Local Authority Property Search Services

Transcription

1 Local Authority Property Search Services Charges for Property Search Services A consultation paper community, opportunity, prosperity

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3 Local Authority Property Search Services Charges for Property Search Services January 2008 Department for Communities and Local Government and Ministry of Justice

4 Department for Communities and Local Government Eland House Bressenden Place London SW1E 5DU Telephone: Website: Crown Copyright, 2008 Copyright in the typographical arrangement rests with the Crown. This publication, excluding logos, may be reproduced free of charge in any format or medium for research, private study or for internal circulation within an organisation. This is subject to it being reproduced accurately and not used in a misleading context. The material must be acknowledged as Crown copyright and the title of the publication specified. Any other use of the contents of this publication would require a copyright licence. Please apply for a Click-Use Licence for core material at or by writing to the Office of Public Sector Information, Information Policy Team, St Clements House, 2-16 Colegate, Norwich, NR3 1BQ. Fax: or HMSOlicensing@cabinet-office.x.gsi.gov.uk If you require this publication in an alternative format please alternativeformats@communities.gsi.gov.uk Communities and Local Government Publications PO Box 236 Wetherby West Yorkshire LS23 7NB Tel: Fax: Textphone: communities@twoten.com or online via the Communities and Local Government website: January 2008 Product Code: 07 PPFC 05026

5 Foreword 5 Foreword A home is one of the biggest purchases people make in a lifetime. When they buy they want to know all about the property. Does the extension comply with building regulations? Will a bypass be built through the garden? Property searches provide answers to these questions. They give prospective buyers a range of information about their new home which they need to know before they buy. Consumers have a choice about where to buy their search. Traditionally searches were produced directly by local authorities, who hold the information. Over the last ten years or so a market in searches provided by private search companies has also grown up. The resulting competition benefits consumers, who now have choice and lower costs. In September 2005 the Office of Fair Trading s (OFT) published Property Searches A Market Study. This examined the market and made a number of recommendations to ensure not only that it continued to function well but that competitiveness was improved. The Government accepted the report and endorsed its recommendations. One of the main recommendations was that local authorities should make the basic information needed for a search available to personal search companies on the same basis as to themselves to ensure a level playing field. This would mean full access to information and a clear basis for charging. It recommended that: Central government should provide clear guidance for LAs on how they should recover the costs of providing property information in compiled and unrefined forms and, if LAs are to set their own prices for these two services, how they should set charges to avoid distorting competition in the supply of local property services. Communities and Local Government and the Ministry of Justice therefore jointly commissioned KPMG as consultants to consider the OFT s recommendations on charging and produce clear and comprehensive guidance for the costing of property search services by local authorities. This consultation paper seeks your views on the outcomes of KPMG s work and the Government s proposed way forward. Property searches are an essential component of Home Information Packs (HIPs) which are required for all properties from 14 December When making decisions about buying and selling a home, consumers expect to have all the necessary information as early as possible in the process to enable them to make informed choices.

6 6 Local Authority Property Search Services Charges for Property Search Services HIPs have already led to improvements in the delivery and cost of searches, with significant reductions in the cost of searches, and in some areas, substantial reductions in the delays in producing searches. However, there are still wide variations in costs and services and we want to see further improvements for consumers. This consultation, coupled with the new good practice access guidance that was published on 18 January 2008, aims to ensure better quality and timeliness of information, and improved value for money for consumers. This consultation also supports the announcements made on 22 November. In particular with the work Ted Beardsall, Deputy Chief Executive of the Land Registry and member of our Home Buying and Selling Stakeholder Panel is doing to ensure better quality and timeliness of information, and improving value for money for consumers. We look forward to hearing your views on an issue which matters to every single homebuyer. Iain Wright MP Parliamentary Under Secretary of State, Communities and Local Government Bridget Prentice MP Parliamentary Under Secretary of State, Ministry of Justice

7 Contents 1 Introduction 9 Executive summary 9 Purpose of Consultation 10 2 Background: How property searches are currently conducted 11 3 A summary of the Government s proposals set out in this consultation paper 15 Consultation questions 18 4 Local Authority charging for unrefined and refined data 19 Local enquiries searches 18 5 KPMG s proposed guidance for Local Authorities to calculate costs of unrefined data (Annex 6 of this consultation document) 27 6 Local land charges services: review of the personal search fee and associated matters 29 How and by whom the Fee for a Personal Search of the Local Land Charges Register should be set 34 7 Next steps 43 Annexes: Annex 1: The consultation criteria 44 Annex 2: Summary of legal provisions for Local Authority charges for property search services 45 Annex 3: Recommendations made by the Office of Fair Trading (September 2005) 53 Annex 4: Partial Impact Assessments 55 Local Authority Charges for Access to Property Search Data 55 Annex 5: KPMG s report cost and charge guidance Annex 6: KPMG s draft costing and charging methodology Annex 7: Personal search of the local land charges register: Local Authority costing proforma

