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What does “take reasonable steps to consult” mean?

The recent judicial review challenge in R (Croydon Property Forum Limited) v London Borough of Croydon [2015] EWHC 2403 (Admin) considers the meaning of the words “take reasonable steps to consult” in statutory legislation.

Facts of the case

Briefly, Croydon Property Forum Limited concerned a local authority’s power to designate an area as a selective licensing scheme under the provisions of the Housing Act 2004 (HA 2004). Parliament has provided these powers to enable local authorities to deal with anti-social behaviour and criminal activities in their areas. Such schemes however have been controversial, given that designation identifies problem area. Some social landlords also consider that the designation, which requires them to obtain a licence that imposes conditions relating to the management of the property, reduces the value of their properties.

Before any designation is made, a local authority is under a statutory duty to “take reasonable steps to consult persons who are likely to be affected by the designation and consider the representations that are made” (section 80(9), HA 2004). In June 2014, the defendant council decided to consult on introducing a selective licensing scheme. There were three stages to that consultation process. The first stage (which was a general and non-statutory consultation exercise in order to gauge support for the scheme) ran from September to October 2014. It involved the council engaging with private sector landlords, managing agents and housing associations, in order to obtain views on the proposal and using that information to shape the options that were put forward in the formal consultation.

The formal consultation, which ran from 17 November to 12 December 2014, involved consulting on four identified options and explaining that a borough-wide selective licensing scheme was the council’s preferred option.  During this phase, the consultation documents were made available online and a publicity campaign was used to draw attention to the relevant website. However, as a consequence of the High Court’s decision in R (Regas) v London Borough of Enfield [2014] EWHC 4173, in which Enfield council’s consultation exercise was held to be flawed for failure to consult those residents or landlords who lived or operated outside the borough, the council decided to extend its consultation exercise on the four options for a further ten-week period (stage three of the consultation).  The council acknowledged that its preferred option, which was to introduce a borough-wide scheme, might cause problems to the neighbouring boroughs. Therefore, the council updated its consultation website to indicate the extended consultation period and provided a separate online survey for those in neighbouring boroughs. In addition, various means were used to publicise stage three of the consultation (including placing advertisements in various newspapers circulating outside the borough) in order to bring the extended consultation phase to the attention of persons outside the borough.  The further stage of the consultation ran from 23 December 2014 to 2 March 2015.

On 16 March 2015, the council’s cabinet designated the entire borough as subject to selective licensing,  with effect from 1 October 2014. The claimant, a company formed by property developers operating in the Croydon area who had no idea that a designation was being considered, issued a claim for judicial review on the basis that local developers had not been adequately consulted and, as no reasonable steps to consult had been taken, the designation should be quashed.  In response, the council submitted that the steps it had taken to consult those affected by the proposal were extensive and on any view were reasonable.

The issue for the court to decide was whether the property developers had been properly consulted on whether there should be a selective licensing scheme in the area. In order to do so, it had to consider the meaning of the words “take reasonable steps”.

Meaning of words “take reasonable steps to consult”

Within the HA 2004, there is no explanation of what constitutes “reasonable steps”. However, guidance issued by the Department for Communities and Local Government titled Approval steps for additional and selective licensing designation in England includes a section on the requirement for local housing authorities (LHAs) to conduct a full consultation. This refers to LHAs ensuring that the consultation is ”widely publicised using various channels of communication”. The court was satisfied that the council had complied with its duty to take reasonable steps to consult those people who were likely to be affected by the designation. “Reasonable steps to consult” does not mean “all steps” or “every step” or even “all reasonable steps”. Indeed, there is clear authority that the council must have a comparatively wide discretion as to how the consultation process is carried out and the process will not be considered unlawful unless something went clearly and radically wrong. That is a high threshold for a claimant challenging a consultation process to reach.

On the facts of the case, the court was satisfied that the council had complied with what was stated in the guidance. It had ensured that the consultation was widely publicised using various channels of communication. Interestingly, the guidance did not state expressly or impliedly that a council should target any particular group or groups and this omission supported the council’s case that it had complied with its section 80(9) duty.

Applying these principles to the case, the court was satisfied that:

  • The council had a comparatively wide discretion as to how the consultation process was conducted.
  • Nothing went “clearly and radically wrong” in the consultation exercise, bearing in mind that it was almost impossible to suggest ways in which the consultation exercise might have been improved.
  • The authority had taken reasonable steps to consult the developers as a class, even if individual developers were unaware of the consultation process (and indeed the judge commented that he did not understand how that had occurred bearing in mind the extensive publicity that the council organised).

Therefore, the claimant’s application for judicial review was dismissed.

The case provides some useful guidance on the likely approach that the court will take to the interpretation of the words “take reasonable steps to consult”. For more information on the courts approach when dealing with a consultation challenge, see Practice note,  Duty to consult: when does it arise and what does it entail?

Preliminary issue on delay

Finally, one other point of interest was considered by the court as a preliminary issue.  This was the council’s argument that the claim could not be pursued as the claimant had delayed in bringing the judicial review claim. Civil Procedure Rule 54.2(1)  provides that “the claim form must be filed promptly and in any event not later than three months after the grounds for making the application first arose”.  Despite the fact that, on 16 March 2015, the council’s cabinet decided to designate the entire borough as subject to selective licensing with effect from 1 October 2015 (which decision was subsequently approved by the council’s Overview and Scrutiny Committee on 26 March 2015), the claimant’s letter before action was sent on 29 May 2015 and the judicial review proceedings were commenced on 12 June 2015. The explanation that the claimant gave for the failure to start proceedings earlier was that steps had to be taken to raise the funds that were needed to mount a judicial review challenge, following which the claimant company was incorporated and the letter before claim was sent.

The court was satisfied that the delay in starting proceedings was caused by the need to raise funds and the time it took to achieve this and to incorporate the claimant company and the claimant’s delay in issuing proceedings had caused no real prejudice to the council. In holding that he would not refuse the claimant permission on the grounds of delay, the judge acknowledged that the courts are generally reluctant to hold that a claim has not been brought promptly when the claimant has acted expeditiously to raise funds and there is no real prejudice to the opposing party, particularly where the case is brought within the prescribed three-month time limit. In A v Essex County Council [2011] AC 280, Baroness Hale explained that difficulties with funding are often regarded as a good reason to extend time, unless there is prejudice to the other side.

For more information on time limits in judicial review, see Practice note, Judicial review procedure: a practical guide.

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