and longevity of domestic appliances and, as such, access to it does still advance public debate on, and better decision-making in, environmental matters.

Finally, even if the information responsive to Question 3.6 v1 is invariably expressed in the negative, it is still EI.

Accordingly, I find that the information responsive to these questions is EI.

Question 3.6 v2 says: please include details of the location of any water meter serving the property. Question 3.7 v1 and Question 3.7 from the CommercialDW are in the same terms. Question 3.6 of the CommercialDW asks additionally: is there a meter installed at the property?

The Claimants rely on the STPS ‘explainer’ for Question 3.6 v2 which states that:-

The Claimants also say that water meters comprise part of Ofwat’s programme to conserve water and/ or promote the environmental awareness of consumers. Ofwat’s 2019 Price Review Final Determinations state ([at p.12]) that:-

In addition, the Claimants rely on the WISER technical document expectations concerning resource planning and security of supply and, specifically, reducing demand and leakage. These state that:-

Finally, the Claimants say that most Defendants accept that the key purposes for which the responsive information was produced or obtained include to take readings, where needed, and ensure that the homeowner is billed accurately and maintain or replace any water meter. The Defendants also accept that the responsive information is held in part to roll out metering programmes and/ or meet performance commitments approved or decided by Ofwat in its Price Review 2019.

The Defendants say that whether the water supply to any specific property is metered is not EI. The same applies a fortiori to the location of any meter. The fact that any meter is under the kitchen sink or in the driveway on the left hand side makes no difference to the environment and is of no concern to the wider public.

The Claimants say that the information responsive to these questions is ‘on’ measures, plans and activities etc. (e.g. metering programmes and meeting of performance commitments decided by Ofwat and the fixing and levying of charges under s.142(1) in accordance with ss.143B and 144ZE and other parts of Part V of the WIA (‘Financial Provisions’)) likely to affect the elements and factors referred to in Reg 2(1)(a) and (b), as well as measures or activities designed to protect those elements (Reg 2(1)(c)). I disagree.

That a meter is inside a property or at the roadside says nothing about the relevant undertaker’s metering programmes, how that undertaker is seeking to meet Ofwat’s related performance commitments, the charges scheme operated by that undertaker, Ofwat’s related guidance or other aspects of the WIA charging regime. Water metering does, of course, have important environmental implications, particularly in relation to water conservation, and the related charging regime may well play an important part by shaping behaviours in water use. However, the information responsive to these questions, limited in the manner it is, does not inform any of these matters.

I am reinforced in my view by the purpose for which the information is obtained, namely to enable the meter to be read and accurate bills prepared, to know whether access might need to be afforded to the undertaker for that purpose and whether the location of the meter might impact on potential development. Access to the responsive information does not advance public debate on, or better decision-making in, environmental matters or otherwise advance the purpose of the EIR. In my view, such information has minimal connection with the elements of the environment indicated in Reg 2(1)(a).

Accordingly, I find that the information responsive to these questions is not EI.

Finally, I consider together the undertaker and billing questions.

As to the former, Question 4.1 asks: who are the sewerage and water undertakers for the area? The latest version splits out the different services, with Question 4.1.1 and Question 4.1.1 of the CommercialDW asking: who is responsible for providing the sewerage services for the property? Question 4.1.2 and Question 4.1.2 of the CommercialDW ask: who is responsible for providing the water services for the property?

For Question 4.1.1 and Question 4.1.2, the STPS ‘explainer’ explains that:-

The Claimants say that the Defendants must know whether they are responsible for providing the sewerage services for any given property to comply with their general duties to provide a sewerage system under s.94 of the WIA and to maintain a water supply system under s.37 of the WIA (and other related WIA obligations). Moreover, most Defendants accept that the key purposes for which the responsive information was produced or obtained by a Defendant include so that it knows whether it is or ought to be providing the relevant service to the property in question, the various sections of the WIA and related legislation all said to form part of the same measure, with the state of water and the environment at its core.

The Defendants say that the question of who provides services to a specific property can have only a remote and tangential connection with any of the elements in Reg 2(1)(a). This is information about the entitlement to charge and/ or about the respective legal rights and duties of undertakers and owners/ occupiers, not about environmental matters.

As for the billing questions, Question 4.2 asks: who bills the property for sewerage services? Question 4.2 from the CommercialDW is in the same terms. Question 4.3 asks: who bills the property for water services? Question 4.3 from the CommercialDW is in the same terms.

The Claimants rely on the STPS ‘explainer’ for Question 4.2 and Question 4.3 which explains that:-

The Claimants say that the Defendants must know whether they are responsible for billing any given property for sewerage services in order to fulfil their general duties of operating and maintaining a sewer network and of developing and maintaining a system of water supply (as well as exercise their powers under s.142(1) WIA to fix and levy charges for any services provided in the course of carrying out their functions), the various sections of the WIA and related legislation all said to form part of the same measure, with the state of water and the environment at its core.

The Defendants rely on their arguments for Question 4.1.1, adding that the argument that this is not EI is even stronger since this is expressly billing-related. Moreover, the answer to this question depends entirely on the contractual and billing arrangements of the relevant sewerage services provider, which will vary between the Defendants. For example, where one undertaker provides sewerage services but another undertaker provides water services, in some cases the latter will bill for both water and sewerage. In some cases (for instance, for some blocks of flats) the property owner will not be billed for sewerage services directly since the bill will go to a third party such as a management company. Such variations to the billing arrangements are of no environmental significance whatsoever.

Although Question 2.3 (and CommercialDW Question 2.3) are located with the sewer map, assets and connections questions, they are more conveniently addressed here. These ask: is a surface water drainage charge payable?

The Claimants rely on an Ofwat surface and highway drainage ‘explainer’ which states that:-

Relevant parts of the STPS ‘explainer’ for this question are also set out above under Question 2.2.

The Claimants rely on a decision of the High Administrative Court of Berlin-Brandenburg to the effect that information held by a German undertaker concerning the calculation of its fees and charges was EI (Oberverwaltungsgericht Berlin-Brandenburg, Judgment of 6 March 2014 – OVG 12 B 20.12). However, the information in that case was, again, qualitatively different from that in issue here. Although the decision is not the easiest to discern, the information sought was apparently costs and subsidies information concerning the erection of water supply and wastewater disposal facilities, the relevant ‘measure’ in that case apparently being their construction. Given the impact of that construction on water and, indirectly at least, the soil, the information was considered EI. That is very far removed from the question here.

The Claimants say that the information responsive to this question concerns whether fees are due for the service referred to in Question 2.2 (surface water connection) and, in most cases, will reflect the answer given there. As I have found, the information responsive to Question 2.2 is not EI. To the extent the answers to Question 2.2 and Question 2.3 do not match, this will include (most commonly) where sewers are subject to a s.104 adoption agreement, itself a further measure, plan or activity under Reg 2(1)(c). However, as I have found above, the information responsive to Question 2.6 is not EI either.

