Southern Landlords Association, R (on the application of) v Thanet District Council [2012] EWHC 3187 (Admin)

Case No CO/3332/2011[2012] EWHC 3187 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 13/11/2012
Before
MR JUSTICE CRANSTON
Between
The Queen On The Application of Southern Landlords AssociationClaimantThanet District CouncilDefendant
George Pulman QC and Andrew Lane (instructed by Macalister White LLP) for ClaimantIain Colville (instructed by Local Authority Legal Department) for DefendantHearing Hearing dates: 30-31 October 2012
Judgment

INTRODUCTION

[1]This judicial review is brought by the claimant, the Southern Landlords Association, a trade association of landlords drawn mainly from the south-eastern part of England, but extending as far west as Southampton. It seeks to quash a decision of the defendant, the Thanet Borough Council (‘the Council’), in January 2011 to designate its wards of Margate Central and Cliftonville West as a selective licensing area. The area of the two wards is a built environment on the seafront, but set back from it. It is characterised by large Victorian terraced houses, guest houses and hotels, over several floors, with small gardens. In broad outline the Council’s designation is challenged in this judicial review on the grounds that there was a lack of evidence to meet the statutory requirements for selective licensing and a failure to consider alternative means of achieving the objectives selective licensing is intended to achieve.[2]Designation of an area for selective licensing is intended to address the impact of poor quality private landlords and anti-social tenants in areas of low housing demand. It means that private landlords in an area designated must obtain a licence and reach acceptable management standards. So far the power to designate a selective licensing area, contained in the Housing Act 2004, has been used relatively sparingly. There are some ten areas nationwide, including in Middlesbrough, Salford and Gateshead. Recently, the whole of the London Borough of Newham was designated. In the case of this Council the designation of the Margate Central and Cliftonville West wards took effect on 21 April 2011 and was to continue for a period of five years.

BACKGROUND

[3]Margate has a long maritime history and for several centuries its sandy beaches made it a leading seaside resort. In 1921, when recuperating in Margate, T S Eliot wrote part of “The Waste Land”, one of the most important poems of the twentieth century. “On Margate Sands./ I can connect/ Nothing with nothing./ The broken finger-nails of dirty hands. / My people humble people who expect/ Nothing.” Margate can now boast a very fine gallery, the Turner Contemporary Art Gallery.[4]But the decline of tourism in Margate since the 1960s, with the advent of relatively cheap foreign holidays, led to the conversion of many of the large guesthouses and hotels into multiple occupation dwellings. These provided private sector accommodation at the lower end of the market and have been largely unmanaged and poorly maintained. Although located in the affluent south-east England, Thanet ranks 65 in the country out of 354, based on the indices of multiple deprivation, placing it in the bottom three percent of the most deprived areas nationally. Indeed, the Margate Central and Cliftonville West wards are the most deprived wards in south-east England.