8 8 Local Authority Property Search Services Charges for Property Search Services

9 Chapter 1 Introduction 9 1 Introduction Executive summary 1.1 This consultation paper contains the Government s proposals on future arrangements for LA charges for property search services. The proposals are being put forward to implement the Office of Fair Trading s (OFT) recommendations on charging contained in its 2005 market study and to support the implementation of Home Information Packs to ensure better quality and timeliness of information, and improved value for money for consumers. These proposals, in conjunction with Communities and Local Government s guidance on access arrangements, aim to facilitate a level playing field between LAs and personal search companies in the delivery of property searches. 1.2 Communities and Local Government and Ministry of Justice commissioned consultants KPMG to assess the OFT s proposed models for charging for unrefined data and produce supporting guidance for LAs in assessing costs of providing it. KPMG s assessment and the proposed guidance for LAs are included (at Annex 5 & 6 respectively) with this consultation paper. 1.3 This document seeks views on: LAs charging for unrefined data on a cost recovery basis (supporting guidance is at Annex 6); how LAs might in the future charge for refined property searches in the market in competition with personal searchers; potential amendments to the Local Authority (Charges for Land Searches) Regulations 1994; the future electronic delivery of property searches; LAs charging for personal searches of the Local Land Charges Register (LLCR) on a cost recovery basis; and whether the present fee for a personal search of the LLCR should be changed. A summary of these proposals is contained in Part 3 of this paper with further detail in the subsequent parts. 1.4 Your views are sought on a number of specific questions which are set out at the end of Part 3.

10 10 Local Authority Property Search Services Charges for Property Search Services Purpose of Consultation 1.5 This consultation seeks views on the future direction of charging for property search services and related draft guidance for local authorities. The proposals would apply in England and Wales. 1.6 The consultation considers the options for LA charges for property search services proposed in the OFT s market study in 2005 and sets out the Government s proposals for the future. In accordance with the code of practice on consultations, partial Impact Assessments (IA) are at Annex 4. These set out the background to the subject, the options which have been considered and the costs and benefits of each of these. The IA on LA charges for access to property search data also builds on the partial IA that was produced as part of the consultation exercise on the draft access guidance (see para 2.7 below) and the responses received from that consultation exercise. 1.7 Welsh Ministers support the proposals in this consultation document in relation to the local enquiries search, although it should be noted that the power to set the level of fee for both the official and personal searches of the Local Land Charges Register was transferred to them on 31 December Registering Authorities in Wales and those with an interest in property searches in Wales will wish to consider this paper and the attached annexes. Welsh Ministers will undertake a formal consultation in Wales on the level of fees for the official and personal searches of the Local Land Charges Register in conjunction with his consultation. 1.8 Responses and comments, to be received by 18 April 2008, should be sent to: Len Britton Communities and Local Government Property Searches Team Area A6, 4th Floor Eland House Bressenden Place London SW1E 5DU len.britton@communities.gsi.gov.uk Tel: Communities and Local Government and Ministry of Justice will analyse the responses and produce a summary of them recording what changes have or have not been made as a result Please note that responses, including the names and addresses of respondents will be made available to anyone who asks for them unless confidentiality is specifically requested or disclosure would prejudice third parties. Our consultation criteria are set out at Annex 1.

11 Chapter 2 Background: How Property Searches are currently conducted 11 2 Background: How property searches are currently conducted Provision of property searches 2.1 Property searches are a key part of the home buying and selling process. They give the prospective householder information both about the property itself and about any changes which might have an effect on it. Searches must be included in a Home Information Pack (HIP). 2.2 There are two required property searches in a HIP. A search of the local land charges register (LLCR) and a local enquiries search (traditionally known as the Con29 search) which cover a wide range of issues including compulsory purchase orders, building regulations, and road schemes. 2.3 Property searches were originally usually provided by local authorities (LAs). However, over the last ten years or so the private sector has also begun to provide significant numbers of personal searches, thus creating a competitive market. This has worked to the benefit of consumers, with evidence that as a result delivery has improved and prices have fallen. 2.4 LAs provide information for property searches in two ways. The first is in the provision of unrefined data to form the basis of a search. This is both used by LAs to compile their own searches and provided to personal search companies to enable them to compile searches. The second is in the refining of this data into a compiled search given to the customer. Here LAs and personal search companies are in direct competition. It is Government policy to facilitate a level playing field between personal searchers and LAs in delivering property searches. 2.5 The continued efficient functioning of this market depends on two key factors in the way LA held data is made available: access to the data and the price charged for that data.

