Rotherham Action Group Ltd, R (on the application of) v Rotherham Metropolitan Borough Council

Section 81(4)(a) of the Housing Act 2004 imposes a mandatory duty on a local housing authority to consider other available courses of action that might effectively achieve the relevant objective. It does not require the authority to adopt the least intrusive measure or prevent designation merely because an alternative might be effective.

After considering the alternatives, the authority may choose selective licensing over voluntary accreditation, provided its decision is not irrational or perverse. Relevant considerations include any identifiable advantage of mandatory licensing and whether it is proportionate in the circumstances. The court reviews the substance of the decision and its central reasoning without adopting an over-technical or nit-picking approach.

The claimant, a company representing private landlords, sought judicial review of the defendant council’s decision of 17 December 2014 to designate four areas for selective licensing under Part III of the Housing Act 2004.

Permission was granted on the challenge that the council had failed to comply with section 81(4)(a), by inadequately considering whether a voluntary landlord accreditation scheme could provide an effective alternative. The council had previously favoured testing such a scheme, but later selected mandatory licensing after reassessing the geographical areas and the concentration of housing problems.

The central issue was whether the council had properly considered the alternative and rationally decided that mandatory licensing was preferable.

1. Claim dismissed. The council had complied with section 81(4)(a) and had acted rationally in choosing mandatory selective licensing.
2. Section 81(4)(a) of the Housing Act 2004 imposes a mandatory duty on a local housing authority to consider other available courses of action that might provide an effective method of achieving the designation’s objective. If the authority has undertaken that consideration, it may still designate an area even where another course might be effective.
3. The resulting choice is discretionary, but the authority must not act perversely or irrationally. Relevant circumstances may include an identifiable advantage of mandatory licensing over a voluntary scheme and whether mandatory licensing is proportionate in the presence of an alternative that might achieve the objective.
4. The court should examine the central core of the authority’s reasons. It should avoid an over-legalistic, technical or nit-picking approach when interpreting the decision, adopting a realistic and practical approach: R v London County Council ex parte London and Provincial Electric Theatres Ltd [1915] 2 KB 466; R v Somerset County Council ex parte Fewings [1995] 1 WLR 1037; and Holmes-Moorhouse v Richmond upon Thames LBC [2009] UKHL 7; [2009] 1 WLR 413.
5. The July recommendation favouring a voluntary scheme was relevant background but was not binding on the Cabinet in December. The reduction and concentration of the proposed licensing areas provided a rational basis for concluding that mandatory controls were more effective and proportionate in the remaining areas. The six reasons advanced for preferring mandatory licensing were cogent when considered against the December report and evidence.
6. Section 81(4)(b) was accepted to have been satisfied. The alternative issue concerning refusal of relief for detriment to good administration did not arise.

The judgment describes an earlier procedural hearing before Judge Belcher on 16 April 2015, at which permission for judicial review was granted but limited to Ground 2. The claim was then determined at first instance by the High Court (Administrative Court).