LB Enfield Licensing Designation Held Unlawful

On 1 April 2010, the Secretary of State issued general approval to all local housing authorities in England about the designation of areas for additional or selective licensing under the Housing Act 2004. 

The approval is conditional that any consultation (as required by ss.56(3) and ss.80(9) Housing Act 2004) will last at least ten weeks [Licensing of Houses in Multiple Occupation and Selective Licensing of Other Residential Accommodation (England) General Approval 2010].

 In April 2014, the London Borough of Enfield decided to make a borough-wide designation of selective and additional licensing. The thinking behind a full designation was to prevent landlords from moving into other areas within the borough to avoid licensing. 

Before making the decision, there was a “listening and engagement” period followed by an eight-week consultation on the proposed specifics of the designation. 

In Regas, R (On the Application Of) v London Borough of Enfield [2014] EWHC 4173, a landlord with one property in Enfield sought judicial review of the designations, arguing:

• LB Enfield had failed to consult persons in neighbouring boroughs, and
• the general approval could not be used because the consultation was only eight weeks.

Enfield argued:

• they were entitled to consult only those most affected and not the surrounding areas, and
• the consultation period should include the period of “listening and engagement”, which would then exceed ten weeks.

The High Court agreed with the landlord. On the consulting outside areas:

I have reached the conclusion in the present case that the class of persons likely to be affected by the designation plainly included those residents, businesses, landlords and agents who live or operate in immediately adjoining parts of other local authority areas. To my mind it is plain that these groups were likely to be affected and should have been consulted and no thought was given, as it should have been, to the likely impact on those outside the borough who would be affected but were not protected by the proposals. After all, as is plain from Enfield's own documentation to which I have referred, the rationale for deciding to impose both additional and selective licensing schemes across the whole of Enfield was at least in part to prevent bad landlords and indeed tenants simply moving to an unlicensed area within Enfield.

In respect of the 8 / 10-week consultation point

… the statutory consultation requirement cannot be satisfied by a general engagement and listening exercise but requires a draft proposal which would require some precision in the identification of what is to be designated and its consequences so that the extent of the effect on the people can be appreciated. In addition, it is hard to see how adequate steps could be taken to consult with the persons affected unless they knew the likely licence conditions that would be imposed. That level of detail was conspicuously lacking in the first phase undertaken by Enfield and, in the circumstances, Enfield's argument cannot prevail …