12 12 Local Authority Property Search Services Charges for Property Search Services Access 2.6 Access to the data which must form part of a property search is governed by a variety of statutory provisions. The net result is that access to LA held data is either: open, at no charge: this applies to data such as highways maintainable at public expense and public sewer maps; open, but supplied having regard to costs : this applies for example to Land Maintenance notices and hazardous substance consents; on a discretionary basis and supplied having regard to costs : this applies to compulsory purchase orders and some information on road schemes; and open, and set locally up to cost recovery, or centrally: in the case of the LLC1 and the personal search of the local land charges register respectively. A summary of the current legal framework is set out in Annex In May 2007 Communities and Local Government consulted on draft guidance to improve access to LA held data. This guidance, Personal Searches of the LLCR and other records held by Local Authorities Good practice guidance for Local Authorities and Personal Searchers, was published on 18 January Access to LA held data and LA charging for providing property search services are inextricably linked. An often stated LA view is that if authorities are able to recover the real costs of delivering property search services then access to the discretionary elements of the data they hold should not be an issue. On the other hand, personal search companies argue either that LAs do not have powers to charge or that fees are not transparent and/or set artificially high to favour LA delivered services. The draft guidance included in this consultation paper at Annex 6 seeks to address these issues. This guidance, coupled with the access guidance, therefore provide a package to ensure open and fair access to all LA held data, both to deliver the level playing field envisaged by the OFT and, for the completion of property searches compliant with the HIPs (No2) Regulations Charging for access to unrefined data 2.9 In September 2005 the OFT produced its report Property Searches A Market Study. In summary it found that: 1.2 Some aspects of the supply of property searches are working well. Many suppliers offer a good service, quickly providing the information that consumers need, and relatively few consumers claim to experience problems with property searches.

13 Chapter 2 Background: How Property Searches are currently conducted However, our study identified concerns about: limits on the availability of some property information the potential for competition concerns in the retailing of property searches in the future, and the level of consumer awareness about property searches. 1.4 To address these concerns, we make a number of recommendations to ensure that this rapidly evolving market works well for consumers in the future. These include: changes to how much property information LAs make available, and clearer guidance on how they should charge for it removing restrictions on the retailing of property searches, and information campaigns to improve consumers understanding of property searches The report had nine recommendations (see Annex 3). One of the key recommendations related to LA charging for data to produce property searches: Price transparency Central government should provide clear guidance for LAs on how they should recover the costs of providing property information in compiled and unrefined forms and, if LAs are to set their own prices for these two services, how they should set charges to avoid distorting competition in the supply of local property services In its report the OFT set out two options for the pricing of unrefined data needed to compile property searches: a. that central government set uniform fees. This could be at a price that reflects the costs of an efficient or average LA or alternatively the fee could be set at zero; b. that LAs set their own fees at a level that covers their costs The Government published its response to the OFT report in December 2005 and endorsed all of the OFT s recommendations. In its response on the recommendation relating to charging, the Government said: The Government in England favours option (b) of allowing LAs to set their own fees. Enabling LAs to set fees which recover costs reasonably incurred, will provide more flexibility than a centrally set fee, given that these costs could vary between authorities. The ability to recover costs would depend on whether a suitable methodology could be devised.

14 14 Local Authority Property Search Services Charges for Property Search Services Delivering the OFT s recommendation KPMG s report 2.13 KPMG was selected to assess the OFT models and devise a methodology for LA charging (see Annexes 5 & 6). In doing so it assessed the OFT s options of a centrally set charge and local cost recovery against three criteria: creation of a level playing field, minimising LA cost burdens; and complexity. KPMG s conclusion was that cost recovery for provision of unrefined data was the best way forward KPMG s report sets out two possible charging models, one based on the existing legal framework governing property searches i.e. LAs charging having regard to costs 1 and up to cost recovery 2 (section 6 of KPMG s report) and an alternative model (section 8 of the report). Both models make a differentiation between what KPMG has called the LA s Back Office (i.e. the source data provider that delivers the data set both for LA and a personal searcher s use) and the Front Office where LA and personal searches compete in the market place based on value added to the consumer. In both models the back office function is based on a LA making an assessment of its costs. However the two models differ in the front office function. In the model in section 6 (i.e. the existing model) LAs must have regard to their costs or for local land charges register services up to cost recovery in the market place whereas an alternative model is proposed in section 8 which recommends that LAs should be able to compete in the market based on value added in the market place e.g. efficiency of service, quality of product. This is covered in Part 4 of this consultation paper KPMG was also commissioned to produce guidance for LAs on charging for its property search services and a draft is set out at Annex 6. Comments are sought on this as part of this consultation exercise. 1 The Local Authority (Charges for Land Searches) Regulations s.13a of the Local Land Charges Act 1975