The Claimants also say that the basis for calculating the amount of fees due constitutes EI concerning cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in Reg 2(1)(c) (Reg 2(1)(e)). The question whether a fee at all is due is also EI, being information on a ‘measure’ likely to affect the elements and factors referred to in Reg 2(1)(a) and (b), and designed to protect those elements (Reg 2(1)(c)). In this regard, the Claimants say that all Defendants accept that, to the extent the responsive information was ‘held’ by a Defendant, the key purpose for which it was produced or obtained was to charge the relevant customer for surface water drainage. Such charges would be pursuant to Part V of the WIA (‘Financial Provisions’), the various sections of the WIA and related legislation all said to form part of the same ‘measure’, with the state of water and the environment at its core.

The Defendants say that the responsive information concerns the basis on which the undertaker seeks payment in respect of the property, reflecting the respective legal and financial obligations of undertaker and customer as regards a specific property. Where the Defendant providing the CON29DW already holds this information, it does so to ensure its customers are correctly billed, not for any environmental purpose.

The connection to any of the elements in Reg 2(1)(a) is accordingly even more remote than for Question 2.2. Even if the answer to Question 2.2 were to constitute EI (which it does not), the answer to Question 2.3 would be otherwise, the only element of any potential environmental significance being what happens to the rainwater (as in the former), not whether the property is being billed for its drainage (as in the latter).

The default position is that properties are billed for surface water unless and until the owner proves that the surface water is not draining to the public sewers. This is a further reason why the responsive information has no real environmental significance.

For all Eversheds Defendants (SWW apart), one possible answer was that the situation needed to be checked with the developer (as under Question 2.1). Moreover, for all Eversheds Defendants (SWW, TW and SW apart) one possible answer was that a third party (such as a management company) was billed. Information of this kind about billing arrangements is clearly not environmental.

Question 4.4 asks: what is the current basis for charging for sewerage and water services at the property?

The Claimants rely on the STPS ‘explainer’ for this question which explains that:-

The Claimants say that public access to this information under the EIR is also in line with the spirit and purpose of the regime, encouraging members of the public to make informed decisions about water consumption.

Finally, the Claimants say that all Defendants accept that the key purposes for which the responsive information was produced or obtained include in order to ensure that it charges on the correct basis and, in the case of water services, that it knows whether to bill the property on a measured or unmeasured basis. This would be done in line with the Defendants’ general duties to provide water and sewerage services to properties in the area and pursuant to Part V of the WIA (‘Financial Provisions’), the various sections of the WIA and related legislation all said to form part of the same ‘measure’ which has at its core the state of water and the environment.

The Defendants say that there are a range of different potential answers for this question, albeit in each case, the basis for charging as regards a specific individual property is too remote from any environmental factors for it to constitute EI. The property might, for example, be metered. At an aggregate level (for example, knowing what proportion of the properties supplied by a particular water undertaker were metered), this might arguably constitute EI. However, knowing whether a particular individual property is metered contributes nothing to the objectives of the Convention, the Directive or the EIR. The same is true whether the property is charged on the basis of rateable value, or variations thereof (e.g. “residential assessed”) or if “third party billing” is in operation (e.g. a management company being charged in respect of a block of flats, then on-charging to individual flat owners through a service charge). Although significant for a prospective purchaser, it has no broader environmental significance. Further still, the water company might be unable to say anything at all as to basis for charging, for example because the property has not yet been built. There is no environmental significance in this answer either.

Finally, Question 4.5 asks: will the basis for charging for sewerage and water services at the property change as a consequence of a change of occupation?

The Claimants rely on their arguments under Question 4.4 as well as the STPS ‘explainer’ for Question 4.5 which explains that:-

The Claimants also say that all Defendants accept that the key purposes for which the responsive information was produced or obtained include to ensure that it charges on the correct basis and, in the case of water services, that it knows whether to bill the property on a measured or unmeasured basis. This would be done in line with the Defendants’ general duties to provide water and sewerage services to properties in the area and pursuant to Part V of the WIA (‘Financial Provisions’), the various sections of the WIA and related legislation all said to form part of the same measure, with the state of water and the environment at its core.

The Defendants too rely on the same considerations under Question 4.4 and go on to say that the answer to this question is usually “no”, meaning that the answer is usually even less informative from an environmental point of view than for Question 4.4. The most usual circumstance where this question is answered “yes” is where there is a “sleeping meter” (i.e. a meter has been installed but is not currently being used to calculate charges). Following a change of occupation, a new customer will be charged on a metered basis. Again, information of this nature in relation to a specific individual property simply has no environmental significance and does not contribute to meeting the objectives of the Convention, the Directive or the EIR.

The Claimants say that the information responsive to these questions is on the state of the elements of the environment, including water travelling within the sewers or through the water supply network, water from natural sources such as wells, boreholes or springs, soil, land, landscape and natural sites on which the infrastructure is located, and the interaction among those elements (Reg 2(1)(a)). I disagree. In my view, information on the identity of the undertaker(s) providing services to a property and the entity billing for its services, whether a surface water charge applies, the basis for charges for its services and whether that basis will change with a new occupier say nothing about the state of water (or the other Reg 2(1)(a) elements).

For the same reasons, I disagree that the information is on factors such as substances, waste, discharges and other releases (e.g. foul water, surface water, sewage) affecting or likely to affect the state of the elements of the environment (Reg 2(1)(b)) or the state of built structures inasmuch as they are or may be affected by the state of the elements of the environment referred to in (a) or, through those elements, by any of the matters referred to in (b) and (c) (Reg 2(1)(f)).

It is more arguable that the information is ‘on’ certain measures, plans and activities likely to affect the elements and factors referred to in Reg 2(1)(a) and (b) as well as measures or activities designed to protect those elements (Reg 2(1)(c)). As a preliminary matter, however, I found too vague to be meaningful the assertion that the information responsive to Question 4.1.1 was “on” “duties and obligations under the WIA.”

That said, I am of the view that the information responsive to the sewerage and water undertaker questions (Question 4.1, Question 4.1.1 and Question 4.1.2) are ‘on’, respectively, the operation and maintenance of the sewer network and provision of sewerage services to properties in the area pursuant to s.98 of the WIA, and the development and maintenance of a system of water supply and provision of water services to properties in the area pursuant to s.37 of the WIA. Although the information is brief and does not spell out those duties or provide information about their performance, it does, critically, identify the entity with responsibility for them in the area, their discharge having significant potential environmental implications, including for water conservation and sanitary health. As such, it does more than merely identify the likely charging entity and/ or the entity against which the relevant customer may seek recourse. Those are both matters of interest to a house buyer but access to this information, even at individual property level will, more broadly, facilitate public debate on, and better decision-making in environmental matters, including those aspects of the environment potentially affected by that undertaker’s performance of its duties in the area.

Accordingly, I find that the information responsive to the undertaker questions is EI.

As for the billing questions, the Claimants say that, in addition to the general duties as water and sewerage undertakers under, respectively, ss.37 and 98 of the WIA, the responsive information is ‘on’ the fixing and levying of charges under s.142(1) in accordance with ss.143B and 144ZE of the WIA (and other sections of Part V relating to charging (‘Financial Provisions’)), the rolling out of metering programmes and meeting of performance commitments decided by Ofwat.