Council policy for Margate Central and Cliftonville West

[5]In the 1990s the Council’s aim was to reduce the number of large, high risk houses in multiple occupation in its Margate Central and Cliftonville West wards by encouraging their conversion into flats. In 2003 the Council commissioned Professional Partnership Services to prepare a neighbourhood renewal assessment with a view to declaring a renewal area. Completed in 2004, the assessment proceeded, inter alia, by determining the conditions of dwellings and discovering the views of residents and commercial users in the area. The aim of declaring a neighbourhood renewal area was said to be to facilitate an increase in confidence levels of both residents and businesses in and about the area, and to improve its long term future as a place to live, while recognising the social, physical and economic aspirations of those who live, work and visit there. Specific objectives were to reduce the number of non self-contained homes and unoccupied and obsolete commercial and domestic properties, to improve community safety, and to build a vibrant, sustainable, mixed and settled community.[6]The 2004 assessment found that Margate Central and Cliftonville West contained high rates of both unfit and non-decent homes. Its more detailed analysis found that 60 percent of homes within the area were flats, most of which were conversions. The general external condition of the buildings was poor, with high numbers requiring roof and window repairs. The general façade was of run down buildings with poor external decoration. A high number of vacant and derelict buildings contributed to a poor environment and there was vandalism, particularly in Cliftonville West.[7]In October 2004 the Council adopted the assessment’s recommendation that it declare a renewal area. It adopted a phased approach with a rolling programme of separate declarations, beginning with the Cliftonville West, Old Town, Grotto Hill and Poets’ Corner areas. There was a review of the Margate Renewal Delivery Plan in 2008.[8]In 2008 consultants were also commissioned to study the causes of deprivation in the Margate Central and Cliftonville West wards and to make recommendations to address them. The consultants highlighted the unbalanced tenure mix in the wards, with more than three times the regional average of privately rented homes. Among the key issues, they concluded, were the high and increasing numbers of privately rented properties and benefit-dependant households, the entrenched and interlinked cycles of deprivation, the lack of social cohesion, and the high levels of recorded crime. Point three of the seven point plan the consultants recommended was to rebalance the housing market and improve housing management and housing condition by “aggressive intervention”. There were detailed chapters in the consultants’ study analysing housing and crime in the area.[9]In 2010 there was a report from the so-called “Total Place Pilot”, which covered the administrative area of Kent County Council and the twelve districts falling within it, including Thanet. As regards Margate Central and Cliftonville West the report identified the high public costs in dealing with problems in the area, as well as the deprivation and dependency of its residents. At the heart of the problem, the report said, was the over-supply of cheap, mainly substandard, privately rented accommodation. That enabled many residents to survive on a mixture of benefits and black market activity. It produced social problems and some of the worst crime rates in Kent. The report recommended a reduction of privately rented accommodation over ten years from nearly ninety percent to twelve percent. The privately rented sector, it said, had to be regulated.[10]In August 2010 the Council introduced the Margate Task Force. That is a new initiative working to integrate housing and environmental regeneration. It involves a wider multi-agency approach to tackle the high level of socio-economic problems in the area, characterized by a disproportionate concentration of vulnerable individuals and families. The Task Force team comprises police, housing, community safety, youth worker, and family intervention teams. It will take the lead in tackling crime and anti-social behaviour. The task force’s priority is to engage with the community through resident, youth and business groups working in partnership.

Selective licensing for Margate Central and Cliftonville West

[11]On 6 September 2010 the Council began a consultation on the proposed designation of the two wards as a selective licensing area. The consultees included landlords, letting agents and estate agents. There was a mail-drop to all residents in the area asking for views. The response rate was high. The consultation produced 709 responses. Some 579 surveys were completed. Of these four-fifths agreed that anti-social behaviour in the area was an issue and that it was something which the Council should be tackling. As to whether a selective licensing scheme would help, the responses were split, with 49 percent agreeing and 44 disagreeing. The majority of those disagreeing were landlords. Some 67 percent of residents agreed that the scheme would be a good idea for the area.[12]The claimant sent a late response to the consultation. It said that it opposed a designation of the wards for selective licensing. Items of immediate concern were that there had been no consideration given to alternative solutions; the prime reason for the scheme seemed to be to control anti-social behaviour; there did not appear to be a satisfactory case that landlords in the area were not tackling anti-social behaviour; in any event it was incumbent on the local authority and the police, not landlords, to deal with anti-social behaviour outside the curtilage of rental property; and the Council already had the power, indeed the obligation, to deal with the fire and electrical hazards in the properties in the area.[13]There was also a response from the National Landlords Association. In a letter of 15 November 2010 it said the number of fires and crimes in the area were not within the definition of anti-social behavior in the Housing Act 2004. Nor was there evidence that the crime and disorder in the area were in any way related to the privately rented sector or that selective licensing would lead to their reduction. Indeed, it added, a map in the Council’s document suggested that a disproportionate amount of anti-social behaviour emanated from owner occupied housing and social housing. If nearly forty percent of anti-social behaviour took place in privately rented homes, and some streets were as high as eighty percent privately rented, the connection between anti-social behaviour and management of the privately rented sector was not only weakened, but effectively non-existent.[14]Subsequently the National Landlords Association emailed (on 16 December 2010) that, in the light of the proposal which the Council made after the consultation, it agreed that selective licensing for the area cleared the legal hurdles. The link between anti-social behaviour and the privately rented sector was still tenuous, but in the association’s opinion the Council had overcome the evidential burden by way of anecdotal evidence. The association appreciated, it said, the difficulties in obtaining data. The issue of low housing demand was now put more compellingly and the evidential burden apparently overcome. As to the other avenues available, there were no fewer than nine pages setting them out, and why many would not work was explained. “We are still not entirely convinced that [the Council] have got over the hurdle of explaining how licensing will solve the problems but you have certainly put together quite a persuasive argument.”