15 Chapter 3 A summary of the Government s proposals set out in this consultation paper 15 3 A summary of the Government s proposals set out in this consultation paper Objectives 3.1 The measures in this consultation paper aim to deliver the Government s objectives for the delivery of property searches of: fair, open and transparent charges for the delivery of property searches; open access to all the LA held data necessary to compile a search to ensure consumers have all the relevant information on which to base decisions when buying a home; promoting the use of information technology to improve the conveyancing process. Charging for unrefined data : provision of the data set 3.2 As noted in para 2.11 above, the OFT set out two options for LA charges for unrefined data for property searches. In its response to the OFTs market study Government noted that it preferred the option of LA charging based on local cost recovery. LAs as holders of the data necessary to compile property searches incur costs in collecting, maintaining and providing access to it. Government policy is that where costs are incurred and a charge can legally be made, then LAs should be allowed to recoup these costs. 3.3 The outcome of KPMG s work is to recommend local cost recovery for access to the unrefined data that makes up the data set necessary to compile property searches. Government accepts this recommendation and reaffirms its preference for LAs to charge for property search services on a costs recovery basis (see Part 4 below), and for the personal search of the local land charges register to charge up to cost recovery locally (see Part 6 below).

16 16 Local Authority Property Search Services Charges for Property Search Services Charging for refined data: provision of compiled searches 3.4 As well as providing unrefined data to personal search companies, LAs also compete directly with them in the provision of compiled searches. The price of property searches varies widely. The provisions of the Local Authority (Charges for Land Searches) Regulations 1994 (the 1994 Regulations) permit LAs to charge for compiled searches having regard to their costs. The Local Land Charges Act 1975 (the 1975 Act) provides for LAs to set fees for the official search of the LLCR, and other local land charges services (other than the fee for a personal search of the LLCR) up to cost recovery. The Government is therefore seeking views on whether this current approach should change to reflect the alternative model proposed by KPMG in section 8 of its report (Parts 4 and 6 below). Any resulting changes may also affect the existing relevant statutory provisions. This consultation document makes no proposals regarding the alternative model in section 8 of KPMG s report. The legal basis for charging 3.5 The legal framework both for access and charging is fragmented and arguably needs updating to reflect the realities of the current market. It is described in more detail at Annex 2. Government will continue to work to update the access arrangements across the range of data required to complete property searches as opportunities arise. For example, proposals are in the pipeline to place all building control data on public registers from April There have been varying opinions expressed on the legal framework, in particular the provisions of the Local Authority (Charges for Land Searches) Regulations 1994 and how they apply to personal searchers. Paras below explores this further and, subject to the outcome of this consultation exercise, signals the possibility of amending the 1994 Regulations to clarify these issues. Review of the arrangements for personal searches of the local land charges register 3.7 The fee for a personal search of the LLCR is currently set centrally by the Lord Chancellor, with the concurrence of HM Treasury, at 11 for all LAs in England. As the statutory fee is intended to approximate to the cost of providing this personal search service, it may be argued that the fee cannot reflect the actual costs of maintaining and making the information available for all LAs. It might also seem anomalous to have a local cost recovery approach for part but not all of the provision of property searches data sets. This consultation paper therefore takes the opportunity to look at the principle of how and by whom the personal search fee should be set in the future. This is covered in Part 6 of this consultation paper. 3.8 As any change to the legislative structure may take time to introduce, Part 6 also asks whether the current fee for a personal search of the LLCR should be changed using the present legislation.

17 Chapter 3 A summary of the Government s proposals set out in this consultation paper 17 Monitoring 3.9 The arrangements put in place as a result of this consultation are intended over time to deliver significant improvements in market efficiency. It will be important to monitor how well the guidance is being followed and the consequent impact on the market. The KPMG report contains a suggested framework for this monitoring (see section 9 of the report) and comments are sought on these proposals (Part 4 of the consultation paper). A future vision: fully electronic delivery? 3.10 The introduction of HIPs is part of a wider programme of reforms to home buying and selling including e-conveyancing, which aims to provide consumers with a clearer, more transparent and effective service, with better value for money, benefiting all potential homebuyers. The Government is therefore committed to a future where the delivery of property searches is fully electronic. Government believes that internet technologies should be used to make services available in people s homes, on websites and at council offices and one stop shops in ways that are convenient and efficient for users. Views on the most effective ways of achieving this are sought as part of this consultation (see paras ). What this consultation covers 3.11 This consultation therefore seeks views on: setting fees for the provision of unrefined data by LAs on a cost recovery basis? whether LAs should set fees for provision of refined data on a price competed basis in the market for compiled searches? whether the draft guidance developed by KPMG to enable LAs to calculate cost recovery is comprehensive and practicable? the monitoring framework proposed by KPMG; potential changes to the Local Authority (Charges for Land Searches) Regulations 1994 to provide clarity and facilitate any changes necessary to deliver the proposals in this consultation paper; how Government might best promote full electronic provision of property searches? whether the fee for a personal search of the local land charges register should in the future be devolved to LAs to set on a cost recovery basis? whether the present 11 fee for a personal search of the LLCR should be changed?