I am unable to accept that any of these questions are ‘on’ an undertaker’s power to “fix” its charges (s.142(1)(a) of the WIA), Ofwat’s power to make rules for charging schemes (s.143B) or the related guidance to Ofwat from the Minister (s.144ZE). The billing questions are not directed to, and do not impart any information ‘on’, how the charges at the individual property identified in the CON29DW are “fixed” or comprised. Rather, they identify the charging entity, whether a surface water charge is payable, whether a property is charged on a metered or rateable value (or, possibly, assessed) basis and whether that will change following a change of occupation. The questions do not engage issues of the undertaker’s charging scheme, nor the underlying policy considerations that might inform that scheme, including, for example, important environmental matters such as water conservation.

Nor, even though the information might reveal a metered charging basis for a particular property, does the responsive information say anything about the undertaker’s metering programmes or its satisfaction (or otherwise) of related commitments decided by Ofwat. The information is simply too narrow in compass to shed any light on these matters. At its highest, this information is ‘on’ the relevant undertaker’s power to “demand and recover charges fixed under this section” (s.142(1)(b)), as to which, I am unable to conclude that it affects, or is likely to affect, the elements and factors in Reg 2(1)(a) and (b).

Finally, nor is the identity of the billing entity for the relevant water and sewerage services information ‘on’ the general duties under ss.37 and 98 of the WIA. Question 4.2 and Question 4.3 are not directed to the provision or provider of the services. That issue is already addressed by Question 4.1.1 and Question 4.1.2. Although the identity of the billing entity may well be the same as the undertaker itself, the STPS ‘explainer’ and the uncontested evidence of many of the WASC witnesses explain that they may differ for various reasons. Hence, the need for separate questions.

I am reinforced in my view by the purpose for which this information is obtained, namely to inform the potential property purchaser of the billing entity and overall charging basis it can expect, not on the different considerations underlying how those charges are comprised. Moreover, knowing the billing entity for a particular property, that the property is billed on the basis of meter readings, that the billing basis will remain unchanged if I move into the property and that, if I do, my bill will include a surface water charge, does not advance public debate on, or better decision-making in, environmental matters or otherwise advance the purpose of the EIR. In my view, such information has minimal connection with the elements of the environment indicated in Reg 2(1)(a).

Accordingly, I find that, save only for Question 4.1, Question 4.1.1 and Question 4.1.2, the information responsive to the undertaker and billing questions is not EI.

Reg 12(4) allows a public authority to refuse to disclose information to the extent it does not hold it when an applicant’s request is received. The overarching question under Issue 2 is therefore whether the Defendants “held” the responsive information within the meaning of Reg 3(2) at the time the CON29DW was requested. Reg 3(2) provides that EI is held by a public authority if the information is either:-

Issue 2 gives rise, in turn, to certain sub-issues which broadly break down as follows, namely whether the relevant information was not “held” because:-

The LOI indicates certain fact patterns intended to reflect some of the scenarios envisaged by the different sub-issues, to be considered by reference to sample requests.

As already noted, despite the Claimants’ more recent views as to the utility of the LOI overall, they did agree that Issue 2 should also be decided at this ‘stage 1’ trial.

It was common ground that the question of whether Reg 3(2) is engaged for any of the Issue 2 sub-issues is a fact sensitive one, albeit for Issue 2.1(d) and Issue 2.3 in particular, the parties directed me to relevant ICO guidance and related authorities.

As to the parties’ areas (and limits) of agreement as they affect the information I have found to be EI, the Claimants accept that:-

In light of the concessions on both sides as to whether the Defendants ‘held’ certain information at the relevant time, the disputes on Issue 2 concerning the information I have found to be EI therefore encompass the threshold issue for D11 and D12 of whether they obtained the information responsive to the CON29DWs from, respectively, D4/ STDP and D8, or whether the latter held that information “on behalf of” the former within the meaning of Reg 3(2)(b) (Issue 2.1(d)). Certain considerations of a more discrete and granular nature also fall for determination, albeit in light of my findings on Issue 1, of narrower compass than originally in play, namely whether:-

These areas of agreement and disagreement, as they affect the CON29DW information found to be EI, are shown in the table below, “Y” connoting the relevant Defendant’s acceptance that it did hold this information, “N” otherwise. The orange shaded text indicates the areas of disagreement.

In relation to Issue 2.1(d), the Claimants say that the information responsive to the CON29DWs was ‘held’ by D11 and D12. Although they may not have had the information in their possession when the CON29DW was requested, and they obtained this from their respective associated companies, the latter held it on behalf of D11 and D12 at the relevant time. One of the Claimants’ overarching submissions, expressed most strongly in relation to this sub-issue, was that the Court should take a ‘common sense’, rather than technical or overcomplicated, approach to whether the information was held by the WASCs, as such approach is indicated by a number of the authorities, including:-

On this last point, the ICO guidance entitled “[i]nformation you hold for the purposes of the EIR” states in relation to information “held on behalf” of a public authority that “the distinction will not always be clear cut” and that Reg 3(2)(b) is likely to be relevant where “[y]ou have outsourced some of your services to a private contractor or have other contractual arrangements in place with a third party”. The guidance emphasises the need to consider “… all the facts relevant to the request and establish the degree of connection between the information and your functions as a public authority” and identifies agency agreements with other bodies as a situation in which information might be held on behalf of a public authority.

The Defendants deny that the CON29DW information was held on behalf of D11 or D12, stating that this question depends on the legal relationship between the authority and the third party concerned, the various authorities cited (many at Tribunal or ICO decision notice level) indicating that the authority must be able to access the information as of right but, additionally, that the information must be under the control and held for the benefit of the authority. It is not necessary for me to cite those authorities here since, ultimately, both parties accept that they turned on their own facts. (Footnote: ¹³)

D4 is the statutory water and sewerage undertaker for the Severn Trent area, an indirect subsidiary of Severn Trent plc (ST). D4 does not produce CON29DW or CommercialDW reports. D11 is also an indirect subsidiary of ST which does provide a commercial service of preparing and selling such reports. For that purpose, D11 purchases property-specific information from STDP under a non-exclusive licence, with STDP collating and refining D4’s raw data, also currently under a non-exclusive licence, before producing this through its data portal to D11. This arrangement involves three agreements which have undergone different iterations from time to time, comprising an agreement between:-

The D4/ STDP Licence (from 2021) confirmed that D4 owned the data held within the data portal (Recital A) and retained all intellectual property rights therein (clause 5.1), with STDP owning all intellectual property rights in the data portal itself (clause 7.1). The agreement ran on a continuous basis unless terminated in accordance with its terms, including on 6 months’ prior notice (clause 2.1). D4 granted a revocable, non-assignable, non-exclusive, royalty free licence to STDP to use the data for the purpose of organising and partially refining this to provide it to third party licensees to access such data as required to provide CON29DW and CommercialDW reports (clause 3). D4 paid STDP for the provision of the data portal (clause 4.10), with STDP invoicing for, and collecting, D4’s licence fees due from the third party licensees (clause 4.14). STDP also agreed to make available to D4 all data in connection with the D4/ STDP Licence (clause 4.6). STDP also acknowledged that D4 may be obliged to disclose information pursuant to the EIR (clause 16), with STDP undertaking to, amongst other things, provide details of EI it held on behalf of D4 (clause 16.2.1). Finally, the parties acknowledged that nothing in the D4/ STDP Licence was deemed to constitute a relationship between the parties of partnership, joint venture or principal and agent (clause 19.12).