The proposal document

[15]Following the consultation, the Council’s officers produced a document entitled “Proposal to Declare a Selective Licensing Designation. Proposal for decision, 12th January 2011” (“the proposal document”). The document began by saying that the proposal for selective licensing for the Margate Central and Cliftonville West wards was part of a wider regeneration programme for what were the two most deprived wards in south-east England. The properties which once catered for seaside tourism had become easily accessible housing for benefit dependent individuals. Owner occupiers had moved out and the large properties had become attractive investments for landlords to sub-divide. The area was commonly seen as a rundown and an undesirable place to live, and was contributing negatively to the overall reputation of Thanet. There needed to be a range of co-ordinated approaches to address the problems of the area. Selective licensing was part of the toolkit.[16]There then followed a profile of the area, setting out the symptoms of deprivation, and referring to the evidence about what was said to be arguably at the heart of the problem, “the over-supply of mainly substandard private rented accommodation”. In some streets more than 8o percent of the properties were privately rented. The average for privately rented property in Thanet was 28.5 percent, which was still very high compared to a national average of just under of 14 percent. There was also a high level of empty properties. The Council’s 2009 survey, “Your Home Your Health”, found that up to 20 percent of units were empty in some streets. Generally speaking the housing stock was not in good condition. The deprivation and nature of the housing stock combined to place a heavy demand on the public services to deal with fires, crime, dumped rubbish, anti social behaviour and illness. The additional resource directed to the area had had a positive impact but had not tackled directly the internal conditions of the properties, or dealt with continued anti social behaviour issues. “Selective licensing will support the activity that is currently being undertaken but also bridge the gap that has been identified by dealing with the problems associated with rented accommodation and anti social behaviour. At the same time the housing intervention strategy that is currently being developed will address the re-structuring and re-balancing of the tenure mix of the area. The re-balancing approach, combined with selective licensing aims to deal with the low demand aspect of the area, looking at ways to work in partnership with developers and registered social landlords to redevelop empty and derelict buildings into family homes for owner occupation where possible.” There was also reference in the proposal document to selective licensing being intended to tackle not only low housing demand and anti social behaviour, but also the poor management of privately rented accommodation.[17]The proposal document then set out the evidence supporting the proposal. Under the heading “Low housing demand” were, first, the figures about the value of residential premises in the area. These values were lower that in the rest of Thanet and lower still for Kent as a whole. Drawing on the 2001 census, the document then asserted a significant turnover of residents, over 30 percent a year, compared to 12 percent in Kent and 3 percent in south-east England. For Cliftonville West this turnover was broken down as people moving in, 16 percent of the turnover, and people moving out, 13 percent of the turnover. The points about a high level of privately rented accommodation and of empty properties were backed with figures. Under this head there was also evidence about recorded crime in the area.[18]The next heading was “Anti-social behaviour”. After canvassing the various definitions of the phenomenon, the document said:
“For the purposes of this selective licensing proposal the Housing Act definition must be used.”
Margate Central and Cliftonville West had had the highest levels of anti-social behaviour in Thanet over many years. Crime was well above the national average. The document continued:
“As there is a high percentage of properties that are privately rented in these two wards, it is reasonable to suggest there is a link between anti social behaviour and rented property. Landlords are expected to play a part in combating antisocial behaviour as part of their role in managing their properties; however, the experience of Community Safety Officers indicates that many private landlords have not been taking this role on board. They do not appear to be requiring references and are not considering the suitability of tenants for a property. Some landlords are unwilling to deal with their anti-social tenants when contacted by Thanet District Council and Police.”
[19]Under the heading anti-social behaviour, the proposal document continued that the absence of the need for references was encouraging tenants previously evicted for anti social behaviour elsewhere to move into the area. There were also problems of dumped rubbish, dog fouling, burglary, tenants being involved with drugs and benefit fraud. A later section of the proposal document set out an example of the proposed conditions to be attached to a licence - that the licence holder or manager would have to take all reasonable steps to resolve any anti-social behaviour problems caused by occupiers and visitors to a house.[20]The document then summarised the responses from consultees under various headings, including that it was not fair or appropriate to target good landlords, that there was already legislation in place to address the problems, that there was an absence of evidence for a link between landlords and anti-social behaviour and that there were alternative solutions. The parts of the document where the Council had addressed the consultees’ concerns were identified. There followed sections on the benefits of selective licensing over current legislation (in particular, the advantage of dealing with all privately rented accommodation), and on the enhanced services which would follow designation.[21]The conclusion to the proposal document asserted that many causes of lower level anti-social behaviour in the area could be dealt with by landlords. Proper waste disposal, noise, and conduct within the property could all fall within the terms of a tenancy agreement. Despite attempts to engage with landlords there was a reluctance by many to get involved. To be successful in tackling the problems, the Council needed the commitment of landlords, which at present was not there. Low housing demand would be dealt with by reducing the level of crime and anti social behaviour. There was a clear link between the reputation of an area, the levels of investment and the market value of the properties within it. Selective licensing would require landlords to engage with the Council and its partners to reduce anti-social behaviour, and poor landlord management, as part of the wider regeneration of the area.