18 18 Local Authority Property Search Services Charges for Property Search Services Consultation questions 3.12 We welcome responses to the specific questions posed in this document as well as any general comments that you may have. Please ensure that responses to the specific questions posed clearly identify the question number to assist with the compilation and analysis of responses. It would also be helpful if responses were submitted electronically, as well as any hard copies that may be sent. This will help reduce the time needed to compile and analyse the comments received Specific questions are set at each Part of this consultation paper. They are: 1 Do you agree with the Government s proposal that LAs costs for access to unrefined data should be based on cost recovery? 2 Should the current framework for LA charges for compiled searches be changed to enable LAs to charge for refined data as recommended in section 8 of the KPMG report? 3 What are your views on KPMG s proposals in section 9 of its report for monitoring LA charges? 4 What are your views on possible proposals in para 4.16 to amend the Local Authority (Charges for Land Searches) Regulations 1994? 5 What are your views on the most effective ways to achieve electronic delivery of property searches? 6 Does the proposed KPMG guidance reflect all the LAs costs that need to be considered in carrying out property search activities? 7 Is the proposed KPMG step by step guidance clear, comprehensive and practicable? 8 Do you agree with the impact assessments provided (Annex 4)? If not please give your reasons. 9 Do you agree that the fee for a personal search of the local land charges register should be: set by individual registering authorities in England on a cost recovery basis (option 2)? set at a figure that does not exceed cost recovery? In either case, if you do not, please explain why. 10 If you do not agree that the fee for a personal search of the local land charges register should be set at 11, please provide evidence using the proforma at Annex 7 to explain why.

19 Chapter 4 Local Authority charging for unrefined and refined data 19 4 Local Authority charging for unrefined and refined data Background 4.1 The OFT set out two options for the pricing of unrefined data 3 needed to compile property searches: a. that central government set uniform fees. This could be at a price that reflects the costs of an efficient LA or an average LA or alternatively the fee could be set at zero; b. that LAs set their own fees at a level that covers their costs. 4.2 The Government s response stated that: The Government in England favours option (b) of allowing LAs to set their own fees. Enabling LAs to set fees which recover costs reasonably incurred, will provide more flexibility than a centrally set fee, given that these costs could vary between authorities. It should also reduce incentives on LAs to restrict the availability of information, resulting from costs pressures when they are unable to recover costs. This approach is in line with recent trends to devolve decision making to a local level where appropriate. It is also consistent with Government policy in England and was expressly stated in the local government White Paper Strong Local Leadership Quality Public Services. it is the Government s preferred option to permit LAs to set fees for unrefined property information linked to Con 29 searches locally. The final decision will be informed through the collection and analysis of much more detailed information on all the elements that make up a property search It is envisaged that the result of this work will be the publication of detailed guidance, which will sit below a high level set of principles to be published by central government, as to which costs should be met from fees. Further, more detailed, guidance would explain how this is to be achieved. 3 Paras 4.39 to 4.52 of the OFT report, Property Searches A Market Study September 2005

20 20 Local Authority Property Search Services Charges for Property Search Services 4.3 KPMG was asked to assess the charging options identified in the OFT report. KPMG s assessment (section 1.2 of its report) was that, while there are initial attractions to a centrally set uniform fee e.g. straight forward to administer, there will always be local and regional price variations in costs etc which will result in: some LAs incurring an additional financial burden (e.g. if a zero fee were set, Government needing to provide local government with an estimated million per annum (see Annex 4) under its policy on new burdens) as authorities would no longer be able to recover their costs from charges; some activities generating a surplus on the provision of data, thus distorting competition; additional complexity and ambiguity because of the need to define an average or efficient LA and the consequent level at which to set any fee; the potential for hidden cross subsidisation as some LAs would receive more than, and some less than, their costs if a uniform fee was set; any fee needing to be regularly reviewed to remain valid. 4.4 KPMG therefore recommends a charging model for access to the unrefined data needed to compile a property search (what it refers to as the data set ) based on local cost recovery. Such an approach would: allow for local and regional price variations reflecting local democratic decisions and therefore the business model implemented by each LA; avoid potential distortions to competition by ensuring that any fee for access to the data set is the same for both public and private sector providers thereby facilitating a level playing field for competition in the market place; and remove any potential financial burden on LAs as they would be able to recover their costs in delivering property search services.