The D4/11 Licence (from 2021) again confirmed that D4 owned the data accessed through the portal operated by STDP (Recital 1) and retained all intellectual property rights therein (clause 5.1). The agreement ran for a period of a year and was automatically renewable unless terminated in accordance with its terms, including on 3 months’ prior notice (clauses 2 and 9). D4 granted D11 a non-exclusive, revocable and non-assignable licence to use the data for the purpose only of providing CON29DW and CommercialDW reports (clause 3.2). In return, D11 paid a licence fee (payable to STDP) for each data packet requested from the data portal (clause 3.1 and 4.3). D11 also acknowledged that D4 might be required to disclose information pursuant to the EIR (clause 13.1), with D11 undertaking to, amongst other things, provide details of EI it held on behalf of D4 (clause 13.2.1). Finally, the parties acknowledged that nothing in the D4/11 Licence was deemed to constitute a relationship between the parties of partnership, joint venture or principal and agent (clause 15.12).

Under the STDP/ D11 Access Agreement (a schedule to the D4/ STDP Licence), STDP provided D11 with the licence and access rights to the STDP data portal (clause 2), expressed to be a personal, non-exclusive, non-transferable, revocable, restricted right (clause 3.1), limited to access to the data portal (clause 3.1), for the purpose set out in the D4/11 Licence (clause 3.1.3), terminable upon termination thereof (clause 7.2.2). Clause 4.1 confirmed that intellectual property rights in the data portal vested in STDP.

I should add that there was some controversy at trial as to the redaction of the amount of the fees from the agreements, albeit the Claimants not having applied for specific disclosure, and the parties’ arrangements overall being clear, I was not persuaded that anything of significance turned upon it.

In terms of how the arrangements worked in practice, D4 provided raw data on billing, water pressure, water quality, flood risk and build over agreements as well as mapping data licensed from Ordnance Survey. STDP refined this raw data and made it accessible through the data portal, with STDP bearing the immediate processing and hosting costs, albeit D4 ultimately paid for this service. Some data was not transferred to STDP but was made accessible to STDP technicians on D4’s own databases, including, for example, on adoption agreements.

As a preliminary matter, I was unable to accept D4/11’s submission that this was a ‘third party chain’ arrangement of the nature indicated, for example, in the ICO decision notice concerning the Olympic Delivery Authority [FER0484371]. Although at the end of a contractual chain in the sense of receiving D4’s data in refined form through STDP’s data portal, it was not a sub-contracting arrangement but a tripartite one, D11 having a direct contractual relationship with D4 as, respectively, licensee and licensor.

It is common ground that D11 did not have in its possession the information responsive to the CON29DW request at the time it was made. As to whether D4 or STDP held the information subsequently provided to D11 through the data portal on D11’s behalf, D11 did have a right to access the portal and to use the information. However, such right was, in terms, non-exclusive, non-transferable, revocable, restricted and subject to the payment of a licence fee for each data packet purchased. D11’s request, collation and disclosure of data under the D4/11 Licence was “only for the provision of responses to valid Law Society Con29DW searches received by it”. (Footnote: ¹⁴) Moreover, “[a]ny Data retained by the Licensee must be for records and claims management purposes only and must not be used or otherwise processed by the Licensee at any time to respond to or fulfil any separate Data Request.” (Footnote: ¹⁵)

By contrast, D4 owned the data (in raw and refined form), it held the related intellectual property rights and it did so for its own business purposes, unconstrained in its use by the arrangements with STDP and D11. The Claimants (correctly) say that D4 appointed STDP to host and process its data and to maintain a data portal through which D11 could access D4’s information on a property by property basis to complete CON29DW reports. As such, they also say that STDP “holds and processes data on behalf of” D4. (Footnote: ¹⁶) I agree, in light of which, it is difficult to see how D4 or STDP could be said to hold the data on behalf of D11. On a common sense and non-technical approach (as urged by the Claimants), D4 was doing no more than licensing the right to use parts of its data to D11 so that D11 could perform that service.

The Claimants also rely on the references in the D4/11 Licence to D11 itself potentially being required to comply with a legal obligation (including under the EIR) to disclose the data (clause 7.2.2). Although the D4/11 Licence does contain this reference, as the Claimants also note, the more substantive EI provision is clause 13, under which the parties expressly acknowledged that D4 might be required to disclose information under the EIR, with D11 undertaking to provide details of EI it held on D4’s behalf. Although the parties’ views on the engagement (or otherwise) of the EIR are not particularly illuminating, that the parties expressly contemplated D11 holding any such information on D4’s behalf (not the other way around) is more instructive.

Relatedly, I also found inapt the Claimants’ reliance on the reference in the ICO guidance to outsourcing or other similar arrangements. If it was being suggested, by analogy with this case, that D11, as provider of the CON29DW service, effectively stood in the position of an outsourcing company, D11 undertook that service in its own right. In any event, in such situations, it is the outsourcing company that will ordinarily hold data on behalf of the relevant public authority, not as the Claimants argue in this case, the other way around.

The Claimants also suggest that D4 and D11 have sought to distinguish between the existence of an intragroup arrangement, by which D11 was afforded access to D4’s information held and processed by STDP to produce property searches, and a “quasi-arm’s length” commercial purchasing arrangement between STDP and D11. In my view, this was a false dichotomy, and not one introduced by D4 or D11 but by the Claimants, the tripartite arrangements in place perfectly capable of, and in fact, accommodating both.

To a similar end, I also found unavailing the Claimants’ surmise that “[t]he agreement between STPS and STDP was effectively imposed on those two entities by D4 STW”. The fact that D4 and D11 (and STDP) were subsidiaries of the same ultimate parent, or that STDP and D11 came about as a result of the division of Severn Trent’s former property search business, does not warrant D11’s treatment other than as a licensee and purchaser of certain data. Likewise, the evidence of Ms Cathy Hughes (STDP) and Mr Adam Carter (D11) that the two companies enjoyed a strong working relationship, had joint working arrangements or that they organised themselves to maximise efficiency was entirely unexceptional and said little, if anything, about the basis on which D4 held its information. Nor did the fact that D11 was the only licensee, that it paid a fee to STDP which accounted for this to D4 (minus its own costs and fees), or that D11 described D4 in the CON29DW as one of its “Partner Undertakers” advance the analysis.

Finally, I was unable to accept the proposition that the information said to be held on D11’s behalf bears a close connection to D11’s functions. Even if properly described as a public function, a matter not falling for determination at this stage, D11 merely supplied CON29DW information to its customers. Given the subject matter of that information, and the entity which created it (D4), it is self-evidently closely connected with D4’s function as a public authority, not D11’s.

In light of all these matters, I am therefore satisfied, and I find, that neither D4 nor STDP held the CON29DW and CommercialDW information on behalf of D11 and that D11 therefore did not hold this within the meaning of Reg 3(2)(a) or (b).