The decision and its aftermath

[22]On 12 January 2011 the Council designated its wards of Margate Central and Cliftonville West as a selective licensing area. The order was made by the Council’s Cabinet following the consideration of a report of Ms Wenham, the Council’s housing regeneration manager, which annexed the proposal document. The reasons for the Cabinet decision, recorded in the Council’s records, were that there was sufficient evidence of the need for the scheme in the light of the representations to the consultation and the amendments to the proposal. Under the heading, “Alternatives considered and why rejected”, the Cabinet’s decision read:
“To reject the scheme was considered inappropriate due to the evidence provided within the report.”
[23]By the time of the judicial review hearing before me selective licensing had been in force for over a year in Margate Central and Cliftonville West. There have been enforcement problems with it, but the Council claims some beneficial outcomes. Thus there has been an improvement in fire, gas and electricity safety measures in properties in the area. There has also been a positive effect on the landlord accreditation scheme run by the UK Landlord Accreditation Partnership, with which the claimant has some involvement. Accreditation is important, the Council says, in the education of landlords and in improving their management of properties.[24]For the purposes of these proceedings there are a number of witness statements from landlords supporting the claimant’s case. For example, Mr Paul Hutton and Mr Graham Kinnear explain that, overall, they have no difficulty in letting their properties and that demand in the area is buoyant. The witnesses also give evidence of what could be described as the stigmatizing effect of selective licensing for the area. Mr Anthony Luce is a letting agent and owns over twenty self-contained flats in the area. In his statement of the 26 April 2012 he explains that he contacted five banks/building societies to ascertain their policy of lending for owner occupation in the area. Two of the banks would not lend at all; two did not have a specific policy; and one said that it would be reluctant to lend and that lending would not be a straightforward matter. John Shaddick, a professional landlord for around 40 years, with nine flats in the area, explains that he bought the flats “because we have seen that there is a high demand for rented properties in the designated area”.[25]Mr Thomas Guy, who has some forty-five self-contained flats in the area, says in his statement of 3 July 2012 that he had had only one instance of anti-social behaviour in the last year, and when it was brought to his attention he reported it to the police and warned the tenant. He had not experienced the problem since. He also confirms that all his properties were let at the time of the preparation of his statement, the average length of occupancy being between 18 months and two years, and that he had no difficulties in finding new tenants. Mr Raymond Marriott has some twenty-one properties in Cliftonville West. He says in his statement of 3 July 2012 that in 2010 he had approached a bank to refinance a building containing a number of his flats and had been refused. THE LAW The legislation