21 Chapter 4 Local Authority charging for unrefined and refined data KPMG s model shows the data set as unrefined (to the left of the dotted line) and the compiled property search required in a HIP as refined information (to the right of the dotted line). The data set includes other registers such as the local enquiries search source data e.g. planning and building regulations, roads, compulsory purchase; and the LLCR. Pre-Unrefined Unrefined Refined Back Office Local Authority - Source data Provider Data Set for property searches including local and charges register LLC1 Front Office Local Authority Local enquiries search Private Sector/Personal Search Company Property Search Report Property searches to include in a HIP Cost Recovery Added Value/Price Completed Local enquiries searches 4.6 This part of the paper refers to the consideration of options for fees payable for local enquiries searches covered in Schedule 7 of the Home Information Packs (No2) Regulations A local enquiries search covers issues that may be pending against a property. For example, the local authority may have resolved to serve a notice or to take other action which has not yet reached the Local Land Charges Register but which may affect future occupiers. Examples include: planning policy statements, proposed enforcement action and proposed road or traffic schemes. The issues relating specifically to personal searches of the LLCR and other services under the Local Land Charges Act 1975 are considered in Part 6. Consideration of options 4.7 This consultation paper considers the three options assessed by KPMG plus the do nothing option. The options are assessed against three criteria: do they deliver a level playing field? what financial burden would result for LAs? what is the level of complexity in calculating the fee?

22 22 Local Authority Property Search Services Charges for Property Search Services 4.8 A zero charge This is self-explanatory. LAs would be expected to supply all unrefined data at no cost. In narrow terms this would deliver a level playing field and there would be no issues around setting the level of the fee. However, it would create a significant new financial burden for LAs. 4.9 A uniform charge LAs would be expected to supply all unrefined data for a uniform fee. The effectiveness of this option would depend on the level of fee set. The report by KPMG assesses two approaches. The first would be to set a uniform fee based on the costs of an average authority. The second would be to set a fee based on the costs of an efficient authority. KPMG puts forward two main arguments against this approach. The first is complexity. Although the fee would not be complex for LAs to administer it would be very complex to set a uniform fee centrally which was accepted as fair across all authorities; further complication arises if the need to define an efficient authority was pursued. A centrally set fee would also need to be revisited every year to ensure it was still appropriate. If the fee was set at an average level a further issue would arise as by definition half of authorities would lose out: they would be able to recover less than the cost of providing information. Whilst to some extent this would act as an encouragement to cut costs, it could potentially lead also to worse service to customers. The other half, equally by definition, would be able to recover more than they had spent. Again this would act as an incentive to improve efficiency further in the knowledge that the savings could be retained. But it would be hard to justify charging search providers in these areas more than the cost of providing the information. Overall it could be argued that this option would deliver a level playing field but it would not be level in individual authority areas Local cost recovery Under this option LAs would be expected to recover only the costs of providing unrefined data. These would be defined in accordance with the guidance provided as part of the KPMG report (see Annex 6 of this consultation paper).

23 Chapter 4 Local Authority charging for unrefined and refined data 23 This would create a level playing field between LAs and personal search companies at the point of access to the data set. Both would face identical costs, the authority in providing the unrefined data and the companies in accessing it. There might be some complexity in setting up the systems to identify costs, although they may already exist in many authorities: however the KPMG guidance offers a clear process and, once set up, the systems should work smoothly. Financially this option is broadly cost neutral as LAs are able to cover their costs in providing unrefined data. Indeed the partial IA (Annex 4) indicates that some LAs who currently don t charge might actually benefit from cost recovery Do nothing Currently LAs have considerable discretion in having regard to the costs of providing unrefined data. In some authorities this may not potentially equate to cost recovery. The existing model does not deliver a level playing field. LAs and personal searchers are unclear on what can be charged for and there appears to be limited transparency on fees where they exist. In terms of financial burdens on LAs this varies greatly as some LAs charge for data, others allow free access and some deny access all together to certain data. The OFT concluded that reform is necessary to deliver a level playing field. Question 8 Do you agree with the impact assessment provided (Annex 4)? If not please give your reasons. Monitoring 4.12 Those charged fees for data will want to know about the level and transparency of any fees. They will want to have some assurance that fees are soundly based and that there are avenues for challenging those that seem ungrounded and/or excessively high. KPMG s report contains a suggested framework for such monitoring (see section 9 of its report) In summary it recommends that LAs should: provide an annual public statement signed off by the section 151 officer of the basis for its charges for unrefined data; from the 2nd year of operation of the proposed KPMG guidance, issue an annual summary of the amount charged in the preceding year again signed off by the section 151 officer. KPMG argues that this would provide greater transparency and, subject to consultation with the Audit Commission, bring the basis on which charges are made for unrefined data within the remit of potential review by the Appointed Auditor.

