Regas, R (On the Application Of) v London Borough of Enfield

A local authority designating an area for additional or selective licensing must take reasonable steps to consult all persons likely to be affected. That class may include residents, businesses, landlords and agents in immediately adjoining parts of neighbouring authority areas where the designation may displace conduct into those areas. A general listening exercise cannot be aggregated with the statutory consultation unless it addresses a sufficiently precise proposal and its consequences. The proposal must be described with enough detail, including likely licence conditions, to permit an informed response. A general approval requiring at least ten weeks’ consultation is not satisfied by a shorter formal consultation preceded by a general engagement exercise. Failure to meet these requirements prevents lawful designation and justifies relief despite administrative preparations or delay.

The claimant, a private landlord, sought judicial review of Enfield’s decisions of 9 April and 12 November 2014 to introduce borough-wide additional and selective licensing schemes under the Housing Act 2004. Permission was ultimately granted for challenges based on inadequate consultation and failure to comply with the Secretary of State’s General Approval. The first consultation ground concerned the failure to consult persons likely to be affected in adjoining parts of neighbouring boroughs. The second concerned the alleged failure to conduct the statutory consultation for at least ten weeks. The court also considered amendments, delay and whether relief should be withheld.

The claim succeeded. The court held that the additional and selective licensing schemes had not been lawfully designated and could not lawfully be implemented unless and until Enfield conducted a lawful consultation and obtained the necessary approval.

1. Under sections 56(3) and 80(9) of the Housing Act 2004, the authority had to take reasonable steps to consult persons likely to be affected by the designation. The breadth of that class depended on the nature and extent of the proposed designation. Because Enfield relied in part on preventing landlords and tenants moving into unlicensed areas, the class included persons in immediately adjoining parts of neighbouring boroughs. Enfield had no consultation strategy directed to that class, and incidental publicity did not satisfy the statutory duty.

2. Applying R (Peat) v Hyndburn BC [2011] EWHC 1739 (Admin), the court held that a general listening and engagement exercise did not satisfy the statutory consultation requirement. The consultation had to concern a sufficiently precise proposal and its consequences, including the likely licence conditions, so that affected persons could respond intelligently. The first phase lacked that necessary detail and could not be aggregated with the later formal consultation.

3. The court applied the fairness principles reaffirmed in R (Moseley) v Haringey London Borough Council [2014] UKSC 56. The statutory consultation properly so called ran from 2 January to 28 February 2014, considerably less than the ten weeks required by paragraph 4 of the General Approval. Not all persons who should have been consulted were consulted throughout that period.

4. Permission was granted to amend the grounds in relation to both decisions. Delay did not justify refusal. Nor should relief be withheld under R v LB Brent ex p Walters (1998) 30 HLR 328, CA. This was not merely a conventional procedural fairness challenge: the consultation failures meant that Enfield lacked jurisdiction to implement the designations. Preparatory expenditure and administrative inconvenience therefore did not outweigh the need for relief.

The judgment itself was a first-instance judicial review decision. It records that permission had previously been refused on the papers by Cranston J, that Ouseley J granted limited permission on vires and irrationality grounds, and that Lewison LJ later granted permission for the first consultation ground while refusing permission concerning the European Services Directive challenge.