THE LAW

[26]Local housing authorities have duties and powers under statute to control the quality and management of privately rented and privately owned housing in their areas. The principal mechanism of control in private sector housing had been through the concept of unfitness. In addition, under Part 7 of the Local Government and Housing Act 1989 the revitalisation of areas suffering poor housing conditions could be facilitated through the declaration of a renewal area. Once an area has been declared a renewal area, the authority has wide powers for the acquisition of land and to carry out, or to assist in carrying out, works of improvement and repair: section 93 of the 1989 Act. Further, under Part 1 of the Housing Grants, Construction and Regeneration Act 1996, a local authority was able to make grants for the renewal of private sector housing.[27]Part 3 of the Housing Act 2004 repealed and recast many of the powers under which a local housing authority can intervene to regulate the standard of private sector housing, and includesthe power under which a local authority can designate an area of their district, or the whole of their district, as subject to selective licensing. Under section 80 (1) it can do this if the requirements of subsections (2) and (9) of the section are met. Subsection (9) has requirements for the consultation the local authority must conduct before it can make a designation. The only authority on selective licensing, R (on the application of Peat) v Hyndburn Borough Council [2011] EWHC 1739 (Admin), involved a successful challenge to the consultation process. This judicial review raises no challenge to the consultation conducted by the Council. Subsection (9) can therefore be left to one side.[28]The requirements of subsection (2) of section 80 establishes two sets of general conditions relevant for the designation of a selective licensing area, first, it must be an area of low housing demand (subsection (3)), or secondly, it must be an area experiencing a significant and persistent problem caused by anti-social behaviour (subsection (6)). The local authority must consider that either the first or second sets of general conditions are satisfied in relation to the area.[29]In relation to a designation on the first basis, i.e.an area of low housing demand, section 80 provides as follows:
“(3) The first set of general conditions are - (a) that the area is, or is likely to become, an area of low housing demand; and (b) that making a designation will, when combined with other measures taken in the area by the local housing authority, or by other persons together with the local housing authority, contribute to the improvement of the social or economic conditions in the area.”
Subsection (4) provides that in deciding whether an area is, or is likely to become, an area of low housing demand a local housing authority must take into account (among other matters) (a) the value of residential premises in the area, in comparison to the value of similar premises in other comparable areas; (b) the turnover of occupiers of residential premises; and (c) the number of residential premises which are available to buy or rent and the length of time for which they remain unoccupied.[30]It is subsection (6) which deals with the second set of general conditions, i.e. an area experiencing a significant and persistent problem caused by anti-social behaviour. “(6) The second set of general conditions are -(a) that the area is experiencing a significant and persistent problem caused by anti-social behaviour;(b) that some or all of the private sector landlords who have let premises in the area (whether under leases or licences) are failing to take action to combat the problem that it would be appropriate for them to take; and(c) that making a designation will, when combined with other measures taken in the area by the local housing authority, or by other persons together with the local housing authority, lead to a reduction in, or the elimination of, the problem.” “Private sector landlord” does not include a non-profit registered provider of social housing or a registered social landlord within the meaning of Part 1 of the Housing Act 1996. Anti-social behaviour is defined by section 100 by reference to the definition found at section 57(5) of the Act, which provides that in the Act anti-social behaviour means “conduct on the part of occupiers of, or visitors to, residential premises– (a) which causes or is likely to cause a nuisance or annoyance to persons residing, visiting or otherwise engaged in lawful activities in the vicinity of such premises, or (b) which involves or is likely to involve the use of such premises for illegal purposes.” “conduct on the part of occupiers of, or visitors to, residential premises– (a) which causes or is likely to cause a nuisance or annoyance to persons residing, visiting or otherwise engaged in lawful activities in the vicinity of such premises, or (b) which involves or is likely to involve the use of such premises for illegal purposes.”[31]Section 81 spells out the procedure to designate an area. Before designating an area as a selective licensing area the local authority must ensure that any exercise of the power is consistent with the authority's overall housing strategy and there must be a coordinated approach for dealing with homelessness, empty properties and anti-social behaviour, as regards combining licensing with other courses of action available both to the authority and other bodies: section 81 (3)-(4). In particular, under section 81(4), a local authority must not make a designation unless “(a) they have considered whether there are any other courses of action available to them (of whatever nature) that might provide an effective method of achieving the objective or objectives that the designation would be intended to achieve, and (b) they consider that making the designation will significantly assist them to achieve the objective or objectives (whether or not they take any other course of action as well).”[32]The effect of a selective licensing designation is that all houses in the area must be licensed, unless exempt, such as houses in multiple occupation, which are already subject to the licensing requirements of Part 2 of the Act: section 85(1). On the application for a licence (which involves payment of a fee) an authority can refuse it, thereby effectively prohibiting the property being used for residential purposes through criminal sanction (section 95), enabling rent repayment orders to be made (sections 96- 97)) and restricting claims for possession (section 98). In approving an application, the authority must be satisfied as to the person being a ‘fit and proper person’ and about the management arrangements for the property (sections 88, 89). There is the power to revoke a licence in specified circumstances, for example, if the authority no longer considers the licence holder to be a fit and proper person: section 93(2)-(3).

