Peat & Ors, R (on the application of) v Hyndburn Borough Council

A local housing authority must take reasonable steps to consult persons likely to be affected by a selective licensing designation. Consultation on general principles is insufficient where the proposal’s area, consequences, licence conditions and fee structure have not been adequately explained. Consultees must receive sufficient information to give an informed response and adequate time to do so. Secretary of State guidance may provide an objective yardstick for assessing whether the statutory consultation duty has been met, even where it is not binding guidance. A shallow consultation may lose its usefulness during delay, although delay alone will not necessarily invalidate an otherwise adequate consultation. Prejudice relied on to resist relief for delay must be established by proper evidence. The designation was therefore quashed.

The claimants were landlords challenging Hyndburn Borough Council’s decision to designate areas of the borough for selective licensing under Part 3 of the Housing Act 2004. The designation was made on 3 March 2010, confirmed by the Secretary of State on 31 March 2010 and brought into operation in October 2010.

The claimants alleged that the council’s 2008 consultation failed to comply with section 80(9), that the consultation had become stale, and that the council had inaccurately represented the consultation to the Secretary of State. Permission had previously been granted by Owen J, who rejected the principal delay objection. The central issue was whether the consultation, viewed as a whole, satisfied the statutory requirement to take reasonable steps to consult persons likely to be affected by the designation.

1. The claim succeeded and the designation was quashed. The council was ordered to pay the claimants’ costs, subject to detailed assessment if not agreed.
2. Section 80(9) of the Housing Act 2004 required consultation with persons likely to be affected by the designation. That required sufficient precision about the area to be designated and its consequences. It was difficult to consult adequately without information about likely licence conditions.
3. Consultation on the general principles of selective licensing was insufficient. Consultees needed accurate and sufficient information about the proposal, its reasons, the problems it was intended to address, the proposed licence conditions and the fee structure. Without that information, an informed response was not realistically possible.
4. The principles stated in R v Brent London Borough Council ex parte Gunning (1985) 84 LGR 168 and summarised in R (Wainwright) v Richmond upon Thames London Borough Council [2001] EWCA Civ 2062 were applicable. Consultation had to occur while proposals were formative, provide sufficient information, allow adequate time for response and involve conscientious consideration of the responses.
5. The Secretary of State’s guidance was not equivalent to the statutory code considered in R (Munjaz) v Mersey Care National Health Service Trust [2006] 2 AC 148. Nevertheless, it supplied a helpful objective yardstick. Measured against it, the council’s consultation was perfunctory and failed to satisfy section 80(9).
6. If the consultation had otherwise been adequate, the period before designation would not necessarily have made it stale. Because this consultation was shallow, however, its usefulness had a shorter lifespan. The passage of time and evolution of the scheme should have prompted the council to reconsider whether further consultation was reasonably necessary.
7. The council’s inaccurate reports to the Secretary of State about the consultation undermined confidence in the reasonableness of the steps taken. The alleged prejudice from delay was inadequately established. Embarrassment to the council was not prejudice to good administration for the purposes of section 31(6) of the Senior Courts Act.

This was a first-instance judicial review. Permission was granted by Owen J on 14 April, and the substantive claim was then determined by the Administrative Court.