24 24 Local Authority Property Search Services Charges for Property Search Services Conclusions on future charging arrangements 4.14 In light of this assessment of the options in the OFT s report, and the reasons set out in the Government s response to the OFT (see 4.2 above), Government remains of the view that LAs should be able to charge for property search services to recoup their costs in delivering the service. However, with regard to refined data, the Government would welcome views on whether the current approach should change to reflect the alternative model proposed by KPMG in section 8 of its report. Any changes would require amendment to the existing arrangements in the Local Authority (Charges for Land Searches) Regulations Amending the Local Authority (Charges for Land Searches) Regulations Communities and Local Government s view on how the 1994 Regulations apply to LA property search services is set out in Annex 2. This view accords with the OFT s report and a separate legal Counsel s opinion commissioned by Communities and Local Government. However, several stakeholders in the private search sector have sought separate legal advice and Counsel s opinion on the application of the 1994 Regulations and these differ from that in Annex The outcome of this consultation may necessitate changes to the 1994 Regulations, for example if LAs are only to charge on a cost recovery basis for unrefined data. Amending these Regulations could also provide the opportunity to clarify their application and to address other OFT s recommendations on the level playing field. Communities and Local Government might therefore amend the 1994 Regulations to: address concerns about LA s powers to charge for providing services to personal searchers, where there is no existing bar to this e.g. where data is already publicly available free of charge; make a distinction between access to the data set and LA charging for services in relation to compiled property searches; make a link between LA charges and access to LA held data; and promote the electronic delivery of property searches (see below). Subject to the outcome of this consultation exercise, draft regulations would be developed for further consultation.

25 Chapter 4 Local Authority charging for unrefined and refined data 25 A future vision: fully electronic delivery? 4.17 The Government is committed to a future where the delivery of property searches, including searches of the LLCR, is completely electronic. Government believes that internet technologies should be used to make services available in people s homes, on websites and at council offices and one stop shops in ways that are convenient and efficient for users It is estimated that currently about 25/30% of LAs are fully electronic i.e. can receive and reply to search requests electronically and their internal software systems (e.g. between highways and land charges depts) are compatible to facilitate data transfer. However, LAs vary greatly in the type of software they currently use both across and within authorities The only existing avenue for electronic delivery of searches is the National Land Information Service (NLIS) which was established in the early 1990s to deliver electronic searches. NLIS is a private-public partnership with C-NLIS (previously LGIH) as the public partner. NLIS is a gateway that acts as an interface between conveyancers and information holders, in the case of property searches the relevant LA. NLIS consists of three commercial property search channels and a hub. The channels act as the client interface, receiving requests from conveyancers, passing the completed property search to the conveyancer, and receiving payments, all online. It is estimated that NLIS delivers c20% of local property searches There are 3 levels of connectivity between the NLIS hub and LAs: Level 1 (7 LAs) no electronic connection, search requests are received, completed and returned, and payments processed, manually; Level 2 (274 LAs) partly electronically connected, usually receiving and returning search requests, and processing payments electronically, but completing searches manually, or partially manually; and Level 3 (96 LAs) fully electronically connected, receiving, completing and returning search requests, and processing payments electronically. (Figs based on July 2007 data)

26 26 Local Authority Property Search Services Charges for Property Search Services 4.21 Government s intention is to see all LAs being able to receive, complete, return and process payments for property searches electronically. This would provide open, prompt and the most efficient access to data. KPMG s work for Communities and Local Government and Ministry of Justice on LA charging has identified some existing best practice in LAs holding and managing information (see Appendix D of the KPMG report) and the report recognises that in assessing its costs LAs should factor in its indirect and capital costs, which include investment in IT systems, in the cost of searches Communities and Local Government wishes to promote the electronic delivery of property searches. Amending the 1994 Regulations might provide the opportunity to do this. Your views are invited on the most effective ways to achieve this, for example could charging be linked to a medium/long term plan for electronic delivery? Questions 1 Do you agree with the Government s proposal that LAs costs for access to unrefined data should be based on cost recovery? 2 Should the current framework for LA charges for compiled searches be changed to enable LAs to charge for refined data as recommended in section 8 of the KPMG report? 3 What are your views on KPMG s proposals in section 9 of its report for monitoring LA charges? 4 What are your views on possible proposals in para 4.16 to amend the Local Authority (Charges for Land Searches) Regulations 1994? 5 What are your views on the most effective ways to achieve electronic delivery of property searches?

27 Chapter 5 KPMG s proposed guidance for Local Authorities to calculate costs of unrefined data (Annex 6 of this consultation document) 27 5 KPMG s proposed guidance for Local Authorities to calculate costs of unrefined data (Annex 6 of this consultation document) 5.1 In para 4.52 of its 2005 report the OFT recommended that: Central government should provide clear guidance for LAs on how they should recover the costs of providing property information in compiled and unrefined forms and, if LAs are to set their own prices for these two services, how they should set charges to avoid distorting competition in the supply of local property services. To address this recommendation KPMG were charged by Communities and Local Government and Ministry of Justice with developing such a methodology. The proposed methodology 5.2 In its report (para 4.2.2) KPMG has identified three broad categories of property search related costs that could potentially be included in making the data set accessible. These costs are associated with: the maintenance and update of the LLCR; the maintenance and update of the Local Enquiries search source data; and making the data set available to the private sector. 5.3 Based on these three broad categories of costs KPMG has developed step by step guidance for calculating the costs of maintaining and providing access to the unrefined data necessary to deliver the data set to compile a property search. This draft guidance is at Annex 6 of this consultation paper and views are sought on it as part of this consultation exercise.

