Borough defeats High Court challenge to selective licensing in four areas

A borough council has successfully defended a High Court challenge to its planned introduction of mandatory selective licensing in four areas.

In Rotherham Action Group Ltd, R (on the application of) v Rotherham Metropolitan Borough Council [2015] EWHC 1216 (Admin) the claimant – a company representing the interests of private residential landlords in Rotherham – challenged the local authority’s decision of 17 December 2014.

That decision approved the designation of the four areas – Eastwood, Masborough, Maltby South East and Dinnington – as being subject to selective licensing pursuant to section 80 of the Housing Act 2004 with effect from 1 May 2015.

An overview and scrutiny committee at the council had previously recommended in July 2014 a landlord led voluntary quality landlord scheme as an alternative to selective licensing.

There were two grounds of challenge:

• The defendant council had failed to take reasonable steps to consult persons who were 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.
• The council had 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.

Mr Justice Stewart, sitting in the Leeds Administrative Court, rejected the claim on both grounds.

The judge said it was clear from the December 2014 report, minutes of the meeting and evidence from a councillor that there had been very substantial consideration of the options.

He added that too much emphasis must not be given to the July 2014 report and recommendation. “Its reasoning can properly be part of the background to a perversity/irrationality challenge but it was in no way binding on Cabinet in December 2014,” he found.

“Nor is the fact that a voluntary scheme was described as for example ‘comprehensive and credible’ anywhere near sufficient for it to be considered to be perverse and/or irrational for the LHA not to prefer it to a mandatory scheme.”

Mr Justice Stewart said he did not consider there was any perversity and/or irrationality in Rotherham’s Cabinet choosing on 17 December 2014 a mandatory scheme over voluntary one, having considered the voluntary scheme. “Looked at on their merits they are cogent reasons for preferring the mandatory scheme.”

In any event had there been a necessity for Cabinet to demonstrate why they were departing from the July 2014 recommendation, the judge concluded that there was a proper rational basis for so doing.

He noted how in Cabinet it had been decided that “heavy artillery in smaller areas with more intensive problems was more effective than lighter artillery over a wider area containing both these areas and others with fewer problems”.