D8 and D12 are sister companies, both being wholly owned by the same parent. D8 is the statutory water and sewerage undertaker for the Wessex region. D8 does not produce CON29DWs or CommercialDWs. Rather, D12 is the official producer of such searches in the region, trading as Wessex Searches. The most useful starting point is again the contract, being a supply of services agreement dated 17 January 2020 (Wessex Agreement). This provides that:-

Schedule 1 to the Wessex Agreement explains:-

Schedule 1 also sets out D12’s obligations, including.

Mr Donald Sherratt (for D8) explained in his written evidence the manner in which the arrangement worked in practice, with D12’s staff using the “Searches Admin System” to identify the relevant property boundary and address. The system then placed the request with D12’s “Web Service” micro-application which automatically gathered the relevant information from multiple D8 records, including D8’s maps, customer service records, flood risk and low water pressure records and billing records, and which used and returned that data to pre-populate the CON29DW within the Searches Admin System. In addition, D12 could view (but not edit) D8’s mapping data and customer service records.

Whether considered at the contractual level or the more functional level of how the arrangements operated as between D8 and D12, I am again satisfied that D12 did not hold the CON29DW information. At the time the CON29DW request was made, D12 did not have such information in its possession, having yet to obtain D8’s related data. Nor did D8 hold that data on behalf of D12. Although D12 clearly enjoyed and exercised a right to access and use that data, that was for the limited purpose of allowing D12 to perform its own commercial function as exclusive provider of CON29DWs in D8’s region. Again, on a common sense and non-technical view, D8 was doing no more than licensing the right to use parts of its data so that D12 could perform that function. D8 owned the information, it held the related intellectual property rights, it controlled its format and storage and it had unrestricted use of it for its own business purposes. By contrast, D12’s right to use that information was non-exclusive, potentially terminable on notice and restricted in purpose.

Although para 5.2(1) of schedule 1 to the Wessex Agreement required D12 to carry out any requests or obligations on D8 to produce CON29DW enquiries in the Wessex region, there was no such obligation on D8. D12 was the regional supplier of CON29DWs and performed that commercial service in its own right. Moreover, even if D8 had been required to answer CON29DWs and D12 had discharged that obligation for or on behalf of D8, it does not follow that D8 held the information it supplied for that purpose on D12’s behalf. Any outsourcing analogy would again be inapposite. Nor does the requirement for D12 to update and correct D8’s maps and connections affect the analysis, D12 not having the right to change D8’s information and ownership of that information remaining vested in D8 in any event.

To support their argument, the Claimants rely on Mr Sherratt’s evidence that both companies are based in the same building and have a common IT function and group IT and data protection policies. They also rely on the development by D12 of its systems within the overall group IT function and the level of access to D8’s systems afforded to D12’s staff. To a similar end, the Claimants also rely on Ms Lucy Sherry’s evidence (for D12) as to the close integration of those systems and D8’s general level of responsiveness to D12’s queries. However, the fact that D8 and D12 are part of the same group, with common policies and the benefit of shared group resources or the close co-operation of their respective systems or staff, does not alter the analysis. D8 and D12 operated as separate companies and, in accordance with the terms of the Wessex Agreement, doing so in a manner consistent with D8 holding its own data in its own right and for its own purposes, albeit affording D12 access to it for its own more limited commercial purpose.

In light of the above matters, I find, that D8 did not hold the CON29DW and CommercialDW information on behalf of D12 and that D12 too therefore did not hold this within the meaning of Reg 3(2)(a) or (b).

Contrary to the Claimants’ suggestion otherwise, these findings on Issue 2.1(d) are not inconsistent with the underlying purpose of the EIR, it being open to any person to make a request for EI from the actual entity which did, in fact, hold it at all times – in this case, D4 for the Severn Trent region and D8 for the Wessex region. In my view, suggesting that the onus of answering EIR requests lay with D11 and D12 put matters ‘back to front’.

Having determined that broader issue, I now turn to those more granular factual aspects of Issue 2 which still arise for my determination in light of my findings on Issue 1.

Some of those outstanding aspects engage the skill and judgment question (Issue 2.3) and whether the relevant Defendant provided CON29DW information by obtaining, deriving or creating this by inference or interpretation. As to that, the ICO guidance entitled “[d]etermining whether we hold [EI]” explains that the EIR only apply to information that a public authority already holds in recorded form at the time of the request. The parties point to various aspects of that guidance, including:-

I should add that the parties referred to further Tribunal and ICO decision notices in addition to those cited in the ICO guidance. Given the fact sensitive nature of my task, these were again of limited assistance. The difference between the parties lay principally in the level of skill, judgment and expertise (if any) said to be required, the Claimants saying that the processes identified by the Defendants for production of the CON29DW involved minimal skill such that the information was ‘held’ for EIR purposes. By contrast, the Defendants emphasised that their activities in answering the CON29DWs amounted to much more than the filtering, collation, distillation or re-presentation of existing information to present it in a new format, rather than its change, development or transformation to create new information.

Since the Claimants placed some emphasis on it, I should also add that I found potentially unhelpful the formulation in the ICO guidance that, if two people with similar skills could analyse the same raw data but reach different conclusions, it is likely that the public authority would not hold the information and that the more an individual has to exercise his own judgment, rather than follow a defined process, the less likely it is to be held. Although possibly only a matter of phraseology, this could be read to imply that information might be “held” if two people exercising skill and judgment would reach the same conclusion in analysing the same data. It could also suggest that adhering to a defined process and the exercise of skill and judgment were mutually exclusive. If so, neither proposition would, in my view, be correct, at least in those stark terms.

Subject to Issue 2.1(d), and with the exception of D4/11 and D6, all Defendants accept that they held the information responsive to Question 2.7. (Footnote: ¹⁷) As already noted, the Claimants accept D6’s position that it does not hold responsive information to the extent it concerns consultation for any build over agreements for which D6 says it holds no records. (Footnote: ¹⁸)

D4/11 say in the table in the Annex to their closing submissions that information responsive to Question 2.7 was held if automatically generated but not when manual inspection of billing records was required. However, closer review of D4/11’s skeleton argument and written closings indicates that the position is not, in fact, contentious, D4/D11 accepting that, even when a specialist technician performed a manual cross-check for Question 2.7, this involved no more than a database cross-check. (Footnote: ¹⁹) Even if a point were being taken by D4/11, it would be moot in any event given my finding on Issue 2.1(d).

