Southern Landlords Association, R (on the application of) v Thanet District Council

For a public law challenge to selective licensing, the court reviews the legality of the local authority’s decision, rather than deciding the merits afresh. The statutory concept of low housing demand is assessed through a range of indicators, including property values, occupancy turnover, availability, vacancy, tenure mix, property condition and anti-social behaviour. An authority may rely on informed judgment and context when assessing whether landlords are failing to address anti-social behaviour and whether licensing will assist. Selective licensing is not necessarily an option of first resort. The authority must consider other available courses of action, but earlier initiatives may satisfy that requirement where they have not effectively addressed the relevant problems.

The claimant, a landlords’ trade association, sought judicial review of Thanet District Council’s January 2011 designation of Margate Central and Cliftonville West as a selective licensing area under Part 3 of the Housing Act 2004. The challenge alleged insufficient evidence that the area satisfied the statutory conditions concerning low housing demand or anti-social behaviour, and failure to consider alternative measures under section 81(4).

The designation followed extensive regeneration initiatives, consultation and a proposal document addressing housing conditions, tenure, crime, anti-social behaviour and alternative courses of action. The central issue was whether the Council had committed an error of law or other public law error in making the designation.

1. Claim dismissed. The claimant failed to establish any error of law in the Council’s assessment or designation.
2. The challenge concerned the legality of the Council’s decision-making, not a merits review by the court. Difficult evidence concerning whether landlords had failed to act and whether licensing would reduce anti-social behaviour involved judgment about the evidence and the future. The court could intervene only for illegality or another public law error.
3. The Council had applied the statutory definition of anti-social behaviour in section 57(5) of the Housing Act 2004, as applied by section 100. Evidence of a significant and persistent problem was available from the proposal document and the consultation. The Council also had evidence from community safety officers that many private landlords were not managing properties to control anti-social tenants and that some were unwilling to address problems when contacted.
4. For section 80(6), the Council was entitled to make the overall judgment that the requirements concerning landlord inaction and the likely effect of designation were satisfied. The court did not treat the evidence from landlords filed for the judicial review as determinative, since it had not been before the Cabinet.
5. Low housing demand under section 80(3) was mediated through the statutory and guidance factors. The relevant question was whether there was demand for housing in the area from a range of persons, for different tenures, who wished to remain there for a substantial period. The Council had considered low property values, high turnover, the unusually high proportion of rented accommodation, poor property condition and anti-social behaviour. The existence of demand from some landlords or public authorities did not invalidate the assessment.
6. Section 81(4) did not make selective licensing an option of first resort. The Council had considered earlier initiatives, including renewal-area measures and other regeneration activity, and was entitled to conclude that they had not effectively addressed the problems. Evidence arising after designation was irrelevant to the legality of the original decision.