The Queen (on the application of Rotherham Action Group Ltd) v Rotherham Metropolitan Borough Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Stewart |
| Judgment Date | 30 April 2015 |
| Neutral Citation | [2015] EWHC 1216 (Admin) |
| Docket Number | Case No: CO/1235/2015 |
| Date | 30 April 2015 |
| Court | Queen's Bench Division (Administrative Court) |
[2015] EWHC 1216 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Leeds Administrative Court
The Court House, 1 Oxford Row, Leeds LS1 3BG
Mr Justice Stewart
Case No: CO/1235/2015
Andrew Lane (instructed by Bury & Walkers LLP) for the Claimant
Jonathan Manning & Justin Bates (instructed by Rotherham Metropolitan Borough Council) for the Defendant
Hearing dates: 28 April 2015
Introduction
The claimant challenges the defendant's decision of 17 December 2014. That decision approved the designation of four areas in Rotherham as being subject to selective licensing pursuant to section 80 of the Housing Act 2004 (the Act) with effect from 1 May 2015.
In the claim form there were two grounds of challenge; these were:
(i) Ground 1: the defendant has failed to take reasonable steps to consult persons who are likely to be affected by the designation. The consultation process was accordingly inadequate and unlawful, and in breach of section 80(9)(a) of the Act.
(ii) Ground 2: the defendant has failed to properly or at all consider whether there were other courses of action available to them (or consider the representations obtained from consultees in the case of voluntary accreditation as required by section 80(9)(b)) such that section 81(4)(a) of the Act has not been followed.
Because of the 1 May 2015 date, Judge Belcher made an order on 25 March 2015 for a hearing on 16 April 2015 to determine:
(a) whether to grant permission for judicial review
(b) whether to grant an interim injunction restraining the defendant from proceeding with the scheme pending the full challenge.
The matter came before Judge Belcher on 16 April 2015. She granted permission to bring a claim for judicial review but limited to Ground 2 only. She listed the matter on 28 April 2015 and provided (paragraph 5 of the order) that "At that hearing, the defendant has permission to revisit the issue of delay as it relates to the question of what, if any, relief should be granted."
The Skeletal Facts
The claimant is a private company limited by guarantee. It has been recently incorporated to represent the interests of private residential landlords in Rotherham. Previously the Rotherham District Landlords Association (RDLA) co-ordinated a response to the defendant's plans for selective licensing but, because landlords outside the RDLA were objecting to the scheme, it was decided to form the claimant company.
A Voluntary Landlord Accreditation Scheme was first suggested in Rotherham in or about 2003 as a pilot scheme commencing in Eastwood and Brinsworth. Afterwards the defendant decided not to pursue accreditation but the idea was revived in 2011. A brief chronology thereafter is:
| 22 May 2013 | The defendant's Cabinet agreed to receive a report setting up the business case for selective licensing (the recommendation to the defendant was originally to proceed with an Accreditation Scheme). |
| 27 November 2013 | The Cabinet recommended that selective licensing should be considered in an area covering 2029 licensed properties. |
| 12 December 2013 | The business case was produced. |
| January – March 2014 | The formal statutory consultation. |
| 19 March 2014 | Interim report presented to Cabinet. |
| 23 July 2014 | The defendant's Improving Places Select Commission (the Commission), which is an Overview and Scrutiny Committee, recommended a landlord led voluntary quality landlord scheme as an alternative to selective licensing. |
| 17 December 2014 | The Cabinet designated four areas (Eastwood, Masborough, Maltby South East and Dinnington) for selective licensing under Part III of the Act. The new boundaries were in some respects significantly different from those consulted upon and the central Rotherham area was removed such that the 2029 properties anticipated to be covered by the scheme were reduced to 1394. The Cabinet also requested a report on 18 March 2015 in order to agree the license fees. |
The present proposal is that the scheme will come into force on 1 May 2015 for a period of 5 years.
Relevant Legislation
It is Part III of the Act which is relevant. This covers Selective Licensing of Other Residential Accommodation and provides a local housing authority (LHA) with significant powers to regulate and control the private rented stock in all or parts of their area. This part deals with houses which are not in multiple occupation.
