Local authority – Selective licensing scheme – Consultation – Section 80(9) of the Housing Act 2004 – Claimant consortium applying for judicial review of decision of defendant local authority to designate borough for selective licensing scheme – Whether defendants taking reasonable steps to consult developers and landlords before making designation – Application dismissed
The defendant local authority designated the entire borough of Croydon for a selective licensing scheme under the Housing Act 2004 to deal with anti-social behaviour and criminal activities in their area. After that designation, the claimant was formed to carry out any lawful activity to promote or safeguard the interests of private rented sector landlords operating within the area. Its members consisted of a consortium who wished to challenge the validity of the scheme on the grounds that local developers and landlords had not been adequately consulted.
The claimant applied for judicial review seeking to quash the decision of the defendants to designate the borough for a selective licensing scheme, contending that the defendants were under a statutory duty set out in section 80(9) of the 2004 Act to take reasonable steps to consult developers and landlords before making the designation as they were likely to be adversely affected by the designation. It argued that no reasonable steps had been taken because the developers, as a class, and the landlords had not been consulted with the consequence that the designation should be quashed.
The defendants contended that they had complied with their statutory obligation as the steps taken to consult persons likely to be affected had been extensive and were plainly reasonable. They had adopted a three-stage process. First, the defendants had engaged with private sector landlords, managing agents and associations that supported private landlords or had an interest in their affairs, to determine the level of support for the proposal. Secondly, they identified four options and explained that a borough-wide selective licensing scheme was their preferred option. That had been publicised in a variety of ways using key social media channels, traditional media and posters in public spaces throughout Croydon. In addition, a public meeting had been held to discuss the proposals and a face-to-face survey of 1,071 households carried out. As a third stage, the defendants extended the consultation period by a further 10 weeks to allow those with connections to the borough more time to provide feedback and to give people in neighbouring boroughs a more targeted opportunity to express their views.
Held: The application was dismissed.
(1) The extent of the obligation imposed on the defendants in section 80(9) wa onylto take “reasonable steps”. Significantly, it did not extend to taking either “all steps”, “every step” or “all reasonable steps”. As specified in the guidance issued by the Department for Communications and Local Government: “Approval steps for additional and selective licensing designation in England”, the defendants had used various channels of communication at all stages of the consultation process to endure that the consultation was widely publicised. A critical factor was that it would not be pure happenstance if developers became aware of the consultation. It could reasonably be expected that anyone with a connection to or interest in Croydon would have had the defendants’ proposals drawn to their attention. Pulling all the threads together, the court was satisfied that the defendants had complied with their duty to take reasonable steps to consult people who were likely to be affected by the designation, including developers and landlords: R (on the application of Regas) v Enfield London Borough Council [2014] EWHC 4173 (Admin); [2015] PLSCS 7 distinguished.
(2) The defendants had a comparatively wide discretion as to how the consultation process was carried out and the process would not be considered unlawful unless something went clearly and radically wrong. In order to be unlawful the nature and extent of the process had to be so narrow that no reasonable council would have adopted it. So there was a high threshold for the claimant to reach to obtain relief. In the present case, nothing had gone clearly and radically wrong, bearing in mind that it was almost invariably possible to suggest ways in which any consultation might be improved: R (on the application of Wainwright) v Richmond upon Thames London Borough Council [2001] EWCA Civ 2062 applied. R (on the application of Greenpeace Ltd) v Secretary of State for Transport and Industry [2007] Env 623 and R (on the application of Peat) v Hyndburn Borough Council [2011] EWHC 1739 (Admin) considered.
Jonathan Manning and Justin Bates (instructed by Direct Access) appeared for the claimant; Clive Sheldon QC (instructed by Wragge Lawrence Graham & Co) appeared for the defendants.
Eileen O’Grady, barrister
Click here to read transcript: R (on the application of Croydon Property Forum Ltd) v Croydon London Borough Council