Government Guidance

[33]In 2010 the Department of Communities and Local Government published revised guidance on the approval steps for designating areas for selective licensing (“the guidance”). As to the factors to be taken into account when deciding whether an area is suffering from, or is likely to become an area of low housing demand, the guidance suggests that, in addition to the statutory factors in section 80(4), local authorities might consider a lack of mixed communities in terms of tenure (e.g., a high proportion of rented property, a low proportion of owner occupied properties); a lack of local facilities (e.g., shops closing down); the impact of the rented sector on the local community (e.g., poor property condition, anti-social behaviour); and criminal activity in the area. These are said to be examples of the types of characteristics which an area suffering from low demand could demonstrate. The guidance says that they are clearly not exhaustive characteristics of an area in low demand, neither are the factors mutually exclusive.[34]In this context the guidance also addresses anti-social behaviour. It explains thatan area can be deemed to be suffering from significant and persistent anti-social behaviour if it suffers from crime (tenants not respecting the property in which they live and engaging in vandalism, criminal damage, burglary, robbery/theft and car crime); nuisance neighbours (intimidation and harassment; noise, rowdy and nuisance behaviour; animal related problems; vehicle related nuisance; tenants engaged in begging; anti-social drinking; street prostitution and kerb-crawling; street drugs market within the curtilage of the property); and environmental crime (tenants engaged in graffiti and fly-posting; fly-tipping; litter and waste; nuisance vehicles; drugs paraphernalia; fireworks misuse in and around the curtilage for their property). The guidance contains these passages:
“A landlord has responsibility to ensure persons he has permitted to reside at a property do not cause an annoyance or nuisance to other persons residing in it, or other persons living, working or visiting the immediate neighbourhood. If anti-social behaviour is being carried out within the immediate vicinity of the property and is being caused by the occupiers of it, then it would be reasonable to expect a landlord to ensure that those persons are not conducting themselves in a way that is adversely impacting on the local community. This applies equally to visitors to the property. Therefore if an [local housing authority] wishes to make a designation based on anti-social behaviour they will need to establish that the problem is directly attributable to the behaviour of the occupiers of, or visitors to, a property and that these landlords are failing to deal with their tenants’ behaviour. A landlord will not normally have responsibility for the conduct of occupiers of his property, and certainly never visitors to it, if the misconduct is not being carried within its vicinity (unless, for example, there is reasonable suspicion that the landlord is encouraging the conduct for whatever reason). This is because it will generally be difficult to establish a link between the anti-social behaviour and the letting. Therefore, if an area suffers from general anti-social behaviour that occurs outside the curtilage of certain properties, a local authority should consider whether this is a symptom of low housing demand.”

THE CHALLENGE

[35]In his submissions on the claimant’s behalf, Mr Pulman QC divided the challenge to the designation of the Margate Central and Cliftonville West wards as a selective licensing area are into three broad heads of complaint: first, a lack of evidence to conclude that the area is or is likely to become an area of low housing demand (the section 80(3) challenge); secondly, a lack of evidence or basis for determining that there is an anti-social behaviour problem in the wards which some private sector landlords have failed to combat (the section 80(6) challenge); and thirdly, the failure properly or at all to consider other courses of action to achieve the objectives selective licensing is intended to achieve (the section 81(4) challenge). There were, he submitted, a series of factual inaccuracies, irrelevant considerations, unsubstantiated assertions and relevant factors not considered by the Council, but these formed the context of the claimant’s challenge and were no longer advanced as independent grounds of judicial review.