28 28 Local Authority Property Search Services Charges for Property Search Services 5.4 The proposed methodology for calculating back office costs to deliver the data set is based on: clarity on the definitions of the data involved in the property search market; a clear statement of what a LA is entitled by statute to charge for; a step by step guide for a LA to identify the costs associated with property search related activities; and a methodology for converting the costing information into a charge for a property search related activity. 5.5 The guidance is based on a number of key costing and charging principles which are set out in section 4.1 of KPMG s proposed guidance. 5.6 The proposed guidance does not cover how LAs should price their searches in the market. KPMG s view was that in refining the data, and compiling reports, the LAs compete with the private sector and create value added products. With variation in the services provided (and in an innovative, competitive environment), it is less practical to set out formal guidance for compiled data. Questions 6 Does the proposed KPMG guidance reflect all the LAs costs that need to be considered in carrying out property search activities? 7 Is the proposed KPMG step by step guidance clear, comprehensive and practicable?

29 Chapter 6 Local land charges services: review of the personal search fee and associated matters 29 6 Local land charges services: review of the personal search fee and associated matters Scope 6.1 In this part we review how and by whom the fee for a personal search of the local land charges register (LLCR) is to be set. Aim 6.2 The aim of this review is to produce a system of fee setting and a level of fee that is fair to LAs, personal search companies (PSCs) and their customers. Wales 6.3 The Lord Chancellor s power to set local land charges fees for Welsh registering authorities was transferred to the National Assembly for Wales with effect from 31 December 2004 by the National Assembly for Wales (Transfer of Functions) Order This consultation relates only to England. Structure of Part This part of the consultation paper addresses two issues: how and by whom should the fee for a personal search of the LLCR in England be set? (see paragraphs ); whether, pending implementation of any change to be made as a result of this consultation the present fee for a personal search of the LLCR should be changed (see paragraphs ). Impact Assessments 6.5 The partial Impact Assessment in relation to the options considered in this part is set out at Annex This assessment estimates the impact of the proposals. We would be grateful if consultees could, when considering the proposals, state in their comments whether there are any impact costs that could either be avoided or, if unavoidable, reduced. It would be particularly helpful if costed examples could be given. Question 8 Do you agree with the impact assessment provided? If not please give your reasons.

30 30 Local Authority Property Search Services Charges for Property Search Services Background for the review of fees for local land charges 6.7 The 1997 Efficiency Scrutiny Review of Consent Regimes recommended the devolution to LAs in England and Wales of the Lord Chancellor s power to set fees for local land charges. This was one of a number of consent regimes to be abolished to reduce unnecessary central government oversight of LAs. 6.8 In September 2002 as part of the announcement of the Local Government White Paper Implementation Plan (September 2002) 4 Lord MacDonald and Nick Raynsford MP said that, subject to parliamentary time being available for the necessary legislation to be made, local land charge fees should be set by registering authorities. Registering authorities are those LAs subject to a duty to keep a LLCR under the 1975 Act rather than by the Lord Chancellor with consent of Treasury under the 1975 Act. This was to enable the charges set to reflect the considerable local variation in methods of keeping the register and providing the other services for which fees are prescribed. This initiative was consistent with the Government s policy of reducing unnecessary bureaucracy faced by councils and of introducing more freedoms and flexibilities to assist them in improving public services. 6.9 Personal search fees have however become a contentious area. Many LAs argue that it costs at least as much as the fees collected in staff and other resources to allow those wishing to do so to undertake a personal search of the LLCR. On the other hand, a number of LA registers are open to inspection without charge. The charging of fees for access to information held in a public statutory register might therefore be considered anomalous. In recent years the number of people visiting LA offices to carry out a personal search of the LLCR and to make other searches and enquiries has increased. In some cases this has led to practical problems for LAs and searchers alike In light of these developments Keith Hill MP announced the Government s intention to review the fees payable for personal searches of the LLCR during a Committee debate on the Housing Bill Deregulation in this area is part of the Government s strategy for implementing the local government White Paper. The Committee will appreciate that local land charges are not in any sense restricted to housing matters. There are a number of other matters, not least charging for personal searches of the local land charges register, that need further thought. The Department for Constitutional Affairs is planning to carry out a review on the subject before taking further steps. 4 Strong Local Leadership Quality Public Services, December 2001 (CM5237) 5 Housing Bill Standing Committee E Report, 10 February 2004 column 574