The Eversheds Defendants say that information responsive to Question 2.8 was not held when a CON29DW was ordered, the property initially flagged (either automatically or manually) as at risk for internal foul flooding, the staff investigated the nature of the underlying incidents, determined whether it was appropriate to state that the property was at risk and, if so, produced further details of that risk. (Footnote: ²⁰)

To the same end, D11 says that it did not hold the information responsive to Question 2.8 where the automatic system returned a “yes”, the technician then reviewed the data and requested a report from D4’s Waste Water Assurance team as to whether the building was at risk of internal flooding, the interpretation and compilation of information for that report involving technical knowledge and expertise. (Footnote: ²¹)

The Claimants say that an automatic ‘check’ of the Defendants’ systems to see if a property is at risk required no skill or judgment to obtain the information from Ds’ own records. Likewise, where the check was not automatic, the evidence indicates that this amounted to no more than looking at the Defendants’ maps, again requiring minimal skill or judgment. Either way, such risk ‘flags’ were very rare. Furthermore, even if the initial check indicated that the property may have been at risk, any further checks were straightforward and the information easily extracted from the relevant department within the Defendant concerned. (Footnote: ²²)

D6 accepts that it held the information responsive to this question. (Footnote: ²³)

As noted, Question 2.8 asks: is [any] [the] [normally occupied] [building] [the dwelling house] [which is or forms part of] the property] [, or any part of the property] at risk of internal flooding due to overloaded public sewers? Accordingly, the question is seeking to discern whether, as a matter of fact, the relevant premises are at risk of internal flooding and, if so, whether the reason for the existence of that risk is public sewer overload.

Turning to the evidence of the relevant Defendants as to how they went about answering this question:-

Ms Suzanne Jones is a supervisor in NW’s Property Solutions Team that produces CON29DW and CommercialDW reports for its customers. She explained in her statement how NW’s Con29 system used by the team searched the relevant property for a flooding incident record. If there was such a record, Con29 pre-populated the answer with “B. May be at risk (CHECK ANSWER)”. The team then interrogated each incident to see whether it was internal and/ or due to overloaded sewers, editing the answer to confirm whether the property might be at risk and deleting any incidents that should not be included (for example, if historical or on a private part of the sewer network). The team then considered whether non-capacity related incidents should be included even though beyond what the question asked for.

Ms Jones described the process as one of making “judgement calls”, the team guided not by written guidance, but by factors such as the age, type of incident and whether any mitigations had been put in place. As for the latter, this involved checking records for interactions with the property owner and operations records, including on legacy systems. The team also discussed and reviewed data used by the Network team and the Sewer Flooding team to see if the property was within the scope of planned remediation and the status of that remediation work. The nature of the mitigation could also affect the answer, whether, for example, the sewer capacity issue has been resolved or the mitigation was at property level only.

Ms Jones confirmed in her oral evidence that incidents of internal flooding due to sewer overload sewers were rare. Although taken through her written evidence on this issue in cross-examination, it was not challenged. I accept it.

Ms Elizabeth Bywater is a Production Advisor in UU’s Property Searches team. She explained in her statement how UU’s mapping system indicated properties at risk of foul flooding. The team’s system training manual provided instructions to Production Assistants on how to answer the question. If the map indicated a risk (with a red, yellow or blue cross), the Production Assistant would search over the property using the information tool in the mapping record, the foul flooding field indicating the nature of previous flooding incident(s). This information facilitated further investigation by Ms Bywater (or her fellow Production Advisor).

A yellow cross indicated a foul flooding incident with different risk levels. If the search indicated that the property had experienced foul flooding from a storm of a severity that had occurred once in 20 years and, as usual in such cases, no mitigation measures were also shown, with the incident resolved after a visit, the Production Advisor would return the report to be completed for this question as “No”. For yellow cross incidents where mitigation measures had been installed, the Production Advisors would undertake further investigations of UU’s foul flooding records. If there had been mitigation, they would usually answer the question “yes” unless the records were not clear, in which case, they would seek input from UU’s Wastewater Technical Team.

A red cross indicated that a property had flooded due to internal hydraulic flooding. A blue cross indicated past flooding due to other causes such as bad weather. If either was shown, the question would again be escalated to the Production Advisors, they would check UU’s internal records and, if the relevant property was not listed or no mitigation had been installed, the question would be answered “no”. However, if the property was listed and shown as having had mitigation measures installed, the matter would be escalated further to UU’s Wastewater Technical Team which might have more information. The question would then be answered based on that team’s response.

Drawing these threads together, if the property was listed in UU’s records and mitigation measures had been installed, the question was answered “yes”. Based on the Production Advisors’ investigation or the information received from UU’s Wastewater Technical Team, an additional letter was provided with the search results, explaining the mitigation measures already taken and/ or any proposed action to reduce the risk of internal foul flooding.

In oral evidence, Ms Bywater confirmed that there were few properties in UU’s area at risk of internal foul water flooding. Although taken through her written evidence on this issue in cross-examination, it was not challenged. I accept it.

Mr Stephen Midgley is the Business Process Team Lender within YW’s SafeMove business group, responsible for providing conveyancing services such as residential and commercial searches. He explained in his statement how YW answered this question by reference to its internal flooding records. That a property featured in YW’s flood records was highlighted in its mapping system with a blue circle icon within the relevant property’s boundary. If there was no icon, the question was answered “no”. If the icon was located automatically by YW’s system, the question was referred to a search advisor for consideration and further manual checks. An exception message would also be shown. Clicking on the icon brought up further information about the flooding incident and indicated whether it appeared within YW’s flooding records.

The search advisor was trained to approach senior advisors to find out more about the nature of the flooding incident relevant to the property, those senior advisors having access to YW’s flood records which they could filter to review the type and frequency of flooding incidents that had occurred. The senior advisor would then feed back to the search advisor whether the incident was relevant to this question or, for example, the internal flooding was not caused by sewer overload. If the incident was of the relevant type and frequency (at least one incident in 10 years), the search advisor would be prompted to contact another YW department dealing with internal sewer flooding to find out more information about the incident, specifically whether it was an incident of internal flooding due to sewer overload and any additional information. The other YW department would then provide this information by e-mail, including the date and nature of the flooding incident, whether it was resolved and any follow-up preventative action. Based on this information, the search advisor answered the question “yes” and inputted information about the incident which was captured in the search report. Additional information about the flood risk and mitigation steps was included separately.

In oral evidence, Mr Midgely confirmed that this question would be answered “no” for the vast majority of properties. Although taken through his written evidence on this issue in cross-examination, it was not challenged. I accept it.

Ms Cathy Hughes is the Data Portal Lead at STDP. She explained in her statement how D4’s Waste Water Assurance Team provided STDP on a monthly basis with a pre-defined report from its flood register which STDP would then ‘cleanse’, including by re-formatting, before placing it on its own Gemini Datasources database.

As for the process for answering this question, Ms Hughes explained that, if no address match was found for the property being searched within the flood data set, the system would answer the question “no”. If the property was new build or did not have a billing account, the order was reviewed by an STDP technician and the question answered “no” manually. If, however, a match was found, the system answered the question “yes”, causing a ‘validation rule’ to be raised as a ‘flag’. The STDP technician would then review the order and raise an e-mail request for a flood report with D4’s Waste Water Assurance Team. Once received, the report was attached to the order in the Gemini IT system and sent to D11.

Ms Hughes was not cross-examined on her written evidence on this issue. I accept it.

Mr Stephen Skinner is Searches Manager for SWW. His responsibilities include managing the searches team split between the onshore and offshore team based in India. He explained in his statement how flooding at a property was shown on SWW’s GIS map with a green circle, its size indicating the number of flooding events that had occurred and, when clicked, providing the event details. When the offshore team saw a green circle, they escalated the search back to the onshore team who looked into the flooding and completed the CON29DW order. Information held in the mapping system about any mitigation measures relating to flood risk was provided in the answer to this question in the report.

