R (Peat and others) v Hyndburn DC [2011] EWHC 1739 (Admin) is the first successful challenge to a selective licensing scheme. We’ve previously covered the permission hearings (here and here). It’s quite a fun judgment to read, if only for the absolute kicking that the authority get over their consultation exercise.

Selective licensing is, in short, a mechanism whereby authorities can require landlords to obtain licenses before being allowed to let property. Before making a designation, the authority must take reasonable steps to consult persons likely to be affected (s.80(9), Housing Act 2004) and (as the law stood at the relevant time), obtain the consent of the Secretary of State. The Secretary of State has published guidance on the level of consultation that should take place and what he would expect authorities to do before bringing in a designation. For a full review of the background, see our previous posts, where David Smith sets it all out in rather more detail.

Anyway, back to the case – in 2008, Hyndburn decided to introduce a selective licensing scheme. Their consultation exercise consisted of a questionnaire about local problems (do you have a problem with noisy neighbours, should bad things happen to bad people, etc) and didn’t, for example,

(i) contain any firm details of the boundaries of the proposed designation;

(ii) contain any details of the proposed license conditions or fee structure;

(iii) give any reasons why the authority considered that selective licensing was a good idea.

There was about an 11% response rate to that questionnaire which (unsurprisingly, given the vanilla nature of the questions) indicated broad support for anything that would stop bad things happening (really, it is as bad as that).

The authority then applied to the Secretary of State for approval of the designation. Sadly, the information provided to the SoS was, to put it neutrally, somewhat less than wholly accurate. The SoS was told that the consultation results were published online (they weren’t) and that various methods of consultation had been used in addition to the questionnaires (which wasn’t true). The SoS then confirmed the designation and, in response, six landlords issued proceedings seeking to quash it.

The arguments were threefold. Firstly, it was said that there simply had been no consultation within the meaning of s.80(9) and the guidance – that required there to be a specific proposal, with boundaries, a fee structure, etc which was consulted on. Secondly, it was said that the passage of time between the 2008 consultation and the designation was so long that the results had become stale. Finally, the authority were said to have misled the SoS.

The claim was allowed on all three basis. Section 80(9) did require much greater detail than had been provided; the boundaries of the scheme, the licence conditions, the reasons for considering it necessary were all matters that should be put to consultees for their comment. Whilst the ‘stale’ point might not have got anywhere itself, when seen in context, it was clear that the limited consultation exercise that was actually carried out might have had only a limited shelf-life and the authority should have had regard to this fact. Finally, the misleading information provided to the Secretary of State further undermined confidence in the consultation exercise.

The designation was therefore quashed.

Quite a useful little case, I suspect, as it puts some flesh on the bones of s.80(9), 2004 Act, and now tells authorities what sort of information needs to be provided during the consultation process. And, of course, reminds them of the need to tell the truth…