Anti-social behaviour: the section 80(6) challenge

[36]After criticizing the confusion of definitions of anti-social behaviour in the proposal document, Mr Pulman QC concentrated his fire on the failure to comply with the statutory requirements. The Council had improperly used the evidence, such as it was, about anti-social behaviour as defined in section 57(5) of the Housing Act 2004. As the 15 November 2010 letter from the National Landlords Association complained, there was no evidence in the proposal document to suggest that the crime and disorder taking place were related to the privately rented sector and its management. The evidence of crime and anti-social behaviour in the wards, and of the high percentage of privately rented properties, did not establish the link. Surmise and guesswork would not do but, submitted Mr Pulman QC, that was what the proposal document did. It simply asserted that, since there was a high percentage of privately rented property in the wards, it was reasonable to suggest a link.[37]Mr Pulman QC highlighted the evidence of private landlords such as Mr Guy, that there were no real problem of anti-social behaviour in the privately rented sector. Without proper explanation, he submitted, high crime rates, littering, dog-fouling issues, and so on could not be placed at the door of the privately rented sector. As the guidance explained, in a passage quoted earlier, if a local housing authority wished to make a designation based on anti-social behaviour it needed to establish that the problem was directly attributable to the behaviour of the occupiers of properties, and that landlords were failing to deal with their tenants’ behaviour.[38]In my view there was no confusion in the Council’s definition of anti-social behaviour. Although the proposal document laid out the different definitions of anti-social behaviour, this was by way of explanation to the statistical data to which reference was made. The proposal document was clear:
“For the purposes of this selection licensing proposal the [section 57(5)] Housing Act definition must be used.”
There can be no suggestion – and as I understand it, Mr Pulman QC did not advance it – that the Council applied the wrong test.[39]Moreover, there is no flaw as regards the evidence of a significant and persistent problem caused by anti-social behaviour in the area: s. 80(6)(a). The proposal document refers in various parts to anti-social behaviour, along with the supporting evidence. The criticism that the evidence ranges too widely, for example, crime, littering and dog-fouling, overlooks that in this regard the proposal document accords with the guidance. Moreover, there was very direct evidence produced in the consultation: four-fifths of the 579 surveys respondents identified anti-social behaviour as an issue within the area. It is clear that there has been a significant and persistent problem with anti-social behaviour, as defined in section 57(5).[40]It is the second and third aspects of section 80(6) which, in the first instance, gave me pause: private sector landlords must have been failing to take appropriate action against anti-social behaviour, and the designation of the area for selective licensing must, when combined with other measures, lead to its reduction: section 80(6)(b),(c). Hard evidence about both these aspects of the statutory test must be difficult to come by, the one akin to causation, the other a judgment as to the future. However, this is a public law challenge, not a consideration of the merits on my part. That means that the claimant must establish illegality or some other public law error on the part of the Council.[41]It is impossible, in my view, for the claimant to sustain the contention that there is a public law error in the Council’s decision-making. The problems of anti-social behaviour in the Margate Central and Cliftonville West wards and its causes did not suddenly emerge in 2010. As explained earlier in the judgment it has a context stretching back over several decades. Members of the Cabinet would have been aware of the issues through local knowledge and being informed by the raft of reports about the area over the previous decade. In the light of all that they made a judgment about the benefits of selective licensing.[42]Moreover, there was direct evidence in the proposal document of the link between anti-social behaviour and conduct of some of the private sector landlords in the area. The evidence of the landlords whose witness statements were lodged for the purposes of the hearing is that they have dealt with the limited anti-social behaviour experienced from their tenants. That evidence was not, of course, available to the Council for the purposes of its decision to designate. What was taken into account by the Cabinet, however, was the proposal document, which explained that community safety officers had reported that many private landlords were not managing their properties to control anti-social tenants. Moreover, when contacted by the Council and the police about anti-social tenants, the proposal document reported that some private landlords were unwilling to deal with it. Given evidence such as this it cannot be said that the Council acted unlawfully or irrationally in a public law sense in reaching the overall judgment that this part of the statutory test was met.