In oral evidence, Mr Skinner confirmed that the search team’s user guide showed how to answer this question. He also explained that, merely because a green circle was on the map, it did not necessarily mean that the answer to the question was “yes”. The system would show all sewer events at the property (internal and external) and SWW would only answer it “yes” if there was an internal sewer event caused by overloaded sewers. The user guide confirmed that there were only a few hundred properties in the whole SWW region at risk of internal foul water flooding. Although taken through his written evidence on this issue in cross-examination, it was not challenged. I accept it.

Ms Lucy Sherry is Systems and Processing Lead for D12. When the pre-populated answer in D12’s system showed “yes” to this question, D12 contacted WW’s DG5 team asking them to confirm whether the property was in their records as at risk of flooding or under investigation, whether improvement engineering works were planned, when the risk could be expected to be removed and whether mitigation measures were planned or in place. The mapping system could also be manually checked for indications of internal flood risk.

The question would be answered “yes” if the DG5 team informed D12 that the property was on its records as being at risk of flooding. D12 also entered any details about remedial works and statistics received from the DG5 team (for example as to flooding frequency). D12 also informed the homeowner that it would produce a document revealing the information. The CON29DW report was prepared using the information from the DG5 team, albeit in non-technical, user friendly language. The answer “under investigation” would be given where the DG5 team confirmed this status.

In oral evidence, Ms Sherry confirmed that D12 would conduct a manual check of the billing records even if the pre-populated answer was “no”. She also confirmed that it was rare for a property to be listed as at risk. Although taken through her written evidence on this issue in cross-examination, it was not challenged. I accept it.

Ms Renee Truter is Product Delivery Manager for TW. She explained in her statement that properties at risk of internal foul flooding had a flag logged against them by D9’s Sewer Flooding team. To answer this question, TW’s production system automatically looked for this flag. In most cases, none was detected and the question would be answered “[n]ot at risk”. However, if the system found a flag, an exception was raised. The search team member or ‘agent’ would then manually check the relevant records to see what type of flooding had occurred at the property, looking particularly for records of actual internal flooding due to hydraulic failure or engineer assessments that the property was at risk. If a risk or potential risk was identified, the agent would compile a statement for inclusion in the search report covering key information from the relevant records. This included how often the property had flooded internally in the last 10 years or, if the property was identified as at risk of internal flooding following an engineer assessment, the proposed action to remove the risk. Training was provided by the Sewer Flooding team on how to read the records, that team also annually reviewing the guideline to ensure the process was correct.

In oral evidence, Ms Truter confirmed that, in most cases, no flag was logged against the property on TW’s system such that the question was answered “no”. Although taken through her written evidence on this issue in cross-examination, it was not challenged. I accept it.

Mr Indranil Banerjee is employed by Tata Consultancy Services Limited (TCS) as a “subject matter expert”. TCS provides services to SW in the preparation of CON29DW and CommercialDW reports. Mr Banerjee deals with difficult cases or ‘exceptions’ and customer queries referred to him. In his statement, he explained how the TCS team were required to follow an operating manual which he described as the “SOP”.

For this question, the standard procedures involved clicking on a button called “[f]looding” in the LandSearch Database Application to see if the property had previously been listed as “at risk” of flooding. In addition, TCS also checked and reviewed SW’s flooding records directly, searching for these in what is described in the SOP as the Sirf DG5 database to see if the property was “at risk” or “not at risk” and the type of flooding. TCS would only answer “at risk” if the property was recorded as being at risk of internal flooding. If “at risk” was selected, the automated answer generated provided information to the customer in the search report.

Although taken through his written evidence on this issue in cross-examination, it was not challenged. I accept it.

The starting point for the analysis is the question itself, which asks whether the property is at risk of flooding. Assessment of risk is a classic evaluation exercise, involving as it does an attempt to establish the likelihood of a particular (often harmful) event occurring. Such assessment involves consideration of the circumstances relevant to the materialisation of the risk, including here, past such events and any mitigations since adopted or planned to reduce or avoid recurrence. Additionally, the question has a particular focus on a specific type of flooding - internal - and a specific cause - overloaded public sewers. Given the nature of the risk, with serious implications for the property concerned, and for any person buying or selling it, the question is an important one even if the risk with which it is concerned is rare.

In the majority of cases, the initial check for this question (whether undertaken manually, automatically, or both) indicated no record of risk. However, in those few cases in which a risk was ‘flagged’, I am satisfied that each of D1-D3, D7 and D9-D10 went on to apply such skill and judgment that it cannot be said that they already ‘held’ the responsive information when the request was received. Indeed, as indicated in the evidence summarised above, to undertake their risk assessment, those WASC Defendants had to interpret their flood records. Those records were technical in nature, concerning different frequency, types and causes of flooding and different mitigation or remediation measures undertaken, planned or neither.

If anything, the rarity of these events rather underlined the skill involved in the interrogation of those records. The need for such skill is why, in a number of cases, the enquiry was referred to senior members of the relevant search team and/ or the technical team and/ or specialist training given. Such skill is also underlined by the often detailed additional information provided in response to this question, seeking to make user friendly the underlying technical engineering language in the records which were considered. The fact that the search agents or advisors may have followed set processes or guidance manuals on this question, used highly functional computerised systems or that two similarly trained advisors might reach the same conclusion for the same property does not, in my view, detract from the skill and judgment involved.

Accordingly, having considered the evidence separately for each Defendant, I find that where the initial check did indicate that the property was, or might be, at risk of internal flooding, each of D1-D3, D7 and D9-D10 did, in its own different way, go on to apply such skill and judgment in answering the question that it cannot be said that it already held the responsive information at the time of the CON29DW request. That is the case whether they then answered the question in the affirmative or the negative. Indeed, that they might yet answer “no” after a potential risk had been flagged rather reinforces my view. D11 and D12 did not exercise such skill and judgment but that is because their answer to Question 2.8 depended on the provision of information by their associated companies, respectively, STDP and D8. As I have found under Issue 2.1(d), D11 and D12 did not ‘hold’ such information. The same obtains in this context too.

Question 2.9 says: please state the distance from the property to the nearest boundary of the nearest sewage treatment works. Question 2.9 from the CommercialDW is in the same terms.

Subject to Issue 2.1(d), and with the exception of D6, all the Defendants accept that they held the information responsive to Question 2.9. (Footnote: ²⁴)

D6 says that, although its mapping database has a measuring tool which generates measurements automatically, the use of that tool, and in particular the decision where to measure from (i.e. where is the closest boundary of a building within the property, or the closest point within the property, to the STW), often requires the exercise of skill and judgment by a D6 employee. D6 also says that the related evidence of Mr Nicholas Hill (for D6) was unchallenged on this point. (Footnote: ²⁵) The Claimants, by contrast, say that (like the measurements for the questions at Question 2.5 and Question 2.5.1), this is a simple task of looking at the map and using D6’s measuring tool, with minimal skill or judgment required. (Footnote: ²⁶)

Mr Hill is Customer Services Team Manager at Tide Services Limited (Tide), part of the Anglian Water Group. Mr John Cooney is a Product Quality Assurance Technician at Tide. Mr Hill is his manager. Although Mr Hill provided a witness statement, he could not testify. Nevertheless, upon D6’s application prior to trial, I gave permission for D6 to serve a statement from Mr Cooney which adopted in very large part Mr Hill’s statement. Although tendered for cross-examination, the Claimants chose not to cross-examine Mr Cooney. I therefore accept his evidence, including the adopted parts of Mr Hill’s statement.

