Luton Landlords & Letting Agents Ltd, R (On the Application Of) v Luton Borough Council

Factual and Procedural Background

Company B made two designations on 25 October 2023 under Parts 2 and 3 of the Housing Act 2004: (a) a borough-wide additional licensing designation for houses in multiple occupation (HMOs); and (b) a selective licensing designation covering a town-centre area referred to as South Ward. Company A (incorporated 3 December 2021), whose sole director is Plaintiff, brought a claim for judicial review on 24 January 2024 seeking declarations and quashing orders in relation to those designations.

Permission to apply for judicial review was refused on paper by Judge Lane. Company A sought reconsideration at an oral hearing; Plaintiff and the solicitor for Company A filed witness statements. Judge Williams dismissed the renewed application for permission, finding Company A lacked standing and that the substantive grounds were unarguable. Company A obtained permission to appeal limited to specified grounds and sought to adduce a further witness statement; Judge Andrews granted permission to appeal and a stay of commencement pending the appeal. The appellate court dismissed the appeal, upholding the judge's conclusions.

Legal Issues Presented

1. Whether the judge erred in concluding that Company A did not have a sufficient interest (standing) to bring judicial review proceedings.
2. Whether the judge erred in concluding that the following grounds were unarguable:
   1. whether reliance on data in a December 2019 BRE report in making the 25 October 2023 designations was irrational or unlawful;
   2. whether the executive was materially misled about the financial viability of the licensing schemes;
   3. whether it was unlawful to require applicants who applied early to pay a fee that included both application-processing costs and enforcement costs at the time of application.
3. Whether permission should be granted to adduce a further witness statement produced after the decision below.

Arguments of the Parties

Appellant's Arguments

• Company A was a membership organisation set up to support landlords and therefore had associational standing to bring the claim on behalf of its members (Plaintiff's evidence described membership activity and meetings).
• It was arguable that reliance on the 2019 BRE data (some years old) was irrational when the designation would last up to five years and, therefore, further up-to-date data should have been obtained.
• The executive was misled about the schemes' financial viability because of the effect of discounted "early-bird" fees; if most applicants paid the reduced fee the schemes could not be self-funding.
• Requiring payment of the enforcement element of fees on application (the "early-bird" flat fee) was contrary to the principle in R (Gaskin) and therefore unlawful.

Respondent's Arguments

• Company A had not demonstrated any documentary or other evidence that it was a functioning membership organisation representing landlords; the evidential record undermined the claim of associational standing.
• The executive rationally considered the BRE report and expressly had the option to update it but reasonably decided not to incur further delay when the reports advised that an update may add little.
• The reports correctly explained that fees must be set on a full-cost-recovery basis and could not be set to make a profit; the potential effect of discounted early-bird fees would have been apparent to the decision-makers and did not amount to material misinformation.
• The lawfulness of fee collection is a separate matter from the validity of the designations; even if fee-taking practice were defective that would not invalidate the designations in their entirety.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R (Good Law Project Limited) v Prime Minister [2022] EWHC 198	General principles applicable to the "sufficient interest" test for standing at permission stage.	The court referred to the discussion of standing in that case when analysing whether Company A had associational standing.
R v Leicestershire County Council Ex p. Blackfordby and Boothorpe Action Group Ltd [2001] Env LR 2	Example of associational standing where clear and unchallenged evidence existed of an engaged membership body.	Distinguished: the court held the present factual matrix was different because the claimant's evidence was unsatisfactory and lacked documentary support.
Axa General Insurance Ltd. v HM Advocate [2011] UKSC 46; [2021] 1 AC 868	Observations on standing where there is a serious issue of public importance and a liberal approach to standing.	Noted as background to the court's approach to standing; court observed liberal trends but applied fact-specific tests.
R (Jones) v Commissioner of Police of the Metropolis [2020] 1 WLR 519	Principle that a court may refuse standing to one claimant if other claimants are better placed.	Applied in discussing whether Company A could be treated as an alter ego for Plaintiff and whether another claimant might be better placed.
R (Mansell) v Tonbridge and Malling Borough Council [2017] EWCA Civ 1314; [2019] PTSR 1452	Standard for when a decision-maker is materially misled by defective information in a report to the decision-making body.	The court applied this standard in assessing whether the executive had been materially misled about finances or other matters in the reports.
R (Gaskin) v Richmond-upon-Thames London Borough Council [2018] EWHC 1996 (Admin); [2019] PTSR 567	Addressed lawfulness of requiring payment of certain charges at application stage.	Relied upon by the appellant; the court assumed its correctness for argument but concluded that even if applicable it did not render the designations unlawful.
R (Hemming) v Westminster City Council (No.2) [2017] UKSC 50; [2018] AC 676	Principle that a defective aspect of a scheme may be severable so that the rest remains valid.	Applied to conclude that any defect in fee-taking practice could be separated from the validity of the designations.
R v Jockey Club Licensing Committee Ex p. Wright (Barrie John) [1991] COD 306	Duty on applicants to disclose material facts when seeking judicial review (continued application notwithstanding procedural changes).	Applied to criticise the claimant's omissions and to explain the importance of candid disclosure in judicial review claims.
R v Secretary of State for the Home Department Ex p. Ketowoglo [1992] Imm A.R. 268	Principles on disclosure in ex parte judicial review applications; duty to disclose material facts.	Referred to in support of the continued application of the duty to disclose material facts in judicial review proceedings.