By section 80(1) an LHA may designate the whole of their district or an area within it as subject to selective licensing if the requirements of subsections (2) and (9) are met. The key part of those subsections are as follows:
"Designation of selective licensing areas
……
(2) The authority must consider that—
(a) the first or second set of general conditions mentioned in subsection ( 3) or (6), or
…….
are satisfied in relation to the area.
(3) The first set of general conditions are—
(a) that the area is, or is likely to become, an area of low housing demand; and
(b) that making a designation will, when combined with other measures taken in the area by the local housing authority, or by other persons together with the local housing authority, contribute to the improvement of the social or economic conditions in the area.
(4) In deciding whether an area is, or is likely to become, an area of low housing demand a local housing authority must take into account (among other matters)—
(a) the value of residential premises in the area, in comparison to the value of similar premises in other areas which the authority consider to be comparable (whether in terms of types of housing, local amenities, availability of transport or otherwise);
(b) the turnover of occupiers of residential premises;
(c) the number of residential premises which are available to buy or rent and the length of time for which they remain unoccupied.
(5) The appropriate national authority may by order amend subsection (4) by adding new matters to those for the time being mentioned in that subsection. 1
…"
[The second set of general conditions requires that the area is experiencing anti social behaviour problems; it is acknowledged in this case that that ground was not satisfied]
Two other sub sections need to be set out:
Section 80(9)
"Before making a designation the local housing authority must—
(a) take reasonable steps to consult persons who are likely to be affected by the designation; and
(b) consider any representations made in accordance with the consultation and not withdrawn."
Section 81(4)
"The authority must not make a particular designation under section 80 unless—
(a) they have considered whether there are any other courses of action available to them (of whatever nature) that might provide an effective method of achieving the objective or objectives that the designation would be intended to achieve, and
(b) they consider that making the designation will significantly assist them to achieve the objective or objectives (whether or not they take any other course of action as well)."
Witness Statements
I have witness statements from the following people:
• Maurice Edward Healey. He is a Director and Member of the claimant and Chairman of the RDLA. His statements are dated 10 March 2015 and 15 April 2015.
• Carl Agar. He is the local representative of the National Landlords Association (NLA) and is a residential landlord operating in the defendant's district and a local agent. His witness statement is dated 10 March 2015.
• Matthew Finn, Community Protection Manager for the defendant within Housing, Asset Management and Neighbourhood Services. He is a qualified environmental health officer. His statement is dated 31 March 2015.
• Paul Benson. His statement is dated 16 April 2015.
• Maggie Godfrey. She is a Councillor, being one of the 3 elected Councillors for the Maltby ward. Her witness statement is dated 22 April 2015.
July 2014 – December 2014
The report to Cabinet dated July 2014 specifically adverted to the statutory duty in paragraph 6.2. It said:
"Recommendations
It is recommended that the Cabinet
…….
6.2 Decide to introduce either a mandatory selective licensing scheme or the alternative proposal advocated by a range of landlords for a voluntary scheme. In taking this decision Cabinet should consider Department of Communities and Local Government Guidance which stipulates that when considering the introduction of selective licensing, the Council must also consider whether there are any other courses of action available to them that might provide an effective method of achieving the objectives that the designation would be intended to achieve."
In paragraph 7.4 there was an Option Appraisal. I shall cite certain sections:
"7.4.1 Option 1 – Landlord led Voluntary Quality Landlord Scheme
Guidance relating to Selective Licensing makes clear that realistic alternatives should be sought to a mandatory scheme in the first instance. To not do so could potentially run the risk of judicial review. This is a credible option that has arisen out of the consultation process.
This option allows the local PRS landlords with support from national landlord organisations to lead on the development of an alterative borough wide quality landlord registration scheme, in partnership with the Council and other local landlord/letting agent based organisations, in order to meet similar objectives as set out in the Selective Licensing business case…
Option 2 – Cabinet...
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