Mr Hill explained in his statement (at [83]) that the answer to Question 2.9 is automatically pre-populated using AW’s asset data. By placing a marker on the relevant property on D6’s GIS mapping system, the system will detect the location of the nearest STW and its distance from that property. When the marker is moved, it calculates the new distance which is then brought into the answer text for the question. However, D6 relies for Question 2.9 on Mr Hill’s evidence (at [61]-[62]) on the other measurement questions (Question 2.5 and Question 2.5.1). Of most relevance, Mr Hill states (at [61]) that:-

D6 also relies on what appears to be an internal D6 guide on when and how to answer Question 2.5 in GIS. This states:-

Although D6 obviously does not already have to hand when receiving a CON29DW request measurements between particular properties in D6’s region and its nearest STW, I am unable to accept that the use of its measuring tool, in particular where to measure from, involves such skill and judgment that the information is not held by D6. First, neither Mr Hill nor Mr Cooney indicated in their evidence such skill being required for any of these questions. Second, the suggested complexity in answering Question 2.5 and Question 2.5.1 arises, in particular, from the potential presence of (often multiple) buildings within a property. However, Question 2.9 is not concerned with measuring distance from buildings but from the property itself, a less complex exercise. Third, great care is no doubt needed to identify the building(s) or point on the property boundary from which to measure for the purpose of each of these three questions. However, on the basis of the evidence as to what the process entails, I cannot accept that this amounts to the application of such skill or judgment in putting together the necessary ‘building blocks’ within D6’s GIS system to create new information as such.

Accordingly, I find that D6 held the information responsive to this question at the time the CON29DW request was made.

Question 4.1.1 and Question 4.1.1 of the CommercialDW ask who is responsible for providing the sewerage services for the property? Question 4.1.2 and Question 4.1.2 of the CommercialDW ask who is responsible for providing the water services for the property?

NW says it did not hold the information responsive to Question 4.1.1 and Question 4.1.2 in scenario CB1. This is said to be because the potential answers NW gave to these questions were not limited to the names of the sewerage and water undertaker which NW knows. (Footnote: ²⁷) For example, NW may answer “NWL Partial” for question 4.1.1 if a property is connected for sewerage but not surface water drainage. In a cross-border case, NW is dependent on billing data from the OWC to determine whether this answer may apply. The Claimants say that this ‘technical’ argument is without merit, the relevant issue being whether D1 ‘held’ information within the scope of the questions, namely its own identity and that of the OWC billing for its services, which NW plainly did. (Footnote: ²⁸)

Although I again accept Ms Jones’ related evidence, I am in no doubt that NW held the information responsive to Question 4.1.1 and Question 4.1.2 in scenario CB1. The fact that NW may use different variations in its answers, and that OWC’s billing data is required for NW to select between them, does not alter the position that D1 must have known and held information in material form confirming that it was the sewerage undertaker and that the relevant OWC was the water undertaker for the property concerned. As such, I find that D1 held the information responsive to both questions.

D4/11 say that, in scenario CB1 and CB2, D11 did not hold the information responsive to a number of water questions, including Question 4.1.2, and that it was not available from STDP. (Footnote: ²⁹) The Claimants take issue with this, saying that the point is nonsensical and unsupported by D4/11’s own evidence. (Footnote: ³⁰) I agree that, for this question at least, D4/11’s position makes little sense. Although the OWC billed for water services in both scenarios, and D11 obtained from that OWC the information responsive to water questions (including Question 4.1.2), self-evidently, D11 must already have known, and held its own information in material form confirming, that OWC’s identity. As such, I find that D11 held the information responsive to this question.

Issue 3 is framed in the following terms:-

A significant part of the time spent at trial on Issue 3 related to Issue 3.1 concerning the engagement (or otherwise) of Reg 6(1)(b). Issue 3.1 asks whether the information responsive to a number of the CON29DW questions was:-

The LOI also reflects the parties’ agreement that this sub-issue was to be tested by reference to a set of sample orders from the test Claimants.

The Claimants emphasise that Reg 6(1) is engaged upon a request that EI be made available in a particular form or format. It is not an exception to the Reg 5 duty rather than a possible permitted route for its discharge. As to this, the Defendants say that these proceedings concern requests for CON29DW searches. Those requests were fulfilled and the Claimants paid the relevant charges. To the extent that these are to be treated as requests for EI held by a Defendant, and therefore fall in principle within Reg 5(1), they were requests for information in a particular form or format (viz a search report).

Relatedly, the Claimants also argued that Reg 6(1)(b) is a fact sensitive provision, the question of whether that information is already publicly available and easily accessible to the applicant is dependent on what has been requested, by whom, in what form, and the extent to which the already publicly available information in a different form or format is equivalent to the information requested and easily accessible in practice to the individual requester. In light of this, the provision cannot be applied in a generalised way. However, as the LOI itself records, the Claimants contended that the relevant information was not “easily accessible” to them due to various suggested restrictions, including:-

Given this level of detail articulated on the Claimants’ side in the agreed LOI, taken to an even greater level of granularity in the related body of evidence served by them and the Defendants and in the related arguments advanced at trial by both sides, I am satisfied that meaningful conclusions can be reached under Issue 3.1. Indeed, as the Claimants themselves made clear in closing submission, based upon the related general evidence it has received, the Court can make findings in principle to be carried forward to the next stage. (Footnote: ³¹) That is so even if, as the Claimants also say, it is not possible to link every point to a specific sample transaction. Accordingly, although conscious of the Claimants’ admonition as to the ‘blanket’ application of Reg 6(1)(b), the evidence and argument provided by both sides have equipped me to make a number of findings as to the public availability and ease of accessibility to the Claimant PSCs of the different items of EI held by the different WASCs from the different sources identified.

The Claimants also suggested that there was an inconsistency on the part of the Defendants in arguing for the purposes of Issue 2 that they did not ‘hold’ much of the information responsive to the CON29DW questions, at the same time arguing for the purpose of Issue 3.1 that some of the same information was already publicly available. However, given the different and nuanced arguments around whether information was ‘held’ (as some are discussed above) and that Issue 2 and Issue 3.1 were argued in the alternative, little seemed to turn on this point.

As for the disputes arising under Issue 3.1 with respect to the information I have found to be EI held by the Defendants, the matrix of the arguments for each of the Defendants is more complex still than that under Issue 2. The table below summarises the Defendants’ position for each of the relevant questions as it stood after closing submissions, with “Y” connoting their assertion (for the majority of, and in the case of D6, all questions) that the responsive information for the relevant CON29DW question was publicly available and easily accessible and “N” their acceptance otherwise. Entering the trial, the Claimants already disputed the Defendants’ position for a number of the questions, those disputes growing by the end of trial as the Claimants indicated the withdrawal of certain prior concessions.