Court's Reasoning and Analysis

The court proceeded in two main stages: standing and the merits of the three substantive grounds relied on in the appeal.

Standing

• The statutory test under section 31(3) of the Senior Courts Act 1981 requires a "sufficient interest". The court applied established principles (including associational standing and the permissive approach to public-interest claims) but emphasised factual proof at the permission stage to exclude hopeless claims.
• The court analysed Company A's evidence. Plaintiff's witness statements claimed a membership organisation with meetings, leaflets, membership fees and 31 members. The respondent's officer evidence and the documentary exhibits did not corroborate those assertions.
• The judge below was entitled to find the evidential lacunae significant: absence of communications from Company A to officers, absence of membership documentation, minimal corporate governance detail and exhibits suggesting Plaintiff's communications were in other capacities. The judge judged Plaintiff's evidence to lack candour (incorrect dates and omission of an earlier dissolved company with the same name) and concluded Company A was likely an alter ego of Plaintiff.
• The appellate court accepted the judge's assessment that the evidence did not establish associational standing and that late attempts to join Plaintiff or to adduce further post-decision evidence were inadmissible or untimely for permission-stage purposes.

Merits — reliance on 2019 BRE data

• The reports to the executive expressly relied on the December 2019 BRE report and invited the executive to refresh that data but warned of a c.3-month delay with uncertain benefit. The executive rationally weighed the available material and the cost of delay and proceeded. It was not irrational to rely on the BRE data in those circumstances.
• For additional licensing, the statutory condition concerned ineffective management of HMOs; the reports contained complaint data and identified problems. The private-sector dwelling estimate in the BRE report was not directly determinative of section 56(2), reinforcing rationality of proceeding on material at hand.
• For selective licensing, the BRE data showed South Ward had 49.1% privately rented dwellings; the executive was entitled to infer it was unlikely that proportion had fallen below the national average by 2021 or 2023. The decision to proceed without updating was rational.

Merits — financial viability and "early-bird" fees

• The reports set out that fees must be on a full-cost-recovery basis and could not be set to make a profit; appendices separated processing and enforcement elements and identified an early-bird flat rate (£150 comprising £122 processing + £28 enforcement).
• The court concluded that the executive could, on a fair reading of the reports, and given the explicit caveat that schemes could not be profit-making, have appreciated that widespread early-bird take-up would reduce revenue; the alleged misdescription did not amount to material misleading of decision-makers.

Merits — payment of enforcement element at application stage

• The court assumed, without deciding, that the Provision of Services Regulations 2009 might make it unlawful to require the enforcement element to be paid at application rather than approval. Even so, the court held (a) the lawfulness of fee collection is distinct from the legal validity of the designations and (b) any defect in requiring upfront payment of the enforcement component would be severable and would not invalidate the designations themselves.

Other procedural and evidential matters

• The court emphasised a claimant's duty to disclose material facts known or knowable on reasonable inquiry and found significant omissions and inaccuracies in Plaintiff's evidence (incorrect dates, failure to disclose the earlier dissolved company with the same name), which undermined the associational standing case.
• The court refused permission to adduce a proposed fourth witness statement produced long after the permission-stage decision because it related to events after the contested decisions and could not prove the earlier state of affairs relevant to standing at the time of decision or when permission was considered.

Holding and Implications

DISMISSED

Holding: The appeal was dismissed. The judge's refusal to grant Company A permission to apply for judicial review was upheld: Company A had not demonstrated a sufficient interest to bring the claim and the grounds relied upon were not arguable.

Implications: The direct effect is that Company A's application for permission remains refused and the judge's conclusions on the merits stand. The court did not establish any new legal precedent; the decision applied established principles on standing, rationality in administrative decision-making, material misleading of decision-makers, severability of defective fees from designations, and the duty of candour in judicial review evidence.