Low housing demand – the section 80(3) challenge

[43]In advancing this ground, Mr Pulman QC submitted that the evidence used to suggest a low demand in the privately rented sector was distinctly lacking, especially in so far as reliance was placed on turnover. Low housing demand was not experienced by the landlords in the designated area, who had given witness statements explaining the buoyant market. The proposal document referred to the 2001 Census and the Total Place report, and it stated a 30 percent turnover in the area. Not only was this information dated but it ignored the historical impact of houses in multiple occupation, and their gradual phasing out through the planning system. Moreover, the Council failed to take into account the popularity of the wards for other local authorities in placing their looked after children. In any event, the 30 percent turnover figure encompassed more people moving in than moving out. In Mr Pulman QC’s submission there had not been sufficient regard paid to the nature of the area and the fact that much of the empty, boarded up property comprised failed hotels, guest houses, old people’s homes and two monasteries, which were not available as privately rented properties. The proposal document, submitted Mr Pulman QC, exaggerated the incidence of empty residential properties.[44]The starting point in considering these submissions is section 80(3), which certainly refers to an area for designation having to be of low housing demand. (The Council’s case was that the area was of low housing demand, not that it was likely to become such an area). However, section 80(4) contains a number of factors to be considered by a local housing authority when deciding if an area is suffering from low housing demand. These are the value of residential premises in the area, turnover, the number of residential premises available to buy or rent, and the length of time for which they remain unoccupied. There are the additional factors in the guidance, in particular that there is a high proportion of rented property, property in poor condition and anti-social behaviour. So as a matter of law low housing demand in the first set of conditions is mediated through a range of considerations which, at first glance, might not appear to be related to it. In my view what the legislation and guidance are concerned with is whether there is a demand for housing in the area by a range of persons, for a variety of housing tenures, who wish to remain there for a substantial period.[45]Once that statutory delineation of low housing demand is understood it seems to me impossible to sustain a public law challenge to the Council’s decision-making in this regard. The proposal document contained data on the low value of residential premises in the two wards, the high turnover of properties, the very high proportion of rental property (which, as a matter of policy, it was pledged to reduce), the poor condition of many properties and the local anti-social behaviour. Having considered these factors it then concluded that this was an area of low housing demand. The high demand attested to by the landlords in their witness statements would have been only part of the picture, even if these had been before the Cabinet. The popularity of the area for other local authorities (for example, to place looked after children and others) would be peripheral.

Other courses of action – the section 81(4) challenge

[46]Mr Pulman QC submitted that under section 81(4) designating an area for selective licensing was not an option of first resort. Yet, he submitted, reading the consultation papers and other documents relied upon by the Council it was difficult to accept that other courses of action had been considered. What appeared to be the case was a pre-determined notion that selective licensing would be introduced in the wards come what may. Among the statutory courses of action open to the Council, which Mr Pulman QC listed, were anti-social behaviour orders under the Crime and Disorder Act 1998, anti-social behaviour injunctions under the Housing Act 1996 and noise abatement notices under the Environmental Protection Act 1990. There were other avenues available as well, such as through the neighbourhood renewal area and the Margate Task Force. These other approaches provided an effective method of achieving the objectives which the designation was intended to achieve. The claimed successes of the scheme to date – an increase in electrical and fire safety action – do not constitute the purposes of designation of an area for selective licensing.[47]In my view this ground of challenge goes nowhere. It is clear from what I have said earlier in the judgment that during the past decade the Council has taken a wide range of initiatives to address the problems in the Margate Central and Cliftonville West wards. Those were reviewed in the proposal document. It is also clear that, despite those efforts and the public money spent in the area, its regeneration had not been achieved. I cannot see any basis for contending that the requirement to consider other courses of action was not met. The proposal document canvassed the other approaches already taken, such as establishing a renewal area but, as it explained, those had not proved an effective method of addressing the problems. That being the case it was open to the Cabinet to conclude that the actions taken by earlier initiatives had not been a success. Nor can I see any basis for the suggestion that the Council approached designating the area for selective licensing as the first port of call. That overlooks the steps the Council had already taken over the previous decade. As for the evidence before me about what has happened subsequent to the designation, that is legally irrelevant to the challenge to the Council’s decision-making and I need say nothing about it.

CONCLUSION

[48]In my view the claimant has failed to establish any error of law in the Council’s assessment and designation of its Margate Central and Cliftonville West wards as a selective licensing area. Accordingly the claim must fail.